Criminal Law (defences)

Question 1

What are special defences?

Answer 1

These are certain defences which an accused is not allowed to state unless a written plea has been lodged seven days before the preliminary hearing

Question 2

What are the four generally accepted special defences

Answer 2

1.) Alibi
2.)Incrimination
3.) Mental disorder
4.) Self-defence

Question 3

What is the defence of Alibi?

Answer 3

At the time when the crime is alleged to be committed, the accused was not at the place libelled

Question 4

What must the special defence of Alibi specify?

Answer 4

it must be clear as to the whereabouts of the accused and the time

Question 5

What is incrimination?

Answer 5

The defence of incrimination is that the crime was not committed by the accused, but by another person

Question 6

What must the crime of incrimination specify?

Answer 6

it must specify who the other person is

Question 7

What is the definition of mental disorder?

Answer 7

Mental disorder per section 328 Mental Health (Care and Treatment) (Scotland) Act 2003 is
(a) Mental illness
(b) personality disorder
(c)learning disability
however caused or manifested

Question 8

What is the effect of the special defence of mental disorder?

Answer 8

the effect of this defence is that, even if the accused did not commit the crime, their mental disorder relieves them of responsibility of their actions
-This means they cannot be convicted

Question 9

What is the effects of the actus reus and mens rea of the special defence of mental disorder?

Answer 9

Actus Reus is admitted
Mens Rea denied

Question 10

What does mental disorder not cover?

Answer 10

irresistible impulses- an inability ‘to control’ conduct is insufficient
-Voluntary intoxication- e.g. Drink or drugs

Question 11

How can a person be acquitted of an offence because of mental disorder?

Answer 11

If the person was at the time of the conduct unable by reason of mental disorder to appreciate the nature and wrongfulness of the conduct

Question 12

What are the two elements of the statutory test for mental disorder?

Answer 12

the presence of a mental disorder on the part of the accused at the time of the conduct constituting the offence

-The mental disorder should have a specific effect

Question 13

For Automatism what are the four conditions that have to be met?

Answer 13

1.) Behaviour caused by an external factor
2.) External factor must not be self-induced
3.) Actions must be one which the accused was not bound to foresee
4.) It must have resulted in a total alienation of reason amounting to a complete absence of self-control

Question 14

How does the case of Sorley v HM Advocate, 1992 S.L.T.867 show an absence of mens rea must be established?

Answer 14

-Strict limits of the defence did not apply
-No evidence led that the accused lacked the mens rea to commit the offences due to the substances added to the drink
-No clear evidence to provide and support the necessary casual link

Question 15

does alienation as a reason amount to a defence of mental disorder?

Answer 15

No the defence is not available to a person who knows what they are doing

Question 16

What is an example of a case of not a reason for a total alienation?

Answer 16

Cardle v Mulrainey, 1992 S.L.T. 1152

-Accused was aware of his actions through impaired drugs

Question 17

Examples of external factors which was not self-induced?

Answer 17

-Something inhaled, consumed or ingested involuntarily
-A spiked drink (Involuntary intoxication)
-Toxic Fumes

Question 18

For anything that is not self-induced what must be established?

Answer 18

concussion from blows but must be recent to establish a causal link

Question 19

With the Finegan v Heywood, 2000 J.C. 38 case why did he have no defence for his sleepwalking?

Answer 19

-This is because the accused’s sleepwalking was caused by drinking, which the accused knew the effect of drinking

Question 20

Why was the accused in the Macleod v Mathieson, 1993 S.C.C.R. 488 case defence not allowed for Hypoglycaemia?

Answer 20

-Accused charged with careless driving
-The accused was diabetic and had suffered a hypoglycaemic attack just before the accident which killed another motorist
-The accused knew of his condition and was aware of potential for such attacks
-It would have been different if condition was undiagnosed

Question 21

For a defence of Automatism what are the four conditions?

Answer 21

1.) Must be a total alienation of reason
2.) Disturbed state of mind must be caused by an external factor
3.) Must not be not self induced
4.) Condition must not be foreseeable