Criminal Incapacity

Question 1

Lipman

Answer 1

Voluntary Intoxication

D killed girlfriend while on LSD in the belief he was battling giant snakes
Held it would not make sense to take into account the facts that the D believed to exist as the court would with a normal defendant

Question 2

Sheehan and Moore

Answer 2

Voluntary Intoxication

A drunken intent is nevertheless an intent

Specific Intent crimes: Question jury should ask themselves is not about capacity but about whether D did have the intention at the time?

Question 3

Gallagher

Answer 3

Voluntary Intoxication

If the D gets drunk to give himself the dutch courage to do the crime, then he cannot rely on his self-induced drunkenness

Question 4

Specific intent crimes

Answer 4

Murder
Theft
Wounding/GBH with intent
Attempt
Burglary with intent
Robbery

Question 5

Majewski (What is basic intent)

Answer 5

Voluntary Intoxication: Basic Intent

D assaulted police officers under influence of alcohol and drugs, claimed he blacked out
HL: D cannot rely on intoxication in regards to crimes of basic intent, even if it prevents him forming the MR of a crime, and it produces a condition akin to automatism.

Question 6

Confirmed Basic Intent Crimes

Answer 6

Manslaughter
Rape
Sexual assault
Assault
Unlawful wounding
Basic Criminal damage

Question 7

Heard

Answer 7

Voluntary Intoxication: Test for specific/intent crimes

Crime is one of specific intent only where the mens rea requires regard to be had as to the consequences of the act
A crime of basic intent requires only proof of intention to do the AR

Question 8

Richardson

Answer 8

Voluntary Intoxication: specific/basic intent divide

If D would foresee risk but for intoxication= basic intent
Therefore D is taken to be aware of anything that he would have been aware of if sober
A more subjective and specific test- more focused on the defendant rather than the type of crime

Question 9

Kingston

Answer 9

Involuntary Intoxication

Normal rules of AR and MR apply

Question 10

Bailey

Answer 10

Voluntary Consumption with unexpected effects

In crimes of basic intent, D cannot be guilty without prior fault unless he appreciated the risk he may become aggressive so as to be a danger to others before he became intoxicated

Question 11

Hardie

Answer 11

Voluntary Consumption with unexpected effects

D took large dose of partner’s valium to calm him down.
Was not aware that in large doses valium’s sedative effect can be reversed
Under the influence of the valium he set fire to the flat with his girlfriend in it
Q to be put to the jury should be whether D appreciated the risk of aggression, and so therefore whether the taking of the drug itself was reckless?

Question 12

Bratty (Non-Insane Automatism)

Answer 12

Non-insane Automatism
General rule per Denning

‘An act which is done by the muscles without any control of the mind’
Actions may be more complex than a mere spasm or reflex.
D becomes an automatant as a consequence of voluntary intoxication then the rules on intoxication will apply
Viscount Kilmuir: If the cause of the automatism is a disease of the mind then the rules on insanity will apply.

D bears the evidential burden
Once this is raised the prosecution must disprove it

Question 13

Quick

Answer 13

Non-insane Automatism: ‘Impairment of Consciousness’

‘A malfunctioning of the mind of transitory effect’

Question 14

Coley, Harris and McGhee: ‘Impairment of consciousness’

Answer 14

Non-insane Automatism: ‘Impairment of Consciousness’

you only need an impairment of consciousness- not total loss

Question 15

Broome v Perkins

Answer 15

Non-insane Automatism: Total Loss of Control

Diabetic experienced sudden, unexpected drop in blood pressure while driving, caused him to drive erratically, crash into another vehicle.
Only noticed damage to the car when he got home and had some sugar
Was held that there was still a degree of control during the journey home- had actually managed to make it home- therefore there was no defence of automatism

Question 16

A-G’s Referece (No 2 of 1992)

Answer 16

Non-insane Automatism: Total Loss of Control

D driving long journey on motorway, crashed and killed 2 people.
Medical evidence showed he had entered a condition called ‘driving without awareness’
CA held that there was still a degree of control, so this condition was not automatism

Question 17

Bingham

Answer 17

Non-insane Automatism: External Trigger

Diabetic accused of theft, said he was unaware of his actions because he had low blood sugar at the time
CA:
If the cause is an external factor e.g a sudden spike in insulin, then is non-insane
If the cause is an internal factor e.g failure to medicate the underlying condition then this can be classed as insanity

Question 18

Hennessey (Non-Insane Automatism)

Answer 18

External Trigger
Trigger must be external

D had diabetes and had not been medicating, but was able to point to other causes such as stress, marital problems leading to depression, that led him to stealing a car.
Was held that these problems were likely to reoccur, and so therefore were not extraordinary enough to be capable of producing automatism

Question 19

Non-Insane Automatism: D must not be to blame of external trigger, conflicting tests

Answer 19

Objective: Quick
Could the automatism have been reasonably foreseen?

Subjective: Bailey
Did D realise the risk?
There has not yet been tie breaker test that decides between the 2- so consider both!

Question 20

Sodeman

Answer 20

Insanity: Burden of proof

If raised by D, then D must prove this on a balance of probabilities

Question 21

Criminal Procedure (Insanity) Act 1964

Answer 21

Insanity:

S4, 4A, 5
Lay down procedure for where D cannot stand trial:
Jury will simply consider whether D did the act without a question of fault

Question 22

Pritchard

Answer 22

Insanity: Q of if D is fit to stand trial

Is D of sufficient intellect to comprehend the course of the proceedings on the trial, so as to make a proper defence?
Can be comprehend the details of the evidence?

Question 23

Robertson

Podola

Walls

Answer 23

Insanity: Where D will be fit to be tried

D was able to understand trial but may make bad decisions or challenges

Condition only made it more difficult to conduct the case

Court drew attention to range of aids of communication provided by the court

Question 24

Sullivan (Insanity: Rationale for the special verdict)

Answer 24

Insanity: Rationale for the special verdict

Parallels the objective of the criminal system which is to protect society against the reoccurrence of dangerous conduct

Question 25

Daniel McNaughten

Answer 25

Insanity: Elements of the defence

Per Lord Tindall

1. Defect of reason
2. Underlying Disease of the mind
3. D must not know the nature and quality of the act OR must not know that the act is wrong

Question 26

Clarke

Answer 26

Insanity: Defect of Reason

D charged with shoplifting as was absent minded and forgot to pay. This was not insanity.
D must loose the power to reason
Does not apply to a D who has the powers but fails to use them in full

Question 27

Bratty (Insanity)

Answer 27

Disease of the Mind:

Any mental disorder that has manifested itself in violence and is prone to reoccur

Question 28

Kemp

Answer 28

Insanity: Disease of the Mind

D struck wife with hammer for no apparent reason. Was found to have a physical condition of hardening of the arteries
This was held to be disease of the mind as it was capable of affecting the mind

Question 29

Burgess

Answer 29

Insanity: Disease of the mind

Can arise from a single occurrence

Violence caused by a sleepwalker
Held a disorder, with an internal trigger that was not prone to reoccur could still be a disease of the mind

Question 30

Hennessey (Insanity)

Answer 30

Problems with disease of the mind element

Lord Lane: Admitted the rules are out of date but their main function is to prevent automatism being used where there is a risk the behaviour could reoccur

Question 31

Windle

Answer 31

Insanity: D does not know the act is wrong

Does he know he is acting contrary to law?

Too harsh?
Rules out a number of people suffering serious mental illness that should not be responsible, but know that there is a rule against it

Question 32

Intoxication problem q structure

Answer 32

Problem Q structure:

1. is the act voluntary?
2. Is the crime charged one of specific or basic intent?
3. If basic intent, is it a dangerous drug?

Question 33

Useful Law report for intoxication

Answer 33

Law Com. 314 Intoxication and Criminal Liability (2009)

Question 34

Law Comm: Voluntary Intoxication

Answer 34

In these cases the courts should go beyond the normal legal principle in order to find a balance with the rule of policy that reflects D’s fault

Question 35

Majewski:Rationales for specific and basic intent

Answer 35

Lord Russell: The act of self-intoxication can be seen as an act of recklessness as regards to possible consequences
Therefore a recklessness condition that would shave to be satisfied by a sober person foreseeing a specific risk of injury is already satisfied when that person is intoxicated.

Accepts that the law is illogical
It represents a more policy based compromise between complete disregard for the condition caused by intoxication and complete clearance of guilt based on it’s effect on the D’s actual state of mind at the time.

The purpose of the distinction is to ensure D will be convicted of something

Question 36

Majewski: Test for the specific/ basic intent divide

Answer 36

Working distinction is between offences requiring intention (specific intent) and those satisfied by recklessness (basic intent)

Question 37

3 rationales for the basic/ specific intent divide

Answer 37

1. Prior Recklessness
2. Would D foresee risk but for intoxication
3. Policy Over Logic

Question 38

Mistakes and voluntary intoxication: Conflicting statutes

Answer 38

1.Criminal Justice and Immigration Act 2008 s76(5)
D who pleads self defence may not rely on any mistaken belief as to circumstances if this belief was attributable to voluntarily induced intoxication

2. Criminal Damage Act 1971 s5(3)
   Mistaken belief in consent of an owner may excuse a D charged with a basic intent crime of criminal damage

Impossible to reconcile these

Question 39

Coley, Harris and McGhee

Answer 39

‘Total Loss of control’

Cannot have total loss of control where the D has fault in inducing the condition

Question 40

Criminal Procedure (Insanity and Unfitness to Plead) Act 1991

Answer 40

Abolished Compulsory hospitalisation for insanity

Question 41

Sullivan (Insanity: Disease of the mind)

Answer 41

Mental illness does not have to be in the medical sense, but any condition which affects the mind and its faculties:
Reason
Memory
Understanding
Can be transient or permanent

Question 42

Ashworth (Rationale of the Insanity Defence)

Answer 42

A fundamental presumption of the criminal law is that the defendant is ‘normal’. Therefore where the defendant is not normal the system cannot apply to him.

Question 43

Law Comm (2013) reccomendations about insanity: ‘disease of the mind’

Answer 43

suggested a move to a defence of ‘not criminally responsible’ by reason of a recognised medical condition’ in order to address this issue in order to address fairer labelling