1.4 General Defences

Question 1

What is the criterion for the use of force contrary to Article 2 Human Rights?

Answer 1

No more than absolutely necessary

Question 2

What are the three defences for the use of fatal force under Article 2 Human Rights?

Answer 2

• Defence of any person from unlawful violence (NOT PROPERTY)
• Effect a lawful arrest or to prevent the escape of a person lawfully detained
• Lawfully taken action for the purpose of quelling a riot or insurrection

Question 3

S3 (1) Criminal Law Act 1967

Answer 3

A person may use such force as is reasonable in the circumstances and 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 4

Define ‘reasonable force’

Answer 4

That the degree of force used was reasonable to the circumstances AS THE DEFENDANT BELIEVED THEM TO BE

Question 5

What force can be regarded as reasonable in householder cases?

Answer 5

Disproportionate force

Question 6

What is a householder case?

Answer 6

Someone protecting themselves or others from trespassers in their home

Question 7

Can householder cases include those who work and live in the same building?

Answer 7

Yes

Question 8

Can you use grossly disproportionate force in protecting yourself from trespassers in your home?

Answer 8

No, never

Question 9

What is an Osman letter / disruption notice?

Answer 9

Served on persons making them aware that the police have received information that they may be at risk of harm

Question 10

When must the police take preventative steps (R v Osman)?

Answer 10

When faced with ‘real and immediate risk to life’

Question 11

Can voluntary intoxication be raised as a defence for offences of specific intent?

Answer 11

Yes

Question 12

Can voluntary intoxication be raised as a defence for offences of basic intent?

Answer 12

No

Question 13

Can involuntary intoxication be used as a defence for offences of basic intent?

Answer 13

Yes

Question 14

Can involuntary intoxication be used as a defence for offences of specific intent?

Answer 14

Yes

Question 15

Does misjudging the amount of voluntarily ingested alcohol amount to involuntary intoxication?

Answer 15

No

Question 16

Can you raise a defence of intoxication if you become intoxicated to gain Dutch courage to commit an offence?

Answer 16

No, as the mens rea was formed prior to the intoxication

Question 17

When can a person use the defence of mistake?

Answer 17

If they negate the mens rea for that offence

Question 18

Are cases involving mistake judged objectively or subjectively?

Answer 18

Subjectively

Question 19

What is the appropriate test of ‘mistake’?

Answer 19

Whether the mistaken belief was an honest and genuine one

Question 20

Is there a duty for persons under arrest to comply with the police?

Answer 20

Yes

Question 21

Can a person use the defence of mistake if they assault an officer with the intention to resist arrest when the arrest is a mistake?

Answer 21

No - belief in one’s own innocence, however genuinely or honestly held, cannot afford a defence to a charge of assault with intent to resist arrest

Question 22

Is a defence of mistake one of facts or one or law?

Answer 22

Facts - all people are presumed to know the law once it is made

Question 23

What is the only exception to a defence of mistake being of facts and not law?

Answer 23

A person appropriating property in the belief that they have a legal right to it

Question 24

Can you raise the defence of mistake if you rape someone due to being intoxicated and mistaking them for someone else?

Answer 24

No

Question 25

What is duress?

Answer 25

Where a person is threatened with serious physical injury or death if they do not carry out a criminal act

Question 26

Is the threat of psychological injury included in duress?

Answer 26

No

Question 27

Does the threat of pain amount to significant physical injury under the defence of duress?

Answer 27

No

Question 28

Which offences are the threat of duress not available for?

Answer 28

Murder or attempted murder as a principal OR secondary offender

Question 29

Can threats of death or serious harm to loved ones allow for a defence of duress?

Answer 29

Yes

Question 30

Can duress be used for offences of strict liability?

Answer 30

Yes

Question 31

Under duress, the threat must be the _______ _____ for the defendant to commit the offence

Answer 31

driving force

Question 32

Under duress, the defendant must have acted as a ____ and ________ person would have acted in the circumstances

Answer 32

Sober and reasonable

Question 33

Under the threat of duress, when must the threat be intended to be carried out?

Answer 33

At or near the time of the offence

Question 34

When might the defence of duress be unsuccessful?

Answer 34

If it is determined that the defendant had an opportunity to seek help, escape or neutralise the threat and did not take it

Question 35

Can a defendant claim the defence of duress if they join a gang or terrorist group who then threatens them with serious harm or death?

Answer 35

Not if the group is inherently violent and the defendant was aware that it was dangerous

Question 36

What is duress of circumstances?

Answer 36

When the defendant is left with no alternative but to commit an offence in order to escape from a threatening situation or set of circumstances - lesser of two present evils

Question 37

Which offences is the defence of duress of circumstances not available for?

Answer 37

Murder, attempted murder, treason, offences under Misuse of Drugs Act

Question 38

Under the defence of duress of circumstances, the actions must be __________ and _________ to the threat presented

Answer 38

Reasonable and proportionate

Question 39

What is the defence of infancy?

Answer 39

Children under the age of 10 are incapable of criminal responsibility