Rationale based defences

Question 1

What are the two main defensive pleas related to jurisdictional and procedural defences in legal proceedings?

Answer 1

-Limitation: A legal principle preventing prosecution after a predetermined period has elapsed, according to statutes of limitations.

-Double Jeopardy: A legal prohibition against trying an individual twice for the same offense.

Question 2

What is the key principle regarding a court’s ability to hear a case?

Answer 2

A court must possess both procedural and technical jurisdiction to try a case, ensuring that legal matters are heard in the correct forum and according to the proper procedures.

Question 3

What defensive pleas are available regarding a defendant’s capacity in criminal proceedings?

Answer 3

-Infancy: Argues the defendant is too young to bear criminal responsibility.
-Insanity: Claims the defendant was unable to understand their actions due to a mental disorder.
-Unfitness to Plead: Asserts the defendant cannot partake in their defence due to mental or physical incapacities.

Question 4

What principle underpins a defendant’s need to understand and respond to legal proceedings?

Answer 4

The accused must be capable of understanding and participating in legal proceedings to ensure fairness in the administration of justice, preventing the criminal prosecution of individuals who cannot comprehend or respond to the charges against them.

Question 5

What is the defensive plea related to the involuntariness of a defendant’s actions, and what does it entail?

What is the foundational principle regarding the voluntariness of conduct in criminal liability?

Answer 5

Automatism: A defence claiming the defendant’s actions were involuntary and without conscious control, such as those carried out during an unconscious state.

For an individual to be criminally liable, their actions must be voluntary. This principle asserts that criminal responsibility should be based on acts that result from free will.

Question 6

What defensive pleas can negate the liability for the actus reus of a crime?

Answer 6

• Consent: The victim’s consent to the act can sometimes negate liability.
  -Alibi: Proof that the defendant was elsewhere when the crime occurred.
  -Other Denials: Claims that the defendant did not cause the actus reus.

Question 7

What is the key principle regarding the actus reus in criminal law?

What are the defensive pleas related to negating the mens rea of a crime?

Answer 7

The defendant must have performed the criminal offence’s physical act, establishing a direct action or omission that led to the crime.

Mistakes or intoxication that can negate the necessary mental state.
Other defenses that argue the defendant did not have the requisite mental state for the offense.

Question 8

What is the foundational principle concerning mens rea in establishing criminal liability?

What types of tag-on liability are recognised in criminal law, and what defensive pleas apply?

Answer 8

The defendant must possess a blameworthy state of mind when committing the actus reus, indicating that the action was carried out with intention, knowledge, recklessness, or negligence.

Types include inchoate liability (for attempted crimes) and complicity (assisting or encouraging another to commit a crime).
Defensive pleas include all of the above, plus specific defences related to the type of liability, such as lack of intent to commit or facilitate the crime.

Question 9

What principle underlies the concept of tag-on liability in criminal law?

Answer 9

Individuals can be held liable for crimes they did not personally commit if they attempted to or assisted or encouraged someone else in committing the crime, emphasizing the importance of intent and participation in criminal activities.

Question 10

What are the primary defensive pleas under justification defenses, and a key case that affirmed the right to self-defense?

What principle regarding self-defence did Beckford v The Queen [1988] establish?

Answer 10

Defensive pleas include self-defence, defence of property, lawful arrest, prevention of crime, and necessity.

Beckford v The Queen [1988], where Lord Griffiths affirmed the right to self-defence, stating that the force must be reasonable and directed against the aggressor.

The principle established is that no crime is committed if the force used in self-defence is reasonable, highlighting the need for the force to be proportionate to the threat faced.

Question 11

What are the main defensive pleas within excuse defences, and what principles do they share?

Answer 11

Defensive pleas include duress and statutory excuses.

Principle: Certain circumstances can excuse the defendant’s actions, even if the elements of the offence are met, recognizing that external pressures or legal justifications can mitigate culpability.

Question 12

What are the key cases related to self-defence and their contributions to understanding reasonable force?

Answer 12

• Beckford v The Queen [1988]: Affirmed the right to self-defence, emphasizing the reasonableness of the force used.

-R v Hichens [2011]: Discussed limitations on the force used in self-defence.
Palmer v The Queen [1971]: Described self-defence as an “all-or-nothing” defence.

Devlin v Armstrong [1971] and A-G’s Ref (No. 2 of 1983) [1984]: Discussed when defensive measures become permissible, including in situations of present attacks and pre-emptive strikes.

Question 13

How do the Criminal Justice and Immigration Act 2008 (CJIA 2008) and case law interpret the reasonableness of the force used in self-defence?

(Beckford, Dadson, Taj, and Re A ??)
(Palmer, Scarlett, Owino, and Martin??)

Answer 13

CJIA 2008: Section 76 clarifies defences regarding the reasonableness of force, introducing a subjective element to the belief in the necessity for force while considering intoxicated mistakes and objective reasonableness.

Beckford, Dadson, Taj, and Re A emphasise the defendant’s belief in the need for force. Cases like Palmer, Scarlett, Owino, and Martin assess the objective reasonableness of the force used, stressing that actions must appear honest and instinctive.

Question 14

What specific considerations are given to householder cases under the CJIA 2008 in assessing the reasonableness of force?

Answer 14

Householder Cases: CJIA 2008 sections 76(5A) and 76(6) provide specific provisions, focusing on the proportionality and reasonableness of defensive force in householder scenarios. The law examines the necessity of force, including whether retreat was possible or necessary, as seen in cases like Bird and Field.

Question 15

What legal defence exonerates a defendant for committing an offence under threat of imminent harm or death, focusing on lack of voluntariness?

Answer 15

Duress exculpates a defendant by demonstrating that their actions were not voluntary due to the threat of imminent harm or death.

Question 16

What case establishes that duress can excuse certain criminal behaviours and distinguishes it from self-defence and necessity?

How does duress differ from self-defence and necessity according to cases like Symonds, Riddell, and Martin (Colin)?

Answer 16

Howe establishes that duress can excuse certain criminal behaviours, differentiating it from self-defence and necessity.

Duress involves coercion negating voluntariness, whereas self-defence and necessity involve voluntary actions in response to threats or emergencies.

Question 17

What principle is examined when a defendant initiates a confrontation but then claims self-defence or duress?

Answer 17

The law examines whether defendants who start fights can legitimately claim self-defence or duress, as seen in Browne and Rashford.

Question 18

What does the balance between objective reasonableness and subjective belief entail in assessing self-defence claims?

What is the two-part test for duress as established by R v Graham [1982]?

Answer 18

It involves assessing whether the defendant’s belief in the necessity of their actions was reasonable under the circumstances.

1. Whether the defendant acted under a reasonable belief of a threat of death or serious injury. 2. Whether a sober person of reasonable firmness sharing the defendant’s characteristics would have acted similarly.

Question 19

How does duress by threats differ from the duress of circumstances?

Which cases compare the concepts of duress by threats and duress of circumstances?

Answer 19

Duress by threats involves coercion by another person, whereas duress of circumstances arises from the defendant’s situation.

R v Willer [1986] and Martin (Colin) compare duress by threats and duress of circumstances.

Question 20

According to R v Safi [2004], what must the defendant believe in the threat?

What types of threats qualify for a duress defence?

To whom must the threat be directed for duress to apply?

Answer 20

The belief in the existence of the threat must be reasonable, even if the threat itself is not real.

Only threats of death or serious bodily harm qualify; threats to property, blackmail, or psychological harm do not.

The threat can be towards the defendant or others for whom the defendant feels responsible, as seen in R v Hasan [2005].

Question 21

What factors are considered in the response of a sober person of reasonable firmness?

How does R v Hudson and Taylor [1971] relate to imminence and retreat in duress?

What is required for the proportionality of response under duress, as exemplified by R v Valderrama-Vega [1985]?

Answer 21

Factors include the imminence of the threat, the possibility of retreat, and the proportionality of the response.

The threat must be imminent, and the defendant must lack a safe avenue of escape.
This standard determines if the defendant’s response to duress was reasonable.
The defendant’s response must be proportional to the threat faced.

Question 22

How is the standard of a sober person of reasonable firmness applied, according to R v Bowen [1997]?

What are the policy considerations that limit the defence of duress?

What does R v Hasan [2005] say about a defendant’s prior fault in claiming duress?

Answer 22

This standard determines if the defendant’s response to duress was reasonable.4

The type of crime committed under duress affects the availability of the defence, notably excluding murder and attempted murder as per R v Howe [1987] and R v Gotts [1992].

The defence of duress is unavailable to those who voluntarily associate with criminal activities, knowing the risks of compulsion.

Question 23

How does Baroness Hale’s dissent in R v Hasan [2005] contribute to the debate on duress?

What scholarly perspective on duress is provided by Loveless and Ormerod?

Answer 23

She suggests a nuanced approach to assessing voluntary association, especially concerning victims of domestic abuse who might not easily escape their circumstances.

They delve into the nuances of coercion, particularly in the context of domestic violence, and the foreseeability of being subjected to compulsion.

Question 24

What are the two main types of necessity in legal defence?

What landmark case established that extreme necessity, such as cannibalism for survival, does not justify murder?

Which two legal figures expressed concern over the potential abuse of necessity defences like trespass or self-help?

Answer 24

Best interests intervention and lesser evil necessity.

R v Dudley and Stephens (1884).

Lord Denning and Lord Edmund-Davies.

Question 25

In the context of necessity, what principle was established in Gillick v West Norfolk and Wisbech AHA [1986] and Re F [1990]?

What case illustrates the application of lesser evil necessity, emphasising the need to prevent greater harm?

What case involved conjoined twins and demonstrated the principle of lesser evil necessity?

Answer 25

Actions taken in the best interests of someone who cannot make decisions for themselves, such as medical interventions, can be justified under the principle of necessity.

R v Pommell [1995].

Re A (conjoined twins) [2001]

Question 26

How do the defences of duress and necessity balance legal and ethical standards?

Answer 26

They recognise human vulnerability and moral dilemmas, balancing human constraints with the imperative to uphold legal and ethical standards through stringent criteria and judicial scrutiny.

Question 27

What does N Tamblyn’s conclusion in “Necessity and Murder” (2015) J Crim L 46 state about the lawfulness of killing within a group facing imminent death?

According to N Tamblyn, what is the underlying justification for the necessity defence in scenarios where a group faces imminent death?

How does N Tamblyn’s view on the necessity of defence differ from duress by threats in situations of imminent death?

Answer 27

If a group of two or more people are virtually certain to suffer death imminently and together from the same cause, but one or more could be saved only by killing a particular person in that group, such killing would be lawful.

The justification is that if all life in the group is otherwise lost, it is better to save at least some of that life. This approach does not transfer the risk of death onto another, as the victim is already virtually certain of dying imminently.

Unlike duress by threats, the necessity defence does not involve transferring the risk of death onto another person because the victim must be virtually certain of dying imminently anyway.

Question 28

Notes from W Chan and AP Simester in “Duress, Necessity: How many defences?” (2005)

-What important distinction emerges from the discussion of the case of Re A regarding necessary action?

Why would an intervention to save J by killing M in the case of Re A likely not be regarded as permissible?

Under what conditions may conduct undertaken in the awareness that death will be accelerated be permissible, according to Chan and Simester?

Answer 28

-

The importance of distinguishing and not conflating the different rationales at work when one claims any version of what Clarkson has called “necessary action.”

Because the case is not truly one of self-defence, indicating that not all interventions under the guise of necessity are justified.

In certain cases of lesser-evils necessity and best interests intervention where the action is considered to have a justifiable rationale.

Question 29

What four defence rationales do Chan and Simester categorise in their discussion?

What does the discussion by Chan and Simester sketch regarding the Canadian debate on same-sex marriage?

Answer 29

Self-defence, duress, lesser-evils necessity, and best interests’ intervention.

It sketches the constitutional background of the debate, noting the intricate manoeuvrings of the judicial and political branches.

Question 30

L. Alexander’s “Lesser Evils: A Closer Look at the Paradigmatic Justification” (2005)

-What is the main ethical consideration in the “Code case” according to L. Alexander?

How does L. Alexander describe the decision-making process regarding the likelihood of flooding in the “Code case”?

What challenge does L. Alexander raises concerning the categorization of evils?

What ethical dilemma is presented in the trolley and surgeon scenarios discussed by L. Alexander?

Why does L. Alexander caution against a broad basis for duress, as illustrated by the “Code case”?

Answer 30

The defendant believes it’s more likely than not that the town will be flooded unless he floods V, despite a reckless risk of being wrong.

If the defendant believes it is more likely than not that the town will be flooded if he does not act, he must also acknowledge a less than 50% chance that it will not be, solidifying his belief in the necessity of his actions. Conversely, if he believes there’s a greater than 50% chance it will not be flooded, he cannot believe it will be flooded.

Alexander questions the clarity in categorizing evils once the weighting of bodily integrity over property is removed, suggesting that doing so may raise unnecessary concerns.

These scenarios explore deontological constraints versus utilitarian reasoning, highlighting the ethical duty of care and the aim to help the most people.

Alexander suggests that scenarios like flooding V rather than the whole town represent rare cases that should not be generalised, indicating a need for precise criteria in justifying duress.