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Defences Flashcards

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1
Q

What is the basic definition of a defence?

A

An argument to deny liability

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2
Q

What is a complete defence?

A

Accused would be found not guilty

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3
Q

What is a partial defence?

A

Accused would be convicted of a lesser sentence

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4
Q

Is self defence a complete or partial defence?

A

Complete defence

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5
Q

What are the two different types of self defence?

A
  1. Common law self defence (defending oneself/another/property)
  2. Statutory self defence (Criminal Law Act 1967 s.3)
    - prevention of crime
    - assisting lawful arrest
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6
Q

What are the slight rule differences between common law self defence and statutory self defence?

A
  • Common law defence may be used even where attacker is not acting unlawfully
  • Only statutory applies where no imminent threat.
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7
Q

What are the elements of self defence?

A
  • Victim’s must pose a threat
  • Victim’s threat must be unjustified
  • Use of force MUST be reasonable
  • Amount of force MUST be reasonable
  • Defendant must be acting to defend themselves/another/property
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8
Q

In householder cases when would force be unreasonable?

A

If force was grossly disproportionate per s.76(5A) of the Criminal Justice and Immigration Act 2008

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9
Q

In non-householder cases when would force be unreasonable?

A

If disproportionate, per s.76(6) of the CJIA 2008

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10
Q

What crimes can self defence be pled in as a defence to?

A

Any crime

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11
Q

What is meant by ‘the use of force must be reasonable’?

A
  • Must have been reasonable for D to use force rather than escape
  • If D could have escaped from threat peacefully but failed to do so then self defence not applicable
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12
Q

The law allows for a preemptive strike, what is meant by this and when is it acceptable?

A
  • Where the defendant can take action to prevent something from happening
  • E.g. AG Reference (No.2 of 1983)
  • This is only acceptable if the use of pre-emtive strike is reasonable in the circumstances
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13
Q

Is it necessary to show an attack was imminent or immediate to prove self defence?

A

Not absolutely necessary

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14
Q

In non-householder cases how is the amount of force decided as being reasonable?

A

Based on what the reasonable person would find reasonable NOT the defendant.

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15
Q

EXAMPLE

  • Tony has his wallet stolen by a pick pocket
  • He immediately pulls out a handgun and shoots the pick pocket in the back of the head killing him?

Advise Tony as to whether a successful plea of self defence may be used.

A
  • Highly unlikely as the reasonable person test would be used
  • That being would a reasonable person see the use of a handgun on a pick pocket as reasonable
  • Of course the matter is of opinion but it is likely that the reasonable person would not
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16
Q

EXAMPLE

  • V is staying with a friend
  • During the night V hears glass break downstairs
  • He picks up a baseball bat and goes to investigate
  • A masked man with a knife in hand approaches
  • V swings the bat cracking the intruders skull killing him

Would this be treated as a householder case seeing as V was not in his own home?

Would V likely be able to use self defence in the circumstances?

A
  • It would be treated as a householder case
  • Therefore in this case the force used by V would only be unreasonable if ‘grossly disproportionate’
  • It is likely a jury would find the the amount of force used to be reasonable in the circumstances
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17
Q

What happened in the case of R v Williams 1984?

A
  • Appellant witness man attack youth
  • Appellant rushed to aid of the youth attacking the man
  • The facts in the appellant’s mind were wrong as it was actually the youth who was attacking the man and the man was protecting himself
  • Appellant was convicted under s.47 of the OAPA 1961 for ABH

APPEAL

  • On appeal the judge quashed the conviction
  • He stated that the material question was whether the appellant’s belief was reasonable or unreasonable in the circumstances
  • He also stated that if D may have been labouring under a mistake as to facts, he is to be judges according to his mistaken view of the facts.
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18
Q

What must the jury consider were a defendant pleads self-defence on a mistaken view of facts?

A
  • Whether the facts perceived by the defendant justified the level of force to be reasonable.
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19
Q

What happened in R v Oye 2013?

A

APPEAL OF SELF DEFENCE LOST ON GROUNDS OF INSANE DELUSIONS

  • Oye (Defendant) had been found in coffee shop staff room “twitching strangely”
  • police called and on arrival he hid in ceiling and threw crockery at them
  • He believed the were agents of evil spirits
  • He was eventually persuaded down and was arrested
  • He then attempted to escape from cell by punching two police officers
  • He was convicted of affray and GBH
  • Key question at trial was whether he could rely on self defence based on insane delusions he was being attacked

APPEAL

  • Trial judge dismissed appeal
  • Stating it was of very little sense to talk of the reasonable lunatic
  • Acknowledged the subjective test in s.76 but indicated there was also objective considerations to be had
  • It was right to dismiss the appeal as despite suffering insane delusions, even in that state of mind the use of force or amount of force used was not reasonable in respect of the facts the defendant perceived.
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20
Q

s.76 of the Criminal Justice and Immigration Act 2008 states that a degree of force used by a defendant is accepted if reasonable in the circumstances.

Q. If a defendant had a mistaken belief in the circumstance what must he show to successfully make a plea of self defence?

A
  • A genuine belief in those circumstances

- A mistaken belief in the circumstances if it is a reasonable one

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21
Q

What is self induced self defence?

A

Where a defendant instigated a fight and then relies on self defence?

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22
Q

Is self induced self defence difficult to plead?

A

YES

- Majority of the time if the defendant caused a fight to begin with they cannot rely on self defence

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23
Q

What happened in R v Keane 2010?

A
  • Case where defendant was offered a lift home by victim
  • In the car the defendant was rude to female passenger and pushed her
  • The victim approached the defendant
  • D punched V which caused serious injury
  • D plead self defence as he believed V was going to hit him
  • Trial judge directed jury defence not available where D is the aggressor or deliberately provoked fight

APPEAL

  • Appeal Dismissed
  • Trial judge was correct
  • Where D is aggressor or deliberately provokes fight no guaranteed defence
  • Defence would only become available where the V’s violence was so out of proportion to act original aggressor e.g. if he pulled out a knife
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24
Q

How is the defence of necessity generally viewed?

A

The lesser of two evils

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25
Q

Has a general defence of necessity been accepted by the Courts?

A

NO

  • the courts as of yet have not accepted the plea that a person may have a defence because the broke the law to prevent greater consequences had they disobeyed it.
  • This will not automatically lead to an acquittal
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26
Q

What happened in the case of R v Dudley and Stephens 1884?

A

NECESSITY NOT A DEFENCE TO MURDER

  • case where 4 men where on a boat stranded at sea
  • they were without food and water
  • the youngest boy on the ship was very ill
  • the other 3 men took it upon themselves to kill and eat the boy for their own survival
  • They chose the lesser of two evils
  • At trial the judge rejected the defence of necessity and they were convicted of murder and sentenced to death
  • Despite their charges only amounting to 6 months imprisonment, the general rule is still there is no necessity defence to murder
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27
Q

What happened in R v Kitson 1955

A
  • Case where a man had fallen asleep drunk in back of his car
  • He woke to the car rolling
  • He diverted the car to safety and avoided injury
  • Necessity was rejected as a defence and he was found guilty of drink driving
  • This being despite his actions being in the public interest
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28
Q

What happened in Southwark LBC v Williams 1971?

A
  • Homeless people were taking shelter in vacant houses
  • This was deemed to be trespassing
  • Lord Denning rejected that this was necessity as if it were allowed in this case, then no ones house would be safe
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29
Q

What are the limited defences of necessity applicable to at common law?

A
  1. Where defendant damages or steals property in the public interest (e.g. in order to create a firebreak he/she pulls down someones house)
  2. Where defendant damages the another property or interferes with another property in order to save his/her own property (e.g. defendant damages another persons property to prevent spread of fire on to own land)
  3. Where action is beneficial to a person who is unable to consent
  4. If directed by police to do so in relation to traffic regulations in order to protect property and life
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30
Q

What happened in Re A (Children) (Conjoined Twins) 2001?

A
  • Two twins conjoined at abdomen
  • Doctors disclosed that one twin, Mary, was completely reliant on the other
  • Jane could live independently
  • Mary had primitive brain and little heart or lung function
  • Doctors wished to perform operation to separate twins which would result in death of Mary
  • Parents refused to consent
  • Doctors sought declaration from the court that the operation was lawful
  • Despite the court finding that this would in effect be murder
  • they accepted a necessity argument from doctors
  • CASE BY CASE
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31
Q

What three requirements did Brooke LJ quote in order for a defence of necessity to be considered in Re A (Children) (Conjoined twins) 2001

A
  1. The act is need to avoid inevitable and irreparable evil
  2. no more should be done than is reasonably necessary for the purpose to be achieved
  3. the evil inflicted must not be disproportionate to the evil avoided
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32
Q

What did the case of Nicklinson v Ministry of Justice 2013 establish?

A

NECESSITY NOT A DEFENCE TO EUTHANASIA

- court held this was not an appropriate law for the court’s to change but for parliament

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33
Q

What is meant by implied (concealed) recognition of necessity?

A
  • belief that although necessity is not recognised expressly, courts still take it into account in their decision making
  • Examples of Kitson and Dudley & Stephens show cases where necessity not accepted but all ended up being acquitted
  • Cases where someone committed lesser of two evils rarely convicted
  • prosecution sometimes bring no case when someone commits the lesser of two evils
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34
Q

Under self defence a requirement is that the defendant must be acting in order to defend himself, another or property?
What does the then self defence not extend ti?

A
  • where defendant is not acting to protect himself or other but out of revenge or retaliation
  • If a defendant has lost self control they cannot claim self defence
  • A defendant cannot rely on circumstances which would justify their actions but they were unaware
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35
Q

What are the 2 forms of duress?

A
  • Duress by circumstances

- Duress by (wrongful) threat

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36
Q

What are the two situations an example of?

(a) Driving through red light to get dying child to hospital
(b) Driving through red light because someone has a gun to your head and tells you to

A

(a) Duress by circumstances

(b) Duress by (wrongful) threat

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37
Q

When is duress by circumstances available as a defence?

A
  • Only available where threat is death or GBH

- would a reasonable person in the same situation have committed a crime

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38
Q

What would duress of circumstances cover that a necessity defence would not?

A
  • Where the defendant reasonably but mistakenly believed threat of death or serious injury
  • where two evils are same (in case of GBH) if person threatened GBH towards D and they commit GBH and argue the reasonable person would have done so in the circumstances.
39
Q

How may a defence of duress by threat be establish?

A

(1) he or she committed a crime because of threats of death or GBH
(2) A reasonable person would have acted as the defendant did

40
Q

When may duress by threat occur?

A
  • Where a person committed a crime after he or another person was threatened with death or injury if he does not commit crime
41
Q

EXAMPLE

  • Michael is kidnapped by a terrorist group
  • he is told to burn down a building or will be killed
  • Michael is charged with arson

Advise Michael as to his defence

A
  • Michael may be able to successfully plea duress by threat
  • He was threatened with death or injury
  • He can argue the reasonable person would have acted in the same way
42
Q

How does duress by threats slightly differ from duress by circumstances?

A
  • In duress by circumstances no one specifically tells the defendant to do something or face harm, instead the particular circumstances cause D to fear life or GBH and he feels the only way to prevent it is to break the law
  • Duress by threat is where a D is specifically told to do something or be harmed
43
Q

EXAMPLE

  • Jane is in her car waiting at a red light
  • In her wind mirror she sees a masked man approaching with a knife in hand
  • She speeds of through the read light and breaking the speed limit

What defence may Jane plead?

A

Duress by circumstances

  • Despite the masked man not actually threatening Jane
  • The incident caused her to fear for or life or at the least injury
  • She may argue a reasonable person in the same situation would have done the same.
44
Q

What crimes is duress a defence to?

A

All crimes

- except murder, attempted murder and Treason

45
Q

What happened in R v Howe 1987

A

DURESS NOT DEFENCE TO MURDER

  • Conjoined cases
  • First case saw two mean plea duress by threat who stated they took part in a brutal assault which led to death because they were told to do so by a man with substantial criminal history
  • They feared they would be hurt if they did not obey
  • In the other conjoined case a man name Button was murdered by Clarkson
  • Another man Burke was also charged with murder
  • Burke admitted to shooting Button but stated he only done so after Clarkson threatened him with violence and the gun went off unintentionally

HELD

  • Lord Hailsham stating that a reasonable man may reflect that one innocent life is at least as valuable as his own or that of a loved one
  • In such a case the defendant cannot be said to be choosing lesser of two evils when taking an innocent life
46
Q

What happened in R v Gotts 1992?

A

DURESS NOT DEFENCE TO ATTEMPTED MURDER?

  • Case where appellant was convicted of attempted murder after judge directed jury duress was not a defence
  • Appellant was a 16 year old who was ordered by his father to kill his mother
  • the father stated if he didn’t he would shoot the appellant
  • the appellant stabbed the mother who survived suffering serious injury

HELD

  • Appeal dismissed
  • duress is not a defence to attempted murder per R v Howe
  • Decision mainly based on there is a need for an intent to kill in attempted murder cases whereas a mens rea of intent to cause serious injury can be made out in murder cases and it would be deviating from standard practice to allow one and not the other
47
Q

What are the elements of a defence of duress?

A
  1. The defendant must act because of a threat of death or serious injury (GBH)
  2. A reasonable person would have responded to the threat as D did
48
Q

What are the separate elements of ‘ the defendant acted because of threat of death or GBH’?

A
  • Threats may include rape and maybe psychological injury
  • threat can be to anyone who D feels responsible for
  • threat must be external (e.g. suicidal depression would not count)
  • threat cannot be self induced (e.g. joining a criminal gang)
  • threat need not be immediate but must be imminent
  • threat need not be real as long as D genuinely and reasonably believes it to be real
49
Q

Are threats to property, reputation or minor injury enough to satisfy duress as a defence?

A

NO

- even if defendant committed a very minor crime.

50
Q

What is the test for duress by threat?

A

Set out in R v Graham 1982

(1) was the defendant … impelled to act as he did because, as a result of what he reasonably believed [X] had said or done, he had good cause to fear that if he did not so act [X] would kill him … or cause him serious physical injury
(2) ) if so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed [X] said or did by taking part in the killing

51
Q

Does the threat need to be real to satisfy duress by threat?

A

NO

- As long as the defendant held a genuine and reasonable belief it was real (subjective)

52
Q

What happened in R v Safi 2003?

A
  • Case where defendant hijacked plane to flee Afghanistan
  • He did so by stating he was a political opponent of the Taliban regime and wanted to protect his family
  • He feared imminent threat of death or serious injury to his family and therefore argued duress
  • Trial judge directed the jury in order to meet the threshold test there must be evidence that there was in fact or might in fact have been imminent peril

APPEAL

  • this was judged to be a misdirection in law as it was a subjective test to decide where jury had to ask themselves whether the appellant acted in a way because he reasonably believed he or his family faced death or serious injury
  • the jury then had to satisfy whether a reasonable person would have acted in the same way.
53
Q

How will jury consider how the reasonable person would respond to a threat?

A

By taking in to account whether the defendant acted in a way which was proportionate to the threat
- Jury should consider the level of terror felt by person feeling threat

54
Q

When pleading defence of duress it is to be compared to what a reasonable person would have done in response to a threat not a heroic person.

How did Lord Hailsham dispute this view in R v Howe?

A
  • Dismissed the view that an ordinary man of reasonable fortitude was not capable of heroism if asked to kill another innocent
55
Q

What is a defendant expected to do if the opportunity presents itself in line with the reasonable person?

A
  • If defendant has an opportunity to escape from the threat that a reasonable person would have taken then they must do so
  • Any reliance upon a defence of duress after an opportunity of escape would not be valid
56
Q

It is said that a defendant must seek to escape threat as a reasonable person would have done.

How may this be difficult in certain situations?

A
  • Many occasions defendant’s may be expected to seek police protection
  • in certain cases e.g. Hudson this may not be sufficient
57
Q

What characteristics of a defendant should be taking into account when attributing to a reasonable person?

A

Objective and subjective standard

  • Why D may not have lived up to a reasonable person (e.g. PTSD would be accepted but not low IQ)
  • Why D could not escape threat (if person had physical mobility problem)
  • To affect the gravity of the threat (e.g. if pregnant)
58
Q

How should a trial judge decide what characteristics can be ascribed to a reasonable person?

A
  • Must be shown that the the characteristic provides a reason for following below the level of firmness that can be expected.
59
Q

What happened in R v Fitzpatrick 1977?

A

THREAT CANNOT BE SELF INDUCED

  • Case appellant voluntarily joined the IRA
  • He later wished to leave and was threatened with violence
  • He claimed he was forced to take part in robberies
    HELD
  • Defence of duress rejected
  • Individuals who submit themselves to illegal compulsion cannot rely in defence if duress simply because they wish to leave such activities
60
Q

What happened in R v Shepherd 1988?

A

SLIGHT EXCEPTION TO SELF INDUCED THREAT

  • Case where appellant was a member of a gang of shoplfiters
  • He tried to leave but himself and his family were threatened with violence if he did
  • He was charged with burglary and the trial judge withdraw defence from jury
  • convicted
    APPEAL
  • Conviction quashed
  • Gang of shoplifters very different from a parliamentary organisation or gang of armed robbers
  • Judge stated defence should have been left to jury to decide
  • Jury should have been able to make decision whether he took risk if violence by joining gang whose activities were not overtly violent
61
Q

What happened in R v Baker 1999?

A
  • Case where appellants were indebted to a drug dealer
  • The dealer ordered them to rob a bank or both be killed
  • Appellants robbed bank out of fear and were convicted of robbery
  • Trial judge directed jury that duress defence not available here as appellants had voluntarily joined a criminal group which may exert violence on them if they do not commit offences to obtain money
    APPEAL
  • Conviction was quashed stating trial judge misdirected the jury
  • D has to be aware of risk the group may try and coerce him in to committing offences of the type for which he is being tried by the use of violence and threats
  • In this case it is arguable that the Defendant would not have been aware of risk he must rob a bank
62
Q

What happened in R v Hasan 2005?

A

Answered on the contrary to Baker

  • HOL restored a defendant’s conviction overruling the earlier authority
  • They lords ruled the duress defence was lost where D voluntarily becomes or remains associated with others engaged in criminal activity
  • This being in a situation where he knows or ought to reasonably know that he may be the subject of compulsion by them or associate
  • Now no requirement that the anticipated coercion be to commit crimes let alone crimes of the type typically committed
  • Defendant lost the defence as he voluntarily associated himself with generally violent people
63
Q

What happened in R v Hudson and Taylor 1971?

A
  • Two girls were witnesses to a fight
  • They were called to testify against the defendant in trial
  • They received numerous threats on the lead up to trial stating that they should lie on the stand or face violence
  • On the day of the trial the person making threats was sitting in the public gallery staring menacingly at the girls
  • They proceeded to lie on the stand and were convicted of perjury
  • In their case the trial judge had stated that duress could not be used as the threat was not immediate
    APPEAL
  • Upheld Widgery LJ stating the threat must be present in sense that it is effective to neutralise the will of the accused at the time
  • This being even where the threat of injury is not immediately but after an interval
64
Q

What happened in R v Abdul-Hussain 1999?

A
  • Abdul Hussain had been sentenced to death in Iraq following confession after being tortured
  • Other appellants in the case were also fugitives being sentenced to death in Iraw
  • The appellants all hijacked a plane from Sudan out of fear of extradition where they would certainly face brutal death
  • They landed plane at London
  • At trial appellants were denied the defence of duress on grounds there was lack of requirement of immediacy and thus convicted
    APPEAL
  • Convictions quashed
  • Execution of threat need not be immediate, it is imminent peril of death or serious injury that is an essential element in both types of duress
65
Q

What happened in R v Bowen 1996?

A
  • Bowen was convicted of obtaining services through deception
  • He accepted the key facts of the prosecution but argued he only acted this way because two men accosted him in a pub
  • The two men threatened his family would be bombed if he did not assist or if he went to police
    Evidence was adduced at trial and it was determined he had an IQ of 68 which made him more susceptible to threats
  • judge declined that jury should have been directed on defendant’s IQ
    APPEAL
  • Defendant appeal was rejected on the basis that IQ was not to be taken in to account when attributing characteristics to the reasonable person
  • Accused’s gender, age and possibly physical disability used in weighing reasonable persons behaviour
66
Q

What was the defence of marital coercion?

A

Wife forced by husband to commit crime
- No requirement that husband threatened to kill or cause serious harm
- Did not require overborne will
ABOLISHED IN 2014
- Wives must now rely on defence of duress by threat

67
Q

What is the rule in relation to criminal responsibility and children under 10?

A
  • lack of capacity to form the mens rea and therefore no criminal liability
68
Q

What did the law previously state about children aged between 10-14?

A

That there was a rebuttable presumption a child between 10-14 lacked capacity
- Abolished by the crime and disorder act 1998, s.34

69
Q

When may an accused be deemed unfit for trial in relation to insanity?

A
  • Whether accused is able to understand the charge and difference between plea of guilty and not guilty
70
Q

If a plea of insanity at time of offence is being adduced what 3 ways can it be raised?

A
  1. D pleads insanity as a defence (therefore will bear burden of proof on balance of probabilities)
  2. D pleads diminished responsibility but P rebuts with evidence of insanity
    - Judge instructs the jury
71
Q

If a person is found to be ‘insane’ at time of offence what will be the verdict?

A

Not guilty by reason of insanity

72
Q

What must a D demonstrate to show they were suffering from insanity at time of offence?

A
  • Suffering a defect of reason caused by a disease of the mind
  • This meant he/she did not know what they were doing was wrong or;
  • Did not know the nature or quality of his/her actions
73
Q

‘Disease of the mind’ refers to what in legal terms?

A
  • Not medicinal term and therefore given its normal meaning

- must show what D was suffering from affected the functioning of the ind

74
Q

Can intoxication form basis of insanity defence?

A

NO

- Not even where the intoxication produced a psychotic episode

75
Q

What happened in R v Coley 2013?

A

INTOXICATION CANNOT FROM INSANITY DEFENCE

  • Coley (D) convicted of attempted murder
  • At the time of the offence, he was 17
  • he was a regular user of strong cannabis
  • He also enjoyed violent video games
  • One night he went to his neighbour’s house and stabbed her unprovoked
  • D adduced evidence that he used large amounts of cannabis that day and had no recollection of events
  • Medical evidence suggested this may have caused a psychotic episode
  • He was at first instance convicted
    APPEAL
  • Appeal dismissed
  • In order to engage in the law of insanity, it is not enough that there is a defect of reason but also a disease of mind`
76
Q

What happened in R v Sullivan 1984?

A
  • Sullivan (D) had an epileptic seizure when visiting friend
  • He unknowingly kicked his friend in the head causing GBH
  • Defendant admitting causing injury but sought to rely on defence of automatism
  • Trial judge stated on facts presented that it was insanity not automatism
  • In order to prevent himself being found not guilty by reason of insanity and being compulsory detained in special hospital he plead guilty to assault occasioning ABH
  • Convicted an appealed to COA that trial judge made an error not allowing to automatism defence which as dismissed
    APPEAL
  • HOL agreed that epilepsy must be regarded as a disease of the mind and the trial ridge was correct in imposing defence of insanity
  • Epilepsy is not caused by an external influence but rather an internal illness which affects mind.
77
Q

What is an example of where D may not know of the nature or quality of the act committed?

A
  • If he suffered a seizure or delusions
78
Q

What happened in R v Windle 1952?

A
  • The state of not knowing what was wrong must be a legal wrong not a moral one
  • In this case the defendant was exposed to suicidal tendencies of his wife
  • He was deemed to have a mental illness
  • He instigated an overdose of his wife killing her
  • He stated on arrest “they’re going to hang me for this aren’t they”
    HELD
  • The wrong which a defendant must be unaware to is a legal wrong
  • It is clear in this case the defendant was aware what he was doing was unlawful
79
Q

What rules were established in R v M’Naghten 1843?

A

M’Naghten Rules

  • Jurors ought to be told in ALL cases that every man is presumed to be sane until contrary proved to their satisfaction
  • To estbalish insanity defence must be clearly proved that at time of offence the party accused was under;
    (a) A defect of reason
    (b) From disease of the mind
    (i) As to not know the nature and quality of act he was doing or
    (ii) If he did know it that he did not know he was doing what was wrong
80
Q

What are the main differences between insanity defence and loss of control/diminished responsibility?

A
  • Insanity provides a complete defence to any type of offence
  • loss of control or diminished responsibility provides only a partial defence to murder
81
Q

When does automatism occur?

A

Where a defendant loses complete self control due to some external factor

82
Q

What are the 3 elements of the defence of automatism?

A
  1. A complete loss of voluntary control
  2. Loss of voluntary control was caused by an external factor
    - The defendant was not at fault in losing capacity
83
Q

What did AG’s Reference (No.2 of 1992) establish?

A
  • Case where a lorry driver had been driving for 6 hours straight
  • He veered off road on to hard shoulder and hit stationery van killing 2 people
  • At trial defendant plead automatism
  • Specialist stated he was suffering from a condition known as ‘driving without awareness’
  • This was argued to amount to automatism
  • The defence was put to the jury and he was acquitted
  • The AG’s Reference held the Lords to find that there must be a “total destruction” voluntary control
  • In this case the specialist stated that the defendant retained a little control (hence breaking at last minute)
  • Therefore according to the Lords the defence of automatism should not have been left to the jury
  • Impaired, partial or reduced control is not enough
84
Q

Give examples of an external factor which may lead to automatism.

A
  • A blow to the head or taking prescribed medication
85
Q

Why may intoxication be beneficial to the defence?

A

As they may be able to argue that the defendant did not possess the mens rea because of intoxication

86
Q

When is liability affected in relation to intoxication?

A
  • Where the defendant did not posses the guilty intent because his mind was so affected by drink he did not know what he was doing per Sooklal v State 1999
87
Q

When may voluntary intoxication be used as a defence in relation to the mens rea?

A
  • Defences for crimes of specific intent (intentional)

- Not capable of forming the mens rea necessary for the offence

88
Q

When may voluntary intoxication not be used as a defence?

A
  • To crimes of basic intent
  • Established by DPP v Majewski 1977
  • Persons course of conduct in reducing himself by drugs or drink to that condition supplies evidence of mens rea
89
Q

What happened in R v Heard 2007?

A
  • Police called to house of appellant who was heavily intoxicated and self harming
  • They took him to hospital where he then took out his penis and rubbed it on a police officer
  • The defendant did not deny the offence occurred but claimed to have no recollection of the events due to intoxication
  • Judge ruled intoxication was no defence as the offence was on of basic intent
    APPEAL
  • Appealed on grounds the judge was in error ruling sexual assault was a crime of basic intent as it required intent to touch
  • Appeal dismissed
  • No universally logical test for distinguishing between crimes in which voluntary intoxication can be advanced as a defence and those which it cannot
90
Q

In relation to the principle of voluntary intoxication being a defence to crimes where the mens rea is of a specific intent, what crimes may be covered?

A
  • OAPA s.18 (wounding with intent)
  • Murder
  • Rape (penetration)
  • Most theft and fraud
  • Attempt and conspiracy
91
Q

What crimes does involuntary intoxication provide a defence to?

A
  • Crimes of basic and specific intent
92
Q

What happened in R v Kingston 1995?

A
  • Defendant committed an indecent assault after being drugged by another
  • The other man plotted to take pictures of D with the 15 year old
  • D claimed the drug caused him to lose his inhibitions
    HELD BY HOL
  • Conviction reinstated
  • No principle in English law which allows a defence based on involuntary intoxication where defendant is found to have necessary mens rea
  • In this case the defendant did have paedophilc tendencies and despite never acting on them he possessed the mens rea when intoxicated
  • And an intoxicated intent is still intent
93
Q

Where a person wishes to plead loss of control which act will regulate the defence?

A

Coroners And Justice Act 2009, s.54

94
Q

If a person wishes to plead self defence where would details on the elements of the defence be found?

A

Homicide Act 1957, s.2

English Criminal Law (9 decks)

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