Defences

HideShow resource information

Insanity - General Rules

General Rules

  • only relevant at time of offence
  • Defendant: balance of probabilities were insane at time of offence
  • Prosecution: beyond all reasonable doubt
  • 'not guilty by reason of insanity'
  • if a murder charge - hospital order restricting discharge indefinitely
1 of 18

Insanity - M'Naughten (1843) Rules 1

M'Naughten (1843) Rules

  • Defect of reason
    • inability to use powers of reason
    • confusion or absent mindedness = not insane
      • Clarke - stealing from supermarket, no intent, had diabetes, domestic problems & clinical depression = not insane just absent-minded
2 of 18

Insanity - M'Naughten (1843) Rules 2

M'Naughten (1843) Rules 2

  • Caused by disease of the mind
    • Legal term not medical
    • Physical disease
    • Not brought on by external factors
    • Permenant or temporary
    • Distinguish diseased mind from unaffected mind
      • Kemp (1957) - lack of oxygen
      • Bratty (1963) - epileptic fit
    • Any mental disorder that could lead to violence likely to be disease of the mind
    • Could carry out purposeful acts while in an unconscious state
      • Sullivan (1984) - minor epileptic fit
        • legal definition of insane is v. diff. from medical definition
      • Burgess (1991) - sleepwalking
3 of 18

Insanity - M'Naughten (1843) Rules 3

M'Naughten (1843) Rules 3

  • D didn't know nature & quality of act/ didn't know it was wrong
    • didn't know what he was doing
    • didn't appreciate consequences of act
    • didn't appreciate circumstances in which he was acting
      • lack of mens rea - special verdict given rather than acquittal
    • Exceptions:
      • Windle (1952) - 'I suppose I'll hang for this' - understands nature of act
4 of 18

Insanity - Summary

Insanity - Summary

  • rarely used
  • more common when death penalty was a punishment & before DR
  • Indeterminate nature of orders - makes it unpopular
  • If D raises DR or automatism, Prosecution can raise insanity
5 of 18

Intoxication - General Rules

General Rules

  • can either be voluntary or invluntary
  • generally when voluntary - defence not accepted
    • however can be evidence that D doesn't have required MR
6 of 18

Intoxication - Involuntary

Involuntary Intoxication

  • drinks spiked with alcohol/drugs
  • take drugs prescribed by Dr. in accordance to instructions
  • take non-dangerous, not prescribed to him but in a non-reckless way
  • has to be proved that MR of offence is not formed
    • Kingston (1994) - Not a defence if D had intent, drug lowered inhibitions
      • couldn't control urges 
      • no access to defence despite being spiked
    • Allen (1988) - didn't realise how strong wine was
      • classed as vol. intox.
    • Hardie (1985) - husband took wife's valium, set fire to house
      • deemed invol. intox.
      • made distinction between non-dangerous and dangerous drugs
7 of 18

Intoxication - Basic Intent & Specific Intent

Basic and Specific Intent

  • Intoxication can only be a defence to specific intent crimes, not basic intent
  • Specific intent - MR is intention only
    • s.18 & murder
      • Lipman (1970) - D & gf taking LSD - thought being attacked by snakes, killed her
        • charged with murder
        • used defence - lowered to U.A.M
  • Basic intent - MR is intent or recklessness
    • assault, battery, s47, s20 & invol. mansl.
      • Majewski (1977) - charged with s.47, couldn't access intox. defence
8 of 18

Intoxication - Dutch Courage

Intoxication - Dutch Courage

  • If MR is formed before intox. = no access to defence
    •  
      • Attourney General for Northern Ireland v Gallagher (1963)
        • husband planned to kill wife, drank, so drunk couldn't form MR = no defence
9 of 18

Consent - Murder & Non-Fatal Offences

Murder

  • consent is not a defence to murder
    • cannot consent to your own murder
    • euthanasia is illegal
      • Pretty (2002) - assisted suicide

Non-Fatal Offences

  • can consent to battery but not more serious injuries
    •  
      • Brown (1993) - sado-masochistic acts
    • not in public interest
    • Exceptions - properly conducted games/sports, surgical interference, tatttoos etc
10 of 18

Consent - Normal Sporting Activities

  • Boxing - expect to get hit + possibly injured
    • if it goes beyond rules & regulations of sport - can be criminal liability
      • Barnes (2004) - serious leg injury after football tackle
        • only criminal liability when conduct is sufficiently serious
    • take following into consideration:
      • type of sport
      • level played
      • nature of act
      • degree of force used
      • extent of risk of injury
      • state of mind of person causing injury
11 of 18

Consent - Normal Social Intercourse & Medical Proc

  • Normal Social Intercourse
    • shaking hands
    • tapping someone's shoulder
    • hugging
    • person can withdraw consent - "get off"
  • Medical procedures, piercings, tattooing, blood tests:
    • often written consent prior to procedure
    • implied consent if an emergency
12 of 18

Consent - Horseplay & Sexual Activities

Horseplay

  • Pushing, shoving & arm wrestling friends
    • Jones ( 1986) - giving boy the bumps, could use defence if:
      • they were indulging in undisciplined play
      • did not intend to cause harm
      • believe V consented

Sexual Activity

  • Brown - sexual activities - no access to defence of consent
  • Dica - V consented to sex but not to transmission of HIV
13 of 18

Consent - Genuine Consent

  • child or mentally challenged consent may not be genuine
    •  
      • Burrell v Harmer (1967) - D tattooed two boys aged 12 & 13
  • Does V have sufficient understanding & intelligence to consent?
    •  
      • Tabassum (2000) - woman consented to medical examination thinking D was qualified
        • no access to defence of consent
      • Richardson (1998) - consent to dental treatment, V didn't know D was disqualified
        • defence accepted - should be disregarded
  • Consent is only relevant where AR & MR are established:
    • If one of both are not established it is not needed
      • Slinsby (1995) - D unknowingly caused internal bleeding with his ring, became septic, V died
        • no mens rea
14 of 18

Self-defence/ Prevention of Crime - General Rules

General Rules

  • D admits to committing AR & MR but acting in self-defence
  • Force is reasonable in circumstances
  • Available to all non-fatal & homicide offences

Private defence

  • defending himself/his property again actual or imminent attack
  • defending another against such an attack

Public defence

  • Section 3 of Criminal Law Act 1967
  • prevent commission of an offence
  • effect a lawful arrest
15 of 18

Self-defence/ Prevention of Crime - Necessity of F

  • use of force is not justified if not necessary
    • necessary if seen to be in circumstances which exist or D genuinely believed existed
      • Gladstone Williams (1987) - man saw woman being attacked by youth, bypasser (the defendant) thought man was attacking youth
      • prevention of crime
      • defence successful based on genuine belief in what was happening
    • defence can be successful even if attack had not yet taken place, providing it is imminent
      • Bird (1985) - ex-gf hits ex in eye with glass after being hit and pinned up
      • could be deemed excessive force
      • deemed reasonable due to what she thought might happen next
16 of 18

Self-defence/ Prevention of Crime - Reasonableness

  • jury decides whether force is reasonable
  • consider: 
    • facts/facts as D believed them
    • circumstances of attack
    • time available to D to decide on course of action
    • risk to D balanced against risk of harm to victim
  • 2008 Act, s76(7)
    • person acting for legitimate purpose may not be able to weigh to a nicety the exact measures of any necessary action
    • evidence person only did what they honestly believed was necessary
  • Burden of proof 
    • prosecution prove to jury beyond all reasonable doubt D was either:
      • not acting to defend himself/another
      • not acting to defend property/prevent crime/apprehend an offender
      • if he was, force was excessive
17 of 18

Self-defence/ Prevention of Crime - Cases

  • Palmer (1971) - Lord Morris of Borth-y-Gest 
    •  
      • "it is both good law  & good sense that a man who is attacked may defend himself"
      • if there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to necessities of situation.
  • Clegg (1994) - soldier shot once car (danger) had past
    •  
      • excessive
      • unsecessful
  • Martin (2001) - shot 16year old intruder in back & killed him 
    •  
      • excessive
      • unsuccessful
18 of 18

Comments

No comments have yet been made

Similar Law resources:

See all Law resources »See all Criminal law resources »