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Flashcards in Excusatory Defences Deck (62):

Excusatory defences




Permissible Conduct
-> self defence
->Prevention of crime



Pre-liminary points

Only relevant where it causes D to lack mens rea or provides her with a legally recognised excuse.
-> must disrupt concurrence of Ar &MR
-> narrow availability.
-> Exculpatory never inculpatory.


Mistakes of Fact
Forbes [2002]

F thought he was smuggling prohibited horror films but they were actually child pornography. Offence: smuggling-knowingly ivolved in the dfraudulent evasuion of the prohibition on importing prohibited goods. Held: Mistake about the nature of goods irrelevant as the fundamental essence of the goods is the same and he had MR for smuggling.


Taffe [1984]

T though he was smuggling money, in fact there was no prohibition of money, He's then foud with drugs./ Held: no smuggling as he did not satisfy the AR for money.he does satisfy it for the drugs but for the drugs he lacks the MR as he doesnt smuggle them knowingly.


Nature of Mistake

what kind of test?

Mistakes must be honest and genuine (no requirement of reasonableness-result of Morgan)
-> Subjective test


Reason for Subjective Approach -partly expalined in the criminal justice act 1967 s8.

Any intention or foresight required to establish liability for a particular offence ha s to involve proof that the intention or foresight was possesed by thhe defendant. If it is examining something POSSESED by the defendant then it is subjective proof of MR. Subjective proof of lack of MR= defence of mistake.


Morgan [1976]

M invites men round to his house suggestst they have sex with his wife and told them that she consented. Any resistance on her part would be false pretence. Held: convicted at first as they could only use mistake if they'd had reasonable grounds for their mistaken belief. The jury thought not. Hol: changed requirement of reasonable grounds to one of genuine belief by the defendant.


Ellis [1987]

D thought theywere smuggling prohibited pornography but they in fact had prohibited goods. This detail does not change the fact that the AR and MR are satisfied.



S & S Do not consider Mistake, Intoxication and as defences but rather denials of proof.


Preliminary points

- most other commentators consider it a defence
- disrupts concurrence of MR& AR by arguing D did not form MR
-May operate as partial defence
-If intoxication is provebut D still formed relevant MR there is no defence.
-Policy converns in this area are strong & so limit defence & make it unclear.


Sheehan and Moore [1975]

" A drunken intent is nevertheless intent". Drunks got into a fight and started fire which killed people. Evidence of intoxication present. If jury thought D had formed MR then the offence would have been established


Involuntary Intoxication

-Upon jury acceptance that MR not formed
-It can be a defense and it could lead to acquital


Kingston [1995]

D drugged by business associates that wanted to blackmail him and left w/ 15 yr old boy (who they had also drugged knowing D had paedophilic tendencies he usually suppressed. Intoxication lef to him assaulting the boy.
Held: he assaulted boy w/ MR. Ergo no defence.


Voluntary intoxication

If D drinks something which has higher alcohol content than they thought. It falls under VI.


Allen [1998]

Friend offered D homemade winde, he thought it had low alchol content . He arguedd involuntary intoxication. Held: As long as he knew there was alcohol in it and consumed it, its voluntary.


Specific Intent

Crimes for which the MR can be satisfied by Intention only.


DPP v Majewski [1977]

D fought with people including police at bar after getting VI. held: VI could only operate as a ddefence if the crime was one of specific intent. If he then does not form the requisite MR he can be convicted of a lower offence.


Basic Intent

Crimes where the MR can be satisfied by intention or recklessness. VI does not count as a defence for these crimes.


A-G for NI v Gallagher [1963]

If the defendanat deliberately got drunk in order to live themselves courage to commit the offence then


Metropolitan Police Commisioner v Caldwell [1982][

Caldwell in a bid to enact revenge on hotel owner, got drunk and set fire to the hotel. Held: Lord Dipl- if MR can be satisfied by intent or recklessnes then VI is of no defense. Courts take dim view of VI and think it satisfies recklessnes qualification.


Criminal Damage Act 1971S1(2)

- intent or recklessness to damage property - crime of basic intent.



Doctrines of AR & MR has been subordinated to considerations of social defence with VI, automatism and some mistakes..
- Specific Intent and Basic Intent are ill defined.


J.C Smith

Intoxication rules are inconsistent with S.8 of the Criminal Justice Act 1967, which requires the courts to take acount of alll the evidence in deciding whether D intended or foresaw a result.
Ashworth & Hoarder Rebutts tht s.8only applies to legally relevant evidence.


Voiced by HC of Australia

Problem of basing D's conviction on antecedent fault of voluntarily takin intoxicants. Hoarder and Ashworth - rebutt the principle of contemporaneity itself conflicts with doctrine of prior fault. No reason why doctrine should be an absolute principle.


Ulterior Intent

Intention to do a particular act as a means to an end.


Heard [2007]

Drunk and trying to enter hotel room, pull sout penis and rubs it on police officer. Charged w/ sexual assualt, which involvees sexual touchingof V. CA interpreted D as having no purposive intent and the touching required also need not be purposive, the offence was Concoluded to be one of basic intent.
S &S argue that heard is not univerally applicable


Automatism & Insanity

Signalls a loss of control over the body or impaired consciousness.
Conflicts between legal interpretation and medical interpretation. Herring notes this could even come into conflict with HRA. Becuase medical evidence has to fit the legal tests and s raises question son the acuracy of medical tests.



Absence of Voluntarism ,denial of authorship. Denning in Bratty: "an act which is done by the muscles w/o any control by the mind"



-Total loss of voluntatry control.
-No prior fault by D
-Ecternal Cause


Total Loss of voluntary control

A-G's Reference (No.2 of 1992)

F was charged with causing death by reckless driving. He argued that logn motorway joirney had induced trance like state held: evidence could not support automatism. The defense requires "a total destruction of voluntary control on the D's part."


No prior fault by D

Automatism and Intoxication

D may argue automatism arising from intoxication. This relays them to defence of VI. As drinking previously is prior fault


No prior fault
Intoxication arisin from drugs taken for therapeutic reasons

Defence of automatism is available however if tthe medications are prescribed and nevertheless caused them to enter automatous state.


Quick [1973]

On charge of assault D allowed to raise automatism consequent of hypoglycemia, notwithstanding that his condition was one of semi consciousness


Bailey [1983]

Where D, a diabetic failed to take sufficent food after a normal dose of insulin and some alcohol, he olapsed into hypoglaecemia automaatism. Due to negligence in tending to condition his charge was upheld.


External Cause

If lossof control is not from external cause then it is deemed to be insanity.


Bratty v. AG for NI [1963]

Dclaimed blackness had come over him before he strangled GF, medical evidence showed it was epilepsy. Denning ' D's behaviiour may havebeen involuntary but it does not give rise to an unqualified acquittal, for that would mean that he would be left at large to do it again.


Kay v Butterworth [1945]

Man drove car into line of soldiers.Defence was that he'd fallen asleep on the wheel. example given by judge of external causes e.g falling ill at the wheel (not mental disease)


Hill v Baxter [1958][

D stunned by blow and rendered incapable of controlling his car, he lost consciousness and so he did not stop at stop sign,


Pre-liminary points

Deals with coincidenceof MR & AT
-Rebuttable presumption of sanity required of jurors.
=General defence, various orders favailable if not guilty by this defencce


Defence from M'Naghten's Case (1843)

Applicable if:
-> Defect of reason from disease of the mind
->Not knowing nature/ quality of the act
-> If D did know quality, he didnot know it was wrong.


Defect of reason from Disease of the mind

Kemp [1957

D suffering for arteriosclerosis.., resultiing in reduced blood flow to brain, rsulting in a period of unconsciousness. During this period he attacked his ife with a hammer


Defect of reason from disease of the mind
Quick [1973]

If unconsciousness resulted from
x. hypoglycemia then it would be a transitory malfunction of the mind its the taking of insulin that''s resulted in it .
o. hyperglycemia then it is cuase for defence of insanity as the uncontrolle disease was affecting the mind.


Sullivan [1984]

D suffered from epilepsy, and in a fit he attacked a friend. Court held disease of mind ( in ordinary sense) just has to be internally caused. Matters not whether it is permanent or transient.


Hennessy [1989]

Hyperglycemia brought on by external factors (Stress & Anxiety). CA: stress &n anxiet cannot be treated as special circumstances, likely to reoccur and therefore only defenseis insanity.


R v T [1990]

texternal factors of rape gave rise to internal condition of PTSD. Here the courts accepted that it could be automatism. pl: possibility that where dissociation is caused by extraordinary external factors automatism is available.


Burgess [1991]

D claimed he had been sleep walkingat the time he attacked his best friend. Argued automatism. CA: Abnormality due to internal dissorder and likely to re-ocur although transitory. Classed as insanity.


Lipman [1970]

Intoxication and automatism. D took lsd thought he was fighting snakes, in actuality killed his gf. On doctrine of prior fault he could not draw on automatism. Intoxication was the only route.


Coley,Mcghee, Harris [2013]

Confirm rule in lipman, that where defences of intoxication,insanity and automatiism are possible, There must be clear distinction between intoxication and insanity



Disease is a legal quesiton approached as legal test.Transitory nature is considered, so is reoccurence of violence is considered but not fundamental and internality is fundamental.


Not knowing nature/ quality of act

- criticised as very narrow approach,taken to mean nothing more than the physical aspects of the circumstance and the consequences attending D's conduct. Us approach more liberal.
-susceptable to misinterpretation as being a breach in the standards of reasonable people.
-Legally wrong - Johnson but evidence courts act upon morally wrong-Stapeleton.


Clarke [1972]

defect of reason taken to imply cessation of deliberate faculty dor however brief period of time.


Windle [1952]

d knows his conduct contravenes the law


Cedere [1916]

D knows that his conduct transgresses "ordinary standards adopted by reasonable people"


Impact of Succecsful Defence

Trial of Lunatics Act 1883 s2: Special Verdict
Criminal Procedure (Insanity) Act 1964 (as ammended)- hospital order, supervision, absolute discharge.


Article 5.1 (e)of European convention

allows that 'persons of unsound mind' maylawfully be deprived of their liberty, but the leading decision in Wintwerp v Netherlands lays down 3 further requirements.


Wintwerp v Netherlands [1979]
three further requirements under 5.1(e) of EC:

-> close correspondence between expert and medical opinion and the relevant definition of mental disorder
->decision must be based on 'objective medical expertise.
-> Courts must decide thatmental disorder is 'of a kind or degree warranting compulsory confinement'


-> close correspondence between expert and medical opinion and the relevant definition of mental disorder

Can hardly be said of a test formulated in 1843 and subsequentoly held to encompass epilepsy, hyperglyccaemia,and sleepwalking.


decision must be based on 'objective medical expertise.

could be used in conjunction with 1991 act to hold that pschiatric reports to the court should be accorded more weight than under the restrictive M'naughten test.


-> Courts must decide thatmental disorder is 'of a kind or degree warranting compulsory confinement'

Untiil the law change in 2004( new s.5 of 1991 act) the court hadno opportunity to make such a deftermination on murdeer cases


Ashworth & Horder

Recommend that it would be best if the law on insanity was reformed before piecemeal challenges are mounted under HRA. M'naughten rules outmoded.


Law commision.

-> the case law on insane and non-insane automatism is incoherent and produces results that run counter to common-sense.
->it is not clear whether the defence of insanity is even available in all cases;