Necessity Defences Flashcards
What type of defence is self defence?
Complete defence
What is the right of private defence?
The right to use force in defence of oneself, in defence of property or in defence of another
What section of which act does self defence come under?
S.3 of the Criminal Law Act 1967
What is the right of public defence?
The right to use force in the public interest to either prevent crime or lawfully arrest someone
What are the two main points to be decided for self defence?
- was the use of force necessary
* was the amount of force used reasonable in the circumstances
What must D honestly believe when using self defence?
That the circumstances are such that the use of force is necessary
What is merely a relevant factor to determine whether D’s use of force was necessary?
Possibility of retreat
Which section mentions possibility of retreat?
S.76(6A) of the Criminal Justice and Immigration Act 2008
What is the case example for when possibility of retreat is merely a relevant factor to determine whether D’s use of force was necessary?
Hussain and Another
What happened in Hussain and Another?
D injured a burglar as he was escaping down the street
What does the Attorney-General’s Reference case say about self defence?
D does not have to wait to be attacked before he can use force to defend himself. D may make a pre-emptive strike or make preparations to defend himself if he apprehended an attack
What happened in Attorney-General’s Reference?
D prepared petrol bombs in fear of an attack on his shop
What does the case Williams(Gladstone) say about self defence?
If D genuinely made a mistake about being threatened or needing to act to prevent crime, he is to be judged on the facts as he believed them to be. This is so even if the mistake was unreasonable
Which section says about D making a mistake when it comes to self defence?
S.76(3) CIJA 2008
What happened in Williams(Gladstone)?
D punched a police officer who he thought was attacking someone
What does the case O’Grady say about self defence?
A mistaken belief caused by D’s voluntary intoxication is not sufficient for the defence
Which section talks about a drunken mistaken belief in self defence?
S.76(5) CIJA 2008
What happened in O’Grady?
D was drunk and hit his friend who he believed was trying to kill him
What is the second point to consider for self defence?
It must be that a reasonable person would have used that amount of force in the circumstances as D believed them to be
When will the degree of force used not be reasonable?
If it was disproportionate in the circumstance: S.76(6) CIJA 2008
When will the degree of force used not be reasonable in householder cases?
If it was grossly disproportionate in the circumstances: S.76(5A) CIJA 2008
What might D not be able to do at the time of using self defence?
Weigh to a nicety the exact measure of necessary action: S.76(7)(b) CIJA 2008
What is strong evidence that only reasonable action was taken?
Where D only did what he honestly and instinctively thought was necessary: S.76(7)(b) CIJA 2008
What does the case Martin say about self defence?
In deciding whether the degree of force used by D was reasonable in the circumstances the court must ignore any psychiatric condition that might cause D to perceive much greater danger than the average man
What is duress?
Where D has committed the offence because he has been threatened with death or serious injury. D has an excuse because he has been effectively forced to commit the offence
What is duress by threats?
Where D is told by someone to commit a specific crime or else
What is duress by circumstances?
If the threat comes from the circumstances in which D finds himself
Which case set the elements of duress?
Hasan
What is the first element of duress?
There must be a threat of death or serious injury
What does the case Baker and Wilkins say about the threat given in duress?
A threat to cause serious psychiatric injury could amount to duress
What threats are not sufficient for duress?
Blackmail, to destroy or damage property
What happens if there isn’t an actual risk of death in duress?
It is sufficient that D reasonably believes that there is a threat of death or serious injury
What is the second element of duress?
The threat must be made to D or his immediate family or someone close to him or someone who D would reasonably regard himself as responsible
Who was the threat made to in Wright?
D’s boyfriend
Who was covered as being someone who D would reasonably regard himself as responsible in Hasan?
Those who could be injured by a bomb unless D committed the relevant crime
What is the third element of duress?
D must reasonably believe that he had good cause to fear death or serious injury and his response must be one which might be expected of a sober person with reasonable firmness
What does the case Graham say?
It must be that a sober person of reasonable firmness, sharing certain characteristics of D which affect D’s ability to resist the threat, would respond in the same way
What characteristics does Bowen say could be relevant to decide if a reasonable person would respond in the same way as D?
- age
- gender
- if D was pregnant
- disability
What is not taken into account when considering D’s ability to resist the threat?
- low IQ
- vulnerable to pressure
- emotionally unstable
What is the fourth element of duress?
The crime must be directly caused by the threats
What does the case Cole say?
It must be that D would not have committed that specific crime but for the threats
What happened in Cole?
D was threatened because he owed money. He committed robbery to pay back the money but he wasn’t threatened to commit robbery
What does the case Valderama-Vega say?
The death of threat or serious injury need not be the only motive for D’s conduct
What happened in Valderama-Vega?
D illegally imported cocaine and said he only did it because he was threatened by a gang that they’d tell people he was homosexual
What is the fifth element of duress?
There must be no reasonable opportunity to escape the threat
What must D reasonably believe about the threat according to Hasan?
That the threat could be carried out immediately or almost immediately
What does the case Gill say?
The defence will not be available where D has a reasonable opportunity to contact the police or escape
What happened in Gill?
D was threatened unless he stole a lorry but there was a period of time where he was left alone and could’ve escaped the threat
What must happen when the threat is withdrawn or becomes ineffective?
D must stop committing the crime as soon as he reasonably can
What is the sixth element of duress?
D can not rely on threats to which he has voluntarily laid himself open
When is the only time that D can use self defence when he voluntarily laid himself open to them?
If he did not foresee that they might try make him commit an offence through threats and a reasonable person would not have foreseen it either
What happened in Hasan?
D associated with a drug dealer known to be violent and the dealer threatened D unless he committed burglary
What is duress of circumstances?
Where D is forced to commit a crime because he reasonably believes there is a risk of death or serious injury arising from the circumstances in which he finds himself. Committing the crime is D’s only reasonable way of escaping the threat
What happened in Pommell?
D was found with a loaded machine gun and said he’d only taken it to stop the person who had it from hurting someone
What can’t duress of circumstances apply to?
The crimes of murder, attempted murder and treason
