The structure of defences

Question 1

What is the general burden of proof for a defence?

Answer 1

No onus on the accused to prove a defence but she does have an evidential burden.

Question 2

What are the exceptions to the general burden of proof?

Answer 2

Mental disorder (CPSA s51A(4)).
Diminished responsibility (CPSA s51B(4)).

Question 3

What are special defences?

Answer 3

CPSA s78.
- Defences which cannot be led unless a written plea has been lodged at least a week before the preliminary hearing or first diet.
- Alibi, incrimination, mental disorder, self-defence.

Question 4

What are defence statements?

Answer 4

CPSA s70A.
- Must lodge 14 days before first diet or preliminary hearing.
- Renders any special defences less significant.

Question 5

What are the kinds of defences?

Answer 5

• Full = results in acquittal.
• Partial = may reduce sentence.
• Justification = behaviour is accepted by law, no wrongdoing/punishment.
• Excuse = negation of personal responsibility, should not take blame.
• Failure of proof = effort to raise a reasonable doubt.
• Acquittal despite proof = may satisfy offence definition but escapes liability because she has a legally recognised defence.

Question 6

What is a plea in mitigation?

Answer 6

No access to a legally recognised defence, accused asks the court to take account of mitigating circumstances.
Accused has the right to speak in mitigation before sentence is passed (Falconer v Jessop 1975 SLT (Notes) 78).