Defences Flashcards
Capacity defences
To deny the mens rea entirely, essentially claiming that d was not morally in control of his actions.
- insanity
- automatism
- intoxication
Necessity defences
D argues that it was necessary for them to commit that crime.
- self defence
- duress
Capacity defence - insanity
Most defences will lead to d being fully acquitted - not insanity.
Insanity can lead to a hospital order, a supervision order, or acquittal, but always end in d being guilty by reason of insanity.
Insanity - case
M’Naughten - extreme paranoia, acquitted of murder
He was labouring under such a defect of reason caused by a disease of the mind, as to not know the nature and quality of the act he was doing, or if he did know it, that it was wrong.
The main rule of insanity
‘In that in all cases every man is presumed to be sane and to process a sufficient degree of reason to be responsible for his crimes’ unless D must prove that at the time of the act they had:
1) defect of reason
2) disease of the mind
3) not knowing the nature and quality of the act or not knowing it was wrong.
1) defect of reason
Point of law: the defect in reason must be more than absent mindedness or confusion.
Defect of reason - case
Clarke - quashed defence, used absent mindedness as defence
2) disease of the mind
Defect of reason must be due to a disease of the mind (legal term not medical). The disease can be mental or physical which affects the mind (not brain).
Disease of the mind - cases
Kemp - hardening of arteries caused a problem with the supply of blood to the brain, defence upheld.
Sullivan - Eplilepsy falls under the insanity defence, physical disease led to a disease of the mind.
Organic insanity
When the brain has been damaged by the physical cause - eg: epilepsy, degenerative diseases.
Functional insanity
When there is no organic reason for the damage to the brain (sleepwalking can full under this category).
Organic vs. Functional insanity - cases
Burgess - functional, disease can be any prt of the body provided it has an effect on the mind. D was sleepwalking.
Hennessy - Organic, diabetes was affecting his mind, and so comes whithin the defenition of insanity, the sugar levels affected his mind.
Quick - Defence of insanity wasn’t allowed, not eating caused d to attack not the disease, it was an external matter.
Point of law for insanity
If d has not taken any drugs and it is the disease causing the problem, then it is an internal cause.
Voluntary intoxication and insanity
Where d voluntarily takes an intoxicating substance and this causes a temporary psychotic episode, d cannot use the the defence of insanity as an intoxicating substance is an external factor.
Voluntary intoxication and insanity - case
Coley - d smoked cannabis, attacked v - no defence of insanity.
Nature and Quality of insanity
This refers to the physical character of the act. There are 2 ways in which d may not know the nature and quality of their act:
- d was in a state of unconcoiusness or impared unconciousness (Kemp),
- d was concious but but due to mental condition, did not understand or know what they were doing wrong.
If either apply to d at the time of the act, then that satisfies the part of the M’Naughten rules.
Nature and Quality of insanity - case
Windle - d said ‘they will hang me for this’, knew act was wrong, cannot use defence of insanity.
Automatism
A capacity defence.
Non-Insane Automatism
Complete defence. If d is sucessful in using the defence, they are fully acquitted.
Non-Insane Automatism - Case and Defenition
Bratty v Attorney General for Northern Ireland - non-insane automatism is an ‘act done by muscles without any control by the mind… or an act done by a person who is not concious of what they are doing’.
As well as having no mens rea, there is no voluntary actus reus.
Causes of automatism
Must generally have to be external to d:
- Blow to the head
- Attack by a swarm of bees
- Sneezing fit
- Being hypnotised
- Effect of a drug, however this may raise issues of self-induced automatism
Causes of automatism - cases
Hill v Baxter - Swarm of bees.
R v T - d had a ‘dream like state’ from PTSD, still convicted.
Exceptional stress
It was accepted that exceptional stress can be an external factor which may cause automatism.
Failed automatism - case
Attorney General’s Refrence 1993 - d claimed condition of driving without awareness, no defence as d was still aware enough to drive.
There has to be a total loss of voluntary control.
Self-induced automatism
When d knows their conduct is likely to bring on an automatic state. How the defence works is based on if the offence comitted was specific or basic intent.
Eg: a diabetic not taking insulin, someone on antibiotics drinking alcohol.
Specific intent offences
S.18 GBH and murder, can only be committed if d intends to do the offence.
Basic intent offences
S.20 GBH and below, usually requires recklessness as minimum MR.
Self-induced automatism - point of law
1) if d has became intoxicated voluntarily, intoxication rules will apply and the defence of intoxication (mainly for basic intent offences).
2) if d has taken something and it had a different/unexpected affect on d, automatism can be a defence for both speicific and basic intent offences.
Self-induced automatism - cases
Bailey - the judge stated automatism can be used for specific intent offences where d was self induced.
Hardie - d took drugs to calm down, had different and unexpected effect than intended.
Specific and basic intent - automatism defence
Specific intent: d must have had intention to committ that crime.
Basic intent: where the self induced automatic state is caused through drink/illegal substances, d cannot use the defence of automatism.
Specific and basic intent - cases
Quick - the crime requires recklessness as minimum MR for basic intent offences.
DPP v Majewski - becoming involuntarily intoxicated is a reckless form of action.
Defence of Intoxication - steps
1) Is intoxication voluntary or involuntary?
2) Is the offence basic or specific intent?
Voluntary intoxication and Specific intent offences
If d became intoxicated voluntarily and is so intoxicated that there’s no MR, d is not guilty (charges lowered). If there is MR, d is guilty.
Voluntary intoxication and Specific intent offences - case
Sheehan and Moore - murder lowered to manslaughter as there was no MR and both ds were drunk.
Voluntary intoxication charged with both specific and basic intent offences
If d voluntarily became intoxicated and is charged with a specific and basic intent offence, if d can prove there was no MR, then d can be acquitted of the specific intent crime, but still guilty of the basic intent crime. This is because recklessness is part of basic intent offences and voluntary intoxication is considered reckless behaviour.
Voluntary intoxication charged with both specific and basic intent offences - case
Lipman - Charged with murder and manslaughter, was acquitted of murder, guilty of manslaughter.
Voluntary intoxication and basic intent
Where the offence is one of basic intent, then intoxication is not a defence. Voluntarily becoming intoxicated is recklessness, which is enough to constitue the MR for a basic intent offence.
Voluntary intoxication and basic intent - case
DDP v Majewski - d committed several basic intent offences whilst drunk, couldn’t use defence of intoxication.
Involuntary intoxication
Where d injested spiked/laced food or drink with alcohol or drugs, or prescribed medication had a different effect than expected. If there is no MR, d will not be guilty of either specific or basic intent offences. If the prosecution can prove there was MR, d is still guilty of the offence.
Involuntary intoxication - cases
Hardie - If there is no MR, d will not be guilty of either specific or basic intent offences.
Kingston - d was drugged but still had MR formed before being involuntarily intoxicated (peadophilic tendencies).
Self-defence - Necessity defence
A complete defence in criminal law, d will be found not guilty if sucessful. Covers not only the actions needed to defend oneself from an attack, but also actions taken to defend another person or one’s property.
1) Self Defence
This is a common law defence which also includes defence of another person and defence of property as ammended by the Criminal Justice and Immigration Act 2008, and codified by s.76 in the Criminal Justice and Immigration Act for clarification.
2) Defence of property
This area is regulated partly by the common law defence of self-defence, as ammended by the Criminal Justice and Immigration Act 2008, where ther eis a belief that property was in immediate need of protection.
3) Prevention of crime
This is a public or statutory defence covered by the Criminal Law Act 1967, which states in s.3(1) that a person can use reasonable force in the circumstances to assist lawful arrest of offenders, suspected offenders or persons unlawfully at large.
2 considerations
1) Was force necessary?
2) Was the force reasonable in these circumstances?
Both tests must be passed or else d will not be able to use the defence.
1) Was force necessary?
D will be judged in the circumstances as they honestly believed them to be (subjective test), therefore the surrounding circumstances must be considered.
There is no duty to retreat when a person is acting for a legitament purpose, but the possibility that the person could have retreated can be considered a relevant factor.
Was force necessary? - cases
Gladstone Williams - d should be judged according to his genuine mistaken view of the facts, regardless of whether this mistake was reasonable or unreasonable.
Beckford - The test to be applied for self-defence is that a person may use such force as is reasonable in the circumstances as he honestly believed them to be.
Bird - pre-emptive strikes; d does not need to wait to be attacked before defending themselves.
Seun Oye - where d has delusions, their mental illness is not to be taken in account.
2) Was the force reasonable in these circumstances?
2 factors must be considered:
- the threat of harm
- the urgency of the situation
If appropiate, a lower degree of force is expected if d is protecting property rather than people.
A reasonable degree of force
Found in s.76(3) of the Criminal Justice and Immigration Act 2008 - the question whether the degree of force used by d was reasonable in the circumstances is to be decided by reference to the circumstances as d believed them to be.
A reasonable degree of force - case
Clegg - fatal shot was after danger had passed, not appropiate for d to feel the need to use force, excessive force, no defence.
Urgency of the situation
S.76(7) of the Criminal Justice and Immigration Act states that a person acting for a legitimate purpose may not be able to weigh the nicities of the exact same measure of any necessary action - if d acted in the heat of the moment and used force he did/didn’t honestly think was required.
Urgency of the situation - case
Martin (Anthony) - evidence showed d shot the victims as they were leaving, excessive force, no defence.
Mistaken self-defence
D will be judged on the facts as he believed them - but if d was drunk when he made this mistake, there is no defence.
Mistaken self-defence - case
Williams Gladstone
Householder cases
Since s.43 Crime and Courts Act 2013, the amount of force a householder can use on a bulgar has changed. A higher level of force will be considered reasonable when defending yourself, but not grossly disproportionate.
Householder cases - case
R v Ray
Necessity defence: Duress
The defence of duress is available where the defendant was forced to commit a crime.
Duress exemptions
Murder, attempted murder, secondary part to murder or treason. These rules apply even if d was young and more influencial.
Duress exemptions - cases
Howe - murder cannot be excused by duress
Gotts - attempted murder cannot be excused by duress
Duress by threats
This is where d commits a crime because they are under a threat of death pr serious injury to themselves or another.
The Rule of 6
In Hansan 2005 by Lord Bingham:
1) There must be threat to cause serious injury or death. Injury equivalation GBH, hoever can consider cumulative effect of other threats with threat of injury.
2) Threat must be directed to d or d’s loved one(s).
3) Whether d acted reasonably in light of threats will be judged according to the Graham test.
4) The threats relate directly to the crime committed by d.
5) No evasive action - if d could’ve avoided the threats, defence will not be given.
6) Imminence of threat - threat need not to be immediate but definently imminent.
The Rule of 6 - cases
1) Valderrama-Vega
4) Cole
5) Gill
6) Hudson and Taylor
Graham Test
- was d copelled to act because he or she feared serious injury or death? (subjective)
- would a sober person of reasonable firmness have responded in the same way? (objective)
Some of d’s characteristics can be taken into account especially: age, pregnancy, serious physical disability, recognised mental illness, ect.
Graham Test - case
Bowen - d had low IQ
Self-induced duress
The d cannot use the defence if he or she has voluntarily laid themselves open to threats.
Self-induced duress - case
Hasan - placing themsekves in a position where d should have foreseen or forsaw the risks of being subjected to compulsion or voluntarily associating with criminals.
Duress by Circumstance
Where there is a fear of imminent death or serious injury due to the circumstances they are in, so d commits a crime. This differs from duress by threats - circumstances dictate crime rather than a person. The rule of 6 still applies these cases.
Duress by Circumstance - cases
Conway - reckless driving quashed due to fear or serious injury
Martin - driving whilst disqualified quashed as wife threatened to kill herself (confirmed stage 2 test)
Pommell - an enexpected delay would prevent the defence, but a few hours isn’t excessive
Willer - charge of reckless driving quashed due to fear of safety
Cairns - d’s conviction quashed as d reasonably percieved threat of serious injury or death; fear is nt needed to prove if the threat was real
Abdul-Hussain - danger doesn’t need to be immediate, but hanging over d imminently.
