Criminal Defences Flashcards
Verdict if found to be insane
‘Not guilty by reason of insanity’ Hospital order (always for murder) Supervision and treatment order Guardship order Absolute discharge
Insanity: M’Naughten
D must be suffering from
- defect of reason (coming from a)
- disease of the mind (so that D either)
- does not know nature and quality of his act or D
- does not know what he is doing is wrong
Insanity: Clarke
Does not matter if only deprived of powers of reasoning temporarily as long as present at crime
- Defect of reasoning is more than just confusion or absent mindedness
(THE SYMPTOMS)
Insanity: Hennessy
Had not taken insulin so came from within- internal cause (can use insanity)
Insanity: Quick
Had taken insulin so did not come from within- external cause
(Cannot use insanity)
What can you use for disease of the mind
Malfunctioning of the mind Has to be INTERNAL that affect memory, reasoning, understanding - arteriosclerosis (thick arteries) - sleepwalking - hyperglycaemic - diabetes - psychopathy - bipolar
Insanity: D does not know nature and quality of act (Codere)
No idea what doing at all (unconscious/blacked out) or D was mistaken
- Unconscious/impaired consciousness
- sleep walking, epileptic - Conscious but does not understand/know what they are doing
- schizophrenia
Insanity: Johnson
D does not know act is LEGALLY wrong, doesn’t matter if they thought was morally right
Automatism: verdict if argued successfully
Not guilty
Automatism: define
Crime committed by an involuntary act caused by an external factor
Automatism: Bratty
Involuntary act is done by the muscles without any control by the mind (fit, reflex, seizure)
Automatism: AG Ref 2 1992
Loss of control must be total (no control at all)
Automatism: external factor
Automatic state must be caused by
- head injury
- hypnotism
- medication
- traumatic event
Automatism: Bailey
Did take their insulin so due to external factor: lack of food
Automatism: DPP v Majewski
Lipman
If basic intent and D knows risk of automated state- D has been reckless to commit basic intent offence
(So cannot use defence)
Lipman:
If specific intent depends if MR negated
- recklessness of autonomic state so definite basic intent
Self defence: verdict
If successful will be ‘not guilty’
Full and general defence
Self defence: Beckford
D must think threat is imminent (very soon- more so than assault)
- circum may justify pre-emptive strike
- subjective
Self defence: Gladstone Williams
It does not matter if D makes an honest mistake, jury can still find force necessary
Self defence: Bird
D does not have duty to retreat but if they have opportunity and fail to do so, jury can consider this and may decide force was not necessary
Self Defence: S76(3) Criminal Justice and Immigration Act 2008
When jury deciding what was proportionate- it’s as D believed circumstances to be
Self Defence: S76(7)(a) Criminal J & IA 2008
D not expected to weigh to a nicety the exact measure of any necessary action
(Weigh up exact proportions in the heat of the moment)
Self Defence: S76(7)(b) Criminal J & IA 2008
If D did what he honestly and instinctively thought was necessary, strong evidence that D took reasonable action
Self defence: Hussain
Force in revenge/retaliation/excess is not allowed
Self defence: O’Grady
Drunken mistakes cannot be relied upon for self defence
Self defence elements
Force must be necessary (D must honestly believe)
Force must be proportionate (as D believed circum to be)
Duress: define
D committed offence because D or someone D was responsible for has been threatened with death or serious injury. D must also have been reasonable in response to threat
Duress: Velderrama Vega
Threat must be death/serious injury
Can be accumulative as long as also threat of serious injury
Duress: threat to who?
D/person D is responsible for
- friends/family/situation
Must be IDENTIFIABLE PERSON/GROUP
Duress: Graham test
Tests if they responded reasonably
- Was D compelled to act as he did because he reasonably believed he had good cause to fear serious injury/death? (How believable)
- Would sober person of reasonable firmness sharing D’s characteristics have responded in same way?
Duress: Bowen
Characteristics can take into account when doing Graham test:
- age
- pregnancy
- serious physical disability
- mental disorder
- sex
Duress: how to apply Graham test
Is there connection between what D did and what D told to do?
Is there a safe avenue of escape?
Is threat on D’s mind while committing the crime?
Duress: Hasan
Duress not available when D voluntarily associated with others involved in criminal activity & forsaw or ought to have reasonably foreseen risk of being forced to commit crimes due to threats of violence
Duress: Sharp
Duress not available (self induced)
Duress: Shepherd
Duress available (not self induced)
Duress: of circumstances recognised in
Willer
Duress: Martin
Confirmed use of Graham test
Necessity: Dudley & Stephens
Rejected necessity as defence
Necessity: Re A
- Consequences of not acting would have inflicted inevitable and irreparable evil
- No more was done than was reasonably necessary
- Evil inflicted not disproportionate to evil avoided
(Only applicable to these case facts)
Intoxication: specific intent offences
- murder -S18 GBH/wounding
- theft/robbery -attempts
- 9(1)(a) & 9(1)(b) burglary (with theft not GBH)
Intoxication: basic intent offences
- assault - S20 GBH/wounding
- battery - Invol manslaughter
- S47 ABH - S9(1)(b) burglary (with GBH)
Intoxication: Voluntary/Specific
Lipman:
- D not convicted of specific intent crime if intoxication prevents from forming MR (intox negate MR of intention but voluntary so still reckless of basic intent)
Gallagher:
- if D still had intention despite intoxication MR not negated so will be guilty of specific intent crime (drunken intent still intent)
Intoxication: Voluntary/basic
Majewski:
- voluntary intoxication means you realise a risk of losing control therefore you have MR for basic intent crimes (recklessness)
Intoxication: involuntary/specific
Kingston:
- still had intent when committing crime so MR not negated (drunken intent still intent)
- if intoxication stops D intending it then MR negated
Intoxication: Allen
Intoxication must be completely involuntary to count as involuntary
- if D willingly intoxicates himself on any level, being unaware of strength of intoxication does not matter
Intoxication: involuntary/basic
Hardie:
- as involuntary they do not have auto recklessness
- if D still realised risk despite intoxication he will still be guilty as MR not negated
Consent: define
D pleads defence by stating V consented to the act
Consent: Slingsby
Can consent to battery/assault
Consent: Pretty v UK
Cannot consent to murder
Consent: Leach
Cannot consent to S18 OAPA
Consent: Brown & others
Usually cannot consent to S47 & S20 GBH/wounding
- not in public interest that people cause others injury for no good reason
Consent: exceptions
Properly conducted sports Medical Lawful chastisement Dangerous exhibitions Tattooing/piercing Ritual circumcisions
Consent: aitken
D’s drunken or mistaken belief in V’s consent can be a defence to horseplay
Consent: Wilson
‘Personal adornment’ (brandishing with hot object) are an exception like tattooing
Consent: Olugbuja
Mere submission is not consent
Consent: Gillick v West Norfolk & Wisbech Health Authority
Have to be ‘Gillick Competent’
V must have sufficient maturity, intelligence and understanding of the nature and consequences of what they are consenting to
Consent: Newland
If D lies to V/deceives about identity this will negate consent
Consent: implied
‘Ordinary jostlings of everyday life’ are not battery- implied consent
