capacity defences

Question 1

Defences

Answer 1

Defences are relevant once it is established that the AR and MR are both present. Therefore in a scenario – work through the offence first then see if any defences apply

Question 2

Automatism

Answer 2

Involuntary Act
Due to external factor

Question 3

Intoxication

Answer 3

Voluntary or involuntary?
Basic or specific intent?

Question 4

Allen

Answer 4

intoxication remains voluntary even where D did not know the strength of alcohol or drugs

Question 5

It should be noted that where MR is formed prior to intoxication the intoxication will be no defence.

Answer 5

AG for Northern Ireland v Gallagher D decided to kill his wife. Bought whisky and knife. He got drunk, then killed his wife. Even though at the time he was unable to form the MR for murder (a specific offence), this had been formed prior to the alcohol

Question 6

Burden of proof

Answer 6

Burden of proof is on D to prove not only they were drinking but the degree to which they were impaired.

Question 7

Hardie

Answer 7

taking dangerous drugs might be conclusive proof of recklessness. With non-dangerous drugs it must be decided whether the taking itself was done recklessly. If it was this will be voluntary intoxication.

Question 8

the following are basic and specific intent:

Answer 8

basic because it can be completed with recklessnes:
Assault; battery; ABH; GBH (s.20)
Involuntary Manslaughter (either kind) would also be basic – though query if any MR is needed for GNM!
Because it requires either DISHONESTY or INTENT the following are specific intent:
Theft; Robbery; GBH s.18; Murder

Question 9

Involuntary Intoxication will only be a defence where…

Answer 9

the mens rea for a crime was therefore not formed. N.B This is harder for Basic Intent offences where they only have to realise harm is possible.

Question 10

Lord Denning

Answer 10

said: “if the drunken man is so drunk that he does not know what he is doing, he has a defence to any charge, such as murder, in which specific intent is essential, but he is still liable to be convicted for manslaughter for which no specific intent is necessary

Question 11

insanity

Answer 11

-Insanity is only relevant at the time offence was committed.
-D must prove on the balance of probabilities that he was insane
-If prosecution want to raise issue of D’s insanity they must prove it beyond reasonable doubt.
-If successful a special verdict will be given of “not guilty by reason of insanity”

Question 12

M’Naughten (1843) Rules

Answer 12

To succeed in pleading insanity you must show:
-Defect of reason
-Caused by a disease of the mind
-So that the defendant does not know the nature and quality of his act or as not to know that what he was doing was wrong.

Question 13

So that D does not know the nature and quality of his act or as not to know that what he was doing was wrong

Answer 13

Must prove any of the following:
That he did not know what he was doing
That he did not appreciate the consequences of his actions
That he did not appreciate the circumstances in which he was acting.
In these situations D lacks mens rea but rather than being acquitted gets the special verdict.