Affirmative (Justification) Defences Flashcards
(26 cards)
Affirmative Defences overview
- intro
- similrities
- differences
Affirmative Defences Definition
Affirmative Defences of reasonable reaction
Affirmative defences in criminal law permit a full acquittal where D reacts to an external threat with a reasonable and proportionate breach of the law.
Similarities of Affirmative Defences
Common Qualities
- Immediate or imminent threat (R v Palmer; R v Hasan; Re A)
- D acts to prevent harm (R v Gladstone(self defence); R v Conway(duress); Re A(necessity))
- D’s action NECESSITATES a breach of criminal prohibition (R v Cole(duress); Re A(necessity))
- D’s act is reasonable and proprotionate (R v Clegg(self defence); s.76 CJIA 2008(self defence); Perka v Queen(necessity))
Differences of Affirmative Defences
However, self-defence is a justification—rendering the act socially acceptable (Palmer v R)—while duress and necessity are excuses, absolving D of blame without legitimising the act (Howe; Re A).
Moreover, duress and necessity are unavailable for murder (Howe, Gotts), while self-defence can justify lethal force if proportionate. This essay will now evaluate the scope and coherence of each defence.
Self Defence Overview
- Definition/does it apply (CJIA s.76, R v Palmer)
- Necessary? (Only Way(Hasan), Threat(Hussey), Belief (Gladstone, O’Grady, Re A)
- Reasonable? (clegg, beckford, collins, Anthony)
- Conclusion/Ethics (Burden of proof, thorough, honest belief?)
Self Defence Definition Intro
A justification defence where D uses force to protect themselves, another person, or property, provided the force was necessary and reasonable in the circumstances as D believed them to be (s.76 CJIA 2008, R v Palmer)
Self Defence - Necessary?
2️⃣ Was force NECESSARY in the circumstances OR did D BELIEVE it to be?
- Apply facts → Was D under attack / threat? Could D escape? Absolutely no other choice?→ If force was necessary → go to next step.
- R v Hasan → the threat must be immediate and directed at D or someone close to them, leaving no safe avenue of escape.”
- R v Hussey → threat works though → Unlike duress, self-defence allows use of force to prevent harm, not merely to escape it, and is available even in the presence of alternatives like police intervention.
- The question of necessity is assessed on the facts as D honestly believed them to be, even if mistaken → R v Gladstone.
- Mistake does not need to be reasonable → only honest → (R v Gladstone).
- BUT drunken mistake → NOT allowed → O’Grady, O’Connor, later confirmed in Hatton
- Re A → in self-defence the victim must be a wrongdoer, at least in the eye of the defendant → It arguably stands at odds with Gladstone Williams, which uses a subjective test—an issue of academic debate
Self Defence - Reasonable?
Was the force REASONABLE in the circumstances?
- Force must be proportionate to the threat faced (Clegg – shooting a fleeing suspect was excessive).
- The threat, not the act, is key → Self-defence does not require waiting to be attacked. Pre-emptive force may be justified if reasonably believed necessary (Beckford v R).
- Householder cases → Force may be reasonable even if disproportionate (Collins).
- But if force is grossly disproportionate, it will fail, even in the presence of psychiatric vulnerability (R v Anthony).
because
The core of the defence is now governed by s76 CJIA 2008, which confirms that the question is whether the force used was reasonable in the circumstances as D believed them to be.
Apply facts:
- Was the force proportionate?
- Was it grossly excessive? → NO defence.
Self Dence Conclusion and Ehtics
4️⃣ Conclusion & Social Concerns
✅ If necessary and reasonable → FULL DEFENCE → acquittal.
✅ If not necessary or unreasonable → NO DEFENCE → liable
Ethical Concerns
- Once raised by evidence, the burden is on the prosecution to disprove self-defence beyond reasonable doubt → R v Taj
- Should D’s honest belief always be enough, even if unreasonable?
- Does s76 CJIA codify or confuse common law?
Duress Defence Overview
2 types, Graham Test, Limitations, Duress of Circumstances
Duress Defence Two Types
Two Forms:
- Duress by Threats – Compelled by threat of death/serious injury from another person.
- Duress of Circumstances – Threat arises from surrounding circumstances (e.g. natural or perceived danger).
Duress Defence Graham Test
Graham Test (R v Graham, approved in Hasan):
- Was D compelled to act due to a reasonable belief in a threat of death or serious injury?
- Would a sober person of reasonable firmness, sharing D’s relevant characteristics, have responded similarly?
Limits on Duress (1-2)
- Threat must be of death or serious injury (Quayle, A (RJ)).
- Threat must be immediate/imminent – no safe avenue of escape (R v Gill).
Limits on Duress (3-4)
- Threat must be to D or someone close (R v Wright).
- Must be a direct causal link between threat and offence (R v Cole).
Limits on Duress (5-6)
- No defence if voluntary association with criminals (R v Hasan).
- D may rely on reasonable mistake about threat (A (RJ)); may use characteristics (R v Bowen).
Limits on Duress
🔒 Limits on Duress (R v Hasan):
- Threat must be of death or serious injury (Quayle, A (RJ)).
- Threat must be immediate/imminent – no safe avenue of escape (R v Gill).
- Threat must be to D or someone close (R v Wright).
- Must be a direct causal link between threat and offence (R v Cole).
- No defence if voluntary association with criminals (R v Hasan).
- D may rely on reasonable mistake about threat (A (RJ)); may use characteristics (R v Bowen).
applies the Graham test; domestic/emotional threats
- Martin [1989] – applies the Graham test; domestic/emotional threatsDuress of circumstances applied where D drove under threat of his wife’s suicide, satisfying the Graham test.
first clear recognition of duress of circumstances
- Willer [1986] – first clear recognition of duress of circumstances.Duress of circumstances was recognised where D drove recklessly to escape a violent gang, even though no specific threatener was named.
shows duress applies beyond driving offences.
Pommell [1995] – shows duress applies beyond driving offences.
Duress extended beyond driving to unlawful possession of a firearm, provided D acted reasonably and relinquished it promptly.
Mistaken Belief in Duress
D may rely on reasonable mistake about threat (A (RJ)); may use characteristics (R v Bowen).
Conway [1989] – mistaken belief must be reasonable (clarifies contrast with self-defence)
Bystander Injury in Duress Defence
Petgrave [2018] –helpful if innocent harm results—shows defence isn’t automatically lost.
Regulatory Duress of Circumstance
S & L [2009] – for regulatory/non-violent contexts like terrorism risk or licensing breach.
Murder/Attempt & Duress of Circumstance
🛑 Unavailable for murder and attempted murder → R v Howe; R v Gotts.
Necessitty 4 Core Principles 2 limitations
Core Principles (Re A, Perka v Queen):
- Threat of inevitable and irreparable harm.
- D must act to prevent the harm.
- No viable legal alternative.
- Action taken must be proportionate and the lesser evil.
Point 1
The law rejects framing necessity as a choice between lives. It permits life-saving acts only where harm to another is an unavoidable and proportionate side-effect, not where death is the intended or instrumental means of preserving others’ lives ( Dudley & Stephens).
>
Point 2
Limits: Southwark LBC v Williams [1971] – necessity rejected as a defence for trespassing to escape homelessness, affirming that economic need alone cannot justify breach of law.
