General Defences

General Defences

1. Insanity

   • M'Naghten rules 1843
   • Not guilty by reason of insanity
   • (1) Defect of reason - More than mere absent mindedness (CLARKE)
   • (2) Disease of the mind - Can be transient or intermittent (SULLIVAN) - Internal cause (HENNESY)
   • (3) D does not know the nature or quality of his acts 1. State of unconsiousness/impaired consciousness 2. Doesn't know what he is doing
   • (4) D does not know that what he is doing is legally wrong (WINDLE)

2. Intoxication

   • Covers intoxication by drugs, alcohol or other intoxicating substances
   • Not a defence as such but relevant as to whether D had mens rea
   • (1) Voluntary or involuntary
     • Voluntary can negate mens rea for specific intent offences if D has not formed mens rea
       • However - drunken intent is still intent (GALLAGHER)
       • D will be guilty of a 'fall back' offence
     • D will not be guilty of any offence if the intoxication was involuntary, unless he formed mens rea (KINGSTON)
   • (2) Basic or specific intent
     • Intoxication is not available to a basic intent offence as becoming intoxicated is a reckless cource of conduct (MAJEWSKI)

3. Automatism

   • Lord Denning: "an act done by the muscles without any control by the mind"
     • Must be 'total destruction of voluntary control'
   • The act is not voluntary so D does not have mens rea
   • External cause (HILL V BAXTER) although exceptional stress can be external (R v T)
   • Self induced where D knows his conduct is likely to bring on an automatic state
     • May be able to plead automatism if the offence is one of specific intent (BAILEY)
     • Where the offence is basic intent recklessness will have to be proved
       • If D doesn't know his actions will lead to automatism he has not been reckless (HARDIE)
     • If automatism is due to intoxication then D cannot plead the defence (MAJEWSKI)

4. Consent

   • Not strictly speaking a defence because where someone consents there is no offence (SLINGSBY)
     • Available to assault and battery where there is no injury (BROWN AND OTHERS)
   • Complete acquittal
   • (1) True (TABASSUM), genuine (OLUGBOJA), and informed consent (DICA)
     • Implied consent e.g. jostlings of everyday life (WILSON AND PRINGLE)
     • Informed consent decided using little bird example in KONZANI
   • Public policy exceptions
     • Contact Sports
       • Implied consent unless play goes beyond the rules of the game (BARNES)
     • Body Adornment
       • 'Personal adornment between husband and wife' (WILSON)
     • Horseplay
       • 'Rough and undisciplined horesplay' (JONES AND AITKIN)

5. Self Defence

   • Common law defence that justifies D's actions
     • Criminal Justice and Immigration Act 2008 & Criminal Law Act 1967 (prevention of crime)
     • Successful plea will lead to a complete acquittal
   • (1) Was the use of force necessary?
     • s76 - Genuine mistake judged on the facts and not whether it was reasonable or not (WILLIAMS)
     • Mistake due to voluntary intoxication means the defence cannot be used
     • (2) Was the force used reasonable in the circumstances?
       • s76 - "What D honestly and instinctively thought was necessary for a legitimate purpose.... D does not have to weigh to a nicety the exact measure of any necessary action"
       • The defence will not be available if the threat is over or if D used excessive force (MARTIN)