Capacity

Question 1

what is the question of capacity?

Answer 1

whether D had the capacity to understand what they were doing when they committed the AR
whether they could have had intention/ MR

Question 2

what are the 6 grounds for challenging capacity?

Answer 2

infancy

insanity

fitness to plead

diminished responsibility

automatism

intoxication

Question 3

how is infancy used as a challenge to capacity?

Answer 3

criminal responsibility is from age 10 in UK

Question 4

what was the principle of ‘doli incapax’?

why/when was it abolished?

Answer 4

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)

Question 5

what is fitness to plead a consideration of?

Answer 5

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

Question 6

what did reforms the Law Commission impose in 2010 in relation to fitness to plead?

Answer 6

provision of sufficient and suitable assistance to ensure D can stand trial

adaptations of trial process to make it more flexible and responsive

Question 7

what constituted to unfitness to plead in M (John) 2003?

Answer 7

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

Question 8

what was deemed the focus of fitness to plead considerations under s.4(a) in R v Antoine 2001?

Answer 8

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

Question 9

what does the challenge to capacity of insanity consider?

Answer 9

mental state at the time of the offence

Question 10

what case governs the consideration of insanity?

Answer 10

M’Naughten 1843

Question 11

what is the process of claiming insanity?

Answer 11

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

Question 12

what are the M’Naughten rules for insanity?

Answer 12

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

Question 13

what is the M’Naughten test not?

Answer 13

not based on medical research
legal NOT a psychiatric test
focuses on cognitive NOT volitional or emotional limitations

Question 14

what was considered as constituting a ‘disease of the mind’ in Bratty v AG for Northern Ireland 1963?

Answer 14

‘any mental disorder that has manifested itself in violence and is prone to recur is a disease of the mind’

Question 15

what did Lord Denning argue should be the response to a recognised ‘disease of the mind’ in Bratty 1963?

Answer 15

‘person should be detained in hospital rather than being given unqualified acquittal’

Question 16

what was established as amounting to a claim of insanity in Sullivan 1984?

why?

Answer 16

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’

Question 17

what else has insanity been found to include?

Answer 17

epilepsy - Sullivan

diabetes - Hennessy

sleepwalking - Burgess

tumour on the brain - Kemp

Question 18

what was considered in the Law Commission Discussion Paper 2013?
in relation to insanity

Answer 18

defence of insanity was too wide in its inclusion of sleepwalkers

defence was too narrow to exclude volitional disorders

Question 19

what suggestions did the Law Commission Discussion Paper 2013 make for insanity claims?

Answer 19

abolish insanity defence

replace it with a new defence based on lack of capacity
‘not criminally responsible by reason of a recognised medical condition’

Question 20

what does a plea of diminished responsibility have the same effect as?

Answer 20

has the effect of reducing murder to manslaughter

same effect of loss of self-control

Question 21

how can DR be recognised under the Homicide Act 1957 s.2 (1) amended by CJA 2009?

Answer 21

mental disorder, short of insanity
not severe enough for plea of insanity
has a significant effect on D and the actions they commit

Question 22

what did R v Brennan 2014 highlight about the presence of uncontradicted medical/psychiatric evidence and DR?

Answer 22

no rational basis that jury could decline to accept the expert evidence
CA overruled finding in previous court

Question 23

how is DR understood under the amended s.2(1) of the Homicide Act 1957?

Answer 23

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

Question 24

what things are considered as to be substantially impaired under s.2 (1) (a) of HA 1957 for DR?

Answer 24

medical condition substantially impaired D to:

understand the nature of their conduct
form a rational judgement
exercise self control

Question 25

when will abnormality of mental functioning provide an explanation for Ds acts in killing in DR under s.2(1)(b) HA 1957?

Answer 25

if it causes, or is a significant contributory factor in causing, D to carry out the act

(must directly impact the conduct)

Question 26

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?

Answer 26

substantially impaired means it is an ‘important or weighty factor’ not just ‘more than trivial’

Question 27

how did R v Tania Clarence 2014 clarify the law on DR?

Answer 27

abnormality of mental function must arise from a recognised medical condition

must explain Ds actions

must impair understanding/ rationality/ self-control

Question 28

what did the R v Challen 2019 case concern?

what was the result?

Answer 28

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

Question 29

what are reasons to consider the mental consequences of abuse in DR?

Answer 29

battered woman syndrome links with PTSD

recognition in American Psychiatric Association’s manual

otherwise questions the validity of the claim

Question 30

how do diminished responsibility and loss of self-control defences differ?

Answer 30

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

Question 31

what is ‘non-insane automatism’?

what is the reasoning for the defence?

Answer 31

external cause that leads to acquittal

AR was not performed with the necessary MR

Question 32

what was an example of non-insane automatism in Quick 1973?

Answer 32

hypoglycaemia which was due to insulin levels as an external cause

Question 33

what is insane automatism?

Answer 33

internal cause which leads to the requirement of D pleading insanity

Question 34

what is an example of insane automatism in Hennessy 1989?

Answer 34

hyperglycaemia due to diabetes as an internal cause

Question 35

what did the AG reference 2/92 describe as the requirement for a claim of automatism?

Answer 35

‘total destruction of voluntary control on Ds part’

‘impaired, reduced or partial control is not enough’

Question 36

what case was an example of self-induced automatism?

Answer 36

Bailey 1983

took insulin but didn’t eat enough
foresight of becoming ‘aggressive, unpredictable and uncontrolled’

Question 37

what are areas, within automatism, in need of reform?

Answer 37

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?

Question 38

what does the excuse of intoxication allow?

Answer 38

NOT a defence

but may prevent D from forming the necessary MR for a specific intent crime

Question 39

what does the excuse of voluntary intoxication not allow?

Answer 39

does not allow defence for whole crime

never a defence for a crime of basic intent

Question 40

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?

Answer 40

intoxication was not self induced

intoxication was caused solely by the administering of medical treatment

(again, only a defence for specific intent)

Question 41

how was basic intent and specific intent differentiated in Majewski 1977?

Answer 41

specific intent - intoxication shows a lack of MR

basic intent - intoxication attributed to the MR (recklessness)

Question 42

what is the effect of voluntary intoxication on MR?

Hardie 1984

Answer 42

non-dangerous drugs being consumed voluntarily generates a subjective recklessness

Question 43

what is the effect of involuntary intoxication on MR?

Kingston 1995

Answer 43

involuntary intoxication is irrelevant if MR is existent (or if its not a consideration - basic intent)

Question 44

how did the Judicial Compendium 2017 describe the question the jury must answer for voluntary intoxication on specific intent crimes?

Answer 44

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

Question 45

how did the Judicial Compendium 2017 describe the question the jury must answer for voluntary intoxication (non-dangerous drugs) on basic intent crimes?

Answer 45

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

Question 46

how did the Judicial Compendium 2017 describe the question the jury must answer for involuntary intoxication on non-strict liability crimes?
(spiked drinks)

Answer 46

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

Question 47

what should be considered in a case where there is the presence of both intoxication and DR?

what case shows an example?

Answer 47

jury should ignore the effects of drugs/alcohol and instead consider the abnormality of mental function linked to the DR

Question 48

what case highlighted the distinct difference between how impairments on capacity are considered legally vs medically?

Answer 48

Dowds 2012

acute intoxication recognised as a mental disorder (ICD 10) but not legally
DR still requires ‘abnormality of mental functioning’ test

Question 49

what reforms on defining intoxication were proposed in 1993 by the LC?

’’ 2009?

Answer 49

1993 - abolish Majewski distinctions between specific and basic intent

2009 - stay with Majewski but replace SI/BI with different, more clear terminology

Question 50

what case allowed the defence of intoxication when withdrawal from an alcohol binge led to psychosis?

Answer 50

R v Harris 2013

could make claim that psychosis meant that D was not aware of the risk created towards others

Question 51

what case did not allow the defence of intoxication/self-defence when voluntary intoxication created psychosis?

what does this contrast with?

Answer 51

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

Question 52

what are the current tensions within the law in relation to capacity?

Answer 52

law and medicine - insanity and DR

logic and policy - insanity and intoxication

law and morality - intoxication

Question 53

what happened in R v Coley 2013?

why was there no argument for insanity?

’’ for automatism?

Answer 53

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

Question 54

what case held that external causes could not be a legitimate consideration for causing insanity?

Answer 54

R v Hennessy

Question 55

what case did not allow a 12 year old to claim the defence of ‘dole incapax’?

why?

Answer 55

R v JTB 2009

abolition of the defence as being assumed for 10-14 year olds

Question 56

what was established in R v Dietschmann 2003?

in relation to the presence of DR and intoxication

Answer 56

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

Question 57

why was R v Sullivan 1984 considered as a case of insanity vs that of automatism?

Answer 57

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’

Question 58

what were the facts of Majewski?

what was the rule established?

Answer 58

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

Question 59

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?

Answer 59

‘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

Question 60

what does Mackay argue the effect of the new DR plea under the CJA 2009 has introduced?

how does he argue it is limited?

Answer 60

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

Question 61

how does Mackay argue that the ‘appropriate connection’ between recognised medical conditions and the act of killing is advantageous?

'’limited?

Answer 61

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