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Publication Template - Law Reform Commission

Publication Template - Law Reform Commission

Publication Template - Law Reform

RePoRT Defences in criminal law (LRC 95-2009)

  • Page 3 and 4: REPORT DEFENCES IN CRIMINAL LAW (LR
  • Page 5 and 6: MEMBERSHIP The Law Reform Commissio
  • Page 7 and 8: ADMINISTRATION STAFF Head of Admini
  • Page 9 and 10: ACKNOWLEDGEMENTS The Commission wou
  • Page 11 and 12: TABLE OF CONTENTS Table of Legislat
  • Page 13: A Introduction 157 B Duress 158 C A
  • Page 17 and 18: TABLE OF CASES Re A (Children) [200
  • Page 19 and 20: R v Charlebois [2000] 2 SCR 674 Can
  • Page 21: xix
  • Page 24 and 25: three Consultation Papers mentioned
  • Page 26 and 27: community service in the 21st centu
  • Page 28 and 29: situations where a person acts in r
  • Page 30 and 31: applies only where a person has bee
  • Page 33 and 34: 1 CHAPTER 1 CRIMINAL DEFENCES - AN
  • Page 35 and 36: lame them for the act in question.
  • Page 37 and 38: accused‟s loss of self-control ra
  • Page 39 and 40: ecommendations made is that the tes
  • Page 41 and 42: the M‟Naghten Rules. Firstly, it
  • Page 43 and 44: 1.46 With regard to the first requi
  • Page 45: proved to be hugely influential, an
  • Page 48 and 49: B General Principles 2.05 Legitimat
  • Page 50 and 51: 2.13 The provisions of Article 40.3
  • Page 52 and 53:

    2.20 In Barnes the Court also exami

  • Page 54 and 55:

    „reasonableness‟ approach, cour

  • Page 56 and 57:

    (b) Discussion (1) Defence of the P

  • Page 58 and 59:

    on reasonable grounds that it was n

  • Page 60 and 61:

    defence of others is not limited by

  • Page 62 and 63:

    2.58 The Commission recommends that

  • Page 64 and 65:

    2.68 Section 20(4) of the 1997 Act

  • Page 66 and 67:

    2.76 The defendant was subsequently

  • Page 68 and 69:

    2.88 From the outset, it should be

  • Page 70 and 71:

    2.97 In a similar vein, the English

  • Page 72 and 73:

    danger and a reasonable belief that

  • Page 74 and 75:

    y those who kill in response to thr

  • Page 76 and 77:

    point ties in with the ancillary is

  • Page 78 and 79:

    “A person who is arresting a crim

  • Page 80 and 81:

    place themselves in further risk. T

  • Page 82 and 83:

    2.146 Although setting out such cat

  • Page 84 and 85:

    (2) Defence of Property and the Dut

  • Page 86 and 87:

    2.164 Arising out of the Barnes cas

  • Page 88 and 89:

    F The Proportionality Requirement 2

  • Page 90 and 91:

    two of the leading criminal cases o

  • Page 92 and 93:

    this case, O‟Connor and Fairall c

  • Page 94 and 95:

    favour of a more subjective approac

  • Page 96 and 97:

    that was the verdict at which they

  • Page 99 and 100:

    3 CHAPTER 3 PUBLIC DEFENCE A Introd

  • Page 101 and 102:

    3.10 Firstly, the Commission provis

  • Page 103 and 104:

    may be used. Adhering to the reason

  • Page 105 and 106:

    permits the use of lethal force to

  • Page 107 and 108:

    The 1990 United Nations Basic Princ

  • Page 109 and 110:

    lethal force is only permissible wh

  • Page 111 and 112:

    authorised to apprehend felons who

  • Page 113 and 114:

    dangerous than a fleeing suspect. I

  • Page 115 and 116:

    3.70 The Commission recognised that

  • Page 117 and 118:

    threat should be imminent before le

  • Page 119 and 120:

    prevent crime should be limited to

  • Page 121 and 122:

    3.104 In the Supreme Court, the maj

  • Page 123 and 124:

    Special provision is also made for

  • Page 125 and 126:

    discussed the issue of „warnings

  • Page 127:

    overseas deployments in which it is

  • Page 130 and 131:

    and practical difficulties. 1 Some

  • Page 132 and 133:

    doctrinal development is partly tes

  • Page 134 and 135:

    (a) Consultation Paper Recommendati

  • Page 136 and 137:

    4.25 Much of the complexity with th

  • Page 138 and 139:

    4.31 Closely related to arguments b

  • Page 140 and 141:

    carrying the title of murder, than

  • Page 142 and 143:

    „lawful‟ or in the case of prov

  • Page 144 and 145:

    where an ordinary person would have

  • Page 146 and 147:

    standard of self-control: whether t

  • Page 148 and 149:

    Appeal in The People (DPP) v MacEoi

  • Page 150 and 151:

    that followed. In People (DPP) v Mu

  • Page 152 and 153:

    eginning with R v Welsh 106 and con

  • Page 154 and 155:

    4.86 Following Camplin, a number of

  • Page 156 and 157:

    (II) Attorney General for Jersey v

  • Page 158 and 159:

    something constituting part of the

  • Page 160 and 161:

    the gravity of provocation. When co

  • Page 162 and 163:

    4.114 The Commission recommends a w

  • Page 164 and 165:

    contemptuous speech or behaviour…

  • Page 166 and 167:

    that the provocation was not offere

  • Page 168 and 169:

    eflect the 18 th century case R v O

  • Page 170 and 171:

    “[A]n angry strong man can afford

  • Page 172 and 173:

    from her husband for a number of ye

  • Page 174 and 175:

    provocation is a relevant considera

  • Page 176 and 177:

    of the defence of provocation is to

  • Page 178 and 179:

    (6) Self-induced provocation (a) Co

  • Page 180 and 181:

    B Duress 5.06 Duress, although long

  • Page 182 and 183:

    the trial judge ruled that although

  • Page 184 and 185:

    (a) Consultation Paper Recommendati

  • Page 186 and 187:

    involuntariness was introduced into

  • Page 188 and 189:

    equirement is generally regarded as

  • Page 190 and 191:

    death or serious harm is directed t

  • Page 192 and 193:

    5.57 Firstly, the Commission provis

  • Page 194 and 195:

    defendant is required to have the s

  • Page 196 and 197:

    5.72 The Commission considers that

  • Page 198 and 199:

    5.84 However, more recently in R v

  • Page 200 and 201:

    duress, given the increasing number

  • Page 202 and 203:

    R v Fitzpatrick 82 . The Commission

  • Page 204 and 205:

    (a) Consultation Paper Recommendati

  • Page 206 and 207:

    has been coerced into doing the act

  • Page 208 and 209:

    operate as a defence to murder. 112

  • Page 210 and 211:

    5.138 Clearly, arguments against ap

  • Page 212 and 213:

    which arose out of People (DPP) v M

  • Page 214 and 215:

    of necessity and duress by threats,

  • Page 216 and 217:

    6.12 In the recent Irish case Peopl

  • Page 218 and 219:

    6.23 In the Consultation Paper, the

  • Page 220 and 221:

    nature of claims that can arise und

  • Page 222 and 223:

    easoning in the case reflects the v

  • Page 224 and 225:

    lawful to shoot down a plane, killi

  • Page 226 and 227:

    application of duress of circumstan

  • Page 228 and 229:

    development of duress of circumstan

  • Page 230 and 231:

    account of the circumstances as the

  • Page 232 and 233:

    C Provocation 7.23 The Commission r

  • Page 234 and 235:

    the likelihood of being subjected t

  • Page 236 and 237:

    Section ___________________________

  • Page 238 and 239:

    ___________________________________

  • Page 240 and 241:

    (9) Where a person (in this subsect

  • Page 242 and 243:

    (3) Notwithstanding section 2(5), t

  • Page 244 and 245:

    (e) he or she was insane, within th

  • Page 246 and 247:

    Duress 6.—(1) A person does not c

  • Page 248 and 249:

    Effect on the Non-Fatal Offences Ag

  • Page 250:

    €15 The Law Reform Commission is

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