Part 9: Defences

Question 1

Does the accused have an obligation to give evidence in a criminal trial?

Answer 1

The accused is under no obligation to give any evidence whatsoever. The onus is on the prosecution to prove guilt beyond a reasonable doubt.

Question 2

What is required for a special defence in a criminal trial?

Answer 2

Special defences are a matter of procedure rather than substantive law. The accused must notify the court and prosecution of the intention to plead a special defence at least 10 clear days before trial.

Question 3

What distinguishes a special defence from other defences in criminal law?

Answer 3

A special defence requires advance notice to the court and prosecution, as outlined by statute. If it is a special defence, the accused must give prior notice.

Question 4

Are all defences common law defences?

Answer 4

All defences are common law defences apart from mental disorder, which is now defined by statute.

Question 5

What is the burden of proof for the defence of mental disorder?

Answer 5

The burden of proof is on the defence for mental disorder, and the accused must prove it on the balance of probabilities.

Question 6

Do the same defences apply to all crimes/offences?

Answer 6

Yes, all defences apply to any crimes or offences, unless otherwise stated by specific statutory exceptions.

Question 7

What does “alibi” mean in criminal law?

Answer 7

Alibi is a Latin word that means elsewhere. When the accused puts forward an alibi, they are claiming that they were not at the scene of the crime and must provide evidence of where they were at the time of the crime, often by getting others to testify.

Question 8

What is the legal definition of “incrimination” as a defence?

Answer 8

Incrimination is when the accused defends themselves by claiming that another named person committed the crime. The accused does not deny the crime but names someone else as the perpetrator, thereby incriminating or impeaching that individual.

Question 9

What is the significance of Non-Age in criminal law?

Answer 9

Under Criminal Procedure (Scotland) Act 1995, s 41, a child under the age of 12 cannot commit an offence. This was updated by the Age of Criminal Responsibility (Scotland) Act 2019, which ensures that if a child under this age commits a crime, they will not be charged but instead referred to the children’s hearing system to determine the best course of action for their future.

Question 10

What is the principle of “Error of Law” in criminal law?

Answer 10

Error of Law is encapsulated by the phrase “ignorantia iuris neminem excusat,” which means ignorance of the law is no defence. People are presumed to know the law, and it cannot be used as a defence if someone commits an offence due to not knowing the law.

Question 11

What is Error of Fact in criminal law?

Answer 11

Error of Fact refers to a mistaken belief about a fact that is relevant to the offence. For the defence to succeed, the error must generally be genuine and reasonable, and it must affect the mens rea (mental state) of the accused. In other words, the accused must have had an honest and reasonable misunderstanding, and this misunderstanding must relate to their intent.

Question 12

How was Error of Fact illustrated in the case HM Advocate v Gallacher (1951)?

Answer 12

In HM Advocate v Gallacher (1951), the accused mistakenly attacked the wrong person, but this mistake did not affect their mens rea (intent) as they still intended to kill the person they attacked. Therefore, the court ruled that there was no successful Error of Fact defence.

Question 13

What did the court decide in Stewart v Nisbet (2013) regarding Error of Fact related to consent?

Answer 13

In Stewart v Nisbet (2013), the court ruled that an Error of Fact about consent (in an assault case) must be an error that a reasonable person might have made. The error must be genuine and reasonable for it to be used as a defence.

Question 14

How did the Owens v HM Advocate (1946) case clarify Error of Fact in relation to self-defence?

Answer 14

In Owens v HM Advocate (1946), the accused believed he was acting in self-defence because he thought his victim was threatening him with a knife, but he was wrong. The trial judge initially ruled that this error invalidated his self-defence plea. However, the appeal court quashed the conviction, stating that self-defence applies if the accused genuinely believes they are in danger, even if that belief was mistaken. The appeal court clarified that Error of Fact could still support a self-defence claim if the belief was honest.

Question 15

What is meant by unfitness for trial in relation to mental disorders?

Answer 15

Unfitness for trial (under s53F of the Criminal Procedure (Scotland) Act 1995) refers to an accused person being in such a mental state that they are incapable of participating effectively in their trial. If an accused is found unfit, they cannot be subjected to prosecution until they are mentally fit. If they later become fit for trial, prosecution can resume. In such cases, a compulsion order may be imposed, meaning the accused is detained in a hospital for treatment.

Question 16

What is the Defence of Mental Disorder under s51A of the Criminal Procedure (Scotland) Act 1995?

Answer 16

The Defence of Mental Disorder under s51A is where the accused accepts having committed the actus reus (guilty act) with mens rea (guilty mind), but claims they were mentally disordered at the time of the crime. If found not guilty by reason of mental disorder, the accused is not free to go; instead, the court can impose a guardianship order or a hospital treatment order. In serious cases, such as murder or rape, the accused may be admitted to a state mental hospital. This defence is for those who were mentally disordered during the crime, even though they are mentally fit during the trial.

Question 17

How does Diminished Responsibility work under s51B of the Criminal Procedure (Scotland) Act 1995?

Answer 17

Diminished Responsibility under s51B applies to someone charged with murder but who can argue that their mental state was abnormal at the time of the crime, reducing the charge to culpable homicide. The accused can prove diminished responsibility if they were provoked or suffering from an abnormality of the mind. This defence does not completely absolve the accused but reduces the charge from murder to voluntary homicide.

Question 18

How were the laws surrounding mental disorders and defences updated in Scotland?

Answer 18

The laws surrounding mental disorders and defences were updated by the Criminal Justice and Licensing (Scotland) Act 2010, which amended the Criminal Procedure (Scotland) Act 1995. The sections regarding unfitness for trial, the defence of mental disorder, and diminished responsibility became statutory after these amendments, making these defences clearer and more structured within the law.

Question 19

What is the effect of voluntary intoxication on criminal liability?

Answer 19

Voluntary intoxication occurs when the accused is responsible for getting themselves drunk. It does not serve as a valid defence in criminal law. For example, in Brennan v HM Advocate (1977), the accused argued he was too drunk to form mens rea (guilty mind) for the murder of his father, but the court held that he could not plead insanity or lack of mens rea. The court stated that a person is responsible for getting themselves drunk and should be aware of the risks involved.

Question 20

How does the Criminal Justice and Licensing (Scotland) Act 2010, s26 affect voluntary intoxication as a defence?

Answer 20

The Criminal Justice and Licensing (Scotland) Act 2010, s26 makes it clear that the court cannot consider voluntary intoxication as a factor for mitigating (lessening) a sentence. Even if intoxication contributed to the offence, it does not reduce the severity of the sentence.

Question 21

What is the legal definition of automatism in the context of intoxication?

Answer 21

Automatism refers to a state where the accused is not fully conscious, such as when they are under the influence of an involuntary intoxicant (e.g., drink spiked by a third party) or in a state like sleepwalking. In this case, the accused may not be aware of their actions. Automatism can be used as a defence if it is caused by an external factor, such as a spiked drink or a chemical reaction, and not by an internal medical condition.

Question 22

What is the case Ross v HM Advocate (1991) and how does it relate to automatism?

Answer 22

In Ross v HM Advocate (1991), the accused, Ross, claimed that his drink had been spiked with LSD, causing him to act in an automatic state. He attacked nine people at a party without being aware of his actions. The court recognised automatism as a valid defence, provided the accused could show that the automatic state was caused by an external factor and not an internal medical condition. The court set out four conditions for automatism to be a valid defence:

The accused was in a semi-conscious state.
The condition was caused by an external factor.
The cause of automatism must not have been reasonably foreseeable or self-induced.
The condition must be unlikely to reoccur.

Question 23

What is coercion in criminal law, and how does it relate to duress?

Answer 23

Coercion, also known as duress in English law, occurs when the accused is forced to break the law to avoid imminent death or serious injury to themselves or another person. The accused must show they were compelled by a human source (another person) and had only two choices: committing the crime or facing greater harm. If other choices were available, the defence of coercion does not apply.

Question 24

What are the Hume’s Criteria for coercion, as seen in Thomson v HM Advocate (1983)?

Answer 24

In Thomson v HM Advocate (1983), the court set out Hume’s 4 criteria for coercion:

There must be an immediate danger of death or great bodily harm.
The accused must be unable to resist the violence.
The accused must have played a backward or inferior role in the preparation of the crime.
The accused must disclose the facts and make restitution of the spoils as soon as possible. These criteria are used to assess the credibility of the accused’s claim of coercion.

Question 25

What is the defence of necessity in criminal law?

Answer 25

The defence of necessity arises when the accused is compelled by natural forces (e.g., a storm or fire) to break the law. The accused must show that they had no choice but to commit the crime to avoid greater harm. This defence is based on the idea that the crime was necessary for the survival or well-being of the accused or others.

Question 26

What is the case R v Dudley and Stephens (1884), and what does it illustrate about necessity?

Answer 26

R v Dudley and Stephens (1884) is an English case where two men, Dudley and Stephens, were charged with murder after killing and eating a 17-year-old cabin boy to survive after their yacht sank in a storm. They used the necessity defence, arguing they had no choice but to kill the boy to stay alive. The court rejected the defence, finding that necessity is not a defence to murder, and the two men were convicted of murder, though they only served six months in prison.

Question 27

How does the case Moss v Howdie (1997) apply the concept of necessity?

Answer 27

In Moss v Howdie (1997), the accused, Moss, was charged with speeding after driving at 100 mph on the motorway. He claimed that his passenger was seriously ill and in immediate danger, which justified his speeding. The court held that necessity could apply in situations of immediate danger of bodily harm but found that Moss had other options (e.g., stopping the car and calling for help). Thus, the court ruled that his actions were not justified under necessity.

Question 28

How was necessity applied in HM Advocate v Anderson (2006) in a murder case?

Answer 28

In HM Advocate v Anderson (2006), the accused ran over a youth with his car while trying to escape an attack by a group of youths. The court acquitted him, accepting the necessity defence because he argued that running over the victim was the only way to escape the attackers, even though the victim was not actively attacking the car at the time. The court found that the accused was justified in using force to escape from a dangerous situation.

Question 29

What is self-defence, and when can it be used?

Answer 29

Self-defence allows a person to act in defence of themselves or a third party. The key is that the accused must show they committed the criminal act, but the action was justified because they were protecting themselves or others. The force used must be reasonable and proportionate to the threat. It's not considered self-defence if the act is excessive, such as killing to defend property.

Question 30

Can self-defence be used to defend someone else, not just oneself?

Answer 30

Yes, self-defence is not limited to defending oneself. It can also be used to defend a third party or a stranger. As long as the act is reasonable and necessary, the accused can plead self-defence even when acting to protect another person.

Question 31

What must the accused show to successfully plead self-defence?

Answer 31

To successfully plead self-defence, the accused must show that they chose the lesser of two evils. They must demonstrate that they used reasonable force to protect themselves or another person and that there was no alternative to the action taken.

Question 32

Is killing to protect property considered self-defence?

Answer 32

No, self-defence does not justify killing to protect property. The use of force in self-defence must be necessary to protect against an imminent threat to life or limb, not to protect inanimate objects like property.

Question 33

What did HM Advocate v Doherty (1954) establish about self-defence?

Answer 33

In HM Advocate v Doherty (1954), Lord Keith set two major limitations on the defence of self-defence: There must be an imminent danger to the life or limb of the accused. The retaliation must be necessary for the accused's safety. The accused must show that there were no other options, such as running away, before resorting to force.

Question 34

What did Fenning v HM Advocate (1985) teach about self-defence?

Answer 34

In Fenning v HM Advocate (1985), the court found that excessive force was used in self-defence, which led to a murder conviction. Fenning argued he acted in self-defence when he struck Paterson with an air rifle, but the court found that the violence used was cruel and excessive. This case shows that force used in self-defence must be proportionate to the threat.

Question 35

How does Owens v HM Advocate (1946) relate to error in self-defence?

Answer 35

In Owens v HM Advocate (1946), the court ruled that an error in self-defence must be genuine and reasonable. The accused believed they were in danger, but the belief had to be something that a reasonable person might have held under the circumstances. This case demonstrates that mistakes made in self-defence must be reasonable for the defence to succeed.

Question 36

Does a successful provocation defence result in acquittal?

Answer 36

No, even if provocation is successful, it does not result in acquittal. Instead, it acts to mitigate the punishment, turning a charge of murder into voluntary culpable homicide. It is an excuse or explanation for why the accused acted as they did, but not a justification.

Question 37

What must the accused show to establish provocation?

Answer 37

To establish provocation, the accused must show that they lost self-control as a result of the provocation. This can help mitigate the crime but does not justify the act.

Question 38

What is the general rule for provocation in murder cases?

Answer 38

In murder cases, the general rule is that the ultimate victim must have acted violently toward the accused. Provocation is only available as a defence if the accused reacts immediately, not after a period of reflection.

Question 39

What is the significance of the Thomson v HM Advocate (1986) case in provocation?

Answer 39

In Thomson v HM Advocate (1986), the accused claimed to have been taunted by his business partner and reacted by stabbing him multiple times. The court held that words of insult (such as taunting) are not sufficient to reduce murder to culpable homicide. Also, the provocation must have occurred immediately, not after a period of reflection. In this case, the provocation was too remote, and self-control was not lost immediately.

Question 40

What is the exception in provocation for cases of sexual infidelity?

Answer 40

In cases of sexual infidelity, if a spouse kills their partner or their lover after being provoked by infidelity, provocation can be used as a defence, reducing the charge to culpable homicide. The accused must show that they lost control and reacted immediately to the provocation.

Question 41

What did the Gillon v HM Advocate (2007) case establish about provocation?

Answer 41

In Gillon v HM Advocate (2007), the court discussed the proportionality between the provocation and the retaliation. The court held that the retaliation must be reasonable in proportion to the provocation. The case involved a defendant who struck the victim repeatedly with a spade, and the court considered whether the response was reasonable in light of the provocation.

Question 42

What did Donnelly v HM Advocate (2017) clarify about provocation in relation to a third-party attack?

Answer 42

In Donnelly v HM Advocate (2017), the accused claimed he lost control after seeing his friend being assaulted, and he killed the attacker. The court ruled that the facts did not amount to provocation, and provocation was not available as a defence in this case. This case made the law unclear regarding provocation in cases where the accused reacts to an attack on a third party.