d- intro to general defences

Question 1

Duress

Answer 1

When the d is put into a situation where they are forced to commit a crime due to fear.

Question 2

Duress by threat

Answer 2

Threat of serious death or serious injury. Defence is not allowed if the threat is less then this, or if was psychological harm. Has been allowed for threat of rape. D must have committed crime to avoid death or serious injury. Threat need not be the only factor that forces the d to commit the crime.

Question 3

R v Valderrama Vega (1985)- import drugs, threat, mafia, financial pressure, homosexuality

Answer 3

D was charged with illegally importing drugs. His defence was that he, his wife and his familt had been threatened with death or serious injury by a ‘mafia type’ organisation who were involved in drug smuggling. D had also committed crime while under financial pressures and because there was a threat to disclose his homosexuality. Convicted as trial judge thought the threat of death or serious injury be the sole cause for him committing the offence. CoA decide that the conviction was safe but the judges direction was incorrect. Fear of death or serious injury need not be only factor causing the d to commit the crime.

Question 4

Establishing duress by threats

Answer 4

2 stage test developed in R v Graham (1982), d must reasonably believe and have good cause to fear the threat and a sober person of reasonable firmness sharing the d characteristics would have acted in the same way. First stage is a subjective test, but the requirement of a ‘reasonable belief’ suggests that an ordinary person would believed and feared threat. Second stage is objective, reasonable person can be attributed to characteristics (age, sex, pregnancy, physical disability, mental illness or psychiatric disorder).

Question 5

Self-induced duress

Answer 5

Where the d acts in a way that could place them under duress. If they know the risk of this, they cannot use the defence.

Question 6

R v Abdul-Hussain (1999)- fled, hijack plane, execution

Answer 6

D had fled from Iraq to Sudan as they were at risk of being punished or executed because of their religious beliefs. Fearing being sent back to Iraq, they hijacked a plane, which landed at Stansted airport. The d released the hostages and surrendered. Pleaded duress of circumstances but trial judge decided that danger was not sufficiently ‘close and immediate’. They were convicted and appealed. CoA quashed their conviction. Threat need not to be immediate but must be imminent peril of death or serious injury/

Question 7

Duress of circumstances

Answer 7

First recognised in R v Willer (1986). For it to be pleaded successfully, d must have been in situation where they fear death or serious injury and in which the circumstance, as they perceived, left no option but to commit a crime.

Question 8

R v Willer (1986)- drive, narrow lane, gang

Answer 8

D was driving down a narrow lane when his car was surrounded by a gang of youths who threatened he d and his passenger. He drove over a pavement to escape from the gang. D was convicted of reckless diving but his conviction was quashed and CoA created duress of circumstances. D must show they acted in the way they did; perceived a threat of death or serious injury.

Question 9

R v Hasan (2015) stated duress of circumstances needed

Answer 9

The threat, or circumstances which caused the d to fear death or serious injury (subjective)
Threat must be directed against themselves, member of immediate family, someone close to them or a person who relied on the d as responsible for safety
Jury must consider the reasonableness of the d perceptions and conduct (objective)
Defence is only available where the criminal conduct that it seeks to excuse has been directly caused by threats that are relied on
No evasive action that d could reasonably take
D may not rely on duress if they have voluntarily laid themselves upon

Not available for murder

Question 10

R v Gotts (1992)- father, threat, stab mother

Answer 10

D was 16 and parents had separated. Father of the boy threatened him with violence unless he stabbed his mother. Boy agreed and attacked the mother but didn’t kill her. He was convicted of attempted murder. Defence of duress is not available for murder/attempted murder.

Question 11

Intoxication- public policy surrounding availability of defence

Answer 11

Aimed at protecting public from those who from reason of intoxication, pose a threat of danger. Policy arguments reject intoxication being a factor to be considered in criminal cases. An intoxicated d should not be treated more favourably then a sober one. Criminal liability requires actus reus and mens rea; intoxication has an effect on d state of mind. Aim to balance public policy considerations against legitimate defence argument. Setting restrictions on when intoxication can be taken into account.

Question 12

R v Lipman (1970)- LSD, snake, strangle

Answer 12

D and his gf has been taking LSD, a drug that can cause hallucinations. D believed he was at the centre of the earth and was being attacked by snakes. When he awoke, his gf was dead. He had strangled and suffocated her by pushing bed sheets down her throat. D was convicted of manslaughter, he did not have intention required for murder. Appealed and conviction was upheld. Voluntary intoxication is classed as reckless behaviour, therefore he appropriate mens rea for manslaughter.

Question 13

2 key questions for court regarding intoxication

Answer 13

Did the d become intoxicated voluntarily or involuntarily? Is the offence one of basic or specific intent?

Question 14

Difference between voluntary and involuntary intoxication

Answer 14

Voluntary intoxication is where the d chooses to take intoxicating substances. Involuntary is where the d does not know they are taking an intoxicating substance, where soft drinks have been ‘spiked’ or if person takes illegal drugs thinking it was aspirin. Courts will asses whether the d had the necessary mens rea when the crime was committed. If they did, intoxication would make no difference. If was incapable of forming mens rea, they cannot be guilty of basic or specific intent crime.

Question 15

DDP v Majewski (1977)- assault occasioning actual bodily harm, policeman, intoxication

Answer 15

D was charged with an offence of s47 assault occasioning actual bodily harm (a basic intent crime) against a policeman after becoming voluntarily intoxicated by a large quantity of drugs and alcohol. Trial judge refused to allow evidence of intoxication and the d was convicted. HoL dismissed his appeal. Voluntary intoxication may be used as a ‘defence’ in specific intent crimes, no basic.

Question 16

Specific intent crime

Answer 16

Require a mens rea higher then recklessness.
Examples:
-murder
-theft
-robbery
-handling stolen goods
-s18 wounding or causing gbh with intent
-attempts to commit any of these
-arson/criminal damage with intent
If there is no lesser charge, d will be acquitted for lack of mens rea. D is charged and will be reduced to lesser charge (murder to manslaughter).

Question 17

Basic intent crime

Answer 17

These require recklessness or negligence mens rea.
Examples:
-manslaughter
-s20 malicious wounding
-arson/criminal damage reckless
-rape
-s47 assault occasioning ABH
-assault and battery

Question 18

Voluntary intoxication and basic intent

Answer 18

Voluntary intoxication: conduct is reckless, therefore they have required mens rea for basic intent crimes.

Question 19

Self-defence

Answer 19

D is allowed to use force that will negate the actus reus of a crime. If done to protect themselves, another or property.

Question 20

Difference between self-defence at common law and statutory defence

Answer 20

Self defence is a common law defence. There is a separate statutory defence contained in s3 of the Criminal Law Act 1967, which allows d to use force to prevent the commission of ‘any offence’ (violent and non-violent offences and offences against property). Statutory defence is wider then common law defence, requires an actual crime to be committed. Common law defence is limited to using reasonable force against only violent assaults. 2 key questions for jury:
1) given circumstances, was force necessary?
2) was amount of force used reasonable?

Question 21

Self-defence- was the force necessary?

Answer 21

D is judged subjectively based on whether they had an honest belief, in view of the facts, that force is necessary. If this view of facts is mistaken the defence is still available if force used is objectively reasonable in light of d belief.

Question 22

R v Williams (Glastone) (1987)- v saw mugging, intervened, d came to aid of youth

Answer 22

Victim saw a mugging when a youth was stealing a womans handbag. He intervened and chased youth. While restraining the youth, the d came to aid of the youth who he thought was being attacked. D struck the victim and was charged with assault occasioning actual bodily harm. D was convicted and appealed as the judge had stated that his mistake of the facts had to be reasonable. His conviction was quashed. D must be judged on their own perception of facts even if their view is mistaken.

Question 23

R v Beckford (1988) and fearing an imminent attack

Answer 23

If D fears an imminent attack, then reasonable force can be used. Lord Griffith stated in case of R v Beckford (1988), that a ‘man about to be attacked does not have to wait for assailant to strike the first blow or fire the first show, circumstances may justify a pre-emptive strike’.

Question 24

Self-defence- start argument

Answer 24

Where the d started the argument, but the tables turned and the victim used a disproportionate amount of force to that used by the d, self-defence will be available as the positions of the 2 are reversed and the d becomes the victim.

Question 25

Self-defence- was the amount of force used reasonable?

Answer 25

Excluding householder cases, degree of force will not be reasonable if it was disproportionate in the circumstances. Here the jury take into account, size, strength and skill of parties.

Question 26

Criminal Justice and Immigration Act 2008

Answer 26

Give more legal protection to the householder (person who owns house/possession/ control of it). In householder cases, force used does not have to be proportionate to circumstances in which the householder believed it to be. Householder has to be protecting themselves or another and not simply defending property. Force used should not be ‘grossly disproportionate’

Question 27

R v Martin (2002)- poor state farm, break-ins, shot towards disturbance

Answer 27

Martin lived in remote farm called Bleak House. Farm buildings were in a poor state and farm looked as if it were derelict. It had been a target for numerous break-ins. On one occasion, 2 males aged 16 and 30 broke into the farmhouse. Martin took a shotgun and fired the gun indiscriminately towards the disturbance. 2 intruders were shot and the 16 year old died. Martin was charged with murder and pleaded self-defence. He was convicted and appealed on the grounds that his personality disorder had affected his perception of the circumstances and that this should have been put to jury. CoA ruled that the jury could not take into account a psychiatric condition for self-defence (to determine Martin’s perception of degree of danger) but quashed his conviction based on dr. If d perceived degree of danger as being far greater than would be perceived by a reasonable person, d mistake should be ignored.

Question 28

Insanity

Answer 28

Insanity was popular defence before abolition of death penalty. A d could plead legal insanity as being locked up in mental institution indefinitely was preferred to being hanged.

Question 29

Def of insanity

Answer 29

Diff to everyday def and medication def. Proved by M’Naghten Rules (1843) following case of Daniel M’Naughten. If d wishes to rely on defence, it must be proved that they laboured under a defect of reason caused by a disease of the mind, that they did not know the nature and quality of their act or they did not know what they were doing was wrong.

Question 30

Daniel M’Naghten

Answer 30

Tried to kill Sir Robert Peel (the Prime Minister), but by mistake, killed his secretary. The plea of insanity was successful.

Question 31

Insanity- a defect of reason

Answer 31

Must impair the d power of reasoning and absent-mindfulness or confusion is insufficient to show defect of reason.

Question 32

Inanity- disease of the mind

Answer 32

Question of law to be determined by the judge. Condition must cause a malfunctioning of the mind and it is not relevant whether the condition is physical or mental in origin, or curable or temp.

Question 33

R v Kemp (1956)- hardening arteries, loss of consciousness, hammer

Answer 33

D, who was a devoted husband, suffered from a condition known as hardening of the arteries, which caused him to suffer temp loss of consciousness when his supply of blood to the brain was affected by his condition. He violently attacked his wife with a hammer in one of these moments, causing serious injury. He was charged with inflicting gbh. At his trial, the d said he was suffering from ‘a defect of reason’ but not as a result of a disease of the mind as he was suffering from a physical condition. He was found not guilty by reason of insanity. He appealed and CoA upheld decision. Disease of mind is question of law for trial judge to decide.

Question 34

Insanity conditions

Answer 34

Epilepsy, diabetes, brain tumour, manic depression, schizophrenia and sleepwalking.

Question 35

R v Burgess (1991)- sleep disorder, bottle, video recorder

Answer 35

D had been watched tv and asserted that he had attacked his gf while alseep. He smashed a bottle over her head and struck her with a video recorder. Jury accepted medical evidence of a sleep disorder and returned with a verdict of not guilty by reason of insanity. CoA upheld decision. Condition caused by an internal factor will constitute a disease of the mind bringing d within scope of defence.

Question 36

Insanity- not knowing nature and quality of act

Answer 36

Point is difficult to establish, means d must not have known what they were physically doing and what the physical consequences of their actions would be. D may be in this state bc of unconsciousness (and impaired) and a mental condition which causes them to not know or understand what they are doing even when conscious.

Question 37

Insanity- not knowing what they were doing was wrong

Answer 37

Failure to understand what they were doing was legally wrong. Shown in R v Windle (1952)/

Question 38

R v Windle (1952)- aspirin, mental illness, ‘suppose ill hang’

Answer 38

D wife was suicidal and he gave her a fatal dose of aspirin. Although he was suffering from a mental illness, defence of insanity was not available because when he was arrested, he said ‘I suppose I’ll hang for this’; he was aware that his actions were legally wrong and convicted of murder.

Question 39

Insanity- unfitness to plead

Answer 39

D must be capable of understanding criminal proceedings, instructing a legal representative, challenging a juror and understanding evidence. Jury decides whether d is fit to plead. Defence, jury or prosecution may raise the issue. If judge decides d is fit to plead, trial proceeds. If judge decides d is unfit to plead: court carries out ‘trial of the facts’ to decide whether the d carried out actus reus of offence. Jury do not consider mens rea. Options open will be same as verdict of not guilty by reason of insanity. If jury decides they are not responsible for actus reus, they will be acquitted.

Question 40

Special verdict insanity

Answer 40

Judge has 3 options decided in Criminal Procedure Act 1991. Judge may impose hospital order (w/wo restrictions as to release), judge can impose supervision order and judge can release d with absolute charge. For murder judge must impose an indefinite hospital order and d will be released when Home Secretary agrees.

Question 41

Automatism

Answer 41

Bratty v Attorney General of Northern Ireland (1963), Lord Denning defined automatism as an act which is done by muscles without any control by the mind. Spasm, reflex action or convulsion. Or an act done where they are not conscious of what they are doing.

Question 42

Sane/ insane automatism

Answer 42

Sane automatims- acquitted. Insane automatism- special verdict of not guilty by reason of insanity will apply. Test of internal and external factors. A condition caused by an external factors= sane automatism, if condition is not self-induced, special verdict. Condition caused by an internal factor (disease of mind), may give rise to defence of insanity or insane automatism. Defence of sane automatism taken from diabetics and epileptics. On a finding of insanity, they would be subject to some sort of court order.

Question 43

Two things needed for a defence of sane automatism

Answer 43

Total loss of voluntary control and to be caused by an external factor.

Question 44

Sane automatism- total loss of voluntary control

Answer 44

Even though d committed actus reus, their actions were involuntary and as a result could not have required mens rea. If d retained partial or impaired control over their actions, defence will fail.

Question 45

Attorney Generals Reference (No 2 of 1992) (1993)- lorry driver, hard shoulder

Answer 45

D was a lorry driver, travelling on the motorway, He had driven on the hard shouldeer for about half a mile before crashing into a broken down car that had stopped there. 2 people were killed and the lorry driver was charged. He raised the defence of sane automatism due to driving for too long on a flat and straight road and argued repetitive visual stimulus had caused him to ‘drive without awareness’. Jury acquitted d. Attorney Genera referred a point of law to CoA that defence of sane automatism should not have been put to the jury as the driver retained some control of his actions. Partial or impaired loss of control is insufficient for defence.

Question 46

Sane automatism- caused by an external factor

Answer 46

R v Quick (1973) court explained that would not constitute a disease of the mind. Malfunctioning of mind of transitory effect caused by application to the body of some external factor such as violence, drugs, including anaesthetics, alcohol and hypnotic influences cannot fairly be said due to disease.

Question 47

R v Quick (1973)- nurse, disabled, broken nose, insulin

Answer 47

Nurse caring for a disabled patient, while on duty, nurse attacked patient who suffered a broken nose, bruising and black eyes. Nurse was charged with assault occasioning actual bodily harm but raised defence of sane automatism, stating he had no control over his actions as he was in a hypoglycaemic state as a result of too much insulin. Trial judge claimed insanity, so d withdrew defence and changed plea to guilty. CoA quashed his conviction as his loss of control was caused by the insulin and not by the diabetes.

Question 48

External factors

Answer 48

Blow to the head, injecting insulin, sneezing and being attacked by a swarm of bees.

Question 49

Self-induced automatism

Answer 49

When d does something or fails to do something that they know will lead to an automatic state. Such as drinking with prescribed medication against medical advice. Courts use same distinction as intoxication-specific and basic intent crimes.