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general defences Flashcards

1
Q

what are the 5 defences

A

consent
self-defence
Duress by threat ‘
Duress by circumstances
Necessity

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2
Q

what can consent apply to

A

Can apply to some non-fatal offences, not strictly a defence, does makes conduct legal

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3
Q

what happen in R v Slingsby 1995

A

charged with voluntary manslaughter. Victim took part in ‘vigorous’ sexual activity but due to scratches induced by a signet ring suffered blood poisoning and died. Consent meant there was no unlawful act thus no manslaughter

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4
Q

what is genuine consent

A

must be ‘real’ consent
submission due to fear or consent based on ignorance will not suffice.

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5
Q

facts of R v Dica 2004 HIV

A

D was diagnosed as being HIV positive. Knowing this he had unprotected sex with 2 women. With the first woman he insisted that the intercourse was without protection, they didn’t about his condition.

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6
Q

held for r v Dica 2004

A

Dica was charged with two counts of inflicting grievous bodily harm, contrary to s. 20 of the Offences Against the Person Act 1861

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7
Q

what is implied consent

A

the are instances where consent my implied like in a crowd of people - Wilson v Pringle 1987
however, you might rightly ask when actions in sport would break the rules of consent

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8
Q

case link to implied consent

A

R v Barnes

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9
Q

what was said about r v barnes

A

“ only where conduct is sufficiently grave to be properly categorised as criminal”

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10
Q

what article links to cannot consent to being killed

A

article 2 ECHR- right to life

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11
Q

what is not include in article 2 in the ECHR

A

does not include right to be killed
euthanasia and assisted suicide remain criminal

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12
Q

what situations where consent is harmful

A

properly conducted games and sports
lawful chastisement of correction
reasonable surgical interference
dangerous exhibitions

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13
Q

what consent with surgery (defence)

A

Where surgery if need to save like, or improve health consent is a defence to any assault charge unless the treatment has been refused

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14
Q

where is consent with ‘horseplay’

A

law recognised that consent may be mistaken. If D holds genuine belief if consent this may be enough for the defence.

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15
Q

case link to horseplay

A

R v jones 1986

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16
Q

facts of R v jones 1986

A

the appellants were schoolboys. They were convicted of inflicting GBH on two fellow schoolmates, having thrown them into the air with the intention of catching them. Unfortunately they had dropped them resulting in serious injury including a ruptured spleen.

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17
Q

held for R v Jones 1986

A

Appeal allowed. The convictions were quashed. Consent to rough and undisciplined horseplay is a defence and even if there was no actual consent, if the appellants had a genuine belief in consent they should be allowed the defence. There was no requirement that the belief be reasonably held, provided it was genuine

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18
Q

facts of R v Aitken 1992

A

The appellants were RAF officers. During the course of celebrations on completing their training, as a practical joke, they had taken to setting fire to officers wearing their fire resistant clothing. They had done this to two officers on each occasion the fire had been extinguished without injury. However, on the third occasion the officer sustained serious burns. The appellants were court martialled and convicted of GBH under s.20 offences against the person act 1961.

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19
Q

held for R v Aitken 1992

A

Appeal allowed. Of the officer had consented or the appellant’s believed that the officer had consented it was open for the judge to find that no offence had been committed

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20
Q

case link to sexual gratification

A

r v brown 1993
r v emmett

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21
Q

what did lord mustill say about r v brown

A

“the state should interfere with rights of the individual no more than is necessary”

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22
Q

what did lord templeman disagreed about r v brown

A

“society is entitled and bound to protect itself against a cult of violence”

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23
Q

what happen in r v emmett

A

a person could consent to risky sexual activity unless the harm went “beyond the permitted level”
left law unclear and inconsistent decisions

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24
Q

is there a defence for euthanasia

A

no defence for euthanasia
You have a right to life whether you want it or not

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25
it is unlawful to assist what
Unlawful to assist someone to die or the euthanize them with their consent Deferred to parliament whilst injustice may be argued to be continuing
26
what are the expectations where consent is allowed as a defence
lawful chastisement
26
what section is lawful chastisement
S.58 children act 2004
26
what does lawful chastisement allow
Allows for reasonable punishment provided that the battery does not result in ABH
26
what happen is there is chastisement towards adult
It would be assault if directed toward an adult.
26
what does the evidence suggest about lawful chastisement
Some evidence to suggest a ban on smacking leads to less instances of child abuse, domestic violence and violent offence genrally (Lyon 2000)
27
what does self defence cover
Covers defence of oneself and others
27
what sections cover self-defence
s.3 criminal law act 1967 s.76 criminal justice & immigration act 2008 s.43 crime and courts act 2013
27
what defence is sell-defence
common law defence but also outlined in statute (absolute defence)
27
what is stated about s.76 criminal justice & immigration act 2008
elaborates on the meaning of ‘reasonable force’
27
what is stated under s.3 criminal law act 1967(self-defence)
’a person may use such force as is reasonable in the circumstances in the prevention of crime’
27
what is stated about s.43 crime and courts act 2013
wider defence for householder cases
27
what act links to degree of force
criminal justice & immigration act 2008
28
what is the first part of degree of force criminal justice & immigration act 2008
A person may not be able to weigh the precise measure of necessary action
28
what is degree of force
Reasonable in the circumstances as genuinely believed in the defence of oneself or another
29
what was the second part of degree of force criminal justice & immigration act 2008
force that is honestly and instinctively used
30
what is the subjective test in degree of force
it was necessary to use force in the facts as D believed them to be
31
what is the objective test in degree of force
the amount of force used was reasonable in the circumstances as the defendant believed them to be
32
case link to degree of force
r v Hussain 2010
33
facts of r v Hussain 2010
D’s house was broken into by a group of armed men. I’ve of D’s sons managed to escape and alert their uncle D&uncle chased off burglars and severely beat one of them
34
held for r v Hussain 2010
convicted s.18 threat had passed- force not reasonable(merciful sentences given)
35
facts of r v clegg 1995
D was a soldier at a checkpoint in northern ireland. Car came speeding toward him, he shouted stop but the car did not. D fired three shots at the car. The last shot was shown to have been fired once the car has passed
36
held for r v clegg 1995
conviction of murder was upheld as the danger has passed thus the force was not reasonable
37
what act links to householder cases
under s.43 crime and courts act 2013
38
what is the householder rule
the householder rule is must not be ‘grossly disproportionate’
39
what is the first requirement of householder
The force I used must be used by D while in or party in building that is a dwelling
40
what is the second requirement of householder
D must not be a trespasser
41
what is the third requirement of householder
D must have believed V to believed to be a trespasser
42
what act is mistaken use of force in self-defence
s.76(5) criminal justice & immigration act 2008
43
case link for mistaken use of force in self-defence
r v Gladstone Williams 1984
44
facts of r v Gladstone Williams 1984
The appellant witnessed a man attack a youth. He rushed to the aid of the youth and the hit the attacker. In fact the youth had just committed a mugging and the attacker had wrestled him to the ground to prevent him escaping. The appeal was allowed and the appellant’s conviction was quashed.
45
held for r v Gladstone Williams 1984
judged based on guidance mistaken view of the facts regardless of whether it is is reasonable
46
what happen in r v bird
(pre-emptive strike)- no you may act to prevent unlawful force . this could include making preparations to defend yourself in the future
58
What does duress involve
It involves situations where the defendant has been ‘made’ to commit an offence. Threatened with death or serious harm to themselves or another.
59
What defence is duress
Absolute for certain offences the defendant needs both AR and MR of the offence
60
Case link to duress
Rv Howe 1987
61
Facts of R V Howe 1987
D involved in the torture and murder of two men on separate occasions. In the first D was present but not the principal offender. In the second D killed himself.
62
Held for R v Howe 1987
Duress unavailable to anyone charged with murder as either the principal or secondary offender
63
Facts of Wilson 2007
D who was 13 and his father were charged with the murder of his mother. D stated he helped his father as he was too afraid to disobey him
64
Held for Wilson 2007
No defence of duress available for murder
65
Facts of Gotts 1992
D who was 16 was threatened by his father and ordered to stab his mother. D did this but not kill her
66
Held for Gotts
No defence for attempted murder
67
What 3 elements of duress by threat?
Threat must be of death or serious injury Threat made against: Ds act must be reasonable and proportionate to the evil avoided
68
What the threats made against who or what
Self Partner and immediate family Those for whom D reasonable regards himself responsible for Possibly strangers but no clarification
69
What must be shown when a threat of death or serious injury is?
Must be shown that a threat of death or serious harm exists
70
Case link to threat of death or serious injury
R v valderrama-veca (1985)
71
Facts of R v valderrama-veca (1985)
Defendant imported cocaine and said receive threats of death, financial ruin and exposure of homosexuality Issue is the type of threat
72
Held for R v valderrama-veca (1985)
Court of appeal said that all threats were considered as death was also threatened
73
Who can been threaten into duress
-Self -Partner and immediate family -Those for whom the defendant reasonably regards himself as responsible
74
What is unclear about threat to whom
It is unclear whether the threat can be to a complete stranger as there are no cases on the issue
75
Facts of R v Graham
D was a homosexual man living with his wife and another homosexual man(K). K was violent and after drinking heavilt ordered d to help kill the wife.
76
Held for R v Graham
D claimed duress. No defence for murder.
77
Facts of R v Martin
D suffered with schizoaffective disorder which led him to believe things said to him were threatening in nature.
78
What did in believe in R v Martin
He believed he was being threatened by two men on his estate to carry out robberies or himself and his mother would be harmed
79
Held for R v Martin
Subjective element will take into account what the defendant reasonably believed Mental illness may be a relevant factor
80
facts of R v Bowen
D had low IQ and obtained goods by deception for two men who had threatened to petrol bomb him and his family
81
Held for R v Bowen
D attempted to use his IQ as a relevant factor in the objective test. Not successful
82
What are relevant factors with threat to whom
Age Pregnancy Serious disability Mental illness Gender
83
What are the further elements in threat to whom
-Escape opportunities -Imminence of the threat -Threat must be to make D commit a specific offence -Voluntary intoxication -Self-induced duress will not be a defence
84
What is an escape opportunities
Duress can only be used where D cannot escape the situation- ‘no safe avenue of escape’
85
Cases links to escape opportunities
R v Gill R v Hudson & Taylor
86
Facts of R v Gill
D claimed that he and his wife had been threatened with violence unless he stole a lorry
87
Held for R v Gill
There was a period of time where he was left alone in which he could have raised the alarm so defence.
88
Facts of R v Hudson & Taylor
The defendants were two girls aged 17 and 19 who were acting as witnesses in a trial. They were found to have lied and were charged with perjury. The girls claimed they were being threatened by an external party known for violent behaviour. The questions was whether or not have sought police protection instead
89
Held for R v Hudson & Taylor
Imminent of the threat
90
The threat must be what
effective at the moment the crime is committed. Doesn't mean threat needs to be able to carried out immediately
91
Case link to threat must be effect at the moment the crime is committed
R v abdul-hussain 1999
92
Facts R v abdul-hussain 1999
The defendants were Shi’ite muslims who had fled to sudan from iraq and then hijacked a plan to avoid deportation. They landed in the uk and were charged with hijacking
93
Held R v abdul-hussain 1999
Pleaded duress and were successful
94
What is the first part that was held for r v Abdul-Hussain 1999
There must be imminent peril of death of serious injury
95
What is the second part that was held for r v Abdul-Hussain 1999
The peril must operate on the D’s mind at them time of committing the act
96
What is the third part that was held for r v Abdul-Hussain 1999
Execution of the threat need not be an immediate prospect
97
Is there a defence for voluntarily intoxication
No- if intoxication is not relevant to duress, then duress can be used
98
Is there a defence for self-induced duress
No
99
what is necessity used for
Used to avoid a greater evil
100
what defence for necessity
Absolute defence but may also serve as mitigating facto
101
what is necessity similar to
Similar to duress of circumstance but courts reluctant to confirm this
102
what's the difference with necessity and duress
duress not available for murder but necessity is
103
case link to necessity
R v dudley and stephens
104
facts R v dudley and stephens
two defendants shipwrecked with a 17 year old in a small boat After drifting for 20 days without food for 9 days or water for 7 the two defendants killed and ate the 17 year old
105
held for R v dudley and stephens
Claimed necessity Convicted of murder and sentenced to hang but sentences commuted to 6 months imprisonment
106
facts of Re F
Health authority applied to sterilise a girl patient with severe mental disability who had developed a sexual relationship with another patient and was in danger of becoming pregnant.
107
held for Re F
HOL granted application on the grounds necessity in avoiding the greater evil posed.
108
facts of Re A
Conjoined twins. Doctors applied to separate them which would lead to the certain death of one twin but the potential survival of the other. Parents refused.
109
held for Re A
Court approved defence of necessity.
110
what happen in Shalyer 2001
D was a former MI5 employee. Disclosed confidential information but claimed defence of necessity. The conviction was upheld as the test of duress of circumstance.
111
what is the first part of the test for duress of circumstances and necessity
The act must be done only to prevent an act of greater evil
112
second part of the test for duress of circumstances and necessity
The evil must be directed towards the defendant or a person(s) for whom D is responsible
113
third part of the test for duress of circumstances and necessity
The act must be reasonable and proportionate to the evil avoided

Law (55 decks)

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