General defences

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  • General defences
    • Insanity
      • Criminal procedure act 1991-hospital order, supervision, absolute discharge
      • M’Naughten-disease of the mind as not to know the nature and quality of the act or did not know what he was doing as wrong
      • 2)Defect of reason- R V Clarke-denying MR not using a defence, absent mindedness cant be used as a defence
        • R V Sullivan- epilepsy is disease of the mind, during fit facilities could be impaired to cause a defect of reason
      • 3)Disease of the mind- R V Kemp- disease of the mind can be ‘ordinary mental faculties of reason, memory and understanding’
        • R V Burgress- argued automatism for sleep walking but found not guilty by reason of insanity-sleep walking is internal
        • R V Hennessy- insanity do D pleaded guilty to avoid mental institution
        • Smith- allowed defence even though the state was temporary
      • 4)D doesn’t know what they’re doing/doesn’t know its wrong-R V Windle- what he said proved he knew it was wrong
      • 1)presumption of insanity- WoolmingtonV DPP- burden of proof for insanity (medical evidence)
    • Non-insane automatism
      • Aquittal- Bratty V Attorney Gernal for Northern Ireland- act done by muscles w/o any control by mind or done by a person who’s not conscious of what he is doing e.g. concussion
      • Involuntary act-Attorney General’s reference no.2 of 1992- reduced awareness is not enough, LOC must be total
      • External cause-R V Quick- alleged medical condition not caused by diabetes, but insulin used to treat it
      • Self induced automatism- R V Bailey- self induced automatism can be a defence is D’s conduct was not reckless if D knows the state he would be in defence not allowed
        • Coley- D capable of complex organised behaviour and was clearly not acting wholly involuntarily
        • R V Hardie- could be automatism even though the drug had not be prescribed by a doctor
    • Intoxication
      • Must cancel MR. R V Kington- held intoxicated intent is still intent and the fact intoxication was not voluntary made no difference
      • Voluntary intoxication-can be used for specific intent crimes. DPP V Majewski- confirmed basic intent cant use intoxication defence
        • Can be used for murder but no manslaughter-R V Lipman- had not formed MR for murder and couldn’t use m/s, if D deliberately takes drugs/alcohol to escape reality cant plead defence to basic intent
      • Involuntary intoxication- 3 situations: 1)prescribed drugs-not reckless to take 2) soporific drugs- R V Hardie-quashed conviction as D thought it would calm him down, normal affect of Valium, not reckless 3)laced drinks
        • Automatism not available unless intoxication is involuntary- Hardie or Bailey
      • Dutch courage-Attorney General for Ireland V Gallagher- cant set out to get drunk to use the defence
      • Intoxication and mistake- R V O’Grady- as he became so drunk voluntarily, liable
        • Criminal Justice and Immigration Act 2008 S76(5)-mistake by induced intoxication can be ignored in relation to the offence
    • Self defence
      • Public defence- Criminal Justice and Immigration Act S76 allows defence to anyone who uses it reasonably in the circumstances to prevent crime or assist in arrest of offender
      • Private defence- defence of another or defence of property in reasonable circumstances
      • 1)necessity of action-due to threat of unjustified harm to themselves to someone else
        • Imminence of threat- Beckford- man about to be attacked does not have to wait for his assailant to strike the first blow so they may justify a pre-emotive strike
          • Attorney General Reference no.2 1983- defence available as threat was sufficiently imminent
          • Malnick V DPP- he put himself into a dangerous situation. Defence not allowed
        • Possibility of retreat-R V Bird- no obligations to demonstrate an unwillingnessto retreat
        • Mistake in context of self defence- R V Gladstone Williams- facts to be treated how D honestly believed them to be
        • S76(5)Criminal Justice and Immigration Act 2008- reasonableness of D’s action based on real facts
      • 2)reasonableforce-degree of force not reasonable if it was disproportionate to the circumstances-objective
        • CJA2008- a)may not be able to weigh nicety the exact measure of any necessary action b)honestly and instinctively though necessary for legitimate purpose
        • Reasonable force- R V Martin- liable, excess be force. Clegg-no danger=excessive force. Hussain- danger from original attack over, liablle
        • Collins-S76(5)allows discretionar judgement in householder,only able to use reasonable force


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