Defences

Provocation, Diminished Responsibility, Consent

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Provocation

  • Common law defence established in R v Duffy- but modernised by the homicide act in 1957.
  • the defendant was provoked to lose their immediate self-control- two tier test;
    • was the defendant provoked to lose their immediate self control (subjective)
    • if a reasonable would have acted in the same way? (objective)
  • Can be directed from a 3rd party as seen in R v Davies, R v Ibrams and Gregory (subjective)- not allowed defence planned their act and wasn't immediate.
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Provocation part 2

  • The action was not immediate in R v Thornton and Ahluwalia- they waited to kill their husbands and they weren't allowed the defence - Ahluwalia appealed on diminished responsibility
  • The second test is objective- could lead to harsh decisions before it was modernised e.g. in R v Bedder he wasn't allowed defence because a reasonable man isn't impotent.
  • Characteristics now included; DPP V Camplin- defendants age was taken into account- AG for Jersey V Holley- R v Morhall
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Diminished Responsibility

  • Section 2 of the homicide Act 1957- its only a defence for murder and reduces it to manslaughter
  • The defendant has abnormality of the mind which substantially impairs mental responsibility of his acts or omission when being a party to a killing- burden of proof lies on defendant proving abnormality of the mind on a balance of probabilities- need medical evidence.
  • Abnormality of the mind- R v Byrne- any stat of mind considered abnormal by a reasonable man- decided by jury
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Diminished Responsibility

  • Arising from any inherent causes or induced by disease or injury- psychopathy, paranoia, epilepsy, depression, premenstrual syndrome- induced by disease covers mental and physical disease-Battered wife syndrome Ahluwalia
  • Substantially impair mental responsibility- know what they are doing is wrong and may have some control but find it more difficult to control their actions- R v Byrne should be decided whether or not the defendant has a substantially impaired mental responsibility.
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Diminished Responsibility Part 3

  • Intoxication cannot amount to diminished responsibility alone- but if the defendant is suffering from an underlying being condition- then intoxication is a significant factor and the defence maybe allowed- R v Gittens- mental disorder and then took drugs- R v Dietschmann.
  • Addiction to alcohol and has brain damage due to the alcohol hey maybe allowed the defence- R v Tandy- she wasnt allowed defence admitted she had control
  • R v Wood- Alcohol Dependency but was convicted and appealed- COA quashed his conviction- wrong to direct to the jury that the defendants drinking had to be involuntary
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Consent

  • Defence to all offences except murder
  • The activity involved- Ags ref- should not cause GBH to each other for no good reason
  • Sport is allowed depending on the sport and if the incident was on or off the ball- R v Barnes- Victim braking his leg was part of the game
  • Seriousness of the injury- R v Wilson- branding/ tattooing however in R v Brown wasn't allowed defence sadomasochistic.
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Consent part 2

  • R v Richardson and Irwin- usually participated in horseplay when sober so cant use the defence.
  • Consent is real- unable to comprehend to the nature of the act- child- Burrell v Harmer- tattooist wasn't allowed the defence because the boys weren't old enough
  • Consent is true- R v Tabassum- defendant lied
  • Informed consent- R v Dica didn't tell his sexual partners he had HIV- Biological GBH
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Automatism

  • Non- insane automatism- not legally insane but unable to control the actions of his open body- lack of actus reus as the act is not voluntary or lack of mens rea because the defendant is not conscious of what he is doing- ACT MUST BE INVOLUNTARY.
  • Defined in Bratty V AG for northern Ireland- ' Automatism means an act which is done by the muscles without any control of the mind such as a spasm, a reflex or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done while suffering from concussion or sleepwalking'.
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Automatism part 2

  • Automatism is usually caused by an external factor- R v T- post traumatic stress can amount to automatism. Australian case- R v Falconer- not binding but persuasive- husband beat defendant and was facing charges of incest with their daughters so shot him point blank but remembered nothing allowed defence.
  • Diabetes- Hyperglycaemia- insanity- Hypoglycaemia- Automatism
  • R v Quick- Hypoglycemia- nurse didn't take insulin and assaulted patient- rely on defence.
  • Self induced automatism is not usually allowed e.g. LSD- but in the case R v Hardie he was allowed defence because Valium had adverse effect
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Insanity

  • Insane automatism- prolonged stay in an asylum- Mcnaughton'scase- obsessed with prime minster but killed his secretary instead- found not guilty but caused outcry- so the judges published their reasoning.
  • Everyone is presumed sane unless the defendant states otherwise- balance of probabilities that the offence was committed;
  • defect of reason
  • and disease of the mind;
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Insanity part 2

  • a defect of reasondeprived the power of reason rather than just failing to use it- R v Clarke- stole mincemeat from shop had no reason to buy mincemeat- clear she was not in her own mind- allowed defence.
  • Disease of the mind is defined by lawyers and not medical experts
  • Epilepsy or diabetes can be classed as insane
  • Not limited to physical defects of of the brain- R v hennessey- diabetic- R v Kemp- Arteriosclerosis
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Insanity part 3

  • Not knowing the nature or quality of the act; he is in a state of unconsciousness or impaired consciousness- or he is conscious but due to his mental condition he does not understand what he is doing- If the defendant can prove this he can use the defence.
  • The defendant knows the nature or quality of the act - can still use the defence of insanity if he does not know what he is doing was wrong. R v Johnson- could not use defence
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