Defences

Question 1

Capacity defences

Answer 1

To deny the mens rea entirely, essentially claiming that d was not morally in control of his actions.
- insanity
- automatism
- intoxication

Question 2

Necessity defences

Answer 2

D argues that it was necessary for them to commit that crime.
- self defence
- duress

Question 3

Capacity defence - insanity

Answer 3

Most defences will lead to d being fully acquitted - not insanity.
Insanity can lead to a hospital order, a supervision order, or acquittal, but always end in d being guilty by reason of insanity.

Question 4

Insanity - case

Answer 4

M’Naughten - extreme paranoia, acquitted of murder
He was labouring under such a defect of reason caused by a disease of the mind, as to not know the nature and quality of the act he was doing, or if he did know it, that it was wrong.

Question 5

The main rule of insanity

Answer 5

‘In that in all cases every man is presumed to be sane and to process a sufficient degree of reason to be responsible for his crimes’ unless D must prove that at the time of the act they had:
1) defect of reason
2) disease of the mind
3) not knowing the nature and quality of the act or not knowing it was wrong.

Question 6

1) defect of reason

Answer 6

Point of law: the defect in reason must be more than absent mindedness or confusion.

Question 7

Defect of reason - case

Answer 7

Clarke - quashed defence, used absent mindedness as defence

Question 8

2) disease of the mind

Answer 8

Defect of reason must be due to a disease of the mind (legal term not medical). The disease can be mental or physical which affects the mind (not brain).

Question 9

Disease of the mind - cases

Answer 9

Kemp - hardening of arteries caused a problem with the supply of blood to the brain, defence upheld.
Sullivan - Eplilepsy falls under the insanity defence, physical disease led to a disease of the mind.

Question 10

Organic insanity

Answer 10

When the brain has been damaged by the physical cause - eg: epilepsy, degenerative diseases.

Question 11

Functional insanity

Answer 11

When there is no organic reason for the damage to the brain (sleepwalking can full under this category).

Question 12

Organic vs. Functional insanity - cases

Answer 12

Burgess - functional, disease can be any prt of the body provided it has an effect on the mind. D was sleepwalking.
Hennessy - Organic, diabetes was affecting his mind, and so comes whithin the defenition of insanity, the sugar levels affected his mind.
Quick - Defence of insanity wasn’t allowed, not eating caused d to attack not the disease, it was an external matter.

Question 13

Point of law for insanity

Answer 13

If d has not taken any drugs and it is the disease causing the problem, then it is an internal cause.

Question 14

Voluntary intoxication and insanity

Answer 14

Where d voluntarily takes an intoxicating substance and this causes a temporary psychotic episode, d cannot use the the defence of insanity as an intoxicating substance is an external factor.

Question 15

Voluntary intoxication and insanity - case

Answer 15

Coley - d smoked cannabis, attacked v - no defence of insanity.

Question 16

Nature and Quality of insanity

Answer 16

This refers to the physical character of the act. There are 2 ways in which d may not know the nature and quality of their act:
- d was in a state of unconcoiusness or impared unconciousness (Kemp),
- d was concious but but due to mental condition, did not understand or know what they were doing wrong.
If either apply to d at the time of the act, then that satisfies the part of the M’Naughten rules.

Question 17

Nature and Quality of insanity - case

Answer 17

Windle - d said ‘they will hang me for this’, knew act was wrong, cannot use defence of insanity.

Question 18

Automatism

Answer 18

A capacity defence.

Question 19

Non-Insane Automatism

Answer 19

Complete defence. If d is sucessful in using the defence, they are fully acquitted.

Question 20

Non-Insane Automatism - Case and Defenition

Answer 20

Bratty v Attorney General for Northern Ireland - non-insane automatism is an ‘act done by muscles without any control by the mind… or an act done by a person who is not concious of what they are doing’.
As well as having no mens rea, there is no voluntary actus reus.

Question 21

Causes of automatism

Answer 21

Must generally have to be external to d:
- Blow to the head
- Attack by a swarm of bees
- Sneezing fit
- Being hypnotised
- Effect of a drug, however this may raise issues of self-induced automatism

Question 22

Causes of automatism - cases

Answer 22

Hill v Baxter - Swarm of bees.
R v T - d had a ‘dream like state’ from PTSD, still convicted.

Question 23

Exceptional stress

Answer 23

It was accepted that exceptional stress can be an external factor which may cause automatism.

Question 24

Failed automatism - case

Answer 24

Attorney General’s Refrence 1993 - d claimed condition of driving without awareness, no defence as d was still aware enough to drive.
There has to be a total loss of voluntary control.

Question 25

Self-induced automatism

Answer 25

When d knows their conduct is likely to bring on an automatic state. How the defence works is based on if the offence comitted was specific or basic intent. Eg: a diabetic not taking insulin, someone on antibiotics drinking alcohol.

Question 26

Specific intent offences

Answer 26

S.18 GBH and murder, can only be committed if d intends to do the offence.

Question 27

Basic intent offences

Answer 27

S.20 GBH and below, usually requires recklessness as minimum MR.

Question 28

Self-induced automatism - point of law

Answer 28

1) if d has became intoxicated voluntarily, intoxication rules will apply and the defence of intoxication (mainly for basic intent offences). 2) if d has taken something and it had a different/unexpected affect on d, automatism can be a defence for both speicific and basic intent offences.

Question 29

Self-induced automatism - cases

Answer 29

Bailey - the judge stated automatism can be used for specific intent offences where d was self induced. Hardie - d took drugs to calm down, had different and unexpected effect than intended.

Question 30

Specific and basic intent - automatism defence

Answer 30

Specific intent: d must have had intention to committ that crime. Basic intent: where the self induced automatic state is caused through drink/illegal substances, d cannot use the defence of automatism.

Question 31

Specific and basic intent - cases

Answer 31

Quick - the crime requires recklessness as minimum MR for basic intent offences. DPP v Majewski - becoming involuntarily intoxicated is a reckless form of action.

Question 32

Defence of Intoxication - steps

Answer 32

1) Is intoxication voluntary or involuntary? 2) Is the offence basic or specific intent?

Question 33

Voluntary intoxication and Specific intent offences

Answer 33

If d became intoxicated voluntarily and is so intoxicated that there's no MR, d is not guilty (charges lowered). If there is MR, d is guilty.

Question 34

Voluntary intoxication and Specific intent offences - case

Answer 34

Sheehan and Moore - murder lowered to manslaughter as there was no MR and both ds were drunk.

Question 35

Voluntary intoxication charged with both specific and basic intent offences

Answer 35

If d voluntarily became intoxicated and is charged with a specific and basic intent offence, if d can prove there was no MR, then d can be acquitted of the specific intent crime, but still guilty of the basic intent crime. This is because recklessness is part of basic intent offences and voluntary intoxication is considered reckless behaviour.

Question 36

Voluntary intoxication charged with both specific and basic intent offences - case

Answer 36

Lipman - Charged with murder and manslaughter, was acquitted of murder, guilty of manslaughter.

Question 37

Voluntary intoxication and basic intent

Answer 37

Where the offence is one of basic intent, then intoxication is not a defence. Voluntarily becoming intoxicated is recklessness, which is enough to constitue the MR for a basic intent offence.

Question 38

Voluntary intoxication and basic intent - case

Answer 38

DDP v Majewski - d committed several basic intent offences whilst drunk, couldn't use defence of intoxication.

Question 39

Involuntary intoxication

Answer 39

Where d injested spiked/laced food or drink with alcohol or drugs, or prescribed medication had a different effect than expected. If there is no MR, d will not be guilty of either specific or basic intent offences. If the prosecution can prove there was MR, d is still guilty of the offence.

Question 40

Involuntary intoxication - cases

Answer 40

Hardie - If there is no MR, d will not be guilty of either specific or basic intent offences. Kingston - d was drugged but still had MR formed before being involuntarily intoxicated (peadophilic tendencies).

Question 41

Self-defence - Necessity defence

Answer 41

A complete defence in criminal law, d will be found not guilty if sucessful. Covers not only the actions needed to defend oneself from an attack, but also actions taken to defend another person or one's property.

Question 42

1) Self Defence

Answer 42

This is a common law defence which also includes defence of another person and defence of property as ammended by the Criminal Justice and Immigration Act 2008, and codified by s.76 in the Criminal Justice and Immigration Act for clarification.

Question 43

2) Defence of property

Answer 43

This area is regulated partly by the common law defence of self-defence, as ammended by the Criminal Justice and Immigration Act 2008, where ther eis a belief that property was in immediate need of protection.

Question 44

3) Prevention of crime

Answer 44

This is a public or statutory defence covered by the Criminal Law Act 1967, which states in s.3(1) that a person can use reasonable force in the circumstances to assist lawful arrest of offenders, suspected offenders or persons unlawfully at large.

Question 45

2 considerations

Answer 45

1) Was force necessary? 2) Was the force reasonable in these circumstances? Both tests must be passed or else d will not be able to use the defence.

Question 46

1) Was force necessary?

Answer 46

D will be judged in the circumstances as they honestly believed them to be (subjective test), therefore the surrounding circumstances must be considered. There is no duty to retreat when a person is acting for a legitament purpose, but the possibility that the person could have retreated can be considered a relevant factor.

Question 47

Was force necessary? - cases

Answer 47

Gladstone Williams - d should be judged according to his genuine mistaken view of the facts, regardless of whether this mistake was reasonable or unreasonable. Beckford - The test to be applied for self-defence is that a person may use such force as is reasonable in the circumstances as he honestly believed them to be. Bird - pre-emptive strikes; d does not need to wait to be attacked before defending themselves. Seun Oye - where d has delusions, their mental illness is not to be taken in account.

Question 48

2) Was the force reasonable in these circumstances?

Answer 48

2 factors must be considered: - the threat of harm - the urgency of the situation If appropiate, a lower degree of force is expected if d is protecting property rather than people.

Question 49

A reasonable degree of force

Answer 49

Found in s.76(3) of the Criminal Justice and Immigration Act 2008 - the question whether the degree of force used by d was reasonable in the circumstances is to be decided by reference to the circumstances as d believed them to be.

Question 50

A reasonable degree of force - case

Answer 50

Clegg - fatal shot was after danger had passed, not appropiate for d to feel the need to use force, excessive force, no defence.

Question 51

Urgency of the situation

Answer 51

S.76(7) of the Criminal Justice and Immigration Act states that a person acting for a legitimate purpose may not be able to weigh the nicities of the exact same measure of any necessary action - if d acted in the heat of the moment and used force he did/didn't honestly think was required.

Question 52

Urgency of the situation - case

Answer 52

Martin (Anthony) - evidence showed d shot the victims as they were leaving, excessive force, no defence.

Question 53

Mistaken self-defence

Answer 53

D will be judged on the facts as he believed them - but if d was drunk when he made this mistake, there is no defence.

Question 54

Mistaken self-defence - case

Answer 54

Williams Gladstone

Question 55

Householder cases

Answer 55

Since s.43 Crime and Courts Act 2013, the amount of force a householder can use on a bulgar has changed. A higher level of force will be considered reasonable when defending yourself, but not grossly disproportionate.

Question 56

Householder cases - case

Answer 56

R v Ray

Question 57

Necessity defence: Duress

Answer 57

The defence of duress is available where the defendant was forced to commit a crime.

Question 58

Duress exemptions

Answer 58

Murder, attempted murder, secondary part to murder or treason. These rules apply even if d was young and more influencial.

Question 59

Duress exemptions - cases

Answer 59

Howe - murder cannot be excused by duress Gotts - attempted murder cannot be excused by duress

Question 60

Duress by threats

Answer 60

This is where d commits a crime because they are under a threat of death pr serious injury to themselves or another.

Question 61

The Rule of 6

Answer 61

In Hansan 2005 by Lord Bingham: 1) There must be threat to cause serious injury or death. Injury equivalation GBH, hoever can consider cumulative effect of other threats with threat of injury. 2) Threat must be directed to d or d's loved one(s). 3) Whether d acted reasonably in light of threats will be judged according to the Graham test. 4) The threats relate directly to the crime committed by d. 5) No evasive action - if d could've avoided the threats, defence will not be given. 6) Imminence of threat - threat need not to be immediate but definently imminent.

Question 62

The Rule of 6 - cases

Answer 62

1) Valderrama-Vega 4) Cole 5) Gill 6) Hudson and Taylor

Question 63

Graham Test

Answer 63

- was d copelled to act because he or she feared serious injury or death? (subjective) - would a sober person of reasonable firmness have responded in the same way? (objective) Some of d's characteristics can be taken into account especially: age, pregnancy, serious physical disability, recognised mental illness, ect.

Question 64

Graham Test - case

Answer 64

Bowen - d had low IQ

Question 65

Self-induced duress

Answer 65

The d cannot use the defence if he or she has voluntarily laid themselves open to threats.

Question 66

Self-induced duress - case

Answer 66

Hasan - placing themsekves in a position where d should have foreseen or forsaw the risks of being subjected to compulsion or voluntarily associating with criminals.

Question 67

Duress by Circumstance

Answer 67

Where there is a fear of imminent death or serious injury due to the circumstances they are in, so d commits a crime. This differs from duress by threats - circumstances dictate crime rather than a person. The rule of 6 still applies these cases.

Question 68

Duress by Circumstance - cases

Answer 68

Conway - reckless driving quashed due to fear or serious injury Martin - driving whilst disqualified quashed as wife threatened to kill herself (confirmed stage 2 test) Pommell - an enexpected delay would prevent the defence, but a few hours isn't excessive Willer - charge of reckless driving quashed due to fear of safety Cairns - d's conviction quashed as d reasonably percieved threat of serious injury or death; fear is nt needed to prove if the threat was real Abdul-Hussain - danger doesn't need to be immediate, but hanging over d imminently.