Capacity Flashcards
what is the question of capacity?
whether D had the capacity to understand what they were doing when they committed the AR
whether they could have had intention/ MR
what are the 6 grounds for challenging capacity?
infancy
insanity
fitness to plead
diminished responsibility
automatism
intoxication
how is infancy used as a challenge to capacity?
criminal responsibility is from age 10 in UK
what was the principle of ‘doli incapax’?
why/when was it abolished?
children under 14 must know behaviour is seriously wrong before committing the act
1998 Crime and Disorder Act s.4
after James Bulger case 1993 (10 year old boys involved in the murder)
what is fitness to plead a consideration of?
Ds mental capacity at the time of the trial
D must be ‘of sufficient intellect to comprehend the course of proceedings on the trial and so as to make a proper defence… and to consider all the details of the evidence’
R v Pritchard 1836
what did reforms the Law Commission impose in 2010 in relation to fitness to plead?
provision of sufficient and suitable assistance to ensure D can stand trial
adaptations of trial process to make it more flexible and responsive
what constituted to unfitness to plead in M (John) 2003?
difficulty in:
understanding the charges deciding whether to plead guilty to not exercising right to challenge jurors instructing solicitors and counsel following the course of the proceedings giving evidence in their own defence
what was deemed the focus of fitness to plead considerations under s.4(a) in R v Antoine 2001?
strike a fair balance between need to protect D who has done nothing but is unfit to plead
AND need to protect public from D who has committed an injurious and criminal act
what does the challenge to capacity of insanity consider?
mental state at the time of the offence
what case governs the consideration of insanity?
M’Naughten 1843
what is the process of claiming insanity?
burden of proof on D to prove insanity
jury may find not guilty by reason of insanity
judge based disposal - absolute discharge, supervision order, hospital admission
what are the M’Naughten rules for insanity?
D must be
suffering from a defect of reason
this is caused by a disease of the mind
causing D either to: not know the nature/quality of the act or to not know act was wrong
what is the M’Naughten test not?
not based on medical research
legal NOT a psychiatric test
focuses on cognitive NOT volitional or emotional limitations
what was considered as constituting a ‘disease of the mind’ in Bratty v AG for Northern Ireland 1963?
‘any mental disorder that has manifested itself in violence and is prone to recur is a disease of the mind’
what did Lord Denning argue should be the response to a recognised ‘disease of the mind’ in Bratty 1963?
‘person should be detained in hospital rather than being given unqualified acquittal’
what was established as amounting to a claim of insanity in Sullivan 1984?
why?
epileptic fit
disease of the mind is not meant in psychiatric or medical terms - instead it is meant legally
‘matters not whether the effect is permanent or transient’
based on whether it affects the ‘mental faculties of reason, memory and understanding’
what else has insanity been found to include?
epilepsy - Sullivan
diabetes - Hennessy
sleepwalking - Burgess
tumour on the brain - Kemp
what was considered in the Law Commission Discussion Paper 2013?
in relation to insanity
defence of insanity was too wide in its inclusion of sleepwalkers
defence was too narrow to exclude volitional disorders
what suggestions did the Law Commission Discussion Paper 2013 make for insanity claims?
abolish insanity defence
replace it with a new defence based on lack of capacity
‘not criminally responsible by reason of a recognised medical condition’
what does a plea of diminished responsibility have the same effect as?
has the effect of reducing murder to manslaughter
same effect of loss of self-control
how can DR be recognised under the Homicide Act 1957 s.2 (1) amended by CJA 2009?
mental disorder, short of insanity
not severe enough for plea of insanity
has a significant effect on D and the actions they commit
what did R v Brennan 2014 highlight about the presence of uncontradicted medical/psychiatric evidence and DR?
no rational basis that jury could decline to accept the expert evidence
CA overruled finding in previous court
how is DR understood under the amended s.2(1) of the Homicide Act 1957?
D guilty of manslaughter, rather than murder, if they are suffering from an abnormality of mental functioning which:
arose from a recognised medical condition
substantially impaired Ds ability to do one of the things in 1(a)
provides an explanation for Ds acts in killing
what things are considered as to be substantially impaired under s.2 (1) (a) of HA 1957 for DR?
medical condition substantially impaired D to:
understand the nature of their conduct
form a rational judgement
exercise self control
when will abnormality of mental functioning provide an explanation for Ds acts in killing in DR under s.2(1)(b) HA 1957?
if it causes, or is a significant contributory factor in causing, D to carry out the act
(must directly impact the conduct)
how did R v Golds 2016 clarify the meaning of ‘substantially impaired’ Ds ability to do any of the things under s.2(1)(a) under DR?
substantially impaired means it is an ‘important or weighty factor’ not just ‘more than trivial’
how did R v Tania Clarence 2014 clarify the law on DR?
abnormality of mental function must arise from a recognised medical condition
must explain Ds actions
must impair understanding/ rationality/ self-control
what did the R v Challen 2019 case concern?
what was the result?
D had been involved in an abuse relationship from the age of 16
‘post nuptial’ agreement meant D was unable to interrupt V or speak to strangers
D returned after being sent out in the rain and V commanded her not to speak
D struck V repeatedly with a hammer
originally convicted of murder as DR was downplayed
calls for appeal which led to the re-sentencing of manslaughter
what are reasons to consider the mental consequences of abuse in DR?
battered woman syndrome links with PTSD
recognition in American Psychiatric Association’s manual
otherwise questions the validity of the claim
how do diminished responsibility and loss of self-control defences differ?
DR - doesn’t rely on a triggering event and relies on abnormality of mental functioning
LOSC - requires proof of a triggering event that showed proof or serious threat of violence
what is ‘non-insane automatism’?
what is the reasoning for the defence?
external cause that leads to acquittal
AR was not performed with the necessary MR
what was an example of non-insane automatism in Quick 1973?
hypoglycaemia which was due to insulin levels as an external cause
what is insane automatism?
internal cause which leads to the requirement of D pleading insanity
what is an example of insane automatism in Hennessy 1989?
hyperglycaemia due to diabetes as an internal cause
what did the AG reference 2/92 describe as the requirement for a claim of automatism?
‘total destruction of voluntary control on Ds part’
‘impaired, reduced or partial control is not enough’
what case was an example of self-induced automatism?
Bailey 1983
took insulin but didn’t eat enough
foresight of becoming ‘aggressive, unpredictable and uncontrolled’
what are areas, within automatism, in need of reform?
requirement of a doctrine to distinguish between internal v external creation
aligning burden of proof (D has to prove insanity/ V has to disprove automatism)
establish what degree of control is required to be lost - absolute or can it merely be effective?
what does the excuse of intoxication allow?
NOT a defence
but may prevent D from forming the necessary MR for a specific intent crime
what does the excuse of voluntary intoxication not allow?
does not allow defence for whole crime
never a defence for a crime of basic intent
when will intoxication be considered to alter the awareness of D and shift potential liability, under s.6 (5) of the Public Order Act 1986?
intoxication was not self induced
intoxication was caused solely by the administering of medical treatment
(again, only a defence for specific intent)
how was basic intent and specific intent differentiated in Majewski 1977?
specific intent - intoxication shows a lack of MR
basic intent - intoxication attributed to the MR (recklessness)
what is the effect of voluntary intoxication on MR?
Hardie 1984
non-dangerous drugs being consumed voluntarily generates a subjective recklessness
what is the effect of involuntary intoxication on MR?
Kingston 1995
involuntary intoxication is irrelevant if MR is existent (or if its not a consideration - basic intent)
how did the Judicial Compendium 2017 describe the question the jury must answer for voluntary intoxication on specific intent crimes?
consider whether, despite being intoxicated, D had formed the required intention at the time of the offence
if it was present, then D could not use it as a defence
how did the Judicial Compendium 2017 describe the question the jury must answer for voluntary intoxication (non-dangerous drugs) on basic intent crimes?
consider whether, when D took the drug, they were aware of the risk that it might lead to such behaviour in their case but went on to take the risk when it was unreasonable to do so in the circumstances known to him
if so, cannot be used as a defence
how did the Judicial Compendium 2017 describe the question the jury must answer for involuntary intoxication on non-strict liability crimes?
(spiked drinks)
consider whether, despite being involuntarily intoxicated, D had formed the required state of mind at the time of the offence
if so, intoxication could not be used as a defence
what should be considered in a case where there is the presence of both intoxication and DR?
what case shows an example?
jury should ignore the effects of drugs/alcohol and instead consider the abnormality of mental function linked to the DR
what case highlighted the distinct difference between how impairments on capacity are considered legally vs medically?
Dowds 2012
acute intoxication recognised as a mental disorder (ICD 10) but not legally
DR still requires ‘abnormality of mental functioning’ test
what reforms on defining intoxication were proposed in 1993 by the LC?
’’ 2009?
1993 - abolish Majewski distinctions between specific and basic intent
2009 - stay with Majewski but replace SI/BI with different, more clear terminology
what case allowed the defence of intoxication when withdrawal from an alcohol binge led to psychosis?
R v Harris 2013
could make claim that psychosis meant that D was not aware of the risk created towards others
what case did not allow the defence of intoxication/self-defence when voluntary intoxication created psychosis?
what does this contrast with?
R v Taj 2018
self-induced intoxication caused him to perceive threats other reasonable people would not see
contrasts with R v Harris 2013/ psychosis was from withdrawal
what are the current tensions within the law in relation to capacity?
law and medicine - insanity and DR
logic and policy - insanity and intoxication
law and morality - intoxication
what happened in R v Coley 2013?
why was there no argument for insanity?
’’ for automatism?
D had voluntarily intoxicated himself with cannabis and claimed he blacked out when he had been found to stab his neighbour with one of his knives and a balaclava on
claim of being in a ‘psychotic state’ which caused d to black out and have no control
self-induced intoxication cannot be insanity/ created by an external cause
changing of clothes, specific intent crime of murder and self intoxication cannot be automatism
what case held that external causes could not be a legitimate consideration for causing insanity?
R v Hennessy
what case did not allow a 12 year old to claim the defence of ‘dole incapax’?
why?
R v JTB 2009
abolition of the defence as being assumed for 10-14 year olds
what was established in R v Dietschmann 2003?
in relation to the presence of DR and intoxication
recognition that if just the presence of intoxication, this could not be a consideration for limited capacity of D when killing
but mental incapacity can be considered for DR, even if there was also the presence of voluntary intoxication
why was R v Sullivan 1984 considered as a case of insanity vs that of automatism?
fit with insanity because:
D was unaware of what he was doing
the act was wrong
could be attributed to a ‘disease of the mind’
it led to a ‘defect of reason’
what were the facts of Majewski?
what was the rule established?
pub brawl after voluntary intoxication
3 counts of assault occasioning ABH
self-induced intoxication could not be used as a defence for basic intent offences
would show MR for specific intent too
what distinction was made between lack of intention and lack of memory after the fact in Kingston 1994?
why was involuntary intoxication not a defence?
‘there is a distinction between intention at the time and a lack of memory as to what happened after this time’
as a result, involuntary intoxication doesn’t necessarily mean that intention is removed, may just be memory of intending to
even though drugs had an effect of Ds inhibitions, the necessary mental element was still present
what does Mackay argue the effect of the new DR plea under the CJA 2009 has introduced?
how does he argue it is limited?
introduces clarification and modernisation in respect of the abnormality of mental functioning arising from a recognised medical condition
there is no link between ‘substantially impaired’ and a medically recognised condition in medicine
how does Mackay argue that the ‘appropriate connection’ between recognised medical conditions and the act of killing is advantageous?
'’limited?
highlights a causal link and perhaps provides a sufficient explanation to the jury for the jury
medical experts may not be able to explain this link which may reduce availability of a DR plea
inconsistent with gov objective for increasing scope for medical expertise
