General defences Flashcards
** M’Naghten’s Case [1843] 8 ER 718
D intended to murder Sir Robert Peel but instead killed his secretary Edward Drummond by mistake
Found to be not guilty by reason of insanity – acquitted
sets out a set of rules for insanity defence – D is not guilty by reason of insanity if:
D suffers from a defect of reason caused by a disease of the mind AND
The defect of reason must mean that either (a) D is not aware of the nature and quality of his act or (b) he is not aware that what he is doing is wrong
- Sullivan [1984] AC 156
D kicked a man violently on the head + body – while suffering a seizure due to psychomotor epilepsy – appellant gives evidence D had no recollection of event + 2 medical experts gave evidence that it was strongly probable attack occurred during stage of seizure where the appellant would make automatic movements of which he was no conscious – both of things were uncontested
D changes plea from not guilty to guilty after jury directs jury that they should find him not guilty by reason of insanity - convicted guilty of assault occasioning ABH - appeals against conviction dismissed
Held that any disease that creates an impairment of the mind, is a disease of the mind within the M’Naghten rules, even if its effects are merely transitory (not permanent) and short in duration
Quick [1973] QB 910
D is a diabetic and a nurse - has taken insulin as prescribed that morning - blood sugar too low - hypoglycaemia - assaults a patient
Pleas guilty as trial judge rules evidence only supports insanity defence not automatism - conviction of assault occasioning ABH quashed on appeal - D had defence of automatism
disease of the mind, within the M’Naghten meaning, was a malfunctioning of the mind caused by disease, it cannot be caused some external factor, such as adding insulin to the body
Disease of the mind -in insanity- is caused by an internal factor , but sane automatism is caused by an external factor
Contrast case to Hennessey
Hennessy [1989] 1 WLR 287
D is a diabetic - had not eaten or taken insulin for a dew days - blood sugar levels way too high - state of hyperglycemia- D goes and gets in stolen car POs were watching and arrested when stops at red lights
pleas guilty after judge rules no defense of automatism available to him - appeals against conviction (of taking a conveyance without authority and driving whilst disqualified) dismissed
Hyperglycemia caused by an internal factor is a disease of the mind and so qualifies for insanity not automatism
Codère (1917) 12 Cr App R 21
held that the nature and quality of the act referred to in the M’naghten rules does not distinguish between the physical and moral aspect of the act
So if one understands the physical nature of an act, it ought to be considered he knew it was wrong
D is soldier and kills someone - not at war - convicted of murder
- Johnson [2007] EWCA Crim 1978
D forced his way into the sitting room of the victim (T) – shouted aggressively – stabs T in Left shoulder – 4 deep stab wounds and many small lacerations to his fingers- J later went to P’s house – carrying the knife + asking for P – accusing P of ‘noncing my sister’ – Psychiatrists agreed J had been suffering from paranoid schizophrenia – agreed that J knew the nature+ quality of his act and that it was also against the law – but that J did not consider his acts to be morally wrong
Held that where D “is not aware what he is doing is wrong”, knowledge of illegality was the sole criterion of what was wrong, if the defendant believes or does not believe that his actions are morally wrong is irrelevant
** Keal [2022] EWCA Crim 341
D has a history of mental health problems – ADHFD and drug addiction – D attacks his father, mother and grandmother in a frenzied manner with an array of weapons
For the purposes of the M’Naghten rules – a D knew his acts were wrong where it has been shown he knew they were both against the law and wrong by the standards of ordinary people
If D knew what he was doing was wrong, even if he felt he had no choice but to act in the manner he did, he cannot rely on a defence of insanity
Problems with insanity defence
list by Law Com Discussion Paper, Criminal Liability: Insanity and Automatism, 2013,
Problems with the current law
(1) Proving the act- for insanity defence Pros must prove act or omission – can be diff due to not easy to identify exactly what must be proved in some cases – some offences have elements that cannot be easily classed as actus reus or mens rea- can lead to acquittal of D as actus reus has not been proved beyond reasonable doubt
(2) Interpreting – defect of reason
Means that accused powers of reasoning have to be impaired at the time of the offence – mere failure to use them or momentary failure of conc- not sufficient
Also excludes abnormalities of mind – such as inability to control one’s emotions compulsions – Prof Ashworth – “some forms of mental disorder impair practical reasoning and the power of control over actions” – argues that second should also be incorporated into the defence
(3) Disease of mind
means a disease which affects the proper functioning of the mind – mind meaning “ the mental faculties of reason memory and understanding”
Broad def has led to stuff -such as diabetes coming under the defence – generally not described as mental disorder
Law on internal + external factors – insanity or automatism – can never make medical sense
Contrast of diabetics – hypoglycaemic states as automatism – hyperglycaemic states as insanity – makes no sense – Quick contrasted to Henessy
Another basis for criticism is both factors may operate simultaneously
(4) Nature and Quality of the Act
Often thought to be too narrow in 2 ways
1, it is based off a unduly narrow concept of what must be known – defence not available to those who know physical nature of their acts – moral aspect irrelevant
2, exclusive focus on cognitive function – excludes other sorts of functioning problems of the mind – mood disorder, emotional problems …..
(5) Not knowing his act was wrong
Issue is of interpretation of wrong – does it mean contrary to law or morally wrong
Narrow interpretation taken – contrary to law
- changed in Keal - must be proven that D didn’t know it was contrary to law AND (morally) wrong by ordinary peoples standards
(6) Inchoehrence
Unclear if the insanity defence is essentially a denial of mens rea or not ]
Law com view that defence aim is to deny criminal responsibility, not merely mens rea
(7) Defence mot available in mag court of no mental element to offence
(8) Law out of sync with medical understanding
Terms of insanity and disease of the mind = outdated legal terms – not medical terms
(9) Lablel of insanity is stigmatising and inaccurate
10, burden of proof is on D
11, risk of breach of ECHR
12, equality and discrimination
13, impact on children
Abolishment of insanity defence argument
Central focus that -if mentally ill person falls outside scope of singular defence for the mentally ill then crim law will treat that D as mentally sane and a ‘normal D’ - this is wrong
Look at first limb M’N – if sufficed – D cannot have necessary mens rea for the offence in question – normally would acquit a D – but insanity adds an extra burden to him – special verdict- potential hospital order
Hogg agrees with abolition but we must also advocate for a thoroughgoing programme of reform across all defences, with the mentally ill and/or disordered defendant in mind - normal legal defences and principles do not currently account for mentally ill - we must amend them to take this into account if we remove the singular defence for mentally ill
Reformation of Insanity defence - LC’s proposal in 2013 discussion paper
Proposal of new defence - not criminally responsible by reason of recognised medical condition
– party seeking to raise def must have evidence from min 2 experts that at time of offence
the defendant wholly lacked the capacity:
(i) rationally to form a judgment about the relevant conduct or circumstances;
(ii) to understand the wrongfulness of what he or she is charged with having done; or
(iii) to control his or her physical acts in relation to the relevant conduct or circumstances
as a result of a qualifying recognised medical condition
on moral argument ‘that the foundation of criminal responsibility is the person’s capacity not to do the act which would amount to an offence’
new defence accommodates not only those with mental disorder but also those with physical conditions, so the scope of the automatism plea would be narrowed correspondingly
** Majewski [1977] AC 443
D involved in bar fight at bar - assualts landlord POs ….
claims he was suffering from drink and drugs
convicted of 3 ABH offences
held that
if crime is one of specific intent + D lacks mens rea for that crime - Due to voluntary intoxication - then D is noy guilty of the specific intent crime - but can be guilty of a lesser crime that does not require specific intent
- Hardie [1984] 3 All ER 48
D takes valium tablet - takes several more- sets fire to flat bedroom - lack of memory of it
Held that
voluntary and conscious taking of drugs that are in light of their characteristics ‘wholly different in kind from drugs which are liable to cause aggressiveness or unpredictability’ it must be considered if this can be said to constitute reckless behaviour – if determined that it does not then this can provide a defence
so if one is to be afforded a defence to crimes of basic intent if one if one is intoxicated depends on the drugs taken
** Kingston [1994] 3 All ER 353
Conviction of indecent assault on a youth aged 15
D had indulged in gross sexual acts with youth - but both youth and D had been involuntarily drugged
held that involuntary intoxication is not a defence where the requisite mens rea is present - even if that mens rea only occurs due to the intoxication
** Heard [2007] EWCA Crim 125,
D exposed his penis and rubbed it against a Police officers leg whilst he was drunk – he was convicted with sexual assault – he could not remember if he had actually done the offence or not
defines specific intent as ulterior intent - intent of a purpose beyond AR
basic intent is intent to just do AR - no further purpose
- Jaggard v Dickinson [1981] QB 527, [1980] Crim LR 717
appeal allowed - criminal damage case - D believes she is in the house she is allowed to be in but isn’t - causes criminal damage - provided a defence in statute
if there is a statutory defence for the offence requiring an honest belief and D holds that honest belief, even it is held due to a state of self induced intoxication, the defendant can use the statutory defence to the offence
Majewski considerations do not apply to a case where Parliament has specifically required the court to consider the defendant’s actual state of belief, not the state of belief which ought to have existed
** Howe [1987] AC 417 – conjoined appeals case
both appellants + third man M took part in the process of killing 3 different men on 3 occasions - third occasion V escapes - their defence was that their feared for their own lives if they disobeyed M
held that duress is not available for murder - regardless of being charged as principal or accessory
- Gotts [1992) 2 AC 412
defence of duress not available to attempted murder
Appellant attempted to murder his mother – claimed his father told him he had to do it – and that his father threatened to kill him if he did not kill his mother
- convicted of attempted murder
- Bowen [1996] 4 All ER 837
D buys items on credit but doesnt complete payments - D claimed he had been threatened as to his family being petrol bombed by 2 men - D was of low iq
convicted of obtaining services via deception
Gender + age the only relevent characteristics to the defence of duress
** Hasan [2005] UKHL 22
D convicted with burglary
Had associated himself with known drug dealer and violent man S
S forces him to carry out burglary
D not entitled to rely on defence of duress where he willingly put himself in a position where he was had foreseen or ought to have reasonably foreseen the risk of being exposed to threats
lord Bingham lays down limitations on duress
1) cant be for murder or attempted murder
2) the threat must be of death of serious injury
3) threat must be against D, immediate family member or someone close to D
4) objective - reference to the reasonableness of D’s conduct
5) only where the criminal conduct is due to the threats
6)must be no evasive action he couldve taken
7) Cannot rely on duress to which he had voluntairly laid himself open too
Criminal Law Act 1967 s3
use of force in making an arrest etc
(1)A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at
*Conway [1989] QB 290
D drives away recklessly from 2 people running towards car - believes they are trying to kill passenger - they are in fact POs
D’s conviction of driving recklessly quashed on appeal
defence of duress of circumstances only available if from objective standpoint D can be said to be acting in order to avoid a threat of death or serious injury
- Martin [1989] 1 All ER 652
D drives car with disqualified license
claims it was to stop stepson being late and so fired
as if he was his wife threatened to kill herself
conviction quashed on appeal
Case established the principles of necessity:
1) defence will commonly be duress of threats but can equally arise from duress of circumstances
2) only available if from objective standpoint - D could be said to be acting reasonably and proportionally to avoid threat of death/serious injury
3) jury should be directed by 2 questions
a-) was the accused, or may he have been, impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result?
(b) if so, might a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused had acted?
If the answer to those two questions was in the affirmative, the jury should acquit because the defence of necessity would have been established
- Keane [2010] EWCA Crim 2514,
D and a girl had an altercation – victim comes up to D– D says what are going to do about it – according to D, Victim was acting aggressively and D punched him – knocking him to the ground
convicted of ABH
self-defence may arise for the original aggressor only where the victim was so out of proportion to what the original aggressor did that in effect the roles were reversed
- Ray [2017] EWCA Crim 1391
D stabs V and V dies
V arrived on D’s door banging on it and shouting - then V burst in + shouting + screaming - starts fighting D’s partner - D claims he thought that V had a weapon
For householder cases, the jury must consider if the degree of force was not grossly disproportionate, if so then s76(5A) provides that they must then consider whether that degree of force was reasonable taking into account all the circumstances as the D believed them to be – so a degree of force used that is disproportionate but not grossly disproportionate may be reasonable in a householder case
- Martin (Tony) [2003] QB 1
D shot 2 people burgling him - D suffered mental condition - he would’ve seen the threat as a much greater danger to his safety
In considering whether the use of force was reasonable such that the defence of self-defence applies, a psychiatric condition should not be taken into account
- apart from exceptional circumstances
When assessing the availability of a lawful defence the jury must consider whether D’s actions were reasonable acts of defence on the facts as he or she believed them to be - belief can be mistaken - as long as it is genuine
Williams (Gladstone) [1987] 3 All ER 411
held that Where the accused makes a mistake as to the facts, he must be judged on the facts as he believed them to be, and even if the belief is unreasonably held, this is irrelevant as long as it is an honest belief
- Beckford [1988] AC 130, [1987] 3 All ER 425
one is said to be acting in self-defence if one uses reasonable force considering the circumstances as one honestly believed them to be – even if the belief held was unreasonable
