Defences Evaluation

Defences Evaluation

1. 1) When a person is changed with an offence, there are various defences that may be available to them. If a defence is used successfully, the defendants may be aquitted or charged with a less serious offence.

2. CONSENT

   • 7) CONSENT TO MORE SERIOUS OFFENCES: The general rule is that this defence is available to minor crimes of assault and battery but not available in more serious offences, except in particular circumstances.The case of R v Brown was the basis of a controversial decision involving sado-masochistic homosexual activities to which all men involved consented to and were carried out in private. The majority condemned this behaviour in terms of cruelty and violence. Yet in R v Wlson, where a far more serious harm was inflicted on the wife when he branded his name on her, it was held that he consent was a full defence This could be seen as prejudice against homosexuals.
   • 8) MISTAKEN BELIEF OF CONSENT: In R v Jones, two boys suffered serious injuries yet despite these injuries, the defence of consent was still allowed even though there was a mistaken belief of consent.
   • 9) CONSENT TO DEATH: there is also the problem that no one can consent to their own death. This means that if a terminally ill patient wishes to die, they must take their own life and if anyone kills them, its murder. Even of anyone assist them to take their own life, the person is guilty of assisting suicide. This was decided in the case of Pretty.

3. INSANITY

   • 2) INSANITY DEFINITION - definition set by the M'Naghten Rules in 1843. At that time medical knowledge was very limited. Due to more advanced research into mental disorders a modern definition should replace it. The definition is a medical one rather than a legal one which doesn't allow certain people who suffer from mental disorders to use the defence of insanity as their disorder doesn't come within it. E.g. those suffering for irresistible impluses and who are psychopaths such as Byrne.
   • 3) PSYCHIATRIC MEDICINE - psychiatric medicine no longer defines mental disorders as insanity, and psychiatrists would argue that a person may understand what he or she is doing and still be mentally ill, whereas a judge would hold that a person who is partially rational is not insane and therefore must be held accountable. The decision in Windle relfect this as it stated that a D who is suffering from a serious recognised mental illness and who doesnt know that his act is morally wrong cannot have the defence of insanity when he knows his act is legally wrong. This may lead to conflicting expert evidence at trail and the D can be deemed legally insane by medically unqualified jurors, who have to choose between expert psychiatrists.
   • 4) BURDEN OF PROOF ON D - D had to prove that he is insane, placing the burden of proof on him. It is possible that this is in breach of Art 6 of the European Convention on Human Rights which states that he D is innocent until proven guilty. Since the prosecution is not required to prove mens rea in insanity cases, the criticism, arises that, if the D fails to prove insanity but the prosecution prove the actus reus, the D can still be guilty, despite the existence of reasonable doubt concerning the mens rea.
   • 5) M'NAGHTEN RULES EXTENDED/DIMINISHED RESPONSIBILTY - it had been suggested that the M'Naghten rules be extended so that a D would be considered insane if he 'was incapable of preventing himself' from committing the offence. If this had been implemented, then those suffering 'irresistible impluses' would come within the definition of insanity. However, the government introduced the defence of diminished responsibility. This gives a special defence to those charged with murder.
   • 6) JUDGES DISCRETION: HOSPITAL ORDER - since 1991, the ways which judges can deal with a D found not guilty by insanity has improved.A judge can now make a hospital order, a supervision order and an absolute discharge. These allow for a mentally ill D, who is a danger to the community to be sent to a secure hospital.

4. 10) CONCLUSION