Defences

Question 1

Five general defences

Answer 1

Insanity
Automatism
Intoxication
Self-defence
Duress

Question 2

Insanity M’Naughten Elements

Answer 2

1. Defect of reason
2. Caused by a disease of the mind
3. So as not to know the nature and quality of the act or knowing that it was wrong

Question 3

R v Clarke

Answer 3

Defect of reason must be more than mere absentmindedness

Question 4

Meaning of “defect of reason”

Answer 4

Complete loss of the power of reasoning

Question 5

Sullivan

Answer 5

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

Question 6

Internal factor

Answer 6

Insanity - defect of reason must be caused by the disease only

Question 7

Nature and quality of their actions

Answer 7

There are two ways in which D may not know the nature and quality of the act.

1. Because they are in a state of unconsciousness or impaired consciousness
2. Where they are conscious but die to their mental condition they do not understand or know what they are doing.

Question 8

Windle (Insanity)

Answer 8

D did not know what they were doing was wrong

Question 9

Insanity punishments

Answer 9

Treatment Orders
Hospital Orders
Secure Hospitals

Question 10

Automatism explanation

Answer 10

Where the defendant’s actions were involuntary but caused by external rather than internal factors

Question 11

External causes examples

Answer 11

An attack by a swarm of bees
Hypnotism
A blow to the head

Question 12

Whoolley

Answer 12

External cause

Question 13

Self-induced automatism

Answer 13

Reckless = defence only applies to specific intent offences

Question 14

Defendant was not reckless in getting into an automatic state

Answer 14

Defence applies to all offences

Question 15

Basic intent offences

Answer 15

This is where the mens rea is intention or subjective recklessness.

Assault, battery, s.47 ABH, s.20 GBH, unlawful act manslaughter

Question 16

Specific intent offences

Answer 16

This is where the mens rea for the offence is intention only and not subjective recklessness.

s.18 GBH and murder

Question 17

R v Bailey

Answer 17

Automatism could be a defence to a specific intent crime

Question 18

Intoxication elements

Answer 18

1. Whether the intoxication was voluntary or involuntary
2. Whether the offence is a basic or specific intent offence

Question 19

DPP v Majewski

Answer 19

Voluntary intoxication

Question 20

Lipman

Answer 20

Voluntary intoxication

Question 21

Kingston

Answer 21

Involuntary intoxication

Question 22

Involuntary intoxication - when does it apply?

Answer 22

Involuntary intoxication will only be a defence if D was so intoxicated that he/she was unable to form the mens rea required

Question 23

s.3 of the Criminal Law Act 1967

Answer 23

Self defence

Question 24

Self-defence elements

Answer 24

1. Was it necessary to use some force?
2. Was the force used reasonable/proportionate?

Question 25

Was it necessary to use some force

Answer 25

Subjective test

Question 26

s.76(5) Criminal Justice and Immigration Act

Answer 26

If Ds honest held belief that force was necessary was due to intoxication, then the defence of self defence will not be available

Question 27

Self defence and intoxication

Answer 27

If Ds honest held belief that force was necessary was due to intoxication, then the defence of self defence will not be available

Question 28

s.76(6A)

Answer 28

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.

Question 29

Self defence and duty to retreat

Answer 29

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.

Question 30

If D is the aggressor (self-defence)

Answer 30

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.

Question 31

R v Martin

Answer 31

Was the use of force reasonable?

Question 32

Was the use of force reasonable?

Answer 32

Objective test

Question 33

Self-defence and householders

Answer 33

1. A person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action
2. Evidence that D had only done what he/she honestly and instinctively thought was necessary was strong evidence that the response was reasonable.
3. D is not regarded as having acted reasonably if the degree of force was grossly disproportionate

Question 34

s76(7) Criminal Justice and Immigration Act 2008

Answer 34

Self-defence and homeowners

Question 35

Duress of threats elements

Answer 35

1. Threat to cause death or serious injury
2. Threat must be directed at D or immediate family
3. D must act reasonably
4. Threats must relate directly to the crime actually committed by the defendant
5. Imminent threat
6. The defendant cannot use the defence if they have voluntarily exposed themselves to the threats

Question 36

Defendant must act reasonably (duress)

Answer 36

1. Was D actually compelled to act as he/she did because he/she reasonably feared serious injury or death
2. Would a sober person of reasonable firmness, sharing the characteristics of D, have responded in the same way? (R v Graham)

Question 37

R v Graham

Answer 37

Would a sober person of reasonable firmness, sharing the characteristics of D, have responded in the same way?

Question 38

R v Cole

Answer 38

Threats must relate directly to the crime actually committed by the defendant

Question 39

R v Hasan

Answer 39

Cannot rely on the defence of duress when threats were self-induced e.g. joining a gang

Question 40

Willer

Answer 40

Duress of circumstances