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Flashcards in Defences Deck (51)
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where was automatism introduced?

Ross v HMA 1991


what was the law prior to Ross v HMA 1991 on mental defences?

only insanity was an accepted mental defence


what crimes does automatism defend against?

defence to any crime that requires mens rea, because punishing people who lack mens rea does not fulfill the main aims of punishment


what is the case authority for Automatism and what was the definition provided?

Ross v HMA "a total alienation of reason" or "an external factor which was not self-induced"


where was the definition provided in Ross v HMA 1991 reinforced?

Cardle v MUlrainey 1992


what does the automatism defence not cover?

irresistible impulses and voluntary intoxication


what evidence is required to use the defence of automatism?



what are the problems with the defence of automatism (2)?

- does not include factors beyond control but not external. For instance, diabetes, sleepwalking
- if acquitted court no power to make order for public protection


what is the key legislation for mental disorder defence?

Criminal Procedure Act 1995 s51


what is mental disorder a defence to?

any crime that requires mens rea


if both automatism and mental disorder result in acquittal, why distinguish between mental disorder and automatism?

- episodes of mental disorders might recur, therefore law allows for public protection
- states of automatism (caused by an external factor) are less likely to be repeated and so does not allow for public protection


What is the legal definition of the disturbed state of mind which the mental disorder defence involves?

An inability at the time of the conduct constituting the offence “to appreciate the nature or wrongfulness of the conduct”.


what is the good thing about the flexibility of the definition of mental disorder? (3)

- Appreciation is broader than mere knowledge and includes a level of rational understanding.

- “wrongfulness” includes moral and legal wrongfulness. HM Advocate v Sharp 1927 JC 66

- The test contains two alternative conditions – EITHER the nature OR the wrongfulness of the conduct.


What caused the inability to appreciate the nature or wrongfulness of the conduct?

mental disorder; defined as:
Defined as:
“mental illness;
personality disorder; or learning disability,
however caused or manifested”


what conditions are excluded from the defence?

- psychopathic personality disorder
- implies irresistible impulses and voluntary intoxication


Who bears the burden of proving that the accused does/does not qualify for Mental Disorder Defence and to what standard must this be proved?

The accused must prove the defence of Mental Disorder on the balance of probabilities.


what is unfitness for trial?

A person who is suffering from mental disorder at the time of the trial may be able to rely on a plea in bar of trial, which means that they cannot be tried.


how is the unfitness for trial different to the Mental Disorder Defence?

This is different from the Mental Disorder Defence, which can be raised if the person is fit for trial, but was suffering from a mental disorder AT THE TIME OF THE ‘CRIME’.


what is the definition of Diminished responsibility?

“the person's ability to determine or control conduct for which the person would otherwise be convicted of murder was, at the time of the conduct, substantially impaired”


where can the definition of diminished responsibility be found

Criminal Procedure (Scotland) Act 1995 s51B


To which crimes will Diminished Responsibility provide a defence?

This defence only applies to murder.


What caused the substantial impairment of the ability to determine or control conduct with regards to diminished responsibility? (3)

- Abnormality of mind’ CP(S)A 1995, s51(B)(1)

- Diminished responsibility includes mental disorder. CP(S)A 1995, s51(B)(2)

- Diminished responsibility can be based on the condition of psychopathic personality disorder.


what is excluded from the scope of the defence of diminished responsibility?

voluntary intoxication


Who bears the burden of establishing the defence of Diminished Responsibility and to what standard?

“It is for the person charged with murder to establish, on the balance of probabilities, that the condition set out in subsection (1) is satisfied.”


what changes does the defence of diminished responsibility make?

If the defence of diminished responsibility is established then:
‘A person who would otherwise be convicted of murder is instead to be convicted of culpable homicide’ CP(S)A 1995, s51B(1)


is necessity a complete defence?



what crimes is necessity available to?

all crimes except murder


when does necessity apply?

when breaking the law is necessary in order to avoid dangerous circumstances (availability subject to various limitations)


when is the defence of necessity appear to be a justification?

where breaking the law is clearly the lesser evil


what happens when both options are equally bad, with regards to necessity?

the defence looks like an excuse