Defences: insanity, duress, self defence Flashcards
(19 cards)
define duress
it is when D has committed an offence, but she has done so because she was threatened by X with death or serious injury if she refused
what does the defence of duress represents?
a concession (giving in) to human frailty (vulnerability)
- her decision to offend does not reveal a dangerous character deserving of criminal punishment
what are the 3 main parts for duress by threats
- Exclusions
- X’s threat and demand
- D’s response
what are the offences to which D cannot raise duress?
- treason - collection of offences against the state
- murder
- attempted murder
What did the case of Hasan confirmed
confirms that duress will be excluded where D voluntarily associated with X in circumstances where a reasonable person would have foreseen (objective standard) and a risk of future coercion
explain the element - X’s threat and demand
- content of the threat
- to qualify for the defence, X’s threat must be of death or serious personal injury
- a threat to rape D will be sufficient
- ABH will not be sufficient - who made the threat and demand, and who are they directed at?
- threats and demands must still come from another party, they cannot originate from D herself - content of the threat
- where X makes an explicit demand that D should commit an offence
- demand of criminal activity may also be vague/ implicit
explain the element- D’s response to the threat
3 main issues to be considered
- necessary causal link between X’s threat/ demand AND D’s offence
- direct - imminence of the threat and opportunities for escape
- D must have committed the offence because she had no other reasonable option to escape before the threat would be carried out - reasonable steadfastness test
- objective standard
- requires that D should display a reasonable fortitude in resisting the threat and demand from X
Define the defence of necessity
- based on Re A
- Brooke LJ set out 3 requirements for the defence
1. the act is needed to avoid inevitable and irreparable evil
2. no more should be done than is reasonably necessary for the purpose to be achieved
3. the evil inflicted must not be disproportionate for the evil avoided - ‘no but’ defence
what is self-defence
also known as public and private defence
- private defence provides a defence where D used force to protect herself or another from physical harm, or the protection of property
- public defence is where D used force to prevent a crime, or in effecting or assisting a lawful arrest
self defence are most commonly used in?
murder, robbery, false imprisonment, OAPA
what do courts need to consider when determining whether self defence can be used
- trigger
- response
- exceptions
explain the element of trigger - necessity for force (SD)
- was it necessary to use any force against V based on the facts that D believed them to be?
- test does not consider whether a reasonable person would have believed force was necessary
explain the element of response- a reasonable degree of force (SD)
- by asking whether the degree of force D used was objectively reasonable based on the subjective facts as D believed them to do
- middle ground between subjective and objective approaches
what are the exceptions for SD
- householder defendants
- intoxicated defendants
- intoxicated individuals cannot rely on honest but mistaken beliefs unless a reasonable sober person would have made the same mistake - defendants with mental disorders or delusions
what is insanity
when the D did not know act was legally wrong
what are the 2 requirements for insanity
- abnormality of mind
- substantially impaired his mental responsibility
explain the requirement - abnormality of mind
- from a condition of arrested or retarded development of mind or any inherent causes of induced by disease of injury
- emphasises importance of medical testimony
explain the requirement- substantially impaired his mental responsibility
- moral question for the jury
- was the responsibility substantially impaired?
