Defences Flashcards
Diminished responsibility definition
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
Act
s2 (1) Homicide Act 1957 as amended by s52 coroners and justice act 2009
Abnormality of mental functioning (1)
defined as being ‘ a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal (byrne)
recognised mental condition (1) (a)
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)
substantially impared (1) (b)
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
provides an explanation for the Ds acts or omissions in doing/being a party to the killing (1) (c)
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
loss of control definition
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
Act for LOC
s54 coroners and justice act 2009
s54(1)
must be proved that the D had lost self control when doing the acts which caused Vs death
s54(2)
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)
s55
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
s55 (5)
a qualifying trigger can be a combination of both
s55 (6)
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
s54 (4)
defence not available for revenge attacks (Ibrams and Gregory)
s54 (3)
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
Duress of threat definition
D is forced to act through a direct threat by another
Duress of circumstances definition
D is forced to act through external circumstances
Necessity definition
D is forced to act to prevent a worse evil happening
What crimes can duress be used on
All crimes except murder or attempted murder
A common law defence based upon decisions of judges than statute
Duress of threat
- 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)
Duress of circumstances
- 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)
Duress of necessity
- 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
Self defence definition
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
It must be necessary to use some force
- 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)
