Defences in Criminal Law

Who has to show the Burden of Proof?

The BoP is on the prosecution to adduce evidence beyond all reasonable doubt that D committed the AR of the offence with MR.

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The two defences which impose a legal burden of proof on the defendant:

insanity and diminished responsibility.

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S6 Criminal Procedure (Insanity) Act 1964).

The Insanity defence transfers the BoP onto the D on a balance of probabilities. The prosecution can try to prove insanity, but they must do it beyond all reasonable doubt

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Define Insanity

A general defence to those suffering from a narrow range of mental disorders who are so ill, they did not know what they are doing at the time of the offence or who not know that it was wrong.

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3 Stages where Insanity is Relevant to the Criminal Process

1. Mental Condition Rendering Trial Impractical 2. Fitness to Plead 3. At Trial (Insane at time of crime)

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ss47, 48 Mental Health Act 1983

1. Mental condition rendering trial impractical – If D is in custody and too ill to stand trial, he may be detained in a hospital following reports from two medical practitioners provided that the HS is satisfied it is in the public interest

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Pritchard [1836]

2. Fitness to Plead: D may be unfit to plead guilt or innocence or to participate in the trial. The current test focuses on D’s ability to understand the proceedings, instruct a lawyer, plead to the indictment and understand the evidence

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The Test for Insanity - M'Naghten [1843]

Tindal CJ: 3 elementsto be proved by D on the balance of probabilities: i. Disease of the Mind ii. Defect of Reason iii. The two cognitive tests (D must not know the nature and quality of his act, OR if he does, he must not know it was wrong

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Disease of the Mind:

The mind is not necessarily the brain, thus the mind is narrowly defined as the intellectual/cognitive faculties of reason, memory and understanding

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Disease of the Mind, Non-Psychiatric Illness Case Example - R v Kemp [1957]

Arteriosclerosis (R v Kemp [1957]) a man assaulted his wife

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Disease of the Mind, Non-Psychiatric Illness Case Example - Bratty v AG For NI [1963]

Epilepsy (Bratty v AG for Northern Ireland [1963]) a man strangled a girl in his car with her stocking – “it seems to me that any mental disorder that has manifested itself in violence and is prone to recur is a disease of the mind” Lord Denning.

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Disease of the Mind, Non-Psychiatric Illness Case Example - R v Hennessy [1989]

Diabetes, a man was charged with taking a conveyance and driving away whilst disqualified, he said due to his lack of insulin, this was accepted but he then appealed as he didn’t want to go to a mental institution

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Disease of the Mind, Non-Psychiatric Illness Case Example - R v Burgess [1991]

Sleep waking, a man attacked a woman in his sleep until she woke him up.

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Disease of the Mind, Non-Psychiatric Illness Case Example - Re T [1990]

Stress and Dissociative States

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Defect of Reason, Bratty v AG for NI [1963]

The defect must affect the cognitive or intellectual faculties of memory, reason and understanding

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Defect of Reason, R v Clarke [1967]

A temporary period of absent-mindedness during a diabetic depression is not a defect of reason

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Defect of Reason, R v Clarke [1967] - Ackner J

“they [the rules] do not apply and never have applied to those who retain the power of reasoning but who in moments of confusion or absent-mindedness fail to use their powers in full”

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Two Cognitive Tests, Nature and Quality of Act

D must not know the nature and quality of his act, or in other words must not know what he is doing in a physical sense.

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Two Cognitive Tests, Knowledge as to what They are Doing is Wrong

If D knows what he is doing, but does not know it is wrong, Insanity may still be used. In England, wrong means legally wrong and not morally wrong (R v Windle [1952] as per Lord Goddard CJ

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Two Cognitive Tests, Knowledge as to what They are Doing is Wrong - Criticism

The Butler Report commented “knowledge of the law is hardly an appropriate test on which to base ascription of responsibility to the mentally disordered).

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S2 Trial of Lunatics Act 1883

a successful plea of insanity will amount to the special verdict that at the date of the act or omission charged the D was not guilty by reason of insanity.

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S24 Domestic Violence, Crime and Victims Act 2004

indefinite detention following such a verdict will only be mandatory where the D’s mental health is such the court can make a hospital order?

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Powers which exist to deal with persons not guilty by reason of insanity or unfit to plead

Hospital order with or without a restriction order, a supervision and treatment order or an order for an absolute discharge.

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1953 The Royal Commission - M'Naghten Rules

M rules are obsolete, misleading and the superficiality of “disease of the mind” is outdated and inaccurate. The fact it includes epilepsy and diabetes is so wide as 600,000 people in UK have epilepsy and 2.7 million diabetes. DoR test too narrow

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Insanity and Automatism Distinction

The distinction between insanity and automatism is very fine as the cause of the internal action being internal means insanity and external automatism. This is arbitrary.

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Court vs Pyschiatrist

Psychiatrists will hold people as not normal whilst the courts will treat them as if they are.

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Juror Insanity Issues

Medically unqualified jurors who are left to choose between experts

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Reversal of Burden of Proof Issue

reversal of the BoP could contravene the ECHR (Article 5,6 and Winterwerp [1979]).

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Define Automatism

Automatism is a claim that Ds actions at the time of the offence were involuntary in the sense of not being controlled by the brain. Thus the link between mind and behaviour was absent

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Denning in Bratty [1963] on Automatism

“an involuntary act… means an act done by the muscles without the control of the mind, or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from a concussion”.

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Burgesss [1991] limit on Automatism

The source of the involuntary actions must be external

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Burden of Proof in Automatism

he legal burden of proof remains with the prosecution, however the D has an evidential burden to discharge and must adduce medical evidence that his actions were involuntary so as to cast reasonable doubt on the accusation.

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Cooper v Mckenna [1960] - Stable J

“a blackout is one of the first refuges of a guilty conscience and a popular excuse”.

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External Cause in Automatism, Hill v Baxter [1958]

Sneezing, spasm, reflex actions – Hill v Baxter [1958] a driver was attacked by a swarm of bees, and so acquitted of dangerous driving

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External Cause in Automatism, Re T [1990]

Concussion, head injuries, hypnosis, medication, PTSD

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External Cause in Automatism, Kay v Butterworth [1945]

Self-Induced Automatism is no defence – Kay v Butterworth [1945] a D fell asleep at the wheel of his car after working a night shift and drove into some soldiers.

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External Cause in Automatism, R v Hardie [1985]

Valium Case - Basic Intent crimes (those of recklessness) can only use a defence of Self Induced Automatism if D is not aware of the risk if say he is not aware of the side effects of the medication he is taking

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Automatism Driving Cases, Watmore v Jenkins [1962]

Automatism requires a total destruction of voluntary control/consciousness in these cases - Watmore v Jenkins [1962] a D drove 5 miles in a dazed state and was so held to have some control over his car.

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Automatism Driving Cases, C [2007]

the hypoglycaemic driver must show he was totally unable to control his car due to an unforeseen onset of his condition and had no warning symptoms

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Intoxication, The Majewski Rule Defintion

Intoxication is never a defence but it can be a reason why D lacked the intention required by more serious crimes. The underlying policy is that people should not be entitled to acquittal simply because they were drunk

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DPP v Majewski [1977] - Lord Elwyn-Jones

if a man of his own volition takes a substance which causes him to lose the restraints of reason and conscience, no wrong is done to him by holding him answerable for any injury he may do while in that condition… it is a reckless cause of action

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Intoxication, R v Sheehan and Moore [1975]

A drunken intent is still an intent

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Intoxication, The Majewski Rule in Crimes of Specific Intent

1Voluntary Intox may provide a partial defence to a D lacking the intention of a specific intent crime but it is no defence to crimes of basic intent

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Intoxication, The Majewski Rule in Crimes of Basic Intent

In crimes of basic intent, the prosecution must simply prove that the D would have had the MR if he had not been intoxicated.

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Why is the Majewski Rule contrary to the three fundamental principles of criminal liability?

it substitutes recklessness in the ordinary sense of the word for the legal sense, it ignores the principle AR and MR should coincide, it is contrary to the principles that MR should be proved by the prosecution.

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Intoxication, AG for NI v Gallagher [1963]

If the D has planned a crime and in order to get the courage to commit it, he cannot deny intention due to intoxication

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Intoxication, R v Kingston [1994]

in cases of involuntary intoxication, it still only matters whether or not the MR can be proven – this was the case of the ********** who got drugged and locked in a room with a boy.

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Drugs, R v Lipman [1970]

In terms of voluntary intoxication of dangerous drugs, the D will have no defence to crimes of basic intent even where he is acting involuntarily (R v Lipman [1970] where the D suffocated his GF with bed sheets as he thought snakes were in her mouth

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Drugs, Coley Mcghee and Harris [2013]

For specific intent crimes, following Coley, Mcghee, Harris [2013] voluntary intoxication is unlikely to ever be held as a total loss of control.

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The O’Grady rule [1987]

Where D believes he is acting in self-defence as a result of a mistake brought about by voluntary intoxication, he is not entitled to rely on that belief.

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R v Fotheringham [1988]

a mistaken belief in consent will be treated with the O’Grady rule.

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Doli Incapax

remains for children under ten, but someone over that age who encourages such a child to commit a crime can be held liable as a principle offender through the innocent agents rule.

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Ages of Criminal Responsibility

10-14 years: Child 14-17: young persons 17-21: young offender

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Defence of Duress

Duress is a complete defence to all crimes apart from murder, attempted murder and some forms of treason, to which it is no defence. It is an excusatory defence

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Duress, Lord Wilberforce in DPP v Lynch [1975]

“duress is something which is superimposed on the other elements of the offence so as to prevent the law from treating what she has done a crime”.

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Duress, Graham [1982] and Howe [1987] test

The test for Duress is two part: 1. Was D forced to act as he did because of a reasonable fear of death or personal injury? 2. Would a sober person of reasonable firmness, sharing D’s characteristics, have responded to D’s belief in the same way?

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Duress, R v Graham [1982]

Graham, a homosexual, lived with his wife and another homosexual, King. They both killed the wife, and G claimed he only did it as K was violent and he feared revenge.

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Hudson and Taylor [1971]

Duress is only available if there is a threat of immediate harm (allows some lapse of time but not much). If an escape route is available, the subject is expected to take it. The defence will fail if they do not.

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Sharp [1987]

Defendants voluntarily placing themselves in a situation where they may be vulnerable to threats do not have a defence

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Hasan [2005]

the HoL left open the question of whether the reasonable person or the actual defendant foresaw the risk of propulsion, the majority seemed to support the reasonable person idea.

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Duress is not a Defence to Murder - DPP v Lynch [1975]

DPP v Lynch [1975] AC 653 – a person should not take the life of an innocent person to save their own.

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Duress is not a Defence to Murder - Howe [1987]

The HoL said Duress is not available to a principle or secondary party to the killing (as it is not good morals or policy that a man shouldn’t lay down his own life in order to save the life of an innocent TP).

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Duress is not a Defence to Murder - Law Commission 1993

The Law Commission, 1993, thought duress should be available to both murder and attempted murder.

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Test for Duress of Circumstance - R v Willer [1986]

Test for DoC is same as one for duress: 1.Was D forced to act as he did because of a reasonable fear of death or personal injury? 2. Would a sober person of reasonable firmness, sharing D’s characteristics, have responded to D’s belief in same way

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Necessity?

This does not exist as a general defence, it is thought to encompass a balancing of harms defence where D believes it necessary to commit a crime to avoid a greater harm. It is generally considered in medical cases such as the conjoined twin’s case.

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Necessity, Pipe v DPP [2012]

The threat need not be of serious death or injury (Pipe v DPP [2012]) – D was driving recklessly to get his son to hospital who had a broken leg from football.

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Necessity, Gillick v West Norfolk Health Authority [1985]

Threat to physical, mental and emotional health – Gillick v West Norfolk Health Authority [1985] – concerned the giving of contraception to girls below 16.

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Necessity, F v West Berkshire HA [1989]

Threat of Disastrous psychiatric consequences – forced sterilisation on a woman with the mental age of 5. She was incapable of consenting but doctors thought a pregnancy would cause horrific mental illness.

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Necessity for Murder - Howe [1987]

Howe [1987] 1 AC 417 – in this case, the judges followed precedence to say there never was a defence of necessity, and that it was just another word for duress

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Necessity for Murder - Re A (Conjoined Twins) [2000]

Allowed it, but see brook requirements and has been limited to those exact facts/circumstance

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S76 Criminal Justice and Immigration Act

The Use of Reasonable Force in Self-Defence Related Situations

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Self-Defence Subjective Test for Requirement of Force

General requirements is that defensive force will only lawful if necessary, must not be retaliatory or revengeful. It is assessed according to D’s honest beliefs of the circumstances. The amount of force used must objectively be reasonable

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Self Defence,1. Palmer v The Queen [1971] 2. R v Williams [1984]

1.the law does take into account the urgency of the situation. 2. If the D is under mistaken belief he is under attack, this is still acceptable.

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S76(3-4)

The D may make an honest but unreasonable mistake about the necessity for self-defence as seen in R v Williams, the amount of force must be reasonable on the facts as the D believed them to be

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Beckford v Queen [1987]

It is clear that it is not necessary for the attack to have begun and the D may use a pre-emptive force

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Rashford [2006]

Self Defence is not available if the D provokes the V to attack him as seen in Rashford (2006), however where the aim of the provocation is not to provide an excuse for violence it may still be used (R v Daniel Keane [2010]).

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S76(7) & S76 (5a)

The degree of force used must be reasonable, and this is an objective test (S76(7)) however householders may now use disproportionate force as long as it is not grossly so (S76(5a).

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Defences in Criminal Law

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