part 9 defences Flashcards
what is a special defence
a type of defence for some crimes
notice must be provided to the prodecution of intention to raise the defence
Alibi
Accused must prove where they were otherwise
acquittal
incrimination
alleges someone else committed crime
acquittal
non age
Age of criminal responsibility (Scotland) act 2019
Children under 12 cannot commit crimes
2 types of error, one valid defence, one not
Error of fact - defence
Error of law - Non defensible
Ignorantia ionis neminem excusat (error defence)
Ignorance of the law is no defence
Error of fact
If a defendant honestly believed a fact that if true, actions would have been innocent.
Must be genuine and reasonable, must have affected accused’s mens rea
HM Advocate v Gallacher 1951
Case of locals beating man they thought worked for circus
Stewart v Nisbet 2013
Police officer wrapped tape around womens head thinking she allowed it
error as to consent, not a valid defence
Owens v HM Advocate 1946
Error must be genuine, reasonable and affect mens rea
3 mental disorder defences
unfit for trial
defence for a mental disorder
diminished responsibility
what act permits for mental disorder defence
Criminal procedure (Scotland) Act 1995
Criminal responsibility of persons with a mental disorder (defence)
If a person, by mental disorder, cannot appreciate nature or wrongdoing of conduct, needs to be proven by wrongdoer
acquittal
Esclusions from mental disorder
personality disorder ie psycopath
diminished responsibility
If convicted of murder it can get reduced to culp homocide
if at time of conduct they were substantially impaired by reason of abnormality of mind
voluntary intoxication and it’s case
Brennan v HM Advocate
Voluntary intoxication is no defence
Act for voluntary intoxication not defensible
Criminal Justice and Licensing (Scotland Act) 2010
Automatism and its case
acting involuntarily, recognised as defence in Ross v HM Advocate 1991
Requirements of automatism
Accused was in state of automatism
was caused by an external factor
external factor was not reasonably forseeable, nor self-induced
condition has to be unlikely to recur
Coercion and case
Actions in response to an immediate danger or threat
Thomson v HM Advocate 1983, leading case
Humes 4 criteria for coercion
Must be immediate danger of death or great bodily harm
inability to resist violence
accused must have played backward and inferior part in plan
accused must have made disclosure and restitution on first safe and convenient occasion
Necessity
where accused had no alternative but to act criminally
Necessity in murder and its case
not a defence
R v Dudley and Stephens 1884
Moss v Howdle
Necessity case where speeding was due to accused believing passenger was going to die
HM Advocate v Anderson 2006
Necessity in murder case
where youths attacked car, man hitting one to get away
defence was allowed in this case, genuine fear of death
HM Advocate v Doherty 1954
Retaliation must be necessary (not excessive) for safety against danger, in self defence
Fenning v HM Advocate 1985
Self defence cannot have cruel excess
Self defence
The law allows you – to a certain extent – to use force to defend yourself (or a third party) against attack (or the threat of attack) from another
Owens v HM Advocate
Error in self defence can be allowed if error is genuine and reasonable
Provocation
Not a defence, a mitigating factor
must prove wild fury
actions need to dictate that provocation was necessary
Thomon v HM Advocate 1986
Retaliation to provocation must be immediate. except…..
When is cumulative provocation allowed
Domestic abuse
Drury v HM Advocate
Provocation reduced murder to culp homocide
where man murdered partner for being unfaithful
established, would a reasonable man be liable to act the same as the accused
Gillon v HM Advocate 2006
Different test to Drury for provocation if not infidelity
proportionality is used, was the offence proportionate to the provocation suffered
