Week 9: Defences

Question 1

What is the minimum age of criminal responsibility?

Answer 1

12 years old

Question 2

ignpratia iuris neminem excusat

Answer 2

Error of law

Question 3

41. Owens v HMA 1946 JC 119; 1946 SLT 227

Answer 3

Error must be genuine and reasonable and affect mens rae.

• Thought the victim had a knife
• Made an error as to self-defence
• Thought the victim was attacking the accused
• Thought the victim had a knife
• Appeal court highlighted that it must be shown that they genuinely thought it was self-defence
• Highlights self-defence and error as to fact.

Question 4

Unfitness for trial: Beyond a reasonable doubt or on the balance of probabilities?

Answer 4

Balance of probabilities.

Question 5

What are the five considerations when determining whether a person is unfit for trial, as outlined in the Criminal Procedure (Scotland) Act s 53F 1995?

Answer 5

• Understand the nature of the charge
• Understand the requirement to tender a plea to the charge and the effect of such a plea
• Understand the purpose of, and follow the course of, the trial
• Understand the evidence that may be given against the person
• Instruct and otherwise communicate with the persons legal representative, and
• Any other factor which the court considers relevant

Question 6

If somone is unable to recall apects of the incidient, does this therefore make them unfit for trial by mental disorder?

Answer 6

No.

Question 7

What is the overarching requirement for the accused to be considered to have a mental disorder?

Answer 7

Unable to appreciate the nature of their actions.

Question 8

What is the exception to the general rule regarding mental disorders?

Answer 8

The rule does not apply to those with:

• Personality disorders (i.e. psychopaths)
• An agressive nature

Question 9

What type of defence is mental disorder?

Answer 9

A special defence.

Question 10

What is the distinction between a complete defence and a special defence?

Answer 10

Complete defence: Entirely absolves the accused

Special defence: Can only be presented by defendant counsel, and only partially reduces sentence.

Question 11

Does mental disorder apply to drugs/alcohol?

Answer 11

No.

Question 12

What charge is given to those who were originally charged with murder, but are proven on a balance of probabilities to have a mental disorder?

Answer 12

Culpable homicide.

Question 13

While intoxication doesn’t apply as a mental disorder, what also should be noted?

Answer 13

Intoxication may be part of a larger mental impairment i.e. alcoholism.

Question 14

42. Brennan v HMA 1977 JC 38

Answer 14

• Voluntary intoxication is no defence
• Charged with murder of his father by stabbing him repeatedly
• Consumed 20-25 pints of beer
• Glass of sherry
• LSD
• Argued about the aesthetic merits of Dark-side of the Moon.
• Accused tried to argue that the quantity of the alcohol should constitute insanity
• Indeed, the forensic evidence suggested that the quantity was a lethal dosage of alcohol.
• No defence for voluntarily intoxication
• ‘Wickedly reckless’ – HMA v Purcell
• National issue with alcohol if a factor for decision arguably
• Not a complete defence: Plea in mitigation

Question 15

What is meant by automatism?

Answer 15

Not 100% conscience.

e.g. blow to the head, sleepwalking, involuntarily intoxicated (fumes, alcohol, drugs).

Question 16

43. Ross v HMA 1991 JC 210:

Answer 16

Automatism: Defence recognised

• Attacked 9 people at a party with a knife
• Spiked with LSD
• Appeal court changed the law, making it clear you could have a complete defence if the circumstances some conditions
• Made clear, you must show several things

Question 17

What are the four conditions attached to automatism?

Answer 17

• That factor was not reasonably foreseeable, nor self-induced
• The condition was unlikely to recur
• This had been caused by an external factor
• The accused was in a state of automatism

(FREA)

Question 18

What is the English equivalent to coercion?

Answer 18

Duress.

Question 19

*44. Thomson v HMA 1983 JC 69:

Answer 19

Leading case on coercion
- Recognised Hume’s four criteria as features of Scots Law.

NOTE: THERE ARE TWO THOMSON CASES (‘83 & ‘86).

• Accused convicted of armed robbery
• Drove the van in a case of armed robbery
• Coerced
• Threatened with a gun and injured his hand to emphasise their seriousness
• Found guilty
• Appeal court said that the judge gave the correct direction to the jury.
• Those being Hume’s 4 criteria to coercion, see below.

Question 20

Coercion: Hume’s 4 criteria

Answer 20

• There must be an immediate danger of death or great bodily harm
• Two women committed perjury, went to the judge and said that they only done so following a kidnapping.
• Whereas in England this was accepted, however in Scotland as is it wasn’t an immediate threat. Postponed threats too do not apply.
• There must be an inability to resist violence
• The accused must play backward and an inferior part in the perpetration of the crime.
• The accused must make disclosure of the facts and restitution of the spoils on the first safe and convenient occasion.

(PIIB)

Question 21

Does coercion apply to atrocious crimes such as murder?

Answer 21

No. *

Question 22

45. R v Dudley and Stephens (1884) 14 QBD 273:

Answer 22

• There is no unqualified necessity to take another’s life
• On a boat
• Stranded at sea
• Killed a 17-year-old boy cabin boy
• Low sentence

(Neccesity)

• Contrasted by Anderson which provides an example of a circumstance in which the defence of neccessity was successful in a murder trial.

Question 23

46. Moss v Howdle 1997 SCCR 215

Answer 23

Necessity: Must be a Danger of death or great bodily harm

• Speeding on a motor way
• When prosecuted pleaded necessity
• Said passenger was having a heart attack
• Passenger was in fact having a foot cramp
• Court declared with wasn’t necessity
• Threat to bodily injury
• If the passenger was having a heart attack, it would pass for necessity

IMPORTANT: In necessity cases if there is a third alternative then you must take it.

Question 24

47. HMA v Anderson (2006, unreported)

Answer 24

Necessity on a murder case (Successful)

• Running a person over
• Accused sitting in driver seat
• Son also in the car
• Two being attacked by a group of youths
• Killed one of the youths
• Had to drive in a certain direction
• Youth was not attacking the car at the point in question
• Lord Carloway allowed the case to go to a jury

Question 25

Is self-defence a complete offence?

Answer 25

Yes.

Question 26

48. HMA v Doherty 1954 JC 169:

Answer 26

Self defence: Two major limitations 1. Imminent danger to the life or limb of the accused 2. Retaliation must be necessary for his own safety * Doherty charged with voluntary culpable homicide * Stabbed the victim in the eye with a bayonette * Retaliation must be proportional NOTE: THERE ARE TWO DOHERTY CASES ('54 & '96).

Question 27

49. Fenning v HMA 1985 JC 76

Answer 27

Self Defence: No cruel excess of violence * Stuck victim with an air-rifle on the head * Accused and victim were friends * No doubt as to indident * Why did he do it? * Statement: Told the accused he knew of his affair with his wife; he would get his wife and he would do him as well * Was it necessary, or too far * He could not have used a ‘cruel excess of violence’

Question 28

50. Thomson v HMA 1986 SLT 281

Answer 28

Provocation: Immediate retaliation * Lost their self control It takes a trumedous amount of provocation to palliate stabbing a man to death. Words, however abusive or insulting, are of no avail. A blow with the fist is no justification for the use of a lethal weapon. Provocation, in short, must bear a reasonable retaliation to the resentment when it exites.

Question 29

What are the three limitations imposed on the defence of self-defence as outlined in the dictum in Thomson v HMA 1986 SLT 281 ?

Answer 29

1. There must be a significant amount of provocation in homicide cases. 2. Verbal abuse doesn't apply 3. There must be reasonable proportionality.

Question 30

What does provocation exclude?

Answer 30

* Provocation from verbal abuse * Cumulative provocation

Question 31

What is the exception to the rule that cumulative provocation doesn't apply?

Answer 31

Domestic violence.

Question 32

If A attacks B, but C comes to B's aid and accidentally kills A, can A use the the defence of self-defence?

Answer 32

Yes. Self-defence covers the acts of third parties.

Question 33

Gillon v HMA

Answer 33

Provocation: Sexual infidelity. - In cases where there is sexual infidelity, the accused must have 'snapped', and - The accused must only have acted as any other indivdual would have had they been met with similar circumstances.

Question 34

Donnelly v HMA

Answer 34

Provocation: The acts of third parties - In this particular circumstance the High Court declared that the defence of provocation does not apply to third parties HOWEVER this remains a grey area in the common law.

Question 35

What is the overarching rule of self-defence.

Answer 35

There must not be a cruel excess of violence (Reasonable proportionality).

Question 36

If A attacks B, but B then escapes but returns moments later and as the incident continues, B accidentally kills A, can B use the defence of self-defence.

Answer 36

No - there must be be an IMMEDIATE danger to the life or limb of the accused.

Question 37

If A threatens to kill B on a date in the future if A doesn't rob a bank, does this qualify as coercion?

Answer 37

No there must be an immediate danger to the life or limb of the accused as outlined in Hume's 4 criteria for coercion.

Question 38

A person found not guilty by reason of mental disorder must be sent to a mental health institution. (T or F)

Answer 38

False. If it is found that they accused only had the mental disorder at the time of the incident but no longer suffers as of the time at which the trial occurs, this serves as a distinction.

Question 39

When using self defence as a third party, does the person who initially was attacked necessarily need to have any ties to the accused (family, friend, coworker etc.)

Answer 39

No.