Incapacity and General Defences

Question 1

Re JTB (2009)

Answer 1

D was a 12 year old who was charged with inciting a child under 13 to engage in sexual activity. He raised the question as to whether a child aged 10-14 was capable of the defence of doli incapax. D was convicted.
§34 of the Crime and Disorder Act 1998 has abolished the presumption that a child aged 10-14 is doli incapax.
§34 abolished the defence of doli incapax for children aged 10-14.

Question 2

Clarke (1972)

Answer 2

D, in a depressed state, took an item from a supermarket shelf and put the item into her shopping bag absentmindedly. D denied any intention to steal the goods. D pleaded guilty and put forth a defence of insanity. D was convicted.
McNaghten rules apply when a person, by reason of a disease of the mind, is deprived of the powers of reasoning and not when there is a momentary failure to concentrate.
It was argued that it was not a defect of reason which cause the action but an absent mindedness linked with depression which was ruled as insufficient. To qualify D must either be unable to tell the nature and quality of their act or be unaware that the act was wrong.

Question 3

McNaghten (1843)

Answer 3

D was acquitted on ground of insanity after killing V in an attempt to murder the prime minister. Related questions were asked by the House of Lords to judges to clarify the law. The questions are considered to be authoritative statements of the law.
The rules provide that:
There is a rebuttable presumption that everyone is sane
Proof of insanity requires proof of a defect of reason
The defect of reason must stem from a disease of the mind
It must be proved that the defect either
caused D to be unaware of the nature or quality of their act
caused D not to know whether what he was doing was wrong.

Question 4

Hill v Baxter (1958)

Answer 4

D charged with daggers driving and failure to conform to traffic signs. He had no recollection of the events. Impossible to say whether he actually had blackouts or not. J’s dismissed that D is incapable of forming intention.
proving automatism rests on D not open to rely on automatism without evidence for it
this offence is strict liability so requires no MR anyway

Question 5

Sullivan (1984)

Answer 5

D had an epilepsy attack and kicked a man violently in the head and body while suffering a seizure. Found not guilty by reason of insanity.
A disorder that impairs D’s reason memory and understnading, that makes D unaware of what he is doing/not knowing if an act is wrong is a disease of the mind causing defect of reason.
impairment can be organic/functional or permanent/transient
non-insane automatism will occur where there is a temporary impairment cause by an extraordinary trigger, provided it is no self induced.
“nature and quality’ means nothing more than the physical aspects of an offence. This leaves people who are severely mentally ill but aware of what they are doing out of the defence.

Question 6

Quick (1973)

Answer 6

D was a nurse at a mental hospital and was charged with assaulting a patient to cause actual bodily harm. D initially relied on a defence of automatism since he had become hypoglycaemic as a result of the insulin he had taken for his diabetes. The judge directed D that his defence of automatism would not be supported and instead to plea insanity. D pled insanity and was convicted. On appeal the conviction was quashed as this had been a misdirection.
Defect of reason must be caused by an internal disease and does not include a malfunctioning of the mind of transitory effect caused by an external factor.

Question 7

Hennessy (1989)

Answer 7

D is an insulin dependent diabetic who had not taken insulin or eaten in a few days and as a result had become hyperglycaemic. He was denied the defence of non-insane automatism because his condition was a symptom of diabetes. The disease was internal and caused D’s state of mind so this was insane automatism.
Stress, anxiety and depression can be caused by external factors bu they are not external themselves is bit capable in law to cause or contribute to a state of automatism

Question 8

Burgess (1991)

Answer 8

D charged with wounding with intent to do GBH. D defended that he did not have necessary MR because he was sleepwalking at the time. Judge ruled that this was a case of insanity not non-insane automatism
When considering automatism, judge must consider whether necessary evidence is set and whether automatism is insane or non-insane
sleepwalking is caused by an internal factor and amounts to a disease of the mind
danger of recurrence can help classify the condition as a disease of the mind but lack of recurrence does not exclude condition from being a disease of the mind

Question 9

R v Johnson (2007)

Answer 9

D convicted for wounding with intent to cause GBH. D suffered from severe schizophrenia and auditory hallucinations. D forced his way into V’s flat, shouted at him and stabbed him four times. Guilty because he did know his actions were against the law, just not that they were morally wrong.
Court can only reach special verdict by following the m’naghten rules
defence of insanity is not allowed even if the action was morally right, as long as D is aware it is against the law

Question 10

Majewski (1977)

Answer 10

D was involved in a pub brawl in which he assaulted the landlord and customers along with police officers who arrested him. D was charged with assault occasioning ABH and assaulting a police officer. D defended that he committed offences because of drugs and alcohol. D was convicted.
where no specific intent has to be proved, voluntary intoxication cannot be a defence and is to be ignored in the verdict.
voluntary intoxication should not be taken into account bu jury when D argues this deprives his ability to exercise self control, realise consequences and be aware of what he is doing
the rule at common law is that voluntary intoxication cannot be a defence to a criminal charge of basic intent.

Question 11

Bailey (1983)

Answer 11

D, a diabetic, took insulin but neglected his diet. He became hypoglycaemic and hit V with an iron bar. Judge directed jury that defence of automatism did not apply to self induced incapacity. This direction is wrong but the conviction held because D had not set out basis of automatism.
Unless D behaves recklessly, induced automatism can be a defence to negate MR of a crime whether basic or specific
Failure to take food after insulin is a defence if D did not appreciate that omission would result in crime

Question 12

Hardie (1985)

Answer 12

D was given out of date valium tablets and was told they would calm his nerves and do him no harm. In fact he became intoxicated and caused a fire in V’s flat. He was held to be involuntarily intoxicated since he did not know and he did not know (a) and could not have known (b) that he would be intoxicated.
It is unclear whether the test is that D is voluntarily intoxicated if (a) he knew the substance was intoxicating or whether (b) he ought to have known that the substance was intoxicating.

Question 13

Allen (1988)

Answer 13

D was intoxicated and charged with buggery and indecent assault. He stated that he was not aware that the wine his friend offered had high alcohol content and therefore defended that he had acted in a state of automatism.
When D is aware that he is drinking alcohol, his consumption is not involuntary simply because he does not know the precise strength of the alcohol.
Involuntary intoxication is confined to cases where D does not know he is taking alcohol or an intoxicating drug such as when his food is ‘laced’ or he becomes intoxicated through drugs that were prescribed medically.

Question 14

Kingston (1995)

Answer 14

D was in a dispute with 2 former business partners who hired Penn to photograph Kingston in compromising situations with a boy so they could blackmail him. Penn lured a 15 year old boy into his flat, gave him a drink with sedatives and cannabis. He fell asleep on a bed. Penn then invited Kingston over and offered him coffee which had been drugged. Penn and Kingston then assaulted the boy. Kingston admitted to having paidhiilic tendencies, but was usually able to keep them under control but the drugs in the coffee caused him to lose control. He was found guilty.
If D has necessary MR for offence, the fact that he only committed the offence because he was involuntarily intoxicated is no defence.
It is unclear whether same rule would apply to negligence based strict liability offences

Question 15

Lipman (1970)

Answer 15

D, under the influence of LSD voluntarily taken, did acts obviously likely to cause harm to the victim killed by them. In his trance, D thought he was grappling with a snake while in reality he was strangling V. D was charged with murder and convicted of manslaughter.
When killing results from an unlawful act of D no specific intent has to be proved to convict him of manslaughter.
Self induced intoxication by drugs is not a defence.
There is no reason to distinguish between voluntarily taken drugs and voluntary drunkenness.
The current law is not absolutely certain following the confusion of Heard. The current stance of intoxication is inconsistent with obiter in Heard.

Question 16

Heard (2007)

Answer 16

D, while drunk, rubbed his penis against a police officer’s leg. Because of drunkness he couldn’t remember doing such a thing. D was charged with sexual assault contrary to sections 3 of SOA 2003. D argued sexual assault is a crime of specific intent, therefore intoxication was relevant to the mental element of the crime, however the judge ruled it was a crime of basic intent and D was precluded from advancing self induced intoxication as a defence.
Specific intent crimes: offence requires proof of state of mind addressing something beyond the actus reus, such as the purpose or consequences of the act.
Basic intent crimes: proof of intention to do the actus reus.
Not every offence can be simply specific or basic intent and there can be different elements that require proof of different states of mind.
Elements of sexual assault require proof of different states of mind so it cannot be simply basic or specific intent (touching has to be intentional and judged objectively, which is basic intent; while lack of belief in consent could be
Obiter: Accidental touching will not be treated as deliberate touching even if D would not have made the contact if he was sober.

Question 17

Richardson and Irwin (1999)

Answer 17

R and I had been drinking with V who were all friends and were indulging in horseplay in which V was lifted over the edge of a balcony and dropped, which caused injury. Ds were charged with inflicting grievous bodily harm under §20 of Offences Against the Person Act 1861 since the prosecution held that they had actually foreseen dropping V would or might have caused harm and they nevertheless took the risk of doing so. Ds said that V had consented to horseplay and the fall was an accident. The jury were directed that they should find Ds guilty if a reasonable person not under the influence of drink would have foreseen the consequences. On appeal the conviction was quashed since the direction was wrong.
Jury should be directed to decide whether the particular D would have foreseen that their actions may cause injury had they not been drinking.

Question 18

Jaggard and Dickinson (1981)

Answer 18

D had been given permission to use a house as if it were her own. One night when she was drunk, she tried to enter a house that was identical in appearance to the house she had permission to enter but instead belonged to V. D tried to enter the house by breaking a window regardless of V’s request that she leave. D was charged with criminal damage to property without lawful excuse. She relied on §5 defence that she had an honest belief that the person whom she believed to be entitled to consent of destruction would have consented if he had known of the destruction. Although she was fist convicted due to her intoxication, her conviction was quashed on appeal.
Although damaging property without lawful excuse is a crime of basic intent where self induced intoxication would not be a defence to the mens rea, the defence of honest belief under §5 existed as long as the belief was honest, regardless of its cause or soundness, and regardless of intoxication.

Question 19

Clegg (1995)

Answer 19

D was a soldier on duty with a patrol. The purpose of the patrol was to catch joyriders which had not been explained to D. As a stolen car approached, D fired three shots at its windscreen and after the car passed fired a fourth shot into the back of the car which killed a passenger. D was charged with murder. The judge accepted that the first three shots had been in self defence but the fourth had been fired with an intention of causing death or serious bodily harm.
There is no defence if D is justified in using some force but uses an excessive degree of violence.
If D is charged with murder and has used excessive force in self defence, his charge will not be substituted by manslaughter.
It makes no difference if excessive force was used by a soldier or police officer acting in the course of his duty.

Question 20

Martin (Tony) (2001)

Answer 20

D shot two men who had entered his isolated house at night. He had been burgled several times in the past. Both Vs were wounded and one of the two died from his wounds. D was convicted of murder. He appealed to introduce new evidence that he was suffering from a psychiatric condition that was relevant to show that he was suffering from diminished responsibility and because of his condition he was more likely to believe that he was about to be attacked. His appeal was dismissed.
D is entitled to use reasonable force to protect himself, others for whom he is responsible and his property.
When determining reasonable force, the jury must take into account all the circumstances, including the situation as D honestly believes it to be at the time. It does not matter if D was mistaken in his belief as long as it was genuinely held.
It is for the jury to decide the amount of force which would be reasonable to use in the circumstances.
The jury are entitled to take into account in relation to self defence the physical characteristics of D.
Unless there is an exceptional circumstance, D’s psychiatric conditions should not taken into account when deciding whether excessive force has been used.

Question 21

R v Keane (2010)

Answer 21

D was being given a lift by V and two women after a night visiting pubs. D then insulted one of the women by calling her a ‘chav’. This led to a fight between D and V and V suffered grievous bodily harm. The question was whether D could rely on self defence if he was the cause of the violence he was facing. D’s appeal was dismissed and he was convicted.
Self defence may arise in the case of an original aggressor but only where the violence offered by V was so out of proportion to what D did that in effect the roles were reversed.
It is not the law that if D sets out to provoke another to punch him and succeeds that D is then entitled to punch him back.
Underlying the law of self defence is the morality that what is not unlawful is force which is reasonably necessary.

Question 22

Hichens (2011)

Answer 22

“On a charge of common assault the defence that the action was taken by way of self-defence to prevent a person from committing a crime or a breach of the peace was available even if the act of violence was not against the person concerned but was against an innocent third party.”

Question 23

Abdhul Hussain (1999)

Answer 23

Ds were from Southern Iraq under the Saddam Hussein regime and all but Hoshan were fugitives and all were residing in Sudan. Hoshan had a valid permit to reside in the UK and would be entitled to a right of permanent settlement. He helped Iraqis obtain false papers and bribe officials and was afraid that because of his acts he would be detected and sent back to Iraq for execution. Hence, Ds tried to leave Sudan with false passport several times but were not successful. Ds then boarded a flight heading to Jordan and hijacked the plane using plastic knives and plastic mustard bottles made to look like grenades. They took control of the plane and landed it in London. During trial they stated that they had only hijacked the plane as a last resort to escape death, either of themselves or of their families. The trial judge ruled the defence of necessity or duress should not be left to the jury because the threat was insufficiently close and immediate to give rise to a reaction. Ds were all convicted and appealed. Their appeal was allowed.
Defence of duress is available in relation to hijacking aircraft, though the issue of proportionality will be brought up.
The imminent peril of death or serious injury to D or his dependants has to operate at the time of the act to overbear his will but the execution of the threat does not need to be immediate in prospect.
The case confirms the decision in Hudson and Taylor that the treat must be imminent but need not be immediate.

Question 24

Howe (1987)

Answer 24

The case is concerned with conjoined appeals. In both cases the question was whether duress was a defence to murder.
Howe and Bannister appealed against his conviction for murder. They claimed that they had only killed two men because they were told by another with a substantial criminal record that if they did not do so they would suffer violence, which they understood as being killed.
Burke and Clarkson were convicted of murder but Burke claimed he had only killed V after Clarkson had threatened him with violence.
There should be some degree of proportionality between the threat and the offence.
Duress is not a defence to murder.
D must have acted as he did as a result of what he reasonably believed had been said or done and had good cause to fear that if he did not act he would suffer death or serious physical injury.
The jury should ensure that a sober person of reasonable firmness that shares the characteristics of D would have responded to whatever D reasonably believed was the threat by committing the offence.
Even though current law does not allow duress to be a defence to a charge of murder the Law Commission has recommended that duress should be a complete defence to murder.

Question 25

Gotts (1992)

Answer 25

Held that duress could not be defence to attempted murder.

Question 26

Bowen (1997)

Answer 26

D had obtained goods on credit and had made a few payments but he asserted that he had acted under duress. He had been approached in a public house by two men who threatened that he and his family would be petrol bombed if he did not obtain goods for them. D was charged with obtaining services by deception. He was of low intelligence. The judge directed the jury in relation to duress to consider whether a sober person of reasonable firmness of the age and sex of D would have acted as he did. D was convicted. Where the defence of duress is raised the only characteristics that are relevant are age and sex. Whether D is abnormally suggestible and vulnerable makes is irrelevant in considering duress.

Question 27

R v Hasan (2005)

Answer 27

D worked for a woman who ran an escort agency involving prostitution. He would drive woman to clients and look after them. The woman became involved with another man, S, who was a drug dealer. S took over much of D’s work and friction developed between the two. D was aware that S was dangerous. One night S and another ambushed D outside his home and S told D to commit a burglary on a house of one of the clients of the escort service. D complied and was convicted of aggravated burglary. The trial judge directed the jury that the defence of duress would not be available to D if they found that by associating with S he had voluntarily put himself in a position in which he knew he was likely to be subjected to threats. D was convicted. His defence of duress was rejected by the jury so he appealed. D’s conviction was upheld. Duress is not available where as a result of D’s voluntary association with known criminals he foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence. It is not necessary that D foresees compulsion to commit crimes of the kind he is charged. Duress is only available if D genuinely (actually believe in the threat) and reasonably believes the threat to be made. Duress is available if D fears that anyone for whom D reasonably regards himself responsible is under threat. The five major elements that were set out in Hasan were: the necessity of a specified crime, immediate threat, threat of death or serious injury, against a person for whom D has a responsibility, and that the threat is so great as to overbear the ordinary powers of human resistance.

Question 28

Dudley and Stephens (1884)

Answer 28

Three men and a boy were shipwrecked in an open boat with no food or water. After several days the men killed the boy who was at the time very ill. They ate him and therefore managed to survive until they were rescued. The three men claimed that if they had not eaten the cabin boy all four of them would have died and therefore killing the cabin boy was the lesser of the two evils. The defence failed and Ds were convicted of murder. There is no necessity that can justify the killing of another person.

Question 29

Conway (1989)

Answer 29

A passenger in D’s car, T, had previously been the target of an attack with a shotgun. When two plainclothed police officers approached D’s car he feared that T was about to be shot again and drove off recklessly and the officers gave chase. D only claimed he was aware that the chasers were police officers after he dropped off T and the officers caught up with him. The trial judge failed to direct the jury s to the existence and application of any defence of necessity to the charge against him. D’s conviction was quashed since the jury had not been directed about the possibility that they could find D not guilty because of duress of circumstances although they were otherwise satisfied that he had driven recklessly. Whether duress of circumstances is termed duress or necessity is immaterial. A defence of duress of circumstances is available only if objectively D could be said to be acting in order to avoid a threat of death or serious injury.

Question 30

Martin (1989)

Answer 30

D’s wife had suicidal tendencies. On the day of the event D’s stepson and his wife’s son had overslept and was late for work and at the risk of losing his job. D’s wife was shouting, banging her head against a wall and threatening to kill herself if D did not drive the boy to work. D was not allowed to bring a defence of duress because once it had been established that D was driving and was disqualified the offence was established since the offence was an absolute offence. D’s conviction was quashed. English law recognizes the defence of necessity, most commonly as duress, which can arise from objective dangers threatening D or others (duress of circumstances). The defence duress of circumstances is only available if from the objective view D could be said to be acting reasonably and proportionately to avoid the threat of death or serious injury.

Question 31

Quayle (2005)

Answer 31

There several counts regarding the cultivation and use of cannabis. D’s were charged with offences under the Misuse of Drugs Acts. Ds argued that the usage of cannabis was the only way to alleviate pain. D was not allowed to rely on the defence of duress. For the defence of necessity of circumstances there has to be an extraneous circumstance capable of objective scrutiny by judge and jury. Pain is not in itself serious harm and therefore not a threat. The defence also requires imminence and immediacy in the threat.

Question 32

Re A (children)

Answer 32

self defence

Question 33

Gladstone Williams (1987)

Answer 33

M interfered with boy robbing a woman, chased the boy and pinned him to the ground. D only saw the latter part of the event and believed M was assaulting the boy. D intervened and punched M and was charged with assault occasioning ABH. D’s conviction was quashed D can raise defence if he honestly believed that he was intervening to prevent crime, even if in fact he was not. Not necessary to show reasonable grounds

Question 34

Kemp (1957)

Answer 34

The accused was charged with causing grievous bodily harm to his wife by striking her with a hammer. He was suffering from artieriosclerosis and did not know the nature and quality of his act, but the medical evidence was conflicting, one doctor giving as his opinion that the accused was suffering from melancholia, a disease of the mind, and two others giving as their opinions that at the time of committing the act the accused was suffering from a congestion of blood in the brain which caused a temporary loss of consciousness as a result of which he acted irrationally and irresponsibly. It was submitted by the defence that the accused was not suffering from a disease of the mind and was not, therefore, insane, within the test laid down in R. v M'Naghten . In his charge to the jury the judge said that on the whole of the medical evidence they ought to find that there was disease of the mind within the meaning of the rule in R. v M'Nagthen . Held, that the accused was guilty but insane. exculdes brutish stupidity but does not exclude illnesses caused by physical rather than mental factors Similar to R v Charleston

Question 35

Bratty v A-G for Northern Ireland

Answer 35

Automatism should only be left to jury if D has laid a proper foundation by providing a defence for it. If it is successful prosecution can prove intent. Only mental disorders including epilepsy or cerebral tumour count D found guilty because only rules of m’naghten put forward, not the other two available defences.

Question 36

Tolson (1889)

Answer 36

Woman Re-married only 7 years after being deserted by husband, who she reasonably believed to be dead. Acquitted because of bona fide belief that she was not doing anything wrong. the requirement of a guilty mind for crime before AR is flexible

Question 37

DPP v Morgan

Answer 37

Husband invited his two friends to have sex with his wife without her consent. He told them she was kinky and any struggle was merely pretence. Rape cannot be committed of there is genuine belief of consent, regardless of whether this is reasonable or not

Question 38

B v DPP (2000)

Answer 38

Boy aged 14 charged with offence of inciting a child under 14 to commit oral. He asked a 13 year old girl to suck him off. He claimed he thought she was over 14. Conviction quashed because R v Prince did not establish that all cases regarding are are beyond considering the MR of. Honest belief was deemed more important

Question 39

Hitchens (2011)

Answer 39

D was charged with assault of V. D stated that he had acted in self defence and assaulted V in order to prevent her from allowing a man into her flat who D believed would assault him. The judge had ruled that D could not rely on self defence in a case where the assault was against an innocent person to prevent an attack from a third party. D appealed and his appeal was allowed. Force could be used against a third party under self defence. This issue is especially controversial since such a defence would be duress, not self defence. Hitchens undermines the difference between self defence and duress.

Question 40

Owino (1996)

Answer 40

O appealed against conviction of assaulting his wife occasioning actual bodily harm. His case was that the injuries were caused by his use of reasonable force to restrain her from assaulting him. The jury received no direction on self defence until about an hour and a half after retiring, when they sent a note requesting such a direction. The judge then directed them to the effect that the prosecution must prove that O did not believe he was using reasonable force. It was argued that the direction was inadequate by reason of the judge's failure to state that the test of what force was reasonable was subjective and the delay before the direction was given. Held, dismissing the appeal, that R. v Scarlett (John) [1993] 4 All E.R. 629 should not be read as saying a person was entitled to use any degree of force he believed to be reasonable, however ill founded the belief, R. v Williams (Gladstone) [1987] 3 All E.R. 411 followed. A person may use such force as is (objectively) reasonable in the circumstances as he (subjectively) believes them to be. The trial judge's direction went further in the defence's favour than the law required and (2) although the direction was given late, it was adequate and properly left to the jury the correct basis upon which to approach their task.