Defences Part One

+
Defences
Criminal law
Jehanzeb Jehangiri TILS Lahore

Criminal Law
2
+
n  It is the duty of the prosecution to prove the crime. It is

also the duty of the prosecution to disprove the
presence of any defences.
Jehanzeb Jehangiri TILS Lahore Criminal Law

3
+
Distinctions
n  It is very important to understand the difference

between the two main forms of differences.
n  The defences are generally divided into two main

categories:
n  Affirmative defences
n  Failure of proof defences

4
Defences
Affirmative Failure of proof

defences defence
Duress Necessity Self-defence Automatism Insanity Intoxication Consent Mistake

5
+
Affirmative defences
n  This form of defence blocks criminal liability.
n  The defence actually accepts that there is in fact mens

rea and actus reus of crime.
n  The essence is that Defendant is not denying that the

crime has taken place.
n  Rather the defendant is looking for an excuse and

justification to prove that in this situation the act, which
is considered crime in other instances and is
punishable, is in fact justified.

6
+
Failure of proof
n  This is unlike the former defence.
n  As the former defence accepts that there is crime and

works outside the elements of the crime.
n  The defence of failure of proof works inside the

elements of the crime.
n  It provides evidential basis that one of the elements of

the offences is not fulfilled properly.

7
+
murder
n  What is the definition of murder?
n  What is the mens rea of murder?
n  What is the actus reus of murder?

8
+
note
n  It should be noted however, that it is not enough to just

claim the presence of one of the aforementioned
defence.
n  There needs to be credible evidence to prove the

presence of the evidence – to create reasonable doubt
in the mind of the juror.
n  If there is no evidence and it is just a claim, then what

will happen then…

9

10
Defences
Affirmative Failure of proof

defences defence
Duress Necessity Self-defence Automatism Insanity Intoxication Consent Mistake

11
+
Involuntary conduct
n  Prime example of failure of proof.
n  It can be used for crimes of strict liability.
n  The defence is that the criminal conduct was not done

by D, but it instead happened to him.

12
+
Hill v. Baxter
n  There may be cases where the circumstances are such

that the accused could not really be said to be driving at
all. Suppose he had a stroke or and epileptic fit, both
instances of what may properly be called acts of God; he
might be in the drivers seat with his hand on the wheel,
but in such state of unconsciousness that he could bot be
said to be driving. A blow from a stone or an act by a
swarm of bees I think introduced some conception akin to
nous actus interveniens.

13
+
n  Physical control
n  Mental control

14
+
Bratty v. A-G of Northern
Ireland
n  No act is punishable if it is done involuntarily; and an
involuntary conduct in this act in this context – some
people nowadays prefer to speak of it as ‘automatism’ –
meaning an act which is done by muscles without any
control of the mind.

15
+
Physical involuntariness
n  Person’s
conduct is causally effective if it is
done voluntarily.
– it was Mitchell who was
n  Mitchell
deemed to have caused the death of the
woman, rather than a man who was
pushed by him to fall on her leading on to
her death.
n  Burns v. Bidder – a driver was charged
with the offence of failing to accord
precedence to a pedestrian of a crossing.
His defence was that his action was
16
+
Automatism
n  This is the form of involuntary behavior happens when

the defendant is effectively unconscious while
committing.
n  This is a dangerous defence, because this allows the

judge a wide range of powers, by finding the state of
mind as the disease of mind, which causes him to
establish acquittal by reason of insanity, allowing him
the power to commit the defendant hospital.

17
+
Bratty v. A-G of Northern
Ireland

18
+
Quick
n  The defendant was a psychiatric nurse.
n  Lawton LJ –
n  A malfunctioning of the mind of transitory effect caused by
the application to the body of some external factor such as
violence, drugs, alcohol or hypnotic influences.

19
+
Success rates of defence of
automatism are relatively low
n  It is applied to all offences, even the offences of strict

liability.
n  The defence is not applicable if the defendant was at

fault of causing his own condition.
n  Medical evidence

20
+
Strict liability offences
n  Automatism is applicable in strict liability offences

because it is not only the denial of the mens rea but also
in fact it is a denial of actus reus.
n  As we looked at Burns v. Bidder, the defence was

allowed because it was considered that the defendant
was not driving at all.
n  Neal v. Reynolds
n  Broome v. Perkins

21
+
Prior fault
n  Bailey – the question is not of what is reasonable

foreseen, but the question is of what was foreseen by
the accused.

22
+
R v. Whoolley
n  The defendant lorry driver, was travelling on the M62 in

a queue of slow moving traffic. He suffered a sneezing
fit, losing control of his vehicle he knocked into the car
in front. This car in turn knocked into the car in front
causing a domino effect involving 7 cars. The
Magistrates allowed the defence of automatism. The
appeal court held that the Magistrates were right to do
so and that an attack of sneezing could amount to an
involuntary action for the purposes of the defence of
non-insane automatism.

23
+
Requirements for non-insane
automatism
n  There must exist an involuntary action arising from

external sources or reflex action.
n  R v. Kemp
n  R v. Burgess – sleepwalking
n  R v. Hennessy – Hyperglycarmia
n  The action must be completely involuntary

n  Broome v. perkins
n  A- G Reference no. 2
n  The automatism must be self-induced.

n  R v. Bailey

24
+
Chapter 2
n  The defences involve two of the morals arguments

n  HLA Hart
n  Special circumstances

25
+
Insanity
n  The defence of insanity is a general defence which is

available to all crimes. Where a defendant is found to
be insane, the jury are directed to give a special verdict
of 'not guilty by reason of insanity

26
+
Insanity
n  Insanity before trial
n  Unfitness to plead
n  Insanity at the time of offence

27
+
Insanity at the time of offence
n  The question and determination of insanity is deduced

through the case of M’Naughten.
n  They have also come to be known as the M’Naughten

Rules.

28
+
M’Naughten
n  Daniel M'Naghten attempted to kill the Prime Minister,

Sir Robert Peel, but instead shot and killed Edward
Drummond, the Prime Minister's Secretary. M'Naghten
was suffering from insane delusions at the time of the
killing. The House of Lords formulated the M'Naghten
rules which apply in determining whether a person
should escape criminal liability on the grounds of being
insane.

29
+
n  Lord Tindal CJ:
n  "In all cases of this kind the jurors ought to be told that
every man is presumed to be sane, and to possess a
sufficient degree of reason to be responsible for his
crimes, until the contrary be proved to their satisfaction:
and that to establish a defence on the ground of insanity,
it must be clearly proved that at the time of committing
the act the party accused was laboring 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
as not to know that what he was doing was wrong."

30
+
M’Naughten Rules
n  A defect of reason
n  The defect must be caused by disease of mind
n  The defect of reason must be such that the defendant

did not know what he was doing or, if he
did know, he did not know the act was wrong.

31
+
Defect of reason
n  For finding insanity, it must be proved that the

defendant suffered from defect of reason. Mere
forgetfulness or absent mindedness is not enough.
n  R v. Clarke

32
+
R v. Clarke
n  Mrs Clarke, a 58 year old woman, absent-mindedly

placed a jar of mincemeat, a jar of coffee and some
butter into her bag whilst shopping in a supermarket.
She had no recollection of placing the items in her bag.
Medical evidence was given at her trial which stated
that she was suffering from depression and was
diabetic. The trial judge ruled that this raised the
defence of insanity. At this point Mrs Clarke changed
her plea to guilty and then appealed against the judge's
finding of insanity

33
+
Disease of mind
n  The defect of reason should have its genesis in the

disease of mind. The courts have been relatively liberal
in the interpretation and have included physical
problems as well, which add on to the mental defect of
reason.

34
+
R v. Kemp
n  A devoted husband of previous good character made

an entirely motiveless and irrational violent attack upon
his wife with a hammer. He was charged with causing
grievous bodily harm. He suffered from hardening of
the arteries which lead to a congestion of blood in the
brain. This caused a temporary lack of consciousness,
so that he was not conscious that he picked up the
hammer or that he was striking his wife with it. He
sought to raise the defence of automatism.

35
+
n  Held:
n  The hardening of the arteries was a " disease of the mind "
within the M'Naghten Rules and therefore he could not rely
on the defence of automatism.
Devlin J:-
n  "It does not matter for the purposes of law, whether the
defect of reason is due to a degeneration of the brain or
to some other form of mental derangement. That may be
a matter of importance medically, but it is of no
importance to the law, which merely has to consider the
state of mind in which the accused is, not how he got
there.”

36
+
Epilepsy
n  Bratty v. AG
n  R v. Sullivan
n  Sleepwalking – R v. Burgess

37
+
n  Where the defect of reason is caused by an outside source,

this will not lead to a finding of insanity, but may give rise
to the defence of non-insane automatism. This has lead to
an unfortunate consequence in relation to diabetics since if
a diabetic commits an offence whilst suffering from
hyperglycaemia, a state arising from too much blood sugar
as a result of not taking insulin, they will be classed as
insane. However, if the diabetic takes too much insulin
resulting in a hypoglycaemia state, this will be classed as
an outside source resulting in a finding of non-insane
automatism. Non-insane automatism is a complete defence
leading to the acquittal of a defendant with no hospital
order attachments.
n  R v. Hennesey

38
+
Defendant did not know what he
was doing.
n  It needs to be shown that through defect of reason,

caused by the disease of mind, the defendant was
unaware of what he was doing.
n  R v. Codere
n  R v. Windle
n  R v. Johnson

39
+
R v. Codere
n  The appellant was convicted of murder. He sought to rely

on the defence of insanity, however, at the time of the
killing he knew that it was unlawful to kill.
Held:
n  He was not able to rely on the defence of insanity.

Lord Reading on the meaning of 'wrong' referred to in the
M'Naghten rules:"If the accused does know either that his
act is morally wrong according to the ordinary standard
adopted by reasonable men or that it is legally wrong then
it cannot be said that he does not know he was doing what
was wrong.

40
+

Defences Part One

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Defences Part One

Uploaded by

Copyright:

Available Formats

+

Jehanzeb Jehangiri TILS Lahore

n It is the duty of the prosecution to prove the crime. It is

Jehanzeb Jehangiri TILS Lahore Criminal Law

n It is very important to understand the difference

n The defences are generally divided into two main

Jehanzeb Jehangiri TILS Lahore Criminal Law

Affirmative Failure of proof

Duress Necessity Self-defence Automatism Insanity Intoxication Consent Mistake

Jehanzeb Jehangiri TILS Lahore Criminal Law

n This form of defence blocks criminal liability.

n The defence actually accepts that there is in fact mens

n The essence is that Defendant is not denying that the

n Rather the defendant is looking for an excuse and

Jehanzeb Jehangiri TILS Lahore Criminal Law

n This is unlike the former defence.

n As the former defence accepts that there is crime and

n The defence of failure of proof works inside the

n It provides evidential basis that one of the elements of

Jehanzeb Jehangiri TILS Lahore Criminal Law

n What is the definition of murder?

n What is the mens rea of murder?

n What is the actus reus of murder?

Jehanzeb Jehangiri TILS Lahore Criminal Law

n It should be noted however, that it is not enough to just

n There needs to be credible evidence to prove the

n If there is no evidence and it is just a claim, then what

Jehanzeb Jehangiri TILS Lahore Criminal Law

Jehanzeb Jehangiri TILS Lahore Criminal Law

Affirmative Failure of proof

Duress Necessity Self-defence Automatism Insanity Intoxication Consent Mistake

Jehanzeb Jehangiri TILS Lahore Criminal Law

n Prime example of failure of proof.

n It can be used for crimes of strict liability.

n The defence is that the criminal conduct was not done

Jehanzeb Jehangiri TILS Lahore Criminal Law

n There may be cases where the circumstances are such

Jehanzeb Jehangiri TILS Lahore Criminal Law

Jehanzeb Jehangiri TILS Lahore Criminal Law

Jehanzeb Jehangiri TILS Lahore Criminal Law

n This is the form of involuntary behavior happens when

n This is a dangerous defence, because this allows the

Jehanzeb Jehangiri TILS Lahore Criminal Law

Jehanzeb Jehangiri TILS Lahore Criminal Law

n The defendant was a psychiatric nurse.

Jehanzeb Jehangiri TILS Lahore Criminal Law

n It is applied to all offences, even the offences of strict

n The defence is not applicable if the defendant was at

Jehanzeb Jehangiri TILS Lahore Criminal Law

n Automatism is applicable in strict liability offences

n As we looked at Burns v. Bidder, the defence was

Jehanzeb Jehangiri TILS Lahore Criminal Law

n Bailey – the question is not of what is reasonable

Jehanzeb Jehangiri TILS Lahore Criminal Law

n The defendant lorry driver, was travelling on the M62 in

Jehanzeb Jehangiri TILS Lahore Criminal Law

n There must exist an involuntary action arising from

n The action must be completely involuntary

n The automatism must be self-induced.

Jehanzeb Jehangiri TILS Lahore Criminal Law

n The defences involve two of the morals arguments

Jehanzeb Jehangiri TILS Lahore Criminal Law

n The defence of insanity is a general defence which is

n  It is the duty of the prosecution to prove the crime. It is

n  It is very important to understand the difference

n  The defences are generally divided into two main

n  This form of defence blocks criminal liability.

n  The defence actually accepts that there is in fact mens

n  The essence is that Defendant is not denying that the

n  Rather the defendant is looking for an excuse and

n  This is unlike the former defence.

n  As the former defence accepts that there is crime and

n  The defence of failure of proof works inside the

n  It provides evidential basis that one of the elements of

n  What is the definition of murder?

n  What is the mens rea of murder?

n  What is the actus reus of murder?

n  It should be noted however, that it is not enough to just

n  There needs to be credible evidence to prove the

n  If there is no evidence and it is just a claim, then what

n  Prime example of failure of proof.

n  It can be used for crimes of strict liability.

n  The defence is that the criminal conduct was not done

n  There may be cases where the circumstances are such

n  This is the form of involuntary behavior happens when

n  This is a dangerous defence, because this allows the

n  The defendant was a psychiatric nurse.

n  It is applied to all offences, even the offences of strict

n  The defence is not applicable if the defendant was at

n  Automatism is applicable in strict liability offences

n  As we looked at Burns v. Bidder, the defence was

n  Bailey – the question is not of what is reasonable

n  The defendant lorry driver, was travelling on the M62 in

n  There must exist an involuntary action arising from

n  The action must be completely involuntary

n  The automatism must be self-induced.

n  The defences involve two of the morals arguments

n  The defence of insanity is a general defence which is

n  Insanity before trial

n  Insanity at the time of offence

n  The question and determination of insanity is deduced

n  They have also come to be known as the M’Naughten

n  Daniel M'Naghten attempted to kill the Prime Minister,

n  Lord Tindal CJ:

n  The defect must be caused by disease of mind

n  The defect of reason must be such that the defendant

n  For finding insanity, it must be proved that the

n  Mrs Clarke, a 58 year old woman, absent-mindedly

n  The defect of reason should have its genesis in the

n  A devoted husband of previous good character made

n  Where the defect of reason is caused by an outside source,

n  It needs to be shown that through defect of reason,

n  The appellant was convicted of murder. He sought to rely

n  He was not able to rely on the defence of insanity.