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OCR A-Level law > mock defences > Flashcards

mock defences Flashcards

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1
Q

what are the types of duress

A

threat, necessity, circumstance

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2
Q

AG v Whelan

A

duress by threat is threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance

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3
Q

what is duress not a defence to

A

murder or attempted murder

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4
Q

which cases show the limitations of duress

A

murder -Howe

attempted murder - Gotts

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5
Q

Graham

A

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

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6
Q

hasan

A

belief in threat must be genuine and reasonable

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7
Q

why was the defence of duress denied in velderrama Vega

A

threat was not serious enough

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8
Q

can you use duress if the threat is to someone else? which cases show examples of this?

A

yes, if it is someone you’re responsible for
Martin - his wife
Comway - passengers

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9
Q

what did the draft criminal code say

A

cannot use duress if threat is to a stranger

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10
Q

Bowen

A 
gave characteristics which may reduce ability to withstand threat: 
- age
-pregnancy 
-sex
recognised psychiatric condition 
-disability
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11
Q

when can intoxication make you more susceptible to threats? which cases say this?

A

only when it is involuntary - cases = graham and Bowen

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12
Q

gill

A

can’t use duress if there is a safe means of escape

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13
Q

Hudson and Taylor

A

threat must be imminent but not immediate

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14
Q

Hasan (limitations of duress)

A

disproved Hudson and Taylor - said immediacy is a requirement

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15
Q

Cole

A

threat must relate to offence - threat wasn’t if he didn’t;t rob bank it was if he didn’t get the money

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16
Q

Sharp

A

threat was self induced as joined a violent gang - couldn’t use duress

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17
Q

Shepherd

A

could use duress as gang was non-violent

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18
Q

Hasan (self-induced threat)

A

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

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19
Q

what is duress by circumstance

A

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

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20
Q

Willer

A

established duress by circumstance, car surrounded by threatening people - drove on pavement to get away

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21
Q

Roger

A

duress by circumstance - must be external

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22
Q

Martin (duress)

A

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?

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23
Q

Conway

A

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

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24
Q

Cairns (duress)

A

doesn’t have to be real threat as long as d reasonably perceived it to be real - circumstance

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25
Q

what did Lord Hailsham say about duress not being available for murder?

A

a person should be a hero and lose their own life rather than take another

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26
Q

what did Lord Griffiths say about duress not being available for murder?

A

the CPS probably wouldn’t prosecute in this circumstance as it wouldn’t be in the public interest

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27
Q

why may it be considered unfair that duress is allowed for GBH and not for murder

A

murder has a similar mens rea to GBH (vickers - serious harm rule) so may seem inconsistent

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28
Q

what did the law commission suggest about the defence of duress in 1993 and 2006

A

allowing defence for murder

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29
Q

why does the objective test from graham seem unjust

A

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

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30
Q

why is the precedent from Hasan considered unjust

A

changed law from Hudson and Taylor so violence must be immediate - those who are unable to speak out will not be allowed the defence

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31
Q

what are the two issues to consider in consent?

A

is it something for which consent is a defence?

is the consent valid?

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32
Q

when is consent not a defence

A

offences above battery

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33
Q

pretty

A

consent is no defence to murder

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34
Q

wilson v pringle

A

automatically give implied consent to everyday touching - this can be withdrawn

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35
Q

A-G ref. No.6 of 1980

A

consent is not available for offence above a battery

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36
Q

brown

A

exceptions to A-G ref rule:

  • properly conducted games and sports
  • medical procedures
  • cosmetic enhancement
  • horseplay
  • dangerous exhibitions
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37
Q

Barnes

A

conduct in games and sports need to be sufficiently grave in order to not allow consent

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38
Q

A-G ref no.6 (games and sports)

A

consent not allowed in games and sports that aren’t properly conducted -= e.g. street fighting

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39
Q

wilson

A

branding is considered cosmetic enhancement

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40
Q

jones

A

‘rough and undisciplined horseplay’ - d didn’t intend harm and genuinely believed there was consent

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41
Q

Aitkin

A

tradition of setting each other on fire considered horseplay

42
Q

Richardson + Irwin

A

can use consent even if drunken mistake if can prove they would’ve made mistake when sober

43
Q

Tabassum

A

must consent to actual act

44
Q

Elbekkay

A

must consent to actual person

45
Q

Richardson

A

although didn’t have dentistry licence - V consented to act and person so was valid

46
Q

Olugboja

A

submission through fear is not consent

47
Q

Dica

A

must be informed consent

48
Q

Burrell v Harmer

A

must be able to understand nature of what they’re consenting to

49
Q

Nicklinson

A

court refused to change law to allow euthanasia - said it was parliaments job

50
Q

what is the issue with consent being a common law defence

A

judges not elected - separation of powers

51
Q

what did the law commission say about the defence of consent

A

proposed non radical changes - just putting rules in statute

52
Q

which cases show that there is a lack of clear rationale for exceptions

A

Jones/Aitkin vs Brown

- why allow for horseplay but not sexual pleasure?

53
Q

what is the criticism for the rule established in brown

A

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

54
Q

what did lord Templeman say in brown

A

pleasure derived from pain is an evil thing

55
Q

what did lord mustill say in brown

A

the state should interfere with the rights of the individual no more than is necessary

56
Q

what did the law commission suggest in 1995 about consent being allowed in cases like brown

A

consent should be available to those getting pleasure from pain but as long as they weren’t intending or risking serious disabling injury

57
Q

what is the problem regarding the decision in Richardson

A

contrasts with Dica/Tabassum which require informed consent

58
Q

what is the problem regarding Richardson and Irwin

A

intoxication different to other defences - not allowed for self defence

59
Q

what are the two things to consider when looking at intoxication

A

voluntary or involuntary?

offence basic or specific intent?

60
Q

allen

A

even if didn’t know strength of drink still voluntary intoxication

61
Q

Hardie

A

if expected reaction is opposite intoxication is involuntary

62
Q

what type of intoxication is available to specific intent crimes

A

voluntary and involuntary (as long as d is so intoxicated he cannot form a mens rea)

63
Q

Sheehan and Moore

A

as long as d is so intoxicated he cannot form a mens rea they can use intoxication

64
Q

Kingston

A

although involuntarily intoxicated - still able to form a mens reaction so could not use defence

65
Q

Gallagher

A

got drunk in order to kill wife - can use coincidence rule if mens reaction is formed before getting drunk

66
Q

Lipman

A

not guilty of murder as too intoxicated and it is specific intent - manslaughter would’ve been better as basic intent

67
Q

Majewski

A

recklessness is all you need for basic intent crimes and it is reckless to get drunk, so mens rea is present

68
Q

what are the limitations of intoxication

A

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

69
Q

what is the issue with the intoxication rule for basic intent crimes and the coincidence rules

A

ignores coincidence rule - mr is made when drinking

70
Q

what is an issue with majewski saying basic intent crimes mr is fulfilled

A

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

71
Q

what will usually happen in the case of specific intent crimes where there is intoxication

A

go to a fall back offence (e.g. s.18 GBH has s.20 which is. basic intent)

72
Q

what did the butler committee suggest in 1975

A

a new offence of ‘dangerous intoxication’ where a jury could substitute in place of a failed offence

73
Q

why may Kingston be considered unfair

A

was intoxicated due to being spiked but court said he could still form mens rea

74
Q

what can be said about the rule established in Hardie

A

too generous - he was reckless taking illegal drugs but was allowed intoxication because didn’t expect reaction

75
Q

what did the law commission suggest about the Hardie Rule

A

restricting it to only medical drugs

76
Q

what did the law commission recommend in 2009 about intoxication

A
  • 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)
77
Q

which statute governs the law of self defence

A

s.76 Criminal Justice and Immigration Act

78
Q

how much force can d use in self defence

A

no more than ‘reasonable force’ which means necessary and proportionate

79
Q

Clegg

A

shot car as it was driving away - not active threat cannot use self defence

80
Q

Martin (self defence)

A

force was not necessary and grossly disproportionate so not allowed self defence

81
Q

Gladstone Williams

A

can use self defence if made honest mistake of situation

82
Q

what does s.76(3) CJIA say about the degree of force used

A

must be reasonable in circumstances as d believed them to be

83
Q

which section of the criminal justice and immigration act confirms the rule made in Gladstone Williams

A

s.76 (4)

84
Q

O’Grady

A

drunken mistakes not allowed for self defence (if you’re seeing things wrong just because you’re drunk)

85
Q

beckford

A

d can rely on self defence if made a preemptive strike

86
Q

what did lord Griffith say about preemptive strikes

A

a man about to be attacked does not have to wait for his assailant to strike first … circumstances may justify a pre-emptive strike

87
Q

Bird

A

there is no duty to retreat in self defence

88
Q

what did s 148 LASPO make clear about self defence

A

there is no duty to retreat but an opportunity to retreat not taken can be taken into account

89
Q

Keane

A

cannot rely on self defence if you incited violence unless what they did to you was grossly disproportionate

90
Q

what does s.76(6) CJIA say about force in self defence

A

must be proportionate to threat defendant was receiving

91
Q

what did lord Morris say in palmer

A

a person cannot weigh to a nicety the exact measure of necessary action to use

92
Q

what did the crime and courts act 2013 say about trespassers

A

can be disproportionate force as long as not grossly disproportionate

93
Q

what is the attempt to reform the conviction or acquittal criticism on self defence

A

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

94
Q

how is self defence not subjective?

A

doesn’t take into account psychiatric disorders e.g. Martin or Cairns

95
Q

why is the change on self defence for intruders in the crime and courts act 2013 not necessary

A

says as long as your actions aren’t grossly disproportionate but this is very subjective

96
Q

what is the criticism on the criteria for force to be necessary in self defence

A

hard to tell as issues/ considerations involved e.g. no duty to retreat but an opportunity not to retreat may be taken into account

97
Q

how is self defence too generous to the defendant

A

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

98
Q

what reform is there for self defence due to it being an ‘all or nothing’ defence

A

there should be a partial defence

99
Q

Martin (characteristics in self defence)

A

had psychiatric evidence of a condition that made him see much greater danger - COA said it wasn’t relevant and didn’t consider it

100
Q

Cairns (self defence)

A

upheld design from Martin - schizophrenia not taken into account

101
Q

Oye

A

upheld rule from Martin

OCR A-Level law (4 decks)

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