Excusatory Defences

Question 1

Excusatory defences

Answer 1

Mistake
Automatism
Duress
Insanity

Question 2

Justification

Answer 2

Permissible Conduct

• > self defence
• > Prevention of crime

Question 3

Mistake

Pre-liminary points

Answer 3

Only relevant where it causes D to lack mens rea or provides her with a legally recognised excuse.

• > must disrupt concurrence of Ar &MR
• > narrow availability.
• > Exculpatory never inculpatory.

Question 4

Mistakes of Fact

Forbes [2002]

Answer 4

F thought he was smuggling prohibited horror films but they were actually child pornography. Offence: smuggling-knowingly ivolved in the dfraudulent evasuion of the prohibition on importing prohibited goods. Held: Mistake about the nature of goods irrelevant as the fundamental essence of the goods is the same and he had MR for smuggling.

Question 5

Taffe [1984]

Answer 5

T though he was smuggling money, in fact there was no prohibition of money, He’s then foud with drugs./ Held: no smuggling as he did not satisfy the AR for money.he does satisfy it for the drugs but for the drugs he lacks the MR as he doesnt smuggle them knowingly.

Question 6

Nature of Mistake

what kind of test?

Answer 6

Mistakes must be honest and genuine (no requirement of reasonableness-result of Morgan)
-> Subjective test

Question 7

Reason for Subjective Approach -partly expalined in the criminal justice act 1967 s8.

Answer 7

Any intention or foresight required to establish liability for a particular offence ha s to involve proof that the intention or foresight was possesed by thhe defendant. If it is examining something POSSESED by the defendant then it is subjective proof of MR. Subjective proof of lack of MR= defence of mistake.

Question 8

Morgan [1976]

Answer 8

M invites men round to his house suggestst they have sex with his wife and told them that she consented. Any resistance on her part would be false pretence. Held: convicted at first as they could only use mistake if they’d had reasonable grounds for their mistaken belief. The jury thought not. Hol: changed requirement of reasonable grounds to one of genuine belief by the defendant.

Question 9

Ellis [1987]

Answer 9

D thought theywere smuggling prohibited pornography but they in fact had prohibited goods. This detail does not change the fact that the AR and MR are satisfied.

Question 10

Commentary

Answer 10

S & S Do not consider Mistake, Intoxication and as defences but rather denials of proof.

Question 11

Intoxication

Preliminary points

Answer 11

• most other commentators consider it a defence
• disrupts concurrence of MR& AR by arguing D did not form MR
• May operate as partial defence
• If intoxication is provebut D still formed relevant MR there is no defence.
• Policy converns in this area are strong & so limit defence & make it unclear.

Question 12

Sheehan and Moore [1975]

Answer 12

” A drunken intent is nevertheless intent”. Drunks got into a fight and started fire which killed people. Evidence of intoxication present. If jury thought D had formed MR then the offence would have been established

Question 13

Involuntary Intoxication

Answer 13

• Upon jury acceptance that MR not formed

- It can be a defense and it could lead to acquital

Question 14

Kingston [1995]

Answer 14

D drugged by business associates that wanted to blackmail him and left w/ 15 yr old boy (who they had also drugged knowing D had paedophilic tendencies he usually suppressed. Intoxication lef to him assaulting the boy.
Held: he assaulted boy w/ MR. Ergo no defence.

Question 15

Voluntary intoxication

Answer 15

If D drinks something which has higher alcohol content than they thought. It falls under VI.

Question 16

Allen [1998]

Answer 16

Friend offered D homemade winde, he thought it had low alchol content . He arguedd involuntary intoxication. Held: As long as he knew there was alcohol in it and consumed it, its voluntary.

Question 17

Specific Intent

Answer 17

Crimes for which the MR can be satisfied by Intention only.

Question 18

DPP v Majewski [1977]

Answer 18

D fought with people including police at bar after getting VI. held: VI could only operate as a ddefence if the crime was one of specific intent. If he then does not form the requisite MR he can be convicted of a lower offence.

Question 19

Basic Intent

Answer 19

Crimes where the MR can be satisfied by intention or recklessness. VI does not count as a defence for these crimes.

Question 20

A-G for NI v Gallagher [1963]

Answer 20

If the defendanat deliberately got drunk in order to live themselves courage to commit the offence then

Question 21

Metropolitan Police Commisioner v Caldwell [1982][

Answer 21

Caldwell in a bid to enact revenge on hotel owner, got drunk and set fire to the hotel. Held: Lord Dipl- if MR can be satisfied by intent or recklessnes then VI is of no defense. Courts take dim view of VI and think it satisfies recklessnes qualification.

Question 22

Criminal Damage Act 1971S1(2)

Answer 22

• intent or recklessness to damage property - crime of basic intent.

Question 23

Ashworth

Answer 23

Doctrines of AR & MR has been subordinated to considerations of social defence with VI, automatism and some mistakes..
- Specific Intent and Basic Intent are ill defined.

Question 24

J.C Smith

Answer 24

Intoxication rules are inconsistent with S.8 of the Criminal Justice Act 1967, which requires the courts to take acount of alll the evidence in deciding whether D intended or foresaw a result.
Ashworth & Hoarder Rebutts tht s.8only applies to legally relevant evidence.

Question 25

Voiced by HC of Australia

Answer 25

Problem of basing D’s conviction on antecedent fault of voluntarily takin intoxicants. Hoarder and Ashworth - rebutt the principle of contemporaneity itself conflicts with doctrine of prior fault. No reason why doctrine should be an absolute principle.

Question 26

Ulterior Intent

Answer 26

Intention to do a particular act as a means to an end.

Question 27

Heard [2007]

Answer 27

Drunk and trying to enter hotel room, pull sout penis and rubs it on police officer. Charged w/ sexual assualt, which involvees sexual touchingof V. CA interpreted D as having no purposive intent and the touching required also need not be purposive, the offence was Concoluded to be one of basic intent.
S &S argue that heard is not univerally applicable

Question 28

Automatism & Insanity

Answer 28

Signalls a loss of control over the body or impaired consciousness.
Conflicts between legal interpretation and medical interpretation. Herring notes this could even come into conflict with HRA. Becuase medical evidence has to fit the legal tests and s raises question son the acuracy of medical tests.

Question 29

Automatism

Answer 29

Absence of Voluntarism ,denial of authorship. Denning in Bratty: “an act which is done by the muscles w/o any control by the mind”

Question 30

Requirements

Answer 30

• Total loss of voluntatry control.
• No prior fault by D
• Ecternal Cause

Question 31

Total Loss of voluntary control

A-G’s Reference (No.2 of 1992)

Answer 31

F was charged with causing death by reckless driving. He argued that logn motorway joirney had induced trance like state held: evidence could not support automatism. The defense requires “a total destruction of voluntary control on the D’s part.”

Question 32

No prior fault by D

Automatism and Intoxication

Answer 32

D may argue automatism arising from intoxication. This relays them to defence of VI. As drinking previously is prior fault

Question 33

No prior fault

Intoxication arisin from drugs taken for therapeutic reasons

Answer 33

Defence of automatism is available however if tthe medications are prescribed and nevertheless caused them to enter automatous state.

Question 34

Quick [1973]

Answer 34

On charge of assault D allowed to raise automatism consequent of hypoglycemia, notwithstanding that his condition was one of semi consciousness

Question 35

Bailey [1983]

Answer 35

Where D, a diabetic failed to take sufficent food after a normal dose of insulin and some alcohol, he olapsed into hypoglaecemia automaatism. Due to negligence in tending to condition his charge was upheld.

Question 36

External Cause

Answer 36

If lossof control is not from external cause then it is deemed to be insanity.

Question 37

Epilepsy

Bratty v. AG for NI [1963]

Answer 37

Dclaimed blackness had come over him before he strangled GF, medical evidence showed it was epilepsy. Denning ‘ D’s behaviiour may havebeen involuntary but it does not give rise to an unqualified acquittal, for that would mean that he would be left at large to do it again.

Question 38

Kay v Butterworth [1945]

Answer 38

Man drove car into line of soldiers.Defence was that he’d fallen asleep on the wheel. example given by judge of external causes e.g falling ill at the wheel (not mental disease)

Question 39

Hill v Baxter [1958][

Answer 39

D stunned by blow and rendered incapable of controlling his car, he lost consciousness and so he did not stop at stop sign,

Question 40

Insanity

Pre-liminary points

Answer 40

Deals with coincidenceof MR & AT
-Rebuttable presumption of sanity required of jurors.
=General defence, various orders favailable if not guilty by this defencce

Question 41

Defence from M’Naghten’s Case (1843)

Answer 41

Applicable if:

• > Defect of reason from disease of the mind
• > Not knowing nature/ quality of the act
• > If D did know quality, he didnot know it was wrong.

Question 42

Defect of reason from Disease of the mind

Kemp [1957

Answer 42

D suffering for arteriosclerosis.., resultiing in reduced blood flow to brain, rsulting in a period of unconsciousness. During this period he attacked his ife with a hammer

Question 43

Defect of reason from disease of the mind

Quick [1973]

Answer 43

If unconsciousness resulted from

x. hypoglycemia then it would be a transitory malfunction of the mind its the taking of insulin that’’s resulted in it .
o. hyperglycemia then it is cuase for defence of insanity as the uncontrolle disease was affecting the mind.

Question 44

Sullivan [1984]

Answer 44

D suffered from epilepsy, and in a fit he attacked a friend. Court held disease of mind ( in ordinary sense) just has to be internally caused. Matters not whether it is permanent or transient.

Question 45

Hennessy [1989]

Answer 45

Hyperglycemia brought on by external factors (Stress & Anxiety). CA: stress &n anxiet cannot be treated as special circumstances, likely to reoccur and therefore only defenseis insanity.

Question 46

R v T [1990]

Answer 46

texternal factors of rape gave rise to internal condition of PTSD. Here the courts accepted that it could be automatism. pl: possibility that where dissociation is caused by extraordinary external factors automatism is available.

Question 47

Burgess [1991]

Answer 47

D claimed he had been sleep walkingat the time he attacked his best friend. Argued automatism. CA: Abnormality due to internal dissorder and likely to re-ocur although transitory. Classed as insanity.

Question 48

Lipman [1970]

Answer 48

Intoxication and automatism. D took lsd thought he was fighting snakes, in actuality killed his gf. On doctrine of prior fault he could not draw on automatism. Intoxication was the only route.

Question 49

Coley,Mcghee, Harris [2013]

Answer 49

Confirm rule in lipman, that where defences of intoxication,insanity and automatiism are possible, There must be clear distinction between intoxication and insanity

Question 50

Overview

Answer 50

Disease is a legal quesiton approached as legal test.Transitory nature is considered, so is reoccurence of violence is considered but not fundamental and internality is fundamental.

Question 51

Not knowing nature/ quality of act

Answer 51

• criticised as very narrow approach,taken to mean nothing more than the physical aspects of the circumstance and the consequences attending D’s conduct. Us approach more liberal.
• susceptable to misinterpretation as being a breach in the standards of reasonable people.
• Legally wrong - Johnson but evidence courts act upon morally wrong-Stapeleton.

Question 52

Clarke [1972]

Answer 52

defect of reason taken to imply cessation of deliberate faculty dor however brief period of time.

Question 53

Windle [1952]

Answer 53

d knows his conduct contravenes the law

Question 54

Cedere [1916]

Answer 54

D knows that his conduct transgresses “ordinary standards adopted by reasonable people”

Question 55

Impact of Succecsful Defence

Answer 55

Trial of Lunatics Act 1883 s2: Special Verdict 
Criminal Procedure (Insanity) Act 1964 (as ammended)- hospital order, supervision, absolute discharge.

Question 56

Article 5.1 (e)of European convention

Answer 56

allows that ‘persons of unsound mind’ maylawfully be deprived of their liberty, but the leading decision in Wintwerp v Netherlands lays down 3 further requirements.

Question 57

Wintwerp v Netherlands [1979]

three further requirements under 5.1(e) of EC:

Answer 57

• > close correspondence between expert and medical opinion and the relevant definition of mental disorder
• > decision must be based on ‘objective medical expertise.
• > Courts must decide thatmental disorder is ‘of a kind or degree warranting compulsory confinement’

Question 58

-> close correspondence between expert and medical opinion and the relevant definition of mental disorder

Answer 58

Can hardly be said of a test formulated in 1843 and subsequentoly held to encompass epilepsy, hyperglyccaemia,and sleepwalking.

Question 59

decision must be based on ‘objective medical expertise.

Answer 59

could be used in conjunction with 1991 act to hold that pschiatric reports to the court should be accorded more weight than under the restrictive M’naughten test.

Question 60

-> Courts must decide thatmental disorder is ‘of a kind or degree warranting compulsory confinement’

Answer 60

Untiil the law change in 2004( new s.5 of 1991 act) the court hadno opportunity to make such a deftermination on murdeer cases

Question 61

Ashworth & Horder

Answer 61

Recommend that it would be best if the law on insanity was reformed before piecemeal challenges are mounted under HRA. M’naughten rules outmoded.

Question 62

Law commision.

Answer 62

• > the case law on insane and non-insane automatism is incoherent and produces results that run counter to common-sense.
• > it is not clear whether the defence of insanity is even available in all cases;