Page 49-56 Law

1. The rules on insanity are based on the case of M’NAGHTEN (1843). Where D wants to rely on the defence, three elements have to be proved by D on a balance of probabilities:

 that at the time of committing the act D had a defect of reason; and 

this defect of reason was the result of a disease of the mind; and 

this defect of reason caused D not to know the nature and quality of his act, or not to know he was doing wrong.

2. Where D is found to be insane the special verdict is ‘not guilty by reason of insanity.’

3. A defect of reason means that D was unable to reason at the time he acted. Temporary absent-mindedness or confusion is not enough. In CLARKE (1972) D absent-mindedly took items from a supermarket while depressed; this was not insanity.
 

4. D’s defect of reason must be the result of a disease of the mind. This is a legal term decided by the judge, not a medical one.  

The disease can be a mental disease. In SULLIVAN (1984) the House of Lords gave the examples of schizophrenia, paranoia and manic depression. 

 The disease can be a physical disease which affects the mind. This includes brain tumours and in certain circumstances, diabetes and sleep disorders. 

In KEMP (1956) D had a narrowing of the arteries which reduced the flow of blood to the brain. This caused lapses of consciousness. During one of these he attacked his wife with a hammer. The Court of Appeal upheld the special verdict.  

In SULLIVAN hit out at V during an epileptic fit and was convicted of ABH. The House of Lords upheld his conviction and held that the relevant defence was insanity, as epilepsy was a disease of the mind.

Where D’s defect of reason was the result of an internal factor, then it is a disease of the mind. 

In HENNESSY (1989) D was a diabetic who had taken a car and driven while disqualified. He had failed to take his insulin and this had caused him to lose control of his actions. The Court of Appeal held that his failure to take his insulin meant it was the diabetes which caused his defect of reason and this was an internal factor. The correct defence was insanity. 

In BURGESS (1991) D claimed he was sleepwalking when he hit V over the head with a bottle. The Court of Appeal upheld the special verdict because the cause of his defect of reason was an internal factor: a sleep disorder. 

5. Finally, the defence of insanity is limited in its availablity in that D must not know the nature and quality of his act, or not know he was doing wrong.

 D not knowing the nature and quality of his act means D was temporarily unconscious at the time he acted or that D did not know what he was doing – the Ds in KEMP, SULLIVAN, HENNESSY and BURGESS were all unaware of what they were doing. If D is delusional, they would also satisfy this element. For example, D cuts V’s throat under the insane delusion that he is slicing a loaf of bread. 

Where D knows the nature and quality of his act, he can still use the defence of insanity if he does not know that what he did was legally wrong. If D knows the nature and quality of his act and that it is legally wrong, he cannot use the defence of insanity. This is so even if D is suffering from a mental illness. In WINDLE (1952) D, who suffered from a mental illness, killed his wife with an overdose of aspirins and then said ‘I suppose they will hang me for this’. This showed that he knew his actions were legally wrong so he could not use the defence of insanity. His conviction for murder was upheld on appeal.
 

1. There are two types of automatism:

 insane automatism (or insanity for short; see above) 

non-insane automatism (or automatism for short)

If successful, the defence of insanity leads to the special verdict and automatism leads to an acquittal.

When D raises this general defence, the burden is on the prosecution to disprove it beyond reasonable doubt.
 

 D must have no voluntary control over his actions. For example, D suffers a spasm, a reflex action or is not conscious of what he is doing. In ATTORNEYGENERAL’S REFERENCE (No.2 of 1992)(1993) D killed two people when his lorry crashed into a car on the hard shoulder of the motorway. He said he was in a trance-like state at the time due to driving for so long on the motorway. The Court of Appeal held that because he still had some control over the lorry, this did not amount to automatism. A partial loss of control is insufficient.

D’s automatic state must be caused by an external factor. Examples include: 

a blow to the head 

an attack by a swarm of bees 

sneezing and hypnotism 

the effect of a drug

. In QUICK (1973) D was a diabetic nurse who attacked one of his patients. He had failed to eat after taking insulin and he argued this had caused him to lose control of his actions. The Court of Appeal held that his failure to eat meant that the insulin caused his loss of control and this was an external factor. This would therefore be automatism not insanity.

Self-induced automatism is where D knows his conduct is likely to bring on an automatic state.

   If D has been reckless in getting into an automatic state, self-induced automatism cannot be a defence. For example, a diabetic who fails to eat after taking insulin will not be able to rely on the defence, if he is aware that his failure to eat might lead to aggressive and uncontrolled conduct: BAILEY (1983). 

Where the self-induced automatic state is caused by voluntary intoxication, D cannot use the defence of automatism. This is because D is seen as reckless in getting intoxicated so has the mens rea for the basic intent offence: DPP v MAJEWSKI.

There is a common law defence of self-defence/defence of another. It is a complete defence and D will be acquitted if it succeeds. The right of private defence is the right to use force in defence of oneself, in defence of property or in defence of another against an unjustifiable attack.

There is a statutory defence of prevention of crime under s.3 of the CRIMINAL LAW ACT 1967. It is a complete defence and D will be acquitted if it succeeds. The right of public defence is the right to use force in the public interest to either prevent crime or lawfully arrest someone. 

Private and public defence is a general defence to any crime of which the use of force is an element. When D raises either defence, the burden is on the prosecution to disprove it beyond reasonable doubt.

There are two main points to be decided for both defences. These are:

i. was the use of force necessary? If it was, then

ii. was the amount of force used reasonable in the circumstances?

Firstly, D must honestly believe that the circumstances are such that the use of force is necessary.

 D is not under a duty to retreat if faced with a threat from another. The possibility of retreat is merely a relevant factor to determine whether D’s use of force was necessary: s.76(6A) of the CRIMINAL JUSTICE AND IMMIGRATION ACT 2008 (CJIA 2008). So if the attacker is running away from D, then it is highly unlikely that force will be considered necessary. In HUSSAIN AND ANOTHER (2010) the two Ds had attacked and seriously injured a burglar as he was escaping down the street. The Court of Appeal held that they could not use the defence of self-defence to avoid being guilty of s.18 OAPA 1861 as the danger was over when they beat up the fleeing burglar. This was a revenge attack and the use of force was not necessary. 

D does not have to wait to be attacked before he can use force to defend himself. D may make a pre-emptive strike or make preparations to defend himself if he apprehends an attack. In ATTORNEY-GENERAL’S REFERENCE (No.2 of 1983)(1984) D prepared petrol bombs in fear of an attack on his shop. The Court of Appeal accepted that D could make preparations in self-defence. This is so even if the preparations involve breaches of the law.
 
 If D genuinely made a mistake about being threatened or needing to act to prevent crime, he is to be judged on the facts as he believed them to be. This is so even if the mistake was unreasonable: s.76(3) CJIA 2008. This confirms WILLIAMS (GLADSTONE) (1987) in which D punched a police officer whom he mistakenly thought was assaulting someone and was charged with ABH. The Court of Appeal quashed his conviction and held that D was to be judged on the facts as he believed them to be. His mistake as to the need to defend another did not have to be a reasonable one, as long as it was genuinely held. 

However, a mistaken belief caused by D’s voluntary intoxication is not sufficient for the defences of self-defence or prevention of crime: s.76(5) CJIA 2008. This confirms O’GRADY (1987) where D, who had been drinking alcohol all day, hit a friend over the head in the mistaken belief that the friend was trying to kill him. The Court of Appeal upheld his conviction for manslaughter. The defence of self-defence was rejected due to his intoxicated mistake.

Secondly, it must be that a reasonable person would have used that amount of force in the circumstances as D believed them to be.

 The degree of force used by D will not be reasonable if it was disproportionate in the circumstances: s.76(6) CJIA 2008.

 In householder cases, the degree of force used by D against a burglar will not to be reasonable if it was grossly disproportionate in the circumstances: s.76(5A) CJIA 2008. 

D may not be able to weigh to a nicety the exact measure of any necessary action: s.76(7)(a) CJIA 2008. 

Where D only did what he honestly and instinctively thought was necessary is strong evidence that only reasonable action was taken: s.76(7)(b) CJIA 2008.

 In deciding whether the degree of force used by D was reasonable in the circumstances, the court must ignore any psychiatric condition (e.g. paranoid schizophrenia) that might cause D to perceive much greater danger than the average man: MARTIN (2002).

1. This is relevant where D has committed the offence because he has been threatened with death or serious injury. D has an excuse because he has been effectively forced to commit the offence. 
 
2. If D is told by someone to commit a specific crime ‘or else’, it is known as duress by threats. For example, D is told she will be killed unless she acts as a getaway driver for a robbery. If the threat comes from the circumstances in which D finds herself, it is called duress of circumstances. For example, a rapidly engulfing forest fire leads D to steal a car to escape to safety.
 
3. It is a general defence to all crimes except murder and attempted murder. When D raises the defence, the burden is on the prosecution to disprove it beyond reasonable doubt.

4. According to the House of Lords in HASAN (2005), the elements of duress by threats are: i. there must be a threat of death or serious injury;

ii. that threat must be made to D or his immediate family or someone close to him or someone for whom D would reasonably regard himself as responsible;

iii. D must reasonably believe that he had good cause to fear death or serious injury and his response must be one which might be expected of a sober person of reasonable firmness;

iv. the crime must be directly caused by the threats;

v. there must be no reasonable opportunity to escape the threat;

  vi. D cannot rely on threats to which he has voluntarily laid himself open.

5.Was there a threat of death or serious injury? 

It is probable that a threat to cause serious psychiatric injury could amount to duress: BAKER AND WILKINS (1997). 

Threats of blackmail are not sufficient.

 A threat to destroy or damage property is insufficient. 

There does not have to be an actual risk of death or serious injury to D. It is sufficient that D reasonably believes that there is a threat of death or serious injury.

6. Was the threat made to D or his immediate family or someone close to him or someone for whom D would reasonably regard himself as responsible? 

In WRIGHT (2000) threats against D’s boyfriend sufficed. 

In HASAN it was said that persons for whom D would reasonably regard himself as responsible would cover those who could be injured by a bomb unless D committed the relevant crime.
 

Did D reasonably believe that he had good cause to fear death or serious injury and was his response one which might be expected of a sober person of reasonable firmness?

 According to GRAHAM (1982) it must be that a sober person of reasonable firmness, sharing certain characteristics of D which affect D’s ability to resist the threat, would respond in the same way. 

In BOWEN (1996) the Court of Appeal held that the following characteristics could be relevant to decide if a reasonable person would respond in the same way as D: 

D’s age ,D’s sex , if D was pregnant , if D had a serious physical disability , if D had a recognised mental illness (e.g. post-traumatic stress disorder and severe battered woman’s syndrome)

A low IQ would not be taken into account as it does not affect D’s ability to resist the threat. It is also irrelevant that D is emotionally unstable, unusually pliable or vulnerable to pressure. 
 

Was the crime directly caused by the threats? 

It must be that D would not have committed that specific crime but for the threats. Someone has basically said ‘commit this specific crime or else’. In COLE (1994) D had been threatened because he owed money. He then committed robbery in order to pay off the debt. He said he only did this because he was in fear for his life and that of his girlfriend and child. The defence of duress was rejected by the Court of Appeal because he had not been under a threat to specifically commit a robbery. The threats to him were directed at getting repayment and not directed at making him commit a robbery. 

The threat of death or serious injury need not be the only motive for D’s conduct. In VALDERRAMA-VEGA (1985) D illegally imported cocaine. He argued that he had done this because of death threats made by a drug smuggling gang. He was also under financial pressure and had been threatened with disclosure of his homosexual behaviour. The Court of Appeal quashed his conviction. As there had been a threat of death, the jury were entitled to consider the whole of the threats.

Was there a reasonable opportunity to escape the threat? 

To succeed with the defence, D must reasonably believe that the threat could be carried out immediately or almost immediately: HASAN. For example, the defence would probably not be available if there was a delay of a day between D being threatened with being shot and his commission of the crime. 

The defence will not be available where D had a reasonable opportunity to contact the police or escape. In GILL (1963) D claimed that he and his wife had been threatened unless he stole a lorry. He could not rely on the defence of duress as there was a period of time during which he was left alone and so could reasonably have raised the alarm. 

When the threat is withdrawn or becomes ineffective, D must stop committing the crime as soon as he reasonably can. If, for example, having consumed excess alcohol, D is threatened and drives off in fear of his life, he commits a drink-driving offence only if the prosecution can prove that he continued to drive after the terror ceased.

Has D voluntarily laid himself open to the threats? 

If D voluntarily associates with criminals, he will not normally be able to use the defence for any crime he commits due to threats of violence by those criminals. The only time he can use the defence is where he did not foresee that they might try to make him commit an offence through threats and a reasonable person would not have foreseen this either. In HASAN D associated with a drug dealer known to be violent. The dealer threatened both D and his family to make D commit a burglary. The House of Lords held that the defence of duress fails where D voluntarily associates with criminals and he foresaw or ought reasonably to have foreseen the risk of being forced to commit any crime by threats of violence.

 Duress of circumstances is where D is forced to commit a crime because he reasonably believes there is a risk of death or serious injury arising from the circumstances in which he finds himself. Committing the crime is D’s only reasonable way of escaping the threat. D is not told to commit a specific crime ‘or else’.

It is only since the mid-1980s that the courts have recognised this defence. Most early cases involved some kind of driving offence to avoid a threat of death or serious injury. The defence was extended beyond driving offences in POMMELL (1990), where D was found in bed by the police with a loaded machine gun. He said he had taken it to stop the person who had it from hurting someone, and as he did not want to carry it around at night he planned to take it to the police the next morning. On appeal against conviction, the Court of Appeal held that duress of circumstances applied to all crimes except murder, attempted murder and some forms of treason. A retrial was ordered.
 

 Similar principles apply to duress of circumstances as to duress by threats – see HASAN above. What is crucial is the immediacy of the threat and D’s inability to avoid it. However, one difference is that the defence of duress of circumstances may be used for any offence (except murder or attempted murder) which is a reasonable response to the danger posed by the circumstances. For example, D, faced with an approaching tornado, is not ‘told’ to ‘steal that car to drive away’, but she is entitled to the defence should she do so.