CRIMINAL - CAPACITY DEFENCES Flashcards
What is Duress?
Threats, violence, constraints, or other action used to coerce someone into doing something against their will or better judgement.
What are the three specifications?
- Threat must be imminent and no means of escape (R v Abdul-hussain 1999)
(Saddam-Hussain couldn’t escape the hole 😔) - D must commit the specified crime, if they do not then it is not duress ( R v Cole 1994)
- Duress cannot be used when they D put themselves in the situation (gangs etc..) (R v Fitzpatrick)
What case gave us the two tests?
R v Graham 1982
What are the two tests for Duress?
(1)Genuine belief from the D that his life was in danger- Whether or not the defendant was compelled to act as he did because, on the basis of the circumstances as he honestly believed them to be, he thought his life was in immediate danger.
(2) Would a sober person of reasonable firmness sharing the defendant’s characteristics have responded in the same way to the threats? (R v Bowen)
R v Valderamma – Vega 1985
Threat must be of death or serious injury
(Voldemort)
R v Martin 1989
Threat must be against you or someone for whom you have responsibility/family member
(Martin is a family man <333)
R v Hudson & Taylor 1971
Threat must be immediate and operating
R v Cole 1994
Defendant must have carried out the specified crime
R v Fitzpatrick 1977
Defendant cannot use the defence if they have voluntarily joined a violent gang/criminal organisation
(AO3) Law Commission 2006 report on murder and manslaughter
Duress should be a complete defence to murder, concluded it should be a defence to 1st degree murder, 2nd degree murder and manslaughter. LC argues there is a moral argument for duress being available for murder.
The law commission rejected the idea of distinguishing between persons who act to save their own life and those who act to save the life of a third person.
(AO3) Criticisms against Duress
The low intelligence or vulnerability are not characteristic which can be shared with the reasonable person. This may disadvantage such D’s and can be seen as too harsh (R v Bowen 1996)
Defence is not available to murder. Places an expectation on ordinary persons to act in an extraordinary manner and lay down theirs/their families lives rather than kill another. (R v Howe 1986)
not allowed for attempted murder but is permitted to charge under section 18 OAPA 1861. So if a D shot a person and missed, defence wont be available but if they caused GBH it would be. It depends on what the CPS decide to charge the D with.
(AO3) Strengths for Duress
Reflects moral values and the interests of justice. The D should not be liable where they were forced by the circumstances to commit an offence.
The threats must be of death or serious injury, limits the availability of the defence (Valderama-Vega)
The objective element (bowen) is crucial to the defence, it is unrealistic to expect standards of heroism from the D where a reasonable person would have done the exact same.
Must be a specified crime (cole) ensures there is a casual link between the crime committed and the threat.
No longer limited to the the D or his friends or family, now broadened to include those in a close relationship, or whom the D can reasonably be regarded to be responsible for (hasan)
INSANITY
A general defence to all crimes. When a defendant is found to be insane, there is a special verdict of ‘Not Guilty by Reason of Insanity’ (Criminal Procedure (insanity) Act 1964).
Previous result was lifetime institutionalisation.
S5 CRIMINAL PROCEDURE (INSANITY) ACT 1964
Mandatory detention applies for murder, but is at the discretion of the judge for other crimes.
Hospital order, supervision order or absolute discharge are available.
RAISING INSANITY
Can be raised by the prosecution, the defence and the judge. Relevant at three points - insanity before trial, unfitness to plead, insanity at the time of the offence.
Must be an INTERNAL factor for insanity.
INSANITY BEFORE TRIAL
- When the offender is in custody but obviously insane, Article 5(1)(e) allows lawful detention after confirmation from 2 doctors
UNFITNESS TO PLEAD
s4 Criminal Procedure (Insanity) Act 1964
Judge decides if one of six categories is beyond the capabilities of the defendant, e.g. following the course of proceedings or understanding the charges. IF unfit to plead, jury considers only the actus reus, NOT the mens rea.
INSANITY AT TIME OF OFFENCE - M’NAGHTEN RULES
M’Naghten 1843
It must be established that, at the time of the offence, the defendant was suffering from:
- A defect of reason (absentmindedness or forgetfulness is insufficient, R v Clarke)
- Caused by disease of the mind (Epilepsy, Bratty 1963, hyperglycaemia arising from diabetes, R v Hennessy 1989)
- Such that the defendant did not know what he was doing or, if he did know, he did not know the act was wrong (Windle 1952)
DEFECT OF REASON CASE
R v Clarke - Absent mindedness is insufficient
DISEASE OF THE MIND CASE
R v Hennessy - Hyperglycemia caused by diabetes
R v Bratty - Epilepsy
DID NOT KNOW WHAT THEY WERE DOING WAS WRONG CASE
Windle 1952
INSANITY STRENGTHS - COMPONENT 3
- s24 Domestic Violence, Crime and Victims Act 2004 = Can be a hospital order, supervision order, or an order for absolute discharge. Allows flexibility instead of blanket institutionalisation.
- Can be raised by both prosecution and defence, ensuring the best outcome for the defendant.
- Institutionalisation pre-trial (Article 5(1)(e)) requires input from two doctors of the offendor’s state of mind.
INSANITY WEAKNESSES - COMPONENT 3
- Arbitrary difference between R v Hennessy (Insanity due to taking too little insulin for diabetes) and R v Bailey (Automatism due to taking too much insulin for diabetes).
- Statutory definition of ‘mental disorder’ (Mental Health Act 2007) doesn’t align with legal concept of ‘disease of the mind’. Disease of the mind can encompass non-mental bodily disorders but may not cover e.g. psychopathy with Peter Sutcliffe.
- Based on a case from 1843 (M’Naghten 1843), so will not accurately represent current views on mental disorders
- ‘Insanity’ carries stigma and is not a psychologically or medically recognised term, it is only used legally.
- REFORM - Butler Committee 1975 - suggested it should be replaced by verdict of ‘not guilty on evidence of mental disorder’ - this never became law.
