General Defences Flashcards
HMA v Doherty
Set out the requirements for the defence of self-defence
Particularly clear statement of the law.
3 criteria that have to be satisfied:
i). there has to be an imminent danger to life or limb, either of the accused or of a third party
ii). the retaliation that he uses in the face of this danger must be necessary for his own safety
This means that there has to be no reasonable opportunity for the accused to escape or retreat. I.e. they had to have had no other option but to resort to violence.
iii). The use of the force has to be proportionate
There has to be a proportionate relationship between the harm threatened, and the harm conducted in “self defence”.
Accused had been attacked by a man with a hammer.
There was an open door behind leading outside so there was a means of escape available.
Instead stabbed attacker with a bayonet, and was convicted.
McBrearty v HMA
Opportunity to escape must be a reasonable one
Accused had brought a knife with him to Glasgow.
Became involved in an argument and was chased.
Claimed his pursuer caught him on the shoulder, he turned round and inflicted him on the head with a knife.
Judge didn’t emphasise it must be a reasonable opportunity to escape.
Appeal on this basis.
A person under attack should not be expected to use an opportunity to escape that puts them in greater or equal danger than the danger they face.
Accused was convicted of murder. The accused had been chased through the streets, but eventually the deceased backed him into a corner, and the accused stabbed him.
HELD: on appeal, the appeal was refused. The conviction was upheld. The court was clear that this would have been the right direction to give. There has to have been no reasonable opportunity to escape / retreat.
McCluskey v HMA
Must be a legitimate and proportionate use of self defence.
Fenning v HMA
Proportionality
than acting in his defence.
Where a claim for self defence has been considered and rejected.
Up to jury to consider whether, on the evidence, provocation should apply to reduce the charge from murder to culpable homicide.
Moore v MacDougall
Proportionality
The harm that was threatened was minor violence. The accused was trying to protect herself and her friend from being attacked from another person that was throwing punches at them.
The accused stabbed the victim in the buttocks with a pair of scissors.
This was found to be disproportionate.
Owens v HMA
Mistaken self-defence – thought the deceased was holding a knife, so the accused stabbed him.
HELD: that for the purpose of setting up self-defence it was sufficient for the panel to satisfy the jury that he believed on reasonable grounds that he was in imminent danger; that grounds for such belief might exist even although he was mistaken in thinking that the deceased was armed; and that, accordingly, the jury had been misdirected on the essential elements of self-defence, and the conviction must be quashed .
Lieser v HMA
A person who claimed to have been acting in self defence because he believed that he was in imminent danger, had to have reasonable grounds for belief.
Court confirmed that any mistake has to be reasonable for self defence to potentially apply.
Thomson v HMA
Criteria for defence of coercion set out
(i) Imminent threat of death or serious injury against the accused or a third party
The direction in Thomson restricts coercion to cases involving threats of death or serious injury. As with self-defence, the defence applies only to threats of imminent and not future harm.
(ii) Threat must have “dominated the mind” of the accused
The accused’s will must have been “overborne” by the threats: which is to say, the threats must have been what actually caused the accused to commit the offence.
(iii) Objective test
The threat must be “of such a nature as to overcome the resolution of an ordinarily constituted person of the same age and sex as the accused”: Anderson, Criminal Law of Scotland, p 16; approved in Thomson (above). See also Cochrane v HM Adv 2001 SCCR 655.
(iv) No voluntary exposure to the risk of coercion
The defence will not be available where the accused voluntary exposed him- or herself to the risk of coercion. A significant function of this criterion is to exclude the defence where the accused’s exposure to coercion resulted from membership in a criminal organisation or gang.
Moss v Howdle
Defence of necessity
First time the defence was recognised by the high court
There was a driver and a passenger in a car. The accused was the driver. The passenger had started yelling out in pain, and the driver inferred that the passenger must have been seriously ill – decided to get to the nearest service station as soon as possible, did this by speeding.
On pulling over, it transpired that the passenger actually only had cramp.
On appeal the accused tried to rely on a necessity defence.
HELD: There was a defence of necessity in Scots law, the main reason for this finding was that there was a well-recognised defence of coercion, and there was no reason or distinguishing these two defences merely on the source of the threat.
(i) Imminent threat of death or serious injury against the accused or a third party
Again, the defence applies only to imminent threats. Mistakes about threats are judged by a standard of reasonable belief: Lord Advocate’s Reference (above).
(ii) Threat must have constrained the accused to break the law
As its name suggests, the necessity defence requires that the accused’s actions were actually necessary in order to avert the relevant threat. See Moss v Howdle (above).
(iii) Threat must have “dominated the mind” of the accused
As with coercion, the accused’s commission of the offence must have been caused by the relevant threat. See e.g. *Dawson v Dickson 1999 JC 315.
(iv) Objective test
The defence “will only be available if a sober person of reasonable firmness, sharing the characteristics of the actor, would have responded as he did”: Lord Advocate’s Reference (above) at [42].
(v) The act must have had a reasonable prospect of removing the danger
This requirement was added by the Lord Advocate’s Reference case
Dawson v Dickson
An off duty fireman was charged with drink driving. There had been an emergency whilst he was off duty and drinking – he had chosen to drive to the scene even whilst drunk.
There were a number of casualties at the scene, and the ambulance service had to take them away from the scene. The fire trucks were in the way and had to be moved. The casualties were in a serious condition – time was important.
The accused got into a fire engine to move it out of the way. He crashed it into a police car and was found to be way over the limit.
Raised the defence of necessity.
HELD: on appeal, he wasn’t entitled to use this defence. It failed on this criterion. The accused had already shown himself to be willing to drive drunk anyway – given that he had already driven to the scene.
R v Dudley & Stephens
Coercion and necessity in murder cases
There were a group of people in the late 19th C who were adrift at sea. After about 18 days of being adrift, they had nothing to eat except a turtle and 2 tins of turnip that happened to be on board.
The people started to discuss the possibility of killing one of their number and eating them to survive. They resolved to kill the weakest member of the group, who would have died anyway.
They ate the person they killed, and lived long enough to be saved.
Evidence showed that they would have all died before being saved, had they not eaten the person, and the weakest crew member probably would have died before that anyway.
They were not allowed to plead necessity. In the context of murder it was not a valid defence.
Re A (Conjoined Twins)
Two babies were born as conjoined twins. J was the stronger of the two twins and the medical evidence was that she was sustaining M’s life.
The case arose out of an issue as to whether or not to perform separation surgery. The evidence given was that if the two weren’t separated, they would both die in around 3 months. If they were separated, J would survive but M would die.
The parents of the two twins didn’t consent to the surgery on religious grounds. The doctors asked the court whether they would be doing anything unlawful by performing the surgery.
Due to the way that murder is defined in England, this surgery would have amounted to murdering M. Because she was certain to die, under English law this would be enough to constitute murder.
If this was murder, would the doctors have a defence?
HELD: This case was limited entirely to its own facts – there was no precedent created here. It was held that it was lawful to perform the surgery to separate the twins.
One of the judges based their reasoning on the necessity defence.
Cochrane v HMA
Accused had an unusually low IQ and was susceptible to compliance.
Regarded by the court as irrelevant to his plea of coercion.
R v Hassan
Coercion
Wont be a defence of coercion if accused voluntarily expose themselves to the risk of coercion.
No authority fort this in Scotland.
But in hasan, court said if it were reasonably foreseeable that there would be a risk of coercion generally, there would be no defence.
Ross v HMA
Automatism defence Laid down 4 criteria to be satisfied: i). there has to be a total alienation of reason ii). Caused by an external factor iii). Not self induced iv). Accused not bound to foresee
