defences minus self defence





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  • Created on: 06-01-13 15:12
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When a defendant is charged with an offence, there are various defences which may be
available to them
If a defence is used and it is successful then the defendant is acquitted of the crime
The only exception to this is the defence of insanity because a special verdict of not guilty by
insanity is given
o Defendant must prove on the balance of probabilities, that he was insane at the time of the
o If the prosecution wishes to raise the defence of insanity they must prove it beyond all
reasonable doubt (because everyone is presumed sane)
o Insanity is not a defence to all offences = DPP v H (1997) ­ D was charged with excess
alcohol, it was held insanity could not be considered an defence
What happens if the "not guilty by reason of insanity" verdict is given?
Under Criminal Procedure (Insanity and Unfitness to Plead) Act 1991the court has a range of options
For murder they must impose a hospital order restricting Defendant's discharge indefinitely
For other offences the courts may make:
a hospital order and an order restricting discharge either for an unlimited or limited
period of time
a guardianship order
a supervision and treatment order
an order for absolute discharge = Brian Thomas/ "Dream Killer"
What must be established for the defence to succeed?
The Defence of Insanity comes from the case of McNaughten (1843)
Case Facts Principle
McNaughten (1843) D suffered from extreme paranoia and The fact that he was found not guilty
believed he was being persecuted by the caused a public outcry so the House of
Tories. He attempted to kill the PM Robert Lords wrote a series of questions to
Peel but missed and killed his secretary clarify the law on insanity ­ these led to
instead. Because of his mental state he the McNaughten Rules.
was found not guilty but he was
committed to a mental hospital.

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McNaughten Rules
Main rule = "in all cases every man is presumed to be sane and to possess a sufficient degree
of reason to be responsible for his crimes".
For the defence of insanity, it has to be proven that at the time of the act, the D was
suffering from:
1. A defect of reason
2. Caused by a disease of the mind
3.…read more

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Can be organic = disease of the organs of the body like epilepsy, diabetes, tumours or
Case Facts Principle
Hennessy Diabetic who had not taken insulin for Disease of diabetes was affecting his mind and
(1989) three days. He got into a car that had been so comes within insanity.
reported stolen.
Burgess (1991) D and his girlfriend had been watching Is insanity if sleep walking isn't caused by any
videos and they fell asleep. Burgess external factors.
attacked the girl in his sleep.…read more

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The defendant must show his act was:
Involuntary ­ Lord Dening quote see Bratty
Due to an external factor ­ has to be caused by an external cause (blow to head, sneezing,
hypnotism) and not by an internal cause (disease of mind) or self-induced (drugs or alcohol)
Types of Automatism
1.…read more

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For basic intent offences there are three
Hardie (1984) D was depressed because he girlfriend split Where the D does not know his actions are
up with him. He took valium tablets to calm likely to lead to a self-induced automatic
himself but these made him set fire to a state in which he has not been reckless and
wardrobe. can use automatism.…read more

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The fact that the Victim appears to consent doesn't make the consent genuine.
If the victim is mentally retarded, then the consent may not be valid.
It is whether the victim has sufficient understanding and intelligence to give consent.
3. Sexual consent and the transmission of disease is consent if the victim knows both the nature
and quality of the act.
Case Facts Principle
R v Olugboja (1982) Two girls aged 16 and 17 accepted a lift from a Difference between consent and submission
stranger.…read more

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Case Facts Principle
R v Billinghurst (1978) During a rugby match, the D punched D was charged with s.20 GBH. Although the victim
another player fracturing his jaw. consented to the risks in rugby, he didn't consent to
off the ball physical contact so the D was charged.…read more

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Wilson (1997) Couple wanted to brand initials on each Court of Appeal quashed the conviction ­ branding
other's buttocks. The branding went septic on was deemed to be same as tattooing and his wife
his wife and Mr Wilson was convicted of ABH. was a willing participant and within the marital
o Horseplay:
Lord Mustill said "the courts have decided that the criminal law does not concern itself with
these activities, provided they do not go too far".
E.g.…read more

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Intoxication cannot be relied upon if the defendant has voluntary put themselves in a state of
intoxication and then committed a crime. (Reckless conduct if you drink voluntarily ­
Voluntary intoxication can be a defence to specific intent crimes (Lipman)
Specific intent crimes
No recklessness, has to be intention e.g.…read more

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O'Grady (1987) D was drinking with his friend and woke up If the drunken mistake is about the amount of
to find his friend attacking him so he force needed in self-defence, the D will not
retaliated. The victim died of the injuries have a defence. D was convicted of
suffered. manslaughter (basic intent).…read more


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