Flashcards
Chapter 6 : General Defences
Cards in this deck (30)
- 1What is a general defence?A general defence is one that may be raised to all (or most) crimes. A defence (like diminished responsibility) only relates to the offence of murder. Where a general defence is successfully pleaded, usually the defendant avoids liability entirely. The burden of proof in these cases will be on the prosecution (meaning once the defence has been introduced, the prosecution must disprove it). The defendant must present some credible evidence in support of the defence before the prosecution is put to the task of disproving it.
- 2What is meant by intoxication?It is generally acknowledged a great deal of criminal behaviour (particularly spontaneous acts of personal violence, aggression and damage to property) is associated with the consumption of alcohol or drugs. Intoxication is implicated in many cases of theft (no doubt often to sustain drug taking habits). But why allow the defendant to plead intoxication, when intoxication may be the root of the problem? The prosecution must prove all the elements of the offence. If intoxication suggests one of those elements was not present (intention or recklessness for example), why should the defendant be prevented from introducing evidence of the intoxication?
- 3A first step in confronting the issues relating to intoxication is to make crucial distinctions. What are these two distinctions?1. Between substances which are regarded as intoxicants and substances which are not; and
2. between intoxication for which the defendant is responsible (voluntary intoxication) and intoxication for which he is not responsible (involuntary intoxication). - 4What is meant by "substances which are intoxications"?Any substance which is commonly known to produce the kind of effects generally associated with intoxication can be regarded as an intoxicant. The effects including changes or mood, perception and consciousness, reduction in inhibitions, impaired ability for self-control, reduced motor skills, ability to react, increased difficulty in forming judgments and assessing consequences of actions.
- 5What is meant by voluntary and involuntary intoxication?Defendant will be voluntary intoxicated where he knew that he was consuming an intoxicant or where he realised that he might be taking an intoxicant. Defendant will be involuntarily intoxicated when he consumed an intoxicant without knowing he has consumed the substance at all or when he neither knew nor should have known it was an intoxicant (where drinks or food is spiked)
- 6For both voluntary and involuntary intoxication the defendant must lack the mens rea of the offence due to his intoxication. True or false?True. The defendant will need to be significantly intoxicated in order not to have formed the mens rea for the crime that he commits. Many defendants who were intoxicated will not plead intoxication as they were not sufficiently drunk or drugged to claim that they did not have the mens rea for the offence they committed.
- 7What liability does the defendant have when he is involuntarily intoxicated?The rule is that the defendant is entitled to introduce evidence of the intoxication to refuse the prosecution's allegation of mens rea, whether the offence requires proof of intention or recklessness. But the effect of the intoxication must be that the defendant did NOT form the required mens rea. The defendant cannot claim that, though he knew what he was doing, he would not have done it but for the intoxication.
- 8What liability does the defendant have when he is voluntary intoxicated?The rules relating to involuntary intoxication were established in DPP v Majewski. They are based on a distinction between offences of specific intent and offences of basic intent. Specific intent offences are those that require proof of intention and nothing less (murder, GBH with intent, theft and robbery). Basic intent offences are those where proof of recklessness is sufficient (inflicting bodily harm without intent, assault causing ABH, assault, battery and criminal damage).
- 9Explain the first rule in Majewski.1. If the defendant is charged with a specific intent offence, he may introduce evidence of intoxication in asserting that, at the time of the offence, he did not have the required intention. This does not mean that anyone who was drunk inevitably avoids liability for such an offence. The effect of the intoxication must be evaluated by the jury and the defendant avoids liability if the intoxication meant the defendant did not form the necessary intention for the defence. The defendant must have been so intoxicated as to be unable to form the necessary intention for the offence. The issue is whether the defendant did / did not form the intention. It is not whether he was capable of forming any intention at all. This distinction is important because the defendant may argue he did not form the particular intention while being prepared to concede that he had formed some intention. Where the defendant forms an intent to commit a crime but then gets drunk so as to acquire "Dutch courage", he cannot use the defence of intoxication. This is supported by Gallagher.
- 10Explain the second rule in Majewski.If the defendant is charged with a basic intent offence he is simply not allowed to introduce evidence of voluntary intoxication to explain why he was not aware of a risk. Therefore, if he has no other independent argument to advance, it is almost certain he will be convicted. A person who raises evidence of intoxication to avoid conviction for a specific intent offence will inevitably be convicted of any associated basic intent offence. In Majewski it was held that voluntary consumption of intoxicants is itself a reckless course of conduct which supplies the mens rea element of an offence that may be missing at the time of the commission of the offence itself. The rules relating to basic intent offences in Majewski do not apply to offences involving negligence. In these offences the conduct is judged against the standards of reasonable sober person, so his conduct cannot be excused by intoxication.
- 11What is meant by "mistake"?Generally, the defendant's plea of mistake is merely a denial of mens rea. In saying he made a mistake, he says that he could not have intended or known of the risk of a consequence, or know or have been aware of the risk of the existence of a particular circumstance. If the offence requires proof of intention / knowledge or subjective recklessness, then an honest mistake is evidence of lack of mens rea. There is no need for the mistake to have been reasonable and what is important is that it prevented the defendant from having the necessary mens rea. Another way in which mistaken can be relevant is when the defendant pleads a defence which he cannot sustain on the actual facts but argues it would have been available had the facts been as the defendant mistakenly believed them to be. This is supported by Beckford.
- 12What is meant by the general defence "duress"?In duress, the defendant argues he was compelled to commit an offence because of direct threats of harm to himself or someone for whom he is responsible. Where a person is threatened that he will be killed if he does not commit an offence this is "duress by threats". "Duress of circumstances" applies where the defendant is compelled to commit a criminal act by the circumstance in which he finds himself. This is supported by Willer. The defence will only be available if the defendant acts reasonably and proportionately to avoid a threat or death or personal injury.
- 13What was held in Pommell?It was held that the defendant, who was found in unlawful possession of a firearm which he claimed to have taken from someone to prevent a crime, should not be allowed to succeed with the defence, as he continued to possess the gun for too long after the danger had gone away. This case was important as it recognised that duress of circumstance is a general defence.
- 14The defence is sometimes available if (from an objective point of view) the defendant can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury. True or false?False. The defence is ONLY available if (from an objective point of view) the defendant can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury.
- 15What two questions must the jury determine, where the defence is open to the defendant?1. Was the defendant impelled to act as he did as a result of what he reasonably believed to be a situation in which he had good cause to fear death or serious injury would result?
2. If so, would a sober person of reasonable firmness, with the characteristics of the defendant, have responded as the defendant did?
If the answer to these two questions is yes, then the defendant must be acquitted. - 16What case supports that "duress of circumstances" cannot be a defence for murder or attempted murder?Dudley and Stephens.
- 17What are the four differences between duress of circumstances and necessity?1. Duress can never be a defence to murder or attempted murder, whereas, in limited circumstances, necessity can.
2. For duress of circumstances there must be a threat or death or serious bodily harm to the defendant or another. This is not the case with necessity.
3. To plead necessity, the defendant will normally have to demonstrate that he took the option which was "the lesser of two evil (i.e. something worse would have happened if he had not committed the offence). This is not a requirement of duress.
4. Duress can be based on a mistaken belief. This is not the case with necessity. - 18In the defence of duress, pressure is applied to the defendant in order to compel the defendant to commit an offence. This is an easy defence for defendants to claim and difficult for the prosecution to disprove. True or false?True. Therefore, the requirements were tightened. This defence cannot succeed if:
1. The crime is murder or attempted murder - In such cases, the defendant is expected to withstand the pressure. This is supported by Howe.
2. The defendant has been at fault in associating himself with a person or group whom he knew (or ought to have known) might put pressure on him to commit an offence - This applies to terrorist groups and criminal gangs. - 19If the offence is not murder or attempted murder and there is no voluntary association with violent criminals, the defendant's plea of duress must satisfy two tests. What are the two tests?1. The subjective test; and
2. The objective test. - 20What is "the subjective test"?The subjective test is that the defendant's will must have been overborne by:
1. A threat of death or serious injury.
2. The threat must be against the defendant himself, or someone for whom the defendant regards himself as reasonably responsible.
3. The threat must be made with the purpose of compelling the defendant to commit a particular crime.
4. The defendant may be able to rely on the defence of duress even where he is mistaken as to the facts giving rise to the threat - The court will need to be satisfied that the defendant honestly believed in the existence of the threat and that he had some reasonable grounds for believing he was being threatened. - 21What is "the objective test"?The objective test was established in Graham. There must be evidence that a sober person of reasonable firmness, sharing the defendant's characteristics, would have responded as the defendant did. This requirement means that even if the defendant's will was overborne by the threats, his defence will be unsuccessful if he did not display the courage and fortitude to be expected of the average person. The case Bowen gave examples of characteristics which are and are not relevant to this part of the test (age, sex, pregnancy, physical disability and mental illness being relevant)
- 22What is meant by "self defence"?The law allows the defendant to use force in three situations: to protect himself or others, to protect property or to prevent crime. In most cases when the defendant acts to protect himself, others or property he will also be acting in the prevention of crime. If he is not acting for one of these reasons the defence will fail
- 23Which act states the four common law principles on self-defence and preventing of crime and what were they?S76 Criminal Justice and Immigration Act 2008 states the four common law principles on self-defence and prevention of crime:
1. the reasonableness of force is to be judged on the facts and circumstances as the defendant honestly believed them to be;
2. An intoxication mistake about the facts or circumstances is no defence;
3. excessive or disproportionate force is not reasonable; and
4. The defendant is not expected to weigh to a nicety the exact measure of any necessary action and evidence of honest and instinctive self-defence or prevention of crime will be strong evidence that only reasonable force was taken. - 24What are the two conditions that must be satisfied for the defence of self-defence to apply (whether it be prevention of crime, protection of oneself or another or protection of property)?1. The use of SOME force must be NECESSARY - This must be answered in relation to facts as they actually were or in relation to the facts as the defendant believed them to be, even if he was mistaken. Any mistake as to the facts merely has to be genuine and it does NOT have to be reasonable (unless the mistake is induced by involuntary intoxication).
2. The ACTUAL force used must be PROPORTIONATE - An objective test is applied here (i.e. would a reasonable person consider that an appropriate degree of force was used in view of the danger which existed or which the defendant genuinely believed to exist). It must be remembered that the defendant may well be experiencing a great deal of fear and will probably have little time to make careful judgments about the level of force to be used. The requirement for proportion therefore permits the use of extreme (even deadly) force to counter a threat of death or serious injury and of lesser force where less serious injury or damage to property is threatened. - 25What is excessive self-defence?There is no restriction on the offences to which self-defence / prevention of crime can be a defence. In particular, the defence can be and often is pleaded to a charge of murder. If, however, the defendant kills when using more force than is proportionate he will lose the defence entirely and will be convicted of murder, not merely of manslaughter. This is supported by Martin.
- 26In relation to the "householder" defence, what 4 points were made?1. S76 Criminal Justice and Immigration Act 2008 does not allow householders to use disproportionate force in all cases. The correct approach is to ask:
(a) whether the level of force used by the defendant was reasonable in the circumstances that he believed existed;
(b) in a householder case, wherever the defendant uses "grossly disproportionate" force, the force will always be unreasonable (when the defendant uses a level of force that is over the top);
(c) where the defendant uses disproportionate force, he may or may not be regarded as having acted reasonably - The question in such a case will be the same as in (a). Was the force used by the defendant reasonable, in the circumstances that he believed existed? In a householder case, disproportionate force can therefore sometimes be reasonable, but it will not always be regarded as reasonable. - 27What is meant by "anticipatory self-defence"?The old rules on self-defence required the defendant to retreat if at all possible, at any rate before using deadly force. Evidence that the defendant did retreat or tried to treated is powerful evidence he was not the aggressor and that what he did was truly in self-defence. The modern rule is that is must have been necessary to use force. If retreat or negotiation had been possible, force may not have been necessary. There is, however, no duty to seek to avoid a confrontation.
- 28In relation to "anticipatory self defence" will the defendant lose the defence because he knowingly "walked into trouble"?No. A person is not required to avoid going to places where he may lawfully go but where he knows that danger may await. Obviously, this could reduce the credibility of the defendant's claim to have been acting in self-defence or in the prevention of crime.
- 29In relation to "anticipatory self defence" is evidence that the defendant was unlawfully in possession of a weapon fatal to the defence?No. Evidence that the defendant was unlawfully in possession of a weapon is not necessarily fatal to the defence. It is wrong to suggest that force was necessary in self-defence but that the defendant should not be able to use whatever was to hand in using proportionate force. Obviously, this could reduce the credibility of the defendant's claim to have been acting in self-defence or in the prevention of crime.
- 30What was held in Malnick v DPP?In this case it was established that individuals may not arm themselves to repel violence, which they have knowingly and deliberately brought about by creating a situation in which violence was likelyto be inflicted.
Information
- Description
- Level 3 Criminal Law Flashcards on Chapter 6 : General Defences, created by Emily Greig on 01/06/2018.
- Created by
- Emily Greig
- Views
- 2
- Rating