mock defences Flashcards
what are the types of duress
threat, necessity, circumstance
AG v Whelan
duress by threat is threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance
what is duress not a defence to
murder or attempted murder
which cases show the limitations of duress
murder -Howe
attempted murder - Gotts
Graham
test for duress -
1 - was D compelled to act as he did because he reasonably feared serious injury or death
2- if so, did he respond as a sober person of reasonable firms sharing the characteristics of the defendant would have done
hasan
belief in threat must be genuine and reasonable
why was the defence of duress denied in velderrama Vega
threat was not serious enough
can you use duress if the threat is to someone else? which cases show examples of this?
yes, if it is someone you’re responsible for
Martin - his wife
Comway - passengers
what did the draft criminal code say
cannot use duress if threat is to a stranger
Bowen
gave characteristics which may reduce ability to withstand threat: - age -pregnancy -sex recognised psychiatric condition -disability
when can intoxication make you more susceptible to threats? which cases say this?
only when it is involuntary - cases = graham and Bowen
gill
can’t use duress if there is a safe means of escape
Hudson and Taylor
threat must be imminent but not immediate
Hasan (limitations of duress)
disproved Hudson and Taylor - said immediacy is a requirement
Cole
threat must relate to offence - threat wasn’t if he didn’t;t rob bank it was if he didn’t get the money
Sharp
threat was self induced as joined a violent gang - couldn’t use duress
Shepherd
could use duress as gang was non-violent
Hasan (self-induced threat)
could use defence if in a gang if:
1) did not foresee they might use threats to make him commit an offence
2) reasonable person would not have foreseen this either
what is duress by circumstance
defendant is in a situation where he believes that he, or those with him would suffer death or serious injury if he did not escape by doing what he did
Willer
established duress by circumstance, car surrounded by threatening people - drove on pavement to get away
Roger
duress by circumstance - must be external
Martin (duress)
criteria for circumstance:
- must be acting reasonable and proportionately to avoid threat/ serious injury
+ criteria from Graham
- compelled to act as he did for serious threat of injury or death
-responded as a sober person to reasonable firmness sharing the characteristics of d would have done?
Conway
duress by circumstance - D’s behaviour must be objectively reasonable and proportionate to the level of threat that D thought he was in - for jury to decide
Cairns (duress)
doesn’t have to be real threat as long as d reasonably perceived it to be real - circumstance
what did Lord Hailsham say about duress not being available for murder?
a person should be a hero and lose their own life rather than take another
what did Lord Griffiths say about duress not being available for murder?
the CPS probably wouldn’t prosecute in this circumstance as it wouldn’t be in the public interest
why may it be considered unfair that duress is allowed for GBH and not for murder
murder has a similar mens rea to GBH (vickers - serious harm rule) so may seem inconsistent
what did the law commission suggest about the defence of duress in 1993 and 2006
allowing defence for murder
why does the objective test from graham seem unjust
low IQ or vulnerability are not characteristics that can be taken into account in the test from Bowen - D who accedes to a threat because they failed to understand the truth should be allowed duress
why is the precedent from Hasan considered unjust
changed law from Hudson and Taylor so violence must be immediate - those who are unable to speak out will not be allowed the defence
what are the two issues to consider in consent?
is it something for which consent is a defence?
is the consent valid?
when is consent not a defence
offences above battery
pretty
consent is no defence to murder
wilson v pringle
automatically give implied consent to everyday touching - this can be withdrawn
A-G ref. No.6 of 1980
consent is not available for offence above a battery
brown
exceptions to A-G ref rule:
- properly conducted games and sports
- medical procedures
- cosmetic enhancement
- horseplay
- dangerous exhibitions
Barnes
conduct in games and sports need to be sufficiently grave in order to not allow consent
A-G ref no.6 (games and sports)
consent not allowed in games and sports that aren’t properly conducted -= e.g. street fighting
wilson
branding is considered cosmetic enhancement
jones
‘rough and undisciplined horseplay’ - d didn’t intend harm and genuinely believed there was consent
Aitkin
tradition of setting each other on fire considered horseplay
Richardson + Irwin
can use consent even if drunken mistake if can prove they would’ve made mistake when sober
Tabassum
must consent to actual act
Elbekkay
must consent to actual person
Richardson
although didn’t have dentistry licence - V consented to act and person so was valid
Olugboja
submission through fear is not consent
Dica
must be informed consent
Burrell v Harmer
must be able to understand nature of what they’re consenting to
Nicklinson
court refused to change law to allow euthanasia - said it was parliaments job
what is the issue with consent being a common law defence
judges not elected - separation of powers
what did the law commission say about the defence of consent
proposed non radical changes - just putting rules in statute
which cases show that there is a lack of clear rationale for exceptions
Jones/Aitkin vs Brown
- why allow for horseplay but not sexual pleasure?
what is the criticism for the rule established in brown
should the law determine limits of personal autonomy?
judges setting limits yet not a true section of society - personal opinion getting in way of law
what did lord Templeman say in brown
pleasure derived from pain is an evil thing
what did lord mustill say in brown
the state should interfere with the rights of the individual no more than is necessary
what did the law commission suggest in 1995 about consent being allowed in cases like brown
consent should be available to those getting pleasure from pain but as long as they weren’t intending or risking serious disabling injury
what is the problem regarding the decision in Richardson
contrasts with Dica/Tabassum which require informed consent
what is the problem regarding Richardson and Irwin
intoxication different to other defences - not allowed for self defence
what are the two things to consider when looking at intoxication
voluntary or involuntary?
offence basic or specific intent?
allen
even if didn’t know strength of drink still voluntary intoxication
Hardie
if expected reaction is opposite intoxication is involuntary
what type of intoxication is available to specific intent crimes
voluntary and involuntary (as long as d is so intoxicated he cannot form a mens rea)
Sheehan and Moore
as long as d is so intoxicated he cannot form a mens rea they can use intoxication
Kingston
although involuntarily intoxicated - still able to form a mens reaction so could not use defence
Gallagher
got drunk in order to kill wife - can use coincidence rule if mens reaction is formed before getting drunk
Lipman
not guilty of murder as too intoxicated and it is specific intent - manslaughter would’ve been better as basic intent
Majewski
recklessness is all you need for basic intent crimes and it is reckless to get drunk, so mens rea is present
what are the limitations of intoxication
need to balance justice and victim rights - restricts when d can use defence (e.g. s.76 CJA 2008 - intoxicated mistake cannot be relied upon for self defence
what is the issue with the intoxication rule for basic intent crimes and the coincidence rules
ignores coincidence rule - mr is made when drinking
what is an issue with majewski saying basic intent crimes mr is fulfilled
some require certain levels (e.g. d to see a risk) but majewski says by getting drunk you should see you may do something stupid
what will usually happen in the case of specific intent crimes where there is intoxication
go to a fall back offence (e.g. s.18 GBH has s.20 which is. basic intent)
what did the butler committee suggest in 1975
a new offence of ‘dangerous intoxication’ where a jury could substitute in place of a failed offence
why may Kingston be considered unfair
was intoxicated due to being spiked but court said he could still form mens rea
what can be said about the rule established in Hardie
too generous - he was reckless taking illegal drugs but was allowed intoxication because didn’t expect reaction
what did the law commission suggest about the Hardie Rule
restricting it to only medical drugs
what did the law commission recommend in 2009 about intoxication
- keep voluntary/involuntary
- abolish specific/basic
- voluntary intoxicated = defence if mr is essential for fault
- involuntary intox would be clear list (e.g. spiked, forced)
which statute governs the law of self defence
s.76 Criminal Justice and Immigration Act
how much force can d use in self defence
no more than ‘reasonable force’ which means necessary and proportionate
Clegg
shot car as it was driving away - not active threat cannot use self defence
Martin (self defence)
force was not necessary and grossly disproportionate so not allowed self defence
Gladstone Williams
can use self defence if made honest mistake of situation
what does s.76(3) CJIA say about the degree of force used
must be reasonable in circumstances as d believed them to be
which section of the criminal justice and immigration act confirms the rule made in Gladstone Williams
s.76 (4)
O’Grady
drunken mistakes not allowed for self defence (if you’re seeing things wrong just because you’re drunk)
beckford
d can rely on self defence if made a preemptive strike
what did lord Griffith say about preemptive strikes
a man about to be attacked does not have to wait for his assailant to strike first … circumstances may justify a pre-emptive strike
Bird
there is no duty to retreat in self defence
what did s 148 LASPO make clear about self defence
there is no duty to retreat but an opportunity to retreat not taken can be taken into account
Keane
cannot rely on self defence if you incited violence unless what they did to you was grossly disproportionate
what does s.76(6) CJIA say about force in self defence
must be proportionate to threat defendant was receiving
what did lord Morris say in palmer
a person cannot weigh to a nicety the exact measure of necessary action to use
what did the crime and courts act 2013 say about trespassers
can be disproportionate force as long as not grossly disproportionate
what is the attempt to reform the conviction or acquittal criticism on self defence
loss of control brought into cover excessive self control- but still doesn’t help cases like Martin or Clegg - would be guilty of murder - attempts to reform but not fully
how is self defence not subjective?
doesn’t take into account psychiatric disorders e.g. Martin or Cairns
why is the change on self defence for intruders in the crime and courts act 2013 not necessary
says as long as your actions aren’t grossly disproportionate but this is very subjective
what is the criticism on the criteria for force to be necessary in self defence
hard to tell as issues/ considerations involved e.g. no duty to retreat but an opportunity not to retreat may be taken into account
how is self defence too generous to the defendant
available even if d made unreasonable mistake - need to protect innocent victim who was assaulted due to a mistake BUT d shouldnt be imprisoned for something that isn’t their fault
what reform is there for self defence due to it being an ‘all or nothing’ defence
there should be a partial defence
Martin (characteristics in self defence)
had psychiatric evidence of a condition that made him see much greater danger - COA said it wasn’t relevant and didn’t consider it
Cairns (self defence)
upheld design from Martin - schizophrenia not taken into account
Oye
upheld rule from Martin
