Unlawfulness II Flashcards
Define necessity
Person tht acts out of necessity.. Conduct is lawful if:
Protecting own life, another’s, physical integrity, property or other legally recognized interests
That is endangered by a threat of harm that has already begun or immediately threatening, and
Cannot be averted in any other way,
Provided person tht relies on necessity is not legally compelled to endure the danger and the interest
Protected by the act of defense isnt out of proportion to the interest threatened by such an act
What is the similarity between private defence and necessity?
Both are protecting an interest that is of value to them by a threatening danger
What are the differences between self def and necessity?
Origin of situation of emergency
Self - always an unlawful Human attack
Nec- unlawful human attack but also chance circumstances
Object that the defense is directed at
Self- unlawful human attack
Nec- interest of another innocent 3rd party or merely a violation of legal provisions
What is required for a successful plea of necessity?
Irrespective if the emergency situation is due to an unlawful Human attack or chance circumstances
Or if escaping an unlawful human attack or violating a legal provisions
Only thing of importance is that x was in a situation of emergency when she acted
Explain the restricted field of application between self def and necessity
Self- can be done by the fact tht there are ethical grounds… Always an unlawful attack occurring and person gets what they deserve
Necessity difficult since must choose between suffering harm or breaking the law
Defending necessity… Must hve strict compliance with the requirements for success
Courts skeptical of this and avoid as much as possible
Requirements for a plea of necessity
Legal interest threatened
Protecting another
Emergency shld hve already begun and not terminated
Only way to avert danger
Harm shld not be more than required
Must be conscious that they are in an emergency
Not legally compelled to endure the danget
What is the test for necessity?
It is an objective one.
Look at the actual facts of the case not what is thought
Briefly explain consent as a ground of justification
Consent can be given
If so an unlawful act to deemed lawful
Consent can be applied on to certain types of crimes under certain circumstances
Explain the different possible effects of consent in terms of the cases where it cannot be used as a defense
If it forms part of the Def elements of a crime
And in necessity it forms part of the minimum re for the existence of a meaningful criminal prohibition
Crimes where consent by the injured party is nver recognized as a defense eg murder
Crimes it can be used as a ground of justification eg theft
Crimes where it can be used and cannot be used eg assault
What is the criterion that one applies to determine if consent excludes Unlawfulness?
Bonie mores or legal convictions of a society /public policy
What are the egs where consent can justify an unlawful act of assault
Injuries from sports events
Medical treatment
Impairment of bodily integrity
Kiss
Handshake
Hair cute… Everyday… Non liability taken for granted
When can consent be used as a ground of justification for assault?
If act occurs with or without the use of force or injury -
If no injury - consent can be used as a ground of justification for the assault
If injury - courts will have to see if it was in conflict with boni mores of society, if so then consent not a ground of justification
What are the requirements for a valid plea of consent
Voluntary Expressly/tacticly By the complaint herself Based on knowledge of true and material facts Before the commission of an act Must hve certain min abilities
Explain presumed consent
An act tht InFringes on ys interest,
In accordance to Def elements of a crime
But is justified in the act since
Furthers the interest of y or is in defense of y
In a situation where y cannot give consent but
When x committed the act, it is reasonable to assume tht y wld hve consented to it had y been in tht position
Eg unconscious and needs meds
