General Defences Flashcards
Intoxication is not relevant where D becomes intoxicated and loses his inhibitions
Sheehan and Moore (1975)
People driving around and looking for a person to kill. A drunken intent is still intent. Intoxication can only be considered when it prevents D’s ability to form the necessary mens rea.
Heard
Defendant exposed penis while drunk and rubbed on police officer, still intention even he would not have done it while sober.
D becoming intoxicated in order to commit a crime not a defence
AG for NI v Gallagher (1963)
Got drunk in order to gain “Dutch courage” and kill wife. Inform intention while sober -> get drunk to carry out the killing -> cannot rely on intoxication as a defence
“The wickedness of his mind before he got drunk is enough to condemn him; coupled with the act which he did do and intended to do” (Lord Denning)
Intoxication can be relied upon to show a lack of specific intent
Majewski (1976)
The defendant violently attacked the pub landlord and continued to abuse police officers following his arrest. His intoxication was voluntary and the way which he was behaving was not purely accidental, this was sufficient to establish the necessary fault element of recklessness for the crimes.
Constructive manslaughter
Lipman (1969)
Took LSD and killed friend without intent as was in trip. Taking the LSD was the illegal and reckless/dangerous act.
Rape
Woods (1981)
Rape should be considered as a crime of basic intent
Fotheringham (1988)
D accidentally had sex with 14 year old baby sitter as thought it was wife in intoxicated state; ruled one element can be satisfied by proof of recklessness. Rape is likely an anomaly with an arbitrary but understandable distinction
Can rely on intoxication when it is caused by non dangerous drugs
Hardie (1984)
Ex girlfriend gave him valium which caused him to act strangely. Public at large would not know that taking large quantities would have this effect.
Bailey (1983)
Diabetic didn’t eat after insulin shot and became hypo; causing him to attack someone. The jury weren’t convinced he wasn’t aware this would happen.
If a statutory defence is framed in terms of a particular belief intoxication may be a defence
Jaggard v Dickinson (1980)
Girl breaks into house as she thought it was her friend’s. She honestly believed she could do this so no conviction for criminal damage.
Limited circumstances where intoxication can cause a disease of the mind
AG for NI v Gallagher (1963)
The burden is upon the prosecution to disprove that D was justified to act beyond reasonable doubt
Lobell (1957)
Scope of the doctrine of justification depends on what is reasonable
Chamberlain v Lindon (1998) neighbour knocked down garden fence as it interfered with his access to his land
Hunt (1978) resident on old people’s home was unreasonable in starting a fire to inform of a defective fire alarm system even though he satisfied the subjective element
In necessity a threat must be imminent
AG Reference (No 2 of 1983)
Shop keeper being looted around time of riots, petrol bomb creation allowed as threat of force was imminent even though it didn’t actually happen
Fegan (1972)
Catholic man married to protestant woman allowed to hold firearms to protect him and his family from sectarian attacks
“The threatened danger must be reasonably and genuinely anticipated, must appear reasonably imminent and must be of a nature which could not reasonably be met by more pacific means”; Lord MacDermott CJ.
Evans v Wright (1964)
Man carrying weapon when not working as a money collector not acceptable
There is a duty to avoid conflict
Julien (1969)
Sufficient for D to show they do not want to fight (no requirement for retreat)
Bird (1985)
Not able to show she didn’t want to fight
How would a woman who fails to leave a repeatedly violent partner be solved?
Duress of the circumstances
Willer (1986)
Reckless driving escaping gang of youths allowed
Conway (1989)
Had previously been involved in vehicle attack and drove away when approached by plain clothed police
Martin (1989)
Scared wife would kill herself when son was late for work
Two fold test:
(1) Did D act because he reasonably believed there was a situation involved death that may result?
(2) Would a sober and reasonable firmness sharing D’s characteristics have responded to that situation by acting as the D did?
Test of proportionality
Cannot rely on necessity or duress of the circumstances when in pain and producing cannabis
AG Reference (No.2 of 2004) Pain is subjective
Must be reasonable actions in the circumstances to be a necessity
AG for NI Reference (1976)
Soldier shot at near Irish border. Excessive force is used where no reasonable man:
- with knowledge of the facts known/believed to exist
- in the circumstances and time available to him for reflection
- could be of the opinion that the prevention of the risk of harm to which others might be exposed justified exposing the suspect to the risk
Palmer (1971) criticism by Lord Morris - too subjective
Objective test for necessity reaffirmed
Owino (1996)
In determining whether a D acted in self-defence the jury must decide:
(1) whether the D honestly believed that the circumstances required him to use force to defend himself from an attack or threatened attack;
(2) whether the force used was reasonable in the circumstances as he believed them to be
It is never justifiable to take an innocent life
Dudley and Stephens (1884)
Ate the cabin boy to save lives, guilty of murder
US v Holmes (1842)
If had pulled lots on who would be thrown overboard this would have been ok, they were causing damage to eachother
Conjoined twins case: allowed
Wrong belief is still belief
Williams (1984)
Attacked man he saw chasing another, even though V was actually trying to retrieve mugged goods. Could still rely on defence as if the circumstances where as they reasonably believed them to be
O’Grady (1987)
Irrelevant when mistaken believe is due to intoxication
Duress requires a two stage test
Graham (1982)
Man kills wife as he claims is he is in fear of homosexual lover who lives with them both.
Twofold test:
(1) Did D reasonably believe that the threats would be carried out? amd
(2) Would a sober person of reasonable firmness, sharing the characteristics of D, have been able ti withstand the threats?
Safi (2003)
Group of hijackers or an Afghan aircraft claimed they were running from the Taliban as in danger of death/serious injury. It was held it didn’t matter whether or not this was true as long as D reasonably believed that was the case.
Which characteristics should be considered when establishing duress?
Bowen (1996)
Not low IQ
Age, sex, pregnancy, serious physical disability, recognised mental illness or psychiatric conditions (e.g. PTSD) can be considered if they make D less able to withstand pressure than the reasonable person
Characteristics that arose from self-induced abuse will not be considered
Flatt (1996)
Self-induced addiction to drugs (although drugs rule to not effect ability anyway)
Bown (1996)
Simply more timid/pliable/vulnerable etc
Must be an imminent threat of death or serious injury
Hudson and Taylor (1971)
Girls committed purgery as feared death. Not reasonable to expect them to go to police as age and circumstances considered.
Duress cannot apply when freely chosen
Sharp (1987)
Involved himself with gang of armed robbers, known “nut cases”. Lord Lane ruled voluntarily joining a gang that might bring pressure to commit an offence and being an active member when put under the pressure means the defence cannot be used.
Shepherd (1988)
Has D voluntarily assumed a risk of violence by joining a shop lifting gang which had a particularly violent person as a member? If violence was unexpected then duress should be considered
Hasan (2005)
“The policy of the law must be to discourage association with known criminals, and it should be slow to excuse the criminal conduct of those who do so. If a person voluntarily becomes or remains associated with others engaged in criminal activity in a situation where he knows or ought reasonably to know that he may be the subject of compulsion by them or their associates, he cannot rely on the defence of duress to excuse any act which he is thereafter compelled to do by them” (Lord Bingham).
