Defences

M'Naghten (1843)- D suffering from paranoia, shot Sir Robert Peel's secretary. Aquitted by HoL asked to clarify law on insanity. 

D must be labouring under a defect of reason, stemming from a disease of the mind AND must either not know the nature and quality of the act he was doing, or not know that he was doing wrong

Clarke- D absent-mindedly took items from a supermarket. Found that absent-mindedness or confusion is not insanity

Kemp- D suffered from hardening of the arteries which causes blackouts. Was found to within the rules of insanity as his condition affected his mental functioning, memory and understanding

Sullivan- D injured a friend during an epileptic fit. Insanity includes any organic or functional disease. It also applies even where the disease is temporary

Hennessy- D was a diabetic who took a car after failing to take his insulin. If the disease affects the mind then it is within the definition of insanity

Burgess- D injured his girlfriend while he was asleep. If the cause of the sleepwalking is internal, then it is a disease within the defintion of insanity

Quick- D was a diabetic who failed to eat after taking his insulin. This was an external cause, and therefore could not qualify as insanity.

Windle- D was suffering from a mental disorder and killed his wife, who has constantly spoken of committing suicide. Because he knew what he had done was legally wrong, he was not insane under the M'Naghten rules

Johnson- D, who was suffering from paranoid schizophrenia and suffering from hallucinations, stabbed his neighbour. Because he knew what he had done was legally wrong, he ws not insane by the M'Naghten rules

Bratty- Automatism defined as 'an act done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from concussion or whilst sleep-walking'

Non Insane Automatism:

Actus reus done by D is not voluntary, and D does not have the requirred MR for the offence

R v T- accepted that exceptional stress can be an external factor which cause automatism

A-G's Reference (No 2 of 1992) (1993)- reduced or partial control of one's actions is not sufficient to constitute non-insane automatism. CoA held that there must be 'total destruction of voluntary control'

Self induced automatism:

This is where D knows that his conduct is likely to bring on an automatic state

Bailey- CoA ruled that if the offence charged is one of specific intent, then self-induced automatism can be a defence. This is because D lacks the required MR

However, if the offence charged is one of basic intent then:

The prosecution will have to prove the necessary element of recklessness for the particular offence D has been charged with

Where the self induced automatic state is caused through drink or illegal drugs or other intoxicating substances, D cannot use the defence. DPP v Majewski- decided that becoming voluntarily intoxicated is a reckless course of conduct

Where D does not know his actions are likely to lead to a self-induced automatic state, he has not been reckless and can therefore can use the defence. Hardie- D took valium in the belief that it would calm him down. Therefore he had not been reckless.

Specific Intent crimes:

Voluntary intoxication:

Gallagher- If D has MR, he is guilty

If D has no MR, he is not guilty

Involuntary Intoxication:

Kingston- If D has MR, he is guilty

Hardie- If D has no MR, he is not guilty

Drunken mistake:

If the mistake negates MR, D is not guilty

O'Grady- If the mistake is about the need to defend oneself, it is not a defence, D will be guilty

Hatton

Basic intent crimes:

Voluntary intoxication:

Majewski- Becoming intoxicated is a reckless course of conduct, D will be guilty

Involuntary intoxication:

Hardie- D has not been reckless in becoming intoxicated, so not guilty

Drunken mistake:

Getting drunk is a reckless course of conduct, so D is guilty

Covers actions not only needed to protect oneself from attack, but also actions taken to defend another- These are common law defences . There is also a statutory defence of prevention of crime under s 3(1) Criminal Law Act 1967 which states: 'a person may use such force as is reasonable in the circumstances in the prevention of crime'

This means that the force must be necessary, and if so, then it must also be reasonable in the circumstances

s 6A of the Criminal Justice and Immigration Act 2008 (an ammendment added by s148 of the Legal Aid, Sentencing and Punishments of Offenders Act 2012) makes it clear that a person is not under a duty to retreat when acting for a legitimate purpose- but the fact that D could have retreated will be considered as a relevent factor in deciding whether the force was necessary

Hussain and another- If the attacker is running away, then it is highly unlikely that the force will be deemed as necessary

Whether the force was necessary is a question for the jury. Where D has made a mistake about what is happening, the jury have to decide whether force was necessary in the circumstances that D honestly believed existed

Williams- D must be judged on the facts as he genuinely believed them to be, regardless of whether the mistake was reasonable or not

s76(5) of the Criminal Justice and Imigration Act 2008 makes it clear that D cannot rely on any mistaken belief if the mistake is made due to D being voluntarily intoxicated

The amount of force which can be used in self defence is now explained in s76(7) of the Criminal Justice and Immigration Act. This allows for the fact that a person who is facing an attack by another is under stress and cannot be expected to calculate the exact amount of force which needs to be used in circumstances. If there is evidence that the person 'honestly and instinctively' thought the level of force he used was necessary to protect himself or another or to prevent a crime, then this provides strong evidence that the defensive action taken was reasonable in the circumstances. However, if force is used after all danger from the assailant is over, the defence is not available

The Crime and Courts Act 2013 has ammended s76 of the Criminal Justice and Immigraton Act 2009 to give a wider defence to householders where an intruder enters their property. The normal rule is that the degree of force will not be regarded as reasonable if it was 'disproportionate', however in a householder case, the law is that the degree of force will not be regarded as reasonable where it was 'grossly disproportionate'

To be a householder case:

-the force concerned is forced used by D while in or partly in a building that is a dwelling;

-D must not be a trespasser;

-D must have believed V to be a trespasser

Consent is always a defence to a common assault or battery because there is no injury caused

Where an injury is caused, then consent is not a defence unless the situation is one recognised as an exception to this rule on the basis of public policy

Slingsby- Consent isn't a defence as if a person consents, there is no offence

Tabassum- But there must be true consent

Olugboja- The fact that V submits to D's conduct through fear does not mean the consent is real

Dica- V cannot consent to sexual intercourse where they do not know that D is carrying a sexually transmitted disease

Wilson v Pringle- the ordinary 'jostlings' of everyday life were not battery, there is implied consent. This also applies to contact sports

AGR (No 6 of 1980) (1981)- 'most fights will be unlawul regardless of consent'

Brown- consent is not a defence to a s47 offence

The courts have recognised these as public policy exceptions where consent is a defence to an assault charge even if injury is caused:

-Properly conducted games or sports

-Reasonable surgical interference

-Tattooing

-Body piercing

-Horseplay

-Dangerous exhibitions

Contact sports:

Barnes- Where an injury is caused, criminal prosecution should be reserved for those situationswhere conduct was sufficiently grave to be properly categorised as criminal

Body adornment:

Tattooing is accepted as body adornmentm and therefore people can consent to it

Wilson- Branding can be consented to as it was considered 'body adornment'

Horseplay:

Jones- CoA said consent could be used when D and V had engaged in 'rough and undisciplined horseplay'

Aitken- Where D genuinely, but mistakenly, believes V is consenting, then there is a defence to an assault

Richardson and Irwin- A drunken mistake that V was consenting to horseplay could be a defence to a charge under s20

Medical procedures:

There is implied consent where a medical procedure is conducted to save someones life