Chapter 6- General Defences

Question 1

Effect of general defence

Answer 1

D avoids liability entirely

Question 2

Intoxication defence

Answer 2

Prosecution must prove all the elements of the offence.

Two crucial distinctions
Substances which are intoxicants - Hardie 1985 indicated substance may be regarded as as an intoxicant when it produced effects which would be expect of it.

Voluntary and involuntary intoxication
Allen 1988- Voluntarily intoxicated even if you accidentally exceeds the dose recommended.

For V and Non V D must lack mens rea of the offence. Must be significantly intoxicated in order not to have formed the mens rea of the offence.

Question 3

Liability where D is involuntarily intoxicated

Answer 3

D to provide proof of intoxication to refute the prosecutions allegation of mens rea.

Kingston 1994

Question 4

Liability where D is voluntarily intoxicated

Answer 4

Case DPP V MAKEWSKI developed tests

1) specific intent
D can introduce evidence of intoxication asserting that at the time of the offence they did not have the required intention.
2) basic intent
D cannot introduce evidence of intoxication to explain why they were not aware of the risks.

D will be convicted of basic intent Lipman 1970

Question 5

Mistake defence

Answer 5

The denial of the mens rea as they could not have known of the risk of consequence.

B(a minor) v DPP

Or

D pleads defence which they cannot sustain on actual facts but argues that it would have been available had the facts been as D believed the to be.

BeckFord 1987

Question 6

Duress and other closely related defences

Answer 6

D compelled to commit offence because of direct threats of harm to them or someone who they are responsible

Or

Duress of circumstance- d compelled to commit offence due to the circumstances they are in, not as a result of threats.

Willer 1986

Question 7

Two questions jury ask on duress defence

Answer 7

Was the D impelled to act as they did as a result of what they reasonable believed to be a situation in which they had good cause to hear that death or injury would result?

If yea, would sober person of reasonable firmness have responded as D did?

If yes duress applies

Question 8

Defence if necessity

Answer 8

D must prove they acted on the basis that they chose the option of the lesser two evils. D must show something worse would have happened if they did not commit the offence

Question 9

Defence of duress threats cannot succeed if…

Answer 9

The crime is murder or attempted murder

D has been at fault in associating themselves with a person or group whom they knew might pressure them to commit and offence.

Question 10

Two plea of D for duress

Answer 10

Subjective test

Objective test

Question 11

Subjective test

Answer 11

Ds will must have been over borne by a threat of death or serious injury
Valderrama - Vega 1985

Threat must be against D themself or someone who D regards as reasonably responsible
Shayler 2001

Threat must be made with the purpose of compelling D to commit a particular crime
Hudson v Taylor 1971

Question 12

Brandford 2016

Answer 12

Hearsay duress will not acquit the D (not direct threat)

Question 13

Objective test

Answer 13

Graham 1982
Must be evidence that a sober person of reasonable firmness sharing D characterises would have responded as D did.

Relevant characteristics Bowen
Age
Sex
Pregnancy 
Serious physical disability 
Recognised mental illness or psychiatric condition

Question 14

3 Rules of self defence

Answer 14

A person may use reasonable force to defend themselves and their property or to prevent crime

Question 15

Exception to preventing crime self defence prevention of crime

Answer 15

Where child is under 10 as child under 10 cannot be legally capable of committing a crime

Question 16

4 common law rules under S76 criminal justice and immigration act 2008 on self defence

Answer 16

Reasonable force is to be judged on the facts and circumstances as D honestly believed them to be s76(3)

An intoxicated mistake about the facts is no defence s76(5)

Excessive or disproportionate force is not reasonable s76(6)6

D is not expected to measure their force of crime prevention s76(7)

Question 17

Requirements of self defence

Answer 17

Some force must be necessary

D can use self defence where they make a mistake providing the mistake was genuine (BeckFord) not intoxication during or after effects of intoxication (Taj 2018)

Actual force use must be proportionate- Palmer (D uses force they honestly and instinctively thought necessary)

Question 18

Effect of case Hussain and Martin excessive defence

Answer 18

Public opinion believed it’s wrong that D is restricted by how much force the householder could use against an intruder.

Court stated degree of force is not reasonable if it was grossly disproportionate in the circumstances
Householder rules S76(5A)

Question 19

S76(5A) determination of disproportionate force

Answer 19

Ask
Whether D force was reasonable in the circumstances

In household case wherever D uses disproportionate force the force will always be unreasonable

Question 20

Anticipatory self defence

Answer 20

D will not loose defence if they willingly put themselves in harms way and do not retreat. However it must be considered if they did not retreat where they could have, did they use excessive force. BIRD 1985