C12 - Necessity defences

C12 - Necessity defences

1. SELF DEFENCE / PREVENTION OF CRIME

   • 1. Was it necessary to use force (subj)
   • 2. Was degree of force used reasonable (obj)
   • 1 - was it necessary to use force (subj)
     • D judged according to the facts as they had GENUINELY believed them to be, even if mistaken belief is unreasonable
       • R v Gladstone Williams
       • Genuine belief includes delusions from psychiatric disorder e.g PTSD
         • R v Seun Oye
         • however, doesn't change objective test of reasonableness
     • NO duty to retreat - R v Bird
     • if D is the initial aggressor, D can still use defence if V's response is wholly disproportionate and seriously threatens D.
       • R v Rashford
   • common law (self defence)
   • s3 Criminal Law Act 1967 (self defence in prevention of crime)
     • statutory defence (public defence)
       • s3 CLA 1967 - "a person may use such force as is reasonable in the circumstances in the prevention of crime, or assisting in the lawful arrest of offenders or suspended offers or of persons unlawfully at large."
         • allows person to defend themselves from any criminal form of attack
         • prevent attack on another person
         • defend their property (incl possessions such as jewellery, bags etc.)
       • same test as private defence - person may use such force as is (objectively) reasonable in the cirumstances they (subjectively) genuinely believed them to be
   • 2. was degree of force used reasonable (obj)
     • considered on the facts of the case, or if D made mistake, the facts D had genuinely believed them to be
     • KEY: force that is disproportionate will not be reasonable
       • differs in a "householder case" - must be grossly disproportionate.. Requirements:
         • force must be used by D while in building
         • D must not be tresspasser
         • D must have believed the victim to be a trespasser
         • "householder case" tests
           • 1. was degree of force grossly disproportionate in circumstances D had believed them to be?
             • if yes, no defence available, if no then:
           • 2. was degree of force reasonable in circumstances D believed them to be?
             • if reasonable - defence available, unreasonable - not available
     • consideration of balance between risk of harm to D and risk of harm to V, taking into account:
       • 1. person acting for a legitimate purpose may not be able to weigh exact measure of any necessary action
       • 2. evidence of person only having done what they honestly and instinctively thought was necessary is strong evidence of reasonable force.
       • R v Martin - danger passed, excessive force used

2. DURESS

   • not available for murder or attempted murder, even if they were a secondary party
     • R v Howe
   • R v Hasan - all tests for a successful defence
     • 1. Threat to cause death / serious injury
     • 2. directed to someone D reasonably regards themselves responsible for their safety
     • 3. Whether D acted reasonably (obj)
     • 4. Threats directly relate to crime committed by D
       • threats made in order to commit specific offence - R v Cole
     • 5. no evasive action D could have taken
     • 6. can't use defence if D voluntarily laid themselves open to threat
       • e.g joining a criminal gang
       • "defence of duress excluded when as a result of accused voluntary association with others, he ought to have foreseen the risk of being subjected to any compulsion by threats of violence"
   • 3 - Did D act reasonably? test
     • 1 - was D compelled to act as they did because they reasonably believed they had good cause to fear death / serious injury?
       • 2- if yes, would a sober and reasonable person sharing same characterisitics as D act in same way?
         • R v Bowen - relevant characteristics: age, pregnancy, physical disability, recognised psychiatric disorder

3. DURESS OF CIRCUMSTANCES

   • KEY CASE - R v Abdul-Hussain
     • imminent fear of death / serious injury to D or those he has responsibility over.
     • fear must operate on D's mind as to overbear D's will at time of committing act
     • no avenue of escape
   • R v Martin - same 2 part test for duress
     • 1 - was D compelled to act as they did because they reasonably believed they had good cause to fear death / serious injury?
       • 2- if yes, would a sober and reasonable person sharing same characterisitics as D act in same way?
   • available for all offences except murder and attempted murder

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