Defences 1 Flashcards
What are the two types of defences?
- Affirmative defences
2. Failure of Proof defences
What is an affirmative defence?
- D has performed MR and AR of offence.
- D not denying offence but seeking to justify or excuse behaviour.
- Could be due to coercion or loss of self-control.
What is a failure of proof defence?
D seeks to provide evidential proof that one of the elements of the offence is lacking.
D will need to adduce evidence that is strong enough to create doubt in jurors mind.
What is involuntary conduct?
D suggests that Criminal conduct complained of was not done by D, rather it HAPPENED to them.
What are the two forms of involuntary conduct?
- Loss of physical control
- Loss of mental control due to a trigger such as a stroke or epileptic fit.
(usually both instances caused automatism)
What is a danger of using the defence of automatism?
Judge may consider the mental condition to be relied upon to be a “disease of the mind” which could trigger the SPECIAL VERDICT OF NOT GUILTY BY REASON OF INSANITY. Even if aquitted D could be placed into a hospital.
What can self-intoxication result in in cases of automatism?
In crimes of specific intent it may negate the MR. ie Murder will become manslaughter.
Who can raise the defence of insanity?
Defence or prosecution
What is the M’Naghten Rule?
Insanity a def against crim charges only if:
at the time of the committing of the act, the party accused was labouring under such a defect of reason, from a 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 he was doing what was wrong.
What was the impact of KEMP 1957 with regard to insanity?
Defects of reason treated as insanity if triggered by an internal condition but as (simple) automatism if triggered by an external cause.
What is the irony of sleepwalking being considered a condition of insanity?
This was the classic example of automatism
Is intoxication a defence to crimes of strict liability?
No, unless it can be presented as one of automatism
What is the first question to be asked in cases involving an intoxicated offender?
Did the effect of the intoxication prevent D from forming MR or simply did it remove D’s inhibitions or otherwise inflame D’s anger of desire?
Only in the lack of MR case will it avail D to adduce evidence of intoxication
What is the usual explanation for why self-induced intoxication can not be relied upon to negate MR?
It itself is a RECKLESS course of conduct
What is the effect of intoxication on a mistaken attack in self-defence?
The defence cannot be relied upon.
Mistakes in a sober state can be used as a defence
