General Defences

Question 1

Inadvertence and Mistake

Answer 1

There may be times when a defendant makes a mistake about some circumstances or consequence; this is only a defence if they negate the mens rea required for that offence.

Question 2

Inadvertance or Mistake: DPP v Morgan

Answer 2

It does not matter if a mistake was reasonable. Mistakes a judged subjectively, usually an appropriate test is whether the defendant’s mistaken belief was an honest and genuine one.

Question 3

Inadvertence or Mistake: R v Brightling

Answer 3

A genuine or honest mistake could provide a defence to many criminal offences requiring a particular state of mind.

Question 4

Inadvertence and Mistake: R v Bentley

Answer 4

A defence of mistake has to involve a mistake of fact not the law. People under arrest are not entitled to form their own view as to the lawfulness of that arrest. They have a duty to comply with the police and hear the details of the charges against them. Belief in one’s innocence, however genuine or honestly held, cannot afford a defence to a charge of assault with intent to resist arrest.

Question 5

Inadvertence and Mistake: S.2 Theft Act 1968

Answer 5

Exception where a mistaken belief in the legal position can be a defence: a person appropriates property in the belief that they have a legal right to deprive another person of it.

Question 6

Duress: R v Graham

Answer 6

Where a person is threatened with death or serious injury (including threats to loved ones) unless they carry out a criminal act, the person may have a defence of duress.

Question 7

Duress: R v Baker

Answer 7

The threat of serious physical injury does not include psychological injury.

Question 8

Duress: R v Fisher

Answer 8

Offences requiring intent: unless it is shown that the intent had or could have been formed only by reason of that duress the defence will fail.

Question 9

Duress: R v Howe

Answer 9

Duress is not a defence for murder.

Question 10

Duress: R v Gotts

Answer 10

Duress is not a defence for attempted murder.

Question 11

Duress: Eden District Council v Braid

Answer 11

Duress is available as a defence for strict liability offences. For example a taxi driver was threatened into carrying excessive passengers which would be a breach of licensing conditions.

Question 12

Duress: Drink and Drugs

Answer 12

The defendant must be sober and have acted as a reasonable person for duress to stand.

Question 13

Duress: Future Threats

Answer 13

Threats must be anticipated at or near the time of the offence, not in the distant future, for duress to stand.

Question 14

Duress: R v Heath.

Answer 14

Duress is not available if the defendant failed to take advantage of opportunities to neutralise the threat, which a reasonable person could have taken in the same position. For example a defendant claim to be pressured into transporting drugs but had the opportunity to go to the police or escape to his parents.

Question 15

Duress: R v Sharp

Answer 15

If a defendant knowingly exposes themselves to a risk of such threat, they cannot claim duress. For example, if a defendant joins a violent gang, they cannot claim duress as a defence to any crimes they may go on to commit under threat from another gang member or rival member.

Question 16

Duress: R v Shepherd

Answer 16

If a defendant is part of a gang/organisation that is not predominately violent they may claim duress. For example, a defendant who is part of a shoplifting gang my claim duress in relation to offences committed whilst under threat from other gang members.

Question 17

Duress of Circumstances: R v Martin

Answer 17

When circumstances leave the defendant no alternative but to commit an offence. For example, a defendant drove while disqualified in order to tend to his wife who said she was going to commit suicide.

Question 18

Duress of Circumstances: R v Cairns

Answer 18

When considering duress of circumstances, consider whether the defendant was impelled to act as they did due to what they reasonably believed to be the situation, did they have good cause to fear death or serious injury? Also would a sober person of reasonable firmness and sharing the same characteristics have responded the same way to the situation? For example, a man jumps on defendant’s car and continues to drive and then runs over the man.

Question 19

Duress of Circumstances: DPP v Rogers

Answer 19

A defendant only needs to hold an honest belief that those circumstances exist, no reasonable grounds required for the belief.

Question 20

Duress of Circumstances: R v Jones

Answer 20

There is no requirement for the threat of circumstances to amount to a criminal offence. For example a defendant commit a crime as they believed it would help prevent war being declared on Iraq.

Question 21

Duress of Circumstances: R v Altham

Answer 21

Pain can never amount to serious physical harm. For example, a defendant claimed he needed to smoke cannabis to help with pain from injuries he received in a car accident, this defence was not accepted.

Question 22

Duress of Circumstances: Exemptions

Answer 22

This defence can not be used for murder, attempted murder, treason and offences under the Misuse of Drugs Act 1971.

Question 23

Duress of Circumstances: R v Abdul-Hussain

Answer 23

This defence can be used for hijacking.

Question 24

Taking a Life: Article 2 Humans Rights Act

Answer 24

The only exceptions to this act in regard to taking life include: in defence of any person from unlawful violence, in order to effect a lawful arrest or to prevent the escape of a person lawfully detained, in action lawfully taken for the purpose of quelling a riot or insurrection.

Question 25

Taking a Life: R v Stewart

Answer 25

Forced used must be no more than absolutely necessary. Therefore consider: the nature of the aim being pursued, the inherent dangers to life and limb from the situation, the degree of risk to life presented by the amount of force employed.

Question 26

Taking a Life: McCann v UK

Answer 26

Where the use of force by the police results in the deprivation of life, the overall operation will be scrutinised. Scrutiny looks at a higher level than proportionality. For example, an incident where three terrorists were killed in Gibraltar by SAS operators.

Question 27

Protecting Life: Osaman v UK

Answer 27

Police should protect life from known or avoidable dangers. The degree of dangers and the means available to combat it will be taken into account.

Question 28

S. 76 Criminal Justice and Immigration Act 2008

Answer 28

A person may use such force as is reasonable in the circumstances as they believes them to be for the purpose of: self defence; defence of another; defence of property; prevention of crime; lawful arrest.

Question 29

S. 3 Criminal Law Act 1967

Answer 29

A person may use such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

Question 30

Reasonable Force: Palmer v The Queen

Answer 30

In judging reasonable force, the defendant will not be expected to judge exactly what action is called for in the heat of the moment. Defendant only needs to show that they acted how they honestly and instinctively believed was necessary.

Question 31

S. 43 Crime and Courts Act 2013

Answer 31

Disproportionate force can be regarded as reasonable in the circumstances as the accused believed them to be when householders are acting to protect themselves or others from trespassers in their homes.

Question 32

S. 50 Children and Young Persons Act 1933

Answer 32

Children under the age of 10 are irrefutably presumed to be incapable of criminal responsibility (doli incapax).