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General Defences Notes

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General Defences Excuse v justification - (note - we do not use these terms in day to day law. It is unclear which defences are excuses and which justifications so the courts tend to refrain from using them)conceptually, defences can be categorised as either justifications or excuses. The way Robinson puts it: actors are excused, while acts are justified.

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Excuse - the conduct is wrong but the availability of a defence acknowledges human frailty. Generally denies MR - tries to show D was not the actor in control of his act.

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Justification - given the circumstances, D did the right thing. Justifications exculpate the actor. Justification generally accepts that MR existed. o Horder explains: when raising an excuse, D says that he could not reasonably have acted differently, but accepts some sort of moral control over the situation. Justification denies that moral control. Why do we recognise this distinction?

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Primarily of theoretical interest, but there are some instances where the distinction can be seen to have practical relevance: o It is legally acceptable to use force against excused behaviour, but not justified behaviour. o Justificatory defences are offered to strict liability offences, while excusatory ones are not. o If D puts himself in a position of deciding between two evils, he will be able to raise a justification but not an excuse. Debate: what is D doesn't know his behaviour is justified? (e.g. his victim is a felon but he doesn't know that)

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Dadson - D is not justified

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Robinson - D is justified

PUBLIC/PRIVATE DEFENCE

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Commonly known as self-defence, but also encompasses prevention of crime and protection of property. o Self-defence (including the protection of others) is laid down in the common law by Duffy. o Prevention of crime is governed by Criminal Law Act 1967 (clarified in Criminal Justice & Immigration Act 2008, s.76). o Protection of property is government by Criminal Damage Act 1971.

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