英美刑法课件

分类 特殊辩护事由，即某一个或某几个具体犯罪中的阻 却理由，这类事由不具有普遍适用于各罪的效力， 只具有个别意义。 一般辩护事由

二、一般辩护事由
主要有未成年（infancy） 精神错乱（mental disorder）错误 （mistake）醉态（intoxication）被害人承诺（consent by Victim）上级命令（order by high authorities） 胁迫 （duress）紧急避险（necessity） 正当防卫（ justifiable defense） 警察圈套（ entrapment ）其他一般辩护事由 美国将其分为两类： 辩解（excuse）：infancy、insanity、mistake、intoxication 、 duress、 order by high authorities、 consent by Victim 正当理由（justification）：necessity、 justifiable defense

Tips: The requirements for being patrial included birth in the United Kingdom, having a CUKC holding parent, married to a patrial male and legal resident in the United Kingdom for more than 5 years. Those with patrial status had a right of abode in the United Kingdom and those who were non-patrial did not. In 1981, the British government enacted the British Nationality Act to reflect the patrial notion. The act was approved by the Parliament in October 1981 and came into effect in January 1983. This law divided CUKC holders into three categories: British Citizens (BC), British Dependent Territory Citizens (BDTC), and British Overseas Citizens (BOC).

1.2 Grant V Borg(1982)HL
D was a non-patrial with limited leave to remain in UK．D remained in UK beyond the time limit and was charged with knowingly…remain[ing】beyond the time limited by the leave’，contra to the Immigration Act 1971． Held :D was not guilty of Immigration Act 1971 offence[on other grounds]．Per Lord Bridge：The principle that ignorance of the law is no defence in crime is so fundamental that to construe the word“knowinglV| in a criminal statute as requiring not merely knowledge of the facts material to the offender’ s guilt, but also knowledge of the relevant law,would be revolutionary and…wholly unacceptable．’

Self-defence(正当防卫)
1.Force justified where necessary and reasonable 1.1The threatening circumstances must be imminent
Devin v Armstrong(1971)CA,NL During a riot,D urged others to build barricades and throw petrol bombs at police,claiming that such actions were necessary to prevent people from being assault and property damage. Held: D was guilty of inciting a riot,as she did not anticipate an

1.2 No duty to retreat from threatening circumstances
Julien(1969)CA D was involved in a quarrel with V,who was armed with a chopper（断路器）.D threw a milk bottle at V,causing his head to bleed. Held: D was guilty of assault occasioning actual bodily harm.There is no duty upon D‘take to his heels and run…but what is necessary is that [D]should demonstrate by his actions that he dose not want to fight’
Held D was guilty of inciting to disaffect．Mistake of law would not avail D，except in regard to sentencing mitigation． DPP:director of public prosecutions

英國及殖民地公民（Citizen of the United Kingdom and Colonies，簡稱CUKC）重新分成三大類： 英國公民 英國屬土公民 英國海外公民

2 Mistake of fact 2.1 Mistake as to the actus reus ToIson(1889)CCR D remarried five years after last seeing her husband，believing him lost at sea．In fact，he had deserted her and was still alive． Held D was not guilty of bigamy,as she believed in good faith and on reasonable grounds’that her husband was dead．
In the past，when D had previously distributed leaflets to British soldiers contra to the Incitement to Disaffection Act 1934，the DPP had declined to prosecute．The DPP then decided to prosecute．
imminent danger. ‘The plea of self-defence may afford a defence where the party raising it uses force,not merely to counter an actual attack,but to ward off or prevent an attack which he has honestly and reasonably anticipated.In that case,however,the anticipated attack must be imminent…’

2、Force justified where proportionate
2.1 The reaction must be proportionate and reasonable D was carrying a gun and went with a group to buy an illegal narcotic（毒品）. After a dispute with the suppliers,D and his group fled without paying and a chase ensued ,during which ,one of the pursuers was shot and killed. Held: D was not guilty of murder.

Beckfor (1987)PC D,a police officer.while investigating a domestic dispute，shot and killed a man who ran out of the back of the house. Held:D was not guilty of murder.(1)A person has a right to protect himself from attack and to act in the defence of others if force is necessary and reasonable.(2) A man about to be attacked dosenot have to wait for his assailant to strike the first blow or fire the first shot:circumstances may justify a pre-emptive（预先采取行动的） strike.(3)‘The test to be applied for self-defence is that a person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself or another.’ pre-emptive purchase 优先购买权