7- Capacity defences

Question 1

What are the 3 capacity defences covered?

Answer 1

1. Insanity
2. Automatism
3. Intoxication

Question 2

What type of defence is insanity?

Answer 2

Special defence- D has to prove they come within the legal rules of insanity. If they prove it, there is a special verdict of ‘not guilty by reason of insanity’

Question 3

What is the difference between a capacity and a necessity defence?

Answer 3

CAPACITY: These are generally treated as excuses. They deny Mens Rea entirely, essentially claiming that D was not morally in control of their actions.

NECESSITY: Where D is arguing that it was necessary for them to commit a crime.

Question 4

On what case are the rules of insanity based on?

Answer 4

M’Naghten (1843)

Question 5

What are the rules of insanity and what are they called?

Answer 5

According to the M’Naghten Rules (M’Naghten (1843)), D must be

1. labouring under such a defect of reason,
2. which was a result from disease of mind that they either:
3. don’t know the nature & quality of the act they’re doing
   OR
   they don’t know what they’re doing is wrong.

Question 6

Is insanity a defence to all offences?

Answer 6

In DPP v H (1997), where D was charged with driving with excess alcohol, it was held that insanity isn’t a defence to strict liability offences as no mental element needs to be proved.

Question 7

What are the key points explaining the meaning of ‘defect of reason’? Include KEY CASE

Answer 7

1. D’s powers of reasoning must be impaired.
2. The defect of reason must be more than absent mindedness/confusion, meaning that if D is capable of reasoning but has failed to use those powers, there is no defect of reason:
   • (R v Clarke (1972)).

Question 8

What does Kemp (1956) illustrate?

Answer 8

Applies to the element of ‘disease of the mind’

• This is a legal term, not a medical one.
• It can be a mental disease or a physical disease which affects the mind.

Question 9

What does R v Sullivan (1984) illustrate?

Answer 9

Applies to the element of ‘disease of the mind’

• Held that insanity could be:
  
  1. Organic: when the brain is damaged by a physical cause
     (epilepsy/Alzheimer’s)
  2. Functional: when there is no organic reason for the brain
     damage.
     - It could also be permanent or temporary, provided it existed at
     the time of the offence.

Question 10

What does R v Hennessy (1989) illustrate?

Answer 10

Applies to the element of ‘disease of the mind’

• The disease can be of any part of the body provided it affects the mind.
• In this case diabetes was brought within the definition of insanity.

Question 11

What does R v Burgess (1991) illustrate?

Answer 11

Applies to the element of ‘disease of the mind’

• In this case, it was decided that in some instances, sleep-walking can come within the legal definition of insanity.

Question 12

What does R v Quick (1973) illustrate?

Answer 12

Applies to the element of ‘disease of the mind’

• This case shows how where D doesn’t know what they are doing due to an external factor, it doesn’t amount to a disease of the mind.
• In this case, the defence of automatism did apply.
• The decisions in Hennessy and Quick illustrate how, if D goes into an automatic state bc of diabetes, if this is caused:
  
  1. By the disease itself, which causes high blood sugar levels, as in Hennessy the correct defence is insanity
  2. By taking insulin (used to control blood sugar levels), which can sometimes lead to low blood sugar levels, the automatic state will have been caused by an external factor and therefore, as in Quick, it will not come within the rules of insanity but can rely on the defence of automatism.

Question 13

What does R v Coley (2013) illustrate?

Answer 13

Applies to the element of ‘disease of the mind’

• The voluntary intake of an intoxicating substance is classed as an external factor and D will not be able to use the defence of insanity.

Question 14

In which 2 ways may D prove they didn’t know the nature & quality of their act? Include KEY CASE

Answer 14

1. Because they are in a state of unconsciousness/impaired consciousness.
2. Because, although D is conscious, due to their mental condition they don’t understand/know what they’re doing (R v Oye (2013)).

If D can show that either of these states applies to them at the time of the act, then they satisfy this element of the M’Naghten rules.

Question 15

Can D use insanity if they know the nature & quality of the act?Include 2 KEY CASES

Answer 15

Yes, if they don’t know that what they were doing was wrong.
- Wrong is meant in the legal sense, not the moral one.

In R v Windle (1952) and R v Johnson (2007), it was held that because D knew what they had done was legally wrong, they were not insane by the M’Naghten Rules.

Question 16

Who has the burden of proof in an insanity defence?

Answer 16

It is on D to prove on the balance of probabilities that they come within the legal rules of insanity.

Question 17

What happens if the defence of insanity is successful?

Answer 17

The jury will give a special verdict of ‘not guilty by reason of
insanity’.
- Judge can then impose:
1. Hospital order- in murder cases, the judge must impose an indefinite hospital order, meaning that the hospital can only release D if the Home Secretary gives consent.
2. Supervision order
3. Absolute discharge

Question 18

What is automatism? Who used this definition?

Answer 18

A defence to a criminal offence.

In Bratty v Attorney-General for Northern Ireland (1963), defined as:

An act done by the muscles without any control by the mind, such as a spasm; or
an act done by a person who isn’t conscious of what they’re doing such as an act done while suffering from a concussion.

Question 19

What 2 types of automatism does the definition cover?

Answer 19

1. Insane automatism

2. Non-insane automatism

Question 20

What are the 3 questions to pose to determine the success of a defence of automatism?

Answer 20

1. What was the cause of automatism?
2. Was there total destruction of voluntary control?
3. Was the automatism self-induced?

Question 21

Q1 for automatism: What was the cause of automatism? (explain what they can be)

Answer 21

1. Internal= Insane automatism
   
   • This is where the cause of automatism is a disease of the mind within the M’Naghten rules and the defence will be one of insanity.

ii. External= NON-INSANE AUTOMATISM
- This is where the cause of automatism is external.
- If the defence succeeds, it is a complete defence and D will
be found not guilty.

 NON-INSANE AUTOMATISM:
 - The AR isn’t voluntary & D doesn’t have the required Mens 
   Rea due to the automatism.
 - D is therefore not at fault for their actions.
 - The cause of the automatism must be an external factor. This 
   includes hypnotism, a blow to the head, or an attack by a 
   swarm of bees (Hill v Baxter (1958)).
 - Held in R v T (1990) that exceptional stress could be an 
   external factor that may lead to automatism.

Question 22

Q2 for automatism: Was there total destruction of voluntary control? (explain the meaning of this)

Answer 22

1. NO- As set out in Attorney-General’s Reference (No.2 of 1992) (1993), there has to be total loss of voluntary control of one’s actions.
   
   • Partial loss of voluntary control not enough for automatism.
2. YES- There could be a defence of automatism.

Question 23

Q3 for automatism: Was the automatism self-induced? (explain the meaning of this)

Answer 23

This is where D knows that their conduct is likely to bring on an automatic state. Ex: a diabetic who fails to eat after taking insulin or a person who drinks after taking medication knowing they’ve been told not to.

1. NO- Can use defence of automatism for all offences.
2. YES
   a) If it results from voluntary intoxication: Defence available for
   specific intent offences only
   (R v Bailey (1983)).
   - Also doesn’t necessarily mean it will be available for specific intent offences- (Coley (2013)).
   b) If it results from an appropriate action but with unanticipated
   consequences: Defence available for both specific & basic
   intent offences (R v Hardie (1984)).
   c) If it results from failure from D or an improper action, such as
   D taking excessive insulin or not eating after taking it:
   Defence available for specific intent offences and
   sometimes basic intent offences.
   - not available for basic intent offences if D knew, or knew
   of the risk, that if D went into an automatic state, they
   might engage in dangerous/aggressive conduct (if they
   were reckless in consuming the intoxicating substance.)

Question 24

What is the difference between a specific and basic intent offences?

Answer 24

SPECIFIC: Where MR required is only intent, such as murder & s18.

BASIC: Where recklessness is part of the MR, such as s 47 & 20.

Question 25

Explain the main differences between insanity and automatism

Answer 25

1)
INSANITY: Proved by the defence on the balance of probabilities
AUTOMATISM: Raised by D but disproved by the prosecution beyond reasonable doubt.

2)
INSANITY: Automatism caused by internal factor
AUTOMATISM: Automatism caused by external factor

3)
INSANITY: Successful use of defence leads to not guilty verdict by reason of insanity.
AUTOMATISM: Successful use of defence leads to acquittal.

Question 26

What is the defence of intoxication?

Answer 26

A defence mainly based on public policy that needs proof that D was so intoxicated by alcohol, drugs, or other substances that they were incapable of forming the mens rea of the offence.

Question 27

What does the defendant’s guilt depend on for the defence of intoxication?

Answer 27

1. Whether the intoxication was voluntary or involuntary.

2. Whether the offence is one of specific or basic intent.

Question 28

What do the defences of automatism and intoxication have in common?

Answer 28

As with automatism, D’s guilt will depend on whether the offence is one of specific or basic intent.

Question 29

Explain voluntary intoxication in specific intent offences- include KEY CASES

Answer 29

1) Original test (‘could not’) set in DPP v Beard (1920) was ‘if D was so drunk that he was incapable of forming the intent required, he could not be convicted of a crime which was committed only if the intent was proved’.

2) New test: If D did not form the intent, no matter whether they were incapable of doing so or not, they can’t be guilty, although the best evidence of this will be if D ‘could not’ form the intent
- (R v Sheehan and Moore (1975)).

a.
Where there is an alternative basic intent offence, D may be charged with both and it can be left to the jury to decide which one applies (R v Lipman (1970)).

b.
Where D has the mens rea (despite being intoxicated), they are still guilty (Attorney-General for Northern Ireland v Gallagher (1963)).

Question 30

Explain voluntary intoxication in basic intent offences- include KEY CASES

Answer 30

1) Voluntary intoxication not a defence, as it’s considered reckless conduct & recklessness is enough to constitute mens rea (DPP v Majewski (1977)).

2) If D doesn’t realise the strength of the intoxicant, it could still be a defence
- (R v Allen (1988)- D drank homemade wine which had a much greater effect on him than expected. He committed sexual assaults whilst drunk. It was held to be voluntary intoxication and couldn’t use the defence as sexual assault is a basic intent offence.)

Question 31

Explain involuntary intoxication- include KEY CASE

Answer 31

All offences:

• If D’s intoxication isn’t his fault, he can argue they didn’t form the mens rea, but
• If the prosecution can prove that they formed the mens rea, they will be guilty of the offence, even if they wouldn’t have committed it had they not been involuntarily intoxicated (R v Kingtston (1994)).

HOWEVER, where D didn’t have the necessary intent or wasn’t reckless in getting intoxicated he won’t be guilty of any offence, basic or specific intent. (Hardie (1985)).

Question 32

Explain intoxicated mistake: include key case

Answer 32

If D is mistaken about a key fact bc they’re intoxicated and:
1. the mistake is about something which means D doesn’t have the necessary mens rea for the offence, then for specific intent offence they have a defence, not basic intent.

2. the mistake is about another aspect, ex: amount of force needed in self-defence, D WON’T have a defence.
   
   • this was stated in R v O’Grady (1987) and confirmed in R v Hatton (2005)

O’Grady was convicted of manslaughter, which is a basic intent offence. This is in line with the decision in R v Majewski (1977), in as getting drunk is a reckless course of conduct and recklessness is sufficient for the MR of the offence.

 - The decision in these cases and Hatton (2005) can be said to be contrary to the general rules of coincidence of MR and AR, as the intoxication can happen hours before the actual offence. 
 - In addition, when becoming intoxicated D has no idea that they will actually commit the offence. Normally, for offences where recklessness is sufficient it has to be shown that D knew there was a risk of the offence being committed.