Criminal law supervision 5

1. Does the law of self-defence provide for an appropriate balance between the rights
of the person using defence and the person he is defending against?
Introduction would cover what the actual law of self defence is;
Section 3 criminal law act 1967 a person may use such force as if reasonable in the
prevention of crime
Force may be reasonable and proportionate.
This is more of a pure defence because defendant accepts the mens rea and
acus reus but relies on the justification of self defence, can be split into
justifications and excuses.
Self defence is a justification. Necessity is a form of justification - I did what I did
to avoid a greater evil so in those circumstances it was the right thing to do.
Self defence is available here someone uses force and its reasonable in the
circumstances the person believes to be at the time. Must force be used?
Necessary? Can u engage in pre emptive strikes? Who can be defended, only
yourself? What if the person who started it was acting in self defence? What if
the claim relies on self defence?
Common law allows people to protect themselves and up to some extent their
property.
Blake v DPP
Started demonstrating outside parliament about Iraq war. Took a felt tip out and
put stop the war on a concrete pillar. Said he was self defence protecting Iraqi
people. Courts said writing with felt pen falls below force and does not constitute
force
DPP v Bayer
Bayer was a protestor was a protestor against GM seeds and to prevent tractors
sowing these seeds he chained himself to a tractor. He didnt succeed in self
defence but the courts say that was sufficient force.
Conway
Conway was driving recklessly to save his life. They treated it as duress rather
than self defence.
When is force reasonable?
We have to have some test of reasonableness.
Reed v Wastie [1972]
Have to decide that when might it be that force is reasonable.
R v jones olditch et al [2006]

Protestors against the Iraq war, they broke into RAF and took a spanner to a
couple of trucks and was caught just before he was about to set fire to the tyres
of an aircraft. When arrested they came out with a letter with all the defences
they were going to rely on. They were trying to prevent war crimes the British
would commit. However there is no statute that makes aggression a crime in the
UK legal order, war crimes have been brought into UK. So this argument could be
raised but couldnt rely on an attempt to stop aggression because it is not a
crime in the UK.
Is there a duty to retreat? Do you have to show you are unwilling to fight?
There is no duty to retreat as you cant rely on people to walk away, in some
circumstances they are just going to have to react.
R v bird
Bird blasts the victim and pleads self defence.
Kelly
Kelly was a soldier who shot and killed the victim because he believed wrongly
that they were terrorists and would commit offences in the future.
Who may be defended?
R v fennel [1971]
F thought police were manhandling his son and then ended up being arrested for
attacking a police officer. He pleaded self defence.
2. Given the handful of cases annually in which insanity is raised as a defence, one
might be forgiven for thinking that it is not worth a great deal of discussion. This
would be a serious error. [T]he recognition of an insanity defence is a mark of the
maturity and humanity of the criminal law. A. Ashworth Reforming the insanity
defence [2003] Crim LR 139.
How mature and humane is our insanity defence?
Cases:
Bratty v atorney general [1963]
Charged with murder but he claimed as if he felt really strange when he did it
and pleaded insanity and automasin. Criminal law and culpability is based
primarily based around choices and what one chooses to do.
Hill v baxter [1958]
The defendant drove his van through a stop sign and hit a car. He claimed he
couldnt remember and expert witnesses were unable to say if he had lost
consciousness. Judge raised 2 issues

Attorney
Defendant in attorney general reference and was charged with 2 accounts of
death dy dangerous driving. Over a 12 hour period the defendant had been
driving for 6 hours and hadnt exceeded the max number of hours for driving per
day. He drove onto the hard shoulder for 40 mph and continued for a mile and
ran into a stationary van. The prosecution argued that the defendant was asleep,
he was driving without awareness therefore was in a state of automatism, he was
acquitted but the attorney general sent the case to CA, the defence of
automatism needs a full automatic state, a complete destruction of voluntary
control, not partial.
There is a big overlap between automatism and insanity.
Broome v. Perkins (1986)
Defendant was charged under the road traffics act. Drive very erratcly when
driving home and drove into the mini. He said he has no recollection of getting
into the car and the only thing he can remember is getting home because his
wife gave him a mars bar.
Quick [1973]
Admitted in a mental hospital and hit a patient. He was a diabetic who had taken
his insulin and then had gone to the prub hd a few drinks but not eaten properly.
Quick claimed he did not know what he was doing because he was
hypoglycaemic.
Charlson [1955]
The defendant had been a normal parent until he hit his son across the head with
a mallet and threw his son in the river. He went to the doctor and was diagnosed
with a tumour that can cause violent outbursts. He did have some memory of
hitting his son, but even though it went to the jury who acquitted him by reasons
of insanity.
3 Discuss the suggestion that if duress by threats, duress of circumstances and selfdefence can be described as categories of necessity (per Robert Walker LJ in Re A
(Conjoined Twins: Surgical Operation) [2001] Fam 147, 253), and in the light of the
different approaches to the criminal law issues in that case developed in the three
judgments in the Court of Appeal, it would be perverse to maintain the present
distinctions which in some significant respects apply different requirements for selfdefence, duress and necessity.
4. If the essential facts of Dudley and Stephens came before the courts for the first
time today what would and should be the decision?
Dudley v. Stephens [1884]

Defendants after being shipwrecked for and without food and water for five days, they drew
lots to see who to kill but s persuaded d to kill the cabin boy, consequently they killed and ate
the cabin boy. They were convicted of murder, though the death sentence was subsequently
commuted to six months imprisonment. The judgement denied the defence of necessity.
Jury reached whats now known as special verdict on the fact. Did not determine whether
this identified a crime. Courts said yes, necessity did not serve to exculpate them here. In
part this was on the basis that they felt there would be too many practical problems with
necessity. Not entirely clear why the court rejected necessity; was not clear whether they
meant necessity is never a defence or necessity not a defence to murder or may just be that
necessity was not established on the facts particularly because they had not drawn lots. Lord
Colderidge said if there was to be a defence of necessity, it would be impossible to choose
which of the crew to die and who would be the judge of such necessity? By what value is the
comparative value of lives to be measured and the defence of necessity once admitted
might be made a legal cloack or unbridled passion and atrocious crimes. Where fate
however has already designated once individual for death, the defence may be allowed. As
seen in

Re A (conjoined twins: surgical serparation) [2000]

Conjoined twins where the hospital and the doctors wanted to find out
from criminal law if they separated the twins, would it amount to murder
because it would be certain that the weaker twin would die as a result.
The doctors would not be guilty of murder if they separated the twins.
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Absolutely disgusting judgment.

Now murder would be upheld but still not allow defence of necessity to a charge of
murder.
Punishment for murder.

5. Do we need specific rules on intoxication?