paper 1 - criminal defences

Question 1

how do you prove insanity?

Answer 1

the defence has to prove insanity on a balance of probabilities. if the person is ‘insane’ they are ‘not guilty by reason of insanity’.
theres no insanity defence in strict liability as theres no mens rea.
the rules are from m’naughten 1843.
you have to establish at the time of offence that 1. d was suffering from a defect of reason, 2. cause by a disease of the mind, and 3. not knowing of the nature and quality of that act or that it was legally wrong.

Question 2

explain insanity - 1. defect of reason

Answer 2

the defect is that ability to reason must be impaired.
if they can reason but fail to then theres no impairment.
its more than absent mindedness or confusion (clarke 1972)

Question 3

explain insanity - 2. disease of the mind

Answer 3

disease is a legal not medical term and common law has developed the meaning on a case by case basis.
its a mental or physical disease that affects the mind (kemp, Sullivan).

Question 4

explain insanity - 3. nature and quality so physical character of act

Answer 4

the d may not know the character of the act if they are in a state of unconsciousness or conscious but dont know or understand what they are doing due to the mental condition (r v oye)

Question 5

what is the potential result of an insanity plea?

Answer 5

they could be given the verdict of ‘not guilty by reason of insanity’ and the criminal procedures and justice act 1991 says the judge can give hospital or supervision orders or absolute discharges.

Question 6

explain the loss of control defence - loss of control

Answer 6

loss of control comes from coroner and justice act 2009 s54 and s55.
s54 (1)(a) says the d needs to lose control and this doesnt need to be sudden (Dawes) and is subjective.

Question 7

explain the loss of control defence - qualifying trigger

Answer 7

the 2nd part of the test requires a qualifying trigger (s54(1)(b)).
fear (s55(3)) or anger (s55(4)) and must be of extremely grave character with a justifiable sense of being wronged.
sexual infidelity is excluded as a qualifying trigger (s55(6)(c)) but ‘clinton’ says we can use it alonside of factors.
the jury has to decide if its serious enough.
revenge is excluded as a trigger. ‘bailie’ says 15 minutes isnt long enough too be revenge.

Question 8

explain the loss of control trigger - same age, gender

Answer 8

the last part of the test is if someone of the same and gender with similiar charcteristics as the d would act in the same way. mental state can be considered (gregson)
if d can use loc it reduces murder to manslaughter.

Question 9

explain dimished responsibility

Answer 9

diminished responsibility is from s2(1) of homicide act 1957 amended by the cornoners and justce act 2009.
the d needs to act with an abnormality of mental functioning from a recognised medical condition that substantially impairs d repsonsibility for their acts.

Question 10

explain diminished responsibility - abnormality

Answer 10

the abnormality must be an explanation for the act.
the test is from ‘byrne’ and needs the d state of mind to be so different from that of an ordinary human that the reasonable person sees it as abnormal

Question 11

explain diminished responsibility - medical condition

Answer 11

you need to give evidence that the abnormality is due to a recognised medical condition.
this can include paranois (Martin), depression (seers) or battered woman syndrome (ahluwalia).

Question 12

explain diminished responsibility - suubstantially impair

Answer 12

abnormality must substantially impair d responsibility for their actions.
substantial doenst need to be total impairment but it cant be trivial either (Lloyd).
theres three ways to decide this and you can use all or none of these -
1. ability to understand consquence of actions has been impaired
2. ability to form rational judgements has been impaired
3. ability to excersise self control has been impaired
the last requirenmtn is that abnormality provides a causal link to the d actions.
diminshed responsibility is on balance of probabilities and can lead to manslaughter.

Question 13

explain intoxication defence

Answer 13

this covers intoxication from any intoxicating substance including prescription drugs.
to succeed you have to prove the d was so intoxicated they couldnt form the mens rea (so intent).
the extent the d can rely on this defence depends on if intoxication is voluntary or involuntary and if the offence was basic or specific.
specific offence is where the mr is intent only (murder and s18) where intoxication can lead to a lesser defence (beard). basic is intent or recklessness (assault, battery, s20, s47, manslaughter)

Question 14

explain voluntary intoxication

Answer 14

this is where the d has chosen to take a substance (r v sheehan and Moore). you have to see if the d could form the mr and this is on the prosecution to prove.
if a d can be charged for a specific or lesser basic offence then they can try for 2 offences and the jury decided which the d should get (r v Lipman).
if theres no fallback offence like in theft, and theres no mr it leads to an acquittal.
if the d has the mr despite being intoxicated (drunk intent equals intent) then they are guilty (a-g ni v Gallagher).
if the offence is basic then voluntary intoxication cant be a defence as taking a substance is seen as reckless so acts as the mr (dpp v majewski).

Question 15

explain involuntary intoxication

Answer 15

this is where the d didnt know they were taking an intoxicating substance (e.g being spiked).
you can use this for both basic and specific intent crimes as the d isnt able to form the mens rea. if the do forms the mr then becomes intoxicated they can still be liable (r v kingston).
or in the case of prescribed/ safe drugs having unexpected side effects they dont have intent or recklessness so they are not guilty (r v Hardie).

Question 16

explain an intoxicated mistake

Answer 16

intoxicated mistakes arising dfrom voluntary intoxication means the d cant use the defence.
this applies to both specific (r v o’grady) and basic (r v hatton).
mistakeb beleif from voluntary intoxication doesnt mean you can use self defence (r v coley).
an exception to this rule is in criminal damage (jagged v Dickinson) where mistaken belief is okay.

Question 17

explain automatism

Answer 17

this is an act done by the muscles with no control by the mind - an automative state. its a complete defence and the d can be acquitted if found not guilty.
theres no hospital or supervision order as the cause can be quickely removed.
the defeintion comes from bratty v ag for ni - “an act done by the muscles with no control by the mind such as a spasm, reflex action or convulsion, or an act done by a person whos not conscious of what hes doing such as an act done when suffering from a concussion or when sleep walking”.
this covers insane automatism (insanity) or non insane (automatism).
the ar isnt voluntarily and theres also no mr.
the d isnt at fault for their uncontrolled actions.

Question 18

how can you prove automatism

Answer 18

you need an external factor like a blow to the head, attack from bees, sneezing fit or hynotism.
it was approved in hill v baxter.
exceptional stress can also be an external factor that causes automatism ( r v t 1990).
it needs to be a full loss of voluntary control (ag ref (no2 1992)1993), having reduced or partial control of acts isnt sufficent for automatism

Question 19

explain self induced automatism

Answer 19

this is where the d knows their conduct can bring on an automatic state, like a diabetic who knows the risk of not eating after insulin or a person who drinks after taking meds when being told not to by the doctor.
if the defence works depends on if it was a specific or basic intent offence.
the rules are from ‘bailey 1983’ where they say theres a difference between specific or basic. specific means the mr is intent and you can use self induced automatism as the d lacks the mr for the offence (Bailey).
but basic is where the mr is intent or recklessness so the d cant use self induced automatism if they brought the state on by being reckless.
if the automative state was caused by drinking or illegal drugs then they cant rely on the defence as intoxication is reckless (dpp v majewski).
if the d doenst know their acctions would lead to automative state hes not reckless so can use the defence, like an unexpected reaction to meds (Hardie)

Question 20

explain duress

Answer 20

duress is where the d was forced to commit a crime against their will due to threats made to them.
its a full defence so can lead to ‘not guilty’.
you cant use it for murder, attempted murder or treason (howe).
‘hasan’ set out the test for defence - 1. threat to cause death/ serious injury, 2. directed against d or immediate family, 3. if d acted reasonably, 4. if threats relate to the crime, 5. there was no evasive act the d couldve taken, 6. d cant use defence if voluntarily laid themselves open to the threat.

Question 21

explain duress - 1. threat

Answer 21

the threat has to of a seriousness equal to gbh. a lesser threat isnt enough but the cumulative effect of threats can be considered (Valderrama-vega). the threat needs to be there at the time of the offence.

Question 22

explain duress - 2. d or their family

Answer 22

the threat has to be to the d or their immediate family. this means someone close to them that they would see as their own responsibility (e.g. mum and daughter).

Question 23

explain duress - 3. reasonable acts

Answer 23

this is a jury two part test.
(a) was d compelled to act as feared serious injury/death
(b) would a sober person of reasonable firmness have responded in same way (graham).
‘bowen’ said d characteristics can be taken into account - age/pregnancy/recognised mental illness/serious physical disability.

Question 24

explain duress - 4. specific offence, 5. way of escape, 6. open to threat

Answer 24

4. the threats have to be for a specific offence (Cole)
5. if way of escape then theres no defence (gill)
6. voluntartily open to threat means no defence e.g. joining a known violent gang (sharp) or saw a risk of compulsion (hasan).
   the threat doesnt need to be immediate just imminent (hudson and Taylor)

Question 25

explain duress of circumstance

Answer 25

this differs from normal duress as the cirumstance dictates the crime (willer).
e.g. if theres a threat to the passenger not driver (conway, Martin).
‘pommell’ says its a defence to everythingg but murder, attempted murder and treason (cairns).
the d must act due to the threat and they dont need to prove that the threat was real (abdhul-hussain).
‘abdul-hussain’ says “immediate peril of death or serious injury operating on d mind as time of offence and execution not needed to be immediate with no way of escape”.