Defences

Defences

1. Capacity

   • Insanity
     • Automatism
       • Intoxication
         • Covers intoxication by drugs alcohol and other substances
           • Have to prove D was so intoxicated incapable of forming mens rea
             • R v Sheehan & Moore (1975)
             • Intoxication rules based on Public Policy
               • Policy based law - what is in the public interest and protection - encorages good behaviour.
               • Conflicts with legal principle of fault and voluntary action and deliberate taking of risk
                 • Criminal Justice and Immigration Act 2008 - can't rely on drunken mistake
                   • Specific intent can use defence for voluntary intoxication - asks did D form intent?
                     • R v Lipman A-G for N.I - drunken intent is still intent
                     • Often a specific intent and its equivalent basic intent will be charged to ensure conviction
                       • Voluntary intoxication not available for basic intent (recklessness as mens rea)
                         • DPP v Majewski 
                         • Involuntary covers spiking and unexpected side effects of medication
                           • If mens rea formed before intoxication then D is guilty
                             • R v Kingston (1994)
                             • Mistaken belief through voluntary intoxication cannot give defence of self defence Section 76 Criminal Justice Act
                               • R v O'Grady (1987) R v Hatton (2005) Drunken mistake about force needed.
                               • Exception for Criminal Damage in s5 of Criminal Damage Act
                                 • Jaggard v Dickinson (1980)
       • Overlap with insanity
         • Action done without and control of mind or not conscious of what they are doing
           • Two types INSANE and NON INSANE AUTOMATISM
             • Insane automatism - guilty by reason of insanity. Non insane - complete defence and defendant not guilty.
             • Actus reus not done voluntarily so does not have mens rea
               • A-G Ref No 2 Reduced or partial control is not automatism
               • Includes blow to head - attack by swarm of bees, sneezing fit, hypnotism, drug side effects
                 • Hill v Baxter (1958) no fault through external cause R v T (1990) stress can be factor
                 • Self induced when knows conduct likely to bring on automatic state
                   • If voluntary then intoxication rules apply
                     • If action is appropriate but unanticipated consequences - defence available for basic and specific intent offences
                       •  R v Hardie (1984) 
                       • In improper action or failure can only be used for specific intent
                         • R v Bailey (1983)
     • Based on M'Naghten Rules
       • Must suffer from: Defect of Reason Result of Disease of Mind - Not Know Nature of Quality of Act
         • Jury decides insanity
           • Not a defence to strict liability
             • Absent mindedness or Confusion not a defect of reason
               • R v Clarke (1972)
               • Disease of mind is legal term not medical
                 • Organic insanity - brian damaged by physical cause such as epilespsy
                   • R v Kemp (1956) R v Sullivan (1984) epilespsy R v Hennessy (1989) - diabetes
                   • Sleep-walking can be insanity
                     • R  Burgess (1991)
                     • External cause - not insanity
                       • R v Quick (1973)
                       • Itoxicating substance - temporary psychosis not insanity
                         • R v Coley (2013)
                         • Does know nature or quality of act Conscious or Unconscious - but does not understand what doing is wrong - satisfies M'Naghten
                           • R v Oye (2013)
                           • Knows what doing but doesn't understand wrong - still qualifies
                             • Verdict "not quility by reason of insanity" -hospital order, supervision or absolute discharge

2. Necessity

   • Self Defence
     • Duress
     • Complete defence - not guilty if successful
       • Defence set out in common law and Statutes Criminal Justice Act and Criminal Law Act (1967) s (1)
         • Use of force that is reasonable in circumstance
           • Two questions: Was it necessary to use any degree of force? Was the degree of force used necessary and proportionate?
             • Defendenat judged on facts as he/she genuinely believed them to be.
               • R v Gladstone Wiliams (1987)
               • Was belief reasonable and relevant helps decide if it was genuinely held.
                 • If genuinely held was it mistaken and was mistake reasonable?
                   • Belief can be genuinely held even if delusional or result of psychiatric condition
                     • R v Seun Oye (2013)
                     • No duty to retreat - the possibility could have may be a factor in deciding if force was necessary
                       • R v Bird (1986)
                       • If D was original aggressor D can can use force if the V reaction is disproportionate
                         • R v Rashford (2005)
                         • Except in "householder case" force that is disproportionate will not be reasonable
                           • R v Clegg (1995) R v Martin (Antony) (2002)
                           • Force that is initially proportionate may become disproportionate if danger has passed
                             • Defence lost if disproportionate
                               • Householder
                                 • Force Used while D in building D must not be a tresspasser D must have believed V to be tresspasser Shock Time of day Pressence of vulnerable Weapon  Conduct of intruder
                                 • Public Defence - defined in s 3 (1) of CriminalLaw Act 1967 - can use force as is reasonable in prevention of crime, effceting lawfull arrest of suspected offender or person unlawfully at large.