DOCSLIB.ORG

Report on Defences in Criminal

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Report on Defences in Criminal R The Law Reform Commission is an independent statutory E P O body established by the Law Reform Commission Act 1975. RT The Commission’s principal role is to keep the law under review and to make proposals for reform, in particular by recommending the enactment of legislation to clarify and modernise the law. DEFENCES IN This role is carried out primarily under a Programme of REPOrt Law Reform. The Commission’s Third Programme of Law Reform 2008-2014 was prepared and approved under the 1975 Act following broad consultation and discussion. The DEFENCES IN C Commission also works on specific matters referred to it RIMINAL by the Attorney General under the 1975 Act. Since 2006, CRIMINAL LAW the Commission’s role also includes two other areas of activity, Statute Law Restatement and the Legislation L AW Directory. Statute Law Restatement involves incorporating all amendments to an Act into a single text, making legislation more accessible. The Legislation Directory (previously called the Chronological Tables of the Statutes) is a searchable guide of legislative changes. LRC 95-2009 €15 AddrEss TELEPHONE FAX EMail WEBsitE (LRC 95-2009) 35-39 Shelbourne Road Dublin 4 Ireland +353 1 6377600 +353 1 6377601 [email protected] www.lawreform.ie The Law Reform Commission is a statutory body established by the Law Reform Commission Act 1975 110177 - LRC Defences in C law.indd 1 17/11/2009 18:08 www.lawreform.ie 110177 - LRC Defences in C law.indd 2 17/11/2009 18:08 REPORT DEFENCES IN CRIMINAL LAW (LRC 95 - 2009) © COPYRIGHT Law Reform Commission FIRST PUBLISHED December 2009 ISSN 1393-3132 i LAW REFORM COMMISSION‟S ROLE The Law Reform Commission is an independent statutory body established by the Law Reform Commission Act 1975. The Commission‟s principal role is to keep the law under review and to make proposals for reform, in particular by recommending the enactment of legislation to clarify and modernise the law. Since it was established, the Commission has published over 150 documents (Consultation Papers and Reports) containing proposals for law reform and these are all available at www.lawreform.ie. Most of these proposals have led to reforming legislation. The Commission‟s role is carried out primarily under a Programme of Law Reform. Its Third Programme of Law Reform 2008-2014 was prepared by the Commission following broad consultation and discussion. In accordance with the 1975 Act, it was approved by the Government in December 2007 and placed before both Houses of the Oireachtas. The Commission also works on specific matters referred to it by the Attorney General under the 1975 Act. Since 2006, the Commission‟s role includes two other areas of activity, Statute Law Restatement and the Legislation Directory. Statute Law Restatement involves the administrative consolidation of all amendments to an Act into a single text, making legislation more accessible. Under the Statute Law (Restatement) Act 2002, where this text is certified by the Attorney General it can be relied on as evidence of the law in question. The Legislation Directory - previously called the Chronological Tables of the Statutes - is a searchable annotated guide to legislative changes. After the Commission took over responsibility for this important resource, it decided to change the name to Legislation Directory to indicate its function more clearly. ii MEMBERSHIP The Law Reform Commission consists of a President, one full-time Commissioner and three part-time Commissioners. The Commissioners at present are: President: The Hon Mrs Justice Catherine McGuinness Former Judge of the Supreme Court Full-time Commissioner: Patricia T. Rickard-Clarke, Solicitor Part-time Commissioner: Professor Finbarr McAuley Part-time Commissioner: Marian Shanley, Solicitor Part-time Commissioner: Donal O‟Donnell, Senior Counsel iii LAW REFORM RESEARCH STAFF Director of Research: Raymond Byrne BCL, LLM (NUI), Barrister-at-Law Legal Researchers: Chris Campbell B Corp Law, LLB Diop Sa Gh (NUI) Siobhan Drislane BCL, LLM (NUI) Gemma Ní Chaoimh BCL, LLM (NUI) Bríd Nic Suibhne BA, LLB (NUI), LLM (TCD), Diop sa Gh (NUI) Jane O„Grady BCL, LLB (NUI ), LPC (College of Law) Gerard Sadlier BCL (NUI) Joseph Spooner, BCL (Law with French Law) (NUI), Dip. French and European Law (Paris II), BCL (Oxon) Ciara Staunton BCL, LLM (NUI), Diop sa Gh (NUI) STATUTE LAW RESTATEMENT Project Manager for Restatement: Alma Clissmann, BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor Legal Researchers: John P Byrne BCL, LLM, PhD (NUI), Barrister-at-Law Catriona Moloney BCL (NUI), LLM (Public Law) LEGISLATION DIRECTORY Project Manager for Legislation Directory: Heather Mahon LLB (ling. Ger.), M.Litt, Barrister-at-Law Legal Researchers: Margaret Devaney LLB, LLM (TCD) Rachel Kemp BCL (Law and German), LLM (NUI) iv ADMINISTRATION STAFF Head of Administration and Development: Brian Glynn Executive Officers: Deirdre Bell Simon Fallon Darina Moran Peter Trainor Legal Information Manager: Conor Kennedy BA, H Dip LIS Cataloguer: Eithne Boland BA (Hons), HDip Ed, HDip LIS Clerical Officers: Ann Browne Ann Byrne Liam Dargan Sabrina Kelly PRINCIPAL LEGAL RESEARCHER FOR THIS REPORT Verona Ní Dhrisceoil BCL (Dlí agus Gaeilge), LLM (NUI) v CONTACT DETAILS Further information can be obtained from: Head of Administration and Development Law Reform Commission 35-39 Shelbourne Road Ballsbridge Dublin 4 Telephone: +353 1 637 7600 Fax: +353 1 637 7601 Email: [email protected] Website: www.lawreform.ie vi ACKNOWLEDGEMENTS The Commission would like to thank the following people who provided valuable assistance, many of whom attended the Commission‟s Seminar on Defences in Criminal Law held at the Commission‟s offices on 12th June 2007: Mr Justice Paul Carney, judge of the High Court Mr Justice Peter Charleton, judge of the High Court Ms Alma Clissmann, Solicitor, Law Society of Ireland Ms Valerie Fallon, Department of Justice, Equality and Law Reform Mr Maurice Gaffney, Senior Counsel Mr James Hamilton, Director of Public Prosecutions The late Mr Justice Kevin Haugh, judge of the High Court Mr Conor Hanly, Faculty of Law, NUI Galway Mr Liam Herrick, Irish Penal Reform Trust Mr Gerard Hickey, Department of Justice, Equality and Law Reform Mr Justice Nicholas Kearns, judge of the Supreme Court Colonel William Knott, Department of Defence Lieut. Colonel Jerry Lane, Department of Defence Mr Patrick MacEntee, Senior Counsel Prof. Paul McCutcheon, University of Limerick Mr TJ McIntyre, School of Law, University College Dublin Prof. Paul A O’Connor, School of Law, University College Dublin Mr Seoirse Ó Dúnlaigh, Barrister-at-law Mr Keith Spencer, Barrister-at-law Full responsibility for this publication lies, however, with the Commission. vii viii TABLE OF CONTENTS Table of Legislation xiii Table of Cases xv INTRODUCTION 1 A Background to this Report 1 B Codification of the Criminal Law 2 C The role of defences in the criminal law 3 D The connected characteristics of the defences in this Report 5 E Outline of this Report 6 (1) Overview of defences in the criminal law 6 (2) Legitimate defence (self-defence) 6 (3) Defence of the dwelling 7 (4) Public defence 7 (5) Provocation 7 (6) Provocation and immediacy 8 (7) Duress and necessity 8 CHAPTER 1 CRIMINAL DEFENCES – AN OVERVIEW 11 A Introduction 11 B Classification of defences 11 (1) A Classification Scheme 12 (2) Hierarchy of Defences 13 C Defences based on justification and excuse 13 D Assessing the conduct of the accused; subjective or objective? 16 E Other Defences 17 (1) Children and the age of criminal responsibility 17 (2) Insanity 18 (3) Diminished Responsibility 20 (4) Automatism 20 (5) Intoxication 21 CHAPTER 2 LEGITIMATE DEFENCE (SELF-DEFENCE) 25 A Introduction 25 B General Principles 26 (1) Legitimate defence as a general defence and specific issues involving lethal force 26 ix (2) Justification and Excuse 27 (3) Rights Discussion 27 (4) General scope of the defence 30 C A Threshold Requirement for Legitimate Defence 32 (1) Defence of the Person 34 (2) Defence of Property 40 D The Imminence Requirement 45 (1) The imminence rule and domestic violence 48 (2) Options for Reform 52 E The Necessity Requirement 53 (1) Self Generated Necessity 58 (2) Defence of Property and the Duty to Retreat – the Castle Doctrine 62 F The Proportionality Requirement 66 (2) The problem of disproportionate, excessive, lethal force 73 CHAPTER 3 PUBLIC DEFENCE 77 A Introduction 77 B The Use of Force to Effect an Arrest 77 (2) Alternatives to the “Reasonableness Approach” 86 (3) Distinction between Flight and Arrest 91 (4) Restriction on Lethal Force to Law Enforcement Officers 92 C The Prevention of Crime 95 D The Defence Forces 104 CHAPTER 4 PROVOCATION 107 A Introduction 107 B Historical Overview 107 C What is provocation? 110 D Retention or abolition? 111 E The rationale for the defence of provocation – justification or excuse 119 F The test for provocation 122 G Elements of the defence 140 (1) Provocative Conduct 140 (2) Sources of provocation 143 (3) Loss of control 144 (4) Proportionality 152 (5) Provocation and Intoxication 154 (6) Self-induced provocation 156 CHAPTER 5 DURESS 157 x A Introduction 157 B Duress 158 C An Overview 159 (1) R v Hasan 160 D Justification or Excuse 161 E The Threat 165 (1) Nature of the Threats: Death or Serious Injury 165 (2) Target of the Threats 167 (3) The Effect of the Threat and Perception of the Defendant 168 F The Imminence Rule and Official Protection 174 G Exposure to Risk of Duress – Self-Induced Duress 177 H Duress, Murder and Other Limitations 181 I Marital Coercion 188 CHAPTER 6 NECESSITY AND DURESS OF CIRCUMSTANCES191 A Introduction 191 B Overview 191 C Necessity as a Justificatory or an Excusatory Defence 194 D Application of the defence 198 CHAPTER 7 SUMMARY OF RECOMMENDATIONS 207 A Legitimate Defence 207 B Public Defence 209 C Provocation 210 D Duress 211 E Necessity and Duress of Circumstances 212 APPENDIX DRAFT CRIMINAL LAW (DEFENCES) BILL 2009 213 xi TABLE OF LEGISLATION Children Act 2001 2001, No.
Load more

Recommended publications
  • Induced Intoxication
    PARLIAMENT OF VICTORIA LAW REFORM COMMITTEE Criminal Liability for Self- Induced Intoxication REPORT Ordered to be Printed Melbourne Government Printer May 1999 No 53 Session 1998–99 Parliament of Victoria, Australia Law Reform Committee Melbourne Bibliography ISBN 0-7311-5265-4 Cover Design & Graphics: Paul Angus ii C OMMITTEE M EMBERSHIP CHAIRMAN *Mr Victor Perton, MP DEPUTY CHAIR *Mr Neil Cole, MP MEMBERS *Mr Florian Andrighetto, MP (Chairman Subcommittee) Ms Mary Delahunty, MP *Hon Carlo Furletti, MLC Hon Monica Gould, MLC *Mr Noel Maughan, MP Mr Alister Paterson, MP *Mr Tony Robinson, MP * denotes membership of Criminal Liability for Self-Induced Intoxication Inquiry Subcommittee The Committee’s address is — Level 8, 35 Spring Street MELBOURNE VICTORIA 3000 Telephone inquiries — (03) 9651 3644 Facsimile — (03) 9651 3674 Email — [email protected] Internet— http://www.lawreform.org.au iii iv C OMMITTEE S TAFF EXECUTIVE OFFICER AND DIRECTOR OF RESEARCH Mr Douglas Trapnell RESEARCH OFFICER Ms Jenny Baker OFFICE MANAGER Ms Angelica Vergara v vi C ONTENTS Committee Membership........................... ............................................................................................... iii Committee Staff ........................................................................................................................................v Chairman’s Foreword .............................................................................................................................. xi Functions of the Committee...................................................................................................................
    [Show full text]
  • Criminal Law
    Part A Bar Examinations 2015 Criminal Law Subject Coordinator: Dr S. Chandra Mohan School of Law, Singapore Management University Singapore Institute of Legal Education Part A Bar Examinations 2015 SINGAPORE INSTITUTE OF LEGAL EDUCATION Part A Bar Examinations 2015 Criminal Law (Version: 14 May 2015) INTRODUCTION The Part A Bar Examination in Criminal Law is designed to test whether overseas law graduates have obtained sufficient knowledge of the fundamental principles of criminal law in Singapore and understand how these are applied within Singapore’s criminal justice system. It is important that students keep in mind the relevant local legislative provisions and the court decisions that have interpreted these provisions (see the detailed Reading List). Singapore’s criminal law is codified and is principally contained in the Penal Code which was enacted in 1870. It is based on the Indian Penal Code and its provisions are not always similar to the English Criminal Law which its drafter, Lord Macaulay, sought to improve. Two core values of such a written Code that students must bear in mind are accessibility of the penal provisions and comprehensibility so that the layman can obtain and understand the law better. The use of ‘explanations’ and ‘illustrations’ in the sections, which give examples of the application of the provisions, are unique to the Penal Code. As the Penal Codes of India and Malaysia are similar to our Code, cases from these jurisdictions are of persuasive value in interpreting identical provisions. There are other statutes which provide for specific offences such as the Misuse of Drugs Act and the Prevention of Corruption Act.
    [Show full text]
  • Tainted by Torture Examining the Use of Torture Evidence a Report by Fair Trials and REDRESS May 2018
    Tainted by Torture Examining the Use of Torture Evidence A report by Fair Trials and REDRESS May 2018 1 Fair Trials is a global criminal justice watchdog with offices in London, Brussels and Washington, D.C., focused on improving the right to a fair trial in accordance with international standards. Fair Trials’ work is premised on the belief that fair Its work combines: (a) helping suspects to trials are one of the cornerstones of a just society: understand and exercise their rights; (b) building an they prevent lives from being ruined by miscarriages engaged and informed network of fair trial defenders of justice, and make societies safer by contributing to (including NGOs, lawyers and academics); and (c) transparent and reliable justice systems that maintain fighting the underlying causes of unfair trials through public trust. Although universally recognised in research, litigation, political advocacy and campaigns. principle, in practice the basic human right to a fair trial is being routinely abused. Contacts: Jago Russell Roseanne Burke Chief Executive Legal and Communications Assistant [email protected] [email protected] For press queries, please contact: Alex Mik Campaigns and Communications Manager [email protected] +44 (0)207 822 2370 For more information about Fair Trials: Web: www.fairtrials.net Twitter: @fairtrials 2 Tainted by Torture: Examining the Use of Torture Evidence | 2018 REDRESS is an international human rights organisation that represents victims of torture and related international crimes to obtain justice and reparation. REDRESS brings legal cases on behalf of individual Its work includes research and advocacy to identify victims of torture, and advocates for better laws to the changes in law, policy and practice that are provide effective reparations.
    [Show full text]
  • A Legal Response to Colin Holmes
    J Med Ethics: first published as 10.1136/jme.17.2.86 on 1 June 1991. Downloaded from Journal ofmedical ethics, 1991, 17, 86-88 Psychopathic disorder: a category mistake? A legal response to Colin Holmes Irene Mackay University ofManchester Author's abstract diminished responsibility upon which I propose to comment. Holmes is concerned with a conflict between law and The absence of any established medical or medicine about the problem ofpsychopathy, in particular psychiatric definition of 'moral insanity' or as it relates to homicide. 'psychopathy' is noteworthy in this article by Colin He looksfor a consistent set oflegal principles based on Holmes. It is not clear whether either can be referred to a variety ofmedical concepts and in doing so criticises the correctly as an illness or whether the two could be courtfor its commonsense approach, its disregardfor synonymous. Moral insanity is referred to as 'absence medical evidence andfor employing lay notions of of conscience', 'no capacity for true moral feelings', responsibility and illness. 'depravity', and 'absence of moral scruple'. This commentary explores how Holmes's notionsfit into Psychopathy appears to mean 'total lack ofcopyright. existing legal rules and explains how the court seeks the compunction or consequent moral emotion', 'absence assistance ofmedical evidence when looking at the evidence of conscience', 'inability to experience guilt' and 'lack as a whole to enable it to decide upon issues ofdefence, of respect for the moral claims of others'. which involve legal and not medical concepts. Holmes is concerned with the conflict between law There is a difficulty inherent in this paper, as it seeks to and medicine about what he refers to as the problem of psychopathy.
    [Show full text]
  • Criminal Law and Litigation CPD Update
    prepared for Criminal Law and Litigation CPD Update Andrew Clemes CPD Training 2008 edition in Law ILEX CPD reference code: L22/P22 CPD © 2008 Copyright ILEX Tutorial College Limited All materials included in this ITC publication are copyright protected. All rights reserved. Any unauthorised reproduction or transmission of any part of this publication, whether electronically or otherwise, will constitute an infringement of copyright. No part of this publication may be lent, resold or hired out for any purpose without the prior written permission of ILEX Tutorial College Ltd. WARNING: Any person carrying out an unauthorised act in relation to this copyright work may be liable to both criminal prosecution and a civil claim for damages. This publication is intended only for the purpose of private study. Its contents were believed to be correct at the time of publication or any date stated in any preface, whichever is the earlier. This publication does not constitute any form of legal advice to any person or organisation. ILEX Tutorial College Ltd will not be liable for any loss or damage of any description caused by the reliance of any person on any part of the contents of this publication. Published in 2008 by: ILEX Tutorial College Ltd College House Manor Drive Kempston Bedford United Kingdom MK42 7AB Preface This update has been prepared by ILEX Tutorial College (ITC) to assist Fellows and Members of the Institute of Legal Executives (ILEX) in meeting their continuing professional development (CPD) or lifelong learning requirements for 2008. Fellows are required to complete 16 hours of CPD in 2008 and Members eight hours of CPD.
    [Show full text]
  • The Origins of the Homicide Act 1957
    Journal ofmedical ethics, 1986, 12, 8-12 J Med Ethics: first published as 10.1136/jme.12.1.8 on 1 March 1986. Downloaded from Forensic psychiatry symposium The origins of the Homicide Act 1957 J Higgins Regional Forensic Psychiatry Service, Liverpool Editor's note were certain serious wrongs, amongst them murder, which were 'botless', that is they could not be expiated Thispaper traces the history ofthe concepts ofinsanity and by compensation but had to be punished by death and diminished responsibility in English law. Insanity as a forfeiture ofproperty. Nevertheless for both groups of defence in Law has two components, and these two offences, botless and non-botless, there was no components developed quite separately. The idea that an assessment of culpability or responsibility - a sort of insane person may not know what he or she is doing when strict liability operated. It appears that the mentally he or she commits an offence, and isfor this reason not abnormal offender's family would have to pay guilty, goes back to the thirteenth century. The other compensation for any act done by him, including component, which developed in the seventeenth century, homicide, and thereafter take care of him - 'an insane was known as the 'right-wrong test'. According to this a person should be guarded and treated leniently by his person who commits an offence may be not guilty on the parents'. copyright. grounds that he does not know that what he is doing is wrong. The conceptofdiminished responsibility originated in the middle ofthe nineteenth century and was developed The twelfth to the eighteenth centuries in Scottish law.
    [Show full text]
  • A Comparison of R. V. Stone with R. V. Parks: Two Cases of Automatism
    ANALYSIS AND COMMENTARY A Comparison of R. v. Stone with R. v. Parks: Two Cases of Automatism Graham D. Glancy, MB, ChB, John M. Bradford, MB, ChB, and Larissa Fedak, BPE, MSc, LLB J Am Acad Psychiatry Law 30:541–7, 2002 Both the medical and legal professions recognize that The Diagnostic and Statistical Manual of Mental Dis- some criminal actions take place in the absence of orders, fourth edition (DMS-IV),3 does not define consciousness and intent, thereby inferring that these automatism, although it does include several diag- actions are less culpable. However, experts enter a noses, such as delirium or parasomnias, that could be legal quagmire when medical expert evidence at- the basis for automatism. tempts to find some common meaning for the terms The seminal legal definition is that of Lord Den- “automatism” and “unconsciousness.” ning in Bratty v. A-G for Northern Ireland: 1 The Concise Oxford Dictionary defines autom- . .an act which is done by the muscles without any control by atism as “Involuntary action. (Psych) action per- the mind, such as a spasm, a reflex action, or a convulsion; or an formed unconsciously or subconsciously.” This act done by a person who is not conscious of what he is doing, seems precise and simple until we attempt to de- such as an act done while suffering from concussion or while 4 fine unconscious or subconscious. Fenwick2 notes sleepwalking. that consciousness is layered and that these layers This was developed by Canadian courts in R. v. Ra- largely depend on subjective behavior that is ill de- bey: fined.
    [Show full text]
  • Intoxication and Legal Defences Quazi Haque & Ian Cumming
    Haque & Cumming Advances in Psychiatric Treatment (2003), vol. 9, 144–151 Intoxication and legal defences Quazi Haque & Ian Cumming Abstract Intoxication with alcohol and drugs is commonly associated with criminal offending. The relationship between intoxication and criminal culpability is complex and may be of psychiatric relevance, especially if a mental condition legal defence is being considered. This article outlines the legal issues (such as they apply in England and Wales) of which psychiatrists should be aware when preparing medico-legal opinions about mentally disordered offenders. Intoxication with alcohol or drugs is the obvious Box 1 Other UK jurisdictions theme of certain charges such as drunk and dis- orderly conduct or drink-driving. In other offences, The law in Scotland attaches rather less intoxication may be a factor that can affect or importance to subjective mens rea than that complicate the issue of criminal responsibility. in England and Wales. Most Scottish criminal Approximately 50% of violent offences and charges allege no mental element at all but property offences are committed after drugs or refer only to the proscribed harm. The mens alcohol have been consumed, and although con- rea terms such as recklessness and negligence sumption may not be directly linked to the offence, are often interpreted with an objectivist slant. there is often a strong association between the two. Liability for causing inadvertent harm while Psychiatrists are frequently asked to comment on drunk departs little from normal principles. the effects of intoxication on mental responsibility. The distinction between offences of basic and Although the legal defences of insanity and dimin- specific intent has therefore not developed to ished responsibility are familiar to psychiatrists, the the same extent as south of the border.
    [Show full text]
  • A New Homicide Act for England and Wales?
    The Law Commission Consultation Paper No 177 (Overview) A NEW HOMICIDE ACT FOR ENGLAND AND WALES? An Overview The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Honourable Mr Justice Toulson, Chairman Professor Hugh Beale QC, FBA Mr Stuart Bridge Dr Jeremy Horder Professor Martin Partington CBE The Chief Executive of the Law Commission is Steve Humphreys and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ. This overview, completed on 28 November 2005, is circulated for comment and criticism only. It does not represent the final views of the Law Commission. For those who are interested in a fuller discussion of the law and the Law Commission's proposals, our formal consultation paper is accessible from http://www.lawcom.gov.uk/murder.htm, or you can order a hard copy from TSO (www.tso.co.uk). The Law Commission would be grateful for comments on its proposals before 13 April 2006. Comments may be sent either – By post to: David Hughes Law Commission Conquest House 37-38 John Street Theobalds Road London WC1N 2BQ Tel: 020-7453-1212 Fax: 020-7453-1297 By email to: [email protected] It would be helpful if, where possible, comments sent by post could also be sent on disk, or by email to the above address, in any commonly used format. All responses will be treated as public documents in accordance with the Freedom of Information Act 2000, and may be made available to third parties.
    [Show full text]
  • Download Profile
    Maryam Mir Call: 2011 Email: [email protected] Profile Maryam is a popular choice amongst lay and professional clients for her detailed preparation, fearless advocacy in court and personable nature. She is a compassionate listener who fights for her clients with determination and gets great results. Maryam has experience in a wide range of criminal offences. As a led junior, Maryam is instructed in cases involving homicide, firearms, terrorism and large scale fraud. As leading counsel, she has defended in cases of serious violence, conspiracy to supply firearms, politically motivated offending from terrorism to protest, financial crime, fraud and regulatory matters, sexual offences, drugs supply conspiracies and kidnapping. She worked on several high-profile terrorism cases during her secondment with Reprieve, representing leaders of political parties sanctioned as terrorists by the UN, US and UK. She was part of a team that brought the first due process challenge in the US against the inclusion of a US citizen on a “Kill List”, whilst reporting on the conflict in Syria. She has experience in cases involving legal challenges to the use of state extra-judicial killing by drones and/or mercenaries. She assists individuals challenging their listing by the UN Security Council Counter-Terrorism Committee. Maryam is experienced in advising on appeals against conviction and sentence before the Criminal Division of the Court of Appeal. Maryam is determined to encourage other ethnic minority women to enter and stay in the profession. She
    [Show full text]
  • Defences, Mitigation and Criminal Responsibility
    Chapter 12 Defences, mitigation and criminal responsibility Page Index 1-12-1 Introduction 1-12-2 Part 1 - Defences 1-12-3 General defences 1-12-4 Intoxication/drunkenness due to drugs/alcohol 1-12-4 Self defence 1-12-4 Use of force in prevention of crime 1-12-5 Mistake 1-12-5 Duress 1-12-6 Necessity 1-12-6 Insanity 1-12-6 Automatism 1-12-6 Other defences 1-12-7 Provocation 1-12-7 Alibi 1-12-7 Diminished responsibility 1-12-7 Consent 1-12-7 Superior orders 1-12-7 Part 2 - Mitigation 1-12-9 Part 3 - Criminal responsibility 1-12-10 Intention 1-12-10 Recklessness 1-12-10 Negligence 1-12-10 Lawful excuse or reasonable excuse – the burden of proof 1-12-11 Evidential burden 1-12-11 Lawful excuse 1-12-11 Reasonable excuse 1-12-11 JSP 830 MSL Version 2.0 1-12-1 AL42 35 Chapter 12 Defences, mitigation and criminal responsibility Introduction 1. This chapter is divided into three parts: a. Part 1 - Defences (paragraphs 4 - 28); b. Part 2 - Mitigation (paragraphs 29 - 31); and c. Part 3 - Criminal responsibility (paragraphs 32 - 44). 2. This chapter provides guidance on these matters to those involved in the administration of Service discipline at unit level. Related chapters are Chapter 9 (Summary hearing and activation of suspended sentences of Service detention), Chapter 6 (Investigation, charging and mode of trial), and Chapter 11 (Summary hearing - dealing with evidence). 3. This is not a detailed analysis of the law on the most common defences likely to be put forward by an accused, but when read in conjunction with the chapters mentioned above, should provide enough information for straightforward cases to be dealt with and ensure that staffs can identify when a case should be referred for Court Martial (CM) trial.
    [Show full text]
  • Defences to Homicide Issues Paper
    Defences to Homicide Issues Paper Victorian Law Reform Commission GPO Box 4637 Melbourne Victoria 3001 Australia DX 144 Melbourne Level 10 10–16 Queen Street Melbourne Victoria 3000 Australia Telephone +61 3 8619 8619 1300 666 555 (within Victoria) Facsimile +61 3 8619 8600 TTY 1300 666 557 [email protected] www.lawreform.vic.gov.au ii Please note that this Issues Paper contains a number of case studies, each of which is based on a real case. Where possible, given names, not family names, are used. Where the given name is not available, the family name is used. The case studies also contain details of the offences, where this is necessary to explain the issues involved. These may be disturbing to some readers. Published by the Victorian Law Reform Commission. The Victorian Law Reform Commission was established under the Victorian Law Reform Commission Act 2000 as a central agency for developing law reform in Victoria. This Issues Paper reflects the law as at 31 March 2002. © 2002 Victorian Law Reform Commission. This work is protected by the laws of copyright. Except for any uses permitted under the Copyright Act 1968 (Cth) or equivalent overseas legislation, no part of this work may be reproduced, in any manner or in any medium, without the written permission of the publisher. All rights reserved. The publications of the Victorian Law Reform Commission follow the Melbourne University Law Review Association Inc, Australian Guide to Legal Citations (2000). Note: Unless otherwise stated, all references to legislation in this Issues Paper are to Victorian legislation.
    [Show full text]