Defences Flashcards
What are the Five general defences?
Insanity
Automatism
Intoxication
Self-defence
Duress
What are the Insanity M’Naughten Elements?
- Defect of reason
- Caused by a disease of the mind
- So as not to know the nature and quality of the act or knowing that it was wrong
R v Clarke applies to what element of insanity?
Defect of reason must be more than mere absentmindedness
Meaning of “defect of reason”
Complete loss of the power of reasoning
Sullivan applies to what element of insanity?
Disease of the mind - so long as there is a disease which affects the mind, it does not matter what the type of disease is
Internal factor definition
Insanity - defect of reason must be caused by the disease only
Explain the two ways the defendant won’t knwo the Nature and quality of their actions for the defence of insanity
There are two ways in which D may not know the nature and quality of the act.
- Because they are in a state of unconsciousness or impaired consciousness
- Where they are conscious but die to their mental condition they do not understand or know what they are doing.
Windle applies to what element of insanity?
D did not know what they were doing was wrong
Insanity punishments
Treatment Orders
Hospital Orders
Secure Hospitals
Automatism explanation
Where the defendant’s actions were involuntary but caused by external rather than internal factors
External causes examples n(automatism)
An attack by a swarm of bees
Hypnotism
A blow to the head
Whoolley applies to what element of automatism?
External cause
Explaination of Self-induced automatism
Reckless = defence only applies to specific intent offences
Defendant was not reckless in getting into an automatic state, what offences will the defence of automatism apply to?
Defence applies to all offences
Explain and identify Basic intent offences
This is where the mens rea is intention or subjective recklessness.
Assault, battery, s.47 ABH, s.20 GBH, unlawful act manslaughter
Explain and identify Specific intent offences
This is where the mens rea for the offence is intention only and not subjective recklessness.
s.18 GBH and murder
R v Bailey states what about the defence of automatism?
Automatism could be a defence to a specific intent crime
Intoxication elements
- Whether the intoxication was voluntary or involuntary
- Whether the offence is a basic or specific intent offence
DPP v Majewski applies to what element of intoxication?
Voluntary intoxication
Lipman applies to what element of intoxication?
Voluntary intoxication
Kingston applies to what element of intoxication?
Involuntary intoxication
Involuntary intoxication - when does it apply?
Involuntary intoxication will only be a defence if D was so intoxicated that he/she was unable to form the mens rea required
s.3 of the Criminal Law Act 1967 sets out which defence?
Self defence
Set out the Self-defence elements
- Was it necessary to use some force?
- Was the force used reasonable/proportionate?
Was it necessary to use some force - is this a subjective or object test for the defence of self-defence?
Subjective test
s.76(5) Criminal Justice and Immigration Act states what about the defence of self-defence?
If Ds honest held belief that force was necessary was due to intoxication, then the defence of self defence will not be available
Explain the rule of Self defence and intoxication
If Ds honest held belief that force was necessary was due to intoxication, then the defence of self defence will not be available
s.76(6A) states what about the defence of self-defence?
D is not under a duty to retreat but it is a factor to be taken into account when considering whether force was necessary and proportionate.
Explain the rule of Self defence and duty to retreat
D is not under a duty to retreat but it is a factor to be taken into account when considering whether force was necessary and proportionate.
If D is the aggressor (self-defence) what is the rule?
If D is the initial aggressor but V then responds with disproportionate force D may then use proportionate force to defend him/herself and the defence will still be available.
R v Martin applies to what element of self-defence?
Was the use of force reasonable?
Was the use of force reasonable? Is this an objective or subjective test for the defence of self-defence?
Objective test
The rule for Self-defence and householders
- A person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action
- Evidence that D had only done what he/she honestly and instinctively thought was necessary was strong evidence that the response was reasonable.
- D is not regarded as having acted reasonably if the degree of force was grossly disproportionate
s76(7) Criminal Justice and Immigration Act 2008 applies to what element of self-defence?
Self-defence and homeowners
Duress of threats elements
- Threat to cause death or serious injury
- Threat must be directed at D or immediate family
- D must act reasonably
- Threats must relate directly to the crime actually committed by the defendant
- Imminent threat
- The defendant cannot use the defence if they have voluntarily exposed themselves to the threats
What tests are uses to establish of Defendant acted reasonably? (duress)
- Was D actually compelled to act as he/she did because he/she reasonably feared serious injury or death
- Would a sober person of reasonable firmness, sharing the characteristics of D, have responded in the same way? (R v Graham)
R v Graham applies to what element of the defence of duress?
Would a sober person of reasonable firmness, sharing the characteristics of D, have responded in the same way?
R v Cole applies to what element of the defence of duress?
Threats must relate directly to the crime actually committed by the defendant
R v Hasan applies to what element of the defence of duress?
Cannot rely on the defence of duress when threats were self-induced e.g. joining a gang
Willer applies to what element of the defence of duress?
Duress of circumstances
