General defences Flashcards
1
Q
What are the rules on insanity based on?
A
The M’Naghten rules.
2
Q
What is the main rule?
A
Every man is presumed to be sane and possess a sufficient degree of reason to be responsible for his crimes.
3
Q
What is the definition of insanity?
A
The defendant must be 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, he did not know that what he was doing was wrong.
4
Q
Who is the burden of proof on when a defence of insanity is raised?
A
The defendant.
5
Q
What happens if the defence of insanity is successful?
A
A verdict of not guilty by reason of insanity is reached.
6
Q
What did the case of DPP v H explain?
A
Insanity is not a defence to offences of strict liability.
7
Q
What is a defect of reason?
A
A defect of reason is where the defendant’s powers of reasoning are impaired.
8
Q
What if a defendant is capable of using powers of reasoning but fails to do so?
A
The defence is not available, as in Clarke.
9
Q
Is disease of the mind a legal term or a medical term?
A
A legal term.
10
Q
What did Kemp decide?
A
The disease of the mind can be physical or mental.
11
Q
What happened in the case of Sullivan?
A
The House of Lords had to decide if epilepsy came within the rules of insanity.
12
Q
Which case decided that sleepwalking can sometimes come within the rules on insanity?
A
Burgess.
13
Q
Which case decided that sleepwalking can sometimes come within the rules on insanity?
A
Burgess.
14
Q
When is insanity not available?
A
When the defendant’s conduct is caused by an external cause.
15
Q
How can the defendant be unaware of the nature and quality of his act?
A
Because he is in a state of impaired consciousness or when the defendant’s medical condition causes him to be unaware.
16
Q
What did Windle show?
A
If the defendant knows their actions are legally wrong, they cannot use the defence of insanity.
17
Q
What did the judge have to do until 1991 when a defence of not guilty by reason of insanity was reached?
A
Send the defendant to a mental hospital.
18
Q
What changed the judge’s powers and how have they changed?
A
The Criminal Procedure Act 1991, the judge can now impose a hospital order, a supervision order or an absolute discharge.
19
Q
What are some problems with the law on insanity?
A
- The law is outdated.
- Legal definition causes problems.
- Social stigma.
- Burden of proof is on the defendant.
20
Q
What are some problems with the law on insanity?
A
- The law is outdated.
- Legal definition causes problems.
- Social stigma.
- Burden of proof is on the defendant.
21
Q
What did the Royal Commission on Capital Punishment suggest?
A
The M’Naghten rules should be extended so that a defendant would be considered insane if they were incapable of preventing themselves from committing the offence.
22
Q
Which case defined automatism?
A
Bratty v Attorney-General for Northern Ireland.
23
Q
How is automatism defined?
A
An act done by the muscles without any control by the mind, such as a spasm, reflex action or convulsion, or an act done whilst suffering from concussion or whilst sleepwalking.
24
Q
What is the difference between insane automatism and non-insane automatism?
A
Insane automatism is insanity, and is caused by internal factors.
Non-insane automatism is normal automatism and is caused by external factors.
25
What did the case of Hill v Baxter approve?
The concept of the defendant not having fault when in an automatic state.
26
What did the case of T demonstrate?
Extreme stress can be an external factor which can be considered under automatism.
27
What did the Court of Appeal hold in Attorney-General's Reference (No 2 of 1992)?
Reduced or partial control of one's actions is not enough to constitute automatism, there must be a total destruction of voluntary control.
28
What is self-induced automatism?
Where the defendant knows that his conduct is likely to bring on an automatic state.
29
Which case demonstrated self-induced automatism?
Bailey.
30
What are the rules regarding self-induced automatism and the way it applies to different offences?
Specific intent; can be a defence because D lacks the mens rea.
Basic intent; can't use the defence if D was reckless or became automatic due to drink or illegal drugs, but can be a defence where the defendant does not know that his actions are likely to lead to an automatic state.
31
Which case demonstrated where the defence is available for a basic intent offence?
Hardie.
32
What is the main problem with automatism?
Deciding whether the defence to be used is insane or non-insane automatism.
33
What is a proposal for the reform of the law on automatism?
Removing the opportunity for a complete acquittal, to make sure that dangerous people are not released back into society without treatment.
34
What kind of substances does the defence of intoxication cover?
The use of drink, drugs and solvents.
35
What kind of substances does the defence of intoxication cover?
The use of drink, drugs and solvents.
36
Why is intoxication not really a defence?
It only denies mens rea, and does not dispute the actus reus.
37
What is voluntary intoxication?
Where the defendant has chosen to take an intoxicating substance.
38
Is voluntary intoxication a defence to specific intent offences?
Yes if the defendant does not have the mens rea as in Beard.
39
What was the situation in Gallagher?
Even though the defendant was voluntarily intoxicated, he was guilty as he had the mens rea.
40
Is voluntary intoxication a defence to basic intent offences?
No, the defendant is considered to have been reckless in becoming intoxicated.
41
Which case showed that voluntary intoxication is not a defence to basic intent offences?
Majewski.
42
What situations does involuntary intoxication cover?
Where the defendant did not know that he was taking an intoxicating substance, such as where a soft drink is spiked with alcohol.
43
What happens if the defendant has the mens rea, but is involuntarily intoxicated, and which case demonstrated this?
The defendant will be guilty, as in Kingston.
44
What happens if the defendant is intoxicated and makes a mistake?
They may or may not be convicted, depending on what the mistake is about.
45
What happens if the defendant is intoxicated and makes a mistake?
They may or may not be convicted, depending on what the mistake is about.
46
If the mistake is about something which means the defendant did not have the mens rea, will he be guilty?
For a specific intent offence, no.
| For a basic intent offence, yes.
47
What did the case of O'Grady show?
If the mistake is about the amount of force needed in self-defence, there is no defence.
48
What is the effect of the Criminal Justice and Immigration Act 2008?
A mistaken belief caused through voluntary intoxication cannot give a defence of self-defence, defence of another or prevention of crime.
49
Section 5 of the Criminal Damage Act 1971 allows what?
An honest belief that the person to whom the property belonged would have consented to the damage or destruction as a lawful excuse to a charge of criminal damage, whether or not the belief is justified.
50
What is the law on intoxication largely based on?
Public policy.
51
What are three problems with the law on intoxication?
1. For some crimes, there is no basic intent fall-back offence - such as theft.
2. The fact that a defendant can be guilty of a basic intent offence when involuntarily intoxicated ignores the principle that the actus reus and mens rea must coincide.
3. The fact that the defendant can be guilty even when involuntarily intoxicated ignores the fact that they were not to blame for the intoxication.
52
Give two suggestions for reform of the law on intoxication.
There should be a general rule that where D is charged with an offence for which mens rea is not an integral fault element, then D should be treated as being aware of anything he would have been aware of if he had been sober.
this rule would not apply to offences where the required mens rea involved intention as to a consequence, knowledge, fraud or dishonesty.
53
What is duress?
Where the defendant claims that they were forced to commit the crime, through fear of death or serious injury.
54
What are the two different types of duress?
Duress by threats and duress of circumstances.
55
Which crimes is duress not a defence to?
Murder, attempted murder and treason.
56
What was held in Lynch which was later changed in Howe?
The case of Lynch suggested that the defence of duress was available to a secondary party on a charge of murder, however in Howe it was ruled that no one on a charge of murder can use duress.
57
What did the case of Wilson show?
Even where the defendant is young and not able to resist pressure, duress will not be a defence to murder.
58
Which case prohibited the use of duress on a charge of attempted murder?
Gotts.
59
What is duress by threats?
Where a person's will is overborne by threats of death or serious injury.
60
How serious must the threat be?
Of death or serious injury, no less is acceptable.
61
What did the case of Valderrama-Vega show?
Cumulative effects of multiple threats can be considered.
62
Who must the threat of serious violence or death be against?
Anyone.
63
What is the test used when a jury is considering whether or not a defence of duress will succeed?
1. Was the defendant compelled to act as he did because he reasonably believed he had good cause to fear death or serious injury?
2. If so, would a sober person of reasonable firmness, sharing the characteristics of the accused, have responded in the same way?
64
Which case laid down the test for the availability of the defence of duress?
Graham.
65
What did the case of Hasan state?
The defendant's belief in the threats must be real and genuine.
66
Which characteristics of the defendant can be taken into account when considering the second stage of the duress test?
Age, pregnancy, serious physical disability, recognised mental illness or psychiatric disorder and gender.
67
Which case laid out the characteristics to be considered under the duress test?
Bowen.
68
When is the defence available?
When the defendant has no safe avenue of escape.
69
When can't the defendant rely on a defence of duress?
When police protection is possible.
70
What did the case of Hudson and Taylor accept?
Police protection is not always effective.
71
When must the threat be effective?
At the time of the commission of the crime.
72
When must the threat be effective?
At the time of the commission of the crime.
73
What did the Court of Appeal rule in Abdul-Hussain?
There must be imminent peril of death or serious injury to the defendant or those he has responsibility for.
The peril must operate on the defendant's mind at the time of committing the offence, as to overbear his will.
Execution of the threat need not be immediately possible.
74
What must the threats be used to do?
Make the defendant commit a SPECIFIC offence.
75
What happens if the defendant becomes voluntarily intoxicated and mistakenly believes he is being threatened?
He cannot use the defence of duress.
76
What happens if there is no mistake and the intoxication is irrelevant?
The defendant can access the defence of duress.
77
What is self-induced duress?
Where the defendant brings the duress upon himself, by joining a criminal gang, for example.
78
Why was Shepherd allowed to use the defence of duress, whereas Sharp wasn't?
Shepherd did not know that the gang he joined was likely to use violence, whereas Sharp did.
79
What did the case of Hasan make clear with regards to self-induced duress?
The defence is not available where the defendant realises or ought to have realised that he may be threatened with violence and compelled to commit an offence.
80
Which case recognised duress of circumstances?
The case of Willer.
81
What did the case of Cairns decide in relation to duress of circumstances?
The defendant can act if they reasonably perceived a threat of death or serious injury, but there needn't actually be a threat.
82
Give three criticisms of the law on duress.
1. The fact that duress is not available for murder ignores the fact that the defendant may not be actually committing the murder, but could just be used as a getaway driver.
2. Low IQ cannot be taken into account when assessing the defendant's resistance and situation, which can be seen as harsh.
3. Police protection negates the defence, but Hudson and Taylor recognised it was not always effective.
83
What is the defence of necessity?
Where circumstances force a person to act in order to prevent a worse evil from occurring.
84
What is the leading case on necessity?
Dudley and Stephens.
85
What did Lord Denning state in the case of Buckoke?
The defence of necessity would not be available to drivers of emergency service vehicles but he hoped prosecutorial discretion would be used.
86
Which civil cases recognised necessity?
Re F and Re A.
87
What did the Court of Appeal hold the tests for necessity were?
The act must be done in order to prevent greater evil.
The evil must be directed towards the defendant or a person he has responsibility for.
The act must be reasonable and proportionate to the evil avoided.
88
What is the major difference between duress of circumstances and necessity?
Duress of circumstances is not a defence to murder.
89
What is the major difference between duress of circumstances and necessity?
Duress of circumstances is not a defence to murder.
90
What is the defence of self-defence?
A common law defence which justifies the defendant's actions.
91
What does the Criminal Justice and Immigration Act 2008 now set out?
What 'reasonable force' is.
92
What does section 76 of the Criminal Justice and Immigration Act 2008 set out?
In deciding whether the force used was reasonable in the circumstances:
(a) that a person acting for a legitimate purpose may no be able to weigh to a nicety the exact measure of any necessary action; and
(b) that evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by a person for that purpose.
93
What does section 76 of the Criminal Justice and Immigration Act allow for?
The fact that a defendant is likely to be under stress when considering whether or not they can apply the exact amount of force necessary.
94
What happens if force is used after the threat from the assailant has passed?
The defence will not succeed.
95
What has the Crime and Courts Act 2013 given?
Wider defence to householders when intruders enter their property.
96
What qualities must a case have to qualify as a householder case where self-defence can be used?
The force must be used by the defendant while in or partly in a building that is a dwelling, D must not be a trespasser and D must have believed V to be a trespasser.
97
When will force not be regarded as reasonable in a householder case?
Where the force is grossly disproportionate.
98
For a defence of self-defence, which facts must the defendant be judged on?
The facts as he genuinely believed them to be.
99
What does section 76 (5) of the Criminal Justice and Immigration Act make clear with regards to intoxication?
A defendant who is drunk cannot rely on any mistaken belief due to voluntary intoxication.
100
What does section 76 (5) of the Criminal Justice and Immigration Act make clear with regards to intoxication?
A defendant who is drunk cannot rely on any mistaken belief due to voluntary intoxication.
101
What are three criticisms of the law on self-defence?
1. If the defendant uses excessive force, there is no defence at all.
2. Acts do not make it clear which psychiatric conditions can be taken into account when considering D's characteristics.
102
What kind of offences is consent a defence to?
Battery and other offences against the person.
103
When is consent not a defence?
Where serious injury or death is caused.
104
Which cases demonstrated consent?
Donovan and Slingsby.
105
When is consent not true?
- When it is not given for the real purpose of the defendant's actions (Tabassum).
- When it is given through fear (Olugboja).
- When given without full knowledge (Dica).
106
What was held in Wilson v Pringle?
The ordinary jostlings of everyday life are not battery.
107
When a person takes part in sport, what are they consenting to?
Contact that it is within the rules of the game.
108
What was said in Barnes?
Where injury is caused during a match, criminal prosecution should be reserved for those situations where the conduct was sufficiently grave to be properly categorised as criminal.
109
What are the four situations where consent is a defence to assault occasioning actual bodily harm?
Properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference and dangerous exhibitions.
110
What happened in the case of Brown and the case of Wilson?
Brown - homosexual masochists had no defence.
| Wilson - a man who branded his wife's buttocks causing her to require medical attention had a defence.
111
What happened in the case of Brown and the case of Wilson?
Brown - homosexual masochists had no defence.
| Wilson - a man who branded his wife's buttocks causing her to require medical attention had a defence.
112
What happens if the defendant mistakenly believes there is consent?
If the belief is genuine, they will have a defence.
113
What is a problem with the law on consent?
It appears as if the court is trying to impose it's own moral values on the law.
