Defences (Capacity and Necessity) Flashcards
What is insanity?
-the defence of insanity is a special defence. If D proves this, then there is a special verdict of ‘not guilty by reason of insanity’
-the burden of proving insanity is on the defence and it must be proved on the balance of probabilities.
What are the rules of insanity based on?
-The rules of insanity are based on the M’Naghten rules. The rules are that:
-D must be labouring under such a defect of reason, from disease of the mind, as not to know the nature and ability of the act he/she was doing, or not to know he/she was doing wrong.
What does defect of reason mean?
-this means that the defendant’s powers of reasoning must be impaired.
-CLARKE:must be a significant and serious impairment of the mind’s ability to reason, rather than momentary forgetfulness or confusion.
What does disease of the mind mean along with cases?
-the defect of reason must be due to a disease of the mind. The disease can be a mental disease or a physical disease which affects the mind as shown in KEMP
-SULLIVAN:epilepsy is considered a ‘disease of the mind’
-HENNESSY:high blood sugar levels because of diabetes affected his mind
-BURGESS:sleepwalking may fit the definition of insanity.
Can external factors be considered as insanity?
-QUICK:where D is in a state where he/she does not know what they are doing due to an external cause. Defence of insanity does not apply.
-if it is the disease which causes an automatic state, as in HENNESSY, then correct defence is insanity as it is an internal cause. If it is the drug which causes automatic state then, as in Quick, does not come within the rules of insanity.
Does voluntary intoxication come under insanity?
-where D voluntarily takes an intoxicating substance and this causes a temporary psychotic episode, D cannot use the defence of insanity as it is an external cause (COLEY)
What does it mean when it says, ‘as to know the nature and quality of the act, or not to know he/she was doing wrong’?
-nature and quality refers to the physical character of the act. There are two ways in which D may not know the nature and quality of the act. These are:
-because he/she is in a state of unconsciousness or impaired consciousness, OR
-where he/she is conscious but due to his/her mental condition does not understand or know what they’re doing.
-if either of these states apply at the time of the act, then they satisfy this part of the M’Naghten rules (as shown in OYE)
-if he she knows nature and quality of the act, but not that it was legally wrong, then defence of insanity can be used. (WINDLE: D could not use defence of insanity)
What does automatism mean?
-defined in Bratty as: ‘an act done by the muscles without any control by the mind; or an act done by a person who is not conscious of what he is doing’
What are the two types of automatism?
-insane automatism:this is where the cause of the automatism is a disease of the mind. In such a case, the defence is insanity.
-non-insane automatism:this is where the cause of a lack of control is external. Where such a defence succeeds, it is a complete defence and the defendant is not guilty.
What is the criteria for non-insane automatism?
-where AR of a crime committed by the defendant is not a voluntary action and because of the automatism, D does not have the required MR.
-examples of external causes are hypnotism, attack by a swarm of bees etc… (BAXTER)
-there has to be a total loss of voluntary control. A reduced or partial control of one’s actions is not sufficient to amount to automatism. (AGR: 1993)
What is self-induced automatism?
-this is where D knows that his/her conduct is likely to bring on an automatic state (e.g. a diabetic who knows the risk of failing to eat after taking insulin)
-how the defence works depends on whether the offence committed is one of specific intent or basic intent.
How does self-induced automatism work depending on specific and basic intent?
-if it results from voluntary intoxication, the intoxication rules operate. Whether the defence can apply will depend on whether the offence is one of specific/basic intent (COLEY)
-if it results from some perfectly appropriate action but with unanticipated consequences, automatism will be a defence to offences of both specific and basic intent.
-if the automatic state results from some kind of improper action/failure by D, automatism will be a defence to specific intent offences (as there is no recklessness) –> BAILEY
How is intoxication available as a defence?
-it needs to be shown that D was so intoxicated by the drink, drug or other substance that he/she was incapable of forming MR for the offence.
Whether the defendant is guilty or not depends on:
-whether the intoxication was voluntary/involuntary, and
-whether the offence charged is one of specific intent/basic intent.
What is the difference between specific intent and basic intent?
-specific intent offences:offences for which the MR requires is only intent. These includes murder and s18 OAPA
-basic intent offences:offences where recklessness is part of the MR. This includes manslaughter, s20 and s47 and some property offences.
What are the defence rules on voluntary intoxication?
-if D is voluntarily intoxicated, this could mean that he/she did not form the MR of the offence due to the intoxication. SHEEHAN AND MOORE:a drunken intent is still an intent.
-it is up to the prosecution to prove that D had the required intent. If they can’t do that, D my be convicted of a lesser offence, like manslaughter instead of murder.
-where the offence charged is one of basic intent, then voluntary intoxication is not a defence as being voluntarily intoxicated is a reckless course of conduct (MAJEWSKI)
-if D does not realise the strength of the intoxicant, this could still be a defence (ALAN)
What are the rules for involuntary intoxication as a defence?
-if D was intoxicated through no fault of his or her own:
-they are allowed to argue that they did not form the MR whether the offence is of specific/basic intent but that,
-if the prosecution can prove that they did form the MR, they will be guilty of the offence whether its specific or basic, even if they would’ve not committed it had they not been voluntarily intoxicated (KINGSTON)
What if the defendant makes an intoxicated mistake?
-if D makes a mistake while intoxicated, whether they can use it as a defence depends on what the mistake is about.
-SPECIFIC INTENT OFF: they allow for a defence if the mistake means D didn’t form the necessary MR.
-BASIC INTENT OFF: intoxicated mistakes don’t provide a defense as the law views becoming intoxicated as reckless in itself.
-O’GRADY:mistaken belief due to voluntary intoxication, not a valid defense for basic intent offences like manslaughter.
HATTON:mistakes due to intoxication about the amount of force used does not provide a valid defense for specific/basic intent offences.
-This is stated in Section 76 of the Criminal Justice and Immigration Act 2008.
Is self-defence considered a full defence?
Yes, this is a complete defence in criminal law and if successful,the defendant will be found not guilty.
What are the two questions asked when determining whether a defence of self-defence is valid?
1)Was it necessary to use force? The court will ask whether D honestly believed it was necessary to use force based on the facts they knew at the time.
2) Was the force used reasonable and proportionate? Even if force was necessary, the amount of force used must be reasonable in relation to the threat or harm. If excessive force was used, the defence may fail.
Where is self-defence contained in statute law?
-the rules on the degree of force come from common law and now also governed by Section 76 of the Criminal Justice and Immigration Act 2008.
What are the rules and cases for mistaken beliefs in the use of force?
-Gladstone Williams:If D’s mistaken belief was genuine, then the jury should assess him based on that belief, even if it was unreasonable.
-if D made the mistake because he/she had voluntarily taken drugs/gotten drunk, then he/she cannot rely on his/her mistaken belief.
-D’s genuine belief can include delusions resulting from a psychiatric condition (SEUN OYE) (PRESS AND THOMPSON: PTSD)
What if the defendant is the aggressor?
-RASHFORD:even if he/she is the initial aggressor, D may use force if the victim’s response is wholly disproportionate and seriously threatens the defendant, in other words to give himself an excuse to use much more serious violence.
Is a pre-emptive strike allowed?
-a pre-emptive strike is when a defendant uses force in anticipation of an attack.
-BIRD:pre-emptive strike is allowed, there is no duty to retreat; it is a factor to be taken into account when deciding whether the degree of force was necessary.
How can it be determined whether force was reasonable and proportionate?
-the reasonableness of the force used is considered on the facts as they were or, if the defendant made a mistake, on the facts as the defendant genuinely believed them to be.
-The test is objective referenced in Seun Oye and considers:
1) the risk of harm to D vs risk of harm to V
2)a person acting for a legitimate purpose may not be able to measure exactly the amount of necessary force.
3)if D did what they honestly thought was necessary, this is strong evidence that the action was reasonable.
