45059
Description
Mind Map by usmanzafar, updated more than 1 year ago
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Created by usmanzafar
over 11 years ago
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General Defences
- Duress
- Threats (Must be
of death or
personal Injury
(Hudson and
Taylor (1971)
- Threat to damage or
destroy property is
insuffucent
(M'Growther)
- Threat can be
directed at
defendants wife and
Children (Ortiz (1986)
- THreat may not need
to be immediate but
perhaps after an
inteval (Hudson &
Taylor (1971)
- Threat must follow
immediately or
almost immediately
( Hasan (2005)
- Threat to damage or
destroy property is
insuffucent
(M'Growther)
- Threats (Must be
of death or
personal Injury
(Hudson and
Taylor (1971)
- Mistake
- Two types:
Mistakes of
Law and of
Fact
- DPP v Morgan(1976) Honest
Belief clearly negates intent,
reasonableness or otherwise
of that belief can only be
evidence that the beliefntent
was
- Mistake of
fact must be
honestly made
- Reasonableness
of the mistake is
used only as
evidence
- Williams (1987)
honest belief in
Unreasonable
mistake will be
irrelevant so far as
belief was held
- Mistake of
fact must be
honestly made
- Ignorance of
the law is not an
excuse
- Esop (1836)
foreign
individuals
who commit
an offence in
england
thinking that
the act is
perfectly legal
will be
prosecuted
- Esop (1836)
foreign
individuals
who commit
an offence in
england
thinking that
the act is
perfectly legal
will be
prosecuted
- Two types:
Mistakes of
Law and of
Fact
- Self Defence
- s3(1) of the Criminal
Law Act 1967: A person
may use such force as is
reasonable in the
circumstances in the
prevention of a crime, or
in effecting or
- assisting in the lawful
arrest of offenders or
suspected offenders or of
persons unlawfully at large
- assisting in the lawful
arrest of offenders or
suspected offenders or of
persons unlawfully at large
- Any evidence of self
defence must be left to
a jury
- Force
- The force
must be
necessary
- The defendant
must believe it is
necessary
- Defendant may be
genuinely mistaken
as to the force
required
- Rashford (2005) a person only
acts in self defence if in all the
circumstances he honestly
believes that it is necessary for
him to defend himself and
- if the amount of force that he uses
is reasonable
- if the amount of force that he uses
is reasonable
- A Pre emptive strike is
acceptable (Beckford
(1988)
- Any force used must
be reasonable from the
jury's perspective
- Test is subjective
(Shannon (1980) and
Whyte (1987)
- If a person did what
he thought was
insticntively necessary
tht woud be the most
potent evidence that
only reasonable
defensive action had
been taken
- Pallmer (1971)
- Pallmer (1971)
- Test is subjective
(Shannon (1980) and
Whyte (1987)
- Where the jury is
satisfied that the mistake
as to force was caused
by intoxication, the
defence must fail
(O'Grady (1987)
- If force is grossly excessive
and disproportionate, then
the defence will fail (Clegg
(1995)
- The force
must be
necessary
- s3(1) of the Criminal
Law Act 1967: A person
may use such force as is
reasonable in the
circumstances in the
prevention of a crime, or
in effecting or
- Consent
- Must be real
(full capacity
and
understanding)
- Invalid if
victim
lacks
capacity
- Howard
(1965)
- Victim must be
able to
understand the
act consented to
( Burrel v Harmer
(1967))
- Invalid if
victim
lacks
capacity
- Howard
(1965)
- Victim
must not
be
decieved
- Mobilio
(1991) if a
doctor is
performing an
examination
for sexual
gratification,
the nature and
quality of the
act remains
the same so
consent valid
- Tabassum (2000)
women were
consenting to breast
examination for
medical purposes
meaning they has
been deceived as to
the quality of the act
- when consent is
obtained by
deception for
either element,
consent is invalid
- when consent is
obtained by
deception for
either element,
consent is invalid
- Mobilio
(1991) if a
doctor is
performing an
examination
for sexual
gratification,
the nature and
quality of the
act remains
the same so
consent valid
- Consent
must be
fully
informed
- Dica (2004) Victim no
longer consents to
infected intercourse
unless she is informed of
the infeection and
consents thereafter.
- If defendant
knows, he
has mens rea
for
recklessness.
If not, he will
have no mens
rea for GBH
(Williams
(2003)
- If defendant
knows, he
has mens rea
for
recklessness.
If not, he will
have no mens
rea for GBH
(Williams
(2003)
- Dica (2004) Victim no
longer consents to
infected intercourse
unless she is informed of
the infeection and
consents thereafter.
- Consent
is often
implied
by law
- Brown (1994) Line of
consent drawn
between battery and
ABH
- Sport: criminal
prosecutions in
sport can onle be
for acts whose
conduct is
sufficiently grave to
be categorised as
criminal
- Jury would need to
consider whether conduct
was obviously late and/or
violent
- Jury would need to
consider whether conduct
was obviously late and/or
violent
- Surgery: Patient must
consent (Corbett v
Corbett (1971) if the
surgery is done without
just cause or excuse, it
is always unlawful even
if consented 2
- bravery v Bravery (1954)
- bravery v Bravery (1954)
- Horseplay: other
members must
genuinely believe that
the friend is consenting
(Aitken & Others (1992)
- Sex: assault during sex will be
prosecuted - despite consent- if the
harm intended is more than transient or
trifling injury (Boyea (1992)
- Consent is a valid defence
for tattoing (Brown (1994)
- Branding is to be considering same as
tattooing even if it is tecnhically ABH (
Wilson (1997)
- Branding is to be considering same as
tattooing even if it is tecnhically ABH (
Wilson (1997)
- Brown (1994) Line of
consent drawn
between battery and
ABH
- Burden of proof
for proving lack
of rests on
prosecution -
Donovan (1934)
- Must be real
(full capacity
and
understanding)
- Insanity
- Available as a defence to any
crime (Horseferry Rd Magistrates
Court (1996)
- Whether insnaity can be raised
is decided by the judge after
reading the evidence
- s.1 Criminal Procedure Act (1991) Two
registered edical practioners must
provide evidence that the defendant
meets the legal definition of insantiy
- Judge has discretion as to
sentencing (s.5 Crimiinal
Procedure Act (1965) Hospital
Order, Supervision Order, Order
for absolute discharge
- Murder conviction requires
indefinite hospitilisation
- 'the party accused
was laboring under
such a defect of
reason from disease
of the mind, as to
not know the nature
and quality of the
act he was doing
- or if did know it, that
he did not know that
he was doing what he
was doing'
(M'naaghten (1843)
- Defect of reason
- A person must be
deprived of his powers of
reasoning (Clarke (1972)
- Does not include momentary lapses
of judgement, confusion or
forgetfulness
- Does not include momentary lapses
of judgement, confusion or
forgetfulness
- A person must be
deprived of his powers of
reasoning (Clarke (1972)
- Disease of the
mind refers to
mental faculties
not brain (Kemp
(1957)
- must come from internal factors
so alcohol is external and not
insanity (Quick 1957)
- Henessey (1989)
Diabetes is an internal
factor thus a disease of
the mind
- Burgess (1991) Sleepwalking is
an internal factor
- must come from internal factors
so alcohol is external and not
insanity (Quick 1957)
- Wrong Means
illegal (windle
(1952) but not
morally wrong
(2007)
- Defect of reason
- or if did know it, that
he did not know that
he was doing what he
was doing'
(M'naaghten (1843)
- Balance of
probabilities to
prove insanity
- Available as a defence to any
crime (Horseferry Rd Magistrates
Court (1996)
- Automatism
- Bratty (1963)
- An act
done by
the
muscles
- No control
of the
mind
- Spasm,
reflex,
action or
convulsion
- Concussion
or sleep
walking
- not
conscious
- An act
done by
the
muscles
- If the defendant wishes to
raise insanity as a defence,
he must provide evidence of
it. (Hill v Baxter (1958)
- if he can operate his
body to a degree, the
defence is not made
out. (Issit (1978)
- Actions must be
'wholly uncontrolled
and uninitiated by any
function or will'
Watmore v Jenkins
(1962)
- Avoiding
danger does
not count
(Broome v
Parkins (1987)
- If the defendant is
aware he is about
to suffer
automatism and
does nothing about
it, he is responsible
for the outcome
(Kay v Butterworth
(1945)
- Reflex
action is no
defence
(Ryan v R
(1967)
- if he can operate his
body to a degree, the
defence is not made
out. (Issit (1978)
- Bratty (1963)
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