Defences Flashcards

Question

was the force necessary To use in the circumstances- self defence

Answer 1

subjective test, D must be judged on the facts he genuinely beleived them to be mistake- if mistaken it can still be used (williams(gladstone)) intoxication- if D is voluntarily intoxicated they cannot use self defence and will automatically fail (o'grady) Ds characteristics- decided in martin that Ds characteristics cannot be taken into account when judging whether the force was necessary in the circumstances as he beleived

Answer 2

D and V fell asleep after drinking and D thought V was attacking him in the middle of the night and the V was found dead held- self defence failed- due to intoxication

Answer 3

the courts have been called on to consider whether a D is required to retreat from a situation if possible section 6A of CJAIA 2008 states that a person is not under a duty to retreat however they should/could have retreated will be considered as a factor when deciding whether the use of force was necessaty if an attacker is running away and the its unlikely that force will be neccesary- hussain

Answer 4

shot burgalers and argued suffering from personality disorder held- held psychiatric evidence should not be taken into account. he perceived the threat to be greater than it was.

Answer 5

CJAIA 2008 states that in none house holder cases the force must be objectively reasoable if it is seen as disproportianate or excessive force the defence will fail (clegg) pre-emptive strikes- it is not absolutely necessary that the D be attacked first and d is entitled to get his blow in first if it is reasonably necessary to do so (deana) the D does not need to wait to be acttacked however this has been interpreted narrowly and so the courts wont allow exessive force (beckford) possibility to retreat- the courts have made it clear no duty to retreat- d can stand ground in argument (bird) available to use for murder- clegg

Answer 6

D and ex in argument and threw drink over him, V slapped D and pushed against a wall and gouged eye out held- self defence valid and didnt need to show withdrawal

Answer 7

D was soldier and car accelerated them at great speed and fired shots and killed guy in back of car appeal rejected- fired last shot after danger had passed and had used exessive force in the circumstances

Answer 8

wider defence to protect property where an intruder enters. force is allowed if excessive but cant be 'grossly disproportionate' which is a matter for the jury to decide (ray- grossly disproportionate)

Answer 9

covers those under the influence if alcohol, drugs or solvents used to support cliams that D lacks MR

Answer 10

intention/recklessness e.g. assault, ABH, manslaughter, battery will always fail- D already has MR as reckless becoming intoxicated DPPv majewski richardson and irwin

Answer 11

intention only e.g. murder, s.18 GBH intoxication may provide a defence if prevented D from forming intention convicted of lesser charge- fallback principle (sheehan and moore) DPP v beard AG v gallagher

Answer 12

poored petrol over homeless and set fire defence succeeded and convicted of involuntary manslaughter- fallback principle

Answer 13

formulated plan to kill wife and bought knife and drunk whisky to encourage held- no defence- formed MR before intoxication

Answer 14

basic intent crimes specific intent crimes

Answer 15

allowed for both basic and specific unaware of intoxication and unwanted side effect the test is whether D had necessary MR at the time of the offence full defence if not reckless in taking the thing still voluntary if D thought was drinking something with a lower alc percentage (allen) prescribed drugs- takes and becomes intoxicated (bailey) soporific drug- seditives/tranquilisers (hardie) laced drinks- lack MR (kingston)

Answer 16

lured 15yr old to a man(D) known to have pedophilic tendencies and drugged them both the D sexually abused the boy held- D convicted as despite the effects of drugs he possessed MR before. drunken intent is still intent

Answer 17

took insulin but forgot to eat afterwards held- reckless- failed to eat (pescribed drugs)

Answer 18

took valium and had an unexpected reaction and set fire to a wardrobe held- D had complete defence- not been reckless in taking the specific substance (soporific substance)

Answer 19

will not provide a defence to a crime of basic intent and will only assist a crime of specific intent if D didnt form MR (fotheringham)- failed thought rape was wife (hatton)- worked involuntary intoxication

Answer 20

if the drunken mistake is about self defence states D never have a defence to basic or specific intent crimes o grady

Answer 21

fell asleep drunk and woke to friend hitting him so he realitates and is found dead I failed as manslaughter- basic intent and D reckless in b ecoming intoxicated, a drunken intent is still intent

Answer 22

1. defect of reason 2.due to disease of the mind 3.which means D did not understand the nature and quality of his act, or if he did didnt know what he was doing was wrong

Answer 23

Ds power to reason is impaired and if capable to reason defence fails- clarke

Answer 24

must prove suffering disease of mind at the time he committed the AR of the offence. a disease of the mind is any illness whixh affects memory, reasoning or understanding caused by an internal source (kemp)

Answer 25

epilepsy (sullivan)- seizure injured man- worked sleepwalking (burgess)-internal dissociation (T-PTSD- not insnaity- aut- external) diabetes (hennessy- not taken insulin) (quick- too much insulin taken but eaten little)

Answer 26

hyperglycaemia- high blood sugar- no insulin taken/very little= insanity hypoglycaemia- low blood sugar- taken too much insulin pr without food- automantism

Answer 27

if D voluntarily takes a substance which caused a temporary psychotic episode, D cant use defence of insanity. substance is an external factor colley- cannabis and stabbed man

Answer 28

-the nature and quALITY of hus act e.g. did not know what he was doing (oye) -or if he did he didnt know what he was doing was legally wrong windle

Answer 29

'i suppose they will hang me for this' indicated he knew the act was legally wrong

Answer 30

where insanity succeeds D will found not guilty by reason if sanity, known as the special verdict

Answer 31

act which is done by the muscles without any control of the mind such as a spasm, reflex action 1.acted completely involuntarily 2.external factor

Answer 32

Ds loss of control by the mind must render the movement by his muscles as completely involuntarily must prevent from doing necessary MR (T) no defence if not a complete loss of control (watmore v jenkins)

Answer 33

D raped and suffered PTSD causing dissociation and caused assault/robbery held- successful- involuntarily

Answer 34

some control still present has to be compleye loss of control- not successful

Answer 35

sneezing fit in car and crashed in front completely involuntary- successful

Answer 36

Ds automatic, involuntary state myst have been brought on from something external e.g. if D taken insulin it can be argued to be external (quick) however if dissocosiation was caused by the ordinary stresses of life it would be classed as insanity (burgess) falconer hill v baxter lowe

Answer 37

D shot her husband and didnt remeber and prev been sexually abused by him held- succeed- external cause

Answer 38

dangerous driving- couldnr remember held- famous hypothetical swarm of bees and found guilty- not external

Answer 39

mcr sleepwalking man and battered elderly father to death held- insanity- sleepwalking internal factor

Answer 40

where the D has induced his own automatic state and thus has priot fault. depending on the type of defence will decide whether D can still use automatism as a defence. lipman specific (unable to form MR)- succeed if prevented D from possessing the MR basic- if the D was unaware that his actions would lead to an automatic state and therefore not reckless, defence may suceed e.g. hardie if self induced is caused y drink or illegal drugs- cant use defence. DPP v majewski decided that becoming voluntarily intoxicated is a reckless course of conduct e.g. bailey

Answer 41

took LSD and thought GF was a snake and killed her held- suceeded, a specific intent so self induced automatism can suceed- fallback offence

Answer 42

acting under threat of death or serious injurt. must of acted as a reasonable man

Answer 43

common law full defence available to all crimes except for murder (howe)/ attempted murder (gotts) and treason

Answer 44

set out in the case of hasan in 2005: 1.must be threat to cause death or serious injury 2.graham established a 2 part test (objective n subjective)- must act reasonably 3.threats relate closely to the crime 4.there was no evasive action D could have taken (no safe avenue of escape) 5. defence fails if D voluntarily associates themselves

Answer 45

must be against them, immediate family, close person or who they are safely responsibkle for. defence doesnt include threats to property. valderrama-vega

Answer 46

threat of death/serious injury D imported drugs bc of threats made.

Answer 47

d lived with wife and homosexual lover, king. kinng had D pull a flex round his wifes neck held- both charged with murder set the 2 part test

Answer 48

1. was he forced to act, as he reasonably beleived he had cause to fear death or serious injury (subjective test)- D must honestly and reasonably beleive had good cause to fear death/serious injury 2.would the sober man of reasonable firmness, having Ds characteristics acted in the same way (objective test) bowen

Answer 49

had low IQ and held that wasnt a relevant characteristic but age, gender, pregancy, disability was

Answer 50

there has to be a direct link between the treat and the final crime committed otherwise defence will fail. threat must make D commit a specific offence cole

Answer 51

casual nexus d owed debt to money leaders so robbed. and threatened harm of money wasnt paid back held- failed as a lack of casual nexux between threat and offence not a direct link- the specific action wasnt to rob but pay money back

Answer 52

no safe avenue of escaoe gill

Answer 53

D and wife threatened unless stole a lorry however left alone for a period of time held- had the possibiligty of a safe avenue of escape- defence failed

Answer 54

the defence of duress is exluded when as a result if his associations he foresaw or ought reasonably to have forseen the risk of beung subjected to threats/violence. e,g. gang hasan

Answer 55

debt with drug dealer assosiation with drug dealer- ought to have reasonably forseen risk of being subjected to threats or violence

Answer 56

this defence arises where D finds himself in circumstances that are so intimidating that he is forced to act and commit AR. here does not come from a person but from surrounding circumstances dudely and stephens

Answer 57

D and cabin boy shipwrecked and ate and killed the boy held- failed- one persons life isnt more important than another

Answer 58

-reasonably beleived he had good cause to fear death or serious injury and -a sober man of reasonable firmess, sharing some of the Ds characteristics would have reacted in the same way willer

Answer 59

car and gang surrounded and drove on pavement to avoid held- succeeded due to circumstances D was in

Answer 60

- the act was done to prevent a greater inevitable evil -the act was reasonable, necessary and not disproportional to the evil to be avoided shayler added the evil must be directed towards the D or persons for whom he had responsibility Re A

Answer 61

conjoined twins and seperated and killed one held- neccessity available

Answer 62

p- its positive that the law has restricted the defence by setting set criteria for valid consent because people cant get away with harmful actions to a person who cant fully understand dp-also with the nature and quality its important that a person knows exactly what they are consenting to, including all the risks. furthermore the law has now been extended to cover genital herpes in Golding. this shows the law has developed in order to protect the individual but this encourages inconsistencies as its unclear how far the law stretches in terms of STIs. wdp-however judges have added this as an extra element and created more uncertainty, other diseases? this conflicts with the ROL

Answer 63

p- brown follows good public policy as the law only intervenes with personal freedom where its essential to do so/good reason to do so. dp-the law lords argued in a civil society, cruelty should not be tolerated and believe the law should intervene whenever an act is seen to cause harm, regardless of the privacy of these acts by creating a list of activities which can be seen as lawful and consented to. wdp-however its argued that the law does not strike a fair balance between our individual human rights and social paternalism in a changing society- cant express themselves in body modifications like in mcarthy- couldnt used that they consented for it- he wasnt qualified

Answer 64

p- sport can be problematic to decide whether an incident was within the rules or not. even in todays modern games referess cant always agree so arguably neither could a judge. dp-furthermore differnt sports have inconsistent standards of rules as to what injuries would be allowed like the comparison of boxing and football, this causes confusion, boxing would allow more serious injuries as its nature is fighting which causes more harm wheras football wouldnt allow as serious injuries so causes different case outcomes wdp- however sports like these provide a social and cultural benefit so it may not be fair to interveine but then again prevents harm but could argue players should be aware of the risks.

Answer 65

p-there's an inconsistent approach in regards to consent as judges are saying horseplay, which could be a form of bullying can be consented to but the consensual behaviour of sadomasochistic activities such as brown isn't accepted. dp- legal academics argue the agressive nature of jones is potentially a greater source of danger when its intention is to reduce danger. wdp-however it could be argued that horseplay is justified exception as all children engage in playground games e.g. bulldog so it would be impossible for police if it wasnt an exception and is an example of the law giving society freedom of choice and stepping away from social paternalism.

Answer 66

p- parliament is unwilling to change to what individual groups want and only proving what another group wants which could argue isnt fair on others in society. dp- furthermore the assisted dying bill has been rejected in parliament twice in regards to assisting someone to end their life- lack of change wdp- however in 2022 its gone through parliament again and reached the commitee stage in the HOLs and in 2025 there is a new bill for those with terminal illness, suggesting the opinion of the public has had an influence on law making.

Answer 67

inconsistency and uncertainty arising out of developing the law on a case by case basis has created confusion and injustice and unfairness currently the law favours public policy as consent- is only an effective defence to an injury caused where the D is deemed less culpable like in sport or surgery and the law interferes with personal freedom when it needs to. societies veiws keep changing and what is/isnt acceptible is always changing like body modifications are becoming more accepted so could argue the area is best suited to judge made law as quicker and saves time.

Answer 68

the LC reveiwed consent in its 1995 paper but no real reforms were suggested and stated consent is a good defence and the rule in brown should be extended so that assault, battery and ABH can always e consented to and not be available in horseplay.

Answer 69

p-this defense has now been legislated on in 2008 which means parliament have made their intentions clear so therefore this complies with the ROL dp-self defense is a well known defense which has received publicity over the years, particularly regarding the actions of householders who are confronted with intruders. the defense covers situations when force is needed to defend people or prevent crime. wdp-however tight restrictions are needed to prevent people from taking the law into their own hands and force used must be justified in the circumstances. self defense is considered a moral defense and difficult to interpret

Answer 70

p- the courts and p have favored public policy and want to send out a strong deterrent message regarding intoxication by implying you can't access the defense if you have made a mistake whilst intoxicated so is applied fairly dp-furthermore this is a section set out within the act, demonstrating its something P want to deliberately restrict so therefore holds p.s their word is supreme and common law isn't required wdp- however criticized as being harsh given that intoxication is a defense to specific intent crimes, yet for self defense it automatically fails

Answer 71

p- this strut approach makes sense that judges need to restrict the availability in this area because SD is a complete defense and Could be a danger to the public therefore don't want the defense to be readily available dp- this could also upholds the standard of this defense, the floodgates are less likely to be open to fraudulent cases trying to justify their actions on defending themselves wdp-however some could argue its illogical t not allow Ds characteristics to be taken into account as the test should be judged subjectively consider what P have said 'as he believed them to be' but cases like Martin and oye didn't follow this and so courts going against Ps intention.

Answer 72

p- there's no definition of reasonable force and is a matter for the jury to decide so different case outcomes people have different limits. dp-the all or nothing approach where if even have 1 of the criteria not 2 the defense fails so this isn't fair as D felt like force was necessary so should be allowed a partial defense. but restricts the defense so justice for v. wdp-also excessive force is difficult to define and there's an issue whether a vulnerable person can be expected to use reasonable force and they should be able to defend themselves if they know they are more vulnerable and there may be no other way to defend themselves. but vulnerable is also difficult to define and could be used to manipulate the defense.

Answer 73

critics argued that it will encourage vigilantism and have questioned what's the difference between D and GD ( taking la enforcement into their own hands) and hiding behind needing to protect their property-uncertain dp-the change in the law is argued to only ass another grey area into the law and is ultamely up to the jury to decide and little guidance so no doubt be inconsistent decisions wdp- whilst largely favored by the public as should have the right to protect property, its a popular addition to the law- public opinion.

Answer 74

p-ultimately its argued that the defense is needed but certain elements need to be clarified dp- to combat criticism of the all or nothing nature it has been suggested that where some force is justified but the d causes too much and causes death it should be open to the jury to convict him of manslaughter rather than murder. this was rejected in Clegg wdp- the LC in its consultation document 'partial defense for murder' suggested that this area needs to be re examined

Answer 75

p- if D is too intoxicated to form intent for a crime they should not be found guilty as there should never be liability without MR- fair on the D dp-furthermore fair on C intoxication rarely succeeds on the grounds of public policy. this is an advantage as a large majority of all crime is committed by those under drinks or drugs and the public needs protecting from harm. wdp- however this can often be seen to be at the expense of ds rights. some do question whether the courts have got the balance between the two, as often the courts side with a drunken mens rea is still a mens rea

Answer 76

p- the LC have criticised the majewski ruling stating they are harsh becyse D did not intend the crime they committed, only intennded to become intoxicated- he did not get the defence dp- this goes against the basic principles of liabiliyu and the CJA 1967 because a D should only be found guilty of a crime if they 'intended or foresaw result of actions' wdp- there can be problems with the distinction between crimes of specific and basic intent which means its inconsistent and illogical. for example, intoxication can provide a defence to an attempted rape but not rape itself- confusing

Answer 77

p-the fallback principle cant be used all the time so is therefore inconsistent dp- the fallback principle cannot always be used for all types of crime for example theft, D may have voluntarily been intoxicated but no available fallback so D will be completely aquitted so the public is in danger. wdp-despite the more relaxed approach in modern day, the rules on voluntary intoxication and specific intent crimes are still strict therefore favouring public policy, even the d has no mr he will be liabe of a lesser crime so sends out a strong message to society- cant fully get away

Answer 78

p- yes it upholds legal principle and public policy- even if it wasn't your fault being intoxicated, acts such as homophylic tendencies (MR formed before) like in Kingston shouldn't be treated lightly even if he wasn't fully to blame- drunken intent is still intent. dp- but it still is good that involuntary is less strict than voluntary still in that it covers basic intent which is more fair as being involuntary intoxicated especially for lower level crimes should have a defence

Answer 79

'dangerous intoxication'- a new offence but rejected as it didnt distinguish how serious the criminal offence could be.

Answer 80

p- the defence is mainly based on protecting the public. this is because intoxication is a major factor in a great deal of crime- half- should be a strict approach to prevent this. dp-its tried to balance both the defendents rights with public policy over the past 30 years but now argued that PP is the main theme and rejected the Lc proposals- stubborn wdp- whether the balance is satisfactory or not, the law does not need to be reformed to become certain and ascertainable.

Defences Flashcards

(104 cards)