Necessity Defences

Question 1

What does s76 CJus And Imm Act 2008 say about self defence

Answer 1

The question arises whether the degree of force used by D against V was reasonable in the circumstances (76 1 b)

Question 2

What are the two questions relating to whether D used such force as is reasonable

Answer 2

Was it necessary to use any degree of force and was it proportional to the threat or risk

Question 3

What belief will D be judged by for self defence

Answer 3

Against his genuine (perhaps mistaken) view Gladstone 1987

Question 4

What do the subsections in a 76 Crim Jus and Imm Act 2008 say due to putting the cases of beck ford and Gladstone into law

Answer 4

3) whether degree of force used by D was reasonable in the circumstances is to be decided by reference of how D believe them to be
4) if D claims to have held a particular belief as regards to the existence of any circumstances
(a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it but
(b) if it is determined that D genuinely held it then D is entitled to rely on it whether or not
(I) it was mistaken
(ii) mistake was a reasonable one to have made

Question 5

What does section 76 (5) say about mistaken belief and intoxication in self defence

Answer 5

You can’t rely on a genuine belief

Question 6

Can a defendants genuine belief include delusions

Answer 6

Yes Seun Oye 2013 BUT mental illness can not be taken into account

Question 7

Is pre emptive strike allowed in self defence

Answer 7

Yes Bird 1986, doesn’t have to show an unwillingness to retreat

Question 8

What does section 76 (6A) say about duty to retreat in self defence

Answer 8

There is no duty

Question 9

Can the D be the aggressor in self defence

Answer 9

Yes IF Vs response wholly disproportionate and WASNT Ds aim all along rashford 2005

Question 10

What does a 76 (6) of Crim Jus Imm Act 2008 say about disproportionate force

Answer 10

Disproportionate force not reasonable unless in a householder case (Martin 2002, can’t use GROSSLY disproportionate force, household case counts as force used by D who’s in building, D can’t be a trespasser and must believe V to be a trespasser)
Test is objective and takes into account harm to V and a person acting for legit purpose may not be able to weight exact measure of a necessary action (76 7 a) and evidence of a person action honeslty and instinctively (76 7 b)

Question 11

What two tests must be considered in a householder case

Answer 11

1. ) degree of force GROSSLT disap?

2. ) degree of force reasonable in circumstances?

Question 12

What rules did Ray 2017 introduce for householder cases

Answer 12

1. ) whether force in any case is reasonable in circumstances as D believe them to be (76 3)
2. ) householder not regarded as acting reasonably if grossly disproportionate (76 5 A)
3. ) degree of force that went completely over the top would be grossly disproportionate
4. ) however a householder may or may not be regarded as acting reasonably if degree of force disproportionate

Question 13

What may a jury have to consider in a householder case for self defence

Answer 13

Shock of an intruder
Time
Presence of anyone vulnerable ie kids
Weapon or object used 
Conduct of intruder

Question 14

What does s3(1) of Crim Law Act 1967 day about prevention of a crime

Answer 14

Person may use such force as is reasonable in the circumstances in the prevention of a crime or in effecting or assisting the lawful arrest of offenders or suspected offenders or of persons unlawfully at large

Question 15

What does howe 1987 say about duress

Answer 15

Not a defence to murder, obiter attempted too

Question 16

What does Lord Bingham set out in Hassan 2005 about the defence succeeding

Answer 16

1.) must be a threat to cause death or serious injury
2.) threat must be directed against D or his or her immediate family or someone close to them
3.) whether d acted reasonably in light of threats is judged objectively
4.) threats relate directly to the crime committed by D
5.) no evasive action D could have taken
6,) d can’t use defence if he or she has voluntarily laid him or her self open to threats

Question 17

What does the threat in duress have to be of

Answer 17

Death or serious injury(given ordinary meaning ie GBH) but if serious then cumulative threat effects can be ok Valderrama-Vega 1985

Question 18

What does Hudson 1971 say about the time of the threat

Answer 18

Must be effective moment of time committed but doesn’t mean immediate

Question 19

What is the two stage test deciding whether D acted reasonably

Answer 19

1. ) D compelled to act as she or he did bc reasonably believed good cause to fear injury or death (objective)
2. ) first test ok then would a sober person of reasonable firmness respond in same way

Question 20

What characterises does Bowen 1996 say are relevant to duress

Answer 20

Age, pregnancy, serious physical disability, recognised mental illness NOT low IQ, gender

Question 21

What does Cole 1994 say about threats relating to the crime

Answer 21

D can only use defence if threats are made in order to commit offence

Question 22

What does ‘any evasive action taken’ mean for duress

Answer 22

Gill 1963, if possibility of a ‘safe avenue of mistake’ need to take it

Question 23

What does Sharp 1987 say about leaving self open to threats

Answer 23

Can’t use defence if involved in a crim organisation

Question 24

What is the general rule of association for duress

Answer 24

Defence excludes when as a result of the accused association with others he foresaw or ought to have reasonably foresaw risk

Question 25

What is duress of circumstances that

Answer 25

Circumstances dictate crime not a person (Willer 1986)

Question 26

What does Conway 1988 say about duress of circumstances

Answer 26

Defence available if acting to avoid death or SI

Question 27

What test does Martin 1989 put forward for duress of circumstances

Answer 27

1. ) D compelled to act as he did bc he reasonably believed he had a good cause to fear SI or death
2. ) if so would a sober person sharing the characterises of D have acted same way

Question 28

What does Pommell 1995 say the defence of duress of circumstances can’t be used for

Answer 28

Murder, attempted murder and treason

Question 29

What does Carins 1999 say about duress of circumstances

Answer 29

Threat can be perceived if reasonably believed

Question 30

What does Abdul 1999 say about duress of circumstances

Answer 30

• must be immediate peril of death or SI to the defendant or to those who they have resp
• peril must operate on Ds mind at time of committing otherwise crime act (jury matter)
• execution of threat need not be immediately in prospect
• no avenue of escape