Defences

Question 1

What must D prove to satsify the insanity defence according to the M’Naghten rules?

Answer 1

• To establish a defence of insanity, D must suffer a disease of the mind.
  caused a defect in reason.
• This must have caused a lack of responsibility; so that either
• He did not know the nature and quality of his acts, or that he did not know what he was doing was wrong.

Question 2

How is D to be judged according to M’Naghten

Answer 2

As if the facts with respect to the delusion exists were real

Question 3

Oye

Answer 3

Severely affected by delusions that police were agents of evil spirits out to kill him.
Not guilty by reason of insanity

Question 4

What is the defence of duress by threats?

Answer 4

D has committed an offence, but has done so because she was threatened by X with death or serious injury

Question 5

What must D prove for the defence of duress?

Answer 5

That D reasonably believed that she (or someone she was responsible for) was threatened by death/serious injury & this is something a reasonable person in D’s circumstances would have done

Question 6

Why can’t duress be a defence for murder?

Answer 6

D ought rather to die himself than escape by the murder of an innocent

Question 7

Is duress a viable defence for murder?

Answer 7

No- Gotts
Available for conspiracy to murder- Ness

Question 8

Hasan

Answer 8

Duress is not applicable where D voluntarily associates with X in circumstances where the reasonable person could foresee the risk of future coercion

Question 9

What are the elements to consider for duress

Answer 9

Content of the threat, Who made the threat and who its directed at, the content of the demand

Question 10

What qualifies as a threat?

Answer 10

Death or serious injury, the gravity of which determines the threshold for whether the defence applies

Question 11

Safi

Answer 11

No need for objective evidence of a threat as long as D reasonably believed it existed. Duress can be found on a mistaken belief

Question 12

Rodger and Rose

Answer 12

Duress must be external from D and cannot originate from D himself. D found out they had increased jail time, suicidal decided to escape prison. Held that there could not be duress

Question 13

Who must the threat be directed to?

Answer 13

D, or someone D assumes responsibility for

Question 14

What are the requisites for the content of a demand?

Answer 14

X must specify an act for D to rely on duress- Cole; Ali Where there is no specified act, there cannot be duress

Question 15

Which elements are considered when assessing D’s response

Answer 15

1. Necessary causal link between the threat and D’s offence
2. Imminent threat
3. Whether a reasonable person would have acted as D did

Question 16

How is causation established?

Answer 16

By demonstrating that but for the threat, D would not have committed the offence

Question 17

Can duress be found in the presence of multiple potential threats?

Answer 17

Valderrama-Vega - yes, as long as the threat of serious injury is sufficient

Question 18

How is imminence classified?

Answer 18

Need not be immediate as long as it is the operative cause of the offence

Question 19

Hudson - Taylor

Answer 19

D and another admitted committing perjury by failing to testify as to the identity of the suspect of a wounding at trial, leading to his acquittal.
D claimed that she lied in her evidence because she was threatened with being ‘cut up’ if she identified the suspect, and one of those threatening her was in the public gallery when she gave evidence. D was charged with perjury.

Question 20

Abdul Hussain

Answer 20

Court of Appeal allowed the appeal of D who had hijacked a plane and come to England to escape deportation and likely execution in Iraq. No effective means of escape= sufficient

Question 21

How is reasonableness decided in duress cases?

Answer 21

Whether the reasonable and sober person would act as D did: Graham; Bowen

Question 22

Valderrama-Vega

Answer 22

So long as the threat of serious injury is sufficient it does not need to be the sole cause

Question 23

Bowen

Answer 23

Characteristics such as age can factor into whether the reasonable person would have succumbed to duress, but this does not extend to IQ

Question 24

What is duress by circumstances?

Answer 24

Extension of duress by threat but to the surrounding circumstances

Question 25

Willer

Answer 25

D drove his car into a pavement to escape from youth intent on causing serious harm
D held to have the defence of duress

Question 26

What are the elements of duress by circumstance?

Answer 26

Duress is not a defence to murder
D must reasonably believe that the circumstances posed a threat of death or serious injury
D must have shown reasonable steadfastness in response to the threat, only committing the offence because their will was overborne

Question 27

What is self-defence?

Answer 27

A complete defence to any charge where D uses otherwise unlawful force to protect her public or private interest

Question 28

What is the exception to self- defence

Answer 28

Where D consciously manipulates v into attacking her to retaliate in apparent defence

Question 29

What is private defence?

Answer 29

common law, defence where D uses force to protect D or another from physical harm or to protect property

Question 30

What is public defence?

Answer 30

Criminal Law Act 1967 s3, defence where D uses force to prevent a crime / effect or assist lawful arrest.
Codified in s76 Criminal Justice and Immigration Act 2008

Question 31

What are the elements of self-defence?

Answer 31

Will not apply to an offence committed by D without force.
Will not apply to circumstances of prior fault.
D must have believed the force was necessary to protect her public/private interests
D must have used reasonable force
Defence is not available where D is a householder, intoxicated or delusional

Question 32

How would the courts find whether necessity was required?

Answer 32

Whether the force was required against V on the facts as D believed them to be- D’s subjective appreciation of the facts

Question 33

Does there need to be an objective necessity of force?

Answer 33

NO- D can rely on such belief, whether or not it was mistaken

Question 34

Devlin v Armstrong

Answer 34

D can use pre=emptive force where she believes it to be imminent

Question 35

What is the general rule for necessity?

Answer 35

Not permissible to use force against lawful acts

Question 36

Dadson

Answer 36

Where the justifying reason in unknown to D, D is not viable to argue self-defence

Question 37

What are the requirements for the reasonable degree of force?

Answer 37

Subjective- D must believe that the force was reasonable
Objective- What degree of force would be used by a reasonable person in D’s circumstances?

Question 38

Martin

Answer 38

Awoken by people attempting to burgle house
D shot them
Argued self-defence
Conviction substituted for manslaughter, the self defence argument was inapplicable due to the excessive force applied

Question 39

What are the exceptions (special categories of D) who cannot argue self defence?

Answer 39

Householders- cannot be held to have used reasonable force as D believed them to be if they are grossly disproportionate.
Voluntary intoxication (Taj)
Insane/Delusional

Question 40

Taj

Answer 40

D experienced non insane delusions after consuming drugs
Believed V was a terrorist and attacked him
Held that voluntary intoxication could not be used as a defence

Question 41

What is the general rule for necessity?

Answer 41

Only applicable in exceptional circumstances

Question 42

F v West Berkshire Authority

Answer 42

Doctor granted the defence of necessity to perform non consensual sterilisation on v

Question 43

Dudley v Stephens

Answer 43

D1, D2 shipwrecked. Killed V and ate him. The choice to kill v was unacceptable

Question 44

Re A

Answer 44

Conjoined twins.
Doctor granted a declaration to surgically separate them

Question 45

What was the courts reasoning in Re A?

Answer 45

if the act is need to avoid inevitable and irreparable evil
No more should be done than is reasonably necessary to achieve the purpose
The evil inflicted is not disproportionate to the evil avoided -> necessity

Question 46

Criminal Justice and Immigration Act 2008, 76 (4) (b)

Answer 46

if it is determined that D did genuinely hold (…a particular belief as regards the existence of any circumstances), D is entitled to rely on it for the purposes of subsection (3), whether or not—
(i) it was mistaken, or
(ii) (if it was mistaken) the mistake was a reasonable one to have made.

Question 47

Sullivan

Answer 47

epilepsy was a disease of mind;

Question 48

Kemp

Answer 48

D was charged with causing grievous bodily harm (GBH) to his wife. He suffered from arteriosclerosis (hardening of the arteries), which led to a congestion of blood in the brain (a well-recognized consequence of the disease), causing a temporary lapse of consciousness in which state the attack was made

Question 49

Burgess

Answer 49

although D argued that sleepwalking fell into the defence of non-insane automatism, below, the Court of Appeal considered Sullivan and concluded that sleep-walking is due to an internal disorder and, where it manifests itself in violence and might recur (see Bratty [1963]), that is a disease of mind and D is insane.

Question 50

Quick

Answer 50

D was a nurse who was charged with assaulting a patient. D, a diabetic, gave evidence that he had taken insulin as prescribed on the morning of the assault, had then drunk alcohol and eaten little food, and had no recollection of the assault. He called medical evidence to the effect that he was suffering hypoglycaemia. The Court of Appeal held that ‘disease of the mind’ was a malfunctioning of the mind caused by disease. It did not include the application to the body of some external factor, such as insulin.

Question 51

Hennessey

Answer 51

In this case, D was also an insulin-dependent diabetic who had not taken insulin and had not eaten for several days. He sought to raise a defence of automatism, in that the offences with which he was charged were committed during a state of hyperglycaemia. That, said the courts, was an internal cause (the diabetes itself) and not an external cause (the insulin).

Question 52

What is the effect of an outcome of not guilty by insanity?

Answer 52

he will be made the subject of a disposal order, including (but not limited to) hospital and supervision orders under the Mental Health Act 1983.W

Question 53

What is automatism

Answer 53

an act which is done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion …

Question 54

Bailey [1983] 1 WLR 760

Answer 54

The jury convicted D of assault despite D’s evidence that he was hypoglycaemic at the time. D had taken insulin and had failed to eat. The Court of Appeal held that if D realizes there is a risk that his conduct (on the facts, failure to eat after taking insulin) may lead to aggressive, unpredictable, and uncontrollable conduct, and he nevertheless deliberately runs the risk, this will amount to recklessness. If D is reckless in becoming an automaton, he cannot succeed with the defence if charged with a basic intent crime.

Question 55

what is required to prove automatism

Answer 55

the defendant has no control over his body as the result of an external factor (ie not a mental condition) and the defendant cannot be blamed for getting into that state:

Question 56

Attorney-General’s Reference (No 2 of 1992)

Answer 56

As a result of driving at night for a long period of time and seeing repeated flashing lights, D entered a state of ‘driving without awareness’ and killed someone in a crash. The Court of Appeal held the defence of automatism was not open to him because (1) it had not been shown he had lost all awareness of what he was doing or control of the car and (2) he should have realized he was starting to feel odd and pulled over for a rest.

Question 57

What is the general rule for voluntary intoxication? KIngston

Answer 57

if D lacks the mens rea as a result of the involuntary intoxication they are innocent. However, if D formed the mens rea of the crime, they are guilty, even if they only committed the offence because they were involuntarily intoxicated.

Question 58

Majewski

Answer 58

D was involved in a brawl at a public house in which he assaulted the landlord, customers, and police officers. His defence was that the offences had been committed while he was suffering from the effect of alcohol and drugs. The House of Lords held that if D is charged with a specific intent crime and did not form mens rea, he is not guilty of that crime (but liability may be reduced). Voluntary intoxication is not a defence to basic crimes.

Question 59

crimes of specific intent

Answer 59

crimes which require proof of intent

Question 60

crimes of basic intent

Answer 60

those which require only proof of recklessness.

Question 61

What are the 3 principles of mistake?

Answer 61

Most mistakes do not affect liability at all.

2.
Mistakes of criminal law do not affect liability because ignorance of the criminal law is no defence.

3.
Mistakes of the civil law (see Smith [1974] in chapter 13, p 156) and some mistakes of fact do prevent liability provided D makes the ‘right’ mistake.