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General Defences Flashcards

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1
Q

Statutory basis: Self Defence

A

S 76 CJA 2008

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2
Q

Statutory basis: ‘Reasonable in all the circumstances’ requirement

A

S 76(3)

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3
Q

Beckford (Reasonable in all the circumstances)

A

Self Defence: Reasonable in all the circumstances

Police officers shot and killed unarmed man who was trying to surrender, but they thought he was armed and dangerous
Court was influenced by the rationale in the rape case DPP v Morgan: Genuine belief as a defence to rape as it negatives the necessary intention
However this rule was overturned as outdated in the Sexual Offences Act 2003- therefore is it really a legitimate basis for reasoning in the 2008 act?

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4
Q

Statutory basis: D is entitled to rely on a reasonable mistake as to circumstances

A

S76(4)

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5
Q

O [2013]

A

Self Defence: Reasonable in all the circumstances

D honestly believed police officers trying to arrest him were evil demons due to a disease of the mind
Held that you cannot have a standard of the reasonable lunatic, and so the rules on insanity would be better applied in such a case

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6
Q

Statutory provision: General rule about proportionality of force

A 
S 76(6)
S76(5A) (householders)
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7
Q

Statutory provision: Definition of a householder

A

S76(8A)

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8
Q

R v Yaman

A

Self-Defence: Proportionality

D thought V was an intruder in his kebab shop, but V was actually a gas engineer. D stormed in and hit V on the head with a hammer.

Held:
The trigger for the use of force is to be assessed subjectively: By reference to D’s belief
D’s response to that trigger is to be assessed objectively: By reference to to the standard of a reasonable person

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9
Q

Provision: Deciding proportionality of force

A

S76(7)

Criticisms:

  1. Exact wording of the act is taken from the case Palmer v R. Parliament has been criticised for not modernising the language to make it more easy for juries to understand
  2. Criticised the special rule for householders in the light of this provision, as they think this would have sufficed to give a justifiable outcome
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10
Q

Martin [2002]

A

Man shot and killed a retreating burglar, had a personality disorder that made him think this lethal force was reasonable

Held per Lord Woolf: mental disorder cannot be taken into account except in exceptional circumstances where evidence is ‘especially probative’
No further explanation of these terms…

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11
Q

R v Julien

A

Self-Defence: Duty to retreat old law

It is necessary that D demonstrate by his actions that he does not want to fight and that he is prepared to make some physical withdrawal

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12
Q

R v Bird

A

Self-Defence: Duty to retreat old law

The test in Julien places too greater obligation on the D

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13
Q

Beckford (pre-emptive strikes)

A

Self-Defence

A D who fears an attack may strike first

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14
Q

Devlin v Armstrong

A

Self-Defence: Pre-emtive strikes

The anticipated attack must be imminent not merely a perceived threat in the future

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15
Q

Rashford (CA)

A

Self-Defence: Invitation of force

D went looking for V with a knife, but ended up having to defend himself
D may start the fight as an aggressor, but still rely on self defence if the tables are turned

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16
Q

Keane

A

Self-Defence: Invitation of force

If D is trying to provoke the other party to strike him, in order that he can retaliate with force, this would not necessarily be lawful force
Jury should bear such facts in mind when deciding the question of whether the force was reasonable

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17
Q

R v Dufffy

A

Self-Defence: Defence of others

There does not have to have any bond/relationship with the person D’s defending
Lord Edmund-Davies: There is a ‘general liberty’ as between strangers to step in

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18
Q

Provision: Defence of others

A

s76(10)(b) CJIA 2008

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19
Q

Hitchens

A

The lawfulness of that force depends on its proportionality, how imminent the threat is, and if there might be an alternative option

Because the third party in this situation is innocent, it would be expected that the courts would develop this area strictly in the future

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20
Q

Clegg

A

Self-Defence: Excessive force as a partial defence to murder?

Car dove through a checkpoint without shopping, D (a soldier) fired at the car, and then in the heat of the moment shot again when the car was no longer a danger, and killed one of the passengers
Held that there was no such defence to murder in English law

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21
Q

Self-Defence: Reasonable force and Art 2 Right to life

A

The new law under the criminal justice and immigration act 2008 has been criticised as not providing adequate protection to the victim
Art 2(1) guarantees that everyone’s right to life shall be protected by law and none shall be deprived of his life intentionally
Art 2(2): Killing will not be in contravention of Art 2(1) where it is absolutely necessary
Does this provision set a higher standard than reasonableness?
The subjective element of the defence in Beckford (reasonableness to be decided by reference to the circumstances as D believed them to be) poses the biggest threat to human rights

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22
Q

Self Defence: Reasonable force as a justification or an excuse

A

Should have different constructions depending on facts of the case:
Justification: D behaving reasonably throughout including mistake
Excuse: the D who makes an unreasonable mistake with serious consequences

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23
Q

Justification definition

A

D claims to have done the right thing

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24
Q

Excuse Definition

A

D admits wrongdoing but sets up circumstances relieving him of blame

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25
Q

Duress by threats: Definition

A

Where D’s will overborne by a third party who coerces him to commit an offence with a threat of (at least) serious injury
Ancient defence which can be traced back to the 14th C

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26
Q

Hasan [2005] (HL) (Duress of threats: policy concerns)

A

HL talks about the need to constrain the defence where D is already associated with X (the coercer)
Defence was becoming popular as a ‘false defence’ among gangs and terrorists
There are also difficulties of proof:
D must have some evidence of duress
Larger burden is on the prosecution: must disprove this evidence beyond reasonable doubt
Bingham:
wants to move towards making it harder for the defence to be raised,
made the point that there is always the option of giving a lighter sentence if it is felt appropriate.

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27
Q

Graham (1982)

A

Duress by threats: Key Questions for the jury

  1. ‘The Fear Factor’
    Was the D impelled to act because, as a result of what he reasonably believed the coercer had said/done, he had a good cause to fear that he would otherwise be killed or seriously injured?
  2. ‘The Firmness Factor’
    Have the prosecution made it clear that a sober person of reasonable firmness, sharing the characteristics of the D, would have responded in the same way?
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28
Q

Hasan (Duress by threats: Nature of threat)

A

The fear must be of death or serious injury

29
Q

Dao

A

Duress by threats: The fear factor

CA commented it would deb strongly disinclined to allow false imprisonment to suffice

30
Q

Baker

A

Duress by threats: The fear factor

Threat of psychological harm would not suffice

31
Q

A [2012] (obiter)

A

Duress by threats: The fear factor

Rape would suffice as serious injury

32
Q

Safi [2003]

A

Duress by threats: The fear factor

CA: Approved obiter in Graham that an actual threat is not necessary as long as D reasonable believes there is one

33
Q

Hasan (Duress by threats: mistake as to threat)

A

Obiter

HL: confirmed that the test should remain of reasonable belief and should not be relaxed or changed
Necessary as part of the policy movement to control duress

34
Q

Rodgers (divisional case)

A

Duress by threats: The fear factor

Contrasting case to others about mistake

D claimed he was drink driving only to escape from a threatening neighbour
Was held by eminent judge and former law commissioner Brooke LJ that the test should be a subjective one based on D’s honest belief

The Law commission agrees with this assertion that there should be a subjective test

35
Q

Hurst

A

Duress by threats: The firmness factor

D was forced to import a controlled drug for her former boyfriend. Had been abused as a child and was unusually submissive

Held: It would be hard to reconcile if the person of reasonable firmness was allowed to be invested with characteristics which by their very nature negate that

36
Q

Bowen

A

Duress by threats: The firmness factor

The mere fact that people might be more pliable, vulnerable, timid or susceptible to threats is not generally relevant

Where the condition is self induced it will not be a relevant characteristic

Set out what should be permitted:
Age
Gender
Pregnancy
Physical Disability
Recognised mental illness
Dangerous- does this belong in a reasonableness defence?
37
Q

Hasan (Duress by threats: Further restrictions on D)

A

Target of the threat must be D or someone for whose safety D would reasonably regard himself responsible

Would include family members, close friends, and strangers for whom D feels responsible

38
Q

Cole

A

Duress by threats: Crime must be specified by the duressor

D borrowed money from lenders, they said they would hurt his family if he didn’t repay, so D robbed a bank to get the money
It was set out that D did not have the defence of duress as the lenders did not specify that he had to commit that crime in order to repay

39
Q

Valderrama-Vega

A

Duress by Threats: Threat must be the cause of the offence

Was a small threat of injury, but the main one was the threat of exposure of D’s sexuality
Held there was not enough of a link between the injury and what D chose to do

40
Q

Hudson v Taylor (CA)

A

Duress by threats: Immediate and unavoidable

2 girls called to give evidence at a trial, X threatened they would be ‘cut’ if they did not lie, he was in the court room when they gave the evidence.

CA said that this threat could be regarded as imminent if it could have been carried out on the streets that night
Generous approach to test: immediate or nearly immediate

41
Q

Hasan (HL) (Duress by threats: immediate and unavoidable)

A

Disapproved of Hudson v Taylor as an ‘indulgent’ decision

There should be little room for doubt about whether D could have taken any evasive action

42
Q

Hasan (Duress by threats: D must not be at fault in associating with the source of the duress)

A

The defence is lost if D voluntarily becomes/ remains associated with others engaged in criminal activity in a situation where he knows/ ought reasonably to known that he may be subject to compulsion by them or their associates

43
Q

Howe (Duress by Threats: Does not apply to murder)

A

includes those who are secondary parties to, or attempt murder
Reasoned that any other rule would involve recognition of a right to choose that one innocent person should be killed rather than another
Would go against the principle of the sanctity of life

44
Q

Wilson

A

Duress by Threats: Does not apply to murder

Rule applied v strictly

A child aged 13 was forced to take part in a murder by his father, had absolutely no defence

45
Q

Howe (Duress by threats: justification or excuse)

A

Reasonableness is a factor, and so therefore duress has an element of objectivity, an can be seen as excused when the action fulfils certain conditions

However can still have elements of justification going on in the defence:
Argument for elements of justification as the reasonable man is still being asked to make a choice that could be justified as choosing between the lesser of 2 evils?

46
Q

Willer

A

Duress of circumstances: Development

Earlier cases didn’t seen to realise they were doing anything new

D drove his car on a pedestrianised are in order to try to get away from a group of youths who were trying to kill him
CA held that there was an immediate threat in the case and it did yield a defence, described it as a defence of duress
A bit of a stretch to say that the youths were coercing D to break the law of reckless driving so as to come under duress by threats?

47
Q

Conway (Duress of circumstances: Development)

A

First recognised the separate defence

D drove recklessly as 2 men tried to stop his car and he thought they were assassins, they were actually police officers
Lord Woolfe looked at history and the opinions of the law commission and stated that there is a separate form of necessity in duress of circumstances.

Duress of circumstances should be subject to the same limitations as duress by threats

48
Q

Pommell (Duress of circumstances: Development)

A

Can apply to all offences apart from murder/ attempt

49
Q

Conway (Duress of circumstances: Limitations)

A

The defendant must be acting in order to avoid a threat of death or serious injury

50
Q

Rodger and Rose

A

Duress of circumstances: Limitations

D cannot create his own threat, it must be extraneous
Prisoners that felt so suicidal that they felt they had to break out of prison could not rely on the defence

51
Q

Pommell (Duress of circumstances: limitations)

A

D caught with a gun that he claimed he had taken from another man to stop him shooting someone
CA: Thought if D was telling the truth that this action was commendable and so therefore should be covered by duress of circumstances and put to the jury
Decision has been criticised as skimming over the question of whether there was a sufficiently immediate threat?

52
Q

Quayle (Duress of circumstances: limitations)

A

More recent cases have confirmed that duress of circumstance is only applicable in emergency situations:

CA held that there does have to be a risk of immediate death or serious injury

53
Q

CS

A

Duress of circumstances: limitations
More recent cases have confirmed that duress of circumstance is only applicable in emergency situations:

Mother took child out of the country contrary to child abduction act 1984, and claimed she did this to protect the child from sexual abuse by her father
Held that she could not rely on duress of circumstances if she had no reasonable belief in an imminent threat

54
Q

Duress of necessity: Definition

A

Based on the principle that where D is able to choose between 2 courses of action, on of which involves breaking the criminal law, the other some harm to himself or another of some greater magnitude, is he not ‘justified’ in choosing the lesser evil?

55
Q

Mouses Case

A

Duress of Necessity: Many cases that were originally decided under necessity would now come under duress of circumstances:

D threw goods out of a barge to stop it sinking, this was regarded as necessary in order to save the ship
If he had been trying to save himself/ others from serious injury or death this would now be duress of necessity

56
Q

Vantadillo

A

Duress of Necessity: Many cases that were originally decided under necessity would now come under duress of circumstances:

Mother took child who was suffering from an infectious disease out of the street for the purpose of seeking medical help,
This was held to be duress of necessity, but this would now be duress of circumstances

57
Q

Perka

A

Duress of necessity: Too wide?

To hold that illegal acts can be validated on the basis of the expediency would import an undue subjectivity into criminal law
Basically invites courts to second guess the legislature by assessing the relative merits of social policies underlying criminal prohibitions

58
Q

Southwark LBC v Williams

A

Duress of necessity: Too wide?

A general defence of necessity would undermine the fabric of the criminal law

59
Q

Bourne

A

Duress of Necessity: Medical Relevance

Doctor performed an abortion on a young rape victim before there was any statutory scheme for his protection, did so in the best interests of the victim
Was held to come under necessity

60
Q

Gillick

A

Duress of Necessity: Medical Relevance

Doctor who proscribed contraceptives to under 16s was covered by necessity

61
Q

Quayle (Duress of necessity: Medical context)

A

Cancer patients grew cannabis, argued it could be covered by necessity as it was for pain relief
Was held that the defence could not apply as they were not medical professionals

62
Q

Dudley and Stephens

A

Duress of necessity: Murder

2 survivors of a shipwreck killed and ate there weaker colleague in order to survive, were held to be guilty of murder
Was held that necessity could not justify deliberate killing unless it was in self defence or for the prevention of crime: D’s right to life could not be compromised by D’s need to survive

63
Q

Re A [2000]

A

Duress of necessity: Murder

Separation of conjoined twines where both would die if they stayed together, but one would certainly die if they were separated
Was held that in this case it was a lawful necessity as it was the only form of prevention of one of the child’s death
Removing one twin would remove the threat of fatal harm she posed to the other.

64
Q

Circumstances or necessity: Selection Argument

A

Smith and Hogan: (Also used by Brooke J in Re A)

Puts forward an argument for distinguishing on the basis of selection

Re A: There was no question of selection, only one of the twins could be killed to save the other- therefore was necessity

Dudley v Stephens: The D’s made a choice of which one out of the 3 of them should be eaten

65
Q

Circumstances or Necessity: Justification vs Excuse argument

A

Circumstances: an excuse, that the thread of immediate death mean you had to do it

Necessity: a justification, that the thing you did was necessary

66
Q

F v West Berkshire AHA

A

Duress of Necessity

Doesn’t necessarily have to be a threat of death or serious injury

67
Q

Re A

A

Duress of Necessity

action must be urgent but not necessarily immediate

68
Q

Duress of circumstances vs Necessity: Problem Q structure

A
  1. Arguments for distinction
  2. Circumstances
  3. Necessity
  4. Self-Defence

Criminal Law (10 decks)

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