Defences Flashcards
What is intoxication ?
Intoxication is the effects of either alcohol or drug use, wherein normal levels of mental functioning can be impaired.
How is intoxication used as a defence for crime ?
Intoxication is used to prove the necessary mens rea is not present due to impairment of mental functioning.
What are the two types of intent crimes, relevant to intoxication ?
- Specific intent crimes
- Basic intent crimes
Examples of specific intent crimes …
Murder, property offences, GBH s.18,
Examples of basic intent crimes …
Assault, battery, ABH, GBH s.20
What is voluntary intoxication ?
Where the defendant brings about his own intoxication, via voluntarily consuming alcohol or drugs.
What is involuntary intoxication ?
Where the defendant takes an intoxicating substance, but is unaware of having done so, or the intoxication is an unwanted side effect.
Why will voluntary intoxiation ALWAYS fail for basic intent crimes ?
For basic intent crimes, recklessness is sufficent to satisfy the mens rea, and as defined by Rv Majewski, becoming intoxicated voluntarily is a reckless course of conduct, so as soon as the D becomes intoxicated it is reckless, therefore the mens rea is satisfied - meaning the defence cannot work.
What is Dutch courage ?
When D becomes voluntarily intoxicated in order to provide courage to commit an offence - this will never work as a defence as the mens rea is satisfied
Which case defines Dutch courage ?
AG for NI v Gallagher
What are the two types of automatism ?
-Insane automatism
-Non-insane automatism
What is insane automatism ?
Where the D is in an automatic state however this is due to an internal factor rather than an external factor - “a disease of the mind”
What test is used to assess the availability of insane automatism ?
M’Naughten rules *
What is non-insane automatism ?
Where the D is in an automatic state, however they are not insane, as for some other reason they were unable to control their actions, acting involuntarily due to an external factor.
Where was the definition of automatism established ?
Lord Denning in Bratty v AG 1663
What did Lord Denning in Bratty v AG 1963 define automatism as ?
“An act done by the muscles, without control by the mind, such as a spasm, a reflex reaction or a convulsion”
What elements are required in order to establish the availability of automatism as a defence ?
- Completely involuntary
- Caused by an external factor
What is meant by completely involuntary ? (+case)
D’s loss of control by the mind must render the movement by his muscles as completely involuntary
What did AG ref No.2 1992, define about “completely involuntary”.
“Needs to be total loss of control”
What is meant by “caused by an external factor”
“There must be a factor, external to the body of the defendant that has caused the involuntary behaviour”
What are some examples, of external factors ?
Serious blow to the head
PTSD due to trauma (Rv T)
Hypoglycemia (Rv Quick)
Swarm of bees in the car while driving….
What is self induced automatism ?
When the defendant brings about the automatic state themselves through their own conduct.
What are the two types of self induced automatism ?
When the defendant knows their conduct is likely to bring about an automatic state.
When the D is unaware their conduct would lead to an automatic state.
Is self induced automatism likely to succeed as a defence ?
Barely ever a successful defence, however situations in which the D is unaware their conduct will bring about an automatic state, is more likely to succeed as a defence.
What was said about self induced automatism and specific intent crimes ?
Both types of self induced automatism can succeed for specific intent crimes, if the automatic state prevented the D from forming the mens rea for the offence.
What was said about self induced automatism and basic intent crimes ? (+case)
When the D is unaware that his actions would lead to an automatic state and was therefore not reckless, the defence may succeed (Hardie).
What was said about self induced automatism by intoxication and basic intent crimes ? (+case)
Where the self-induced automatic state is caused by drink or illegal drugs, the D cannot use the defence. It was decided that becoming voluntarily intoxicated is a ‘reckless course of conduct.’ (DPP v Majewski).
What did Rv Bailey establish about reckless self induced automatism as a defence for basic intent crimes?
There is no defence where the defendant was reckless in bringing about his own automatic state
Who is the burden of proof on for automatism ?
The defence have the burden of proof to provide evidence that they were suffering from an automatic state, during the time of the offence.
What is insanity ?
Insanity is a defence when the defendant carried out the offence however was suffering from a defect of reasoning, due to a disease of the mind, and the defendant does not know the nature or quality of the act, or if he or she does know it, dies not know it is legally wrong.
Where is insanity defined ?
The M’Naughten rules *
What is the first test to establish the availability of insanity as a defence ?
Defect of reasoning *
What was defined about “defect of reasoning”
There must be a total inability to reason and complete lack of awareness.
What did Rv Clarke define about defect of reasoning ?
‘needs to be more than absent mindedness and confusion’
What is the second test to establish the availability of insanity as a defence ?
From a “disease of the mind”
What was defined about “disease of the mind”.
Legal term, not a medical term. The disease itself can either be a mental disease or a disease which affects the mind.
What did Rv Kemp define about “disease of the mind”.
“Affected his memory, reasoning and understanding”.
What are the different diseases of the mind (+cases)
Epilepsy (Rv Sullivan)
Diabetes (Rv Hennesey)
Sleepwalking (Rv Burgess)
Voluntary intoxication (AG for NI v Gallagher)
What is the third test to establish the availability of insanity as a defence ?
Not knowing the nature or quality of the act
what was defined about not knowing the nature or quality of the act ? (+case)
They are unconscious or have impaired consciousness, or they are conscious but due to their mental condition, they do not understand or know what they are doing. (Rv Oye)
What was added onto not knowing the nature or quality of the act ? (+case)
If the defendant knows the nature and quality of the act and that it is legally wrong, they cannot use the defence of insanity. (Rv Windle)
What is the special verdict ?
“Not guilty by reason of insanity”
What are the three outcomes of the special verdict ?
-A hospital order (with or without restrictions as to when the D may be released), or
-A supervision order, or
-An absolute discharge.
What is consent ?
Consent is a defence, which functions by proving the victim allowed the defendant to carry out the conduct in question, meaning the offence is invalid.
What is the general rule for consent ?
Battery (simple application of force), can always be consented to, whereas more serious harm, s.47 ABH and s.20/S.18 cannot.
Where has the test for consent arisen from ?
Common law *
What is the first test to establish the availability of consent as a defence ?
“Valid consent”
How is valid consent proven ?
It must be proven that the victim had a “legal capacity” to consent.
What is the case for “valid consent”
Burell v Hamer
What is the second test to establish the availability of consent as a defence ?
Real ( true ) consent
How is real/true consent proven ?
It must be proven that the victim, at the time of consenting knew the “nature and quality of the act”, in which they were consenting to.
What did Rv Tabassum define about real/true consent ?
If the victim is deceived in any way, meaning they did not know the true nature or quality of the act, real/true consent is not satisfied.
What did Rv Dica define about real/true consent ?
Consenting to sex is not the same as consenting to the transmission of disease.
What is the third test that needs to be considered for the availability of consent as a defence ?
Exceptions to the general rules *
What is meant by exceptions to the general rule ?
There are a list of exceptions, where an individual can consent to more than just battery, wherein s.47 ABH and even s.20 GBH can be lawfully consented to.
Which case defined the list of exceptions to the general rule for consent ?
“Rv Brown ( and others )”
What are all the exceptions to the general rule defined by “Brown and others” ?
-Properly conducted games and sports
-Tattooing and branding
-Sexual activity
-Horseplay
-Surgery
-Lawful chastisement
-(Dangerous exhibitions, haircuts, medical procedures …)
What was defined about boxing in regards to consent ?
(+case)
In order for consent to a boxing match to be valid, the fight must be held under the “Queensbury rules” *(AG ref No.6)
What was defined about “other sports” in regards to consent ? (+case)
There is a distinction made between “on the ball” and “off the ball” incidents, wherein consent will work for on the ball instances (Rv Barnes) , and it will not for off the ball instances (Rv Billinghurst).
What was defined in Rv Wilson about both tattooing and branding ?
“Rv Wilson” allowed consent as to branding alongside tattooing.
What was defined about inadvertent violence during sexual activity. (+case) ?
Rv Slingsby outlined how where injury was accidental during sexual activity, consent is recognised and the defence would work.
What was defined about sadomasochistic activity in regards to consent ?
The law does not tolerate deliberate infliction of injury for sexual gratification. Therefore, the defence of consent is not valid. (Brown and others - “no good reason”)
What was defined about rough horseplay in regards to consent ?
Consent works for cases of rough horseplay, as all participants have implied consent to some harm, as they’re aware of the risk involved, meaning consent is an effective defence for offences against the person (Rv Jones)
What is self defence ?
A full defence wherein D admits to committing both the AR and MR but claims they only did so, in self defence.
What act and which section defines the test for self defence ?
s.76 of the criminal justice and immigration act 2008
What is the two part test to establish the availability if self defence as a defence ?
- Was the use of force necessary in the circumstance
- Was the force used reasonable in the circumstances?
How is the necessity of force judged ?
Subjectively, meaning the D’s conduct is judged according to the circumstances as the D genuinely believed them to be. (From D’s POV)
What act and which section defines the laws on mistakes and self defence ?
s.76(3)/(4) of the criminal justice and immigration act 2008
What was defined about mistakes and self defence ? + which case establishes this ?
The act has made it clear that the circumstances are to be judged as the D genuinely believed them to be, even if his belief was a mistake or unreasonable ( Rv Williams - Gladstone )
What was defined about “the effect of mental conditions on self-defence”
The D’s genuine belief can include delusions resulting from psychiatric condition or another condition such as PTSD (Rv Oye)
What was defined about “mistake, self-defence & intoxication” and what case shows this ?
The act makes it clear that the D cannot rely on self-defense if they make a mistake as a result of being voluntarily intoxicated. ( Rv O’Grady )
What is a pre-emptive strike in regards to self defence - and what case shows this ?
Where the defendant strikes first in order to prevent an attack from the aggressor, the courts have made it clear that there is no duty to retreat before using force, meaning a pre-emptive strike is valid for self defence - shown in Rv Bird .
What is the laws on self defence in regards to situations where the “defendant is the initial aggressor” and what case shows this ?
Even if the defendant is the initial aggressor, they may use force if the victim’s response is wholly disproportionate and seriously threatens the defendant, but this will only be a defence if it was not the defendant’s aim all along to give themselves an excuse to use much more serious violence
How is the defendants conduct classed as reasonable or not ?
s.76(5) defines that the defendants conduct is to be judged objectively, but in the circumstances as the D believed them to be and force which the D uses has to be reasonable. If it is classed as excessive force the defence will fail.
Which section defined householder cases is meant by this ?
Section 76(5A) of the Criminal Justice and Immigration Act 2008, states that, “force which is grossly disproportionate will not be seen as reasonable”. This means that a householder can use reasonable force, and now disproportionate force, to protect themselves and others in the house, but NOT grossly disproportionate force.
What is the test to establish whether a case qualifies as a householder case ?
-The force must be used by the defendant while in or partly in a building that is a dwelling.
-The defendant must not be a trespasser.
-The defendant must believe that the victim was a trespasser.
