Defences Flashcards
Intro to insanity
The defence is only relevant to the time the offence is committed.
The D must prove it on the balance of probabilities.
If the crown raises an issue, it is for the D to prove beyond reasonable doubt.
If the defence is successful then theD will be found not guilty for reasons of insanity
Special verdict under the Criminal Procedure Act 1964
The elements to insanity
Comes from the case of M’Naughton. The M’Naughton rules: -Defect of reasoning -Caused by a disease of the mind -which causes the D to not know the nature of his conduct or the quality of his act or what he is doing is wrong
Defect of reasoning
D’s powers of reasoning is impaired which means they do not have the ability to reason. If the D simply failed to use his powers of reasoning through simple confusion or absent mindedness, then the defence will fail - from the case of Clarke
Disease of the mind
This is a legal definition not a medical one.
Disease can be a mental or physical condition which affects the mind.
Must be an internal factor
It covers situations that doctors would not term as disease of the mind:
-Arteriosclerosis - Kemp
-Epilepsy - Sullivan
-Diabetes (hyper) - Henessy
-Sleepwalking - Burgess
Can be permanent or temporary
D did not know the nature or quality of his act, or what he was doing was wrong.
Refers to the physical matter rather than the moral nature of the conduct:
D must prove any of the following:
-He did not know what he was doing
-He did not appreciate the consequences
-He did not appreciate the circumstances he was acting in
-Knowing that the act itself was wrong, which means legally wrong rather than morally - Windle
Intro to automatism
Automatism is a defence because the D has not committed the act voluntarily.
Also the D does not have the MR for the offence
An act done by the muscles without any control by the mind
Rules for automatism
-D has done the AR but nit voluntarily
-D does not have required MR
-The cause of the automatism must be external
-Successful defence will lead to acquittal
Comes from the case of Brattey v Attorney General for Northern Ireland
Must be an external cause
Examples: -Hypnosis -Sneezing -Being attacked by bees -being hit on the head -PTSD - R v T -Muscle spasms Partial or reduced control of ones actions will not suffice AG’s Ref (No 2 of 1992)
Self induced automatism
Where the D knows that his conduct is likely to bring on an automatic state.
The case of Bailie gives us the rules.
SIA when it is a specific intent offence
Can be a defence because the D lacks the MR
SIA when it is a basic intent offence
1st: the Prosecution has to prove the necessary element of recklessness for the particular offence D is charged with
2nd: Where the self induced automatic state is caused through drink or drugs or any other intoxicating substances the defence will fail - DPP v Majewski
3rd: Where the D does not know that his actions are likely to lead to a self induced automatic state in which he may commit an offence, he has not been reckless and therefore can use the defence if automatism - Hardie
Intro to intoxication
Covers situations where:
- The D is intoxicated through alcohol or drugs or any noxious substances
- The D has taken the substance voluntarily, also taking prescription dugs voluntarily and D knows they will make him intoxicated
- The D has taken them involuntarily
Voluntary intoxication - basic intent offences
It is not a defence for basic intent offences.
Recklessness is not enough to constitute to the MR - DPP v Majewski
Courts have adopted the idea that the jury should consider whether the D would have realised the risk had he not been intoxicated - Richardson & Irwin
So if the jury feel this way then he is not guilty
Voluntary intoxication - Specific intent offences
VI can negate the MR for a SIO.
If the D is so intoxicated that he has not formed the MR he is not guilty
However D may be convicted of the corresponding BI offence.
Drunken intent is still intent - AG for Northern Ireland v Gallagher
Situations for Involuntary intoxication
- D’s drink has been spiked
- D takes drugs prescribed by doctors in accordance with the instructions
- D takes a non dangerous drug which is not prescribed but takes it in a non reckless way
What is the test when considering Involuntary Intoxication?
The test is did the D have the necessary MR when he committed the offence.
- Kingston
MR issues when using the defence of Involuntary Intoxication
If D did have required MR then the Invol Intox will not be a defence even thought the D would not have committed the offence without the intoxication lowering his self control
If D did not have the necessary intent then he will not be guilty because he has not been reckless into becoming intoxicated - Hardie
The fact that the substance was stronger than the D expected the defence will fail - Allan
Breakdown of voluntary intoxication
- Decide which intent offence D is guilty of.
- Discuss the MR issues
Breakdown of Involuntary Intoxication
- Decide which situation the D is in.
- Talk about the MR issues
Intro to self defence
There is a statutory defence of prevention of crime under s3(1) Criminal Law Act 1967 which states that “a person may use such force as is reasonable in the circumstances in the prevention of crime”
Two main points which need to be decided for the defence of self defence
- Was the use of force necessary
- Was the force used reasonable in the circumstances
Was the force necessary
It is for the jury to decide whether the force is necessary.
Mistaken use of force
Where the D has made a mistake about the situation they are in and it makes it more difficult to know whether or not the force was necessary
It is for the jury to decide whether or not the D believed he was being threatened.
Two types of mistake for consent
Genuine mistake
Drunken mistake
Genuine mistake
D must be judged on the facts as he genuinely believed them to be - Williams
S76(3) CJIA 2008 puts this decision on a statutory footing. If the D genuinely made a mistake then he is to be judged on the facts he believed them to be, even though they may be unreasonable
Drunken Mistake
S76(5) CJIA 2008 makes it clear that if a mistake is made due to the D being voluntarily drunk or intoxicated then the D cannot rely on this defence.
Degree of force
The amount of force which can be used is explained in s76(7)(a) CJIA 2008
It allows the fact that the person who is being attacked is under stressed and is not required to calculate exactly the right amount of force needed for that situation.
If the level used was honestly thought to be necessary then this is seen as reasonable
Excessive force will cause the defence to fail. - Clegg, Martin
Pre-emptive strike, where force is used to prevent harm to the D - Beckford
Intro to consent
Strictly speaking it is not a defence, it is where the V has given consent so no offence has been taken in the first place - Slingsby
Two types of consent
Informed
Implied
Informed consent
Where the consent is available because it is true and informed - Tabassum
If the victim gave consent through fear, then it is not consent - oluboja
Implied consent
Situations where the courts imp,y the consent, ie. in crowded places, you cannot be convicted for battery due to the fact that it is impossible not to touch someone.
Wilson &Pringle - everyday jostlings are not seen as battery
Consent breakdown
- Intro
- Type
- Consent to minor injuries
- Public policy exemption that fits the scenario
Consent to minor injuries
It used to be thought that consent could always be a defence where the injuries were not serious. This was held otherwise in AG’s ref (No 6 1980)
In Brown it was held that it had to be considered whether consent could be a defence for s47 and s20 offences. It is now held that it is not a defence for s47 unless the situation is an exemption.
Public policy exemptions
- Contact sports
- Reasonable surgical interference
- Tattooing/Branding
- Body piercing
- Horseplay
- Dangerous Exhibitions
Contact sports
When a person takes part in any contact sport, he is consenting/agreeing to the contact involved in the sport.
If they breach the rules then an offence has been made - Barnes
Body adornments
Tattooing, piercing and branding are accepted as body adornments that people can consent to - Wilson
Horseplay
In jones it was held that consent can be a defence for “rough and undisciplined horseplay” as people dont intend to cause serious injuries unlike AG’s ref (No 6 1980)
Mistaken belief in consent
Where the D has genuinely mistaken that V gave consent.
In Richardson & Irwin it was held that a drunken mistake can be held for a s20 offence.
