Defences

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

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

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

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

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

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

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

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

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

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

• 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

• 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

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

• 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

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

• 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

• 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

• 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