General Defences

General Defences

Duress
1. Threats (Must be of death or personal Injury (Hudson and Taylor (1971)
  1. Threat to damage or destroy property is insuffucent (M'Growther)
  2. Threat can be directed at defendants wife and Children (Ortiz (1986)
  3. THreat may not need to be immediate but perhaps after an inteval (Hudson & Taylor (1971)
  4. Threat must follow immediately or almost immediately ( Hasan (2005)
Mistake
1. Two types: Mistakes of Law and of Fact
2. DPP v Morgan(1976) Honest Belief clearly negates intent, reasonableness or otherwise of that belief can only be evidence that the beliefntent was
  1. Mistake of fact must be honestly made
  2. Reasonableness of the mistake is used only as evidence
  3. Williams (1987) honest belief in Unreasonable mistake will be irrelevant so far as belief was held
3. Ignorance of the law is not an excuse
  1. Esop (1836) foreign individuals who commit an offence in england thinking that the act is perfectly legal will be prosecuted
Self Defence
1. s3(1) of the Criminal Law Act 1967: A person may use such force as is reasonable in the circumstances in the prevention of a crime, or in effecting or
  1. assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large
2. Any evidence of self defence must be left to a jury
3. Force
  1. The force must be necessary
  2. The defendant must believe it is necessary
  3. Defendant may be genuinely mistaken as to the force required
  4. Rashford (2005) a person only acts in self defence if in all the circumstances he honestly believes that it is necessary for him to defend himself and
    1. if the amount of force that he uses is reasonable
  5. A Pre emptive strike is acceptable (Beckford (1988)
  6. Any force used must be reasonable from the jury's perspective
    1. Test is subjective (Shannon (1980) and Whyte (1987)
    2. If a person did what he thought was insticntively necessary tht woud be the most potent evidence that only reasonable defensive action had been taken
      1. Pallmer (1971)
  7. Where the jury is satisfied that the mistake as to force was caused by intoxication, the defence must fail (O'Grady (1987)
  8. If force is grossly excessive and disproportionate, then the defence will fail (Clegg (1995)
Consent
1. Must be real (full capacity and understanding)
  1. Invalid if victim lacks capacity - Howard (1965)
  2. Victim must be able to understand the act consented to ( Burrel v Harmer (1967))
2. Victim must not be decieved
  1. Mobilio (1991) if a doctor is performing an examination for sexual gratification, the nature and quality of the act remains the same so consent valid
  2. Tabassum (2000) women were consenting to breast examination for medical purposes meaning they has been deceived as to the quality of the act
    1. when consent is obtained by deception for either element, consent is invalid
3. Consent must be fully informed
  1. Dica (2004) Victim no longer consents to infected intercourse unless she is informed of the infeection and consents thereafter.
    1. If defendant knows, he has mens rea for recklessness. If not, he will have no mens rea for GBH (Williams (2003)
4. Consent is often implied by law
  1. Brown (1994) Line of consent drawn between battery and ABH
  2. Sport: criminal prosecutions in sport can onle be for acts whose conduct is sufficiently grave to be categorised as criminal
    1. Jury would need to consider whether conduct was obviously late and/or violent
  3. Surgery: Patient must consent (Corbett v Corbett (1971) if the surgery is done without just cause or excuse, it is always unlawful even if consented 2
    1. bravery v Bravery (1954)
  4. Horseplay: other members must genuinely believe that the friend is consenting (Aitken & Others (1992)
  5. Sex: assault during sex will be prosecuted - despite consent- if the harm intended is more than transient or trifling injury (Boyea (1992)
  6. Consent is a valid defence for tattoing (Brown (1994)
    1. Branding is to be considering same as tattooing even if it is tecnhically ABH ( Wilson (1997)
5. Burden of proof for proving lack of rests on prosecution - Donovan (1934)
Insanity
1. Available as a defence to any crime (Horseferry Rd Magistrates Court (1996)
2. Whether insnaity can be raised is decided by the judge after reading the evidence
3. s.1 Criminal Procedure Act (1991) Two registered edical practioners must provide evidence that the defendant meets the legal definition of insantiy
4. Judge has discretion as to sentencing (s.5 Crimiinal Procedure Act (1965) Hospital Order, Supervision Order, Order for absolute discharge
5. Murder conviction requires indefinite hospitilisation
6. 'the party accused was laboring 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
  1. or if did know it, that he did not know that he was doing what he was doing' (M'naaghten (1843)
    1. Defect of reason
      1. A person must be deprived of his powers of reasoning (Clarke (1972)
        Does not include momentary lapses of judgement, confusion or forgetfulness
    2. Disease of the mind refers to mental faculties not brain (Kemp (1957)
      1. must come from internal factors so alcohol is external and not insanity (Quick 1957)
      2. Henessey (1989) Diabetes is an internal factor thus a disease of the mind
      3. Burgess (1991) Sleepwalking is an internal factor
    3. Wrong Means illegal (windle (1952) but not morally wrong (2007)
7. Balance of probabilities to prove insanity
Automatism
1. Bratty (1963)
  1. An act done by the muscles
  2. No control of the mind
  3. Spasm, reflex, action or convulsion
  4. Concussion or sleep walking
  5. not conscious
2. If the defendant wishes to raise insanity as a defence, he must provide evidence of it. (Hill v Baxter (1958)
  1. if he can operate his body to a degree, the defence is not made out. (Issit (1978)
  2. Actions must be 'wholly uncontrolled and uninitiated by any function or will' Watmore v Jenkins (1962)
  3. Avoiding danger does not count (Broome v Parkins (1987)
  4. If the defendant is aware he is about to suffer automatism and does nothing about it, he is responsible for the outcome (Kay v Butterworth (1945)
  5. Reflex action is no defence (Ryan v R (1967)

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