General Defences Flashcards
What are general defences in criminal law?
Defences that allow a defendant to escape liability despite completing the AR and MR.
What is private defence?
A common law defence allowing D to use force to protect themselves, another, or property from harm.
What is public defence?
A statutory defence allowing D to use force to prevent a crime or assist a lawful arrest under s3 Criminal Law Act 1967.
What integrated the two defences of public and private defence?
s.76 Criminal Justice and Immigration Act (CJIA) 2008.
What is the trigger in the context of self-defence?
D must have believed force was immediately required to protect their public or private interests.
What is the response in the context of self-defence?
The amount of force used by D must have been reasonable based on the facts as D believed them to be.
What are the exclusions to these defences?
- Offences committed by D without force
- Offences where D has manipulated V into attacking them in order to retaliate in apparent defence: Rashford [2005] EWCA Crim 337 - revenge attack by stabbing, Rashford could not rely on self-defence, had manipulated the V into attacking him.
What is the subjective test regarding the trigger?
What matters is D’s honest belief, even if unreasonable (Gladstone Williams (1984)).
What is the mixed objective and subjective test in the response?
Assume D’s beliefs are accurate, (regardless of whether mistaken or unreasonable: s76(3)-(4) CJIA 2008) then assess if the amount of force used was reasonable.
What does the court confirm about the use of force in self-defence in the Martin case?
and what were the facts?
D was not justified in using disproportionate force, especially when the threat was not present.
D, a famer, his house was burgled. The burglars run out, the D follows them and shots them with a shot gun in the back. 16-year-old dies, and 20-year-old survives.
What was amended by s43 Crime and Courts Act 2013 regarding self-defence?
s76 CJIA 2008, regarding householders using force against trespassers.
What does s76(5A) CJIA 2008 state regarding householders’ force?
The degree of force is not reasonable if it is grossly disproportionate in the circumstances.
What is the significance of the case R (Collins) v Secretary of State for Justice (2016)? and where was it confirmed?
The jury has discretion to find defensive force reasonable even if it is disproportionate in a householder case. Confirmed in Ray
What was the outcome of the Hatton case regarding intoxicated defendants?
D could not rely on intoxicated mistake for self-defence.
What was the conclusion of the Taj case regarding delusional defendants?
Mistaken belief caused by voluntary intoxication cannot justify self-defence.
What are the two types of duress?
- Duress by threats
- Duress by circumstances.
Requirements for duress by threats?
- That they or another were threatened with death or serious injury unless D committed the crime.
- Committing the crime as D did must have been done in circumstances a reasonable person would have done
What is the leading case for duress by threats?
Hassan.
What are the exclusions for the defence of duress by threats?
- Not available for murder (Howe) or attempted murder (Gotts) - D tries to kill a guy, D is 13-year-old, lives with his father who is violent. He tried to kill the victim because as per him, if he hadn’t done so his dad said he will shoot him.
- Not available in context of prior fault by D - (Hassan) where the D voluntarily associates with X in circumstances where a reasonable person would have foreseen a risk of future coercion
What does a threat in the context of duress by threats need to involve? where was it confirmed?
Death or serious injury. (Hassan)
Ratio of Safi case?
D’s reasonable belief in threat suffices, even if it turns out D is mistaken or there is no objective evidence of threat
what did the case of Cole, rule?
Offence must be specified by X
what did Rodger and rose rule?
Threat cannot come from D
what case ruled this?: Threat must be to D or someone for whom D is responsible
Hasan
Requirements to part 2. of duress by threats
- D must have offended because of the threat, though it need not be the sole cause (Valderrama-Vega [1985]).
- The threat must be imminent (not necessarily immediate), and D must have no effective means of escape (Hudson and Taylor [1971]).
- D must show objectively reasonable resistance to the threat (Graham [1982]).
- Age, sex, pregnancy, serious physical disability, and recognised psychiatric conditions may be considered, but not IQ (Bowen [1996]).
what are duress by cirumstances?
There is no direct threat, but the surrounding circumstances create an equivalent overbearing of D’s will.
What is the leading authority for duress by circumstances?
Willer (1986) - Willer drives a car onto pavement to escape gang, reckless driving, acquitted on the bases of duress by circumstances - meant he had no choice but to escape the risk of injury
Requirements for duress by cirumstances?
A) D must have reasonably believed the circumstances posed a threat of death or serious injury which compelled them to commit the crime
B) D must have shown reasonable steadfastness in response to the threat, only committing the crime because their will was overborne
Requirements for duress of circumstances (part A and B)
(A) 1. Threat and demand need not come from a person or relate to specific crime
- Threat must be of death or serious injury
- Threat cannot come from D: Quayle [2005] EWCA Crim 1415 - Quayle argued duress for growing cannabis, claiming it was necessary for pain relief. court rejected this, duress requires an external threat, his pain was an internal condition, making the defence inapplicable.
(B) D must cease committing the crime once clear of the danger
what is the defence of necessity?
Extremely rare common law defence which applies when D has to choose between the lesser of two evils
facts of F v West Berkshire Authority [1989] 2 All ER 545?
woman in a psychiatric hospital is in a relationship with another patient. Due to her mental health, pregnancy would be disastrous. Her mother seeks court approval for sterilization without her consent.
court rules it as a case of necessity, not duress—suggesting necessity as a last resort when no other options exist.
What are the three elements for the defence of necessity? and where are they from?
Re A (Children) [2000]
- The act is needed to avoid inevitable and irreparable evil
- No more should be done than is reasonably necessary for the purpose to be achieved
- The evil inflicted must not be disproportionate to the evil avoided.
what were the facts of Dudley and Stephens (1884), and why was there no necessity?
they ‘chose’ to: no necessity
What was the outcome of the Dudley and Stephens case regarding necessity?
No necessity was found as they chose to kill.
What was the facts and conclusion of Re A (Children) regarding necessity?
conjoined twins, Mary and Jodie. If left unseparated, both would die. If separated, Jodie would survive, but Mary would inevitably die. The parents, based on religious beliefs, opposed the surgery, but the hospital sought a court order to proceed.
The court justified the operation to save Jodie’s life despite causing Mary’s death. Based on necessity
