General Defences

Question 1

Automatism can be used as a defence where a person cannot be held liable due to their total loss of self control. What factors can be included in an involuntary reflex action?

Answer 1

Internal factors - sneezing fits and cramps causing involuntary actions
External factors - swarm of bees

Question 2

Under what circumstances can intoxication be a defence?

Answer 2

Voluntary intoxication - no defence for basic intent offences but can for specific intent
Involuntary - defences for both

Question 3

I am on a night out drunk. I pick up my phone and smash it as a laugh. However it turns out it was someone else’s phone. Do I have a defence?

Answer 3

Yes - crim dam accepted

Rape and murder/manslaughter not accepted.

Question 4

Who must prove insanity?

Answer 4

Defence on balance of probabilities.

Question 5

Joe threatens to tell my wife that I am cheating on her unless i do a criminal act. Can i rely on the defence of duress by threats?

Answer 5

No only relates to threat of death or serious physical injury

Question 6

Marital coercion

Sally is coerced into committing a burglary. Sally goes out, commits the burglary and brings back the loot to Stephen. Can she rely on the defence of marital coercion?

Answer 6

No - he must have been present

Question 7

What is the main difference to the defences of duress by threats and marital coercion?

Answer 7

Marital coercion does not have to involve threats involving death or serious bodily harm, it can be anything. Duress by threats must involve death or serious injury.

Question 8

What if I repeatedly punch a burglar. The court determine that my actions were excessive. Can i rely on self defence?

Answer 8

Yes - it is only if my actions are grossly disproportionate

Question 9

Under what circumstances can lethal force be used?

Answer 9

In defence of any person (not property)
In order to effect a lawful arrest
In order to prevent someone lawfully detained escaping
To quell a riot

Provided it is absolutely necessary and proportionate.

You cant do it to prevent a crime taking place.

Question 10

What test of the use of force must be applied if someone uses lethal force?

Answer 10

Honest held belief it was necessary
Reasonable in circumstances
No more than absolutely necessary
Such force was necessary to protect life of another

Question 11

What offences are duress not a defence to?

Answer 11

Murder and attempted murder

Question 12

Can a wife rely on marital coercion defence for any offence?

Answer 12

No - does not count for murder or treason.

The defence of ‘marital coercion’ may be raised where a “wife”, charged with any offence other than treason or murder, maintains that she committed the offence in the presence and under the coercion of her husband

Question 13

Can you rely on duress if the principal only threatens you injury?

Answer 13

Yes but must be serious injury or death.

Question 14

For duress by threats, must the threat be towards the victim?

Answer 14

It is a threat of death or serious injury towards themselves or another.

The threat must have been capable of being carried out more or less immediately.

Question 15

Jim joins a gang that he knows to be violent. The leader threatens him saying he will break his legs unless he commits a robbery. Can he rely on defence of duress?

Answer 15

No as he has voluntarily exposed themselves to an otherwise avoidable risk of duress.

Question 16

Can you rely on the defence of duress if there is a threat of serious psychological injury?

Answer 16

No must be physical

Question 17

Can marital coercion defence be used even if not a risk of serious injury/death?

Answer 17

Yes

Question 18

Elderly husband and wife agree to a suicide pact. They get a druggie to inject them. Husband doesn’t die. Manslaughter?

Answer 18

Yes

The Homicide Act 1957, s. 4 states: “ (1) It shall be manslaughter, and shall not be murder, for a person acting in pursuance of a suicide pact between him and another to kill the other or be a party to the other being killed by a third person.

Question 19

When does the defence of inadvertence and mistake apply?

Answer 19

The defence applies where there was a genuine and honest belief.

Doesn’t matter if it is reasonably held or honestly held.

Question 20

Is insanity a a question of law or medical opinion?

Answer 20

Law

Question 21

We charge a suspect with murder. Defence raise insanity. Who has the burden of proof?

Answer 21

Defence must prove balance of probabilities that he was suffering from insanity.

Question 22

Could a defence of ‘mistake’ provide a defence to assault with intent to resist arrest?

Answer 22

Yes R V BRIGHTING 1991

Question 23

Can you use the defence of mistake if you are mistaken about the law?

Answer 23

No everyone is presumed to know the law, mistake relates to a mistake of fact only.

Question 24

If someone forms a genuine but mistaken opinion that the arrest was unlawful could a defence of mistake be applicable to the charge of assault with intent to resist arrest?

Answer 24

No - people are not entitled to form their own view as to the lawfulness of that arrest. They have a duty to complex with the police and hear the details of the charge against them.

Question 25

Voluntary intoxication can be raised as a defence for what charges?

Answer 25

To a charge of specific intent and not basic intent.

Question 26

For overcome by grief defence, does the sudden loss of control have to be sudden?

Answer 26

No not anymore.

Question 27

If someone kills someone while sleep walking, what defence would they rely on?

Answer 27

Automatism

Total lack of control.

Question 28

For duress, can the threat of death or serious injury be towards a third party?

Answer 28

Yes as long as the threat is capable of being carried out more or less immediately

Question 29

For duress of circumstances, what is the only thing you need?

Answer 29

An honest belief.

Threat could be bonkers.

Question 30

We know self defence can be used as a defence in relation to property. What is the important thing to remember?

Answer 30

The property must be there and then. Self defence just has to be an honest held belief.

Question 31

If a householder uses disproportionate force on a trespasser, are they guilty?

Answer 31

No only grossly disproportionate

Question 32

If someone wants to rely upon duress of circumstance. Do we need to show that the suspect had RGB that someone would have killed him or caused serious injury?

Answer 32

No

He must only have an HONEST belief. It does not have to be reasonable.

Question 33

Could amnesia after a sexual assault give someone a defence of automatism?

Answer 33

Yes

Question 34

Are defences about reasonable grounds to believe or honest belief?

Answer 34

Honest

Question 35

I crash my car saying i was distracted by a cat. For the defence of automatism, what must i show?

Answer 35

That i had no control whatsoever at the time of the accident.

Significant impairment not enough - TOTAL DESTRUCTION OF VOLUNTARY CONTROL.

Question 36

A geezer is threatened that unless he gives over 20 grand, he will be killed.

The geezer then decides to rob a bank to pay this guy. Can he rely on the defence of duress?

Answer 36

No he was not threatened with violence unless he committed the offence.

The threat must be made on the condition than an offence is committed.

Question 37

Suspect charged with TTK wants to raise the defence of automatism based on the effects of her pre-menstrual tension. Could she do this?

Answer 37

No the court of appeal refused as this would mean she would be released without any control over her.

Question 38

If i see a friend grappling with another man and i punch the other guy only to find out that he is a police officer, can i rely on the defence of mistake?

Answer 38

Yes if i had a genuine and honest belief.

Question 39

If Euan shoots someone dead in self defence. What do we need to show? Do we have to show a honest belief?

Answer 39

We just have to show that the force used was absolutely necessary and strictly proportionate to the legitimate reason.

Nothing about belief.

Question 40

Can you use lethal force to prevent riot?

Answer 40

Yes

Provided it is ABSOLUTELY necessary and STRICTLY PROPORTIONATE.

Question 41

If a murder suspect is successful with regards to their self defence defence, can it be manslaughter now?

Answer 41

No the Crown does not get a second chance. Must be acquitted.

Question 42

Where a defendant wishes to raise the special defence of diminished responsibility, who has the legal and evidential burdens of proof?

Answer 42

This is one of the exceptional circumstances where the accused bears both the legal and evidential burdens of proof to make out a defence.

Question 43

If i unlawfully take a sample in custody and it later proves to be crucial in the case, is it inadmissible?

Answer 43

It should be fine as the means to obtain the sample has done nothing to cast doubt on its reliability and strength.