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".
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."
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
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".
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.
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".
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".