GENERAL DEFENCES
GENERAL THEORY OF DEFENCES:
If these defences are successful, they lead to acquittal/NOT guilty verdict
These apply to all crimes – except duress which doesn’t apply to murder
Necessity doesn’t apply to murder
General defences are used when we do have all the elements of the AR and MR but he says that he did it but
there are reasons that justify or excuse my conduct…
3 CATEGORIES:
1.Justification: D should be acquitted because they did the right thing Self-defence
Necessity
2.Excuse: D did the wrong thing, but it would be unfair to punish them Duress
- Represents that the conduct was wrong, but that criminal liability is inappropriate because
of some characteristic of the actor requires that they not be convicted
3.Exemptions: (in)capacities; D is not a normal subject of criminal law Infancy
Insanity
Comparing Defences:
Self-defence vs necessity and duress:
- In self-defence the victim is an unjust aggressor
Self-defence vs duress:
- Justification x excuse
- In self-defence, a genuine (unreasonable) belief in the existence of the threat is enough (Gladstone
Williams (1984));
- Duress requires threat of death or serious injury
- In self-defence there is no strict requirement that the threat be directed at D or at a person close to him
Necessity x duress:
- Justification x excuse
- Duress is narrower because it is only available when the threat is of death or serious injury;
- But duress is also wider since it covers cases in which the defendant reasonably believes that there is a
threat, when in fact there is no such threat – mistaken necessity?
- Necessity may be a defence to murder (Re A (2001))
Structure of Problem Question:
1. Identify the potential criminal event
2. Identify the potential offence/s
3. Apply the offences to the facts
- Discuss the required elements –
- AR, (did D do it/act or omission?)
- MR (Did D possess the required MR?)
4. Consider any denials of offending issues/defences
- NB – that you do not consider every defence for the question. Think about whether there are any defences
that could potentially apply. If potential offence of murder – partial defences but also might consider
complete defences
Difference between insanity as denial of offence and insanity as defence: “Yes I killed the person but I thought he was a
tree therefore I lack intent for murder” versus “yes I killed the person and intended to kill him but the voices in my head told me to
do so.”
INSANITY: (insane automatism)
Results in a Special Verdict – ‘not guilty by reason of insanity’
Leading case: Sullivan 1984 – whilst visiting 80-year-old friend, D had an epileptic seizure during which he kicked V in the
head. D attempted to rely on automatism, but courts ruled condition was insanity.
Court’s powers: Criminal Procedure (Insanity and Unfitness to plead) Act 1991
Hospital order (with or without a restriction order)
Supervision order
Absolute discharge
M’Naghten’s Case 1843: “.... to establish a defence on the grounds of insanity, it must be clearly proved that, at the time of
committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the
nature and quality of the act he was doing or if he did know it that he did not know what he was doing was wrong”
, The M’Naghten Rules: must have 1 and 2, and 3 or 4
1.Defect of reason Clarke 1972: D took articles from a supermarket without paying for them, she did so without
thinking, partly as a result of mild depression. – D’s condition didn’t prevent her being able to
reason, and so the insanity rules weren’t satisfied.
2.Caused by a Legal term: no psychiatric meaning - Kemp 1957: D attacked wife with a hammer. D was
disease of the suffering from a condition which caused a congestion of blood in his brain ad caused him to lapse into
mind unconsciousness at the time of the attack. - blood clot in the brain caused attack
Disease under insanity:
Diabetes: Hennessy v Quick
- Hennessy 1989: raised automatism on the basis of a diabetic coma. D’s coma was induced
by a lack of insulin -hyperglycemic – could only pleaded insanity because it was internally
cause – HYPERglycemic = internal cause so insanity.
- Quick 1973: nurse in mental hospital, attacked a paraplegic patient. D was diabetic and at
the time of the attack was suffering from hypoglycaemia caused by lack of food after insulin.
– Hypoglycemic = external cause so no insanity.
Epilepsy: Sullivan 1984
Pre-menstrual syndrome: Smith 1982
Sleepwalkers: Burgess 1991: smashed bottle over woman's head and then struck her with a
video recorder whilst she was asleep. D didn’t remember and claimed he had been sleepwalking;
supported by medical evidence. Sought to rely on automatism, but only allowed insanity.
Depression: Clarke 1972
Dissociative state: T 1990: D took part in a violent robbery with 2 others. She was charged
with robbery. It emerged that D had been raped at some point prior to the robbery taking place,
and the issue of automatism was raised by the defence: that D was acting in a dissociative state as
a result of the rape.
3.Not to know D didn’t know what he was doing – EG: V thinks he is cutting a loaf of bread but in reality, is
nature and quality cutting V’s throat.
of act, or
4.Not to know ‘Wrong’ means legally wrong - Windle 1953: D’s wife was mentally ill and often talked to
that it is wrong him about suicide. D gave his wife 100 aspirins tablets, which she took, and died. D told police ‘I
suppose they will hang me for this’. – D knew what he was doing was wrong
- Confirmed in Johnson 2008
Reform:
Problems with the insanity defence:
- Too wide (sleepwalkers, etc.) & Too narrow (excludes volitional disorders)
- Possibly in breach of human rights - ECHR, Arts 2 & 3 (right to life and the prohibition of inhuman or
degrading treatment), 5 (right to liberty and security) and 6 (right to fair trial)
The context of insanity:
- Stigma of insanity
- Insanity is inappropriate to call someone with an everyday illness or disease – discrimination/rude
- 10% of prison population (around 9,000 prisoners) suffer from serious mental illness
Law Commission, Insanity and Automatism (Discussion Paper, 2013)
- Proposal 1: abolition of the common law rules on insanity
- Proposal 2: Recommend new defence of “not criminally responsible by reason of recognised medical
condition”
- Proposal 3: creation of a 3-limbed test: where D’s recognised medical condition must have caused D to lack
capacity: (a) rationally form a judgement about her conduct or their circumstances (b) to understand the
wrongfulness of what she is charged with, not isolated to legal wrongness or (c) to control her conduct in the
relevant circumstances.
- Proposal 6: placing an evidential burden on D
DURESS:
Primarily a common law defence – law is set out in cases
Not a defence that negates AR and MR, but a matter of public policy –
In duress you are arguing that the threat prevents you from acting as a free agent and had those threats not be
in place, then you wouldn’t have done it.
2 types:
1. Duress by threat: D commits a crime because of threats by a person that he (or someone else) will be killed
/seriously hurt.
2. Duress by circumstances: There is a threat, but D is not threatened by a person.
Exclusions: Duress is not a defence to:
duress does not 1. Treason offences: offences against the state
apply 2. Murder: ‘a person ought rather to die himself than to escape by the murder of another’
GENERAL THEORY OF DEFENCES:
If these defences are successful, they lead to acquittal/NOT guilty verdict
These apply to all crimes – except duress which doesn’t apply to murder
Necessity doesn’t apply to murder
General defences are used when we do have all the elements of the AR and MR but he says that he did it but
there are reasons that justify or excuse my conduct…
3 CATEGORIES:
1.Justification: D should be acquitted because they did the right thing Self-defence
Necessity
2.Excuse: D did the wrong thing, but it would be unfair to punish them Duress
- Represents that the conduct was wrong, but that criminal liability is inappropriate because
of some characteristic of the actor requires that they not be convicted
3.Exemptions: (in)capacities; D is not a normal subject of criminal law Infancy
Insanity
Comparing Defences:
Self-defence vs necessity and duress:
- In self-defence the victim is an unjust aggressor
Self-defence vs duress:
- Justification x excuse
- In self-defence, a genuine (unreasonable) belief in the existence of the threat is enough (Gladstone
Williams (1984));
- Duress requires threat of death or serious injury
- In self-defence there is no strict requirement that the threat be directed at D or at a person close to him
Necessity x duress:
- Justification x excuse
- Duress is narrower because it is only available when the threat is of death or serious injury;
- But duress is also wider since it covers cases in which the defendant reasonably believes that there is a
threat, when in fact there is no such threat – mistaken necessity?
- Necessity may be a defence to murder (Re A (2001))
Structure of Problem Question:
1. Identify the potential criminal event
2. Identify the potential offence/s
3. Apply the offences to the facts
- Discuss the required elements –
- AR, (did D do it/act or omission?)
- MR (Did D possess the required MR?)
4. Consider any denials of offending issues/defences
- NB – that you do not consider every defence for the question. Think about whether there are any defences
that could potentially apply. If potential offence of murder – partial defences but also might consider
complete defences
Difference between insanity as denial of offence and insanity as defence: “Yes I killed the person but I thought he was a
tree therefore I lack intent for murder” versus “yes I killed the person and intended to kill him but the voices in my head told me to
do so.”
INSANITY: (insane automatism)
Results in a Special Verdict – ‘not guilty by reason of insanity’
Leading case: Sullivan 1984 – whilst visiting 80-year-old friend, D had an epileptic seizure during which he kicked V in the
head. D attempted to rely on automatism, but courts ruled condition was insanity.
Court’s powers: Criminal Procedure (Insanity and Unfitness to plead) Act 1991
Hospital order (with or without a restriction order)
Supervision order
Absolute discharge
M’Naghten’s Case 1843: “.... to establish a defence on the grounds of insanity, it must be clearly proved that, at the time of
committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the
nature and quality of the act he was doing or if he did know it that he did not know what he was doing was wrong”
, The M’Naghten Rules: must have 1 and 2, and 3 or 4
1.Defect of reason Clarke 1972: D took articles from a supermarket without paying for them, she did so without
thinking, partly as a result of mild depression. – D’s condition didn’t prevent her being able to
reason, and so the insanity rules weren’t satisfied.
2.Caused by a Legal term: no psychiatric meaning - Kemp 1957: D attacked wife with a hammer. D was
disease of the suffering from a condition which caused a congestion of blood in his brain ad caused him to lapse into
mind unconsciousness at the time of the attack. - blood clot in the brain caused attack
Disease under insanity:
Diabetes: Hennessy v Quick
- Hennessy 1989: raised automatism on the basis of a diabetic coma. D’s coma was induced
by a lack of insulin -hyperglycemic – could only pleaded insanity because it was internally
cause – HYPERglycemic = internal cause so insanity.
- Quick 1973: nurse in mental hospital, attacked a paraplegic patient. D was diabetic and at
the time of the attack was suffering from hypoglycaemia caused by lack of food after insulin.
– Hypoglycemic = external cause so no insanity.
Epilepsy: Sullivan 1984
Pre-menstrual syndrome: Smith 1982
Sleepwalkers: Burgess 1991: smashed bottle over woman's head and then struck her with a
video recorder whilst she was asleep. D didn’t remember and claimed he had been sleepwalking;
supported by medical evidence. Sought to rely on automatism, but only allowed insanity.
Depression: Clarke 1972
Dissociative state: T 1990: D took part in a violent robbery with 2 others. She was charged
with robbery. It emerged that D had been raped at some point prior to the robbery taking place,
and the issue of automatism was raised by the defence: that D was acting in a dissociative state as
a result of the rape.
3.Not to know D didn’t know what he was doing – EG: V thinks he is cutting a loaf of bread but in reality, is
nature and quality cutting V’s throat.
of act, or
4.Not to know ‘Wrong’ means legally wrong - Windle 1953: D’s wife was mentally ill and often talked to
that it is wrong him about suicide. D gave his wife 100 aspirins tablets, which she took, and died. D told police ‘I
suppose they will hang me for this’. – D knew what he was doing was wrong
- Confirmed in Johnson 2008
Reform:
Problems with the insanity defence:
- Too wide (sleepwalkers, etc.) & Too narrow (excludes volitional disorders)
- Possibly in breach of human rights - ECHR, Arts 2 & 3 (right to life and the prohibition of inhuman or
degrading treatment), 5 (right to liberty and security) and 6 (right to fair trial)
The context of insanity:
- Stigma of insanity
- Insanity is inappropriate to call someone with an everyday illness or disease – discrimination/rude
- 10% of prison population (around 9,000 prisoners) suffer from serious mental illness
Law Commission, Insanity and Automatism (Discussion Paper, 2013)
- Proposal 1: abolition of the common law rules on insanity
- Proposal 2: Recommend new defence of “not criminally responsible by reason of recognised medical
condition”
- Proposal 3: creation of a 3-limbed test: where D’s recognised medical condition must have caused D to lack
capacity: (a) rationally form a judgement about her conduct or their circumstances (b) to understand the
wrongfulness of what she is charged with, not isolated to legal wrongness or (c) to control her conduct in the
relevant circumstances.
- Proposal 6: placing an evidential burden on D
DURESS:
Primarily a common law defence – law is set out in cases
Not a defence that negates AR and MR, but a matter of public policy –
In duress you are arguing that the threat prevents you from acting as a free agent and had those threats not be
in place, then you wouldn’t have done it.
2 types:
1. Duress by threat: D commits a crime because of threats by a person that he (or someone else) will be killed
/seriously hurt.
2. Duress by circumstances: There is a threat, but D is not threatened by a person.
Exclusions: Duress is not a defence to:
duress does not 1. Treason offences: offences against the state
apply 2. Murder: ‘a person ought rather to die himself than to escape by the murder of another’
