CRIMINAL LAW- defences Flashcards
what is defence of consent common in?
non fatal offences
what are the 4 types of defences?
- general defences
- specific defences
- complete defences
- partial defences
what are general defences?
apply to all crimes e.g self defence
what are specific defences?
apply to individual crimes e.g loss of control/dimished responsibility only apply to murder
what are complete defences?
not guility - specific defence cant be complete
what are partial defences?
lead to a lesser offence / drop down to offence suitable
what are the types of defences? (5)
- defence of consent
- defence of intoxication
- self defence
- insanity
- automatism/self induced aut
what is defence of consent?
where v consents to an activity leading to a crime
what type of defence is consent?
complete defence- d not guilty if succeeds
what is 1st required of the checklist-d.o.c?
is consent genuine? Consent must be real
examples of is consent genuine?
no coercion
no pressure
no trickery
no deceit
what happens if there is any hint that they didn’t no or if there is pressure?
the defence will fail
leading case for no defence of consent?
r v tabassum
what may also negate defence of consent?
if victim is a child or if fraud has been used.
what is the 2nd requirement d.oc.?
only apply to non harmful crimes - assault/battery
what can’t they consent with which crimes?
s.47/s.20/s.18
what is the attorneys for d.o.c only applying to non harmful crimes?
AG REF NO6 of (1980)(1981)
what does AG REF NO6 of (1980)(1981) do?
way of getting legal problem sorted
what is the leading case of only applying to non harmful crimes?
r v brown - no defence as causes harm, consent genuine but harmful
what is the comparison case of r v brown?
r v wilson- (morality of man & wife) law being sensible harmful but an exception d.o.c allowed
what are the exceptions of d.o.c (3rd requirement) ?
tattoo &piercings
sport - within rules/ if blatent foul not permitted vice versa
horseplay - say this if unofficial sport
surgery inc cosmetic surgery
cases for exceptions of d.o.c?
tattoo &piercings - r v wilson
sport - r v lloyd
horseplay - jones
surgery inc cosmetic surgery - burrel v harmer
what are all the exceptions?
all harm
when can’t you consent?
if not in any of the exceptions
what is defence of intoxication?
was d intoxicated at the time the crime was comitted
what can the intoxication be a result of?
alcohol,drugs even substances e.g solvents or chemicals - there is no limit on how much
what is the tests of intoxication?
d needs no knowledge?
is it result of intoxication?
what are the two types of intoxication?
voluntary and involuntary
what do we 1st need to test?
does d have no knowledge?
if d has knowledge what is it?
voluntary intoxication which is only allowed in limited circumstances
what is voluntary intoxication?
taking risk of getting into this state / taking it knowingly or recklessly
what is another example of voluntary intoxication?
taking medication in excess of prescribed dosage
what is the 1st principle of vol intox that could exclude defence?
person voluntarily intoxicates himself in order to commit crime (had mr) had drugs/alcohol to help him do it (DUTCH COURAGE RULE)
case for dutch courage rule?
AG ref for Northern Irelnd v Gallagher (1963)
what are basic intent crimes and specific intent crimes?
basic= recklessness specifc=intent
where could there also never be a defence with intoxication?
if d commits basic intent crime (recklessness)= guilty
why not basic intent crimes?
as recklessness is mens rea requirement to commit crime as charged, achieved as d being reckless to be intoxicated in first place
case for not allowed for basic intent crimes?
dpp v majewski
what are examples basic intent crimes?
manslaughter, rape, abh, gbh, criminal damge
when can the defence be used?
specific intent crimes e.g murder as cant prove although deliberately in that state.
case for when intent used specific?
r v lipman
what can you do if necessary with specifc?
basic intent crime where vol intox would not be an acceptable defence
examples of specific intent crimes?
wounding with intent s.18, robbery, theft
what is involuntary intoxication?
less blame on d as done without knowledge/consent
examples of involuntary intoxication?
spiked drinks, eating food w hallugenic drugs, prescribed drugs with bad side effect.
how will invol intoxication act as?
defence to both specific and basic providing d did actus reus but had no knowledge = no mr.
example cases of involuntary intoxication?
r v allen
r v hardie
when will invol intox also fail?
if awareness merely lowered it needs to be totally unaware of what he was doing.
case for totally unaware intox?
r v kingston
when do you used intoxication defence?
only when d is under influence of drugs/alcohol etc.
if drugs removed d’s intention in vol intox?
defence but d will be convicted of a lesser basic intent offence.
what type of defence is intoxication?
complete and partial
what type of defence is self defence?
general and complete
what is self defence?
powerful and quite hard to satisfy
when can you plead self defence?
possible to plead if harm caused as result of d acting in protection of himself/others during prevention of crime.
what does self defence have?
common law and statutory footing in Criminal Justice Act 2008 s.76
what is the quote of this s.d?
Criminal Law Act 1967 s.3 “ a person may use such force as reasonable in the circumstances in the prevention of crime”
v is original aggressor
what does d need act in offence of & atleast have?
- himself
- another - no need of relationship
- prevention of crime
what certain rules exist in self defence ( 2 parts of defence)
- must have necessity of force
2. degree must be reasonable
what type of question is was it necessary for jury?
subjective- if unnecessary= deny
where does necessity of force come from?
necessity of force comes from situation d is put in by v
what is also considered with necessity of force?
mistaken use of force
what section is mistaken use of force catered by?
s.76 (3) Criminal Justice & Immigration Act 2008
what is the leading case for mistaken use of force?
r v williams- honest mistake
when will a mistaken use of force not be considered?
if due to intoxication s.76 (5)
what is reasonable force (part 2) ?
s.76 (7)takes into account that if person feels they need to act in self defence it is difficult to calculate exact amount of force used. circumstances of event taken into account when measuring force reasonable.
when looking at it being reasonable what do they look at?
looking at facts of event and state of mind of d at time. (split sec decision)
what is also required in reasonable force?
force used to protect must be proportionate to threat = objective and for the jury. (would reasonable man) fear and anguish also taken into account.
case for force being proportionate?
d does not have to wait for v to make first eye contact ( r v bird)
r v martin & r v clegg
what does proportionality also depend on?
severity of d’s initial threat/attack
what type of defence is defence of insanity?
general defence
what insanity common law derive from?
m’naughten rules
who is the burden of proof on?
the defendant, to prove that he was insane on the balance of probabilities. Evidence normally come from medical experts at the trial.
what is the terms anagram?
T -time of offence D - defect of reason D - disease of minf N - not know nature & quality W - not wrong
although insanity complete defence it?
there is a possibility of hospitalisation , dont have to lead to imprisonment
what does it mean by time of offence?
always check, it cant be before/after
what does it mean by defect of reason?
must be internal factor that cause d to be TOTALLY DEPRIVED of power of reasoning. Mere absent mind/ confusion not sufficient
short version of defect of reason?
needs total deprivation
case for defect of reason?
r v clarke
what does it mean with disease from mind?
could be caused by physical/mental disease. schizo,paranoia,manic depression
can be any part of body as long as affects mind
examples of disease from mind with cases?
hypoglycaemia caused by diabetes - r v hennessey
arteriosclerosis (restriction of blood flow 2 brain - r v kemp
elipsey- r v sullivan
what does it mean by not knowing nature/quality of act?
must be totally unaware of actions e.g blackout or unconscious or conscious but no realisation r v kemp
what does it mean by dont know its wrong?
person conscious but dont understand
case of dont know whats wrong?
r v windle- knew so failed despite being mentally ill
what happens if d successful of insanity?
not guilty but could go mental hospital for ulmtd period i.e murder under Mental Health Act 1983 h.w judge has alternative choice such as supervision/treatment orders or absolute discharge
what is automatism?
similar but look at diff source= external and behaviour that is automatic like
what is automatism pt 2?
is where body acts independently from mind. techinally no m.r as mind not involved in crime nor a.r as conduct involuntary.
no mr ar case for automatism?
Bratty v A.G for northern Ireland.
what do you need to look for with automatism?
look for unconcious action(reflex action) - sleepwalking/nightmares. e.g attacked by swarm of bees
what did lord denning say?
saw automatism as something done by d muscles without control of mind
cases for automatism?
Attorney Genereals ref no.2 of 1992
R v T
what is self induced automatism?
d knows conduct likely to bring automatic state such as diabetic not taking insulin/someone taking drugs or alcohol know have that effect on them.
what does self induced automatism depend on?
type of offence if spefic= allowed x guilty but id basic= reckless= guilty as knows get into state- vol automatism.
