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Defences Flashcards

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1
Q

where was automatism introduced?

A

Ross v HMA 1991

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2
Q

what was the law prior to Ross v HMA 1991 on mental defences?

A

only insanity was an accepted mental defence

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3
Q

what crimes does automatism defend against?

A

defence to any crime that requires mens rea, because punishing people who lack mens rea does not fulfill the main aims of punishment

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4
Q

what is the case authority for Automatism and what was the definition provided?

A

Ross v HMA “a total alienation of reason” or “an external factor which was not self-induced”

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5
Q

where was the definition provided in Ross v HMA 1991 reinforced?

A

Cardle v MUlrainey 1992

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6
Q

what does the automatism defence not cover?

A

irresistible impulses and voluntary intoxication

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7
Q

what evidence is required to use the defence of automatism?

A

medical

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8
Q

what are the problems with the defence of automatism (2)?

A
  • does not include factors beyond control but not external. For instance, diabetes, sleepwalking
  • if acquitted court no power to make order for public protection
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9
Q

what is the key legislation for mental disorder defence?

A

Criminal Procedure Act 1995 s51

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10
Q

what is mental disorder a defence to?

A

any crime that requires mens rea

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11
Q

if both automatism and mental disorder result in acquittal, why distinguish between mental disorder and automatism?

A
  • episodes of mental disorders might recur, therefore law allows for public protection
  • states of automatism (caused by an external factor) are less likely to be repeated and so does not allow for public protection
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12
Q

What is the legal definition of the disturbed state of mind which the mental disorder defence involves?

A

An inability at the time of the conduct constituting the offence “to appreciate the nature or wrongfulness of the conduct”.

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13
Q

what is the good thing about the flexibility of the definition of mental disorder? (3)

A
  • Appreciation is broader than mere knowledge and includes a level of rational understanding.
  • “wrongfulness” includes moral and legal wrongfulness. HM Advocate v Sharp 1927 JC 66
  • The test contains two alternative conditions – EITHER the nature OR the wrongfulness of the conduct.
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14
Q

What caused the inability to appreciate the nature or wrongfulness of the conduct?

A 
mental disorder; defined as: 
Defined as: 
“mental illness; 
personality disorder; or learning disability, 
however caused or manifested”
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15
Q

what conditions are excluded from the defence?

A
  • psychopathic personality disorder

- implies irresistible impulses and voluntary intoxication

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16
Q

Who bears the burden of proving that the accused does/does not qualify for Mental Disorder Defence and to what standard must this be proved?

A

The accused must prove the defence of Mental Disorder on the balance of probabilities.

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17
Q

what is unfitness for trial?

A

A person who is suffering from mental disorder at the time of the trial may be able to rely on a plea in bar of trial, which means that they cannot be tried.

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18
Q

how is the unfitness for trial different to the Mental Disorder Defence?

A

This is different from the Mental Disorder Defence, which can be raised if the person is fit for trial, but was suffering from a mental disorder AT THE TIME OF THE ‘CRIME’.

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19
Q

what is the definition of Diminished responsibility?

A

“the person’s ability to determine or control conduct for which the person would otherwise be convicted of murder was, at the time of the conduct, substantially impaired”

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20
Q

where can the definition of diminished responsibility be found

A

Criminal Procedure (Scotland) Act 1995 s51B

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21
Q

To which crimes will Diminished Responsibility provide a defence?

A

This defence only applies to murder.

22
Q

What caused the substantial impairment of the ability to determine or control conduct with regards to diminished responsibility? (3)

A
  • Abnormality of mind’ CP(S)A 1995, s51(B)(1)
  • Diminished responsibility includes mental disorder. CP(S)A 1995, s51(B)(2)
  • Diminished responsibility can be based on the condition of psychopathic personality disorder.
23
Q

what is excluded from the scope of the defence of diminished responsibility?

A

voluntary intoxication

24
Q

Who bears the burden of establishing the defence of Diminished Responsibility and to what standard?

A

“It is for the person charged with murder to establish, on the balance of probabilities, that the condition set out in subsection (1) is satisfied.”

25
Q

what changes does the defence of diminished responsibility make?

A

If the defence of diminished responsibility is established then:
‘A person who would otherwise be convicted of murder is instead to be convicted of culpable homicide’ CP(S)A 1995, s51B(1)

26
Q

is necessity a complete defence?

A

ye

27
Q

what crimes is necessity available to?

A

all crimes except murder

28
Q

when does necessity apply?

A

when breaking the law is necessary in order to avoid dangerous circumstances (availability subject to various limitations)

29
Q

when is the defence of necessity appear to be a justification?

A

where breaking the law is clearly the lesser evil

30
Q

what happens when both options are equally bad, with regards to necessity?

A

the defence looks like an excuse

31
Q

what is the case authority for necessity?

A

Lord Advocates Reference No 1 of 2000

32
Q

What was the Lord Advocates Reference definition of necessity

A

good cause to fear the death would result unless he acted

33
Q

what were the seven requirements for necessity laid out in the Lord Advocates Reference

A
  • Good cause to fear that death or serious injury would result unless he acted;
  • Immediate danger;
  • At the material time there was no alternative course of action;
  • At the material time, have reason to think that the acts carried out had some prospect of removing the perceived danger.
  • That cause for fear must have resulted from a reasonable belief as to the circumstances;
  • The actor must have been impelled to act as he did by those considerations;
  • The defence will only be available if a sober person of reasonable firmness, sharing the characteristics of the actor, would have responded as he did.
34
Q

what case demonstrates the immediacy of the danger aspect of necessity

A

Ruxton v Lang 1998

35
Q

what is coercion

A

when someone threatens to harm the accused if he does not break the law

36
Q

what is the difference between necessity and coercion

A

breaking the law to avoid dangerous circumstances other than a kind of threat

37
Q

is coercion a complete defence?

A

yeah

38
Q

what crimes are exempt from the defence of coercion

A

murder

39
Q

what is the key case for the defence of coercion and what did it conclude?

A

Thomson v HM Advocate 1983

that there must be threats of death or serious injury against or a third party

40
Q

What factors suggest the accused is telling the truth about being coerced?

A

A backward and inferior part in the perpetration

Disclosure of the fact as well as the restitution of the spoil on the first safe and convenient occasion.

41
Q

what is the case authority for self- defence

A

HMA v Doherty 1954

42
Q

what are the three requirements for self-defence?

A

Imminent danger to life or limb

No reasonable opportunity to retreat

Reaction must be proportionate

43
Q

in a self- defence case accused has to satisfy all requirements. What case emphasised this?

A

Pollock v HMA 1998

44
Q

what is meant by a necessary and proportionate response?

A

General rule:

You cannot kill to prevent non-fatal attack.

Protection of life is crucial.

Right to life is a human right.

45
Q

is self- defence an accident?

A

not an accident if there is an intention to kill or injure

46
Q

what are the two types of provocation recognised?

A

provocation by assault or provocation by infidelity

47
Q

what is the case authority for Provocation?

A

Drury v HMA 2001, it set out requirements

48
Q

what are the requirements of the defence of Provocation?

A
  • a recognised provocation
  • loss of self control
  • be proportional
49
Q

Infedelity is only a defence in Scotland. What is the problem with this defence?

A

sexual autonmy implies right to choose to leave relationship whenever chooses

50
Q

is the defence available to all?

A

yes regardless of gender or sexual orientation

51
Q

what is the “ordinary person test”?

A

A person of same age & sex with normal self-restraint & tolerance might have reacted that way in those circumstances.

criminal law (10 decks)

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