13. Defences I: incapacity and
negating the elements of the
offence
Incapacity and negating the elements of the offence
13.1 General and specific defences
general defence
defendant may plead in relation to any criminal offence
e.g. insanity, automatism, self-defence and mistake
special defence
only pleaded in relation to specific offences
e.g. loss of control and diminished responsibility
only for murder
complete and partial defences
if defendant successfully pleads complete defence, he will be acquitted
of offence charged
may still be convicted of lesser offence
e.g.
loss of control partial defence in respect to murder
convicted of manslaughter
capacities and negating elements of offence
infancy (doli incapax), insanity, automatism, intoxication
pleas that defendant should not be criminally liable for offence
13. Defences I: incapacity and negating the elements of the offence 1
, 13.2 Infancy
children under the age of ten
England and Wales - lack capacity to commit a criminal offence
s.50 Children and Young Persons Act 1933
presumed doli incapax (incapable of committing a criminal offence)
lack moral capacity to commit criminal offence
knowledge and ability to reason is still in process of developing
unable to fully understand consequences of actions
if adult persuades child under 9 to steal, child cannot be held liable
adult can be convicted through innocent agent
abolishing the rebuttable presumption for children ages 10-13
rebuttable presumption of doli incapax for age 10-13
rebutted by prosecution proving child knew their conduct was
seriously wrong
abolished by s.34 Crime and Disorder Act 1998
13.4 Insanity
defence of insanity concerned with mental condition of defendant at the
time of the offence
defendant insane at time of trial will argue unfit to plead
general defence
could be a defence to a charge of harassment contrary to s.2 Protection
from Harassment Act 1997
‘criminal punishment should only be imposed on this responsible for
their conduct’
judge may make one of three orders:
hospital order
supervision and treatment order
order for absolute discharge
13. Defences I: incapacity and negating the elements of the offence 2
negating the elements of the
offence
Incapacity and negating the elements of the offence
13.1 General and specific defences
general defence
defendant may plead in relation to any criminal offence
e.g. insanity, automatism, self-defence and mistake
special defence
only pleaded in relation to specific offences
e.g. loss of control and diminished responsibility
only for murder
complete and partial defences
if defendant successfully pleads complete defence, he will be acquitted
of offence charged
may still be convicted of lesser offence
e.g.
loss of control partial defence in respect to murder
convicted of manslaughter
capacities and negating elements of offence
infancy (doli incapax), insanity, automatism, intoxication
pleas that defendant should not be criminally liable for offence
13. Defences I: incapacity and negating the elements of the offence 1
, 13.2 Infancy
children under the age of ten
England and Wales - lack capacity to commit a criminal offence
s.50 Children and Young Persons Act 1933
presumed doli incapax (incapable of committing a criminal offence)
lack moral capacity to commit criminal offence
knowledge and ability to reason is still in process of developing
unable to fully understand consequences of actions
if adult persuades child under 9 to steal, child cannot be held liable
adult can be convicted through innocent agent
abolishing the rebuttable presumption for children ages 10-13
rebuttable presumption of doli incapax for age 10-13
rebutted by prosecution proving child knew their conduct was
seriously wrong
abolished by s.34 Crime and Disorder Act 1998
13.4 Insanity
defence of insanity concerned with mental condition of defendant at the
time of the offence
defendant insane at time of trial will argue unfit to plead
general defence
could be a defence to a charge of harassment contrary to s.2 Protection
from Harassment Act 1997
‘criminal punishment should only be imposed on this responsible for
their conduct’
judge may make one of three orders:
hospital order
supervision and treatment order
order for absolute discharge
13. Defences I: incapacity and negating the elements of the offence 2
