Necessity Defences (P1) Flashcards
What is self-defence?
A common law offence which also includes defence of another person and defence of property.
What are the two requirements needed for self defence?
- For the jury to consider whether the force was necessary
- For the jury to consider whether the force used was reasonable in the circumstances the D found themselves in.
Does the D need to wait to be attacked before defending himself?
No, R v Beckford (1988).
Can a defendant use threats of force or threats of death in order to try and stop an attack on himself or to prevent a crime?
Yes, R v Cousins (1982)
Can a defendant make preparations in order to defend himself if he believes he is at risk of an attack or his property is?
Yes, Attorney-General’s Reference (No 2 of 1983)
Does the defendant have to retreat if possible?
Section 6a of the CJIA 2008 makes it clear that a person is not under a duty to retreat when acting for a legitimate purpose. But the possibility that the person could have retreated is to be considered as a relevant factor in deciding whether the degree of force was necessary.
What does Sc 76 state about the force used?
It provides that the force used must be reasonable in the circumstances. This confirms case of R v Palmer. S 76 also goes on to confirm the defendant may not be able to weigh to a nicety the exact measure of the necessary action. S 76 also states that what is reasonable is to be judged on the circumstances as the defendant believed them to be.
What is the first part of the R v Graham test for duress?
The first part is subjective and considers whether D was forced to commit the offence because he reasonably believed that otherwise death or serious injury would follow to himself or to an identifiable other. Case law established that neither threats of financial ruin nor threats to reveal sexuality, R v Valderrama-Vaga are sufficient. However, threats to cut someone up, R v Hudson and Taylor are sufficient.
What is the first part of the R v Graham test for duress?
The first part is subjective and considers whether D was forced to commit the offence because he reasonably believed that otherwise death or serious injury would follow to himself or to an identifiable other. Case law established that neither threats of financial ruin nor threats to reveal sexuality, R v Valderrama-Vaga are sufficient. However, threats to cut someone up, R v Hudson and Taylor are sufficient.
What is the second part of the Graham test for duress?
This part is objective and considers whether a sober person of reasonable firmness sharing the Ds characteristics would have reacted to the situation by behaving as the D did.
What does sober mean in Duress?
Sober means that the effect of drink or drugs on the Ds ability to resist the threats cannot be considered, R v Flatt.
What characteristics are relevant in Duress?
R v Bowen, age, pregnancy, serious physical disability, recognised mental illness or gender
Which characteristics are not accepted in Duress?
Low IQ
What must the threat be in Duress?
Unavoidable and imminent. If the D could take evasive action this defence is not available. R v Gill, not imminent. The D must reasonably expect retribution to happen immediately, R v Hasan. It also must specifically set out the required conduct of the D, R v Home and R v Cole.
What happens if duress is self-induced?
If it is self induced because the D is a member of a violent gang then he should reasonably have foreseen the risk of compulsion by threats of violence, R v Hasan/
