Week 9: Defences Flashcards
What is the minimum age of criminal responsibility?
12 years old
ignpratia iuris neminem excusat
Error of law
- Owens v HMA 1946 JC 119; 1946 SLT 227
Error must be genuine and reasonable and affect mens rae.
- Thought the victim had a knife
- Made an error as to self-defence
- Thought the victim was attacking the accused
- Thought the victim had a knife
- Appeal court highlighted that it must be shown that they genuinely thought it was self-defence
Unfitness for trial: Beyond a reasonable doubt or on the balance of probabilities?
Balance of probabilities.
What are the five considerations when determining whether a person is unfit for trial?
- Understand the nature of the charge
- Understand the requirement to tender a plea to the charge and the effect of such a plea
- Understand the purpose of, and follow the course of, the trial
- Understand the evidence that may be given against the person
- Instruct and otherwise communicate with the persons legal representative, and
- Any other factor which the court considers relevant
Under what circumstances will the court not find someone unfit for trial.
If they cannot remember aspects of the incident.
What is the condition for not guilty by reason of mental disorder.
Unable to appreciate the nature of their actions.
What is the exception to the general rule regarding mental disorders?
The rule does not apply to those with personality disorders.
What type of defence is mental disorder?
A special defence.
What is the distinction between a complete defence and a special defence?
Complete defence: Entirely absolves the accused
Special defence: Can only be presented by defendant counsel, and only partially reduces sentence.
Does mental disorder apply to drugs/alcohol?
No.
What charge is given to those who were originally charged with murder, but are proven on a balance of probabilities to have a mental disorder?
Culpable homicide.
While intoxication doesn’t apply as a mental disorder, what also should be noted?
Intoxication may be part of a larger mental impairment i.e. alcoholism.
- Brennan v HMA 1977 JC 38
- Voluntary intoxication is no defence
- Charged with murder of his father by stabbing him repeatedly
- Consumed 20-25 pints of beer
- Glass of sherry
- LSD
- Argued about the aesthetic merits of Dark-side of the Moon.
- Accused tried to argue that the quantity of the alcohol should constitute insanity
- Indeed, the forensic evidence suggested that the quantity was a lethal dosage of alcohol.
- No defence for voluntarily intoxication
- ‘Wickedly reckless’ – HMA v Purcell
- National issue with alcohol if a factor for decision arguably
- Not a complete defence: Plea in mitigation
What is meant by automatism?
Not 100% conscience.
e.g. blow to the head, sleepwalking, involuntarily intoxicated (fumes, alcohol, drugs).
- Ross v HMA 1991 JC 210:
Defence recognised
* Attacked 9 people at a party with a knife
* Spiked with LSD
* Appeal court changed the law, making it clear you could have a complete defence if the circumstances some conditions
* Made clear, you must show several things
What are the four conditions attached to automatism?
- The accused was in a state of automatism
- This had been caused by an external factor
- That factor was not reasonably foreseeable, nor self-induced
- The condition was unlikely to recur
What is the English equivalent to coercion?
Duress.
*44. Thomson v HMA 1983 JC 69:
Leading case on coercion
* Accused convicted of armed robbery
* Drove the van in a case of armed robbery
* Coerced
* Threatened with a gun and injured his hand to emphasise their seriousness
* Found guilty
* Appeal court said that the judge gave the correct direction to the jury.
* Those being Hume’s 4 criteria to coercion, see below.
Coercion: Hume’s 4 criteria
- There must be an immediate danger of death or great bodily harm
- Two women committed perjury, went to the judge and said that they only done so following a kidnapping.
- Whereas in England this was accepted, however in Scotland as is it wasn’t an immediate threat. Postponed threats too do not apply.
- There must be an inability to resist violence
- The accused must play backward and an inferior part in the perpetration of the crime.
- The accused must make disclosure of the facts and restitution of the spoils on the first safe and convenient occasion.
Does coercion apply to atrocious crimes?
No. *
- R v Dudley and Stephens (1884) 14 QBD 273:
- There is no unqualified necessity to take another’s life
- On a boat
- Killed a 17-year-old boy cabin boy
- Low sentence
- Moss v Howdle 1997 SCCR 215
Danger of death or great bodily harm
* Speeding on a motor way
* When prosecuted pleaded necessity
* Said passenger was having a heart attack
* Passenger was in fact having a foot cramp
* Court declared with wasn’t necessity
* Threat to bodily injury
* If the passenger was having a heart attack, it would pass for necessity
* If there is a third alternative, you have to take it
- HMA v Anderson (2006, unreported)
Necessity on a murder case
* Running a person
* Accused sitting in driver seat
* Son also in the car
* Two being attacked by a group of youths
* Killed one of the youths
* Had to drive in a certain direction
* Youth was not attacking the car at the point in question
* Lord Carloway allowed the case to go to a jury
Is self-defence a complete offence?
Yes.
- HMA v Doherty 1954 JC 169:
Two major limitations
1. Imminent danger to the life or limb of the accused
2. Retaliation must be necessary for his own safety
- Doherty charged with voluntary culpable homicide
- Stabbed the victim in the eye with a bayonette
- Retaliation must be proportional
- Fenning v HMA 1985 JC 76
No cruel excess of violence
* Stuck victim with an air-rifle on the head
* Accused and victim were friends
* No doubt as to indident
* Why did he do it?
* Statement: Told the accused he knew of his affair with his wife; he would get his wife and he would do him as well
* Was it necessary, or too far
* He could not have used a ‘cruel excess of violence’
- Thomson v HMA 1986 SLT 281
Immediate retaliation
* Lost their self control
It takes a trumedous amount of provocation to palliate stabbing a man to death. Words, however abusive or insulting, are of no avail. A blow with the fist is no justification for the use of a lethal weapon. Provocation, in short, must bear a reasonable retaliation to the resentment when it exites.
Provocation
What does provocation exclude?
- Provocation from verbal abuse
- Cumulative provocation
What is the exception to the rule that cumulative provocation doesn’t apply?
Domestic violence.
