Crim: w.9 - DEFENCES Flashcards
What is the effect of a successful defence?
Excludes liability even where crime has been committed
What offences can general defences be used for?
Almost all offences.
Which party bears the initial evidential burden and which, once the defence is introduced, must disprove it beyond reasonable doubt?
Accused bears the initial evidential burden, but once the defence is introduced the prosecution must disprove it beyond reasonable doubt.
Exceptions: mental disorder + diminished responsibility - accused must prove: balance of probabilities.
What is the definition of self-defence?
Use of force against unlawful aggressors in order to avert the threat they pose to oneself or others.
Which case sets out the criteria for self-defence and what is it?
HM Adv v Doherty
- Imminent danger to life/limb of accused or third party
- Response must be necessary - no reasonable opportunity to escape
- Proportionality - between harm and threat
Which case stated hat accused must have had no reasonable opportunity to escape for self-defence to apply?
McBreaty v HM Adv
- Man chased by someone who caught him on shoulder, in response killed him.
- Judge omitted to tell jury about reasonable escape. Held: very important jury told that escape must be reasonable. If accused is exposed to equal/worse danger to escape there is no obligation
accused must have had no reasonable opportunity to escape for self-defence to apply
Are the 3 conditions for self-defence set out in Doherty sufficient by themselves or cumulative?
Cumulative - all the conditions must apply for self-defence.
Re: the 3rd criteria of self-defence (proportionality), what was held in Moore v MacDougall?
Moore v MacDougall
- using scissors in response to punches/kicks was disproportionate.
- ‘cruel excess’
When is self-defence still available when accused is mistaken as to whether the accused actually posed a threat? (case)
Mistaken self-defence is possible but only if mistake reasonable
- Owens v HM Adv 1
What is the defence called where the accused is compelled to act as a result of threat made by another person?
coercion
What are the 5 general defences?
- Self-defence
- Coercion
- Necessity
- Automatism
- Mental disorder
Which case sets out the requirements for coercion and what are they?
Thomson
1. Imminent danger of death/serious injury of accused or 3rd party
- Accused’s will must have been overcome by threats
- Objective test: threats that would overcome the will of an ordinary constituted person of the same age and sex
- No defence if accused voluntarily exposed himself to coercion (i.e. joined a gang)
What is the defence of necessity?
Accused compelled to commit crime because of threat from circumstances
Scots law was reluctant to recognise defence of necessity - which case finally recognised it?
Moss v Howdle
& more recently: LA Ref (No.1 of 2000
What is the criteria for necessity as laid down by Moss and LA Ref (no.1 2000)
- Imminent threat of death/serious injury against accused or 3rd party.
- Threat must have constrained the accused to break the law - no other reasonable course of action
- Threat must have ‘dominated’ the accused.
- Objective: if a sober person of reasonable firmness sharing the characteristics of the accused.
- act has real prospect of removing danger
What happened in Dawson v Dickman?
Dawson v Dickman
* drunk fire officer decided to move the fire engine to clear path for an ambulance.
Court: did not believe the drunk fireman had not really contemplated the threat.
NO necessity.
Would coercion and necessity act as defence for murder? (2 cases)
What is the rationale?
Unlikely.
Dudley & Stevens
* shipwrecked, ate cabin boy.
Re A (conjoined twins) * specific to facts
Rationale: should not have to choose between innocent lives.
What case outlined the requirements for Automatism and what are they?
Ross v HM adv
- Total alienation of reason
- Caused by external factor
- Not self-induced
- Accused should not have foreseen it
What did Cardle v Mulrainey state re: total alienation of reason (automatism)?
Cardle v Mulrainey
- A’s drink spiked with amphetamines.
- drove motor vehicle without license
- attempts to steal etc number of crimes.
- Tried to argue he should not be liable – like Ross.
Unlike Ross, accused had retained some reasoning powers - he understood what he was doing and that it was wrong.
There was NOT an alienation of reason.
What happened in Lord Advocate’s Reference (No 1 of 2000) ?
Lord Advocate’s Reference (No 1 of 2000)
* Accused damaged fences around a navy base because they believed that holding trident was against the law.
Held: no reasonable prospect that that action will remove the threat that exists.
What was the situation in Sharp re: alienation of reason?
Sharp
- Accused unable to support family financially.
- Murdered 2 of his children.
Held: accused was suffering from alienation of reason. He knew it was against the law, but he had lost the capacity to distinguish right from wrong.
In which case was sleepwalking considered an external factor for automatism?
Finegan v Heywood
- man sleptwalked an committed motoring offences.
- Sheriff originally treated sleepwalking as internal.
- Appeal held it was external.
Which case showed that voluntary intoxication was not a defence (or constituted alienation of reason for automatism)?
Brennan v HM Adv
- accused consumed 20-25pints, sherry and LSD
- stabbed father
NO defence
The 4th criteria for automatism(in Ross) is that the accused could not have foreseen it. What was held in Finegan v Heywood?
Finegan v Heywood
* accused knew he sleptwalked when drunk - should have foreseen it.
NO defence
What act includes the mental disorder defence?
Which section?
Criminal Procedure (S) Act 1995 - (inserted by Criminal Justice and Licensing (scotland) act 2010)
s 51A 1995 act
if at time of conduct unable, by reason of mental disorder, to appreciate the nature or wrongfulness of conduct
Which case discussed ‘nature or wrongfulness’ re: the mental disorder defence?
McKay v HM Adv
- Soldier in Afghanistan suffered PTSD and committed number of crimes.
- drank bottle of vodka
- called police before committing crimes - wanted to be caught.
- he did appreciate nature of wrong.
- psychiatrists divided as to whether he appreciated wrongfulness.
Held: sufficient for either: unable to appreciate nature OR the wrongfulness.
(NB. Original Judge unaware that the law had substantively changed - New test: ‘appreciation’ – wider than knowledge. He also told jury the defence would fail if accused was able to appreciate the wrongfulness of his conduct to any extent)
Which section of the 1995 act states: No defence if mental disorder ‘consists only of a personality disorder which is characterised solely or principally by abnormally aggressive or seriously irresponsible conduct’
i.e. antisocial personality disorder
s 51A(2) 1995 Act
How must mental disorder be proven?
Must be proved by accused on the balance of probabilities (s 51A(4) 1995 Act)
What does a successful defence or mental disorder result in?
Results in full acquittal but court has powers of disposal e.g. treatment or supervision orders or detention in hospital
(s 57 1995 Act).
What is the test for ‘unfitness for trial’ and what section is it in (1995 act)?
Accused must be ‘incapable, by reason of a mental or physical condition, of participating effectively in trial’
s 53F
How is mental disorder unlike the other general defences re: the court’s power?
Courts retain the power to order certain disposals of the accused where he/she is acquitted on the grounds of mental disorder.
s57 (e.g. detention in hospital)
Can involuntary intoxication constitute a defence for automatism?
What about voluntary intoxication?
Involuntary: Yes sometimes.
Voluntary: no
Which case suggests that voluntary intoixcation cannot even be used to deny that the accused had the required mens rea for an offence?
Brennan v HM Adv
