justifications and excuses Flashcards
1
Q
rationales for self-defence
A
- right of self preservation
- the approach of forfeiture in the Anglo-American system
- the aggressor by his conduct has lost his right to life or a claim to that right
- 2nd variation of forfeiture
- because the aggressor is responsible for the danger the value of his rights is reduced when balancing the competing interest at stake
2
Q
criteria for self defence
A
- attack must be wrongful, imminent and infringe an individual interest
- subsidiarity/ necessity requirement = defendant is allowed to use the least intrusive means of defence
- defendant must act in line with the requirements of proportionality
- focuses on the gravity of the attack, addressing the ration of interest threatened on the side of both parties
- choice of defensive means
3
Q
SD criteria - wrongful attack
A
- an immediate threat to a legally protected interest through human behaviour
4
Q
SD criteria - ongoing
A
- the attack is ongoing until the aggression has factually been completed either by abandoning the attempt, its failure or by causing the definite violation of the protected interest
5
Q
legitimate interests
A
- undisputed legal interests
- life, liberty, body and property
- dutch law lists interests that can be protected - 32 DCC
6
Q
self defence- reasonableness requirement - England
A
- self-defence can only succeed if the defendant used reasonable force against the attack
- the necessity of applying force should be assessed on the basis of the danger the defendant took to be present
- force used needs to be proportional to the circumstances
- reasonable force is decided by the jury
7
Q
self-defence excess
A
- if the defendant is overpowered by emotions and exceeds the limit of proportionality, civil law systems accept the possibility to invoke this
England no have
8
Q
intensive excess
A
- the degree of necessary force is exceeded
- e.g. the defendant shoots the aggressor multiple times in his torso when the attack could have been averted by a shot at the legs
9
Q
extensive excess
A
- defendant either continues after the attack ha ended or only reacts after the attack has ceased
10
Q
state of mind caused by the attack
A
- excessive force must have been a consequence of a specific state of mind directly caused by the attack
- sthenic feelings = active emotions
- e.g. anger, rage
- excluded from GCC because it might set free latent feelings of aggression
- asthenic feelings = passive feelings that paralyse people
- e.g. fear, confusion, desperation
11
Q
partial defence - England
A
- loss of control
- only of rmurder
- diminished responsibility
- only for murder
12
Q
loss of control
A
- coroners and justice act 2009
- subjective test = requires that the killing was the result of loss of self control which was caused by a qualifying trigger like an attack or provocation
- normative test = requires that loss of self-control was in accordance with the reasonable man standard
13
Q
diminished responsibility
A
- coroners and justice act 2009
- rationale for diminishing responsibility is the mandatory life sentence for murder
- test of double causation = defendant must have killed because his mental faculties were sustainably impaired as a result of an abnormality of mental functioning due to a recognised medical condition
- impaired ability ti understand one’s conduct
- impaired ability to form a rational judgement
- impaired ability to exercise self-control
14
Q
necessity
A
- applies in a situation of actual danger to legal interests which danger can only be averted by infringing less valuable interests of third parties
- faced with two unpleasant alternatives where the defendant has to decide to break the law in order to avoid a more serious evil to himself or other
subsidiarity / proportionality
DE= hijacked plane case
Dudley and stevens
R v A (children)
15
Q
necessity criteria
A
- there must be a present danger for a legitimate interest
- subsidiarity = the defence must be capable of ending the danger and the be the least intrusive means of aversion
- proportionality = the defendant should chose the lesser of two evils