Defences

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Insanity

This defence is only relevant at the time the crime was committed and when standing trial. I must be proven on a balance of probability however if raised by the prosecution it must be proved beyond all reasonable doubt. If found guilty you are given the verdict of "not guilty by reason of insanity".

Under the Criminal Procedures Act 1991 you can be given a guardianship order, a supervision and treatment order, an absolute discharge or a hospital order which restricts your discharge indefinitely (only order available for murder).

The law for insanity comes from M'Naghten

Defect of reasoning- you must be unable to use the power of reasoning. Confusion and being absent minded do not count as being insane (Clarke).

Disease of the mind- this is a legal term. There must be a physical disease. This can be permanent or temporary (Kemp). The source of the disease is irrelevant (R v Sullivan). Lord Denning said that if it leads to violence and the violence is likely to reoccur than it is a disease of the mind (Bratty). Sleep walking can also count as a disease of the mind (Burgees).

The defendants knowledge- the "nature and quality" refers to the physical quality of the act. The defendant must a) not know what they are doing b) not appreciate the consequences or c) not appreciate the circumstances. There must be a lack of mens rea (Windle) (Codere) (Johnson).

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Automatism

Lord Denning defined this as "an act done by the muscles without control by the mind" e.g. a spasm, or "an act done by a person who is not conscious of what they are doing" e.g. sleepwalking.

It must be involuntary- the mind must not be controlling the limbs in a purposeful manner. There must be a total lack of awareness (AG Ref No. 2).

It must be caused by external factors- e.g. exceptional stress or trauma (R v T), a blow to the head, sneezing, a swarm of bees (Hill v Baxter), hypnotism, sleep walking or the effect of drugs (Hardie).

It must not be self induced- this is seen through the act or omission.

Similar to insanty- the difference is that automatism is caused externally (R v Quick) where as insanity is caused internally (R v Hennessy) .

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Intoxication

Intoxication is defined as a substance taken that impairs a persons judgement.

Are they intoxicated?- there must be a lack of mens rea (R v Kingston), but intoxicated intent is still intent.

Is it involuntary intoxication?- it is involuntary if a) their drink was spiked without the defendants knowledge, b) they were prescribed by the doctor and taken in accordance with the prescription (Hardie) or c) they were non-dangerous drugs taken in a non-dangerous way. In R v Allen they tried to argue that unknown strength was involuntary however this was quashed.

Is it basic or specific intent- if the intoxication is voluntary the defence only works for specific intent such as S18 and murder (DPP v Majewski). They must show a total lack of mens rea (R v Sheehan and Moore).

Dutch courage- this is where you form the intent and then drink to enable you to carry out the act (AG for NI v Gallagher). This is illegal.

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Self Defence

This comes under S3 of the Criminal Law Act 1967 and states that "s person may use such force as is reasonable to prevent a crime or assist in the lawful arrest of a suspected offender".

Necessity of force- it is not justified if it is not necessary. It must be necessary in the circumstances that exist or the circumstances that the defendant believes exist (Gladston Williams). The defence can be used before hand if the attack is imminent (Bird).

Reasonableness of force- the jury decide if the force is reasonable. As the defendant acts in a split second the force could be excessive which is unlawful. In Palmer, Lord Morris said "it is good sense and good law that a man who is attacked may defend himself" (Martin) (Clegg).

Burden of proof- on the prosecution to prove it beyond all reasonable doubt.

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Consent

Consent can't be used for murder as you can't consent to being killed. Even if you do the consent is not legally recognised as euthanasia is illegal (Pretty).

It is only a defence for assault or battery, not serious harm (Brown) but there are exceptions: properly conducted sports of games (Barnes), reasonable surgical interferance or dangerous exhibitions.

Social intercourse e.g. hugging- consent can be withdrawn.

Medical procedures- written consent is given agreeing to any risk or harm that may occur.

Horseplay- there is no offence unless harm was intended. Lord Mustill said that the law is only concerned when it goes too far. There is only a problem when consent is unclear (Jones).

Sexual acts- the law is concerned on moral grounds (Dica).

This defence can only be used if there is an actus reus and a mens rea- if there is no mens rea than the defence is irrelevant (Slingsyby).

Who can't consent?- a child and someone who is mentally challanged as they do not have sufficient knowledge to consent (Burrell v Harmer).

Fraud- if consent is given fraudulently it is void (TB

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Duress By Threat

The test comes from Graham. You must be:

a) Impelled to act for fear of death or serious physical injury and

b) Respond as a sober person of reasonable firmness sharing the same characteristics of the defendant would have.

Nature of the Threat

Must be a fear or serious physical injury or death.

Can't be psychological damage (Baker and Wilkins) or property damage.

The threat can be made to family members or someone you are responsible for (Hansan).

Threat in Relation To The Offence

(Cole) you must be told explicitly what to do.

Defendants Characteristics

Age

Sex

Pregancy

Mental illness

Physical disability

Not low IQ (Bowen), timid behaviour or voluntary intoxication.

Effects of Intoxication

Considered if intoxication is voluntary.

Immediacy and Possibility of Escape

There must be no safe means of escape or avoiding the threat (Gill).

The threat must be operating on the defendants mind at the time of the offence (Hudson and Taylor) (Abdul and Hussain).

Self Induced

It must not be self induced. You can't put yourself in the situation voluntarily e.g. joining a gang (Sharp) (Hansan).

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Duress By Circumstance

The test comes from Martin.

Objective Nature of the Test

It must be objective.

The defendants characteristics must be considered.

Reasonable and Proportionate Actions

The act may limit the circumstances in which the defendant can use the defence (Conway).

Nature of the Test

a) Was the defendant compelled to act due to a fear of serious physical injury or death?

And b) did they respond as a sober person of reasonable firmness sharing the same characteristics of the defendant would have?

(Rose and Rodger)

Limitations

Can be used for driving offences (Pommel).

Can;t be used for murder, attempted murder and some forms of treason.