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Criminal Law - Paper 1 > Necessity Defences > Flashcards

Necessity Defences Flashcards

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1
Q

What type of defence is self defence?

A

Complete defence

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2
Q

What is the right of private defence?

A

The right to use force in defence of oneself, in defence of property or in defence of another

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3
Q

What section of which act does self defence come under?

A

S.3 of the Criminal Law Act 1967

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4
Q

What is the right of public defence?

A

The right to use force in the public interest to either prevent crime or lawfully arrest someone

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5
Q

What are the two main points to be decided for self defence?

A
  • was the use of force necessary

* was the amount of force used reasonable in the circumstances

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6
Q

What must D honestly believe when using self defence?

A

That the circumstances are such that the use of force is necessary

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7
Q

What is merely a relevant factor to determine whether D’s use of force was necessary?

A

Possibility of retreat

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8
Q

Which section mentions possibility of retreat?

A

S.76(6A) of the Criminal Justice and Immigration Act 2008

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9
Q

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?

A

Hussain and Another

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10
Q

What happened in Hussain and Another?

A

D injured a burglar as he was escaping down the street

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11
Q

What does the Attorney-General’s Reference case say about self defence?

A

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

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12
Q

What happened in Attorney-General’s Reference?

A

D prepared petrol bombs in fear of an attack on his shop

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13
Q

What does the case Williams(Gladstone) say about self defence?

A

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

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14
Q

Which section says about D making a mistake when it comes to self defence?

A

S.76(3) CIJA 2008

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15
Q

What happened in Williams(Gladstone)?

A

D punched a police officer who he thought was attacking someone

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16
Q

What does the case O’Grady say about self defence?

A

A mistaken belief caused by D’s voluntary intoxication is not sufficient for the defence

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17
Q

Which section talks about a drunken mistaken belief in self defence?

A

S.76(5) CIJA 2008

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18
Q

What happened in O’Grady?

A

D was drunk and hit his friend who he believed was trying to kill him

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19
Q

What is the second point to consider for self defence?

A

It must be that a reasonable person would have used that amount of force in the circumstances as D believed them to be

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20
Q

When will the degree of force used not be reasonable?

A

If it was disproportionate in the circumstance: S.76(6) CIJA 2008

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21
Q

When will the degree of force used not be reasonable in householder cases?

A

If it was grossly disproportionate in the circumstances: S.76(5A) CIJA 2008

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22
Q

What might D not be able to do at the time of using self defence?

A

Weigh to a nicety the exact measure of necessary action: S.76(7)(b) CIJA 2008

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23
Q

What is strong evidence that only reasonable action was taken?

A

Where D only did what he honestly and instinctively thought was necessary: S.76(7)(b) CIJA 2008

24
Q

What does the case Martin say about self defence?

A

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

25
Q

What is duress?

A

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

26
Q

What is duress by threats?

A

Where D is told by someone to commit a specific crime or else

27
Q

What is duress by circumstances?

A

If the threat comes from the circumstances in which D finds himself

28
Q

Which case set the elements of duress?

A

Hasan

29
Q

What is the first element of duress?

A

There must be a threat of death or serious injury

30
Q

What does the case Baker and Wilkins say about the threat given in duress?

A

A threat to cause serious psychiatric injury could amount to duress

31
Q

What threats are not sufficient for duress?

A

Blackmail, to destroy or damage property

32
Q

What happens if there isn’t an actual risk of death in duress?

A

It is sufficient that D reasonably believes that there is a threat of death or serious injury

33
Q

What is the second element of duress?

A

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

34
Q

Who was the threat made to in Wright?

A

D’s boyfriend

35
Q

Who was covered as being someone who D would reasonably regard himself as responsible in Hasan?

A

Those who could be injured by a bomb unless D committed the relevant crime

36
Q

What is the third element of duress?

A

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

37
Q

What does the case Graham say?

A

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

38
Q

What characteristics does Bowen say could be relevant to decide if a reasonable person would respond in the same way as D?

A
  • age
  • gender
  • if D was pregnant
  • disability
39
Q

What is not taken into account when considering D’s ability to resist the threat?

A
  • low IQ
  • vulnerable to pressure
  • emotionally unstable
40
Q

What is the fourth element of duress?

A

The crime must be directly caused by the threats

41
Q

What does the case Cole say?

A

It must be that D would not have committed that specific crime but for the threats

42
Q

What happened in Cole?

A

D was threatened because he owed money. He committed robbery to pay back the money but he wasn’t threatened to commit robbery

43
Q

What does the case Valderama-Vega say?

A

The death of threat or serious injury need not be the only motive for D’s conduct

44
Q

What happened in Valderama-Vega?

A

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

45
Q

What is the fifth element of duress?

A

There must be no reasonable opportunity to escape the threat

46
Q

What must D reasonably believe about the threat according to Hasan?

A

That the threat could be carried out immediately or almost immediately

47
Q

What does the case Gill say?

A

The defence will not be available where D has a reasonable opportunity to contact the police or escape

48
Q

What happened in Gill?

A

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

49
Q

What must happen when the threat is withdrawn or becomes ineffective?

A

D must stop committing the crime as soon as he reasonably can

50
Q

What is the sixth element of duress?

A

D can not rely on threats to which he has voluntarily laid himself open

51
Q

When is the only time that D can use self defence when he voluntarily laid himself open to them?

A

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

52
Q

What happened in Hasan?

A

D associated with a drug dealer known to be violent and the dealer threatened D unless he committed burglary

53
Q

What is duress of circumstances?

A

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

54
Q

What happened in Pommell?

A

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

55
Q

What can’t duress of circumstances apply to?

A

The crimes of murder, attempted murder and treason

Criminal Law - Paper 1 (12 decks)

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