General Defences Scenario Plans Flashcards
(18 cards)
CONSENT INTRO
consent is a defence which can be used for all defences, other than murder as euthanasia is illegal. it can be difficult to establish consent in cases involving death due to the nature of consent generally being verbally implied.
CONSENT DANGEROUS ACTS
consent can be used or dangerous acts as shown in rv slingsby. if the acts are not unlawful, they can consent to an act which leads to death. however, there is inconsistent law in this area in reference to minor injuries. in r wilson, it was held that an act was not unlawful in the privacy of own home, however in r v brown - it was held to be unlawful.
CONSENT MINOR INJURIES
ag ref no6 of 1980 established circumstances where you can consent to minor injury. the list is not exhaustive but includes properly conducted sports, lawful correction, surgical interference and dangerous exhibitions.
CONSENT IMPLIED
consent can also be implied. this includes things such as jostling, hand shaking and tackling in football as shown in r v wilson and pringle. r v barnes showed that there is a line drawn between consented injuries in sport
CONSENT REAL
however, it must be established that consent is real and not based on deception. r v tabassum said that consent from fear does not exist, and consent in deception does not exist as the act consented to is not done. furthermore, you can only consent to risks you are aware of as shown in r v dica.
CONSENT GENUINE BELIEF
a genuine belief in consent is available, and goes to the jury to decide as shown in r v aitken.
SELF DEFENCE INTRO
self defence is defined in beckford as a defendants entitlement to use reasonable force to protect himself, others for whom he is responsible for, and his property.
SELF DEFENCE REASONABLE FORCE
reasonable force was outlined in the criminal justice and immigration act 2008. this statute declared a person may not be able to weigh to a nicety to the exact measure of reasonable actions, and that a defendant only doing what they honestly and instinctively thought was necessary constitutes evidence for reasonable action taken. this is taken into account in cases where the threat is present, as once the threat has passed the defence is no longer available, as shown in r v hussain.
SELF DEFENCE HOUSEHOLDER CASES
the crime and courts act 2013 showed that householder cases are held to a different reasonable degree. a case can be established as a householder if: force is used while inside a dwelling, the defendant was not a trespasser, and the defendant beloved the victim to be a trespasser. this gives a wider defence, as only grossly disproportionate force can be considered unreasonable, as opposed to disproportionate as shown in collins v sec state for justice 2016.
SELF DEFENCE MISTAKES
mistakes regarding force used is decided in regards to reference of the circumstances the defendant believed them as shown in the criminal justice and immigration act. this is decided by establishing if the defendant genuinely believed this was necessary, and it doesn’t matter if this is a reasonable belief, as shown in r v gladstone williams.
DURESS BY THREAT INTRODUCTION
duress by threat was outlined in attorney general v whelan as ‘a person acting because the alternative is to be seriously harmed or killed. in order to establish duress by threat, the threat must be ‘threats of immediate death or seriously personal violence, so much as to overhear the ordinary power of human resistance’.
DURESS BY THREAT INVALID
duress by threat cannot be used against the offences of murder or attempted murder, as established in r v Howe and r v gotts.
DURESS BY THREAT THE THREAT
the threat must be of serious harm or threw at against the defendant, a partner or family member, as shown in r v valderrama-vega. the tests under graham are: was d compelled to act due to reasonable belief to fear death or serious injury. under r v martin, a genuine belief does not have to be reasonable. the second test is if a sober person of reasonable firmness would have responded the same in these circumstances. in r v bowen, it was established that certain characteristics such as pregnancy or mental illness could be taken into account in cases.
DURESS BY THREAT ELEMENTS
the threat must also establish there elements under r v abdul hussain. this establishes they must be threats of immediate peril or injury, they must operate on mind at the time of the act, and the excecution of the act does not have to be immediate. the threat must also be to commit a specific offence under r v cole. if it is vague it doesn’t count due to the element of choice.
DURESS BY THREAT SAFE ESCAPE
finally, there must be no avenue of safe escape. police protection is it a guarantee of safety under r v hudson and taylor.
DURESS BY THREAT SELF INDUCED
this defence can’t be used if it is based on intoxication or self induced. this includes joining a criminal gang (rv sharp), being involved in organised crime (rv shepherd), and finally socialising or involving with dangerous individuals (r v hasan).
DURESS BY CIRCUMSTANCE APPLIED
duress of circumstance is defined in rv willer as if, from an objective standpoint, the defendant was acting in order to avoid threat or death or serious injury’. this defence usually applies to driving offences, however it applies to all crimes but murder, attempted murder and treason as shown in r. v pomell.
DURESS BY CIRCUMSTANCE TESTS
the tests from rv graham are used to establish if duress can be used. the tests under graham are: was d compelled to act due to reasonable belief to fear death or serious injury. under r v martin, a genuine belief does not have to be reasonable. the second test is if a sober person of reasonable firmness would have responded the same in these circumstances. in r v bowen, it was established that certain characteristics such as pregnancy or mental illness could be taken into account in cases.
r v cairns established that the threat can be perceived.
