Defences

Question 0

R v T

Answer 0

Infancy - under 10 - no criminal liability and doli incapax was confirmed as having been abolished

Question 1

Woolmington v DPP

Answer 1

Usually, the burden of proof is on the prosecution to the criminal standard — for defences the burden is usually in the D to adduce sufficient evidence to leave the defence to the jury – some defences reverse the burden of proof to the civil standard

Question 2

AG Ref (No.3 1998)

Answer 2

Not guilty by reason of insanity which includes sleepwalking and epilepsy ‘insane automatism’

Question 3

R v Horseferry

Answer 3

Insanity not available for offences of strict liability

Question 4

Clarke (Ackner J)
Kemp
Codere, Windle

Answer 4

• defect of reason - ‘deprived of the power of reasoning’
• disease of the mind - legal definition including sleepwalking, diabetes, NB distinction with diabetes
• D must not have known that what he was doing was LEGALLY wrong — knowledge of the crime will see insanity unavail

Question 4

M’Naghten Rules

Answer 4

Every man is proved sane until the contrary is proved, it is for the D to prove to the civil standard

Question 6

Kopsch

Answer 6

Forgetfulness, and inability to control emotion, etc. is insufficient for a ‘defect of reason’

Question 7

Sullivan, Hennessy, Burgess

Answer 7

Distinction between automatism and insane automatism – where there is no external factor e.g. taking of medication which caused the episode, this will be insane automatism e.g. sleepwalking, epilepsy, diabetes

Question 8

Broome v Perkins
(____)
Bailey, (Coley, McGhee and Harris)

Answer 8

Automatism:

• a total absence of voluntary control
• caused by an external factor
• subject to limitations on self-inducement i.e. recklessness – intoxicants i.e. drink/drugs will bar the defence

Question 9

Bratty

T

Answer 9

Sane automatism as no voluntary AR - full defence – Denning L

PTSD is automatism but this is somewhat questionable

Question 9

Quick

Answer 9

Diabetes can be non-insane automatism but only where there has been an external factor causing it e.g. insulin

Question 10

Bailey

Answer 10

Defence of self-induced automatism where there are no drink or drugs and the D hasn’t acted recklessly e.g. failing to eat as a diabetic and knowing the risk

Question 11

R v Reid

Answer 11

Mistake as to the law is no defence, only per the facts and it must be complete mistake, not something inessential

Question 12

R v Williams (Gladstone)

Answer 12

Mistake of fact (and self-defence) - the facts per mistake and self-defence should be assessed as the D honestly saw them to be

Question 13

R v Kingston

Sheehan and Moore

Answer 13

If MR was present then intoxication (voluntary or involuntary) cannot be a defence - ‘drunken intent is still intent’ – for intoxication to work it must NEGATE MR

Question 14

R v Richardson and Irwin

Answer 14

Even if the D’s MR cannot be proven but they would have FORESEEN the relevant risk when sober then criminal liability can be attached when recklessness forms part of the offence IE BASIC INTENT CRIMES - RAPE, COMMON ASSAULT, ABH

Question 15

DPP v Majewski

Answer 15

Intoxication is only a defence to crimes of specific intent, not basic intent

Question 16

R v Heard

Answer 16

Favoured the test of basic and specific intent crimes being distinguished by the MR going beyond the AR for specific intent crimes - e.g. assault and assault with intent to resist arrest

Question 17

Lipman

Answer 17

Intoxication was no defence to manslaughter as it is a crime of basic intent - if a D has a defence of intoxication and they are charged with a crime of specific intent e.g. murder, then they can be charged with the lesser offence of manslaughter - if no appropriate offence then intoxication may become a complete defence

Question 18

Hardie

Answer 18

Involuntary intoxication will provide a defence to any crime provided there is no MR - includes prescription drugs, soporific drugs and laced drinks – NB that the taking of the drugs themselves must not be reckless

Question 19

AG for NI v Gallagher

Answer 19

‘Dutch courage’ gives no defence to any crime through intoxication

Question 20

O’Grady

Answer 20

Mistake will not be a defence if caused as a result of intoxication

Question 21

Bird
Martin (Anthony)
s76(6)
s76(5A)

Answer 21

• Force used must be necessary
• Force used must be reasonable (objective test)
• Force used must be proportionate (except householder cases)
• Force used need not be proportionate for a householder but it must not be grossly disproportionate

Question 22

DPP v Bayer

Answer 22

Self-defence must be to prevent the commission of a crime

Question 23

Malnik v DPP

Answer 23

The threat of unjustified violence must have been immediate to keep open the defence of self-defence

Question 24

McInnes

Clegg (affirming)

Answer 24

The D does not have to retreat as far as possible to keep open a defence of self-defence but they must not want to fight

Question 25

Cross v Kirkby

Answer 25

Reasonable force - self-defence will still be available where 25% more force was used than was necessary - strictly speaking, reasonable force will provide a defence and unreasonable but context will be taken into account example a snap decision having to be made

Question 26

R v Symonds

Answer 26

Duress - where one commits a crime because they were acting under a threat of death of serious PI to themselves or another - overlap with self-defence - two types of duress - threat by person and threat by circumstance

Question 27

Hasan (Bingham)

Answer 27

Duress - 1. Threat of death/serious PI, 2. Threat of death or serious injury, 3. Reasonableness of behaviour is judged objectively, 4. It must be a threat to D or someone for whom he is responsible, 5. Must have been no opportunity to take evasive action, 6. Must not have voluntarily exposed himself, 7. No defence to murder/attempt

Question 28

Aikens, Ortiz, Bowen, Cole, Hudson v Taylor, Hasan, Howe

Answer 28

Elements 1-7 of duress in Hasan per L Bingham RESPECTIVELY

Question 29

Graham (mistaken duress test)

Answer 29

Duress by threats from a person - this restricted the defence in this area with a two-part test - 1. was the D forced to act as they did… 2. would a sober person of reasonable firmness… subjective test in the same position

Question 30

R v Bowen

Answer 30

On the second limb of the Graham test for duress, characteristics which can be taken into account must be recognised medical illnesses, not things like a low IQ

Question 31

R v Willer

R v Martin

Answer 31

Duress under threat of circumstances - similar rules to threat by person - the Graham test is applied (R v M)

Question 32

Re F

Answer 32

Lord Goff - ‘dragging someone from the path of an oncoming vehicle is necessity’

Question 33

Re A

Answer 33

General defence of necessity - killing one twin to save the other -

1. The act was needed to avoid inevitable and irreparable evil
2. No more was done than was reasonably necessary
3. The evil inflicted was not disproportionate to the evil avoided

Question 34

R v Quayle

Answer 34

Fourth requirement to Re A - the necessity must have arisen as a result of extraneous circumstances, i.e. not a human threat

Question 35

R v Shayler

Answer 35

Fifth requirement of necessity - the evil must be directed towards the D or a person for whom he or she had responsibility

Question 36

Dudley and Stephens

Southwark London Borough Council v Williams

Answer 36

Necessity - often restricted as seeing as going too far to excuse law breakers

Question 37

Howe

Answer 37

Duress is not a defence to murder - refuted by Hogan - the reasoning in Re A (Siamese twins) seems to provide a basis upon which it could be extended - this has been preferred as necessity, however