Rationale-based defences Flashcards
(53 cards)
1
Q
Beckford v The Queen [1988]
A
- D (police officer) shot someone he believed was shooting at him
- no gun was found -> D convicted -> trial judge said that the belief needed to have been reasonable
- conviction quashed on appeal -> test:
-> a person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself or another.
2
Q
R v Hichens [2011]
A
- D slapped his girlfriend cause she allowed her ex to come to their house, and D would get in a violent brawl with the ex
- Court held that in certain circumstances, it is permitted to use force against any innocent 3rd party in order to prevent a crime from being committed -> applicable for self-defence or use of force for prevention of crime under s3 of the Criminal Law Act 1967
- BUT applicability of defence depends on how likely it was for the crime to occur had the violence not happened -> here, violence was unnecessary
3
Q
Palmer v The Queen [1971]
A
- Ds were convicted of murder and sentenced to death
- judge directed that there were only 2 possible verdicts -> guilty of murder or not guilty
- D appealed that they should be allowed a verdict of manslaughter if self-defence is raised
- Court held that this was an all or nothing defence -> not partial
- “a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action”
- “a person attacked had only done what he honestly and instinctively thought was necessary that would be the most
potent evidence that only reasonable defensive action had been taken”
4
Q
Devlin v Armstrong [1971]
A
- D incited a riot & threw stones at police officers
- D argued she honestly believed they were about to do something wrong
- Court dismissed appeal -> D didn’t believe in a specific or imminent threat -> her actions were not justified
5
Q
A-G’s Ref (No. 2 of 1983) [1984]
A
- self-defence may allow D to store weapons to ward off an attack -> depends on the circumstances
- in 1981, lots of shops had been looted → defendant’s shop had also been attacked → D stayed in his shop, not sleeping, armed, to defend his shop
- the expected attack never happended → D stated to police that the purpose of the weapons were purely for defence of his shop – purely as a last resort
- Court of appeal said that general fear of violence isn’t enough
- D can defend themselves or their family from imminent atttacks
6
Q
R v Salih [2008]
A
- difference between an imminent and possible attack
- D was found to have a loaded pistol
- D said he had weapon with the intention of giving it to the police as an amnesty
- defence only applies if it’s an imminent not possible attack
7
Q
R v Cockburn [2008]
A
- D had rigged a booby trap on his shed
- a police officer was the one caught by the trap, and sustained injury
- D stated that people had been breaking into his shed
- Court held that only an imminent attack can justify pre-emptive measures
8
Q
R v Williams (Gladstone) [1987]
A
- D saw V attacking a youth and wrestled them off him
- it turned out the youth was a mugger and had been stopped by V
- D appealed that judge had misdirected by saying that the mistaken belief had to be reasonable
- Appeal allowed
- reasonableness is only relevant for establishing whether the belief was genuinely held
- once that is established, reasonableness has no part to play about the mistakeness of the belief
9
Q
The Queen v Dadson (1850)
A
- a police officer shot and wounded an escaping thief
- At the time, any degree of force could be used to arrest a fleeing felon but, when he fired the gun, he did not know who the thief was
- On the basis of the facts which the defendant actually knew, he had no justification to shoot the thief
- conviction upheld
10
Q
R v O’Grady [1987]
A
- D was an alcoholic
- he had drank with his friends
- they went to sleep - he woke up to being hit and mistakenly believed he had to fight back -> woke up in the morning and he was dead
- A defendant is not entitled to rely, so far as self-defence is concerned, upon a mistake of fact which has been induced by voluntary intoxication
11
Q
Taj v The Crown [2018]
A
- D was suffering from a drug and alcohol induced psychotic disorder, which caused paranoia
- D became convinced that Awain was suspicious
- He hit Awain around the head repeatedly with the tyre leaver
- case proceeded on the basis that he was not directly affected by drink and drugs at the time of the offence, but he was affected by the paranoia the earlier alcohol and drug misuse had caused.
- ‘attributable to intoxication’ could cover this case
12
Q
Re A (Children) (Conjoined twins) [2001]
A
- J & M were conjoined; M would eventually kill J
- one of the arguments put forward was the J was being attacked by an innocent party (M) and so the doctors needed to step in for her self-defence
- authority for the principle that a person should be allowed to use reasonable force to defend themselves against an unjustifiable attack even if the attacker isn’t criminally responsible
13
Q
R v Scarlett [1993]
A
- D was a landlord in a pub, 10 mins after closing time, victim (heavily built gentleman) approached bar
- D said he wouldn’t serve him, told him to get out or he’d put him out -> D took his arm to escort him out
- Victim swung his arm in an arc, D thought V would punch him, D grabbed the arms of the victim, and then pushed him on the wall -> as D turned to leave, V fell down the stairs, hit his head, and died
- D charged with manslaughter
- Conviction quashed -> if D thought that the amount of force he used was reasonable, he was entitled to a defence of mistaken belief
- important to balance the subjective belief of D with objective force used
some felt this was a misreading of Gladstone
14
Q
R v Owino [1996]
A
- D broke V’s wrist, hit her in the face
- even if D thought that it was necessary to use force (subjective) the amount of force was objectively unreasonable -> sorted out Gladstone & Scarlett issue
15
Q
Martin (Anthony) v R [2001]
A
- D shot at 2 burglars -> due to prior events he felt unsafe in his house
- burglars were leaving BUT D had paranoia disorder which messed up his risk assessment
- CoA says jury can take into account physical characteristics of individuals to see whether it affects their honest belief of force BUT didn’t agree psychiatric conditions should be taken into account -> arguably here his condition was important -> affected his view of the risk
16
Q
R v Canns [2005]
A
- D was a schizophrenic -> followed Martin
- look at all circumstances albeit not psychological disorder
17
Q
R v Oye [2014]
A
▪ expert evidence was that he was suffering from insane delusions and thought the police officers were spirits
◦ Jury rejected defences of self-defence and insanity and D was convicted
◦ Court held that Martin was good law
◦ “an insane person cannot set the standard for reasonableness”
18
Q
Collins v Secretary of State for Justice [2016]
A
- householder provision gives more leeway
- ◦ disproportionate use of force was okay -> just can’t be grossly disporportionate
◦ however, this seems to contravene s.2 of ECHR
* seen that court had misunderstood this provision -> it doesn’t authorise use of disproportionate use of force if it is unreasonable
19
Q
R v Ray [2017]
A
- D had relationship with E -> V came to house and aggressively yelled at D
- D ended up killing V -> convicted of murder
- court clarified that the use of disproportionate force by a householder does not automatically render the force unreasonable
- BUT if it was grossly disproportionate it wouldn’t be reasonable
20
Q
R v Bird (Debbie) [1985]
A
- D was 17, celebrating her birthday
- ex turns up with new girlfriend
- argument ensues, he slaps her & holds her to the wall
- she punches him, forgets she is holding a glass -> convicted of gbh
- D appealed -> judge was wrong to state that for self-defence, it was necessary to show an unwillingness to fight
- Court of Appeal allowed it, and conviction was quashed
- evidence that someone tried to retreat is good to show that D was not the attacker, but it is too much to state that it is required to prove self-defence
21
Q
R v Field [1972]
A
- D was told that V was coming to find him
- he didn’t leave the area
- When V found him, they fought, D beat V up
- D convicted -> Court said he should’ve left when he was told he was being hunted
- CoA stated that decision to use self-defence arises when there is a present threat -> no such threat when he was told victim was looking for him
- he shouldn’t be deprived of self-defence because he stood his ground
- “no duty to retreat could arise until the parties could see one another”
22
Q
R v Browne [1973]
A
- if defendant provokes victim into attacking him, just so he can claim self-defence - no defence of self-defence possible
23
Q
R v Rashford [2005]
A
- A person who starts a fight is still entitled to defend themselves if the victim goes beyond self-defence and escalates the fight
-> the defendant might be expecting a fist fight but the victim draws a knife - It is still the case that the defendant cannot rely on self-defence if they provoked violence intending that it would escalate
24
Q
R v Howe [1987]
A
- explains rationale of duress
- the exculpartory part of duress comes from the concession of human frailty
- it is part of the human condition not to be invulnerable
- we aren’t expected to be perfect
- confirmed rule in Graham
- BUT duress can’t apply to murder -> said that people should give up their lives for others
25
R v Symonds [1998]
- V was a drunk man who staggered up to the road and stopped D's car
- tried to pull D out of his car through the window
- D accelerated the car away from V - caused gbh
- D is acquitted on the gbh charge - due to self-defence
- not acquitted under the careless driving / dangerous driving
- D was allowed to plead duress
26
R v Riddell [2017]
- D tried to avoid paying for a taxi, ended up causing gbh to V (former taxi-driver)
- self-defence was raised but no one believed her story
- jury didn't think duress worked here
27
R v Martin (Colin) (1989)
- D’s wife threatened to kill herself if D did not drive his stepson to work on time, as it would result in the son losing his job
- D was charged with driving without license
- D pleaded duress -> but here judge held that jury should've focused on necessity
28
R v Graham [1982]
- provides general rule for duress
- 2 part test:
1. did D act the way he did because of a threat of death or serious injury?
2. would a reasonable person with the same characteristics as D have done the same?
29
R v Hasan (Z) [2005]
- A defendant is not entitled to rely on the defence of duress where as a result of his voluntary association with known criminals he had foreseen or ought reasonably to have foreseen the risk of being subjected to any threats
- confirmed Graham
- harsh -> policy requirement
- * Take this case to be the law -> narrower than Hudson
◦ if the threat is not immediate or basically imminent, then you could've / should've taken an alternate route
30
R v Willer [1986]
- defence of duress of circumstance should've been available -> group of kids hassled and threatened driver in a car who then mounted pavement to escape
- compared to Martin Cole (nominated crime -> duress of threat)
31
R v Safi [2004]
- group of men who were part of a secret organisation in Afghanistan that was politically opposed to the Taliban -> member caught by taliban -> the others hijacked plane (crime) and flew to UK
- this belief has to be reasonable -> doesn't have to be true -> could be a mistaken belief
- this is a higher standard than that applicable for self-defence
- there, you only need an honest belief
32
R v Rodger and Rose [1998]
* the source of the threat has to be external to the defendant
* the two escaped from prison, and were then caught and taken back
* their defence was that they were so depressed in prison that they were going to commit suicide if they didn't escape
* duress was not left to them
33
DPP for Northern Ireland v Lynch [1975]
- threat to damage property is not enough for duress
- stated that duress can apply to murder
34
R v Singh [1972]
- blackmail, threatening to expose one's infidelity -> not enough for duress
35
R v Baker (Janet) [1997]
- threat to psychological injury, even serious psychological injury, is not accepted for duress, even though it's classified as abh
36
R v Shayler [2001]
* CoA said that if a threat of a bomb to go off at a station is there, then the defendant would be able to plea duress in this case
◦ the fact that he was now aware of this potential event would make him feel responsible for all the people that would be affected -> he doesn't need to know anyone personally
- you need to feel responsible to a certain degree for people who may be affected
37
R v Hudson and Taylor [1971]
* D testifying in case against V -> threatened by a friend of V's and so D lied
* she said she felt threatened and that the person was sat in court with her
◦ the fact that he clearly wasn't going to attack her in the court doesn't take away the defence of duress
◦ the fact that he could carry out the threat later, when she was alone, is imminence enough
- court said that they don't insist that you go to the police if you can
38
R v Valderrama-Vega [1985]
◦ VV charged with smuggling drugs into the country
◦ he did this because his family had been subject to death threats in Colombia, and there were debtors who were threatening him AND he was threatened with blackmail about his homosexual activities
▪ qualifying threat -> threat to kill family
▪ extra threats -> blackmail
- D's response to the threat must be proportionate to the threat
- provided that the threat of serious injury or death is a 'but for' cause -> qualifying threat
- then you can consider all of the threats the defendant faces when deciding whether D's actions are proportionate
39
R v Bowen [1997]
- D was mentally challenged
- collates all rules from prior cases
1. even if the defendant is more susceptible to threats, these characteristics cannot be attributed to the reasonable person -> these unusual liabilities will hinder the defendant, not help them
2. if the defendant is in a category of people less likely to be able to resist threats, then the characteristics of these categories WILL be attributed to the reasonable person e.g. age, pregnancy, physical disabilities (not being able to run away), mental illnesses that tend to make sufferers susceptible to threats BUT characteristics due to self-induced abuse e.g. alcohol/drugs, then tough luck
40
R v Goliath (1972)
- other jurisdiction -> South Africa -> accepts that people value their own lives more and thus it is a defence for murder
41
R v Gotts [1992]
- can't plead duress for attempted murder
- considered as serious
- arguably it's not -> there's no dead body
- can plead duress for gbh
42
R v Dudley and Stephens (1884)
- historical hostility to necessity
- cannabalism and murder -> held that they had to
- this defence didn't exist
- common sense used to pardon them after finding them guilty
43
Buckoke v Greater London Council [1971]
- firefighters can't legally cross red on traffic lights
- common sense relied on -> it won't get to court
- still no necessity
44
R v Kitson (1955)
- had drunk, didn't drive -> woke to find car rolling down hill -> brought it safely to a stop -> convicted of drunk driving
- no necessity, no pardon, no common sense
45
Southwark LBC v Williams [1971]
- brought the slippery slope argument forward for necessity
- didn't want to allow defence
- homeless people were squatting over winter in empty house
46
Gillick v West Norfolk and Wisbech AHA [1986]
- doctors giving contraceptives to kids
- laid foundation for necessity -> G argued doctors are complicit in rape if they do this
- Court for policy reasons wanted to apply argument that they can -> fudged mr -> smushed intention and motive -> we know they're different -> doesn't matter -> point is that best interest necessity entered mainstream
47
In Re F v West Berkshire Health Authority [1990]
- F was institutionalised -> she's got young mental age -> can she be sterilised without her consent cause she doesn't understand
- this led to best interest necessity -> it was in her best interests
- court said you should always ask court when you have time whether something will be legal under necessity
- Test: provided you are the right person to intervene, you should do what is in V's best interest if there is no time to go to court
- otherwise go to court.
48
R (on the application of Nicklinson) v Ministry of Justice [2013]
- can't be in a person's best interest to die -> this is essentially substituting consent -> BUT court stayed out of this -> 5 criteria for when to get involved
- court didn't allow for best interest necessity here
49
St. George’s Healthcare NHS Trust v S [1998]
- V didn't want a c-section -> doctors said there was mortal danger for her and baby -> she said nope
- doctors went to court -> court said tough - can't substitute consent -> it's what she wants -> V's consent overrules foetus' interests
50
R v Pommell [1995]
- lesser evils necessity -> still hostile
- D said they were going to hand in the gun, but had taken it from someone who would've done something bad -> Court said there was a reasonable explanation why he didn't go to police immediately -> late at night - defence was available
51
Re A (children) (conjoined twins: surgical separation) [2001]
- didn't want to set a precedent but did
- it's the lesser evil precedent
- it isn't in M's best interest to die, but they would save one for two
- 3 step test:
1. act must avoid inevitable and irreparable evil
2. should be no more than reaosnably necessary to achieve 1.
3. evil inflicted must not be disporportionate to evil avoided
- should doctors have said yes?
- No -> Court played God, essentially sentenced child to death, should've told doctors to do what they believe and then hope it doesn't go to court (BUT parents were catholics, they probably would've sued)
52
R v Thacker [2021]
- 15 people charged with terrorism -> tried to stop a plane sending people to certain death
- court first denied that it was terrorism & then obiter argued that necessity shouldn't apply in these cases cause you should always try to change public authorities' view
53
R v Jones [2006]
- obiter -> once again, no one likes necessity
- D's action should be reasonable -> in context of a functioning state
- apprehension of acts contrary to public interest cannot justify commmission of criminal acts
