Legal Perspectives on Preemptive Strikes

Study Notes

A defence is an explanation of the defendant's actions, trying to excuse or justify their conduct.
It can negate some or all elements of a crime to be acquitted or reduce conviction.
Specific defences include voluntary manslaughter.
General defences include necessity defences and capacity defences.

Necessity defences are used when the defendant justifies or excuses breaking the law, for example self-defence or duress of circumstances.
Capacity defences are used when the defendant shows diminished mental capacity, such as insanity or intoxication.
Self-defence
Duress
Duress of circumstances

Self-defence can be used to defend oneself, another, or one's property.
It can be used to prevent a crime.
The subjective test for self-defence considers if the force used was genuinely necessary based on the defendant's belief of the situation.
The objective test for self-defence considers if the force used was proportionate or reasonable compared to the threatened harm.
Examples: R v Gladstone Williams (1987), Section 76(3) and (4) of the CJIA 2008

Duress is where the defendant is forced to commit a crime due to threats.
The defence is not available for murder, attempted murder, or treason.
There must be a threat to cause death or serious injury.
The threat must be immediate.
The defendant must not have put themselves in a position where they could have escaped from the threat
The defendant must not have voluntary associated with those that made the threat
Examples: R v Hasan (2005), R v Valderrama-Vega (1985).

Duress of circumstances applies when the defendant is forced to commit a crime due to perceived threats from the immediate circumstances, for example a natural disaster.
The defence is not available for murder or attempted murder or treason.
There must be an immediate peril of death or serious injury.
The threats must be operative and have a significant impact on the defendant's state of mind.
The threat doesn't need to be carried out.
Has the defendant acted reasonably in light of the threats?
Examples: R v Abdul-Hussain (1999), R v Willer.

Intoxication is not a defence for specific intent crimes, it can be a defence for basic intent crimes, when the individuals behaviour is involuntary.
Involuntary intoxication can be a defence.Voluntary intoxication is not a defence for crimes requiring a specific intent. When the mens rea is already in place, intoxication is not relevant. Specific intent offences include murder, attempted murder, and some forms of theft. Basic intent offences are assault, battery, and some forms of theft.
Examples R v Sheehan and Moore, R v Lipman, R v Hardie, R v Kingston.

The defendant must have a defect of reason, arising from a disease of the mind, such that they didn’t understand the nature or quality of their act or understand that what they were doing was wrong.
A ‘disease of the mind’ is a legal term, not a medical one.
Examples; M’Naghten (1843), R v Clarke (1972).

An act done by the muscles without any control of the mind and performed by a person who is not consciously aware of what they are doing.
The act is caused by an external factor.
Examples: Hill v Baxter (1958), external factors; R v T (1990), sleepwalking; R v Ecott (2007).
Important to distinguish between voluntary and involuntary actions.

Robbery is theft with violence or threat of violence.
Must be a complete theft under s1-6 of the theft act 1968, in order for it to be robbery.
Also has the added mens rea of the use of force at the time of the theft.

The defendant must commit a criminal act that is unlawful, dangerous, and that leads to the death of a victim.
The unlawful act must be dangerous.
The defendant must have had the mens rea for the underlying unlawful act.
The unlawful act must cause the death.
Examples; R v Lamb, R v JM and SM

The defendant has a duty of care to the victim.
The defendant breaches that duty.
The breach of duty created a serious and obvious risk of death.
The breach caused the death of the victim.
The defendant has acted ‘grossly’ negligently, their actions are so bad they should be held accountable.
Examples R v Adomako, R v Broughton.

The unlawful killing of a human being in the King's peace with malice aforethought.
The killing must have occurred within a year and a day.
Unlawful killings including those committed by omission but where causation is proven.
There are several defences to murder e.g., self-defence, but causation of the death must be proven (beyond a reasonable doubt).
The mens rea of murder requires intention to kill or cause grievous bodily harm. This also includes oblique intention.

A partial defence to murder, reducing it to manslaughter.
The defendant must have an abnormality of mental functioning, arising from a recognised medical condition.
The abnormality must have substantially impaired the defendant's ability to understand the nature of their conduct, form a rational judgment, or exercise self-control.
Examples R v Byrne (1960), R v Seers (1984)