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Defences (Herring reading for workshop week 18) - Coggle Diagram

- - - - It has been a matter of debate what crimes this defence can be used for, following DPP v Bayer, Morris, and Oraki v CPS, but it is clear that the defence can be relied upon in relation to any offence.
        
        Riddell - Davies LJ held self defence is only available where D uses force in order to meet actual or perceived force or threat of force.
        
        Oraki v CPS - in obiter it was said that it did not need to be shown that the D was using force.
      - No need to show that D's belief had reasonable grounds, if they thought they were being attacked but were not. However the more absurd, the less likely the jury will believe. Intoxication is not a justification for a mistaken belief.
        
        R v Oye - shows a D believing they are being attacked as the result of insane delusions. Tony Storey suggested that the case states "that a plea of self defence will not be accepted where the D's own psychotic/insane delusions may have genuinely caused him to believe he was under attack.
        
        R v Taj - D was suffering from drug/alcohol induced psychotic disorder.
      - Confusion arises from the fact that it is in common law and also under sec3 of the criminal law act 1967. Fortunately the courts have held that the rules governing common law private defence and section 3 coexist.
      - Self induced private defences
        
        If D caused attack in first place may not be able to rely on defence. Q for jury is whether D's use of force was reasonable in light of the fact they had instigated the fight.
        
        R v Keane - D insulted a woman calling her a "chav" leading to a fight. V suffered GBH. Appeal - key q is whether judge had correctly directed jury on whether D could rely on self defence if he was the cause of violence he was facing.
        
        Was V's response to the initial provocation reasonable?
      - HRA 1998
        
        Private defence for murder may be challenged under HRA. European court says that paragraph 2a can only be relied upon where force is absolutely necessary and strictly proportionate.
        
        Collins v Sec of State - householder law incompatible with article 2 for permitting a householder to kill.
    - - 1) The victim must pose a threat. R v Hitchens (issue of an attack being against an innocent person to prevent an attack by a third party. R v Williams (Demario) - cases where property is involved require a level of reasonableness. In this case the defence applied when D was stopping V from taking their property.
      - 2) Threat must be unjustified. Jones - a crime committed in an attempt to stop the Iraq war could not be justified using private defence because going to war is not an offence under English law.
      - 3) The use of force must be reasonable. Could they have escaped in some way? 1) D does not havea "duty to retreat." 2) law does permit a "pre-emptive strike" if reasonable 3) do not need to show that the attack is imminent. R v Martin (Anthony) - a man who had been previously been burgled was burgled again and shot at the men. Was seen as reasonable in the context of psychiatric conditions.
        
        Distinction between "householder" and "non householder" cases created in sec76 CJI act5 2008. Householder - this is a case where D believes V is a trespasser and D is not a trespasser. D's belief is important. Level of force must not be "grossly disproportionate." Dispute to this provision seen in R (Collins) v Sec of State for Justice. Other case of R v Steven Ray. Non householder cases - C of A case of Oye - question is whether a reasonable person would say that the level of force was reasonable (objective). Has also been said that level of force must be proportional.
      - 4) D must be acting to defend themselves/another/property. Must not be acting out of revenge/retaliation. Dadson principle - D cannot rely on justifying circumstances of their actions which they are not aware. Ds in Ayliffe v DPP - could not rely on private defence when protesting against Iraw war as they were not defending people/property.
  - - - Dudley and stephens - cannibalised young boy at time of desperation. Seen as the lesser of two evils. Defence failed and convicted of murder and sentenced to death, but sentences commuted to 6 months imprisonment.
      - Necessity is a limited defence, but there are some exceptions.
        1) Where D damages/steals another's property in public interest
        2) Where D damages the D's property or interferes with another's property to save their own property or a person.
        3) Where actions are taken for the benefit of another person where that person is unable to consent. Re F (Mental Patient: Sterilisation) - Lords ruled it is in the best interest to sterilise a woman who is unable to consent.
        4) Permissible for police to direct people to break traffic regulations to protect life/property.
        5) Very limited category - seperating conjoined twins.
      - Re A (Children) (Conjoined twins: surgical separation). One twin completely relied on the other for survival, had what is described as a "primitive brain." Parents would not consent to operation leading to death of weaker twin. Hospital applied to court for declaration that operation would be lawful. Judge concluded it is "the lesser of two evils" to do the operation as the weaker twin was harming the stronger one.
        
        Judgement (Brooke LJ) - 3 requirements for defence of necessity:
        1) act is needed to avoid inevitable and irreparable evil
        2) no more should be done than is reasonably necessary for the purpose to be achieved and 3) the evil inflicted must not be disproportionat to the evil avoided.
      - In Nicklinson, C of A refused to use the defence to permit euthanasia.
      - Implied recognition of necessity
        
        Peter Glazebrook - even in cases where it is not openly recognised as a defence, principle that a person should not be guilty for doing the less of two evils influences the courts reasoning.
        
        Bourne - D (a surgeon) was charged under sec58 of OAPA for unlawfully procuring a miscarriage, performing an abortion on a suicidal 14 year old who had been raped. Judge held that he performed the operation to save the girl's life.
- - - - 1) Was D or may he have been, impelled to act as he did because, as a result of what he reasonably believed E had said or done, he had good cause to fear that if he did not so act E would kill him or cause him serious injury? 2) If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of D, would not have responded to whatever he reasonably believed E said or did by committing the crime?
        
        D must act because of a threat of death or serious injury
        
        D must act because of threats or the circumstances Valderrama-Vega: issue where D is facing a variety of threats rather than just one. Threat of death/serious injury must be substantial if not the only reason.
    - - D must act because of threat of death/serious injury: 1) Must be because of the threats or circumstances. Valderrama-Vega. DPP v Bell. DPP v Mullally. 2) Threat must be one of death or GBH. R v A. Dao. EK. Burstow. Baker and Wilkins. GAC. Brandford. 3) Threat can be of death/serious harm to anyone close to the D.