Necessity Defences Flashcards
What does s76 CJus And Imm Act 2008 say about self defence
The question arises whether the degree of force used by D against V was reasonable in the circumstances (76 1 b)
What are the two questions relating to whether D used such force as is reasonable
Was it necessary to use any degree of force and was it proportional to the threat or risk
What belief will D be judged by for self defence
Against his genuine (perhaps mistaken) view Gladstone 1987
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
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
What does section 76 (5) say about mistaken belief and intoxication in self defence
You can’t rely on a genuine belief
Can a defendants genuine belief include delusions
Yes Seun Oye 2013 BUT mental illness can not be taken into account
Is pre emptive strike allowed in self defence
Yes Bird 1986, doesn’t have to show an unwillingness to retreat
What does section 76 (6A) say about duty to retreat in self defence
There is no duty
Can the D be the aggressor in self defence
Yes IF Vs response wholly disproportionate and WASNT Ds aim all along rashford 2005
What does a 76 (6) of Crim Jus Imm Act 2008 say about disproportionate force
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)
What two tests must be considered in a householder case
- ) degree of force GROSSLT disap?
2. ) degree of force reasonable in circumstances?
What rules did Ray 2017 introduce for householder cases
- ) whether force in any case is reasonable in circumstances as D believe them to be (76 3)
- ) householder not regarded as acting reasonably if grossly disproportionate (76 5 A)
- ) degree of force that went completely over the top would be grossly disproportionate
- ) however a householder may or may not be regarded as acting reasonably if degree of force disproportionate
What may a jury have to consider in a householder case for self defence
Shock of an intruder Time Presence of anyone vulnerable ie kids Weapon or object used Conduct of intruder
What does s3(1) of Crim Law Act 1967 day about prevention of a crime
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
What does howe 1987 say about duress
Not a defence to murder, obiter attempted too
What does Lord Bingham set out in Hassan 2005 about the defence succeeding
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
What does the threat in duress have to be of
Death or serious injury(given ordinary meaning ie GBH) but if serious then cumulative threat effects can be ok Valderrama-Vega 1985
What does Hudson 1971 say about the time of the threat
Must be effective moment of time committed but doesn’t mean immediate
What is the two stage test deciding whether D acted reasonably
- ) D compelled to act as she or he did bc reasonably believed good cause to fear injury or death (objective)
- ) first test ok then would a sober person of reasonable firmness respond in same way
What characterises does Bowen 1996 say are relevant to duress
Age, pregnancy, serious physical disability, recognised mental illness NOT low IQ, gender
What does Cole 1994 say about threats relating to the crime
D can only use defence if threats are made in order to commit offence
What does ‘any evasive action taken’ mean for duress
Gill 1963, if possibility of a ‘safe avenue of mistake’ need to take it
What does Sharp 1987 say about leaving self open to threats
Can’t use defence if involved in a crim organisation
What is the general rule of association for duress
Defence excludes when as a result of the accused association with others he foresaw or ought to have reasonably foresaw risk
What is duress of circumstances that
Circumstances dictate crime not a person (Willer 1986)
What does Conway 1988 say about duress of circumstances
Defence available if acting to avoid death or SI
What test does Martin 1989 put forward for duress of circumstances
- ) D compelled to act as he did bc he reasonably believed he had a good cause to fear SI or death
- ) if so would a sober person sharing the characterises of D have acted same way
What does Pommell 1995 say the defence of duress of circumstances can’t be used for
Murder, attempted murder and treason
What does Carins 1999 say about duress of circumstances
Threat can be perceived if reasonably believed
What does Abdul 1999 say about duress of circumstances
- 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
