Defences

Defences

1. Self-defence

   • This a common law defence of the right to use force in defence of oneself or another against an unjustifiable attack.
     • Under s.3 of the Criminal Law Act 1967 the right of public defence is the right to use force in the public interest to either prevent crime or lawfully arrest someone.
   • When D raises the defence it is on the proseution to disprove it beyond reasonable doubt.
     • There are two points to consider; !) was the use of force necessary? 2) was the amount of forced used reasonable in the circumstances?
       • 2) This is a question of fact for the jury to decide. Where D only did what he honestly thought to be necessary is strong evidence that only reasonable steps were taken. The amount of force used must not be excessive (MARTIN).
       • 1) This is a question of fact for the jury to decide. D is not under a duty to retreat when threatened by another, this is merely a relevant factor (HUSSAIN). D does not have to wait to be attacked. D shall be judged on the facts he believed them to be (WILLIAMS)

2. Intoxication

   • This is a general defence and D will be acquitted if it succeeds. When raised the burden is on the prosecutition to prove beyond reasonable doubt that D still had the mens rea.
   • Whether or not the defence can be used depends onion the intoxication was voluntary or involuntary and whether the crime was of basic or specific intent.
   • This defence covers intoxication by alcohol, drugs and other intoxicating substances.

3. Consent

   • Whether the defence is allowed depends on the level of injury. It is readily available for assault and battery.
     • Consent is not allowed unless it fits one of the courts exceptions; properly conducted sports, reasonable surgical procedures, tattooing or body piercing, horseplay and dangerous exhibitions.
       • For there to be 'true consent', V must understand the nature of D's act
   • This can be a defence to all the non-fatal offences. Consent is never a defence for murder (PRETTY v DPP)
     • Express consent is where V clearly says that they are willing to consent to potential injury. Implied consent is where V's consent is implied by their actions or situation.
       • To be legally capable of giving consent V must be mentally capable and usually not a child unless they have the necessary maturity and understanding to do so.

4. Insanity

   • The rules of insanity are based of the case M'NAGHTEN - "Not guilty by reasons of insanity."
     • D would be acquitted using the special verdict.
   • 1) at the time of committing the act, D had a defect of reason. 2) this was the result of a disease of the mind. 3) this caused D t not know that the nature and quality of his act were wrong.
     • Defect of reason: D must be unable to reason at the time he acted. This must also be an internal factor.
     • Disease of the mind (legal term, not medical): this can be a mental disease; schizophrenia, paranoia, manic depression OR A physical disease that affects the mind; brain tumours, diabetes, sleep disorders.

5. Automatism

   • For automatism, D must have no voluntary control over his actions. If successful, this leads to an acquittal.
     • When the defence is raised the burden is on the prosecution to disprove it beyond any reasonable doubt.
       • D's automatic state must be due to an external factor and can include: a blow to the head, being attacked by bees, sneezing and hypnotism or the effect of a drug.
     • Self-induced automatism is where D knows that his conduct is likely to bring on an automatic state.
       • If he commits a specific intent offence then self-induced automatism can be a defence if D lacked the required mens rea.
       • If he commits a basic intent offence then he is seen as being reckless getting into the state, however if D is not aware of his actions leading to a self-induced state he can use the defence.