Crim: w.9 - DEFENCES

Question 1

What is the effect of a successful defence?

Answer 1

Excludes liability even where crime has been committed

Question 2

What offences can general defences be used for?

Answer 2

Almost all offences.

Question 3

Which party bears the initial evidential burden and which, once the defence is introduced, must disprove it beyond reasonable doubt?

Answer 3

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.

Question 4

What is the definition of self-defence?

Answer 4

Use of force against unlawful aggressors in order to avert the threat they pose to oneself or others.

Question 5

Which case sets out the criteria for self-defence and what is it?

Answer 5

HM Adv v Doherty

1. Imminent danger to life/limb of accused or third party
2. Response must be necessary - no reasonable opportunity to escape
3. Proportionality - between harm and threat

Question 6

Which case stated hat accused must have had no reasonable opportunity to escape for self-defence to apply?

Answer 6

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

Question 7

Are the 3 conditions for self-defence set out in Doherty sufficient by themselves or cumulative?

Answer 7

Cumulative - all the conditions must apply for self-defence.

Question 8

Re: the 3rd criteria of self-defence (proportionality), what was held in Moore v MacDougall?

Answer 8

Moore v MacDougall

• using scissors in response to punches/kicks was disproportionate.
• ‘cruel excess’

Question 9

When is self-defence still available when accused is mistaken as to whether the accused actually posed a threat? (case)

Answer 9

Mistaken self-defence is possible but only if mistake reasonable
- Owens v HM Adv 1

Question 10

What is the defence called where the accused is compelled to act as a result of threat made by another person?

Answer 10

coercion

Question 11

What are the 5 general defences?

Answer 11

1. Self-defence
2. Coercion
3. Necessity
4. Automatism
5. Mental disorder

Question 12

Which case sets out the requirements for coercion and what are they?

Answer 12

Thomson
1. Imminent danger of death/serious injury of accused or 3rd party

2. Accused’s will must have been overcome by threats
3. Objective test: threats that would overcome the will of an ordinary constituted person of the same age and sex
4. No defence if accused voluntarily exposed himself to coercion (i.e. joined a gang)

Question 13

What is the defence of necessity?

Answer 13

Accused compelled to commit crime because of threat from circumstances

Question 14

Scots law was reluctant to recognise defence of necessity - which case finally recognised it?

Answer 14

Moss v Howdle

& more recently: LA Ref (No.1 of 2000

Question 15

What is the criteria for necessity as laid down by Moss and LA Ref (no.1 2000)

Answer 15

1. Imminent threat of death/serious injury against accused or 3rd party.
2. Threat must have constrained the accused to break the law - no other reasonable course of action
3. Threat must have ‘dominated’ the accused.
4. Objective: if a sober person of reasonable firmness sharing the characteristics of the accused.
5. act has real prospect of removing danger

Question 16

What happened in Dawson v Dickman?

Answer 16

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.

Question 17

Would coercion and necessity act as defence for murder? (2 cases)

What is the rationale?

Answer 17

Unlikely.

Dudley & Stevens
* shipwrecked, ate cabin boy.

Re A (conjoined twins)
* specific to facts

Rationale: should not have to choose between innocent lives.

Question 18

What case outlined the requirements for Automatism and what are they?

Answer 18

Ross v HM adv

1. Total alienation of reason
2. Caused by external factor
3. Not self-induced
4. Accused should not have foreseen it

Question 19

What did Cardle v Mulrainey state re: total alienation of reason (automatism)?

Answer 19

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.

Question 20

What happened in Lord Advocate’s Reference (No 1 of 2000) ?

Answer 20

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.

Question 21

What was the situation in Sharp re: alienation of reason?

Answer 21

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.

Question 22

In which case was sleepwalking considered an external factor for automatism?

Answer 22

Finegan v Heywood

• man sleptwalked an committed motoring offences.
• Sheriff originally treated sleepwalking as internal.
• Appeal held it was external.

Question 23

Which case showed that voluntary intoxication was not a defence (or constituted alienation of reason for automatism)?

Answer 23

Brennan v HM Adv

• accused consumed 20-25pints, sherry and LSD
• stabbed father

NO defence

Question 24

The 4th criteria for automatism(in Ross) is that the accused could not have foreseen it. What was held in Finegan v Heywood?

Answer 24

Finegan v Heywood
* accused knew he sleptwalked when drunk - should have foreseen it.
NO defence

Question 25

What act includes the mental disorder defence?

Which section?

Answer 25

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

Question 26

Which case discussed ‘nature or wrongfulness’ re: the mental disorder defence?

Answer 26

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)

Question 27

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

Answer 27

s 51A(2) 1995 Act

Question 28

How must mental disorder be proven?

Answer 28

Must be proved by accused on the balance of probabilities (s 51A(4) 1995 Act)

Question 29

What does a successful defence or mental disorder result in?

Answer 29

Results in full acquittal but court has powers of disposal e.g. treatment or supervision orders or detention in hospital

(s 57 1995 Act).

Question 30

What is the test for ‘unfitness for trial’ and what section is it in (1995 act)?

Answer 30

Accused must be ‘incapable, by reason of a mental or physical condition, of participating effectively in trial’

s 53F

Question 31

How is mental disorder unlike the other general defences re: the court’s power?

Answer 31

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)

Question 32

Can involuntary intoxication constitute a defence for automatism?

What about voluntary intoxication?

Answer 32

Involuntary: Yes sometimes.

Voluntary: no

Question 33

Which case suggests that voluntary intoixcation cannot even be used to deny that the accused had the required mens rea for an offence?

Answer 33

Brennan v HM Adv