criminal general defences

Question 1

what are the 3 parts to insanity

Answer 1

1) defect of reason
2) caused by a disease of the mind
3) defect must lead D to either not knowing what they were doing or not knowing their act was wrong in law.

Question 2

what is insanity also known as

Answer 2

insane automatism and should always be distinguished from Non- insane automatism.

Question 3

what is the special verdict of the defence is successful

Answer 3

“Not Guilty By reason of insanity”

Question 4

what are the orders available to the judge under criminal procedure (insanity and unfitness to plead) act 1991

Answer 4

a hospital order, supervision order, an absolute discharge

Question 5

what statement stems from the M’Naghten Rules 1843

Answer 5

“labouring under such defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong”

Question 6

what case supports the presumption of sanity and what is meant by the term

Answer 6

Woolmington v DPP 1935- there is a burden of proof on the D to prove insanity so he will have to bring medical evidence (as with diminished responsibility)

Question 7

what does defect of reason mean

Answer 7

being deprived of the power to use reason rather than just failing to use reason

Question 8

explain the case of R v Clarke

Answer 8

F: Mrs C accused of shoplifting and claimed she was absent-minded because of suffering depression
H: Denying MR not using a defence, Absent mindedness cannot be a defence.

Question 9

what is the legal definition of disease of the mind

Answer 9

any malfunctioning of the mind including states of mind that doctors and the rest of society would never equate with insanity

Question 10

explain the case of R v Kemp

Answer 10

F: hit his wife with a hammer causing GBH. suffering from arteriosclerosis (causing by temporary blackouts). Evidence showed he was devoted to his wife and could not remember picking up the hammer.
H: disease of the mind can be “ordinary mental facilities of reason, memory and understanding”

Question 11

explain the case of R v Burgess

Answer 11

F: B and a friend spent the evening watching videos at her flat. friend fell asleep and B hit her head with a bottle and the video recorder and grabbed her throat. Charged with GBH s18
H: B argued automatism for sleep walking but found not guilty by reason of insanity and appeal dismissed. sleep walking is internal.

Question 12

explain the case of R v Sullivan

Answer 12

F: Appellant kicked and injured a friend during an epileptic fit-charged with GBH
H: epilepsy was a disease of the mind because during a fit facilities could be impaired to the extent of causing a defect of reason

Question 13

explain the case of R v Hennessey

Answer 13

F: a diabetic charged with taking a vehicle and driving whilst disqualified. failed to take usual dose of insulin due to stress and depression= hyperglycaemia
H: trial judge ruled insanity so H pleaded guilty to avoid a mental institution.

Question 14

explain the case of Smith

Answer 14

F: violent and abusive to the cabin staff whilst on a flight. suffering from a brief reactive psychosis
H: allowed the defence even though the state was temporary

Question 15

explain the case of R v Windle

Answer 15

F: a killed his suicidal wife with an aspirin overdose when arrested he said “i expect i will be hung for this” evidence hr was suffering from a mental illness
H: what he said proved he knew it was wrong
confirmed in R v Sullivan

Question 16

what is the result of a successful plea of non-insane automatism

Answer 16

an acquittal

Question 17

what is the definition of automatism after the case of Bratty v Attorney-General for northern Ireland

Answer 17

“an act done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion, an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from concussion.”

Question 18

explain the case Attorney General reference no. 2 of 1992

Answer 18

F: when driving a lorry down a motorway, A crashed into a car parked on the hard shoulder, killing 2 people. evidence said he had been put into a trance-like state by repetitive vision of the road and wasn’t aware of what he was doing
H: CA held reduced awareness isn’t enough. the trial judge had got it wrong and D shouldn’t have been acquitted. LoC of body must be total

Question 19

explain the case of R v Quick

Answer 19

F: Diabetic D was a nurse at a psychiatric hospital who attacked a patient. hypoglycaemia, he claimed meant he didn’t know what he was doing.
H: the alleged mental condition wasn’t caused by diabetes but by the insulin used to treat it and his appeal was allowed.

Question 20

explain the case of R v Bailey

Answer 20

F: D was a diabetic who attacked and injured his ex gf’s new bf in a bout of hypoglycaemia. he had eaten sugar but nothing else.
H: CA (when not drink/drugs) self-induced automatism can be a defence. If A’s conduct was not reckless. if D knows the state he would be in then he would not be allowed the defence

Question 21

what is the main rule about basic intent offences

Answer 21

main rule is that D cannot use the defence if they have brought about the state by being reckless.

Question 22

explain the case of Coley

Answer 22

F: C consumed a large amount if cannabis and had a psychotic episode and stabbed his neighbour
H: D was ‘capable of complex organised behaviour’ and was clearly not acting wholly involuntarily.

Question 23

explain the case of Hardie

Answer 23

F:Ex gf gave D Valium and he set fire to the bedroom
H: could be automatism even though the drug hadn’t been prescribed by a doctor

Question 24

explain the case of R v Kingston

Answer 24

F: D was attracted to young boys but he could normally control these tendencies. his business associates decided to set him up so that he could be photographed with a young boy to blackmail him. got D and V (15 year old boy) drunk and the D sexually assaulted V.
H: HL held that intoxicated intent is still intent and the fact that the intoxication wasn’t voluntary made no difference to that.

Question 25

explain the case of DPP v Majewski

Answer 25

F: A had spent 24 hours getting drunk and taking drugs and then smashed a windows and attacked a police officer. A argued he was so drunk he had no recollection of the incidents at all and therefore couldn’t form the MR
H: confirmed basic intent crimes cannot use intoxication defence.

Question 26

explain the case of R v Lipman

Answer 26

F: A and his GF had taken LSD at his flat. effects include hallucinations D thought he was being attacked by snakes. stuffed a sheet down his gf’s throat
H: CA- had not formed the MR for murder and could not use the defence for manslaughter. if D deliberately takes alcohol/drugs in order to escape reality then cannot plead as a defence to basic intent crimes

Question 27

what 3 situations may raise the possibility of involuntary intoxication:

Answer 27

1. prescribed drugs - taking drugs on the advice of doctor can hardly be regarded as reckless
2. soporific drugs
3. laced drinks- where D was unaware they were consuming the intoxicant, but they must be completely unaware.

Question 28

explain the case of Attorney general for N Ireland v Gallagher

Answer 28

F: G wanted to kill his wife. he bought a knife and a bottle of whisky. he said he was so drunk he was incapable of forming MR for murder
H: HL can’t set out to get drunk in order to use the defence.

Question 29

explain the case of R v O’Grady

Answer 29

F: in a drunken state he killed his best friend believing (mistakenly) he was trying to kill him
H: because he became drunk voluntarily courts found him liable.

Question 30

what does the criminal justice and immigration act 2008 S 76(5)

Answer 30

mistake in induced by intoxication can be ignored in relation to the offence.

Question 31

explain what a public defence is

Answer 31

statutory defence contained in criminal justice and immigration act s76. it allows a defence to any person who uses such force as it reasonable in the circumstances to prevent crime or to assist in the arrest of offenders.

Question 32

explain what a private defence is

Answer 32

common law defences of self defence, defence of another or defence of property against using such force as is reasonable in the circumstances.

Question 33

what is said by lord griffiths in beckford about the imminence of threat

Answer 33

“a man about to be attacked doesn’t have to wait for his assailant to strike the first blow, or fire the first shot, circumstances may justify a pre-emptive strike…”

Question 34

explain the attorney generals reference no2 of 1983

Answer 34

F: D owned a shop in an area of extensive rioting. He made some petrol bombs and kept them ready to defend his property.
H: Defence was available because the threat was sufficiently imminent. therefore imminent= immediate future.

Question 35

explain the case of Malnick v DPP

Answer 35

F: D went to visit a man who he believed had stolen some valuable cars belonging to an acquaintance of D. thief was known to be violent so took a rice flail (martial arts weapon)
H: he himself erected a dangerous situation by going to the man’s house so defence wasn’t available.

Question 36

what was held in R v Bird that told us about the possibility of retreat

Answer 36

H: whilst withdrawing or demonstrating an unwillingness to fight is good evidence that the defendant is acting reasonably and in good faith in self defence, there was no absolute obligation to demonstrate an unwillingness to retreat.

Question 37

what does s148 of the legal aid sentencing and punishment of offenders act 2012 subsection 6A state

Answer 37

that a person is not under a duty to retreat but if they could have retreated this is relevant in deciding whether the degree of force was necessary .

Question 38

what does s76 (4) of the criminal justice and immigration act 2008 state about mistake in the context of self defence

Answer 38

that the court will judge the necessity of the defendant’s conduct on the basis of the facts as the D believed them to be even if the mistake wasn’t a reasonable one to make

Question 39

explain the case of R v Gladstone Williams

Answer 39

F: M saw a youth (Y) mugging a woman. He struggled with Y and when D arrived he misunderstood and thought M was attacking Y. M told him he was a police officer but when M could not produce ID D punched him in the face and charged with s47
H: facts are to be treated how D honestly believed them to be

Question 40

what does s76(5) of the criminal justice and immigration act 2008 say about making mistakes while intoxicated

Answer 40

if a mistake is induced by intoxication then the mistake has to be ignored in relation to the defence i.e. the reasonableness of the D’s action will be based on the real facts

Question 41

what does s76(6) of the criminal justice and immigration act 2008 say about reasonable force

Answer 41

“the degree of force used by D isn’t to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances”

Question 42

after s76(7) of the criminal justice and immigration act 2008 when deciding whether the force used is reasonable in the circumstances: …

Answer 42

A) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action and
B) that evidence of a persons having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.

Question 43

what was held in martin

Answer 43

conviction on appeal reduced to m/s because of DR. defence of self-defence rejected as he had used excessive force.

Question 44

explain the case of R v Clegg

Answer 44

F: D was a soldier on duty at a checkpoint in N Ireland. A car came towards the checkpoint at speed and with its highlights fully on. one of the soldiers shouted for it to stop but it didn’t. D fired 3 shots at the windscreen of the car and shot a passenger killing her.
H: Not SD because there was no danger when he fired the shot the force was excessive in the circumstances and the conviction for murder was upheld

Question 45

explain the case of R v Hussain

Answer 45

F: D’s house was broken into by a group of armed men. one of D’s sons managed to escape from the house and told his uncle(t). he intruders ran and were chased by D and T. they caught one of the men and beat him
H: couldn’t use self defence as all the danger to D from the original attack was over.

Question 46

what does s43 of the crime and courts act 2013 do

Answer 46

it gives a wider defence to householders as long as the degree of force wasn’t ‘grossly disproportionate’

Question 47

explain the case of Collins v Secretary of state for justice

Answer 47

F: at 3 am C broke into B’s house where B his wife children and 3 friends were staying. a child confronted C on the stairs and B caught him and forced him into a headlock B was heard by neighbours shouting “tell the police to come now or i will break his fucking neck.” C suffered irreversibly brain damage The CPS decided not to prosecute B but C’s father sought judicial review
H: S76(5a) allows a discretionary area of judgement in householder cases which didn’t breach C’s rights. Nevertheless the householder will only be able to use the defence if the degree of force was reasonable