Criminal Flashcards
1
Q
What is voluntary manslaughter?
A
The verdict where the defendant has a partial defence to murder when the unlawful killing was carried out when the defendant was suffering from diminished responsibility or loss of control
2
Q
What are the two defences to a charge of murder?
A
- Diminished responsibility
- Loss of control
3
Q
What is diminished responsibility?
A
- A partial defence to a charge of murder which reduces the offence to one of voluntary manslaughter under s 2 Homicide Act 1957 as amended by s 52 Coroners and Justice Act 2009
- Previously the only defence was insanity, which was considered too narrow
4
Q
A person is not to be convicted of murder if they were suffering from an abnormality of mental functioning which a,b,c?
A
(a) Arose from a recognised medical condition.
(b) Substantially impaired their ability to understand the nature of their conduct, form a rational judgment or exercise self-control.
(c) Provides an explanation for D’s acts and omissions in doing or being party to the killing.
5
Q
What is abnormality of mental functioning?
A
- A state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal.
- E.g. Byrne (1960).
6
Q
What factors does abnormality of mental functioning cover?
A
- S 2(1) Homicide Act 1957.
- Covers both psychological and physical conditions.
- Covers any recognised mental disorder.
- Medical evidence must be provided however.
7
Q
How does substantially impairment work in defence?
A
- The abnormality of mental functioning has to be substantial enough that it impaired the defendant’s mental responsibility for their act.
- In Byrne, the appeal court let the jury make that decision and in Lloyd (1967), it was held that substantial did not have to mean total.
8
Q
What must be substantially impaired?
A
- The ability to understand the nature of their conduct - automatic state (they don’t know what they are doing, delusional, severe learning difficulties
- The ability to form a rational judgement - D DOES know what they are doing but cannot form a rational judgement because:
-Paranoia
-Schizophrenia
-Battered Women’s Syndrome - The ability to exercise self-control - Due to a condition, D is unable to control their actions e.g. Byrne (1960)
9
Q
What must the defendant do to come within the defence of diminished responsibility?
A
- D has to prove that the abnormality of mental functioning provides an explanation for their acts/omissions. (s 2 (1B) of the Homicide Act 1957).
- There must be some casual connection between D’s abnormality of function and the killing.
- Abnormality of function need not be the only factor but it still needs to be significant.
- If D was intoxicated at the time, then there is no defence of diminished responsibility if they were not suffering from an abnormality of mental functioning. Dowds (2012)
- If there is abnormality of function in addition to intoxication, this may make a difference. Dietschmann (2003), Hendy (2006) and Robson (2006).
10
Q
Under diminished responsibility what is the modern approach that the jury must decide on?
A
- Did D have an abnormality of function arising from a recognised medical condition?
- Did this abnormality substantially impair the ability to understand the nature of their conduct, form a rational judgement and exercise self-control?
- Did the abnormality cause, or was a significant factor in causing D to kill V?
- If all three can be satisfied, then a conviction of manslaughter can be found, if not, then whilst D will have the defence of diminished responsibility available, they will be guilty of murder.
11
Q
What are the possibilities to consider when D was also intoxicated at the time of the killing?
A
- Was the defendant intoxicated at the time of the killing and tries to use the defence of diminished responsibility?
- Was the defendant intoxicated and had a pre-existing abnormality of mental functioning?
- Was the intoxication due to addiction?
E.g. R v Dietschmann (2003) and R v Wood (2008).
12
Q
What is Alcohol dependency syndrome (ADS)?
A
Recognised medical condition and it means that someone who is a heavy drinker their mind is damaged
13
Q
What is the 3-stage test for juries for ADS in are R v Stewart (2009)?
A
- Was D suffering from an abnormality of mind (now mental functioning)? Merely having ADS is not enough, the nature and extent of it needed consideration.
- If so, was the abnormality caused by ADS?
- If so, was D’s mental responsibility substantially impaired? All the issues would have to be considered including the extent and seriousness of the dependency, the extent that D could control their drinking and whether they were capable of abstinence from alcohol.
14
Q
What has the Coroners and Justice Act 2009 done to improve the defence of diminished responsibility?
A
- Now gives statutory definitions to things like diminished responsibility.
- By using phrases such as ‘recognised medical condition’, it allows definitions flexible enough to take into account developments in medical knowledge in the future.
- Substantially impaired is also now clearly defined.
15
Q
What are the problems that still remain within diminished responsibility?
A
- Burden of proof is on the defendant. In most cases when a defence is raised, it is up to the prosecution to disprove it.
- Perhaps this is not fair with diminished responsibility and could be a breach of the European Convention on Human Rights, art 6(2).
- Everyone is presumed innocent until proven guilty by law, so it is unfair for the defendant to have to try and prove their innocence. It is up to the prosecution to prove their guilt.
- The other problem is that the government rejected the Law Commission’s suggestion in their 2006 report that those under 18 could include developmental immaturity under diminished responsibility. Conditions such as learning disabilities and autism are recognised medical conditions, but developmental immaturity is not the same.
- This means that a juvenile cannot use diminished responsibility as a defence if they are not suffering from abnormality of mental functioning.
16
Q
What is loss of control?
A
- A partial defence to a charge of murder which reduces the offence to one of voluntary manslaughter under s54(1) of the Coroners and Justice Act 2009
- Replaces the former defence of provocation
17
Q
What does the law on loss of control set out in s.54 of the Coroners and Justice Act 2009 state?
A
(a) D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control
(b) The loss of self-control had a qualifying trigger
(c) A person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D’
18
Q
What did the old defence of provocation have to prove and a case to explain it?
A
- Had to prove that the loss of control was sudden
- In Ahluwalia (1992), an abused wife failed in her defence of provocation, because although she had endured abuse at the hands of her husband over a number of years, her act of setting him alight with a can of petrol after he had gone to bed was judged to be murder because the provocation was not immediate
- She was granted an appeal on the basis of diminished responsibility however
19
Q
What has to come within the defence of loss of control?
A
- There has to be a qualifying trigger and s.55 sets them out
- D must have a fear of serious violence from V or another identified person. Or…
- A thing or things done or said which constitute circumstances of an extremely grave character or have caused D to have a justifiable sense of being seriously wronged
- The qualifying trigger can include combinations of the above
- Dawes (2013) failed because his loss of control was not triggered from a fear of violence when he himself he had triggered the violence in the first place
20
Q
Under s.55 what points have to be shown if D is relying on things said or done as a defence?
A
- They were of an ‘extremely grave character’ and
- They caused D to have a justifiable sense of being seriously wronged
- The question of whether the circumstances are extremely grave and whether D had a justifiable sense of being seriously wronged should be judged objectively
- E.g. Zebedee (2012) when a man who had killed his 94 year old incontinent father with Alzheimer’s disease had his conviction upheld because under the 2009 Act, the jury didnt deem the father’s repeated soiling of himself as either circumstances of a very grave character or having a justificable sense of being seriously wronged
21
Q
Can sexual infidelity be used as a defence?
A
- Used to be allowed as a reason for provocation.
- Excluded from the 2009 Act as the government felt that it could be used as a justification for male violence against women which was not appropriate in the 21st century. (The old provocation laws had developed hundreds of years ago).
- Can still be used if it is integral to the case and there are other factors involved however. Clinton (2012).
22
Q
Can ‘desire for revenge’ be used as a defence?
A
- Not considered, as was under the old provocation laws, like in Ibrams and Gregory (1981).
- In Baillie (1995), the C of A did allow D’s appeal because even though the motive of revenge was there, there was evidence of provocation and the original trial judge should have put that to the jury.
- The 2009 Act does not take revenge into account on its own.
23
Q
What is necessary for D to show which the 2009 act requires in standard of self control
A
- That apart from D’s sex and age, they must have demonstrated the normal degree of tolerance and self-restraint and in the circumstances of D, the reasonable man might have reacted in the same or similar way
- Apart from age and sex, no other personal characteristics, such as hot temper, are relevant in the ability to exercise self-control. E.g. A-G for Jersey v Holley (2005).
24
Q
What other circumstances can be considered in deciding whether the normal person who have reacted in a similar way to D in the same circumstances under self control?
A
- Depression
- Epilepsy
- Any history of sexual abuse
-E.g. In Gregson (2006) it was decided that D’s unemployment, depression and epilepsy COULD be used in deciding the gravity of provocation to him from V, who had taunted him about all three.
-It was decided that a normal person could have reacted in the same way given Gregson’s circumstances.
25
How does voluntary intoxication work for D in the defence of self control
- Voluntary intoxication is not a matter to be considered as part of D’s circumstances
- In Asmelash (2013), the C of A refused to allow voluntary intoxication as a defence stating that if parliament had meant it to be, it would have included it in the 2009 Act.
- However if a sober person might have behaved in the same way in D’s circumstances, then a defence of loss of control could be used even if they were drunk.
- Finally, if a person with severe alcohol or drug problems was mercilessly taunted as the qualifying trigger, then this could form part of the circumstances for consideration
26
How does reacting in the same way to voluntary intoxication when D is claiming the defence of self control work?
- In Van Dongen (2005), it was held that whilst the reasonable man would have lost self-control in similar circumstances, they would not have reacted in the same way, i.e. kicking the victim to death
- In this case, the old defence of provocation failed.
27
What was the old law judges followed on sufficient evidence in cases of the defence of self control?
In provocation the judge left the defence to the jury if sufficient evidence was produced, however implausible.
28
What is the new law on sufficient evidence in cases when there’s a defence of self control
- Law Commission report suggested ending this and allowing the judge to sift through any evidence in order to weed out what they considered unreliable.
- The Coroners and Justice Act 2009 did give the judge the task of deciding however whether there was sufficient evidence of loss of control to put to the jury.
- This held true in Dawes, Bowyer and Hatter (2013) when the C of A dismissed all the appeals on the basis that the original trial judge was absolutely right to say that there was not sufficient evidence to leave the defence to the jury.
29
What was the defence of provocation replaced with and why?
- The Coroners and Justice Act 2009 abolished the old defence of loss of control
- Reform was made as there had been many problems with the law on provocation
30
What was the biggest criticism of the old law of provocation?
That it was too wide and there were people getting off the hook
31
What was the problem with the old defence of provocations test?
- The Homicide Act 1957 set the test of whether D was provoked to lose self-control and if so, whether that provocation would have been enough to make the ‘reasonable man’ do the same.
- The problem here was that ‘reasonable man’ equated to reasonable adult.
- Yet in Camplin (1978), the 15-year-old boy’s age and ‘characteristics’ were considered.
- ‘Characteristics’ has now been changed to ‘circumstances’, but even before, the courts had been quite generous in their interpretations of this. E.g. Hill (2008) – D’s history of sexual abuse,
32
What is the comparison between provocation and loss of control?
- Provocation
-Narrower, provocation had to be sudden.
-D could rely on a wider range of things said and done as a defence of loss of control. Doughty (1986) succeeded here as the baby wascrying continuously for 19 days.
- Loss of control
-Narrower, sexual infidelity no longer considered.
-D can only rely on things said or done of an extremely grave character.
-D must have a justifiable sense of being seriously wronged. Doughty would fail this test.
33
What are the problems still remaining in the law of the loss of self-control?
- Law Commission proposed removing loss of self-control criteria owing to the fact that women in abusive relationships may kill after a prolonged period.
- This was rejected. Loss of self- control still needs to be proven, although it doesn’t have to be proven to be sudden.
34
What are the problems still remaining in the law of sexual infidelity and fear of serious violence?
- Finding a partner having sex with another person is still likely to result in a loss of self-control, yet this has disappeared as a defence.
- Fear of serious violence also needs to be proven in loss of self-control. This may prove difficult for the defence.
35
What is voluntary manslaughter?
An unlawful killing where the defendant doesn’t have the intention, either direct or oblique, to kill or to cause grievous bodily harm
36
What’re the wide range of circumstances involuntary manslaughter covers?
- Top end, behaviour is highly blameworthy, where death or serious injury could be foreseen
- Bottom end, careless behaviour, which may be considered only just blameworthy enough
- Maximum sentence is life; minimum, non-custodial
37
What are the two ways of committing involuntary manslaughter?
- Unlawful act manslaughter
- Gross negligence manslaughter
38
What are the elements of unlawful act manslaughter?
1. The defendant must do the unlawful act.
2 The act must be dangerous on an objective test.
3. It must cause death.
4. The defendant must have the required mens rea for the unlawful act.
- A civil tort is not enough, R v Franklin (1883).
- There must be a criminal unlawful act, R v Lamb (1967).
- An omission is also not enough, R v Lowe (1973).
- Along with non-fatal offences, any criminal act can lead to finding unlawful act manslaughter. E.g. Arson, R v Goodfellow (1986)
39
How does the level dangerousness affect the outcome of a case under involuntary manslaughter?
- In an objective test, the act must be dangerous and if a sober and reasonable person recognises some harm relating to the risk, then this is satisfied. R v Church (1965).
- It is not necessary for the defendant to realise the risk of harm. R v Larkin (1943)
- Risk of harm must refer to physical harm, R v Dawson (1985), but the defendant must also be aware of the victim’s frailty and the consequences of physical harm to them, R v Watson (1989).
- Burglary is not usually dangerous, although if carried out in a particular way, this can be taken into account, R v Bristow Dunn and Delay (2013)
40
How does causation work under the unlawful act and what the men’s Rea is?
- Causation is the same for murder, although an intervening act breaks the chain of causation.
- For the required mens rea for the unlawful act, it’s not necessary for the defendant to realise the act is either dangerous or indeed, unlawful. DPP v Newbury and Jones (1976).
41
What is gross negligence manslaughter?
When the defendant owes the victim a duty of care but breaches it in such a serious way that the victim dies, R v Adomako (1994)
42
What are the elements of gross negligence manslaughter set out in R v Adomako (1994)?
- The existence of a duty of care by the defendant towards the victim
- A breach of that duty of care which causes death
- Gross negligence which the jury considers to be so bad as to be criminal
43
Why is duty of care in gross negligence manslaughter
Must exist for the purposes of the criminal law
44
Under duty of care what is the 3 stage Caparo test?
1. Proximity of relationship
2. Reasonable foreseeability of harm
3. Is it fair, just and reasonable to impose a duty of care?
45
What can form the basis of gross negligence manslaughter?
Acts or omissions e.g. R v Singh (1999)
46
How does the creation of a state of affairs work in a duty of care?
- This is when the defendant creates a situation where a duty of care will exist and has become life-threatening and has broken the duty
- E.g. R v Evans (2009), the defendants, the mother and half-sister of the victim were convicted of GNM when they failed to call for help after V had overdosed. D claimed she did not owe a duty to her half-sister, but the Court of Appeal upheld her conviction on the basis that she had created a state of affairs by supplying the drug and failed in her duty of care when she hadn’t called for help.
47
What is an example of a case whereas owes a duty because I’d a relationship with the victim?
In R v Stone & Dobinson (1977), the defendants, who were mentally slow, were convicted of manslaughter because they had failed in their duty to care for an anorexic sister.
48
What must happen for someone to be convicted of gross negligence manslaughter?
- The negligence has to be extreme (gross).
- In R v Bateman (1925), the defendant’s actions were not grossly negligent, but in R v Adomako (1994), they were.
- A test must be established to determine that the accused’s actions go beyond a matter of compensation and that they become a criminal matter.
49
What is a problem with the test of gross negligence manslaughter?
- That it is up to juries to decide the appropriate standard for ‘gross’ negligence which can obviously be very subjective
- In both Adomako and Stone & Dobinson, whilst the ‘risk of death’ was not clear, the test was expressed as the risk being to the ‘health and welfare’ of the victim.
- Confusion over ‘risk of death’ has now been cleared up by the Court of Appeal, R v Misra and Srivastava (2004).
50
What’re the main criticisms of the offence of unlawful act manslaughter?
- Covers a very wide range of conduct - If it was more specific and there were different levels of offence then the defendant could be charged with a more appropriate offence. Would also help judges
- Death may be an unexpected result e.g. R v Mitchell (1983)
- A defendant who didn’t realise there was risk of any injury to the victim is still guilty of manslaughter because of the objective test - Having an objective test poses the question why should a defendant be guilty of manslaughter when he or she didn’t realise the risk of some harm occurring to the victim?
51
What was the Law Commissions ideas on the reform of unlawful act manslaughter?
- The Law Commission recommended the abolition of unlawful act manslaughter in 1994/6
- However, it didn’t recommend abolition in its 2006 report where instead it recommended a three-tier structure of homicide offences being: first degree and second degree murder and then manslaughter
52
What were the main criticisms of gross negligence manslaughter?
- The test is circular, as the jury is directed to convict if they think that the conduct was criminal - No sequence of reasoning, and instead the argument goes round in a circle
- The test may lead to inconsistent verdicts, as it depends on what different juries think - different decisions in very similar circumstances. Would make the law fairer if judges made the decision as to whether the defendants conduct was capable of amounting to gross negligence manslaughter
- The civil test for negligence should not be used in criminal cases: the purpose of the two branches of law is quite different
53
What did the 2006 Law Commisson Report recommend on the reform of gross negligence manslaughter
- Recommended that there should only be gross negligence manslaughter which would be committed where: a person by their conduct causes the death of another, a risk that their conduct will cause death would be obvious to a reasonable person in their position, they are capable of appreciating that risk at the material time, and their conduct falls far below what can reasonably be expected of them in the circumstances.
- Also recommended keeping the rule that gross negligence manslaughter can be committed even when D was unaware that his or her conduct might cause death.
54
What is insanity?
A full defence to a criminal offence requiring mens rea
- The defence must be labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act they were doing, or if they did not know it, that they did not know they were doing what was wrong
55
What did the case of M’Naghten (1843) lead to?
- The creation of a level set of rules for insanity that three elements must be proved:
1. A defect of reason
2. Which must be the result of a disease of the mind
3. Causing the defendant not to know the nature and quality of their act or not know they were doing wrong
56
How does defect of reason work when pleading insanity?
- The defendant’s powers of reasoning (ability to make a rational decision) are impaired, then this is a defect of reason and insanity. If they are simply absent-minded or confused, it is not - R v Clarke (1972) - absentmindedness is not an excuse
57
What must defect of reason be caused by?
- Disease of the mind – a legal, not a medical term. This means any disease that affects the mind. R v Kemp (1956)
- R v Sullivan (1984) case ruled that the disease can be any part of the body it has an affect in the mind then a defence can be raised. E.g. R v Hennessy (1989) high blood sugar levels due to diabetes, sleep walking R v Burgess (1991)
58
What factors does not come under insanity but gets confused that it does?
- If the cause of the defendant being in a state of not knowing what they are doing is external (such as a blow to the head), then this is not insanity. E.g. R v Quick (1973).
- If the defendant takes an intoxicating substance which causes a temporary psychotic episode, this is also not insanity. E.g. R v Coley (2013). This is voluntary intoxication.
59
What does nature and quality refer to relating to insanity?
The physical character of the act
60
What are the two way the defendant may not know the nature and quality of the act?
- If the defendant is in a state of unconsciousness or impaired consciousness, this satisfies this part of the M'Naghten Rules.
- If they are conscious, but owing to their mental condition do not understand what they are doing, then this will also work for this part of the test.
61
What is an example of a case where it was decided D didn’t know the nature and quality of their act?
In R v Oye (2013), the Court of Appeal decided that the defendant did not know the nature and quality of his act and substituted a conviction for ABH with one of not guilty by reason of insanity
62
Under nature and quality of someone’s act what makes them not be able to use the defence of insanity?
- The defendant knows the nature and quality of their act and that it is legally wrong, despite suffering from a mental illness, they cannot use the defence of insanity
- E.g. R v Windle (1952). The special defence of diminished responsibility did not exist in 1952, so Windle could not use it.
63
What options does the judge have to what to impose on the defendant who successfully pleads insanity and is found not guilty by reason of insanity?
- Send D to a mental hospital - can be a set period of time, indefinitely, or rest of your natural life
- Impose a hospital order (with or without restrictions on terms of release) - They might be sent to treatment usually with some kind of restriction
- Issue a supervision order - If a family members steps up and says that they will be responsible for D
- Issue an absolute discharge - would only count if you had a learning disability or something related
- If the charge was murder, then an indefinite hospital order must be imposed. A release can only be granted in this instance with the consent of the Home Secretary.
64
When evaluating insanity what is the problem with M’Naghten rules?
- Date from 1843 when knowledge of mental disorders was very limited
- Much more knowledge is known today on it and there should be a more modern definition
65
When evaluating insanity what is the problem with the legal definition of it?
1. Certain mental disorders are not covered, such as irresistible impulses, Byrne (1960). The defendant knows that what they are doing is wrong, but they cannot control their urges
2. People suffering from certain physical illnesses can be considered legally insane. Even sleep walkers can come under the definition of insane, Burgess (1991)
66
What is automatism?
A complete defence where the defendant proves that the body acted without any control by the mind due to an external factor
67
What are the two types of automatism?
- Insane automatism and non - insane automatism.
- In legal terms, insane automatism is caused by a "disease of the mind", while non-insane automatism is linked to external factors, such as a blow on the head or an injection of a drug.
- The distinction is primarily a legal one - the medical profession is unconvinced that there is any substantive difference between the two forms.
68
When evaluating insanity what is the problem with automatism?
- Insanity overlaps with automatism
- It’s necessary to decide whether the defendants automatic state is due to a mental illness or due to external factors
- The courts have decided that those suffering from any illness, mental or physical, which affects their mind or puts them into an automatic state amounts to insanity meaning that the defence of non-insane automatism has been removed from six people as epileptics and diabetics
- This has a serious consequence as those successfully using the defence of authority are entitled to a complete acquittal whereas the judge has to impose some form of order on the defendant on a finding of not guilty by reason of insanity
- Could be argued that the courts are reluctant to allow the defence of automatism because it will lead to a full acquittal, whereas on finding of not guilty by reason of insanity, the judge has to impose an order.
69
When evaluating insanity was is the problem with social stigma?
- In 2013, the Law Commission published a report on the use of the word ‘insanity’.
- It suggested that it is entirely inappropriate and carries social stigma to label those with diabetes or epilepsy as ‘insane’ and insulting to those with mental disorders.
- Despite this, the word remains in law.
70
When evaluating insanity was it the problem with proving it?
- Places the burden of proof on the defendant that they are insane.
- This could be in breach of Article 6 of the European Convention on Human Rights.
- It is also inappropriate to allow a jury to decide whether somebody is insane when this should be left to medical experts.
- Given the fact that the jury decide, there is the risk that they may be confused by the medical terminology or so revolted by the crime that they disregard the medical evidence and find the defendant guilty.
- This is what happened in the case of Peter Sutcliffe, the Yorkshire Ripper and Oye (2013).
71
When evaluating insanity what is a better alternative people are now using?
Since 1957, an alternative defence, diminished responsibility, for defendants with mental illnesses.
- This can reduce a murder charge to that of voluntary manslaughter.
- It is much more widely used than a defence of insanity and of course does not carry the same social stigma.
72
What reforms/ suggestions have been made in change to the defence of insanity?
- There have been several reports over the years with suggestions for reform of the defence of insanity.
- The most recent by the Law Commission in 2013 suggested a new defence, ‘not criminally responsible by reason of a medical condition.
73
What is insane automatism?
- A disease of the mind within the M’Naghten rules.
- Verdict will be not guilty by reason of insanity.
- E.g. sleepwalking.
74
What is self-induced automatism?
- When the defendant knows that their conduct is likely to bring about an automatic state.
- R v Bailey (1983).
75
What is non-insane automatism?
- A defence when the actus reus of the crime committed by D is not voluntary.
- The defendant must also not have the required mens rea.
- Cause of the automatism must be external such as a blow to the head, sneezing, hypnotism etc.
- Hill v Baxter (1958)
- Reduced or partial control of one’s actions is not sufficient for non- insane automatism. There must be ‘total destruction of voluntary control’. Attorney General’s Reference (No.2 of 1992) (1993).
76
What are specific intent offences?
If the offence the defendant is being charged with requires a specific intent mens rea, like murder, then they can rely on a defence of automatism because they lack that required mens rea.
77
What are basic intent offences?
- If D has been reckless in getting into the state of automatism, then they cannot rely on the defence of automatism because subjective recklessness is the sufficient mens rea
- Becoming voluntarily intoxicated through drink or drugs is also no grounds for a defence of automatism. In DPP v Majewski (1977) this was clarified as a reckless course of conduct
- If the defendant is not aware that their actions are likely to lead to a self-induced automatic state in which they might commit a crime, they have not been reckless and can rely on the defence. R v Hardie (1984).
78
Why does the Law Commission regard a defence of automatism as a denial of actus reus?
Because they consider the true basis of the defence as a denial of voluntary ‘action’ due to an external factor
79
What does a complete defence mean?
The defence can’t be made subject to any such orders
80
What are the two scenarios where diabetics have to rely on insane automatism or non-insane automatism?
A is a diabetic who lapses into a hyperglycaemic coma having not taken insulin, as to plead insane automatism and receives the special verdict regardless of whether he has been at fault in failing to take the insulin
On the other hand B is a diabetic who takes his insulin but fails to eat and lapses into a hypoglycaemic coma is treated as a sane automaton and can plead not guilty
81
What are the different approaches taken by the courts in relation to sleepwalking
- According to the decision in R v Burgess 1991, the case is treated as one of insane automatism requiring confinement and treatment. The court considered that, while sleep itself was a normal condition, sleepwalking, in particular violent sleepwalking, was not normal, and constituted a ‘disease of the mind’ within the M’Naghten test.
- Some courts have taken a generous approach and treated it as a plea of sane automatism. E.g. R v Bulrom 2005
- There’s also been inconsistencies of approaches where the defendant has been sleepwalking but was also voluntarily intoxicated. Also by contrast if someone was suffering an episode of parasomnia despite their own voluntary intoxication
82
When looking at proposals for reform, what definition was suggested by the draft Criminal Code (1989) on automatism?
- A person is not guilty of an offence if:
(a) He acts in a state of automatism, that is, his act -
(I) Is a reflex, spasm or convulsion; or
(II) Occurs while he is in a condition (whether of sleep, unconsciousness, impaired consciousness or otherwise) depriving him of effective control of his act; and
(b) The act or condition is the result neither of anything done or omitted with the fault required for the offence nor of voluntary intoxication
83
What reforms on automatism did the Law Commission propose in their 2013 discussion paper?
- It had already pointed out in an earlier Scoping Paper that the two defences are so closely related that if there is to be reform of insanity, then automatism must be reformed at the same time.
- The Discussion Paper sets out the present law and the problems with it. However, it recommends that where the accused’s loss of capacity to control his or her actions is due to something the accused culpably did or failed to do, then liability will still turn on the principles of prior fault. In this respect the Law Commission is not proposing any change to the law
84
What is the law on intoxication?
If the defendant have the required mens rea because of their intoxicated state, this may mean they are not guilty.
85
How do you judge if someone is guilty or not under intoxication relating to mental capacity defences?
- The intoxication was voluntary or involuntary and....
- Whether the offence charged is of specific intent or basic intent.
86
What is voluntary intoxication and how does it work?
- If the defendant has voluntarily made themselves intoxicated they have not formed the necessary mens rea for a specific intent offence and are not guilty. Specific intent offences are murder, s. 18 OAPA, theft, robbery and burglary. DPP v Beard (1920)
- If the offence is one of basic intent, then intoxication is not a defence. In these cases, recklessness, such as voluntarily getting drunk or high is enough for the required mens rea - DPP v Majewski (1977).
- If the defendant is suffering from a mental disorder brought about by past voluntary intoxication, then they can use this as a defence - R v Harris (2013)
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What is involuntary intoxication?
- If the defendant for instance, drinks a soft drink that has been laced or takes prescribed drugs that had an unexpected result, then they did not have the required mens rea and could use the defence of involuntary intoxication - R v Hardie (1984).
- If however they DID have the required mens rea when they committed the offence, despite being involuntarily intoxicated, it is not a defence - R v Kingston (1994).
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How does an intoxicated mistake link with involuntary intoxication?
- If D is mistaken about a key fact because they were intoxicated, then they have a defence if it is a specific intent offence.
- If the defendant has the basic intent for a particular offence e.g. R v Lipman (1970) there is no defence of intoxicated mistake because he had voluntarily taken drugs and the killing was as a result of reckless behaviour - guilty of manslaughter.
- If the mistake is about another aspect, such as the amount of force needed in self-defence, then D also has no defence e.g. R v O’Grady (1987)
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What is the current law on voluntary intoxication and intoxicated mistake?
- Criminal Justice and Immigration Act 2008
A drunken mistake caused through involuntary intoxication cannot be relied upon as a defence.
- S 76(5) whilst reasonable force may be used in the purposes of self defence, defence of another or prevention of crime, this does not enable D to rely upon any mistaken belief attributable to intoxication that was voluntarily induced.
- There is an exception however to the rule on intoxicated mistake. Under the Criminal Damage Act 1971, s 5 if the defendant has an honest belief that the person to whom property belonged would have consented to the damage (even if this belief is justified or not), then a defence where the mistake was made through intoxication can be used – Jaggard v Dickinson (1980)
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When evaluating intoxication what are the two interests at stake?
- On the one hand, people are free to make the choice to become intoxicated if that is what they wish.
- On the other hand, there is what we refer to as the paternalistic argument – that the state has a moral duty to control the consumption of intoxicating substances as they are the major reason for a lot of social disorder and crime, as well as putting a strain on social and health services. Victims of crime also need to have their rights upheld
- It is because of the paternalistic approach that the use of intoxication as a defence is limited.
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What is the problem with the men’s rea of intoxication?
The normal rules of play are that mens rea and actus reus must coincide, yet with basic intent offences, whilst getting drunk is a reckless course of conduct, there may be quite a time lapse between the decision to drink and committing the actus reus of any offence.
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What is an attempt?
- When the defendant has tried and failed to commit an offence, it is still right and proper that even though the offence was not actually committed, they should still be criminally liable.
- E.g. attempted murder in R v White (1910)
- Definition is statutory. Defined in S 1(1) of the Criminal Attempts Act 1981
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What is the actus reus and men’s Rea that has to be proved in confirming someone
- Actus reus - A person does an act which is more than merely preparatory to the commission of the offence
- Mens Rea - With the intent to commit that offence
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When deciding if D’s action is an attempt what has to be considered under actus reus?
- The act that the defendant commits has to be more than merely preparation for the main crime
- Attorney-General’s Reference (No.1 of 1992)(1993) stated that D had gone far enough before the last act in order for his offence to be judged as more than merely preparatory
- In R v Gullefer (1987), D’s actions were just preparatory therefore he was not guilty of attempting to steal
- The C of A stated that the preparatory acts had to have come to an end and the defendant had to have embarked on the crime proper
- R v Geddes (1996) at first appears silly because D clearly appears to have gone beyond preparation, but the C of A asked these two questions: 1. Had the accused moved fro, planning and preparation for execution or implementation and 2., had the accused done an act to show that was attempting or equipping himself to commit the offence?
- If we use these two questions, D hadn’t quite got that far, but it could be argued that he WAS putting himself in that position
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What cases show situations where the defendant had gone beyond mere preparation?
- R v Boyle and Boyle (1987)
- R v Tosti (1997)
- R v Jones (1990)
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When deciding if D’s action is an attempt what has to be considered under mens rea?
- For an attempt, the defendant must normally have the same intention as would be required for the full offence
- If the prosecution cannot prove that D had the intention, then D is not guilty of the attempt - R v Easom (1971)
- The problems flowing from this case and others were resolved in Attorney-General’s Reference (Nos 1 and 2 of 1979)(1979) when the C of A decided that if the conditional intent (if there was anything worth stealing) was there, then D could be charged with attempt
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What is the men’s rea for attempted murder?
- Involves proving a higher level of intention than for the full offence of murder
- The full offence requires that the prosecution proves the defendant had the intention either to kill or to cause grievous bodily harm
- However, for attempted murder, the prosecution must prove an intention to kill
- An intention to cause serious harm is not enough.
- This means that the prosecution always has to prove the higher level of intention for attempted murder e.g. R v Whybrow (1951)
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How does impossibility work with attempt on offences?
- People may intend to commit an offence and may do everything they possibly can to commit it, but in fact the offence is impossible to commit e.g. trying to kill someone who has already died hours ago from a heart attack
- Originally the courts held that if the full offence was impossible to commit, then D could not be guilty of an attempt
- In R v Shivpuri the courts overruled their previous decision and held that a person could be guilty of an attempt even though the commission of the full offence was impossible
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Why is it difficult convicting someone on an attempted crime?
- proving the mens rea.
- You have to prove beyond mere preparation.
- You have to be caught at the beginning of the offence (reached a point where the jury believes they’ve embarked on an offence)
