Necessity Offences

Question 1

What are the three types of necessity defences?

Answer 1

1. Self-defence
2. Duress
3. Duress of circumstance

Question 2

What are necessity defences?

Answer 2

Necessity defences suggest that the AR was not a conscious free choice, their actions was necessary to avoid them being harmed or to avoid something worse happening

Question 3

(Self Defence) = Is self defence a complete or partial defence?

Answer 3

Self Defence is a complete defense and therefore not guilty

Question 4

(Self Defence) = Where is self-defence defined?

Answer 4

• Criminal Justice and Immigration Act 1967

Question 5

(Self Defence) = What does self-defence cover?

Answer 5

• It covers defending yourself, others and property

Question 6

(Self Defence) = What is the two steps for self-defence?

Answer 6

1. Was it necessary to use any degree of force?
2. If so, was the degree of force used proportionate or reasonable?

Question 7

(Self Defence) = Was it necessary to use any degree of force?

Answer 7

• Subjective test of what force the defendant believed to be needed at the time
• It can be mistake as long as it is genuine
• The reasonableness is relevant to whether D genuinely believed it
• It must be a reasonable mistake to make

Question 8

(Self Defence) = If so, was the degree of force used proportionate or reasonable?

Answer 8

• If the degree of force was unreasonable then no force is proportionate
• If the degree of force was reasonable then the force must be reasonable in the circumstances
• This is decided on the facts the defendant genuinely believed
• There is a test to decide whether force is disproportionate and therefore not reasonable
• However a defendant may not be able to weigh up the exact amount of force, if there is evidence to show they were only doing what was thought to be necessary then it is reasonable
• Force may begin as proportionate and then turn to disproportionate
• The defence is lost when it becomes disproportionate

Question 9

(Self Defence) = What is a householder case?

Answer 9

• In householder cases, force that is grossly disproportionate will not be reasonable
• A householder case is that the force must be while the defendant are in a building that is a dwelling
• The defendant must not be a trespasser
• The defendant must have believed the victim to be a trespasser

Question 10

(Self Defence) = What is the test for the householder test of force?

Answer 10

The test for householder test of force =
1. Was the degree of force used grossly disproportionate in the circumstances they believed them to be? If no,
2. Was the degree of force used reasonable in the circumstances they believed them to be? If yes,

Question 11

(Self Defence) = What are some considerations for the jury in a householder case?

Answer 11

Considerations for the jury?

1. The shock of coming across an intruder in the house
2. The time of day
3. The presence and vulnerability of others such as children
4. If any weapon was used
5. The conduct of the intruder

Question 12

(Self Defence) = What happens if their mistake was due to voluntary intoxication?

Answer 12

Intoxicated Mistake =
- S76 of the Criminal Justice and Immigration Act 2008 states that if the mistake was made due to voluntary intoxication, then they cannot rely on it

Question 13

(Self Defence) = Is a pre-emptive strike allowed for self-defence

Answer 13

• A person does not have to wait for an injury so can defend themselves however if can retreat then should retreat

Question 14

(Self Defence) = Is there a duty to retreat?

Answer 14

• A person is not under any duty to retreat when acting
• The court might consider the possibility that they could have retreated but chose not to as a relevant factor

Question 15

(Self Defence) = What happens if the defendant was the aggressor?

Answer 15

• Even if the defendant was the initial aggressor, they can use force is the victims response was very disproportionate and seriously threatening, as long as their aim was not to create this reaction

Question 16

(Self Defence) = What is the public defense of self-defence?

Answer 16

• A person may use such force as is reasonable in the circumstances of prevention of a crime or assisting a lawful arrest of offenders
• Allow a person to defend themselves if it is criminal
• To prevent an attack on another person
• To defend their property with physical danger to owner

Question 17

(Self Defence) = What are the ten key cases of self-defence?

Answer 17

1. R v Gladstone Williams (1987)
2. Beckford v The Queen (1988)
3. R v Seun Oye (2013)
4. R v Press and Thompson (2013) x
5. R v Bird (1986)
6. R v Rashford (2005)
7. R v Clegg (1995)
8. R v Martin (Anthony) (2002)
9. R v Ray (2017)
10. R (Denby Collins) v Secretary of State for Justice (2016)

Question 18

(Duress) = What is the definition of duress in common law?

Answer 18

Common law states that any adult of sound mind is responsible for their own behaviour unless the defendant is forced to do something against their will due to threats made against them

Question 19

(Duress) = What verdict will duress result in?

Answer 19

• This will result in a not guilty verdict

Question 20

(Duress) = What offences are duress not available for?

Answer 20

This defence is not available for: Murder, attempted murder and treason. Duress will be taken into account for attempted murder
- Seen in R v Howe and R v Gotts

Question 21

(Duress) = What does Lord Hailsham argue?

Answer 21

Lord Hailsham stated that an ordinary person should not be capable of murder if he is asked to take an innocent life rather than sacrifice his own

Question 22

(Duress) = Is the defence available for S18?

Answer 22

• The defence is available for S18 GBH, if the Mr is intent to commit murder
• This allows judge discretion in a sentencing as a murder charge carries a mandatory sentence

Question 23

(Duress) = What key case established the test for duress?

Answer 23

R v Hasan

Question 24

(Duress) = What is the six step test for duress?

Answer 24

1. Threat to cause serious injury or death
2. Threat against them or their family
3. Did they act reasonably
4. Threats relate to the crime
5. Was there any evasive action
6. Did they lay themselves open to threats

Question 25

(Duress) = What is the first step for the test for duress?

Answer 25

1. There must be a threat to cause death or serious injury - It must be active however does not have to be carried out immediately. The threat must be active but not immediate - Seen in R v Valderrama-Vega. and R v Hudson and Taylor

Question 26

(Duress) = What is the second step for the test for duress?

Answer 26

2. The threat must be directed against the defendant, their immediate family, someone close to them, a person they are responsible for

Question 27

(Duress) = What is the third step for the test for duress?

Answer 27

3. Did the defendant act reasonably? (Objective) - Was the defendant compelled to act because they believed they had good cause to fear serious injury and must have genuinely believed the threat was effective - Would a sober person of reasonable firmness, sharing the same characteristics, have responded in this way? - The jury can take characteristics of the defendant which must go to the ability to resist threats

Question 28

(Duress) = Third Step: What characteristics are set out and what case?

Answer 28

- Age - Pregnancy - Serious physical disability - Recognized mental illness - Gender - R v Bowen

Question 29

(Duress) = What is the fourth step for the test for duress?

Answer 29

4. The threats relate directly to the crime = There must be a sufficient connection between the threats and the crime committed, if it is not close enough then there is not a defence of duress - Seen in R v Cole

Question 30

(Duress) = What is the fifth step for the test for duress?

Answer 30

5. Was there any evasive action that could have been taken = If there is room for evasive action, to avoid the danger then there is not a threat of duress - Seen in R v Gill and R v Hudson and Taylor

Question 31

(Duress) = What is the sixth step for the test for duress?

Answer 31

6. Did the defendant lay himself open to threats = Any person voluntarily and with knowledge of its nature who joined a criminal organization who knew they may face pressure to commit an offence and was an active member - The general rule - the defence of duress is excluded when as a result of the accused’s voluntary association with others, he foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence

Question 32

(Duress) = What are the ten key cases for duress?

Answer 32

1. R v Howe (1987) 2. R v Gotts 3. R v Hasan (2005) 4. R v Valderrama-Vega (1985) 5. R v Hudson and Taylor (1971) 6. R v Graham (1982) 7. R v Cole (1994) 8. R v Gill (1963) 9. R v Sharp (1987) 10. R v Ali (2008)

Question 33

(Circumstance) = What is duress of circumstance?

Answer 33

In this defence, it is the circumstance that dictates the criminal behaviour rather than a person

Question 34

(Circumstance) = What are the key cases for duress of circumstance?

Answer 34

1. R v Miller (1986) 2. R v Conway (1988) 3. R v Martin (1989) 4. R v Pommell (1995) 5. R v Cairns (1999) 6. R v Abdul-Hussain (1999)