general defences

Question 1

if a defendant commits a criminal offence under duress how are they excused?

Answer 1

to follow the instructions of the wrongdoer or threats posed by external circumstances because he is not held to be ‘blameworthy’ enough to warrant criminal sanction

Question 2

what are the two types of duress?

Answer 2

duress by threats - threats issued from a wrongdoer

duress of circumstances - threats issued from external circumstances

Question 3

when is duress not available?

Answer 3

to charges of treason, murder and attempted murder

Question 4

what was the test for duress set out in Graham 1982?

Answer 4

• was D forced to act as he did because of a reasonable fear of death or personal injury? (subjective)
• would a sober person of reasonable firmness sharing D’s characteristics have responded in the same way? (objective)

Question 5

in Hasan what were the restrictions applied to defence of duress by threats?

Answer 5

• the threat or danger must be of death or serious injury
• it must be made to V or one of his family or close circle or someone D would regard reasonably regard himself as responsible for
• D’s participation in the crime must have been due to the threat
• there must have been no evasive action the defendant could reasonably have been expected to take
• D’s belief that he is under threat must be reasonable
• taking part in the offence must be objectively reasonable
• D cannot rely on threats to which he has voluntarily laid himself open

Question 6

what is the ruling authority for duress of circumstances?

Answer 6

Martin [1989]

• D was impelled to act out of a reasonable fear that the circumstances would kill him or cause serious injury
• a sober person of reasonable firmness sharing D’s characteristics would have responded in the same way

Question 7

what situation would the defence of necessity arise in?

Answer 7

the defendant was in a situation which meant that whatever the defendant did would result in harm being caused and the defendant chose the course of action which resulted in the least harm

Question 8

what cases is the defence of necessity limited to?

Answer 8

cases where:

• the act is needed to avoid inevitable and irreparable evil
• no more should be done than is reasonably necessary for the purpose to be achieved
• the evil inflicted is not disproportionate to the evil avoided

Question 9

when is self-defence available?

Answer 9

only available where A uses force in protection of himself/another/his property

Question 10

following Palmer [1971] the elements of self-defence are:

Answer 10

• D honestly believes in facts which, if true, justifies the use of force to repel the attack (trigger elements, subjective test)
• D responds with force that is reasonable, on the facts that he believe to exist

Question 11

parts of the trigger element?

Answer 11

• if there are ways in which the defendant could have retreated this does not mean that the trigger element is not established
• if the person provokes the attack they are not disqualified from then using force to defend themselves
• you can rely on self -defence for pre-emptive attacks as long as the defendant honestly believes the attack to be imminent
• belief must be honest
• mistakes due to voluntary intoxication cannot be relied on

Question 12

parts of the response element?

Answer 12

• if the force is proportionate to the threat it is reasonable
• must considered the accused was acting in the heat of the moment
• defendants may not rely on mistakes however honest they are if they are caused by the defendant’s psychiatric condition
• if the force is grossly disproportionate it will not be reasonable

Question 13

what are affirmative defences?

duress, necessity and self-defence

Answer 13

block criminal liability although the defendant has performed the actus reus and the mens rea of the offence. seeking to excuse or justify what would otherwise be a punishable conduct on the basis of the particular circumstances which led them to do what they did

Question 14

what are failure of proof defences?

insanity, automatism, intoxication, mistake

Answer 14

do not act outside the elements of the offence. they provide the evidential basis for a claim that one of these elements is lacking

Question 15

when can insanity be used?

Answer 15

if the defendant is found to suffer from a disease of the mind at the time they committed the offence or is suffering from a disease of the mind at the time of the trial

Question 16

what must be proved to establish a defence on the ground of insanity? - M’Naghten

Answer 16

at the time of committing the act the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was wrong

Question 17

what must be shown to prove defect of reason?

Answer 17

a question of law for the judge to determine
must be shown that the defendant was deprived of the power of reasoning
absentmindedness does not apply to insanity

Question 18

what is the ruling test for disease of the mind?

Answer 18

Kemp [1957]
if the disease is capable of causing the defect of the reasoning and understanding of the mind, it is a disease of the mind for the purpose of the defence of insanity
must be shown that the defendant was suffering from a disease which affected the proper functioning of the mind

Question 19

what are some examples of disease of the mind?

Answer 19

diabetes: Hyperglycaemia
cerebral tumour
D did not know the nature and quality of the act or D did not know the act was wrong

Question 20

what are the ways the issue of the defendant’s insanity can be raised?

Answer 20

• defendant straightforwardly claims they were insane at the time of the offence. burden of proof is on the defence to prove the elements of insanity on the balance of probabilities
• defendant raises a defence of no mens rea or automatism, but the judge decides that the evidence discloses a defence of insanity. the judge may then instruct the jury to consider the issue of insanity
• if the defendant raises a plea of diminished responsibility, then the prosecution is entitled to rebut the defence by producing the evidence of insanity

Question 21

what are the two forms of involuntary action/ automatism?

Answer 21

physical involuntariness or mental involuntariness

Question 22

what is the leading authority on automatism?

Answer 22

Bratty v Attorney General for Northern Island
an involuntary act means an act which is one by the muscles without any control by the mind e.g. spasm, reflex or convulsion
or an act done by a person who is not conscious of what they are doing

Question 23

what must defendant suffer to plead automatism successfully?

Answer 23

total loss of voluntary control

Question 24

physical causes - what must the involuntary causes be due to?

Answer 24

an external cause

Question 25

when does mental cause apply?

Answer 25

when the defendant is effectively unconscious due to external causes

Question 26

what is prior fault automatism?

Answer 26

if the defendant’s automatism at the time he completed the actus reus of the offence has arisen from blameworthy conduct that he has one prior

Question 27

how is prior fault automatism established?

Answer 27

• D must have completed the actus reus elements in a state of automatism
• D’s automatism must have resulted from his prior fault
• D’s offence must be one of basic intent

Question 28

when does involuntary intoxication occur?

Answer 28

where the defendant is not aware they are consuming intoxicant or where the defendant may have consumed prescribed or non-dangerous drugs not known to provoke erratic or unpredictable behaviour

Question 29

when will involuntary intoxication only provide a defence?

Answer 29

if the defendant did not actually form the mens rea for the offence

Question 30

when will lack of mens rea not be taken into account if defendant is voluntarily intoxicated?

Answer 30

for crimes of basic intent - crime can be committed with a lesser form of mens rea than intention

Question 31

when can the defendant use voluntary intoxication as a defence?

Answer 31

for crimes with specific intent - where crimes can be committed with intention

Question 32

what happens if a defendant uses evidence of voluntary intoxication to negate his intention in relation to a specific intent offence?

Answer 32

he will automatically be liable for any lesser offence of basic intent