Defences

Question 1

Diminished responsibility definition

Answer 1

A person who kills or who is party to the killing of another is not to be convicted of murder if he was suffering from an: abnormality of mental functioning which arose from a recognised medical condition , substantially impared D’s ability to understand the nature of his conduct, or form a rational judgment, or exercise self- control and provide an explanation for D’s acts and omissions in doing or being a party to the killing

Question 2

Act

Answer 2

s2 (1) Homicide Act 1957 as amended by s52 coroners and justice act 2009

Question 3

Abnormality of mental functioning (1)

Answer 3

defined as being ‘ a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal (byrne)

Question 4

recognised mental condition (1) (a)

Answer 4

this requires supporting medical evidence. It covers physical conditions such as epilepsy, diabetes and sleep disorders. it also covers psychological conditions including depression, paranoia (martin) and battered woman syndrome (Ahluwalia)

Question 5

substantially impared (1) (b)

Answer 5

the abnormality of mental functioning must substantially impair the D’s mental responsibility for his act or omissions in doing or being a party to the killing. (Lloyd) held that substantial needs to be more than trivial, but not total imparement. the d’s ability to do one of these three things must be substantially impared

• understand nature of conduct, covers situations where the D is in automatic state and does not know what he is doing. It also covers delusions and severe learning difficulties
• form rational judgement, those suffering form paranoia or schitzophrenia may not be able to form a rational judgement. Battered woman’s syndrome and coercive control (challen) are part of recognised conditions
• exercise self control, medical evidence may prove that the condition that the D is suffering from results in them being unable to control their behaviour

Question 6

provides an explanation for the Ds acts or omissions in doing/being a party to the killing (1) (c)

Answer 6

there must be a casual connection between Ds abnormality of mental functioning and the killing. The abnormality of mental functioning may not ne the only cause but must be a significant factor

• Intoxication alone cannot be used. however law struggled on having an abnormality and being drunk (diechmann) there is a recognised medical condition ADS leading case being (wood)
• Burden of proof on defendant to prove condition on a balance of probabilities. the D must call on evidence from medical experts to prove DR

Question 7

loss of control definition

Answer 7

where a person kills or is a party to the killing of another, D is not to be convicted of murder if

• Ds acts and omissions in doing or being a party to the killing resulted from Ds loss of self control
• the loss of self control had a qualifying trigger; and
• a person of Ds sex and age, with normal degree of tolerance and self restraint and in the circumstances of D, might have reacted in the same or similar way to D

Question 8

Act for LOC

Answer 8

s54 coroners and justice act 2009

Question 9

s54(1)

Answer 9

must be proved that the D had lost self control when doing the acts which caused Vs death

Question 10

s54(2)

Answer 10

the loss of control does not have to be sudden. it can build up over time. Whether D has lost control or not is a matter for the jury to decide. it has to be a total loss of control partial is not sufficient. in addition temper or anger that is out of character is not sufficient D must have snapped (jewell)

Question 11

s55

Answer 11

There has to be a qualifying trigger for the loss of control to come within the defence. the loss of control was attributable to ;
s55 (3) fear of serious violence from V or another person general fear not sufficient ( ward)
s55 (4)a thing or things done or said which -
- constituted circumstances of an extremely grave character and
- caused D to have a justifiable sense of being seriously wronged
Should be judged objectively. R v Hatter said circumstances should be grave and Ds sense of being seriously wronged, justifiable

Question 12

s55 (5)

Answer 12

a qualifying trigger can be a combination of both

Question 13

s55 (6)

Answer 13

where D has incited the violence, D cannot rely on the qualifying trigger of fear of violence (Dawes)
2009 act expressly states that sexual infidelity can never be a qualifying trigger. Clinton raised may be if other triggers present

Question 14

s54 (4)

Answer 14

defence not available for revenge attacks (Ibrams and Gregory)

Question 15

s54 (3)

Answer 15

it is necessary for D to show that a person of Ds sex and age with a normal degree of tolerance and self restraint and in the circumstances of D, might have reacted in the same or similar way. This is an objective test. Other circumstances of D like abuse can be taken into consideration deciding whether a normal person might have reacted in the same way (Hill)

• Voluntary intoxication is not a circumstance to be considered
• Burden of proof on prosecution who needs to prove the D did not lose control

Question 16

Duress of threat definition

Answer 16

D is forced to act through a direct threat by another

Question 17

Duress of circumstances definition

Answer 17

D is forced to act through external circumstances

Question 18

Necessity definition

Answer 18

D is forced to act to prevent a worse evil happening

Question 19

What crimes can duress be used on

Answer 19

All crimes except murder or attempted murder

A common law defence based upon decisions of judges than statute

Question 20

Duress of threat

Answer 20

• Threat must be of serious injury (death, rape) Court will consider the cumulative effect of these type of thrreats (valderrama-vega)
• Threats can be to D or their friends, family or anyone for whom D is responsible (conway)
• Graham held the jury must consider a two-part test:
  a) was the D compelled to act the way they did as they reasonably believed they had a good cause to fear serious injury or death (Hasan) subjective
  b) would a sober reasonable person sharing the same characteristics of the D have responded in the same way (Bowen) objective
• Must be no avenue of escape (Gill)
• If police protection is available defence will fail, with the exception of Hudson v Taylor
• threat must be effective and operating on D when offence is committed ( Abdul-Hassain)
• Threat must be to commit a specific offence (cole)
• Self-induced duress will fail (Sharp) (Hasan)

Question 21

Duress of circumstances

Answer 21

• the first case of this was in 1986 Willer, followed by Conway then Martin
• (Graham)the jury must consider a two part test
  a) was the D compelled to act as he did because he reasonably believed he had a good cause to fear serious injury or death (hasan) subjective
  b) would a sober reasonable person sharing the same characteristics of the D have responded in the same way (bowan) objective
• Can be a defence to all crimes except murder or attempted murder and some forms of treason (pommell)
• it is sufficient for the D to show he acted as he did because he reasonably percieved a threat of serious harm. he does not have to prove that the threat was an actual or real threat (cairns)

Question 22

Duress of necessity

Answer 22

• Leading case is Dudley v Stephens
• necessity may potentially be a defence to murder. In Re A, THe COA held that the test for duress of circumstances and/or necessity were:
  a) the act must be done only to prevent an act of greater evil
  b) the evil must be directed towards the D or a person for whom he was responsible
  c) the act must be reasonable and proportionate to the evil avoided

Question 23

Self defence definition

Answer 23

S3 criminal law act 1967
Self defence is where the D argues that is was necessary to use reasonable and proportionate force to defend himself, his family or property or to prevent a crime
Common law defence

Question 24

It must be necessary to use some force

Answer 24

• The use of force is not justified if it is not necessary. It is a subjective test based upon Ds genuine belief
• The use of force may be considered necessary even if the attack is believed to be imminent but has not yet taken place ( A-G Ref (No 2 1983))
• it may also be considered necessary if there was a mistaken belief about what was happening, as long as the defence is based upon what D genuinely believed what was happening ( Gladstone Williams)

Question 25

Degree of force must be reasonable

Answer 25

s76 (6) CJ and Imigrations Act 2008 makes it clear that the degree of force used by a person is not reasonable if it was disproportionate in those circumstances (Martin) (Hussain)
-s76 (5) CJ and immigration act 2008 makes it lcear that D cannot rely on any mistaken belief attributable to intoxication that was voluntary induced (Grady)

Question 26

Householder

Answer 26

Crime and Courts Act 2013 has amended s76 of the CJA to include subsection 5A which allows householders to use reasonable force in the circumstances of defending their home from an intruder which may be viewed from an objective point of view as disproportionate
- however, the use of force by a householder must not be grossly disproportionate for example using a gun on unarmed intruder

Question 27

Consent definition

Answer 27

Consent is expressed or implied permission from the victim for the D to carry out the injury
common law defence based upon decisions of judges than statute

Question 28

Consent

Answer 28

-Must be real and not fraudelent misenterpretation (Tabassum)
- The fact that V submits to D through fear doesnt mean theres consnet ( Olugboja)
- Must understand what there consenting to (Burrell v Harmer)
-Consent is always available for common assault except for any touching outside of what normally would be expected in everyday life (Collins v Wilcock)
- Not available for any NFO’s from ABH to GBH with intent as criminal law aims to discourage this kind of violent behaviour in order to protect society (A-G Ref No6 1980) but there are exceptions :
Sports unless out of rules (barnes)
Tatooing/medical/surgical (wilson)
lawful chatisement
Horseplay (Jones)
- induced by public interest (Brown)
- Honest but mistaken belief in consent is effective as a defence (Gladstone v Williams)
A person cannot consent to being killed, hence the difficulties with euthanasia and switching off life support (Bland)

Question 29

Insanity definition

Answer 29

Defendant must be labouring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, he didnt know he was doing wrong
- Prosecution, judge or defence can raise issue of insanity judge decides if its fit to plea. burden of proof on D to prove on the balance of probabilities

Question 30

Insanity

Answer 30

The H of L created the M’Naghten rules which are used to decide whether a person should escape criminal liability on grounds of being insane

• Defect of Reason - Reasoning must be impared. More than absent- mindness or confusion (Clarke)
• Disease of the Mind - Defect of reason must be due to this. Legal term not a medical one. Can be internal, mental or physical disease (Kemp)
• External factor affecting mind is not insanity (Quick)
• Not knowing nature and quality of act - May be because D is in state of unconciousness or is concious but does not understand what he is doing or legally wrong.
• Legally does not mean Morally (Windle)

Question 31

Insanity verdict

Answer 31

-When a D sucessfully proves insanity the jury must return a verdict of not guilty by reason of insanity.
If charged with murder then the judge must impose a indefinite hospital order under s24 (1) (3) Domestic Violence, Crime and victims act 2004
- For other offences s5 criminal procedure act (updated in 2004) set out 3 options :
-a hospital order
-supervision order
-an absolute discharge

Question 32

Automatism definition

Answer 32

defined in Bratty v A-G for Northern Ireland 1963
An Act done by the muscles without any control by the, mind such as spasms, a reflex action or convulsion, or an act done by a person who is not concious of what he is doing such as an act done whislt suffering from concussion or whilst sleep-walking

Question 33

Automatism

Answer 33

Defence as Actus reus done by D is not voluntary

• D does not have necessary Mens Rea for crime
• D is acquitted if sucessful plea
• Defence must raise the defence and then for the proseution to disprove the defence
• cause must be external e.g blow to head, hypnotism, sneezing and effect of drug ( kay v Butterworth) (hill v baxter)
• C of A held that must be a total destruction of voluntary control (A-G Ref No2 (1992)

Question 34

Self - induced Automatism

Answer 34

I.e A diabetic who fails to eat after taking insulin (Bailey)

• • Specific intent offence Like GBH s18 then self induced can be a defence. As defendant lacks required mens rea
• Basic intent offence - If reckless in getting in the state then cant use defence as lacks required mens rea
• Where the self induced automatic state is caused through drink or illegal drugs then cannot rely on the defence because voluntary is reckless course of conduct (Dpp v Majewski)
• Where D does not know his actions are likley to lead to a self - induced automatic state in which he may commit an offence, he has not been reckless and can use defence (Hardie)

Question 35

Intoxication definition

Answer 35

Voluntary - D chooses to take intoxicating substance. Can be through drinking alcohol or drugs
involuntary - D did not know they was taking the substance like being spiked or prescription has run out of date
Common law defence and only used if D cant form necessary mens rea for defence

Question 36

Specific intent crimes for intoxication Vol

Answer 36

If so intoxicated that cant form Mens Rea may be able to rely on the defence (Dpp v Beard)
Where the D. has the necessary MR despite the intoxication then will still be guilty of the offence ( A-G For NI v Gallagher)

Question 37

Basic intent crimes for intoxication Vol

Answer 37

• Not a defence for basic intent crimes like ABH. Voluntary becoming intoxicated is considered recklessness course of conduct which is enough for MR of the offences (DPP v Majweski)
• Courts recently taken a softer approach and have suggested that a test for recklessness should be a subjective one when considering voluntary intoxication and basic intent offences (R v RIchardson & Irwin)

Question 38

Invol intoxication

Answer 38

• More relaxed rules as D is less at fault
• Can be used for specific and basic
• if still develops the mens rea still guilty (Kingston)
• 4 Main situations where the Ds intoxication will be treated as invol:
• medical prescription (Bailey)
• Commonly know to have a sedative effect (Hardie)
• Taken without knowledge (but cant argue invol if drink was stronger than anticipated (Allen)
• under duress (no english case law but is american authority - persuasive precedent)