Criminal Defences + Attempts

Question 1

What is the legal definition of insanity?

Answer 1

a defendant is “not guilty by reason of insanity” if they have had a disease of the mind impair their ability to understand the nature actions (M’Naughten)

Question 2

What are the steps for insanity?

Answer 2

1 - the defendant must have been labouring under a “defect of reason” meaning they could not reason at the time of their offence

2 - the defect of reason must have come from a disease of the mind, defined as something ‘internal’

3 - the defect of reason must cause the defendant to not know the nature and quality of the act, or if they did, they did not know that their actions were wrong

4 - the special verdict (given if the defence succeeds)

Question 3

What are the relevant cases for step 1 of insanity?

Answer 3

Clarke - temporary absentmindedness does not count

Burgess - being asleep does count

Question 4

What are the relevant cases for step 2 of insanity?

Answer 4

Hennessey - failure to take medication counts if the defect of reasoning occurs from an internal disease or illness such as diabetes or schizophrenia
Burgess - sleepwalking = disease of the mind
Kemp - narrowing of arteries = disease of the mind
Sullivan - epilepsy = disease of the mind
Lipman - intoxication is not a disease of the mind
Lord Denning - “any mental disorder that seems to manifest violence and is prone to recur” is a disease of the mind

Question 5

What are the relevant cases for step 3 of insanity?

Answer 5

Sullivan - couldn’t know the nature of their act as the defendant was having an epileptic fit
Kemp - the defendant cannot know the nature of their act if they are unconscious
Windle - the defendant has no defence if they know their actions are illegal (“they will hang me for this”)

Question 6

What are the relevant cases for step 4 of insanity?

Answer 6

The 3 things the judge can impose are:

• hospital order (defendant requires medical help)
• supervision order (keep an eye on the defendant)
• absolute discharge (defendants actions are unlikely to be repeated)

Question 7

What is the legal definition for non-insane automatism?

Answer 7

When the defendants actions were caused by an inability to control themselves as a result of an external factor (Bratty)

Question 8

What are the steps for non-insane automatism?

Answer 8

1 - the defendant acted involuntarily as they had no control over their actions (AG Ref 1992)

2 - the defendants lack of control was caused by an external factor

3 - the external factor cannot be self induced (Bailey)

Question 9

What are the relevant cases for step 1 of non-insane automatism?

Answer 9

Lord Denning - defines an involuntary act as an act which is done by the muscles without any control by the mind such as a spasm, reflex or convulsion. Or an act done by a person who is not conscious of what they are doing
AG Ref 1994 - any person who is driving their car must have had ‘some control’

Question 10

What are the relevant cases for step 2 of non-insane automatism?

Answer 10

Hill v Baxter - swarm of bees = external factor

R v T - anything which causes trauma or stress count as an external factor

Question 11

What are the relevant cases for step 3 of non-insane automatism?

Answer 11

Lipman - taking LSD is a self induced factor
Hardie - taking drugs which have unpredicted side effects are not self induced factors
Majewski - becoming voluntarily intoxicated is a self induced factor
Bailey - self induced factors don’t count for crimes of basic intent, however self induced automatism can be used for crimes of specific intent

Question 12

What is the legal definition of intoxication?

Answer 12

when the defendant does not not have the mens rea for the relevant offence due to being intoxicated

Question 13

What are the steps for intoxication?

Answer 13

1 - is the defendant voluntarily intoxicated? If so they never have a defence for crimes of basic intent, but may have a defence for crimes of specific intent

Question 14

What are the maybe cases for intoxication?

Answer 14

Majewski - intoxication can never be used as a defence for crimes of basic intent if voluntarily intoxicated
O’Grady - doesn’t matter if the defendant became intoxicated hours before the offence occurs
Gallagher - “Dutch courage” = intoxication
Kingston - involuntary intoxication is irrelevant if the defendant intended to commit the offence regardless of whether they were intoxicated or not
Lipman - if a drug has an unpredictable side affect then it is involuntary intoxication
Allen - you are still voluntarily intoxicated even if the alcohol is stronger than you expected
Beard - crimes of specific intent will be reduced to their basic intent counterpart if the defence is successful

Question 15

What is the legal definition of self defence?

Answer 15

When the defendants actions were of necessary use regarding what they believe was required during the situation, thus not being liable for the crime resulting in a full acquittal

Question 16

What are the steps for self defence?

Answer 16

1 - did the defendant use force? if so was the use necessary? (Gladstone Williams)

2 - was it reasonable to use the force, and was the degree of force used reasonable? (CLA 1967)

Question 17

What are the relevant cases for step 1 of self defence?

Answer 17

Gladstone Williams - the defendant can rely on an ‘honest mistake’ for their need to use force
s76 CJIA 2008 - the mistake need not be reasonable, a genuine mistake will count
Lord Griffiths - defendant can take pre-emptive action
s76 CJIA 2008 - if the defendant could escape the situation, it will weaken their defence

Question 18

What are the relevant cases for step 2 of self defence?

Answer 18

s76 CJIA 2008 - the defendant cannot “weigh to a nicety” the amount of force used
Palmer - if the defendant uses force after the danger is over is not reasonable
Clegg - not reasonable to use force when the danger has “clearly passed” (shooting at a passed car)
Crime and courts act 2013 - if using force on a trespasser, the force must be “grossly disproportionate” rather than just “proportionate” to be unreasonable

Question 19

What is the legal definition of consent?

Answer 19

When there is no offence given that the victim has given permission for the offence to occur

Question 20

What are the steps for consent?

Answer 20

1 - is it possible to consent given the situation? The greater the harm done the less likely consent will occur

2 - was the consent given genuine?

Question 21

What are the relevant cases for step 1 of consent?

Answer 21

AG ref 1981 - s.47 can be consented to when it is in the public interest to do so such as in sporting events
Brown - cruel/degrading harm cannot be consented to
Emmet - cannot conflict s.47 or worse to your husband or wife
Barnes - can consent to “properly conducted games”
Children Act 2004 - smacking your children is legal unless it causes a bruise or a cut
Pretty - murder can never be consented to

Question 22

What are the relevant steps for section 2 of consent?

Answer 22

Wilson v Pringle - we consent to “ordinary jostling’s”
Tabassum - no real consent if examined by a fake doctor, dentist, etc
Richardson - can consent to a doctor, dentist etc even when they are suspended
Dica - cannot consent to receiving an STI
Oluboja - if the person is too afraid to refuse consent at the time it isn’t genuine consent
Jones - “rough horseplay” can be consented to
Burrell - age is relevant when considering if genuine consent has been given
Barnes - sportsmen do not give consent to harm which is “outside the parameters of the game” (Brexit tackle)

Question 23

What is the legal definition of duress by threats?

Answer 23

when the defendant commits offence against their will due to being threatened to do so, resulting in a full acquittal

Question 24

What are the steps for duress by threats ?

Answer 24

1 - the defendant must fear immediate serious physical injury or death (Graham)

2 - would a reasonable person also believe that there was a threat of serious physical injury or death?(Graham)

3 - would a reasonable person with the same characteristics as the defendant acted in the same way?

4 - the defendant must not have self induced the situation (Sharpe)

Question 25

What are the relevant cases for step 1 of duress by threats?

Answer 25

Hasan - the defendant must genuinely believe the threat and cannot use it as an excuse for their actions
R v Baker and Wilkins - psychological harm does not count as a threat of serious harm
Quayle - suffering pain does not count as being threatened with serious harm
Valderamma-Vega - threats to a family member count
Valderamma-Vega - threats to release personal info do not count, but make any other threats more serious
Hudson - if the threat looms over the defendant while committing the offence, then a future threat will count as ‘immediate’
Gill - the threat is not immediate if you can escape

Question 26

What are the relevant cases for step 2 of duress by threats?

Answer 26

Martin - additional relevant characteristics can be taken into account, such as a schizoid-affective state which makes the defendant more susceptible to threats

Question 27

What are the relevant cases for step 3 of duress by threats?

Answer 27

Bowen - age, gender, mental illness, etc can be taken into account. But things such as IQ or personality traits like being shy cannot be taken into account
R v Cole - the defendant must have done exactly as they were instructed when threatened
Gill - not reasonable if the defendant could escape
Hudson & Taylor - if the defendant could have gone to the police, but it was ‘reasonable’ for them not to, then their actions will be deemed reasonable

Question 28

What are the relevant cases for step 4 of duress by threats?

Answer 28

Sharp - if the defendant voluntarily puts themselves into a position where they may be threatened, then the situation counts as being ‘self induced’
Shepard - being apart of a gang which isn’t normally violent is not a self induced situation
Heath - becoming indebted to a drug dealer is self induced

Question 29

What is the legal definition for duress by circumstances/necessity?

Answer 29

when the defendant has only acted as a result of the situation they are in and not by choice. when dealing with murder, only necessity may be used (Re A) if the evil is directed towards the defendant or someone they are responsible for then duress by circumstances will be used, if the defendant is not responsible for whoever the evil is directed towards, necessity will be used

Question 30

What are the steps for duress by circumstances/necessity?

Answer 30

1 - did the defendant reasonably believe that serious harm or death would occur if the defendant didn’t commit a crime in that circumstance? (Graham)

2 - the crime committed must have “prevented a greater evil” (Re A)

3 - would a reasonable person sharing the defendants characteristics done the same? (Bowen)

Question 31

What are the relevant cases for step 1 of duress by circumstances/necessity?

Answer 31

Rodger & Rose - an internal situation will not qualify for the defendant being forced to commit a crime
Cairns - reasonable and genuine mistake regarding the reality of the threat is acceptable
R v Baker & Williams - if the situation involves psychological harm, then it is not ‘serious harm’
Quayle - taking action to avoid suffering pain does not count as being compelled to avoid ‘serious harm’
Valderamma-Vega - taking action to avoid harm to someone else counts
Valderamma-Vega - if the situation regards personal information being exposed, it does not count
Hudson - the defendant can believe that the harm will occur in the future as long as it looms over them
Gill - there is no need to commit a crime to avoid serious harm if the defendant could just escape

Question 32

What are the relevant cases for step 2 of duress by circumstances/necessity?

Answer 32

Re A - doctors could kill one conjoined twin to save one of them, otherwise they both would have died
Re F - doctors can sterilise a very disabled person

Question 33

What are the relevant cases for step 3 of duress by circumstances/necessity?

Answer 33

Bowen - age, gender, mental illness, etc can be taken into account. But things such as IQ or personality traits like being shy cannot be taken into account
Shayler - the reaction must be proportionate to the evil which the defendant is trying to avoid
Abdul - doesn’t matter if the defendant could not be immediately harmed, provided it was “hanging over them”

Question 34

What is the legal definition of attempts?

Answer 34

when the defendant has tried to carry out an offence, but has not managed it (s1(2) CAA 1981)

Question 35

What are the steps for attempts?

Answer 35

1 - the defendant must have taken more than “merely preparatory” steps, thus they have entered the implementation stage (Geddes)

2 - it doesn’t matter if the attempted crime is actually ‘impossible’ to carry out (s1(2) CAA 1981)

3 - the defendant must have the mens rea for the attempted offence in question (Easom)

Question 36

What are the relevant cases for step 1 of attempts?

Answer 36

Gullifer - the defendant must “embark on the crime proper” in order to enter the implementation stage
Geddes - the defendant cannot just be prepared, they must physically begin the offence
Campbell - being stopped before you begin the crime means you have not entered the implementation stage
AG Ref 1992 - the defendant does not need to “penetrate” when regarding rape cases

Question 37

What are the relevant cases for step 2 of attempts?

Answer 37

Shivpuri - the defendant believed they were transporting illegal drugs, they were not but it did not matter that carrying out the crime was ‘impossible’
Taaffe - if the defendant believes they are committing a crime which does not exist, they have not committed an offence or an attempt of an offence

Question 38

What are the relevant cases for step 3 of attempts?

Answer 38

Whybrow - if the defendant has attempted to kill someone, they must have an intention to kill. The principle outlined in Vickers is not applicable
Millard - the defendant must have direct intent for their offence, recklessness is not applicable