General Defences

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BOP is on D, SOP is on a balance of probability, special verdict of "not guilty be reaon of insanity"

M'Naghten - Leading case for the defence/set out the principle of the defence.

"Every man is pressumed to be insane and to possess a sufficient degree of reason to be guilty".

1) Is there a defect of reasoning?

Clark - "This must be more than mere absentmindedness or confusion".

2) Does this arise from a disease of the mind?

This is a legal term not a medical one.

Sullivan - Epilepsy, Hennesey - Hyperglycaemic Diabetes, Burgess - Sleepwalking 

3) Does D know that the nature and the quality of the act he is carrying out is wrong?

Windle - "This means legally wrong not morally wrong and if D does know this then he cannot use the defence even if he has a disease of the mind".

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Bratty - leading case for the defence/ defined defence as " an act done by the muscles without control of the mind , such as a reflex action, spasm or convulsion or an act done by someone who is not conscious of what they're doing."

1) Involuntary

AGs ref (No. 2 of 1992) - "There must be total destruction on voluntary control".

2) Self- induced automatism

Bailey - "Where Ds automatic state is selfinduced but he has no mens rea, the defence may still be used for specific intent offenecs", Hardie - "If D did not know the risk of self-induced automatism he hasn't been reckless".

3) Cause by external factors

R v T - Post Traumatic Stress Disorder, Quick - Hyproglycaemic Diabetes

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Success leads to acquittal/The defence can be used for assault and battery.

Brown - Can be used where there is an injury but only if there is a public policy exception.

1) Consent must be real

Tabassum - "Consent must be on the real facts, not just as D believed them to be", Olugboja - "Consent must not be through fear of violence from D", Dica - "Sexual consent may be negated where D has a known STD".

2) Implied Consent

Wilson & Pringle - "We consent to the everyday jostling's of life".

3) Public Policy Exceptions

Pretty - "You cannot consent to your own death", Barnes - Leading case for contact sport/Must ask if the conduct is "within the normal and accepted rues of play", Wilson - Body Adornment and Tattooing,  Jones - "Rough and undisiplinery horseplay is an exception", Aitken - "It is possible to have a mistaken belief in consent". 

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Self Defence/Prevention of Crime

Provisions for self defence are contained under S76 Justic and Immigration Act 2008, with further provisions for the prevension of crime under S3 Criminal Law Act 196 7

Success leads to acquittal.

1) Is the force neccessary? 

Hussain & Another - "If V is running away then force is most likely not neccessary", Williams - "D should be judged on the facts as he genuinly percieved them to be, regardless of how unreasonable they were". Martin - "Unlikely if the threat is over", Bird -"Pre-emptive takes are allowed".

2) Is the degree of force reasonable?

S76 Justic and Immigration Act 2008 - Did D believe it was honestly and instinctively neccessary for a legitimate purpose? Consider that there may not be time to weigh to a nicety the exact measure of force appropriate. 

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Includes drugs, alcohol or other forms of substance abuse.

1) Is intoxication involuntary?

Kingston - "Ds guilt for a specific intent offence will depend on if he has the mens rea", Hardie - "D will not be guilty of a basic intent offence as he has not been reckless".

2) Is the offence one of basic or specific intent?

Sheehan & Moore - "Ds guit for a specific intent offence will depend on if he has the mens rea", Majewski - "The defence will not be available for a basic intent offence as it is a reckless course of conduct to become intoxicated". 

3) Drunken Mistake

O'Grady - "D will be guilty regardless of any drinken mistakes".

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1) The Threat

Valderamma-Vega - "There must be a central threat of death or serious harm",  R v Cole - "This must be accompanied by a demand to commit a specific offence".

2) Two Part Test

Graham - "Did D have reasonable belief in the circumstances and would a person of sober and reasonable firmness, sharing the characteristics of D, have acted in the same or simliar way?"

3) Safe avanue of escape

Abdul-Hussain - "Is the threat hanging over D?", Hasan - "Was there an oppotunity to seek police protection or avasive action?", Hudson & Taylor - "Police protection may not always be effective".

4) Self-induced Duress

Sharp - "Did D voluntariy, with knowledge of its nature, join a violent gang?", Shepherd - "If D had no knowledge of the gangs nature then duress may be availabe as a defence".

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