KINNAIRD COLLEGE FOR WOMEN

NADIRA HASSAN LAW DEPARTMENT

FALL, 2022

Criminal Law

Semester 5

Failure of Proof

Natalia Sardar Gondal (

Zainab Attique (F20BLAW011)

Zainab Attique (F20BLAW14)

Warisha Zahoor Mir ( F20BLAW013)

 INTRODUCTION

There are primarily two kinds of defenses: affirmative defenses and failure of proof defenses.

Affirmative Defenses

Although the offense’s elements are present, the defendant was prompted to act by the situation.
Examples include duress, necessity, and self-defense.

Failure of Proof Defenses

These defenses offer solid evidence that one of the offence’s components is missing.
Automatism, insanity, intoxication, mistake, and consent are a few examples.

Automatism

When a person commits a crime under circumstances where it may be inferred that their acts
were unintentional, non-insane automatism can be used as a defense. If properly pleaded, the
defense of non-insane automatism relieves the defendant of all criminal responsibility. There is
no authority to commit the defendant to a mental hospital, and no additional orders may be made
against him or her, which is how it varies from the defense of insane automatism.

This might be the case when an uncontrollable natural reaction, like sneezing or being pursued
by a swarm of bees, takes place. When the defendant is not aware of their conduct due to an
external element, frequently medication, a finding of non-insane automatism may also be made.
The primary distinction between crazy and non-insane automatism is that the deficiency of
reason in the former must be brought on by an internal source, whereas the involuntary action in
the latter must be brought on by an external one.

Where the defendant’s intellect is functioning, although poorly, the defense is not admissible.
There must be a total lack of conscious awareness.
As in Broome v. Perkins, the appeals party had diabetes. He had been hypoglycemic and had
been driving erratically. The fact that he had exercised conscious control over his car by
diverting away from other cars to avoid a collision and braking disproved his defense of non-
insane automatism. He was found guilty of driving carelessly, and his conviction was affirmed.

The defendant killed a young woman by strangling her with her own stockings in the case of
Bratty v. AG for Northern Ireland. D argued that his actions were automatic based on
evidence that he had psychomotor epilepsy, had blacked out, and was unaware of what he had
done. According to Lord Denning, the trial judge was right when he determined that D’s
condition was brought on by a mental illness. D was then found not guilty on a special verdict
due to insanity.

R v. Quick: The defendant was a diabetic psychiatric nurse who worked in a mental hospital. In
addition to using insulin, he also consumed alcohol and had a limited diet. He attacked a patient,
hurting him, and revealed that he had hypoglycemia. He faced assault charges. The Court of
Appeal decided that taking insulin, an outside factor, caused the defendant’s hypoglycemia,
which briefly took away his ability to control his behavior. The defense is insanity if the
defendant’s mental instability is a direct result of their diabetes (hyperglycemia).

R v. T: T was accused of taking part in a robbery and causing ABH. She invoked automatism as
a defense since she was dissociative at the time of the offence and experiencing post-traumatic
stress disorder brought on by the external aspect of rape. Despite the fact that post-traumatic
stress disorder is typically thought of as a mental illness, the rape constituted an external
component, making the non-insane automatism open to the jury.

Self-induced automatism

It is not a legal defense against a crime with simple intent.

R v. Bailey: The Court of Appeals determined that what mattered wasn’t what could have been
expected but rather what the defendant had foreseen.

R v. Lipman: The defendant took LSD and put a sheet in his girlfriend’s mouth, making her
seem like a snake in his delusional state. Manslaughter was the charge against him. As his illness
was self-inflicted, the court determined that he was guilty. He could have presented proof of his
acid trip to refute the mens rea if there had been a murder accusation.

Strict liability offences

Automatism can be pleaded for strict liability offences too such as driving. Automatism involves
both a rejection of the actus reus and a denial of mens rea.

In the case of Burns v. Bidder, the defendant was excused from responsibility since he wasn’t
operating his car.

In order for a jury to consider the automatism defense, the defendant must present adequate
automatism evidence, which carries an evidential burden. The trial judge will decide whether or
not he has done so, but it is clear from the cases that have been decided that deal with the defense
that defendant will need to present some expert medical evidence regarding his mental and
physical health at the time of the offence.

INSANITY

Insanity results from an internal factor. The defense of insanity is unusual in a number of ways.
First, if successfully raised it will not result in an unqualified acquittal, but rather a special
verdict of not guilty by reason of insanity. Upon such verdict, the court has a wide-ranging
dispositive discretion which includes hospital order, guardianship, absolute discharge, and
supervision. Before 1991 the only power available was mandatory indefinite committal to a
mental hospital at the Home Secretary’s discretion. As a result, the defense was understandably
unpopular with defendants who might otherwise have wished to avail themselves of it.

A second unusual characteristic Is that, unlike other defenses, it may be raised by either defense
or prosecution. The prosecution may raise it when the defendant puts his sanity at issue, for
example by pleading diminished responsibility or non-insane automatism. When this occurs it
seems probable, in analogy with the position on fitness to plead, that the standard of proof is the
criminal standard. Third, when raised by the defense, the burden of proof is with the defendant
rather than, as is usual, the prosecution. Fourth, a right of appeal exists against a special verdict
even though technically the defendant has been found not guilty.

The McNaughton Rules:

The rules that govern the defense of insanity are given in M’Naghten case:

1. There is a defect of reason due to the disease of mind.

2. Defect of reason makes him/her unaware of the nature or quality of the act.
3. Defect of reasoning makes him unaware of what he was doing.

M’Naghten (1843) Case:

Defendant was charged with the murder of Edward Drummond, secretary to the Prime Minister
and used the insanity defense at trial. He suffered from insane delusion which made him deduced
that there is a conspiracy against him as to kill him. At the time of his arrest, he told police that
he came to London to murder the Prime Minister but mistook the secretary to the prime minister
for prime minister. The jury reached a verdict of not guilty and a meeting at the House of Lords
ensued in order to determine what the standards for the insanity defense would be.

Principle:

It was held that every man is presumed to be sane and to possess a sufficient degree of reason to
be responsible of his crimes, until the contrary is proof and to establish the defense on the
grounds of insanity. It must be clearly proof that at the time of committing the act, the part
accused was laboring under such a defect of reason, from the disease of mind as not to know the
nature and the quality of the act he was doing, or as not to know what he was doing was wrong.

Disease of the Mind:

Whether a particular condition amounts to a disease of the mind within the rule is not a medical
but a legal question to be decided in accordance with the ordinary rules of interpretation. It
seems that any disease, which produces a malfunctioning of the mind, is a disease of the mind,
and need not be a disease of the brain. It covers any internet disorder, which results in violence
and is likely to recur. Therefore, disease of the mind does not mean only a physical defect of the
brain. This was explained under the case of RV Kamp.

R v Kamp (1957):

The defendant assaulted his wife with a hammer. He had no previous history of violence and no
apparent motive. The defendant argued that the attack was the result of loss of consciousness
linked to arteriosclerosis, with the hardening of the arteries causing congestion of blood in his
brain. This was used by the defense as grounds for a defense of automatism. The trial judge,
however, directed the jury that the appropriate defense was one of insanity.

Held:

The court held that hardening of the arteries could amount to a disease of the mind due to its
effect on a person’s reasoning ability. Essentially the court was not concerned with how a
defendant got to a certain state of mind (through a physical or psychological impairment), but
that he reached that state and was in it at the time of committing the offence. The term “disease
of the mind” was designed, inter alia, to limit the effect of the term “defect of reason” so as not
to permit stupidity to act as a defense. The trial judge had therefore been correct in directing the
jury that the appropriate defense is insanity and not automatism.

Difference from automatism:

Both of the defenses affect mental reasoning, however the difference lies are that the defect of
reason is triggered by internal factor in insanity and external in automatism. The cases listed
below prove the statement.

R v Hennessy (1989):

The defendant was charged with taking a motor car without authority and driving while
disqualified. He claimed that he was suffering from hyper-glycaemia (high blood sugar level
caused by diabetes) at the time, because he had not taken any insulin to stabilize his metabolism,
nor eaten properly for days, and as a result was acting unconsciously. He pleaded automatism,
but the trial judge indicated that he would only be prepared to direct the jury on the defense of
insanity. The Court of Appeal, in confirming the correctness of the trial judge’ ruling, held that
the defendant’s loss of awareness had not resulted from the operation of external factors upon his
body, such as the injection of insulin (as in R v Quick 1973), but instead had resulted from an
inherent physical defect i.e., diabetes. The hyper-glycaemia suffered by diabetics, which was not
corrected by insulin, was to be regarded as a disease of the body which affected the mind for the
purposes of the M’Naghten Rules.

Held:
The appeal was allowed, and the appellant’s conviction was quashed. The automatism was
induced by an external factor of insulin rather than the internal disease of diabetes. The correct
defense therefore, was non-insane automatism.

Sleepwalking:

Acquittal by virtue of insanity were accused committed crime whilst sleep-walking.

R v Burgess (1991)

The appellant (B) was charged with wounding with intent to do grievous bodily harm. His
defense was that during the event he was sleep walking and suffering from non-insane
automatism. However, the judge ruled that on the medical evidence available the only defense
available was insanity. The jury found B not guilty by reason of insanity.

Held:

B’s appeal was dismissed. The Court found that the failure in B’s mind was due to an
abnormality which manifested itself in violence and might recur. This amounted to a disease of
the mind and the trial judge’s application of insanity as a defense was therefore correct. In
particular, the Court noted the absence of obvious external factors (such as, for instance,
concussion) which could have caused the failure in B’s mind. The court found that any
malfunctioning of the mind which has its source in some condition or weakness internal to the
accused may be a ‘disease of the mind’ and, accordingly, a finding of insanity may follow.

Defect of reasoning:

The disease of the mind must have given rise to a defect of reason which had one of two
consequences: either

 Defendant didn’t know the nature and quality of his act, or

 He did not know that his act was wrong.

The phrase defect of reason seems to mean that powers of reasoning must be impaired not
merely confusion or absentmindedness.

R v Clarke
Mrs. Clarke, a 58-year-old woman, absentmindedly places 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 into 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 defense of insanity. At
this point Mrs. Clarke changed her plea to guilty and then appealed against the judge’s finding of
insanity. It was held that short periods of absentmindedness fell far short of amounting to a
defect of reason.

R v Bingham (1991)

The defendant was a diabetic who was charged with theft and claimed that he was hypo-
glycemic at the time of the offences. His conviction was quashed by the Court of Appeal because
the trial judge did not correctly distinguish between hypo- and hyper-glycaemia.

Note: Hypoglycaemia = Low blood sugar level due to an excess of insulin (an external factor).
Hyper-glycaemia = High blood sugar level caused by diabetes (an internal disorder).

The defendant did not know the nature and quality of his act:

This refers to the physical nature and quality of the act but covers the situation where the
defendant doesn’t know what he is physically doing. For example, A kills B under the insane
delusion that he is breaking a jar, and the madman who cut a woman’s throat under the idea that
he was cutting a loaf of bread.

R v Oyen

Where a defendant suffering from an insane delusion that he was being attacked or threatened
reacted violently, using force that was reasonable in the circumstances as he perceived them to
be, he was not entitled to an acquittal based on self-defense. An insane person could not set the
standards of reasonableness as to the degree of force used by reference to his own insanity.

The defendant did not know his act was wrong:

If the defendant knew what he was doing, then he will still be insane unless he did not know that
he was doing something legally wrong.

R v Windle
The defendant killed his wife, who was suicidal, and he administered an aspirin overdose.
Medical evidence supported the view that he was suffering from a mental condition at the time of
the crime. On arrest he said to the police “I suppose they will hang me for this”.

Held:

The trial judge refused to allow the defense of insanity to be put before the jury as he had
demonstrated that he realized what he was doing was unlawful. The appeal was dismissed and
said that the trial judge was correct to refuse the defense of insanity. It was wrong for the
Purposes of McNaughton rules, meant unlawful. It did not matter that he thought his actions
were not moral.

Intoxication

Intoxication is not a true excuse. For crimes of mens rea, Involuntary Intoxication can be
adduced as evidence to support a claim of absence of mens rea. In the case of voluntary
Intoxication such evidence is only effective to negate mens rea for crimes of specific intent, strict
liability and crimes of negligence.

It is an anti-defense because intoxication is an excuse for nor crime even if the intoxication was
voluntary and the defendant would not have committed crime if sober. Intoxication is only
relevant if it negates an element in the definition of a crime, most obviously mens rea. There is a
distinction between voluntary and involuntary Intoxication in law.

Involuntary Intoxication:

The most obvious example of involuntary intoxication is where a person has had their food or
drink spiked without their knowledge.

Case: Kingston [1994]

Facts:

A man named Penn wanted to blackmail the defendant, so he invited a young boy over to his
house and drugged him. Penn then invited the defendant to his house, drugged him, and took
pictures of the defendant sexually abusing the young boy.
The defendant raises involuntary Intoxication as a defense to show the lack of mens rea.
However, the crown court directed the jury that the intent induced by a drug was still an intent.
In this the court of appeal quashed the decision and the prosecution appealed.

Held:

The house of Lords allowed the appeal and reverse the decision if Court of Appeal. They held
that intent was present on the facts of the case. Where the intent was present, it was irrelevant
whether it arose out of the circumstances that was not the defendant’s fault. Thus, a drunken
intent is still an intent.

However, if the effect is anticipated but the defendant merely underestimates the strength, then
the intoxication remains voluntary

Case: R v Allen 1988

Facts:

The appellant consumed some homemade wine. This had a much greater effect on him than
anticipated. He committed sexual assaults and claimed he was so drunk he did not know what he
was doing. He argued that he had not voluntarily placed himself in that condition as the wine was
much stronger than he realized.

Held:

The intoxication was still voluntary even though he had not realized the strength of it. The crime
of sexual assault is one of basic intent and therefore the appellant was unable to rely on his
intoxicated state to negative the mens rea.

Voluntary intoxication

Where the defendant has voluntarily put themselves in the position of being intoxicated to the
extent that they are not capable of forming the mental element of the crime the law is less
forgiving. Crimes of specific intent and voluntary intoxication:

Crimes of specific intent include crimes where the offence can only be committed intentionally.
Voluntary Intoxication can be sued to support a denial of mens rea only for crimes of specific
intent.
Example: murder and grevious bodily harm.

R v Lipman (1970):

Facts:

The appellant had taken some LSD. He was hallucinating and believed he was being attacked by
snakes and descending to the center of the earth. Whilst in this state he killed a girl by cramming
bed sheets into her mouth.

Held:

His intoxication could be used to demonstrate that he lacked the mens rea for murder as murder
is a crime of specific intent.

Crimes of basic intent and Voluntary intoxication:

Crimes of basic intent include crimes where the offence does not require to proof the intention as
a fault element.

Example:

Criminal Damage, Manslaughter, assault, etc.

Where a defendant’s intoxication is voluntary and the crime is one of basic intent, the defendant
is not permitted to rely on their intoxicated state to indicate that they lack the mens rea of the
crime.

Case: Majewski [1977]

Facts:

The appellant had taken a substantial quantity of drugs over a 48-hour period. He then went to a
pub and had a drink. He got into a fight with two others. The landlord went to break up the fight
and the appellant attacked him. When the police arrived, he assaulted the arresting officer.
Another officer was struck by the appellant when he was being driven to the police station. The
next morning, he attacked a police inspector in his cell. He was charged with four counts of
occasioning actual bodily harm and three counts of assaulting a police constable in the execution
of his duty. The appellant claimed he had no recollection of the events due to his intoxication. He
was found guilty on all counts and appealed contending that he could not be convicted when he
lacked the mens rea of the offences due to his intoxicated state.

Held:

Appeal dismissed. Conviction upheld. The crime was one of basic intent and therefore his
intoxication could not be relied on as a defense.

Intoxication and Dutch Courage:

Where a person forms the intention to commit a crime and then drinks in order to enable them to
carryout the crime, they can not then claim the intoxication prevented them from forming the
mens rea.

Case: A-G for N. Ireland v. Gallagher :

Facts:

The defendant wanted to kill his wife. He intended to use the knife to kill his wife and brought
the whiskey as he knew that this would make him aggressive to the extent that he would be able
to kill. He drank the whiskey and killed his wife with the knife and a hammer. He was convicted
of murder and appealed to the Court of Criminal Appeal N.I His conviction was quashed. The
Attorney General appealed to the House of Lords on the grounds that the defence of intoxication
was not open to him because before taking the drink, when there was no defect in his reason, he
had clearly had an intention to kill his wife and any temporary derangement of his reason at the
time of the killing was the result of his own voluntary act in taking the drink.

Held:

Appeal allowed. The conviction restored. Where a person forms the intention to kill and drinks
in order to give themselves Dutch courage, they can not then rely on their intoxication to
demonstrate they did not have the necessary mens rea.
Instances where intoxication would be considered involuntary:

There are a few instances where court consider intoxication to be involuntary:

i) It must be under medical supervision

ii) Secretly administered to the defendant without his knowledge

iii) Voluntarily taken by the defendant to mistake its property

Principles Laid in Majewski [1977]:

The intoxication of a person by an intoxication which he takes otherwise than properly for a
medical purpose and according to medical instructions, knowing that it is or may be an intoxicant
account for voluntary intoxication and such person can’t rely on his intoxicated state to negate
mens rea for his act. This judgement therefore provided that voluntary intoxication is no excuse
for crimes of basic intent.

Intoxicated Mistake as a defense:

The defendant, due to his intoxicated state formed a mistaken belief and committed an act.

Like in Jaggard v Dickinson:

Where the Defendant, due to her intoxicated state mistakenly believed someone else’s house as
her friend’s and broke into the house. The appeal was successful, defendant was allowed to rely
on mistake as a defense, this formed a special statutory exception to the general rule set down in
Majewski.

For Claims of Self-defense under Mistaken belief:

Where a defendant is labouring under a mistaken belief that they are under attack and acting in
self-defence, they can not rely on such mistaken belief where it was induced by voluntary
intoxication. This applies to crimes of both basic intent and specific intent. 

R v O’Grady:

Defendant after heavily drinking slept. D claimed that his friend woke him up and was beating
him, therefore, he picked up some broken glass and hit him a few times acting in self-defense.
Later in the morning the friend was found dead. D was convicted for manslaughter on which he
appealed claiming that he acted under mistaken belief. The appeal was dismissed, and the
appellant's conviction upheld. A defendant is not entitled to rely, so far as self-defense is
concerned, upon a mistake of fact which has been induced by voluntary intoxication.

Conclusion:

Defenses as to failure of proof provide evidential basis the one of the elements of the offence is
lacking. A criminal defendant will be acquitted if the prosecution cannot prove every element of
the offense beyond a reasonable doubt. In certain cases, the defendant can either deny that a
criminal element(s) exists or simply sit back and wait for the prosecution to fail in meeting its
burden of proof. Such defenses are considered to be simplest defense an individual can take.
REFERENCES

https://www.casebriefs.com/blog/law/criminal-law/criminal-law-keyed-to-kadish/exculpation/
mnaghtens-case/

https://www.lawteacher.net/cases/r-v-kemp.php

http://e-lawresources.co.uk/Intoxication.php

https://open.lib.umn.edu/criminallaw/chapter/5-1-criminal-defenses/

https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.studocu.com/en-gb/
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Criminal Law by William Wilson