Criminal Law (Defences 2) Flashcards
What is diminished responsibility?
-It is the partial defence for murder
What does the defence of diminished responsibility?
The defence requires the person’s ability to determine or control conduct for which the person would otherwise be convicted of murder, was at the time of the conduct, substantially impaired
What type of defence is diminished responsibility?
It is a partial defence as can only be used for murder to reduce its culpability to culpable homicide
For disturbed state of mind, what can the accused not rely on?
the accused cannot rely on voluntary intoxication as a basis for the defence
What is the defence of necessity?
-It is a complete defence
-It is available to all crimes except murder ( if there is a homicide it would be homicide)
-Applies when breaking the law is necessary in order to avoid dangerous circumstances
what is necessity fundamental for?
it is fundamental that there is no alternative means of preventing the threatened harm
What does the Lord’s Advocate’s Reference (No 1 of 2000), 2001 JC.143 say about necessity?
-Good cause to fear death or serious injury which would occur unless act
-Not essential that the danger be directed at the accused or even at someone with whom he/she has a prior relationship
How can the defence of coercion be established?
To establish the defence of coercion in relation to a serious crime, an accused must show that they violated the criminal law in order to avoid imminent death or serious injury at the hands of the coercer
rules with mens rea and coercion
If say A possesses the mens rea to assault B, their conduct may be excused by the operation of the defence of coercion
-If A has no mens rea, then they are not guilty of assault, irrespective of whether they were subject to coercion
What are the qualifications for the defence of coercion?
1.) An immediate danger of death or great bodily harm
2.) an inability to resist violence
3.) A backward and an inferior part in the perpetration
4.) a disclosure of the fact, as well as restitution of the spoil, on the first safe and convenient occasion
What is the difference between coercion and necessity?
Coercion is breaking the law to avoid dangerous circumstances other than a threat
How does the law consider the impact of the threats upon the person that has been coerced to see if they are liable for the defence of coercion or not?
The law applies an objective test when considering the impact of the threats upon the person that has been coerced
As stated in Cochrane v HM Advocate, what is the jury required to do?
the jury is required to consider whether an ordinary sober person of reasonable firmness, sharing the characteristics of the accused, would have responded as the accused did
Does the complete defence of coercion apply to murder?
No
What rule applies to coercion in terms of a threat?
-the threat must be immediate
-If there is an opportunity to run away or to seek protection of the forces of law and order because the crime committed
-Then the accused cannot claim to have been coerced
