General Defences Flashcards
Definition of insanity?
S.1 Criminal Procedure (Insanity & Unfitness to Plead) Act 1991.
M’Naghten defined insanity as having 3 stages.
What does M’Naghten say?
The defence of insanity has 3 stages.
What is stage one of insanity?
D must be suffering from a defect of reason, meaning that the Ds reasoning is impaired.
Clarke- temporary absentmindedness is not enough.
What is stage 2 of insanity?
The defect of reason must be caused by a disease of the mind.
What are the diseases of the mind under insanity?
Epilepsy- Sullivan
Sleep walking- Burgess
Schizophrenia
Chronic depression
Diabetes hyperglycaemia- Hennessy
What is stage 3 of insanity?
D must not understand the Natute and Quality of their act.
Window- the d must not have known what they were doing was wrong and what the consequences would be.
Definition of Automatism?
Lord Denning in Bratty- “an act done by the muscles without any control of the mind”
Automatism is caused by externally affected conditions.
What is stage 1 of automatism?
D must have lost full control of their actions. This means the D did the actus reus involuntarily (Broome v Perkins)
What is the side rule for Automatism under stage 1?
Self-induced Automatism (Bailey)
The D was aware that their actions would result in an automatic state they will lose the defence.
What is stage 2 of automatism?
The D must have no mens rea for the crime.
What are the two types of intoxication?
Voluntary and Involuntary
Under Voluntary intoxication what is the main case and what does it say?
Majewski- There is a distinction between specific and basic intent crimes.
Specific intent- intention only
Basic intent- intention or recklessness
Under voluntary intoxication, what is the rule for specific intent crimes?
The defence is available if the D was so intoxicated that they could not form the mens rea.
Under voluntary intoxication, what is the rule for basic intent crimes?
Typically the defence is not available as the fact that the defendant got voluntarily intoxicated shows evidence of recklessness and the crime will be complete.
What is the side rule under basic intent crimes under voluntary intoxication?
Richardson v Irwin- the defence may be available if the D would not have seen the risk even if they were sober.
What is the side rule on dutch courage under voluntary intoxication?
(Gallagher) The defence is not available if the D got intoxicated in order to gain confidence to commit a crime as they already had the intention to commit it before the intoxication.
What is involuntary intoxication?
Where the D was spiked or had unexpected side effects of prescription medication.
What is the main case for involuntary intoxication?
Kingston- The defence is available for both specific and basic intent crimes as long as D was so intoxicated they could not form the relevant mens rea.
“a drugged intent is still an intent”
What is the side rule for involuntary intoxication?
Unexpected side effect of a drug (prescription/non-prescription) The defence will be available to the defendant. (Hardie)
What is the definition under Self Defence?
Section 76 Criminal Justice and Immigration Act 2008- the defence can be used to protect yourself, someone else or to prevent a crime.
Force used must be necessary and reasonable.
What is stage 1 of Self Defence?
Section 76(3)- Force must be necessary.
Subjective Test.
What are the three side rules under stage 1?
(Gladstone Williams) Section 76(4)- making a genuine mistake
(O Grady) Section 76(5)- if the D was intoxicated when they made the mistake defence will be lost.
(Beckford) Pre-emptive strike- The law does not expect someone to wait to be hit.
What is stage 2 of Self Defence?
The force must be reasonable, meaning the force used must be proportional/equal to the threat.
What is the key law for stage 2?
Lord Morris in Palmer stated if under attack it is difficult to weigh up how much force to use.
Therefore D will get defence if they acted honestly and instinctively.
What are the two sides rules under stage 2?
(Martin) Excessive Force- defence will be lost.
Section 42(3) Crime and Courts Act 2013- Self defence at home, can be disproportionate but not grossly disproportionate.
(Ray) If grossly disproportionate we must ask whether force was reasonable.
What crimes can the defence of Duress cover?
All crimes except Murder or Manslaughter.
What are the two types of duress?
Duress by threats or circumstances.
What is the definition for Duress?
Where the D only commits a crime because they are forced.
What is stage 1 for duress by threats?
Should the d have resisted the threats? If yes, they will lose the defence.
What test is used under stage 1?
Graham Test- 2 stages
1) Did the D act because the threat made him believe he or another would suffer death or serious injury? (subjective).
2) Would a “sober person of reasonable firmness” sharing the same characteristics as the D would have responded with a criminal act? (objective).
What does Bowen say under stage 1 of duress by threats?
Characteristics include: Age, Pregnancy, Physical disability and Mental disability.
What is stage 2 of duress by threats?
How serious was the threat? must be of death or serious injury, threats against property are not enough.
(Valderama-Vega)
What is stage 3 of duress by threats?
The threat must be against you or someone you are responsible for.
(Wright)
What is stage 4 of duress by threats?
How immediate must the threat be? The threat must be immediate or almost immediate so that the D does not have time to go to the police.
(Batchelor)
What is stage 5 of duress by threats?
You must commit the crime that was nominated by the person making the threat. (Cole)
What if the D induced the duress themselves?
Self-induced duress- if they brought the pressure upon themselves then they lose the defence. (Hasan)
