Defences

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Consent

  • not a defence for murder
  • 'gillick competence'- parents may give consent on behalf of their children until child has sufficient understanding of what is proposed
  • court will look at nature and degree of harm consented
  • in the case of Wilson v Pringle; jostlings of everyday life so bumping into one another has implied consent
  • consent must be real
  • if consent is successful D's acquittal

Allowed:

  • Surgery- many surgery require a wound being inflicted in order to facilitate the operation
  • Sports- deemed to be socially beneficial participants are able to consent injuries susatined during the course of a game
  • Horseplay- courts have accepted consesnt as a defence even to serious injury sustained during horseplay
  • Brown & Others- D's were members of a group that engaged in homosexual activities, including genital torture & branding. Acts were done in private with consent. Police found vidoes and were charged with ABH & GBH as it is not acceptable for the welfare of society.
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Insanity

Defect of reason: D's ability to reason was impaired- R v Clarke- The defendant, a diabetic, was charged with theft of items in a supermarket. Her defence was that she had no intent to steal. There was evidence that she had behaved absent-mindedly in the home. She said that she must have put the items in her bag in a moment of absent-mindedness. Her doctor and a consultant psychiatrist testified that she was suffering from depression, which the consultant accepted to be a minor mental illness which could produce absent-mindedness.

Disease of the mind: legal term not medical- R v Kemp: D an elderly man suffered with arteriosclerosis caused unconsciousness, attacked wife with hammer during the night.

  • Condition courts have accepted as constituting a disease of the mind

Did not know the nature / quality of his act / didnt know the act was wrong- nature and quality - D would be unaware of their actions! R v Windle: D killed his insane wife who was always threatening suicide. He killed her with 100 aspirin.  He said “I suppose they will hang me for this?” indicating he knew it was legally wrong, whereas he thought it was morally right. if D knows what they did but didnt know it was wrong they can rely on the defence

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Automatism

1.Total loss of voluntary control: D must showthat there was a complete loss of voluntary control in order to rely on automatism- D in a hypoglycaemic state drove home very erratically from work, hitting another car at one point.  Afterwards he could remember nothing about the journey, but seeing the damage to his car, reported himself to the police.  Medical evidence suggested that it was possible for someone in his state to complete a familiar journey without being conscious of doing so, and that although his awareness of what was going on around him would be imperfect, he would be able to react sufficiently to steer and operate the car, even though not very well. held still guilty not entirely acting in a involuntary manner

Bratty v Attorney General (1963)- Lord Denning 'an act which is done by the muscles without any control by the mind' 

  • 2. Loss of control-external factor: total loss of control caused by external factor such as; a blow to the head causing concussion, being stung by a bee, reflex action, being hypnotised
  • Self Induced; if D's automatism is caused by something else other than alcohol/drugs, still might be able to use the defence- R v Bailey- D seriously injured a rival in love with an iron bar.  D, a diabetic, visited his ex-girlfriend and her new partner.  He took insulin and drank some sugared water but he had nothing to eat.  He assaulted the partner of his ex-girlfriend.  He said he hit him to teach him a lesson for associating with the girl.  
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Intoxication

Absence of MR- D must show that the alcohol/drugs made him incapable of forming the MR of the relevant offence. if despite their intoxication D was still able to form the MR of the offence, defence will not apply.

How: D can become intoxicated by alcohol/drugs, D was so intoxicated that he was incapable of forming the MR of the offence charged with, Defence will apply only in limited circumstances where the effect of intoxication was extreme.

Specific Intent: MR intent only, Murder, S18OAPA1861, theft, robbery, burglary,vol/invol, provide a defence to specific intent crimes

Basic Intent: Invol Mans, S20OAPA1861, S47OAPA, assault, battery. Can have recklessness

Specific & Basic: even if D proves that they lacked MR, they can still be found liable for some crimes. courts have also drawn a distinction between crimes of specific & basic intent crimes. 

Burden & Standard: Rests with D

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Voluntary & Involuntary Intoxication

Voluntary Intoxication: 

  • applies to D who has voluntarily consumed alcohol/drugs, commonly known to make people aggresive or ut of control. if he/she is incapable of forming ther necessary MR D will havr a defecnt to specific but not basic intent crimes
  • 'Dutch Courage'- someone deliberately gets intoxicated to give themself 'dutch courage' to commit a crime, his'her intoxication will not be a defence to any crime
  • Attorney General for Northern Ireland v Gallagher (1963)- D killed his wife. He drank a bottle of whisky to give him the "Dutch courage" to do so. 
    As long as D had the mens rea of murder at the time of drinking the whisky, and did not positively discard it, he could properly be convicted. Lord Denning: defence not available to either 'specific' or 'basic' intent, if drink or drugs taken to fortify courage. 

Involuntary Intoxication:

  • Defendant had an unexpected reaction to soporific drugs, D was spiked without his awareness, D took prescription drugs
  • if D is voluntarily intoxicated they will have a defence to both intent crimes as long as they didn't form the MR
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Mistake

  • mistake made need not be reasonable as long as the view is honestly held.
  • if a mistake is made due to voluntary drunkeness the rules from MAJEWSKI and Richardson apply.
  • Gladstone v Williams: D truly thought that he was attacking a mugger & not a police officer. His honest belief meant that he had no MR to commit a crime, rather his intention was to prevent one.
  • R v Kimber:   concerns indecent assault D wrongly thought his victim was consenting. His mistake was honsetly held so he was not guilty. Recent changes to the law consent mean that D would now e guitly if a reasonable person would realise the age of the victim.
  • Beckford v R:   D a PC shot dead man running from rear of house, following a domestic.D is to be judged on the facts, as he believed them to be. Self-defence can be pre-emptive, force required to be reasonable, as he believes necessary.
  •  an honest albeit unreasonable mistake negatives mens rea. It is a subjective test, the more serious the crime the less likely the jury will be to believe the D's evidence.
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Private / Public Defence- Section \3 Criminal Law

Leading case is: R v Clegg- if prosecution prove the act was not in self defence & that the force used was excessive and the defendant intended death/GBH he was guilty of murder

Force used musy be necessary& reasonable.

'a person may use force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders / of persons unlawfully at large' 

Did the accused believe the force was necessary? If yes,, then jury must consider whether the force was reasonable.

Test is subjective as D cannot 'weigh things to a nicety as to how much force is lawful'. 


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