Defences

• Insanity (1)

  D may be able to plead insanity also known as insane automatism.

  This is a complete defence to all crimes.
• Insanity (2)

  M'Naghten states 'every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes'.
• Insanity (3)

  D must prove at the time of committing offence he was under 'such a defect of reason, from disease of the mind, to not know nature and quality of act he was doing or if he did know it he didnt know what he was doing wrong'
• Insanity (4)

  'Defect of reason' where powers of reasoning are impaired all the time Clarke.

  'Disease of the mind' is a legal term which covers illnesses like: Diabetes (Hennesy) epilepsy (sullivan) or sleepwalking. Illness is an internal factor. Quick insulin was external cause
• Insanity (5)

  D must either not know nature and quality of act or that it was wrong. Windle = legally wrong and Johnson has confirmed this is correct.
• Automatism (1)

  D may be able to plead automatism also known as non-insane automatism. This is a complete defence to all crimes.
• Automatism (2)

  Bratty - Lord Denning said 'automatism means an act which is done by the muscles without any control by the mind such as spasms, reflex action or convulsion; or an act done by a person whilst suffering from concussion or hypnotism.

  It requires the complete destruction of voluntary control.
• Automatism (2)

  Automatic state must have external cause.

  -> Rape R v T

  -> Severe blows to the head

  Quick was able to plead automatism after taking insulin but failing to eat.
• Automatism (3)

  Crimes of MR, D pleads this defence providing he was prevented from forming MR.

  RvT D charged with robbery and s.47 OAPA 1861. Judge held he was acting 'as though in a dream' so incapable of forming MR.
• Automatism (4)

  *If self inflicted include*

  Further limitation is it must be induced by a factor that cant be forseen; this means it is not self induced. If self induced by alcohol or drug taking rules on intoxication apply, Lipman.

  However, if it is not self induced through alcohol and drugs and is a specific intent crime they can raise defence as they lack MR, Bailey.

  If it is a basic intent crime and self induced automatism is involved depends wether D knew automatic state would result from their action. If they did know there is no defence R v c
• Voluntary intoxication (1)

  Voluntary intoxication is where the D chooses to take drink or drugs.  The Majewski rules state that it is a partial defence to specific intent offences but is not a defence to basic intent crimes.  

  If D is so intoxicated that he can’t form the mens rea he is not guilty of that offence but will be guilty of a lesser offence of the same kind (Sheehan and Moore).
• Voluntary intoxication (2)

  Where the offence is a basic intent crime, the then voluntary intoxication is not a defence.  This is because becoming voluntarily intoxicated is a reckless course of conduct, so the mens rea is fulfilled Majewski.
• Voluntary intoxication (3)

  *only use if relevant to scenario*

  If the D forms the intent to commit the crime and then drinks to give himself Dutch courage, then they have formed the MR for the specific intent offence and cannot use the defence A-G for Northern Ireland v Gallagher.

  If the D haw committed a basic intent crime and is voluntarily intoxicated, then, as in, Richardson and Irwin , it doesn’t automatically mean they will be found guilty.  If they wouldn’t have realised the risk of doing the act when sober, then they haven’t necessarily been reckless when drunk. 
• Involuntary intoxication (1)

  Involuntary intoxication is a complete defence to all crimes. The Majewski rules are relaxed when the defendant becomes intoxicated without his knowledge or against his wishes.
• Involuntary intoxication (2)

  The situations where the D’s intoxication will be treated as involuntary are when the drink or drugs were taken under medical prescription, the D took medication that normally has a sedative effect, Hardie, or the D’s drink was spiked.
• Involuntary intoxication (3)

  D is not entitled to be automatically acquitted, but can have the evidence of intoxication considered, even where the offence is one of basic intent. If the intoxication negates the mens rea he is entitled to an acquittal but if he is able to form the mens rea, he remains criminally liable Kingston.
• voluntary intoxication and mistake in the use of force in self defence

  If the defendant makes a mistake about the amount of force needed in self-defence because he is intoxicated, then he does not have a defence to specific or basic intent crimes, O’Grady.
• Self Defence (1)

  Self-defence is clarified under the Criminal Justice and Immigration Act 2008, s. 76 and can be pleaded where a person uses force that injures/ kills another or damages property and where the force is justified because it is reasonable. It is a complete defence and covers situations where the person is defending themselves, or others or property from attack.
• Self Defence (2)

  The jury must consider two questions: was is necessary to use force? Was the amount of force reasonable in the circumstances as the D believed them to be? The first question, whether it was necessary to use force, is a subjective test and based on what the D honestly and genuinely believed Williams. Factors that help the jury decide this are whether the V was running away ‘Hussain and Another) and if the D knew they could avoid violence by retreating (Buckley).
• Self Defence (3)

  The two stage test in the CJI 2008, s. 76 lays out the two stage test for deciding if the amount of force is reasonable: firstly, the amount of force must be reasonable, assessed objectively. However, it is based on the circumstances as the D believed them to be, which is subjective.

  To help judge if the amount is reasonable, they consider whether the force was proportionate, the relative strengths of the parties (Buckley) and the number of people involved, the gravity of the crime or evil to be prevented and whether it was possible to prevent the crime by other means.
• Self Defence (4)

  The CJI Act 2008 says the D doesn’t have to weigh to a nicety the exact measure of any necessary action’ but he also can’t use excessive force, Clegg. The threat must be imminent Malnik, they can only be the aggressor where the V retaliates and overpowers them (Bird. They can make a pre-emptive strike (Beckford).
• Self Defence (5)

  As D has made a mistake about the facts of the situation and has used force, it has to be an honest and genuine mistake. The mistake does not have to be reasonable, Williams. There is no defence if the mistake was due to intoxication (O’Grady)
• Consent (1)

  The D may try to raise the defence of consent. The D is not guilty if the V has consented to the offence being committed against him. For public policy reasons the courts have restricted the availability of consent. It can be a defence to battery but nothing more serious, unless the case fits into one of the public policy exceptions listed in Brown HL.
• Consent (2)

  A-G's Ref. (No.6 of 1980) stated that consent is not available for ordinary fist fights and Brown held that it is not available for the deliberate infliction of bodily harm for no good purpose.
• Consent (3)

  the courts do allow the defence for the ordinary 'jostlings' of everyday life, Wilson v Pringle. They also allow it for contact sports being played within the rules, Barnes. Consent can be given for medical and dental treatment carried out by qualified practitioners, Tabassum as long as consent is genuinely obtained. Consent for sexual activity is allowed, Slingsby, but not for STDs where V isn't aware D is infected, Dica. It can be given for bodily adornment like branding, Wilson. Lastly, it can be given for rough horseplay as long as D genuinely believes V consents Jones.
• Consent (4)

  *choose which one applies*

  
  

  There can be consent for the ordinary jostlings' of every day life like pats on the back and shaking hands, as shown in Wilson v Pringle.

  There can be consent for lawful contact sports, but they must be played within the rules Barnes. The rules are just a guide though (Moore) and the law is above them. Certainly any intention to inflict injury when playing sport goes beyond the rules and there will be no consent for this, e.g. an off the ball argument Barnes.
• Consent (5)

  *choose the one which applies*

  
  

  There can be consent for medical and dental treatment, including surgery. However, any consent must be genuine, so consent obtained fraudulently, as in Tabassum, means the defence will not apply.

  
  

  There is consent for sex, even vigorous sex as in the case of Slingsby where the D was not guilty of unlawful act manslaughter as the V consented to the battery. However, there can be no consent for sexually transmitted diseases where the V isn't aware that D is infected, Dica.
• Consent (6)

  *chose one which applies*

  There can be consent for bodily adornment like branding, Wilson. This is because the courts have decided branding is no worse than tattooing and it is not in the public interest to criminalise such consensual behaviour.
• Consent (7)

  *choose one that applies*

  Consent can be given for rough horseplay, Aiken. This applies even when there is no actual consent as long as the D genuinely, but mistakenly, believes there is consent Jones. Richardson & Irwin also demonstrates there can be consent for rough horseplay. This is different from fist fights as there is no intention to inflict harm in rough horseplay.
• Duress by threats (1)

  Duress by threats is a complete defence to all crimes except murder, attempted murder and treason
• Duress by threats (2)

  Defence available to someone who commits the AR because of threats made by some other person.

  Threat must be of death or serious injury at accused, his family or even strangers, Wright
• Duress by threats (3)

  Threat must be immediate and main reason for committing crime, Valderrama
• Duress by threats (4)

  Must be a casual link between threats and crime, Cole
• Duress by threats (5)

  Graham test

  • Did D feel compelled to act as he did because he reasonably belived he had good cause to fear serious injury or death?
  • If yes, would reasonable sober man sharing the same characteristics act the same way?if yes D can plead duress
• Duress by threats (6)

  Bowen- Characteristics include age, pregnancy, disability, gender, recognised mental illness

  Low iq, timidity and characteristics self induced by drugs and alchol aren't relevant
• Duress by threats (7)

  Some limitations to defence. Hasan states dress isn't available to a person who voluntarily exposes themselves to risk of relevant threat by joining a gang or putting himself at risk.
• Duress by threats (8)

  Secondly, if D could have escaped he wouldn't succeed in pleading this defence, Gill

  If successfully pleaded it results in aquittal
• Duress of circumstances (1)

  Duress of circumstances is a complete defence to all crimes except murder, attempted murder and treason. Pommell
• Duress of circumstances (2)

  D of C may be available to a person who commits the AR because the circumtances threaten the D or other people of death or serious injury.
• Duress of circumstances (3)

  Threatening circumstances must make D feel they will be subjected to serious injury or death immediately and it must be the main reason for committing the crime, Willer