Insanity and Diminished Responsibility

Question 1

is duress a defence to murder?

Answer 1

Duress is never a defence to murder. This was firmly established in AG v Whelan - It requires threats of immediate death or serious personal violence so great as to overbear the ordinary human will. Murder is so heinous that it shall not be committed even for the price of life. It must be shown at the time of the crime, the overpowering of the will was operative. If there was reasonable opportunity for the will to reassert itself,no justification can be found in antecedent threats

Question 2

can party avail of the defence of duress if he voluntarily assumes a certain level of threat?

Answer 2

there will be no defence of duress available to parties
who voluntarily assume a certain level of threat.

In DPP for Northern Ireland v Fitzpatrick, an Accused who had voluntarily joined the IRA was not allowed to avail of the defence. The reason for this is presumably public policy: the law will never allow an individual to benefit from engaging in illegal activity.

Question 3

what did the house of lords affirm in R v Hassan?

Answer 3

In R v Hassan the House of Lords reaffirmed that where a person of their own free will becomes involved with persons engaged in criminal activity, in circumstances where
they knew or ought to have known he could be subjected to those persons threats, then the defence of duress does not apply.

Question 4

who owns the burden of proof when it comes to the defence of duress?

Answer 4

It was established in DPP v. Dickey that the burden of proof is on the prosecution to prove beyond a reasonable doubt that the accused was not acting under duress

Question 5

what is the defense of Necessity?

Answer 5

the defence cover emergency situations or acts necessary to avoid “inevitable and irreparable evil.

Question 6

what is necessity sometimes referred to?

Answer 6

Necessity is sometimes referred to as the duress of circumstances

Question 7

how can someone avail of the defence of necessity

Answer 7

To avail of the defence of necessity, the Accused must go no further than what is absolutely necessary in the situation that presents itself.

Furthermore, the “evil” that is inflicted must be no worse than the “evil” which is being avoided. Therefore, there must be an element of
proportionality involved and if the act done is dispoportionate to the result the Accused is
seeking to avoid, he/ she will not be permitted to avail of the defence of necessity.

Question 8

what standard is used to determine whether Necessity exsists or not

Answer 8

Whether necessity exists or not will be tested by an objective standard.

Question 9

what are the facts of R v Pommell

Answer 9

The accused was charged with possession of a loaded gun. He claimed that he did not intent to harm people, and that he only had it in his possession because it had been necessary to confiscate it from another individual who intended to use it to harm people.
The question of whether or not possession was necessary in these circumstances was held to be a matter for the jury to consider and they were instructed to weigh this up on an objective standard

Question 10

what was held in the case of R v Abdul Hussain?

Answer 10

They hijacked a plane to avoid deportation where they would be subject to torture.

The court held that while in principle the defence was open to a hijacking charge, the terror inflicted on passengers would likely undermine the defence on proportionality grounds

Question 11

what are the facts of the case Re A (conjoined twins: Surgical Intervention)

Answer 11

the parents of conjoined
children refused permission for an operation which would separate them, allowing one to live and one to die. Both would die absent the operation so the doctor applied to the High Court to override the parent’s lack of consent. The court agreed to do so, justifying its position on grounds of necessity.

Question 12

what must the accused prove if they raise insanity

Answer 12

They must prove it on the balance of probabilities

Question 13

what did section 5 of the criminal justice (insanity) act 2006 bring?

Answer 13

Section 5 brings in the new “special verdict” which allows juries to find an accused not guilty by reason of insanity and this relates to the Accused’s mental state in committing the offence, rather than his/her current state.

Question 14

Insanity is governed by which legislation?

Answer 14

The criminal Law (insanity) Act 2006

Question 15

explain section 5 of The criminal Law (insanity) Act 2006

Answer 15

a. The accused person was suffering at the time from a mental disorder; and
b. The mental disorder was such that the accused person ought to not be held responsible for the act alleged by reason of the fact that they:

1. Did not know the nature and quality of the act
2. Did not know what he or she was doing was wrong
3. Was unable to refrain from committing the act

Question 16

what is mental disorder fined as?

Answer 16

Mental disorder is defined in section 1 as including “mental illness, mental disability, dementia or any disease of the mind that does not include intoxication

Question 17

The McNaughton rules

Answer 17

if at the time of the alleged offence whether the accused suffered from a disease of the mind which meant that either

(1) he did not understand the nature and quality of his act
(2) he did not know, as to the act was wrong

Question 18

Disease of the mind was defined in R v Kemp as what

Answer 18

Disease of the mind was held in R v Kemp to include anything bearing on the faculties of reason, memory and understanding.

Question 19

what other cases constituted a disease of the mind?

Answer 19

Epilepsy was similarly held a disease of the mind in Bratty v AG for Northern Ireland as was sleepwalking in R v Burgess.

Question 20

Explain the facts of R v Dickie

Answer 20

Accused knew he was setting bins on fire, but due to illness of the mind, didn’t understand that it would spread and cause damage. However he knew the nature and quality of the act so he was still guilty .

Question 21

what did Henchy J state in AG v Hayes in relation to insanity?

Answer 21

Henchy J said that the accused must know it was both illegal and immoral

Question 22

Irrational Impulse

Answer 22

knew it was wrong but couldn’t refrain from doing it

Question 23

what are the facts of Doyle v Wicklow county council?

Answer 23

the Accused believed that eating meat was wrong and set fire to an abattoir. It was established that he knew setting the fire was wrong but felt he could not resist doing it.

The court held that the central test of insanity is free volition: whether the Accused was acting of his own free will or under the guidance of some other external force.

Question 24

What is diminished responsibility?

Answer 24

as a state arising from an abnormality of the mind such as to substantially impair mental responsibility.

Question 25

s.6(1) laids out dimished responsibility as

Answer 25

where on trial for murder and the court finds that the person:

a. did the act alleged
b. Was at the time suffering from a mental disorder
c. The mental disorder was not such as to justify finding him guilty of insanity but was such as to substantially diminish his responsibility for the act.