Criminal: Defenses to crime

Insanity must be distinguished from being ‘unfit to plead’ which is where the accused is incapable of understanding the charges during the trial. For insanity, the accused MUST BE FOUND INSANE AT THE TIME OF THE COMMISSION OF THE OFFENCE.

If insanity is successful, the verdict will be = NOT GUILTY BY REASON OF INSANITY

Applies to any offence which requires Mens Rea.

INSANITY IS CAUSED BY INTERNAL FACTORS e.g. Sullivan (kicked a man during an epileptic attack) or Burgess (sleepwalking). ANY EXTERNAL FACTORS = AUTOMATISM e.g. Quick (hypoglycaemia due to alcohol but no food).

M’Naghten Rules – arose from the M’Naghten case where D killed Prime Minister’s secretary. Every man is presumed sane until the contrary is proved.“It must be clearly proved that at the time of the committing he act the party accused was labouring under such a DEFECT OF REASON from DISEASE OF THE MIND as to not know the nature and quality of the act he was doing; or if he did know it, that HE DID NOT KNOW IT WAS WRONG.”

Defect of reason – Clarke (theft from a shop whilst suffering depression) Ackner J – “deprived of the power of reasoning”

Disease of the mind – a condition affecting D’s mental faculties. Can be temporary, permanent, curable or incurable. Kemp (arteriosclerosis caused black outs, in which D beat wife with a hammer).

Automatism means you’re not in control of bodily actions despite being sane.

Lord Denning in Bratty said “Done by the muscles without any control by the mind”                                                                         e.g. reflex actions (Hill v Baxter)

Requirements: 1) Total absence of voluntary control over actions;

2) Due to external factor;

3) Was not self-induced

Mistake is not a defence on its own but commonly overlaps with self-defence (i.e. mistaken as to the need to defend oneself, as in Beckford – police shot and killed suspect because he feared attack)

Mistake of fact can negate Mens Rea: Morgan (told friends to have sex with his wife; were convicted because jury said not a true mistake). Williams Gladstone (believed attacking mugger but was actually a member of the public stopping crime)

_________________________________________________________________________________

Intoxication is only a defence where it causes D to lack Mens Rea (i.e. will still be guilty if Mens Rea is present).

Sheehan and Moore “drunken intent is still intent”

INVOLUNTARY INTOXICATION – not liable (exception: Kingston drugged and locked in a room with young boy, still had the Mens Rea of indecent assault so was guilty)

VOLUNTARY INTOXICATION – will be guilty of crimes of basis intent (satisfied by recklessness) but not specific intent (satisfied by an intention). DPP v Majewski – committed various assaults whilst drunk and claimed he hadn’t known what he was doing but was held guilty.

Public policy reasoning – a person who chooses to intoxicate himself should be criminally answerable. Richardson and Irwin asked ‘would D would have foreseen the risk if sober?’

Dutch courage – Always guilty. Gallagher got drunk to gain confidence to kill his wife.

Self Defence is governed by s.76 Criminal Justice and Immigration Act

Covers defence of ONESELF, OTHER PEOPLE, PROPERTY and when PREVENTING CRIME.

Must only use necessary and reasonable force.

Necessary – Requires either D being attacked or under threat of attack. Honest but not reasonable belief as he is judged on the facts as he believed them to be (unless voluntarily intoxicated – O’Grady). There used to be a duty to retreat but Bird (woman was slapped by man so threw her drink in retaliation but accidently threw the glass too) changed the law.

Reasonable – only a jury can decide by putting themselves in the circumstances as D believed them to be. Palmer (during an attack, D will not have time to “weigh things to a nicety” but he will have acted reasonably where he did what he HONESTLY AND INSTINCTIVELY BELIEVED WAS NECESSARY).But Owino said that the amount of force used will be judged objectively (in Martin, D shot at burglars) because D isn’t entitled to use as much force as he wants!

Consent

Consent to harm: Brown (sadomasochistic acts, didn’t matter if consenting) was against public policy but some acts can be consented to such as legal sports and tattooing e.g. Wilson (branded buttocks).

Can consent to horseplay even where it’s really rough e.g. Aitken (RAF officers on fire)

Informed consent: Dica (HIV unprotected sex)

Consenting victim makes a mistake: Tabassum (pretended to be a medical professional doing cancer scans by feeling women’s breasts.

True consent: submission is not consent or is the fact that the victim doesn’t retreat (Day – 10 year old girl didn’t resist adult man)

Duress is where D is forced to break the law due to threats towards him or a person close to him.

D will accept that he had both Actus Reus and Mens Rea of the crimes.

The defence of duress is available to all crimes except murder. REFORM: The Law Commission has advised allowing duress of murder because of the problems that occur when D intends a GBH but accidentally kills. Or where D intends to kill but commits a GBH and can then use duress.

Duress may be by THREATS or by CIRCUMSTANCES. The rules are the same for both.

Requirements laid down in Graham: The answer to the following questions must be YES:

1) Was the accused, or may he have been, compelled to act as he did because, as a result of what he reasonably believed to be the situation, he had good cause to fear that otherwise death or serious injury would result to himself (or to someone close).

THREATS MUST HAVE BEEN OF DEATH OR SERIOUS INJURY (physical rather than psychological – Baker and Wilkins)

2) Would a sober person of reasonable firmness, sharing relevant characteristics of the accused, have responded as the accused did?

THIS WILL FAIL IF A SOBER PERSONAL OF REASONABLE FIRMNESS WOULD HAVE RESISTED. CHARACTERISTICS CAN BE AGE, SEX, DISABILITY ETC (drug addiction is self-induced so can’t be a characteristic – Flatt). BEING VULNERABLE DOESN’T COUNT – Horne.

The carrying out of any threats would have to be immediate or imminent. Hudson (two girls committed perjury (lied in court) because they were told they’d be cut up if they didn’t; duress succeeded because the man was in the court and could have carried out his threat later that day).

The threat must be the direct cause of the crime; Cole – moneylenders threatened unpleasant consequences if D did not pay the money so D robbed a bank; was not direct.

D cannot rely on duress if he exposed himself to the threats by joining a gang – Hasan.

Necessity will apply in circumstances which are so compelling, the defendant felt as though he ought to act in the way he did.

Will very rarely be allowed for murder cases. In Dudley and Stephens, members of a crew who had been starved of food and water for days decided to kill and eat the most vulnerable member of their crew. The defence of necessity was not allowed because the judge said that even if such a defence were permitted, who would be qualified to decide which life is more valuable than another.

HOWEVER, where fate has already ‘designated’ one individual for death, the defence of necessity may succeed.

Requirements: 1) The act must be needed to avoid inevitable and irreparable evil;

2) No more should be done than is reasonably necessary for the purpose to be achieved;

3) The evil inflicted must not be disproportionate to the evil avoided.

Re A satisfied all the requirements. Conjoined twins, one was capable of independent existence but the other was entirely dependent. Leaving them conjoined would result in the death of both babies, but separating them would mean ONE WOULD LIVE AND ONE WOULD DIE. The hospital sought advice from the court as the parents did not want the operation to go ahead. The hospital had conflicting duties; to save the stronger child’s life in carrying out the operation but also to prevent the weaker child’s death. Held that the operation would be lawful.