5.3 Criminal Defences

Question 1

What do criminal defences do? How must this be raised?

Answer 1

Defences raise new issues that need to be proven (by the prosecution or the defence) before guilt is established. The prosecution has to disprove the defence beyond reasonable doubt.

N.B: A defence does not need to be considered by the jury (and thus disproven by the prosecution) unless the defendant produces enough evidence to put the matter in issue.

Question 2

What can the partial defences achieve?

Answer 2

These defences apply only to murder. These include:
a) diminished responsibility
b) loss of control

They have the effect of converting a fully established murder into the lesser offence of manslaughter.

Before exploring the possibility of a partial defence, we must check that all the elements (AR and MR) of murder have been established. There must be an intention to kill or cause serious harm.

Question 3

Give an example of a general defence that can apply to all crimes?

Answer 3

Self-defence / prevention of crime. If this applies, it can prevent liability for crimes as serious as murder or as minor as common assault.

Self-defence and prevention of crime only justify the use of force against the source of the threat (victim etc. not third-parties)

Question 4

What happens once the defendant has raised the defence?

Answer 4

The prosecution has to disprove the defence beyond reasonable doubt.

Question 5

Give an example of when the burden of proving the defence lies on the defendant?

Answer 5

Diminished responsibility - this must be proven on the balance of probabilities.

Question 6

What is the specific rule for evidence with loss of control (a partial defence)?

Answer 6

The defendant must call “sufficient evidence” which requires enough evidence, in the opinion of the judge that a properly directed jury “could reasonably conclude the defence might apply”.

Question 7

Explain the defence of intoxication and when this may apply in law?

Answer 7

D denies a subjective MR state by saying that they were too drunk to foresee, intend or know the relevant fact. Particular rules are raised (Majewski rules).

In certain situations, criminal liability may be reduced or completely avoided because the MR element cannot be proved.

Question 8

What is the rule when an intoxicated person has the MR of the offence?

Answer 8

If D has already formed the MR of the offence, their intoxication is irrelevant - “a drunken intent is still an intent”

Question 9

What is the rule where an intoxicated person denies the MR?

Answer 9

Whether they can rely on their intoxication to support that denial depends on two things:
- whether they were voluntarily or involuntarily intoxicated;
- whether the offence they are charged with is defined as one of basic or specific intent

Question 10

What happens to a defence when D is voluntarily intoxicated?

Answer 10

Whether they can provide a defence will depend on whether the offence is one of basic or specific intent

Question 11

What happens to a defence when D is involuntarily intoxicated?

Answer 11

If a person is involuntarily intoxicated and rendered them unable to form the MR of the offence, they are not guilty. (Inability to form MR due to intoxication)

If, despite the involuntary intoxication, they did still form the necessary MR, the intoxication is no defence. (A drunken intent is still an intent)

Question 12

What are crimes of specific intent?

Answer 12

Crimes that can only be proven with intention (murder, OATP s18 GBH)

Question 13

What are crimes of basic intent?

Answer 13

Crimes that can be proven with recklessness (criminal damage, aggravated criminal damage, OATP s20 GBH, ABH, assault and battery)

Question 14

What are the elements of the defence of self-defence?

Answer 14

1) [Force used by D] The defendant used force

2) [Belief in necessity] The defendant had a genuine (even if unreasonably mistaken) belief that it was necessary to use force at the time they did so.
* Mistaken belief cannot be relied on based on voluntary intoxication

3) [Reasonableness of response] The force that D used was reasonable in the circumstances as D believed them to be

Question 15

What is meant by a ‘non-householder’ situation for self-defence?

Answer 15

In a non-householder situation, the use of force will not be regarded as reasonable if it was disproportionate in the circumstances as D believed them to be.

If the jury/magistrates decide that the force D used was excessive in light of D’s understanding of the situation, the use of force will not be reasonable and the defence will fail.

Question 16

What is meant by a ‘householder’ situation for self-defence?

Answer 16

The force only becomes unreasonable if it was grossly disproportionate in the circumstances as D believed them to be.

Question 17

Explain the test for reasonable force in self-defence?

Answer 17

The test essentially remains whether the force was reasonable in the circumstances.

Disproportionate force is the limit: non-householder cases

Grossly disproportionate force is the limit: house-holder cases.

** disproportionate force may not be automatically unreasonable in house-holder cases

Question 18

What are the requirements for the partial defence of loss of control?

Answer 18

This partial defence ONLY applies to the offence of murder - mitigating factor for sentencing to reduce murder to manslaughter. Requirements:

1) Murder resulted from a loss of control;
2) Loss of control resulted from a qualifying trigger (anger trigger or fear trigger);
3) A person of D’s sex and age with a normal degree of tolerance and in D’s circumstances would have reacted as D did (“ordinary man test”)

No requirement for loss of control be sudden as there could be a ‘slow burn effect’. Does not cover situations where a person acted out of a ‘considered desire for revenge’.

Question 19

Explain the fear trigger (s55(3)) for the partial defence of loss of control?

Answer 19

The loss of control comes from D’s “fear of serious violence from the victim against the defendant or another identified person.”

Question 20

Explain the fear trigger (s55(4)) for the partial defence of loss of control?

Answer 20

The loss of control is because of a “thing (or things) done or said (or both) that constitute circumstances of an extremely grave character, and that caused D to have a justifiable sense of being seriously wronged.

** Sexual infidelity cannot constitute a qualifying trigger

Question 21

What are the elements for proving the partial defence of diminished responsibility (for murder)?

Answer 21

D must prove following elements on the balance of probabilites:
1) They were suffering from an abnormality of mental functioning
2) That abnormality arose from a recognised medical condition
3) The abnormality substantially impaired D’s ability to
- understand the nature of their own conduct;
- form a rational judgment or exercise self-control and
4) The abnormality caused or significantly contributed to D’s involvement in the killing.

Question 22

What are the elements for the defence of insanity?

Answer 22

D was suffering a defect of reasoning which:
1) arose from a disease of the mind, and EITHER
2) they did not know the nature and quality of the act they were doing, OR
3) if they did know the nature and quality of the act, then they did not know it was wrong

Burden of proof: On the defence - but on the balance of probabilities. This is done by calling evidence from at least 2 medical practitioners.

Question 23

How is the defence of automatism different from insanity?

Answer 23

Automatism occurs when someone loses all control of their own body due to an external cause - they therefore act involuntarily.

Insanity requires an internal cause.

If automatism is proved, it is a complete defence and D must be acquitted.

Question 24

How does a jury determine whether force has been used reasonably in self-defence?

Answer 24

Whether force is used reasonably is based on D’s perception of the situation but this is judged objectively