Topic 8 - Incapacity and General Defences - Part I

Question 1

Overview of defences

Answer 1

> No straightforward definition of a defence.
Disagreements over what should or shouldn’t be a defence.
In particular, there’s a dispute over whether some claims amount to a defence or in fact to a denial of the AR or MR.
E.g. courts have held that self-defence amounts to a denial of the AR.
Different classifications, e.g. for this book using:
1. Defences based on the finding that D acted in a permissible way.
2. Defences based on the pressure exerted upon the D by another.
3. Defences based on D’s mental condition.

Question 2

Defences based on the finding that D acted in a permissible way.

Answer 2

1. Private defence
2. Necessity
3. Chastisement
4. Consent

Question 3

Defences based on the pressure exerted upon D by another

Answer 3

1. Duress
2. Entrapment
3. Superior orders

Question 4

Defences based on D’s mental conditions

Answer 4

1. Automatism
2. Insanity
3. Diminished responsibility
4. Loss of control
5. Children
6. Intoxication
7. Mistake

Question 5

Private Defence and the Prevention of Crime - legal source of the defence

Answer 5

> Requirements of private defences are:
1. D was (or believed s/he was) facing a threat from V.
2. D used a level of force against the threat (or the threat as it was believed to be) which was reasonable in the circumstances.
Disagreement over name, e.g. private defence, self-defence, lawful defence.
Complete defence.
2 legal sources in English law:
1. Common law (Duffy [1967]). Defending oneself from attack.
2. S. 3 of Criminal Law Act 1967:
(1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.
(2) Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.
Cousins [1982]: legal rules same whichever form of defence used.
Co-exist.

Question 6

Private Defence and the Prevention of Crime - To what crimes is private defence a defence?

Answer 6

> Can be used in relation to any offence despite debate as to whether it could only be used in crime of violence.
In Riddel [2017], Davies LJ held that self-defence is only available “where a person uses force in order to meet actual or perceived force or threat of force.”
However, this was challenged in obiter in Oraki v CPS [2018] where it was held it didn’t need to be shown that D was using force.
NB: Oraki was a Divisional Court case, Riddel was a CA decision and Oraki was in obiter.
Riddel current law position.

Question 7

Private Defence and the Prevention of Crime - what needs to be shown to establish the defence?

Answer 7

> S. 76 Criminal Justice and Immigraction Act 2008 sought to clarify some elements of the offence.
CA in Keane [2010] explained this section didn’t change the law but simply stated what law had previously been.
Elements of private defence can be listed as follows:
1. V must pose a threat,
2. Threat must be unjustified.
3. Use of force must be reasonable.
4. The amount of force used must be reasonable.
5. D must be acting in order to defend himself or another or property.

Question 8

Private Defence and the Prevention of Crime - what needs to be shown to establish the defence? V must pose a threat

Answer 8

> R v Hitchens [2011]:
-Casts some doubt on traditional view.
-Judge ruled that D could not rely on self-defence in a case where the assault was against an innocent person in order to prevent an attack by a 3rd party.
-In the 2 hypothetical cases they discuss which would be exceptions to the rule, there is indeed a defence but it is duress, not self-defence.
This undermines the distinction the law draws between duress and self-defence.
Morris [2013]: in cases where property is involved the requirement of reasonableness will be key.

Question 9

Private Defence and the Prevention of Crime - what needs to be shown to establish the defence? Threat must be unjustified

Answer 9

> Can still rely on self-defence is their attacker isn’t committing an offence so inaccurate to suggest there must be an unlawful attack.
Threat must be unjust.
Jones [2006]: crime committed in an attempt to stop the Iraq war was unjustifiable on basis of private defence because the act of going to war in Iraq wansn’t an offence under English law, an offence under international law was insufficient.
Can’t use self-defence against self-defnce.

Question 10

Private Defence and the Prevention of Crime - what needs to be shown to establish the defence? Use of force must be reasonable

Answer 10

> R v Martin (Anthony) [2001]:
-D shot 2 young men who were burgling his house.
-Was the amount of force used reasonable by the standards of the ordinary person., or was it sufficient to show that D believed the level of force to be reasonable?
-Appealed as Martin was suffering from a psychiatric condition which was relevant to show: (i) he was suffering from diminished responsibility at the time of killing; and (ii) because of his condition he was more likely genuinely to believe that he was about to be attacked than an ordinary person would be.
Lord Woold CJ:
-“In judging whether the D had only used reasonable force, the jury has to take into account all the circumstances, including the situation as D honestly believes it to be at the time, when he was defending himself. It does not matter if D was mistaken in his belief as long as his belief was genuine.”
-“As to what is a reasonable amount of force, obviously opinions can differ. It cannot be left to a D to decide what force is reasonable to use because this would mean that even if a D used disproportionate force but believed he was acting reasonably he would not be guilty of any offence. It is for this reason that it was for the jury, as the representative of the public, to decide the amount of force which it would be reasonable and the amount of force which it would be unreasonable to use in the circumstances in which they found that Mr Martin believed himself to be in.”
Case would now need to be read in light of the ‘householder’ amendments to s. 76 Criminal Justice & Immigration Act 2008, which means it must have been reasonable for D to use force rather than escape from the threat in some other way.
Simons questions whether this is asking too much of a D. He suggests that in the face of an immediate threat all that can be expected that D exercised reasonable self-control.
This requirement can easily be misunderstood:
1. S. 76 does not impose a ‘duty to retreat’.
2. Law does permit D to take a ‘pre-emptive strike’ if it is reasonable to do so, e.g. in A-G’s Reference (No. 2 of 1983), D prepared some petrol bombs during a time of widespread rioting.
3. Not absolutely necessary to show that the attack is imminent or immediate: A-G for N.I’s Reference (No. 2 of 1983) [1984]. But rare, not applicable for vast majority of cases.
“Was it reasonable for D to use force, rather than escape?”

Question 11

Private Defence and the Prevention of Crime - what needs to be shown to establish the defence? Amount of force used must be reasonable - overview

Answer 11

> Following amendment to s. 76 of the Criminal Justice and Immigration Act 2008 created by the Crime and Courts Act 2013 it is necessary to distinguish ‘householder’ cases (where D is using self-defence inside their home against a trespasser) and all other cases.

Question 12

Private Defence and the Prevention of Crime - what needs to be shown to establish the defence? Amount of force used must be reasonable - non-householder cases

Answer 12

> Level of force reasonable in the face of the threat as perceived by D. (Yaman [2012]).
Oye [2013]: CA confirmed (consistent with a long line of cases) that the question is whether a reasonable person would say the level of force was reasonable, not whether D thought the level of force used was reasonable.
Sometimes it’s suggested that D must use a level of force which is proportionate to the threat with the concept of proportionality suggesting that D should not use more force than threatened with.
Keane [2010]: courts have preferred to ask whether force was reasonable rather than considering whether the force used was precisely proportionate as “a person acting for a legitimate purpose may not be able to weigh a nicety of exact measure of any necessary action” (Lord Morris in Palmer 1971) and in the “agony of the moment” (CJIA 2003 s.76(7)(a)).

Question 13

Private Defence and the Prevention of Crime - what needs to be shown to establish the defence? Amount of force used must be reasonable - householder cases

Answer 13

> S. 7(5) of Criminal Justice and Immigration Act 2008:
-“In a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances.”
-A ‘householder case’ will be one where the D believes V is a trespasser and D is not a trespasser.
-R v Cheeseman [2019]: Court will focus D’s belief rather than on whether V was in fact a trespasser and the level of force D uses will only be unreasonable if ‘grossly disproportionate’.
So that means disproportionate force could still be found to be reasonable by jury, unlike in non-householder cases.
Dispute over interpretation.
R (Collins) v Secretary of State for Justice [2016]:
-Sir Brian Leveson P indicated that householder cases were to be treated in a similar way to other cases, with the focus being on whether the degree of force used was reasonable with whether the force was grossly disproportionate being an issue to take into account in deciding whether the degree of force was reasonable.
-His approach was adopted by CA in R v Steven Ray [2017].

Question 14

Private Defence and the Prevention of Crime - what needs to be shown to establish the defence? Amount of force used must be reasonable - householder cases - R v Steven Ray

Answer 14

> R v Steven Ray [2017]:
-Ray claimed he stabbed Hemmings (in Hemmings’ house) because he feared Hemmings was about to stab him and so appealed murder conviction on the basis of self-defence.
Judgment:
-[25]: “In determining the question of whether the degree of force used is reasonable, in a householder case, the effect of s. 76(5A) is that the jury must first determine whether it was grossly disproportionate. If it was, the degree of force was not reasonable and the defence of self defence is not made out.
-[26]: “If the degree of force was not grossly disproportionate, then the effect of s. 76(5A) is that the jury must consider whether that degree of force was reasonable taking into account all the circumstances of the cases as the defendant believed them to be. The use of disproportionate force which is short of grossly disproportionate is not, on the wording of the section, of itself necessarily the use of reasonable force. The jury are in such a case, where the D is a householder, entitled to form the view, taking into account all the other circumstances (as the defendant believed them to be), that the degree of force used was either reasonable or not.”
-[27]: “The terms of the 2013 Act have therefore, in a householder case, slightly refined the common law in that a degree of force used that is disproportionate may nevertheless be reasonable.”
-[28]: “As subsection (6) makes clear, in a non-householder case the position is different; in such a case the degree of force used is not to be regarded as reasonable if it was disproportionate.”
-[34]: “As is evident from the judgment in Kean, the words “disproportionate” and “unreasonable” can in some contexts be regarded as synonymous, albeit, as we have explained, in s. 76(5A) and (6) they are not”… it therefore should neither be necessary not helpful in a summing up to use language referring expressly to the contrast between disproportionate and unreasonable force…”
-[36]: “The householder is entitled to some latitude as to the degree of force used…”
-[38]: “S. 76(6A) makes clear that there is no duty to retreat; the possibility of retreat is but a factor in determining whether the degree of force was reasonable… in the case of an intruder in the home, however, the option of retreat is unlikely to arise in many cases and therefore the degree of force used, although otherwise appearing to be disproportionate, might nonetheless be assessed as reasonable.”

Question 15

Private Defence and the Prevention of Crime - what needs to be shown to establish the defence? The defendant must be acting in order to defend himself or another or property

Answer 15

> Can’t claim if acting out of revenge or retaliation or id D has lost self-control.
‘The Dadson principle’: D can’t rely on justifying circumstances of his or her actions of which he or she is not aware.
Requirement mean that Ds in Ayliffe v DPP [2005] who caused criminal damage while protesting against the Iraq war couldn’t rely on self-defence because their actions were about protest not protecting people.

Question 16

Private Defence and the Prevention of Crime - What about defendants who think they are being attacked but are not?

Answer 16

> S. 76(3): D to be judged on facts as they genuinely believe them to be and don’t need to show D had reasonable grounds for such belief.
Of course, the more absurd the belief the more reluctant the jury may be to believe that it was the genuine belief of the defendant.
Controversial rule.
One exception = where voluntary intoxication leads to belief they are being attacked.
R v Oye [2013], CA considered what should happen if D believed he was being attacked as a result of insane delusions.
R v Taj gives more guidance on when a D won’t be permitted to rely on a false belied inspired by drinks or drugs.

Question 17

Private Defence and the Prevention of Crime - What about defendants who think they are being attacked but are not? R v Oye - facts & judgment

Answer 17

> R v Oye [2013]:
-At trial D claimed to have felt pursued by evil spirits and believed the police were evil.
-On appeal the key questions was whether he should have been able to rely on self-defence based on the insane delusions that he was being attacked.
Lord Justice Davis:
-[44]: “That his belief as to those circumstances derived from his insane delusion, it was submitted, was immaterial. The point was that that was his genuine, if insanely deluded, belief.”
-[45]: “If this is right, the potential implications for other cases are most disconcerting. It could mean that the more insanely deluded a person may be in using violence in purported self-defence the more likely that an entire acquittal may result… Thus, whatever the purist force in the argument, there are strong policy objections to the approach adovcated on behalf of the appellant.”
-[46]: “In our view it is not right.”
-[47]: “The second limb of self-defence does include an objective element by reference to reasonableness, even if there may also be a subjective element… An insane person cannot set the standards of reasonableness as to the degree of force used by reference to his own insanity.”
-[57]: “We thus reject the appellant’s submissions on the issue of self-defence.”
On other grounds a verdict of not guilty by reason of insanity was substituted for the conviction.

Question 18

Private Defence and the Prevention of Crime - What about defendants who think they are being attacked but are not? R v Oye - commentary

Answer 18

> Tony Storey suggests the case states “that a plea of self-defence will not be accepted where the D’s own psychotic or otherwise insane delusions may have genuinely caused him to believe that he was under attack.”
Which seems too broad a reasoning and means judgment needs to be read with care.

Question 19

Private Defence and the Prevention of Crime - What about defendants who think they are being attacked but are not? R v Taj

Answer 19

> R v Taj [2018]:
-Taj was convicted of attempted murder, but at time of offence he was suffering from a drug-or alcohol-induced psychotic disorder, which induced paranoia.
-Taj’s trial sought to rely on self-defence, claiming that he genuinely believed that Awain was a terrorist who needed stopping.
-Trial judge ruled he couldn’t rely on this defence as his mistake was attributable to his intoxication and so, according to s. 76 of the Criminal Justice and Immigration Act 2008, couldn’t be used.
Sir Brian Leveson PQBD:
-Focused on word “attribute”.
-[60]: “In our view, the words “attributable to intoxication” in s. 76(5) are broad enough to encompass both (a) a mistaken state of mind as a result of being drunk or intoxicated at the time and (b) a mistaken state of mind immediately and proximately consequent upon earlier drink or drug-taking, so that even though the person concerned is not drunk or intoxicated at the time, the short-term effects can be shown to have triggered subsequent episodes of e.g. paranoia. This is consistent with common law principles, We repeat that this conclusions does not extend to long term mental illness precipitated by alcohol or drug misuse. In the circumstances, we agree with Judge Dodgson, that the phrase “attributable to intoxication” is not confined to cases in which alcohol or drugs are still present in a defendant’s system.”
Leaves open some interesting issues; in this case the conduct leading to the psychosis was blameworthy (alcohol, drugs), but would it apply if D stopped taking medication their doctor had prescribed? Or what about someone who worked excessive hours and new exhaustion led them to make errors or be subject to hallucinations?

Question 20

Private Defence and the Prevention of Crime - Self-Induced Private Defences

Answer 20

> Robinson, Alexander, Farrell: if D caused attack in first place, they may be unable to rely on the defence.
Rashford [2006]: jury Q = was D’s use of force reasonable in light of fact they had instigated the fight?
So key issue is whether V’s response to initial provocation of D is reasonable.
R v Keane [2010].

Question 21

Private Defence and the Prevention of Crime - Self-Induced Private Defences - R v Keane

Answer 21

> R v Keane [2010]:
-Self-defence may apply where the defendant was the original aggressor if the violence by the victim was so out of proportion to what the original aggressor did that in effect the roles were reversed.
-D said ‘What are you going to do about it’ to provoke V, upon which V raised his arm but D landed a punch on V.
-D was convicted for inflicting GBH but appealed arguing that he acted in self-defence.
-Q = could D rely on self-defence if he was the cause of the violence he was facing?
Lord Justice Hughes:
-Self defence may be allowed in some instances where D started the fight or entered it willingly.
-[17]: Self defence may arise for the original aggressor only where the violence offered by the victim was so out of proportion to what the original aggressor did that in effect the roles were reversed.
Appeal dismissed.

Question 22

Private Defence and the Prevention of Crime - Has the HRA 1998 changed the law?

Answer 22

> Ashworth suggests law on private defences may be challenged under HRA, at least in the case of murder.
Art 2 of ECHR protects right to life and paragraph 2(a) makes it clear that taking of life is permissible if it is in a defence of a person.
2 ways in which the law on self-defence in English & Welsh law falls short of that expected in the ECHR:
1. Level of force used; killing must be absolutely necessary and strictly proportionate according to the European Court, but only reasonable under the English & Welsh Law.
2. Whether the defence can be used if D mistakenly believes they or another is being attack; only if that mistake is based on a good reason according to the European Court, but as long as it is genuinely held under English & Welsh law.
However, others argue that the criminal law is simply stating that a D who kills believing himself to be under attack doesn’t deserve punishment. It isn’t in any sense authorising or permitting D to take V’s life. It is not, therefore, showing a lack of respect for V’s life, but rather attempting to assess the blameworthiness of D.
Law on self-defence may affect the way someone acted (& therefore offer greater/lesser protection of the right to life)?
For non-fatal cases, art 3 or 8 may be relevant as they require protection of citizens from torture or inhuman or degrading treatment, and interferences with their physical or moral integrity.

Question 23

Necessity - the meaning of necessity

Answer 23

> Stark, S. Gardner: there’s been conduction in relation to terminology used for defence of necessity.
Been used in 3 senses:
1. Where D ‘did lesser of 2 evils.’ Chose course of action which resulted in least harm.
2. Some (but not all) cases have used term ‘necessity’ to mean duress, e.g. Martin, Pipe v DPP. In Quayle, CA talked of ‘necessity of circumstances’, which only increases the confusion.
3. Sometimes described as overarching doctrine which explains self-defence, duress, and the lesser of two evils, the overarching them being that D was placed in an emergency of some king and what D did was necessary to avoid harm.
This book uses it in terms of ‘lesser of 2 evils.’

Question 24

Necessity - cases denying the existence of a general defence of necessity

Answer 24

> Courts have been consistent in denying a general defence of necessity, most recently in Nicklinson v Ministry of Justice [2013].
Southwark LBC v Williams [1971]: CA held homeless people seeking temporary refuge in empty accommodation had committed trespass.
Lord Denning explained: “If hunger were once allowed to be an excuse for stealing, it would open a door through which all kinds of lawlessness and disorder would pass… If homelessness were once admitted as a defence to trespass, no one’s house could be safe. Necessity would open a door which no man could shut.”
Dudley & Stephens (1884) stresses necessity isn’t a defence to murder. If hadn’t eaten cabin boy then all 4 of them would have died so lesser of 2 evils but they were still convicted of murder.
In Howe, HoL said Dudley & Stephens laid down general rule that necessity isn’t a defence to murder. Although, in Re A (Children) (Conjoined Twins: Surgical Separation) [2001], the majority of the CA gave decision a narrower interpretation.

Question 25

Necessity - the limited defence of necessity at common law

Answer 25

> Despite denial of a general defence of necessity, the courts have accepted a defence of necessity in special defined circumstances:

1. Where D damages/steals another’s property in the public interest.
2. Where D damages D’s property or interferes with another’s property in order to save his or her own person or property.
3. Where actions are taken for the benefit of another person where that person is unable to consent. In Re F (Mental Patient: Sterilisation) [1990] the doctrine was relied upon to authorise the sterilisation of a mentally ill woman. Lord Goff gave example in that case where D pushed person out of way of oncoming vehincle and he was careful to limit the principle to cases where ‘V could not consent’ (e.g. was incompetent) or there was no time to obtain V’s consent.
4. Police constable can direct people to break traffic regulations if that is necessary & reasonable to protect life or property.
5. Very limited category of necessity as defence to murder was recognised in Re A (Children)(Conjoined Twins: Surgical Separation) [2001], but Lordship stressed that this was on highly unusual facts.

Question 26

Necessity - the limited defence of necessity at common law - Re A (Children) (Conjoined Twins: Surgical Separation)

Answer 26

> Re A (Children) (Conjoined Twins: Surgical Separation) [2001]:
-Robert LJ’s reasoning supports the definition of intention as purpose i.e., direction intention, rather than foresight of an inevitable consequence i.e., oblique intention.
-Brooke LJ held that necessity can be a defence to murder in limited circumstances to avoid an inevitable and irreparable evil.
-Mary and Jodie were conjoined twins and both would die if not separated.
-If they were separated, Mary would die but Jodie would have a strong chance of survival.
-The doctors applied to the court for a declaration that it would be lawful i.e., that it does not amount to murder.
-CA dismissed appeal; the operation would be lawful.
-3 judges agreed on outcome, but differed on analysis.
Robert Walker LJ:
-There was a positive act, but no intention to kill.
Brooke LJ:
-There was intention to kill, there are 3 requirements for necessity to apply, necessity applied.

Question 27

Necessity - the limited defence of necessity at common law - Re A (Children) (Conjoined Twins: Surgical Separation) - Robert Walker LJ

Answer 27

1. There was a positive act:
   - The judge erred in law in equating the proposed surgical operation with the discontinuance of medical treatment in Airedale.
   - The act and omission distinction drawn in Airedale was ethically questionable, to apply it in this case would render it even more so.
2. But no intention to kill:
   - ‘In this case the purpose of the operation would be to separate the twins and so give Jodie a reasonably good prospect of a long and reasonably normal life.’
   - ‘Separation would involve the positive act of invasive surgery and Mary’s death would be foreseen as an inevitable consequence of an operation which is intended, and is necessary, to save Jodie’s life’.
   - ‘But Mary’s death would not be the purpose or intention of the surgery, and she would die because tragically her body, on its own, is not and never has been viable’.

Question 28

Necessity - the limited defence of necessity at common law - Re A (Children) (Conjoined Twins: Surgical Separation) - Brooke LJ

Answer 28

1. There was intention to kill:
   - ‘An English court would inevitably find that the surgeons intended to kill Mary, however little they desired that end, because her death would be the virtually certain consequence of their acts’.
2. There are 3 requirements for defence of necessity:
   - The act is needed to avoid inevitable and irreparable evil.
   - No more should be done than is reasonably necessary for the purpose to be achieved.
   - The evil inflicted must not be disproportionate to the evil avoided.
3. Necessity applied:
   - The requirements above are met.
   - Moral objections to applying the defence of necessity to murder as stated in Dudley v Stevens: ‘The first objection was evident in the court’s questions: who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? The second objection was that to permit such a defence would mark an absolute divorce of law from morality’.
   - The moral objections do not apply in the present case as Mary’s lifespan is already limited and there is no sharp divorce of law from morality in the present case.

> Difficulty with the 3 requirements is that they would have provided a defence for Ds in Dudley v Stephens, although CA were in agreement that that decision was correct.
So perhaps more case-by-case basis.

Question 29

Necessity - the limited defence of necessity at common law - Re A (Children) (Conjoined Twins: Surgical Separation) - going forward

Answer 29

> Difficulty with Brooke LJ’s 3 requirements is that they would have provided a defence for Ds in Dudley v Stephens, although CA were in agreement that that decision was correct.
So perhaps more case-by-case basis.
If one to try to derive a general principle from Re A, best may be Nathan Tamblyn’s suggestion:
-“If a group of 2 or more people are virtually certain to suffer death imminently & together, from the same cause, but one or more could be saved only by killing a particular person in that group, then such killing would be lawful. (The killer does not have to be one of the group.)
In Nicklinson v MoJ [2013], CA refused to use the defence to permit euthanasia as believed decision should be left to Parliament.

Question 30

Necessity - Implied Recognition of Necessity

Answer 30

> Although necessity is rarely recognised expressly, Peter Glazebrook has argued that there is ‘concealed defence of necessity’ because even in cases where it isn’t openly recognised as a defence, the principle that a person should not be guilty of doing the lesser of two evils influences the courts’ reasoning.
In some cases, no prosecution is brought; in others the magistrates or jury acquit even if technically an offence was committed.
He argues that there is a general principle of statutory interpretation: “that it requires clear and unambiguous language before the courts will hold that a statutory provision was intended to apply to cases in which more harm will, in all probability, be caused by complying with it than by contravening it.”
E.g. in Bourne 1938, Macnaghten J held that because the doctor had performed the operation in order to save the girl’s life he had not acted unlawfully. Without saying so explicitly Macnaghten J appears to have been reading the defence of necessity into the word ‘unlawful’ in the statute.

Question 31

Necessity - Duress of Circumstances

Answer 31

> Some cases where D does lesser of 2 evils they will be able to rely on duress of circumstances.
E.g. in Pipe v DPP [2012] a man was driving his ill son to hospital and broke speed limit, but Owen J held the jury should have been allowed to consider whether he could rely on duress of circumstances (or necessity as he called it).
Overlaps between defence of duress and necessity.
However, duress of circumstance is in some sense narrower & in some sense wider than necessity.
DoC is narrower as not available to avoid a threat less than death or GBH.
DoC is wider in the sense that it covers the situation where D believed there to be threat of serious injury, even if there was no such threat.

Question 32

Chastisement

Answer 32

> In the past, the common law defence of chastisement permitted one person to hit another over whom they exercised power but nowadays the defence has been restricted to the chastisement of children and only to parents who have parental responsibility for the child and not available if ABH or more serious injury has been caused.
S. 58 of Children Act 2004.
In effect, reasonable chastisement will only provide a defence to an assault or battery and any punishment involving greater force will be unlawful.
Critics of new law may complain it doesn’t give sufficient guidance to parents because line between battery and ABH is so unclear, whilst others say children shouldn’t be hit in any way.

Question 33

Duress - definition

Answer 33

> Duress is a defence to all crimes except murder, attempted murder, and certain forms of treason,
To establish defence of duress, D must show that:
1. They committed the crime because of threats of death or GBH.
2. A reasonable person would have acted as D did.

> Burden of proof is on prosecution to disprove the defence once D has introduced evidence he acted under duress.

Question 34

Duress - terminology

Answer 34

> To help clarify the law, there are 2 forms of duress:
1. Duress by threats = person commits a crime after another person has threatened to kill/injure someone if they don’t commit a crime.
2. Duress by circumstances = no one has specifically told D to commit the crime but the circumstances are such that D believes that unless they do death or serious injury will result.
Sometimes distinction hard to draw, e.g. Cole [1994], however, as rules governing the 2 defences are identical it doesn’t matter in practice which it is.

Question 35

Duress - to what crimes is duress a defence?

Answer 35

> All crimes, except murder, attempted murder, and certain forms of treason.
Leading case establishing duress isn’t a defence to murder = Howe.
By slim majority, HoL in Gotts [1992] decided duress wasn’t a defence to attempted murder.
In Ness [2011], it was held that duress is available to a charge of conspiracy to murder.
In Wilson (Ashlea) [2007], a 13-yr old boy helped his father (whom he was terrified of) kill a woman and CA upheld his conviction for murder, noting that “there may be grounds for criticising” a law which stated that a 13yr-old couldn’t rely on duress as a defence to murder.
Law Commission has recommended that duress should be a complete defence to murder.

Question 36

Duress - to what crimes is duress a defence? R v Howe

Answer 36

> R v Howe [1987]:
-Conjoined appeals.
-Ds claimed they joined in 2 brutal assaults on young men which culminated in their deaths only because they’d been told by an older man with a substantial criminal record that if they didn’t they would suffer violence. They understood him to mean they would be killed.
-Other case; D admitted he shot V after being threatened by another with violence & that in any event the gun went off unintentionally.
-Was duress a defence to murder?
Lord Hailsham:
-“In general, I must say that I do not at all accept in relation to the defence of murder it is either good morals, good policy or good law to suggest…that the ordinary man of reasonable fortitude is not to be supposed to be capable of heroism if he is asked to take an innocent life rather than sacrifice his own.”
Commentary:
-Lord Hailsham also commented on the distinction and relationship between duress and necessity/duress of circumstances: “duress arises from the wrongful threats or violence of another human being and necessity arises from any other objective dangers threatening the accused. This, however, is … a distinction without a relevant difference, since on this view of duress it is only that species of the genus of necessity which is caused by wrongful threats. I cannot see that there is any way in which a person of ordinary fortitude can be excused from the one type of pressure on his will rather than the other.”

Question 37

Duress - what are the elements of the defence of duress?

Answer 37

> 2 key elements of duress are set out by Lord Lane CJ in Graham, in a statement which was approved by HoL in Howe:

1. D must act because of a threat of death or serious injury.
2. The reasonable person must have responded to the threat in the way D did.

Question 38

Duress - what are the elements of the defence of duress? D must act because of a threat of death or serious injury - sub-elements

Answer 38

1. D must act because of the threats or circumstances.
2. The threat must be one of death or GBH.
3. The threat can be of death or serious harm to anyone close to the defendant.
4. The threat must not come from the defendant himself.
5. The defendant can rely on what he or she reasonably believed to be a threat.

Question 39

Duress - what are the elements of the defence of duress? D must act because of a threat of death or serious injury - D must act because of the threats or circumstances

Answer 39

> Issue is most relevant in cases where D is facing a variety of threats, only some of which are of death or serious harm.
CA in Valderrama-Vega held that D could rely on defence of duress as long as the threats of death or serious injury were for him a substantial reason for committing the crime. They didn’t have to be the only reason.
In DPP v Bell, it was held that even if the defence had been available for his initial driving away he had to desist from the crime (driving) once the threat was no longer potent and so by continuing to drive having escaped the danger area he was no longer acting because of the threat and so couldn’t rely on the defence of duress.
An objective test is used in deciding when it it reasonable to stop committing the offence, which is clear in DPP v Mullally.

Question 40

Duress - what are the elements of the defence of duress? D must act because of a threat of death or serious injury - Threat must be one of death of GBH

Answer 40

> HoL in Graham approved that duress is only available if the threat is one of death or serious harm.
Although in Brandford [2016] i was said that duress was ‘traditionally’ limited to threats of death of GBH, which might be thought to indicate a potential willingness to reopen the question.
Unclear whether a threat to cause a serious psychological injury would be sufficient as in Burstow the HoL explained that ‘GBH’ in the OAPA 1861 included serious psychological impact.
However, in Baker & Wilkins and GAC it was suggested for GBH it must be serious physical harm, but as Loveless points out the criminal law is generally reluctant to distinguish between physical & psychological harm.
Particularly significant where a woman is in an abusive relationship being threatened with ongoing psychological abuse.
Brandford [2016]: CA accepted threat can be communicated indirectly.

Question 41

Duress - what are the elements of the defence of duress? D must act because of a threat of death or serious injury - the threat can be of death or serious harm to anyone close to the defendant

Answer 41

> Defence is available if D fears that anyone for whom D reasonably regards himself responsible is under threat.
Identity of the person who is in danger from the threat will be relevant when considering whether a reasonable person would give in to the threat.

Question 42

Duress - what are the elements of the defence of duress? D must act because of a threat of death or serious injury - the threat must not come from the denendant himself

Answer 42

> Rodger v Rose [1998]: Ds sought to rely on defence of duress after charged with offences connected with escaping from prison.
Argued they had become so depressed by the conditions in prison they would have committed suicide if they didn’t escape.
CA held that duress wasn’t available as threat of death didn’t come from a source extraneous to Ds.
CA

Question 43

Duress - what are the elements of the defence of duress? The reasonable person must have responded to the threat in the way D did - sub-elements

Answer 43

> The reasonable person must have responded to the threat in the way D did:

1. The jury must decide that the reasonable person must have responded to the threat as D did.
2. What characteristics of the defendant should be attributed to the reasonable person?
3. The defendant must take any reasonable opportunity to escape from the threat.
4. The threat must be of imminent harm.
5. The defendant must have good cause to believe the threat could be carried out.
6. The defendant must not have put him or herself in a position in which he or she could have been threatened in this way.
7. Internal duress can’t be relied on.

Question 44

Duress - what are the elements of the defence of duress? The reasonable person must have responded to the threat in the way D did - the jury must decide that the reasonable person must have responded to the threat as D did

Answer 44

> Likely to consider seriousness of threat and graveness of crime required.
Lord Hailsham in Howe: did D respond in a way which was proportionate to the threat?

Question 45

Duress - what are the elements of the defence of duress? The reasonable person must have responded to the threat in the way D did - what characteristics of D should be attributed to the reasonable person?

Answer 45

> Bowen = leading case:
-Judgment is useful to distinguish between 2 Qs:
1. Which characteristics can be taken into account?
-Must show the characteristic provides a reason for failing to live up to the standards of the reasonable person. E.g. low IQ is insufficient, but PTSD is good reason.
-Characteristics can’t be self-induced. E.g. intoxication.
2. For what purposes are characteristics relevant?
-Characteristics may be ascribed to the reasonable person for three different reasons:
i) to affect the level of firmness expected;
ii) to affect the ability of D to escape from the threat (e.g. physical disability);
iii) to affect the gravity of the threat (e.g. pregnancy).
In Bowen perhaps CA didn’t given enough consideration to whether D’s low IQ led him to think the threat was more serious than it was or fail to see a way of escaping from the threat.

Question 46

Duress - what are the elements of the defence of duress? The reasonable person must have responded to the threat in the way D did - D must take any reasonable opportunity to escape from the threat

Answer 46

> In Heath [2000], threatened with violence unless he helped transport drugs in a few days and couldn’t rely on defence of duress as could have escaped threat by seeking police assistance.
Sometimes can argue that it wasn’t reasonable to seek police assistance.

Question 47

Duress - what are the elements of the defence of duress? The reasonable person must have responded to the threat in the way D did - threat must be of imminent harm.

Answer 47

> CA stated threat had to be imminent in Abdul-Hussain [1999].
R v N, CA upheld direction that “there has to be a belief that he reasonably & genuinely believed he would be killed or seriously injured either immediately or almost immediately.

Question 48

Duress - what are the elements of the defence of duress? The reasonable person must have responded to the threat in the way D did - D must have good cause to believe the threat could be carried out

Answer 48

> Graham direction makes it clear D must have good cause to beleive threat could be carried out.

Question 49

Duress - what are the elements of the defence of duress? The reasonable person must have responded to the threat in the way D did - D mustn’t have put themselves in a position in which they could have been threatened in this way.

Answer 49

> HoL confirmed in R v Z, that the defence isn’t available if D associates with criminals in circumstance they know or ought to know could become subject to compulsion to commit a crime.

Question 50

Duress - what are the elements of the defence of duress? The reasonable person must have responded to the threat in the way D did - internal duress can’t be relied upon

Answer 50

> Made clear in Quayle that Ds can’t rely on threats that come from within themselves.
In Altham [2006], Quayle was followed despite claim by Ds that law infringed his human rights:
-He was in severed pain from injury and used cannabis as pain relief.
-Argued that his right to protection from inhuman & degrading treatment in art. 3 gave him right to use illegal drugs for pain relief purposes.

Question 51

Duress - what are the elements of the defence of duress? The reasonable person must have responded to the threat in the way D did - R v Bowen

Answer 51

> R v Bowen [1996]:
-The gender and age but not intelligence of the defendant are relevant to whether the defence of duress applies.
-Should jury have been directed to consider the response to the threat of a reasonable person with an IQ of 68?
-D bought items on credit but did not complete payments.
-He argued that he was under duress from 2 men to do so by threats to petrol bomb his family and that his family would be attacked if he sought police protection.
-He was mentally challenged with an IQ of 68.
-D was convicted of obtaining services by deception.
-CA dismissed appeal; defence of duress didn’t apply.
Stuart-Smith LJ:
-On assessing whether a sober person of reasonable firmness would have acted the way he did under duress, the only characteristics to be considered are gender and age.
-Low intelligence, short of mental impairment did not make a person less courageous against threats.
-“We do not see how low IQ, short of mental impairment or mental defectiveness, can be said to be a characteristic that makes those who have it less courageous and less able to withstand threats and pressure.”
-“We are quite satisfied that in the circumstances of this case the Judge’s direction was sufficient. He directed the jury to consider the only 2 relevant characteristics, namely age and sex. It would not have assisted them, and might well have confused them, if he had added, without qualification, the the person of reasonable firmness was one who shared the characteristics of the appellant.
Appeal dismissed.

Question 52

Duress - what are the elements of the defence of duress? The reasonable person must have responded to the threat in the way D did - R v Z (in some reports R v Hasan)

Answer 52

> R v Z [2005]:
-Issue of concern to substantive criminal law was the direction of the judge that D couldn’t rely on threats by a man known as S because he had associated with him and therefore put himself in a position in which he knew that he was likely to be subjected to threats.
-D was associated with S, man known to be a violent drug dealer.
-He was compelled into burglary by S.
-He pleaded duress.
-A defendant is not entitled to rely on the defence of duress where as a result of his voluntary association with known criminals he had foreseen or ought reasonably to have foreseen the risk of being subjected to any threats.
Lord Bingham of Cornhill:
-“Duress affords a defence which, if raised and not disproved, exonerates the defendant altogether. It does not, like the defence of provocation to a charge of murder, serve merely to reduce the seriousness of the crime which the defendant has committed… having regard to these features of duress, I find it unsurprising that the law in this and other jurisdictions should have been developed so as to confine the defence of duress within narrowly defined limits.”
-At [21], he lists important limitations of duress.
-“Policy in my view points towards an objective tests of what the D, placed as he was and knowing what he did, ought reasonably to have foreseen.”
-[39]: “The defence of duress is excluded when as a result of the accused’s voluntary association with others engaged in criminal activity he foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence.”
Baroness Hale of Richmond:
-[78]: “But this brings me to a concern which I have had throughout the case. It is one thing to deny the defence to people who choose to become members of illegal organisations, join criminal gangs, or engage with others in drug-related criminality. It is another thing to deny it to someone who has quite a different reason for becoming associated with the duressor and then finds it difficult to escape. I do not believe that this limitation on the defence is aimed at battered wives at all, or at others in close personal or family relationships with their duressors and their associates, such as their mothers, brothers or children. The Law Commission’s Bills all refer to a person who exposes himself to the risk ‘without reasonable excuse.’ The words there were to cater for the police infiltrator but they are also applicable to the sort of association I have in mind.”

Question 53

R v Quayle

Answer 53

> R v Quayle [2005]:
-The defence of necessity only applies to threats from external circumstances.
-The court heard a number of appeals and a related reference by the AG.
-The cases all concerned offences of possession, cultivation or production of cannabis.
-Ds suffer from chronic pain and argued that they reasonably believed that such activities were necessary to avoid suffering pain.
-CA dismissed appeal; defence of necessity didn’t apply
Lord Mance:
-There was no overarching principle of necessity applicable in all cases, it should be developed on a case to case basis.
-Circumstances have to be extraneous and capable of objective scrutiny by judge and jury and checked by other evidence, otherwise abusive defences might arise.
-There is a large element of subjectivity in assessing pain not associated from some current physical injury.
-[56]: “Neither judges nor juries are well equipped to resolve issued as to when and how far the deliverate policy of clear legislation should give way in a particular case to countervailing individual hardship, or as to what the overall effect of such derogations would be on the whole legislative scheme.”
-[77]: “The reason why we would not accept the submission is that the law has to draw a line at some point in the criteria which it accepts as sufficient to satisfy any defence of duress or necessity. Courts and juries have to work on evidence. If such defences were to be expanded in theory to cover every possible case in which it might be felt that it would be hard if the law treated the conduct in question as criminal, there would be likely to be arguments in considerable numbers of cases, where there was no clear objective basis by reference to which to test or determine such arguments. It is unlikely that this would lead overall to a more coherent result, or even necessarily to a more just disposition of any individual case. There is, on any view, a large element of subjectivity in the assessment of pain not directly associated with some current physical injury. The legal defences of duress by threats and necessity by circumstances should in our view be confined to cases where there is an imminent danger of physical injury. In reaching these conclusions, we recognise that hard cases can be postulated, but these, as Lord Bingham said, can and should commonly be capable of being dealt with in other ways. The nature of the sentences passed in the cases before us is consistent with this.”
-[79]: Imminence and immediacy… “In each of these three cases, the defendant was taking a deliberately considered course of conduct over a substantial period of time, involving continuous or regular breaches of the law. In each case, the defendant was not the immediate sufferer and had every opportunity to reflect and to desist.”
-[80]: As noted from Southwark L.B.C v Williams, “a continuous and deliberate course of otherwise unlawful self-help is unlikely to give rise to the defence has itself, in our view, continuing relevance.”

Question 54

Duress - The Abolition of the Defence of Coercion

Answer 54

> Since the abolition of the defence of marital coercion in 2014, wives who are forced by husbands to commit crimes will now need to rely on the defence of duress.
This is narrower than the abolished defence of coercion, because the defence of coercion didn’t require proof of a threat to kill or cause serious harm, nor did it require proof of an overborne will.

Question 55

Entrapment

Answer 55

> It is not a defence for D to show that they committed the offence only because they were trapped by the police into committing it.
In Sang [1980], D claimed that he wouldn’t have committed the offence of dealing with counterfeit currency had he not suffered the constant persuasion and insistence of an undercover police officer, but HoL rejected there was a defence of entrapment. Although they did express disapproval of using police officers as agent provocateurs.
Entrapment doesn’t provide a general defence, but evidence obtained inappropriately can be excluded under the law on evidence or even lead to a reduction in sentence.
Key test is “whether the police conduct preceding the commission of the offence was no more than might be expected from others in the circumstances.”
Cases of entrapment must now be considered in light of HRA 1998, after entrapment was considered by the ECtHR in Teixeira de Castro v Portugal, where ECtHR held D’s rights to a fair trial under Art 6 was infringed by police action.
-Distinction was drawn between where undercover police officers were approached by a D (which was not illegitimate) and where undercover police approached a D and proposed the commission of an offence (which was illegitimate).
Rare but if case where D entrapped by another citizen, e.g. journalist, same rules appear to apply but little authority on the matter.

Question 56

Superior orders

Answer 56

> Never been a defence in English & Welsh law.
Obiter statements in Clegg and Yip deny existence of such defence.
If D was acting under superior orders in extreme cases this could form the basis of a defence of duress or lack of MR instead.

Question 57

Automatism - definition

Answer 57

> To plead automatism a D needs to show:
1. He had suffered a complete loss of voluntary control;
2. This was caused by an external factor;
3. He was not at fault in losing capacity.
If D brings credible evidence raising possibility of automatism, the prosecution must show beyond reasonable doubt that the accused wasn’t acting on automaton.
Automatism involves more than a claim the individual lacked MR (which they did). It is a claim s/he is not acting: it is a denial of the AR (Hill v Baxter [1958]).
This means it is a defence even to a crime of strict liability which has no MR requirement.

Question 58

Automatism - a complete loss of voluntary control

Answer 58

> Attorney-General’s Reference (No. 2 of 1992) [1994]:
-The defence of automatism requires total loss of voluntary control.
-D, a truck driver, steered into hard shoulder and drove down it until he hit a stationary car, killing two people.
-Expert witness claimed that he had been “driving without awareness” due to long exposure to monotonous motorways.
-CA held that driving without awareness didn’t amount to automatism.
Lord Taylor CJ:
-‘The defence of automatism requires that there was a total destruction of voluntary control on the defendant’s part. Impaired, reduced or partial control is not enough’.
-In this case D retained partial control, he would have been able to react if exposed to significant stimuli.
Very harsh approach of complete loss of voluntary control was confirmed in Coley [2013].
No physical control.
Simester, Spencer, Sullivan & Virgo: argue strict approach should be limited to driving offences or crimes of strict liability, and that for other crimes it isn’t necessary to show complete lack of control.
However, nothing in the judgment that explicitly restricts their discussion to driving offences.

Question 59

Automatism - an external factor

Answer 59

> Distinction between automaton and insanity or some call it ‘sane and insane automatism’.
1. If it is caused by an internal factor the person is classified as insane.
2. If it is caused by an external factor the person has the complete defence of automatism.
Can be difficult distinction to make.
Sleepwalking used to be thought to be an external factor, but in Burgess [1991], CA held it to be an example of insanity.
Everyday tension & pressures won’t constitute external factors.
Mackay and Mitchell argue that requirement for an external factor should be abandoned.
R v T [1990], rape was held to be an external factor as it couldn’t be described as part of the ‘ordinary stresses and disappointments of life.’

Question 60

Automatism - D wasn’t at fault in causing the condition

Answer 60

> Can’t plead automatism if responsible for causing one’s own condition.
No case law, but appears that the case is subjective; was D aware that their actions or inactions would cause their mental condition as opposed to asking whether D ought to be aware.
Key Q is when D is drunk and falls and bangs head so have to decide if it was concussion or voluntary intoxication which caused automatism.

Question 61

Insanity - overview

Answer 61

> 2 types:

1. Claim D was insane at time of committing the offence.
2. Claim D was insane at time of trial & so unable to effectively defend him or herself.

Question 62

Insanity - Insanity at the time of the alleged offence - definition

Answer 62

> D must demonstrate they were suffering from a defect of reason caused by a disease of the mind which means either:
1. They didn’t know nature or quality of their actions; or
2. They didn’t know that what they were doing was wrong.
If successful in plea, D will be found ‘not guilty, but insane.’
Leading (and most controversial) case on meaning of insanity = R v Sullivan:
-Key issue was whether D was labelled insane or could rely on defence of automatism.
-Automatism is only available where cause of mental condition is an external one so HoL concluded that an epileptic D couldn’t rely on automatism & was therefore labelled insane.

Question 63

Insanity - Insanity at the time of the alleged offence - R v Sullivan

Answer 63

> R v Sullivan [1984]:
-Any disease leading to impairment of the mind was a disease of the mind (in this case epilepsy) even if it is temporary or short in duration.
-Man had epileptic fit, kicking friend in head & so causing GBH.
-Judge directed jury to give a verdict of ‘not guilty by reason of insanity’ if they found D to be not guilty.
-D chose to plead guilty and was convicted.
-D appealed on the basis that the direction was wrong, judge should have left to jury the defence of non-insane automatism.
-HoL held that judge’s direction was correct & conviction was upheld.
Lord Diplock:
-Disease of mind, as held by Devlin J in R v Kemp, referred to the mental faculties of reason, memory and understanding.
-If the effect of a disease is to impair these faculties as to result in consequences referred to, it is a disease of the mind.
-‘It matters not whether the etiology, of the impairment is organic, as in epilepsy, or functional, or whether the impairment itself is permanent or is transient and intermittent, provided that it subsisted at the time of commission of the act’.
-‘The purpose of the legislation relating to the defence of insanity, ever since its origin in 1800, has been to protect society against recurrence of the dangerous conduct.’
-The duration of temporary impairment is irrelevant, particularly if it is recurrent.
HoL confirmed D is presumed to be sane & approved of definition found in M’Naghten (1843) which can be broken down into 3 requirements:
1. Disease of the mind.
2. Defect of reason.
3. D didn’t know nature & quality of this/fer act or that it was wrong.

Question 64

Insanity - Insanity at the time of the alleged offence - M’Naghten rules - list

Answer 64

1. Disease of the mind.
2. Defect of reason.
3. D didn’t know nature & quality of this/fer act or that it was wrong.

Question 65

Insanity - Insanity at the time of the alleged offence - M’Naghten rules - disease of the mind

Answer 65

> Kemp: disease of mind to be given normal meaning, it’s not a medical term.
Disease affects functioning of the mind.
Lord Denning in Bratty [1963] suggested a disease of the mind was a mental disorder which manifested itself in violence and was prone to reoccur.
However, these dicta have since been rejected (Sullivan) and it’s clear that a disease of the mind needn’t be prone to recur nor manifest itself in violence.
Just because there was a malfunctioning of the mind, it doesn’t mean that D has a disease of the mind.
Similarly, being intoxicated can’t form basis of insanity defence, even if intoxication causes a psychotic episode (Coley [2013]).

Question 66

Insanity - Insanity at the time of the alleged offence - M’Naghten rules - disease of the mind - R v Coley

Answer 66

> R v Coley [2013]:
-D convicted of attempted murder after entering neighbour’s house and stabbing her partner, causing serious injuries.
-Could D rely on defence of automatism or insanity due to a ‘brief psychotic episode’ caused by cannabis?
Lord Justice Hughes:
-[17]: “The key thing to understand is that whether there is or is not a ‘disease of the mind’ for the purpose of the M’Naghten rules is, and has to be, a question of law and not of medical usage… the law has to cope with the synthesising of the law of insanity with the law of voluntary intoxication… In the development of the common law, intoxication was historically regarded chiefly as an aggravation of offending, rather than as an excuse for it… The pressing social reasons for maintaining this general policy of the law are certainly no less present in modern conditions of substance abuse than they were in the past.”
-[18]: “The precise line between the law of voluntary intoxication and the law of insanity may, we do not doubt, be difficult to identify in some borderline cases. But the present case falls comfortably on the side of the line caused by voluntary intoxication.”
-[18]: “In order to engage the law of insanity, it is not enough that there is an effect on the mind, or, in the language of the M’Naghten rules, a ‘defect of reason’. There must also be what the law classifies as a disease of the mind. Direct acute effects on the mind of intoxicants, voluntarily taken, are not so classified. That is the distinction drawn by Stephen J in Davis and maintained ever since.”

Question 67

Insanity - Insanity at the time of the alleged offence - M’Naghten rules - Defect of reason

Answer 67

> Must show that the disease of the mind gave rise to a defect of reason: D’s power of reasoning must be impaired.

Question 68

Insanity - Insanity at the time of the alleged offence - M’Naghten rules - D didn’t know nature & quality of their act or that it was wrong

Answer 68

1. Not knowing nature and quality of the act:
   i) D had no awareness of what was happening.
   ii) D was aware of what they were doing, but was deluded as to the material circumstances of their actions, rendering the act fundamentally different.
   iii) A person who was unaware of the consequences of their act.
2. Not knowing that the act is wrong:
   - ‘Wrong’ here means illegal (held in Windle [1952]).
   - Been criticised (Manwaring), but was followed in Johnson [2007] because illegality was preferred as a test because what was or wasn’t immoral was too uncertain.
   - Mackay, Mitchell, and Howe (2006) suggest that in practice Ds whose mental illness means they don’t realise what they are doing is morally wrong are often permitted to use the defence of insanity.

Question 69

Insanity - HRA 1998 & definition of insantity

Answer 69

> Art 5: “…No one shall be deprived of his liberty save in the following cases and in accordance with the procedures prescribed by the law: … (e) the lawful detention… of persons of unsound minds.”
In Winterwerp v Netherlands (1979), ECtHR held that “except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of ‘unsound mind’. The very nature of what has to be established before the competent national authority - that is, a true mental disorder - calls for objective medical expertise. Further, the mental disorder must be of a kind of degree warranting compulsory confinement. What is more, the validity of the continued confinement depends upon the persistence of such a disorder.”
How could present law be challenged under the HRA?
1. Legal definition of insanity is far wider than the medical concept of mental disorder. Detention of epileptic person breach of art 5?
2. D presumed sane unless contrary is proved. Burden of proving defence falls on D on the balance of probabilities, which is a departure from the normal rules governing defences where prosecution must disprove any defence raised by D. Placing burden of proof on D may be challengeable as contrary to the presumption of innocence protected under Art 6(2) of the ECHR.

Question 70

Insanity & offences of strict liability

Answer 70

> DPP v Harper: insanity not a defence to a strict liability offence, but this was held to be wrong in Loake v CPS as approach taken in Harper was based on assumption that insanity is a denial of MR.
However, if that were correct then there wouldn’t need to be special defence of insanity as D would just claim they lacked MR of the offence.
As Loake noted, it is possible to fall under the legal definition of insanity even if one has the necessary MR so defence should be available even to crimes of strict liability or negligence.

Question 71

Insanity & intoxication

Answer 71

> Leading case = Lipman [1970].
D took LSD causing hallucination in which he attacked a monster (=girlfriend).
Not permitted to plead insanity as it was his voluntary intoxication, rather than any disease of the mind.
Burns (1984): if however, D can show that, although intoxicated, it was their disease of the mind that caused their lack of awareness then insanity may be available.

Question 72

Insanity - a claim that D was insane at time of tieal

Answer 72

> S. 4 & s. 4A of the Criminal Procedure (Insanity) Act 1964.
Key issue is whether accused is able to understand the charge & the difference between a plea of guilty & not guilty
Must also be able to challenge jurors, to instruct counsel, and to understand the evidence.

Question 73

Diminished responsibility

Answer 73

> Defence only to murder charge.

Question 74

Loss of control

Answer 74

> Defence only to murder charge.

Question 75

Children

Answer 75

> Some children are exempt from liability.
2 age groups:
1. Children below age of 10 can’t be convicted of a criminal offence under s. 50 of the Children & Young Persons Act 1933.
2. A child aged 10 to 14 can be convicted of a crime:
-S.34 of the Crime & Disorder Act 1998 = Abolition of the rebuttable presumption that a child is doli incapax.
-This abolition was made clear by HoL in R v JTB [2009].
-Age of criminal responsibility is much lower than many other countries and has been criticised by numerous international bodies, inc. the UN Committee for the Rights of the Child.

Question 76

Intoxication

Answer 76

> Simester: although it is often spoken as such, intoxication isn’t a defence.
Should there be a special defence for those who commit crimes with the necessary MR after being voluntarily intoxicated?
R v Kingston [1995]:
-Voluntary intoxication is no defence if mens rea was present, even if the mens rea was induced by voluntary intoxication.
-Kingston (D) had pedophilic tendencies, he was drugged which resulted in him assaulting an underage boy.
-He admitted his tendencies but claimed to have been able to keep it under control and that the drugs caused him to lose his inhibitions and commit the offence.
-The judge directed the jury to convict if they found that he had intention they should convict even if the intention was induced by intoxication.
-CA quashed his conviction on the ground that D’s intention arose out of circumstances for which he ‘bears no blame.’
-HoL allowed appeal and the conviction was reinstated.
Lord Mustill:
-Citing Professor Griew, what the Court of Appeal did was to introduce a new exculpatory defence that applies when mens rea is made out.
-The defence introduced by the Court of Appeal has no basis in common law.
-“We are concerned here with a case of disinhibition. The drug is not alleged to have created the desire to which the respondent gave way, but rather to have enabled it to be released.”
-“On these facts there are three grounds on which the respondent might be held free from criminal responsibility. First, that his immunity flows from general principles of the criminal law. Secondly, that this immunity is already established by a solid line of authority. Finally, that the court should, when faced with a new problem acknowledge the justice of the case and boldly create a new common law defence.”
If a person becomes so intoxicated that he becomes “legless” and commits a crime, it is a defence to a crime of specific intent but not basic intent, as he is still somewhat aware of himself and therefore liable.
Kingston was found to be aware that his conduct was wrong as he would not have done it if he was not intoxicated.
Involuntary intoxication in circumstances where Kingston was found to have possessed the necessary intent needed to commit the crime, was not enough to negative the MR element.

Question 77

Mistake - overview

Answer 77

> As stressed by Lord Hailsham in Morgan [1976], it is technically incorrect to see mistake as a special category of defence.
It is a way of denying MR or asserting D has a defence, e.g. self-defence.
4 examples:
1. The mistake negates MR.
2. The mistake doesn’t negate MR.
3. The mistaken belief forms the basis of a defence.
4. A mistake of law provides no defence.

Question 78

Mistake - a mistake which may negate MR

Answer 78

> In light of the mistake, did D have the required MR or recklessness?
B v DPP [2000]: If D can demonstrate they honestly (even if unreasonably) believed an element of the AR didn’t exist then they can have a defence.
In cases of voluntary intoxication, the mistaken belief can be introduced as evidence of no MR in cases of specific intent, but won’t otherwise provide a defence.
Kingston: in cases of involuntary intoxication the drunken mistake can provide a defence if that mistake negates MR.

Question 79

Mistake - mistakes & defences - overview

Answer 79

>What if D wishes to rely on a defence, such as self-defence or consent, but was mistaken as to one of the elements of the defence?
>Distinguish between 3 kinds of mistake:
1. Reasonable mistake
2. Unreasonable mistake
3. Drunken mistake

Question 80

Mistake - mistakes & defences - lawful defence

Answer 80

1. Reasonable mistake = as in Williams (1984) and Beckford [1988], D is to be judged on facts as they believed them to be. If jury decide amount of force was reasonable assuming facts as D believed them to be then they can use lawful defence.
2. Unreasonable mistake = D’s belief as to circumstances doesn’t have to be reasonable.
3. Drunken mistake = no defence (Hatton [2005]) unless jury decide mistake wasn’t caused by drunkenness.

Question 81

Mistake - mistakes & defences - duress

Answer 81

1. Reasonable mistake = if reasonable grounds for believing threats then can rely on duress even if there isn’t actually a threat (Martin [1989]).
2. Unreasonable mistake = probably needs reasonable grounds.
3. Drunken mistake = no defence.

Question 82

Mistake - mistakes & defences - consent

Answer 82

1. Reasonable mistake = in circumstances in which consent would have provided consent, if D mistakenly believes V was consenting to the force then D has a defence.
2. Unreasonable mistake = as in Morgan [1976], no need for D to show belief of consent was reasonably held.
3. Drunken mistake = no generally (Fotheringham (1989)) however, there are 2 cases which suggest otherwise:
   i) Richardson & Irvin [1999]: CA suggested drunken mistaken belief that V was consenting to rough horseplay could provide defence to charge of assault occasioning ABH.
   ii) Jaggard v Dickinson [1981]: drunken woman believed she was breaking window of friend’s house to get in but house in fact belonged to stranger. Held that her drunken mistaken belief that owner would have consented provided defence to criminal damage under s. 5(2) and (3) of Criminal Damage Act 1971.
   >These shouldn’t be regarded as conclusive. Indeed in Magee v CPS [2014], Elias LJ held there was ‘considerable doubt’ whether Jaggard v Dickinson was good law.

Question 83

Mistake - mistakes & defences - loss of control

Answer 83

1. Reasonable mistake = yes.
2. Unreasonable mistake = Unclear. S. 55 of the Coroners & Justice Act 2009 refers to a ‘fear of serious violence’ as qualifying trigger and doesn’t say is it must be reasonable fear. However, in relation to the ‘things said or done’, the statute says they must constitute circumstances of an ‘extremely grave character’ which would suggest an unreasonable belief as to those circumstances would be insufficient.
3. Drunken mistake = unlikely.

Question 84

Mistake - mistakes of law

Answer 84

1. Mistakes of law which negate MR:
   - “Ignorantia juris neminem excusat.”
   - 2 exceptions to principle = i) defence if charged with offence created by a statutory instrument yet to be publicised, ii) person intends to do an act & seeks advice from a state agency as to whether their action is lawful and is wrongly told that it’s lawful.
2. Mistakes of law which don’t negate MR:
   - A mistake of law can provide a defence if it means D lacks MR of offence.
   - E.g. s. 2(1)(a) of Theft Act 1968 = person won’t be dishonest if they believe they have, in law, the right to take the property.