Evaluating General Defences

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first, Insanity, Definition, M'Naghten Rules 1843, Medical Knowledge, mental disorders, limited, modern definition.
The first general defence that is arguably unsatisfactory is insanity. The first problem is the definition under the M'Naghten Rules established in 1843. At that time medical knowledge of mental disorders was very limited. Much more is known today.
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legal definition, not medical, two problems
The legal definition of insanity is a major problem, is a legal one rather than medical. This causes two problems.
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certain medical disorders, not, irresistible impulses, psychopaths, Byrne, M'Naghten, know
Suffering from certain mental disorders don't come within it, eg those suffering from irresistible impulses and who are psychopaths (Byrne). Don't come within M'Naghten Rules as know they are doing wrong.
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physical Illnesses, diabetes, Hennessey, legally insane, internal, treat
Suffering from physical illnesses such as diabetes (Hennessey) considered legally insane, as there is an internal cause for there actions which may be possible to treat.
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automatism, overlaps, automatic state, mental illness, external factors, any illness, affects mind
Insanity overlaps with automatism, it is necessary to decide whether D's automatic state is due to mental illness or external factors. Courts decided those suffering from any illness which affects mind, amounts to insanity.
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non-insane, removed, epileptics, complete acquittal, not guilty, insanity, impose, order
This means defence of non-insane automatism removed from epileptics and diabetics. Serious consequences can occur as those using automatism entitled to complete acquittal. Whereas not guilty by insanity, the judge has to impose an order on D.
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Windle, suffering, serious, recognised, not know morally, not legally
Further problem arises following decision in Windle, D who suffers from serious recognised mental illness and does not know his act is morally wrong, cannot have defence of insanity when he knows his act is legally wrong.
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social stigma, insanity, inappropriate, diseases, epilepsy, diabetes
Problem of the social stigma attached to the word 'insanity', inappropriate to those suffering from diseases such as epilepsy or diabetes
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defendant, prove, insane, burden of proof, breach, Article 6, European Convention of Human Rights, innocent, guilty
The D has to prove that he's insane. Places the burden of proof on him. Possibly a breach of Article 6 of the European Convention of Human Rights, states D is innocent until proven guilty.
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proposals, M'Naghten, extended, Royal Commission on Capital Punishment 1953, incapable, prevent, irresistible
There have been several proposals for reform of Law on insanity. In 1953, Royal Commission on Capital Punishment suggested M'Naghten Rules should be extended so D would be considered insane if 'incapable of preventing himself committing the offence'.
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acted, irresistible impulses, Byrne, within
If acted upon, those suffering from 'irresistible impulses' in Byrne, would have come within definition of insanity.
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government, diminished responsibility, murder only
Instead of making reform, Government introduced defence of diminished responsibility. This only gives defence to murder, but not to any other offence.
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1975, Butler Committee, reason, insanity, replaced, evidence, mental disorder
In 1975, Butler Committee suggested the verdict of not guilty by reason of insanity should be replaced by verdict of not guilty on evidence of mental disorder.
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1989 Law Commission Draft Criminal Code, severe, none
The 1989 Law Commissions Draft Criminal Code, proposed D should be not guilty on severe mental disorder or sever mental handicap. None of the proposals have been made law.
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second, Consent, sports, illegal,
Second general defence arguably unsatisfactory is consent. It's important to allow defence of consent in some situations. Eg, if no defence of consent contact sports would be illegal.
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Attorney-General's Reference (no 6 of 1980), exceptions, public policy, prevented
Court of Appeal in A-G Ref (no 6 of 1980) stated although consent not a defence to street fights, exceptions where consent was defence. List of exceptions Court of Appeal gave is based on public policy.
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surgery, 'reasonable surgical interference', save, defence, assault
Consent allowed as a defence is 'reasonable surgical interference'. Where a surgery needed to save patient's life or improve a patient's health then consent to operation is defence to charges of assault.
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Adult Morals, Brown, Wilson, sado-masochistic, homosexuals
Many problems with law in relation to consent. Difficult to reconcile decisions by courts in cases on consent. Compare case of Brown with case of Wilson. Brown consent not defence to sado-masochistic behaviour between consenting adult homosexuals.
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wilson, branded, heterosexual, sexual gratification, body adornment, moral values
In Wilson consent could be a defence where husband branded wife's buttocks with initials. No vicitims in Brown needed medical attention, whereas wife in Wilson did. Are the courts trying to impose own moral values on law?
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horseplay, 'friendly violence', no mens rea
Horseplay is where those of similar age use 'friendly violence' on each other. Even where results in serious injury courts ruled consent can be defence. Aggressor does not have mens rea for assault.
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mistaken beliefe, Jones
Courts held honest mistaken belief in consent provides defence, eventhough V has not consented. Eg Jones, boys 14-15 tossed in air, court accepted defence of consent due to horseplay.
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Sexual Offences Act 2003, Section 5, under 13, never, strict liability
Sexual Offences Act 2003 defence of consent not always available. Section 5 of Act covers offence of **** of child under 13. Never able to consent to sexual intercourse. Also strict liability offence.
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G, two judges
If a 15 year old has consensual sex with a girl whom believes is same age, guilty of ****. G, appealed against this for his human rights had been breached. Rejected appeal by 3 judges to 2, the verdict could have been changed by just one judge.
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Other cards in this set

Card 2

Front

The legal definition of insanity is a major problem, is a legal one rather than medical. This causes two problems.

Back

legal definition, not medical, two problems

Card 3

Front

Suffering from certain mental disorders don't come within it, eg those suffering from irresistible impulses and who are psychopaths (Byrne). Don't come within M'Naghten Rules as know they are doing wrong.

Back

Preview of the back of card 3

Card 4

Front

Suffering from physical illnesses such as diabetes (Hennessey) considered legally insane, as there is an internal cause for there actions which may be possible to treat.

Back

Preview of the back of card 4

Card 5

Front

Insanity overlaps with automatism, it is necessary to decide whether D's automatic state is due to mental illness or external factors. Courts decided those suffering from any illness which affects mind, amounts to insanity.

Back

Preview of the back of card 5
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