Defences Flashcards
Falconer v Jessop 1975
One of the rights, which an accused has is to speak in mitigation before sentencing is passed. There is a further right to mitigation post-conviction.“Should I have allowed the appellant’s solicitor to address me before passing sentence?”“The answer is plainly yes. It should be said very clearly that no judge is entitled to depart from the ordinary rules of fair conduct and one of the rights which an accused person has is to speak in mitigation before sentence is passed.”
Criminal Procedure (Scotland) Act 1995 s 78
Special defences, incrimination and notice of witnesses, etc.
(1) It shall not be competent for an accused to state a special defence or to lead evidence calculated to exculpate the accused by incriminating a co-accused unless—
(a) a plea of special defence or, as the case may be, notice of intention to lead such evidence has been lodged and intimated in writing in accordance with subsection (3) below [; or]1[…]1
(b) the court, on cause shown, otherwise directs.
[
Balsillie v HMA 1993
ALIBI => He was near the place of the crime
=> Didn’t plead alibi at the beginning of the trial
=> He was simply answering a question not trying to plead alibi.
that a special defence of alibi meant that an accused was claiming that at the time libelled he was not at the place libelled but was at some other specified place and what the appellant had been seeking to do was to say that he was at or near the place libelled in the charges and then to offer an explanation for his being present at or near the locus, in which circumstance no notice of special defence of alibi required to be given for, although each case must of course be considered on its own facts and there might be cases where, although the accused was admitting being near the place libelled in the charge, his evidence did amount to maintaining that he was at some other specified place (in which circumstances a special defence of alibi would require to be stated), in the present case, if what the appellant had been seeking to say was that he was in the street where the house in question was situated but had not entered it, he was not obliged to give advance notice of a special defence of alibi
McQuade v HMA 1996
Incrimination, there was sufficient evidence in the photograph and the state of the gun to corroborate D’s statement that M had twice fired a gun at him or in his direction during the incident. In addition, a ballistics expert opined that the gun had been fired twice and that the revolving chamber could be turned to move a live round from the firing position before the gun was fired if the revolving cylinder was knocked in the course of a struggle. In light of the explanation, there was sufficient for conviction.
HMA v Carson 1964
Self defence; Accused claim he was trying to stop an attack; The idea that the accused did not intent to carry out an unlawful assault but to prevent an assault; Court held that was entitled to rely on this defence to an assault on the third party (homicide or assault)
HMA v Doherty 1954
Self -defence.Where the accused had killed the deceased with a bayonet when being attacked by him with a hammer, the High Court of Justiciary directed the jury as to the defence of self-defence.
Doherty had been attacked by a man with a hammer. One of his friends handed him a bayonet, which he used to stab the man attacking him, which killed him.
Doherty argued that his actions were in self-defence, but this was rejected, and he was convicted.
In this case, there had been a means of escape available to Doherty, so he ought to have escaped rather than stabbed his attacker.
Here are the three requirements for self-defence in Scots law, as set out in the case above:
- “There must be imminent danger to the life or limb of the accused”
- “The retaliation that he uses in the face of this danger must be necessary for his own safety”
- “If the person assaulted has means of escape or retreat, he is bound to use them”
In other words, threat + no escape + proportionate response = self-defence
Owens v HMA 1946
self - defence;murder, thought the guy has a knife so he took his own and attack him, only witness his sister. The conviction quashed.
Held that for the purpose of setting up self-defence it was sufficient for the panel to satisfy the jury that he believed on reasonable grounds that he was in imminent danger; that grounds for such belief might exist even although he was mistaken in thinking that the deceased was armed; and that, accordingly, the jury had been misdirected on the essential elements of self-defence, and the conviction must be quashed .
Jones v HMA 1990
(self-defence) Accused alleged victim had come to house earlier in evening carrying knife and had threatened him.
When went out later took knife with him, encountered victim on street, walked away but felt knife-prick. Pulled out own knife, stabbed victim deceased.
Held: No reasonable jury could have found there were reasonable grounds for accused’s belief in imminent danger to life.
Crawford v HMA 1950
The High Court of Justiciary held that if the presiding Judge considered that there was no evidence from which the requisite conclusions to support a defence of self-defence could possibly be drawn it was his duty to direct the jury that it was not open to them to consider the special defence; and held that in the case in question the Judge had properly withdrawn the special defence of self-defence from the jury. ‘Reasonable appearances rather than objective reality.A son, charged with the murder of his father, pleaded not guilty and stated as a special defence “that on the occasion libelled he was acting in self-defence.” Culpable homicide - appeal failed
Pollock v HMA 1998
Accused killed another man who he alleged had assaulted his girlfriend with intent to rape her.
Court accepted self-defence could be plead in such circumstances, but not in this case due to excessive savagery of accused.
McCluskey v HMA 1959
The accused was charged with murder. He pled special defence - self-defence, saying that he was resisting an attempt by the deceased to commit sodomy with him. The trial Judge refused to give this direction, but directed the jury that they could only sustain the plea of self-defence if they found that the panel had acted in order to save his life. The jury convicted the panel of culpable homicide. Held that, where an attack by an accused person on another man has taken place and where the object of the attack has been to ward off an assault by the person attacked, it is essential that the attack should be made to save the accused’s life before the plea of self-defence can succeed, and appeal dismissed .
Fizpatrick v HMA 1992
An accused and his brother were charged on indictment with assault to injury and permanent disfigurement in a fight which took place in a bar. The accused lodged a special defence that he was acting in defence of himself. They and his brother. The sheriff directed the jury, inter alia, that self-defence required the accused to have no means of running away or otherwise avoiding the threat to his safety. The accused was convicted and appealed on the ground, inter alia, that that direction was inadequate as respects his defence of his brother.
Held, that the accused’s criticism of the sheriff’s directions had force, but that the accused’s and his brother’s admissions in evidence that they could have avoided danger by leaving the bar rather than getting involved were destructive of his defence of self-defence and defence of his brother and no miscarriage of justice had occurred; and appeal refused.
Boyle v HMA 1993
The accused was part of gang which attacked another gang. Boyle armed with a knife killed a member of the other gang. He argued that he actually in fact had been acting in self defense. However, the court removed the special offence and directions to jury, in the appeal misdirection that the appellant could not pled self-defense even if he joined fight willingly.that an accused person could not successfully plead self defence if he started the fight and was the first to use violence (p 587E); (b) that a person could not plead self defence if he went into the fight armed with a lethal weapon since it might have caused the jury to conclude that even if the accused had been standing by as a spectator, as soon as he went forward into the fight with the knife, he could not plead self defence (pp 587G-H and 588A)
HMA v Robertson and Donoghue 1945 (unreported)
thin skull rule, older man, heart attack
Surman v HMA 1988
(accident, question of fact to the jury) => Got in a fight
=> Pulled a knife as defence
=> Other man fell onto the knife
=> Held you cannot have self defence and an accident at the same time
REFLEX ACTION
Moss v Howdle 1997
(NECESSITY) 2 friends in car, one this passanger gets terrible stomach and chest pains and he thinks he’s about to die of heart attack. He’s friend paniced and comes off the motorway to get to hospital. He was arrested for driving excessive speed. Dismissed Held that defence of necessity, the defence of duress or necessity was available where a pannel acted under an immediate danger of death or great bodily harm to himself or to another
Trotter v HMA 2001
(COERCION) Young man was visited his father in prison. He was found with drugs during visit. He said that if he would not supply they would harm his father. Convicted and appealed. Appeal refused. Cannot say coercion if there was a gap time between.
Dewar v HMA 1945
(ERROR) Accused was manager of a crematorium who had taken coffin lids to sell before they were burned. He tried to claim on appeal that there was no theft as the property had been abandoned but was not successful as it was decided he had to carry out the duty of burning the coffin lids before they could be called abandoned.
Clark v Syme 1957
(ERROR) Farmer, sheep, shooting, wall, error in thinking about law, he should be acquitted.
Brennan v HMA 1977
(Mental disorder, before insanity) voluntary intoxication, at home playing loud music. His father came to tell him to stop playing music. - Argument - escalted - he stabbed his father with a knife. - appeal - he did not know what he was doing, was intoxicated. The court held that it was voluntary intoxication. - no automatism (Hume)- appeal refused; “ is to be resolved upon medical opinion for the time being” [42] It is important to distinguish mental disorder as a defence form mental disorder as a plea in bar of trail
s 168 Criminal Justice and Licensing (Scotland) Act 2010
(1) A person who would otherwise be convicted of murder is instead to be convicted of culpable homicide on grounds of diminished responsibility if 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 by reason of abnormality of mind.
(2) For the avoidance of doubt, the reference in subsec. (1) to abnormality of mind includes mental disorder; (3); includes acts and omissions
HMA v Savage 1923
(DIMINISHED RESPONSIBILITY)• Defined diminished responsibility as some of form of ‘metal unsoundness’ or a state of mind ‘bordering on insanity’ or ‘weakness of mind’ or ‘a mind so affected that responsibility was diminished’ . mental unsoundness bordering on, though not amounting to, insanity—at the date when the alleged murder was committed, was a circumstance which reduced the crime from that of murder to that of culpable homicide.
• Some form of mental disease (4 criteria)
Connelly v HMA 1991
(DIMINISHED RESPONSIBILITY) You have to meet every singel requirement of test in Savage case.
Galbraith v HMA 2002
(DIMINISHED RESPONSIBILITY) Woman charged with the murder of her husband. She pled diminished responsibility (that her husband abuse her) . Court untrue convicted of murder. Appeal. The court considered the defence of diminished responsibility to a charge of murder.
Held: Lord Rodger of Earlsferry: ‘It is, of course, impossible to attempt to describe the ambit of the doctrine of diminished responsibility without even attempting to describe the operation of the doctrine itself. A common theme in the cases where judges have left the issue to the jury is that they involve some abnormality of the accused’s mind. While philosophers continue to debate the timeless questions – about the nature of the relationship between mind and body and about the extent to which individuals have control over their actions – our law proceeds on the basis that an adult person of sound mind has sufficient control over his acts, and over his omissions to act, as to be responsible for them in law. Criminal acts and omissions are punished accordingly.’ The court saw nothing unjust in attributing the same responsibility for the purposes of the civil law as was attributed for the purposes of the criminal law. One had to assume that the individual was a reasonably well-informed and reasonably responsible member of the public.
Cosgrove v HMA 1990
(PROVOCATION) => (PROVOCATION OF INFIDELITY) Confronted whether sexually abused a child
=> Man confronted raised eyebrows and smirked
=> Cosgrove killed the man
=> No violence used from man therefore provocation not held
Heard victim had sexually assaulted young girl, confronted, no remorse, beat him to death
Claimed provocation, jury said not enough. “it must be remembered that every case depends on its own circumstances and I suppose it is possible that is some situations a judge might leave the question of provocation to the jury even though the evidence does not fit the classic definition is still the proper direction to give” Lord Cowie [338]
PROVOCATION
Thomson v HMA 1985
(PROVOCATION) interesting case- talks about substantial violence- two individuals entered into a business arrangement- went to confront this person- knew of there violent past-
Provoking act- the business partner- shut the door- not prevent him-
Didn’t entitle Thomson to kill this person- not suffiecent violent
Self-defence- operated here- because you were in fear- reasonable person was shut the door- barring the regress- might be able to throw a punch and flee- that did not happen- real injury is important
Berry v HMA 1976
(PROVOCATION INFIDELITY) sexual taunts and insults were allowed to go to the jury
The accused was convicted of the murder of a lady with whom he was endeavouring to have sexual relations without great success
He alleged that she had taunted him as to his lack of sexual prowess, comparing him unfavourably to his uncle and questioning whether he was the father of his children, and that it was in a rage at these taunts that he killed her by striking her on the head with a brick (appeal refused!) with the appeal court expressing ‘grave doubts’ re the trial judge’s decision to leave the defence before the jury
Parr v HMA 1991
P appealed against conviction of the murder of his mother on the grounds that the trial judge erred in directing the jury (1) that there was insufficient evidence to support a plea of provocation, and (2) that the only verdicts open were guilty of murder or acquittal. Both P and his mother, with whom he lived, had a drink problem and were regularly arguing. His mother would throw objects at him and he had a conviction for assaulting her. On the day in question both had been drinking and arguing, and after P’s mother had complained at the noise he was making with a hammer and thrown something which hit him, P went into her room and killed her with about eight blows with the hammer. In statements P said that he had lost his head and “went over the top….She is a venomous bugger. I ken what I’ve done”. It had been the last straw for him. P accepted that any violence by his mother that evening did not justify the retaliation used, but argued that provocation could be found in the previous course of violent conduct which had worn him down until he was liable to lose control. Further, the judge had been wrong to rely on Miller v HM Advocate 1991 J.C. 48, noted in Gordon, Criminal Law (2nd ed.), para.23-26, in which the violence was used in the course of robbery: the jury should have been directed, as in Thomson (William Campbell) v HM Advocate 1986 S.L.T. 281, [1985] 12 WLUK 75, that a verdict of culpable homicide was open if they were not satisfied that the mental elements of murder were present.
Held, appeal refused. (1) For provocation to apply there had to be a degree of immediacy between it and the blows struck. The past arguments had not been of such a pitch that tempers might not have cooled, nor were the arguments earlier that day of that character. There was simply a gross disproportion between those and the blows struck. (2) The reason for P having a hammer was not important in view of the nature of the assault, and once provocation was out of the case, there was no evidence to support a lesser verdict than murder.
Rutherford v HMA 1998
PROVOCATION. The man was living with his wife they wanted to separate. She told him that she was sleeping with another guy. He done nothing but during the second occasion of meeting she killed as she told him (she was screwing that guy under his nose). He killed her, Charge with murder, and convicted. Appeal was allowed. confession of infidelity allowed as provocation as more details provided in the second instance, thus post events are not to be considered provocative without a final violent event (or admission of adultery) at the relevant time
Gillon v HMA 2007
(PROVOCATION)Lord Osborne: “As the law currently stands, in relation to provocation taking the form of violence, the criterion of a reasonably proportionate relationship between the conduct amounting to the provocation and the actings of the accused is well established and has been clearly understood over a period of many years. That criterion appears to us to be apt in the context in which it applies.
Violence as provocation can readily be assessed and weighed in comparison to violence in retaliation to provocation. We are unaware of any practical difficulties experienced in the application of this particular criterion within the scope of its operation.”
The “reasonably proportionate” criterion is a matter for the judge or jury, so it’s hard to say definitively what would / wouldn’t count. It’s similar – but ultimately different – to the “no cruel excess” test that’s applied when considering self-defence.
Provocation by verbal abuse
The principles of provocation, when it comes to verbal abuse only, are very similar to those discussed above (in relation to provocation by violence). However, there is one important difference: generally, provocation by words alone is not available when the accused is charged with murder.
The accused did not argue that he assaulted and killed victim (with spade, reapetedly striking) he said that victim tried to strike him with the spade.
Lennon v HMA 1991
(PROVOCATION) ‘cruel excess’ will exclude both defences, ‘… a grosss disproportion between the provocation affered and the retaliation’L appealed against conviction for assault, arguing that the jury had been misdirected by the trial judge that cruel excess barred provocation. He argued that once a man had been provoked to retaliate, his subsequent acting could not bar the plea of provocation however extreme they might be.
Held, appeal refused. The sole purpose of a plea of provocation was to reduce the quality of the act from murder to culpable homicide or to mitigate sentence in cases of assault. It was of no significance unless it mitigated everything done to inflict injury. A gross disproportion between the provocation and the retaliation was a bar to the plea
Drury v HMA 2001
(PROVOCATION)D appealed against his conviction for the murder of a woman with whom he had been in a relationship, on the ground of misdirection. At the trial he had given evidence that the fatal assault, namely an attack with a hammer, followed his discovery that the deceased was having intercourse with another man, and had pleaded provocation. The trial judge directed the jury as to the standard definition of murder, namely that culpable homicide occurred where there was no intention to kill and the circumstances fell short of the required degree of wicked recklessness for murder and that for provocation to succeed the violence used should not be disproportionate to the provocation offered.
Held, allowing the appeal and granting the Crown leave to bring a new prosecution, that (1) murder required a wicked intention to kill or wicked recklessness as to whether the victim lived or died, and a person who killed under provocation was to be convicted of culpable homicide rather than murder because, even if he intentionally killed his victim, he did not have the wicked intention required for murder; (2) while, as a matter of policy, Scots law admitted the plea of provocation only where the accused had been assaulted and there had been substantial provocation, it admitted an exception by recognising that violence due to a sudden and overwhelming indignation caused by the discovery of sexual infidelity, was not committed with the wicked state of mind required for murder; (3) that in such a case the sexual activity and the lethal attack were incommensurable, and where provocation was put in issue the jury should be directed to consider whether on the evidence the relationship between the accused and the deceased was such as to give rise to a bond of sexual fidelity, whether the accused had in fact lost his self control as a result of the provocation, and whether the ordinary man or woman would have been liable to react in the same way in the same circumstances, and (4) that there had accordingly been a material misdirection of the jury resulting in a miscarriage of justice.
Low v HMA 1994
(PROVICATION, CONCERT)Two man killed another, a lot of evidenece from witnesses, killed with the knife. One of the accused said that victim approach him with the knife and with intention to have with him sexual intercourse. The trail judge directed the jury that there was no place in the case for plea of provication. Appealed. Sufficient evidence of concert, on acting in concert other not necessery., no question of provocation, first appealan -appeal refused, second appeal allowed (establish if there was ‘cruel excess’ should be confined to cases of self defence
HMA v Hill 1941
Man checked if his wife slept with another man, hi shot both(his equipment). At his trial on a charge of murder, Lord Patrick directed the jury that they might return a verdict of culpable homicide and not of murder if they were satisfied that, certiorated for the first time that adultery had been committed, he had acted in sudden indignation and in the heat of the moment and not from motives of revenge.
