General Defences
- Created by: bethen0303
- Created on: 04-12-17 11:30
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- General Defences
- Insanity
- A general defence, available to all offences. General principle = every man is presumed to be sane. D must have been insane when he committed the act. Insanity is not a complete defence; it does not result in a full acquittal.
- R v M'Naghten - for the defence of insanity to succeed, the D must prove that at the time of committing the act: D had a defect of reason, which must be a result of a disease of the mind, which causes D to not know the nature and quality of his act, or that what he was doing was legally wrong.
- Burden of proof on D, on a balance of probabilities.
- Defect of reason: D's powers of reasoning must have been impaired, if D is capable of reasoning but has failed to use those powers then it wont be a defect or reason. Clarke - only apply to those who are deprived of the power of reasoning, it doesn't apply to people who have moments of confusion or absent-mindedness.
- Must be a result of a disease of the mind: this is a legal term, not a medical term. It must have originated from inside the body (internal factors). Kemp - D's ordinary mental faculties of reason, memory and understanding had been affected. Sullivan - 'disease of the mind could be temporary and the actual medical condition of the brain was not in itself relevant as long as it existed at the time of the act'.
- Quick - caused by an external factor (insulin), so did not come under insanity, but could rely on automatism. Hennessey - affected by an internal factor (diabetes), so came within the insanity rules.
- Nature and quality of the act: Windle - his words 'I suppose they will hang me for this' showed that he knew he had committed a legally wrong act, so could not rely on insanity
- Automatism
- A general offence available to all offences. It is a complete defence, resulting in a full acquittal.
- Bratty v AG for Northern Ireland - Lord Denning 'an act done by the muscles without any control by the mind...or an act done by a person who is not conscious of what he is doing' = automatism defined.
- 1. The D must have been acting involuntarily: Attorney Generals Reference (No. 2) - automatism should only be available where there is a total destruction of voluntary control, a partial loss of control is insufficient.
- Must be caused by an external factor - Quick and Hennessey
- Self-induced automatism: where the D was aware that his conduct may bring on an automatic state, he may not be able to use the defence. Dependent on the level of awareness and whether the crime was of basic or specific intent. Bailey - if the offence is one of specific intent then self-induced automatism can be a defence, as D may lack the required MR.
- Specific intent = any crime where only an intention will satisfy the MR (s.18 GBH and murder). Basic intent = any offence where the MR is satisfied through recklessness.
- Consent
- A complete defence, resulting in a full acquittal. Consent is not available to all offences.
- A person cannot consent to being killed (Pretty). Consent can only be pleaded for assault or battery. Ordinary jostling's of everyday life are not a battery (Wilson v Pringle).
- R v Brown held that consent was not a defence as 'SM homosexual activities are not conducive to the enhancement or enjoyment of family life or to the welfare of society'.
- R v Brown exceptions: properly conducted games or sports (Barnes), reasonable surgical interference, tattooing (Wilson), body piercing, horseplay (Jones), dangerous exhibitions.
- Consent must be genuine; where obtained by fraud it will be invalid (Richardson (dentist), Tabassum (breast examination), Dica (HIV)).
- Violence involving the deliberate and intentional infliction of bodily harm for the purpose of sexual gratification, wont fall into the exceptions (Slingsby (ring) and Emmett (fire)).
- Intoxication
- A general defence, only available in certain circumstances, dependant on whether the intoxication is voluntary or involuntary.
- Intoxication = where someone is poisoned through drink or drugs and this defence may negate the MR of certain crimes.
- Voluntary Intox = where D takes drugs or alcohol of his own free will, or when D knows the effects of a prescribed drug will be to make him intoxicated.
- Sheehan and Moore - (petrol over tramp) their intox was a defence for the specific intent crime (murder), but found guilty of manslaughter as a 'drunken intent is still an intent'.
- AG for Northern Ireland v Gallagher - (Dutch courage) conviction for murder upheld as D had the necessary MR despite intox.
- Majewski - voluntary intox can only be raised for crimes of specific intent, not for crimes of basic intent.
- Involuntary intox = where D does not know he is taking drugs or alcohol or is not aware of the effects.
- Kingston - (sedated and blackmailed but had a history in the area) D could not use intox as it could be proven that he did intend the acts he committed whilst intoxicated.
- Hardie - (out of date valium) the drugs were not known to be dangerous, so he had not been reckless and intox allowed.
- Self Defence / Prevention of Crime
- SD is a common law offence outlined in Palmer. POC is a statutory defence contained in s3(1) Criminal Law Act 1967. Both cases have been updated in s.76 of Criminal Justice and Immigration Act 2008. Both use an identical test.
- Complete defences, resulting in a full acquittal. They are available to all offences. They operate by negating the unlawfulness of the offence. Can be pleaded in 3 circumstances: defending oneself, defending another, prevention of crime.
- Must establish: was the force necessary and was the force reasonable in the circumstances?
- Necessity of force - did D only do what he honestly and instinctively thought was necessary at the time? (question for jury) subjective. The belief must be genuine, it doesn't matter if he made a mistake.
- Gladstone Williams - (saw young boy being attacked) D genuinely believed that a youth was being attacked by a man, so his force was necessary and conviction was quashed.
- Bird - (poured wine over ex's head and when he pinned her against the wall she punched him) conviction quashed. There is no obligation to retreat, as her demonstrating an unwillingness to fight was good evidence of SD
- Reasonableness of force - Palmer: 'it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action'.
- Clegg - (shot after car passed) the force was excessive as he nor anyone else was any longer in danger so was convicted of murder.
- Martin - (farmer) SD rejected as the forced used was excessive and unreasonable
- Criminal Justice and Immigration Act 2008 s.76(6) - the degree of force used by D is not to be regarded as having been reasonable if it was disproportionate to the circumstances.
- Householders - The Crime and Courts Act 2013 s.43: ' the degree of force used by D is not to be regarded as having been reasonable if it was grossly disproportionate to the circumstances'.
- Insanity
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