Criminal law (Defences 3)

Question 1

What is the defence of provocation?

Answer 1

The defence of provocation is when you commit a crime (specifically murder) without any thought of what doing

Question 2

Why is provocation not a complete defence?

Answer 2

Because it can only be used as a partial defence to murder to reduce it from a charge of murder to one of culpable homicide

Question 3

Can provocation be used a plea of mitigation

Answer 3

yes it can for sentences in other crimes

Question 4

What are examples of a case for provocation?

Answer 4

Fenning v HMA 1985 SCCR 219 and Drury v HMA 2001 S.L.T. 1013

Question 5

What are the three requirements for the defence of provocation?

Answer 5

1.) Loss of self control
2.) An immediate response
3.) An appropriate and proportionate response to the nature of the provoking act

Question 6

Test of proportionality in respect of violence for test for loss of self-control in Cosgrove v HMA 1990 JC 333

Answer 6

Can be in response to verbal taunts but they must be extreme

Question 7

Test of proportionality in respect of violence for test for loss of self-control in Thomson v HMA 1986 S.L.T. 281

Answer 7

Accused stabbed the victim repeatedly with a knife in response to a minor argument
-The violence was grossly disproportionate

Question 8

What is the response must be proportionate for the case of Thomson v HMA 1985 448 SCCR?

Answer 8

A minor assault is clearly insufficient for a plea of provocation which would palliator the taking a deceased’s life by stabbing
-It takes a tremendous amount of provocation to palliate stabbing a man to death

Question 9

What is the test for loss of self control for the provocation by reason infidelity?

Answer 9

The test is objective as would an ordinary person been liable to react in the same way
-The case example is Drury v HMA 2001 S.L.T. 1013

Question 10

Why is the case of HMA v Hill 1941 J.C.59 significant for the defence of provocation?

Answer 10

Verbal confirmation of infidelity may be enough for provocation
-Suspected infidelity was confirmed by wife

Question 11

Why is the case of Mckay v HMA 1991 J.C.91 significant for the defence of provocation?

Answer 11

Couple need not to be married
Provocation can be argued provided the couple are in a sexual relationship

Question 12

What is the Scot’s Law Test for provocation ‘ordinary person test’?

Answer 12

if the accused acts in a way that is an overreaction (i.e not the ordinary person) then the court would be entitled to conclude the accused has acted in a way that demonstrated the mens rea for murder

Question 13

Is self-defence a complete defence?

Answer 13

yes

Question 14

What is self defence?

Answer 14

Self-defence is when the accused uses justifiable actions in retaliation against someone that uses unlawful force

Question 15

What must self-defence relate to

Answer 15

self-defence must relate to the violence used

Question 16

Is there a requirement to demonstrate a loss of self control for self-defence?

Answer 16

There is no requirement to demonstrate a loss self control

Question 17

What are the three requirements for self-defence?

Answer 17

1.) Imminent danger to life or limb
2.) No reasonable opportunity to retreat
3.) reaction must be proportionate A

Question 18

For self defence in the Pollock v HMA 1998 S.L.T.880 is it legitimate to act in defence of others for the prevention of rape?

Answer 18

-A killed B to prevent B from raping A’s girlfriend
-Argument was accepted as possible but later rejected
-Violence was not proportionate- the assessment of proportionality of the response is a subjective one and the violence used must not be excessive

Question 19

If someone is being lawfully attacked can they use self-defence?

Answer 19

yes as if a man sees another man being unlawfully attacked, he is entitled to stop that attack (imminent danger)

Question 20

For the excuse of ‘reasonable belief’ for self-defence, what does the case example of Leiser v HMA 2008 HCJAC 42 tell us?

Answer 20

-in this case the accused claimed he acted in self-defence on the basis that the deceased was about to attack him with a knife
-the accused’s argument of ‘reasonable belief’ for self-defence was rejected as there must be reasonable grounds for the belief

Question 21

for the excuse of ‘proportionate response’ for self-defence what happens in the case of Fenning v HMA 1985 S.L.T. 540?

Answer 21

-The accused claimed that he used self-defence as he was threatened by the victim who had a knife
-Accused hit the victim repeatedly with an air rifle and also hit his head on a stone
-The repeated blows constituted cruel excess meaning that self-defence was rejected

Question 22

How does a person have no opportunity to retreat?

Answer 22

If a person who is under threat cannot escape, and has to use self defence to protect himself from any danger

Question 23

For the accident of a crime is there any mens rea and actus reus?

Answer 23

Yes there is actus reus even if done by accident but no mens rea

Question 24

for an accident if the accused lacks the mens rea, can he be held guilty?

Answer 24

no if the accused lacks the mens rea because it was an accident, they are not guilty, irrespective of the circumstances of self-defence

Question 25

Can self-defence and an accident be argued at the same time?

Answer 25

No both an accident and self defence cannot be argued at the same time as for accident actus reus is there but lacks men’s rea of intention to injure.
With self-defence mens rea and actus reus