A2 last minute revision on defences

Defences

When looking at the criminal liability after discussing the actus reus and mens rea you should consider whether any defences are available.

Consent

Limited and controlled applications. Test is a legal one rather than medical

General Rule: Not a defence where non-fatal crimes are concerned.

CA where two people fight blows can be battery cant plead other consented to the fight.

First rule – consent must not be obtained by deception R v Richardson suspended dentist worked on patients. Convicted for ABH appealed argued they had consented was allowed as no deception as to the nature and quality of the dental work. But if a mistake as to qualifications then did not know quality of work and this could negate consent.

Second rule – only applies to Assault and Battery not any more serious crime unless in following circumstances:

• Sports eg football and rugby – where physical contact part of game. Players deemed to have consented to even serious injuries provided within rules of game R v Billinghurst
• Rough Horseplay. - Rv Jones gang threw boys in air one ruptured spleen and broke arm defence allowed as no intention to cause injury and GBH convictions quashed.

R v Richardson & Irwin – students drinking horseplay dropped one 30 metres CA quashed s20 offence as original judge confused subjective and objective and more importantly a plea of voluntary intoxication in response to offence of basic intent, need to prove defendant foreseen the risk had he not been intoxicated. Held mistaken belief by defendant that victim consented to risk of personal injury enable defendant to avoid liability even if the mistake was induced by intoxication.

• Surgery includes tattooing and body piercing. R v Wilson branding wife fell within tattooing unlike R v Brown sadomasochism.

Insanity

The M’Naghten rules 1843

            “defect of reason from disease of the mind as not to know nature quality of act”

3 things need to be proved:

• Defendant disease of mind
• Disease produced defect of reason
• Defect reason meant did not know nature and quality of act did

Disease of Mind – psychiatric illnesses but courts gone further any disease affecting functioning of mind resulting in physical illnesses being “disease of mind mind”

• Epilepsy R v Sullivan
• Diabetes R v Hennessy
• Arteriosclerois r v Kemp
• Sleepwalking r v Burgess

Disease must be Internal and not external so a blow on head, drugs, alchol or hypnotic influences -  (might plea automatism or intoxication)

Distinction between internal and external factors strange result where diabetics – In Hennessy diabetic held insane when didn’t take insulin the hyperglycaemia was caused by internal diabetes. But R v Quick held sane when having taken insulin but didn’t eat his hyperglycaemia was classed as being external.

Defect of Reason

Powers of reason must be impaired a mere failure to use your powers of reasoning not enough. R v Clarke

Not know the Nature

Refers to the physical nature not its morality. Eg insane delusions to cut throat thinking was bread also temporary unconscious or automatic state.

Not know what he was doing wrong

If know it is against the law then knew it was “wrong” for present purposes and can’t claim insanity. R v Windle upheld in R v Johnson

Evaluation

Criticisms are:

• Based on outdated medical views Royal Commission on Capital Punishment described M’Naghten Rules obsolete & misleading
• Defence too narrow excludes many people who ought not to be held criminally responsible like those suffering from irresistible impulses cant plead as they know the nature & quality of their acts and that they are wrong they simply can’t stop themselves (could plead if charged with murder partial defence of diminished responsibility r v byrne)
• Defence too wide results in epileptics, diabetics and sleepwalkers classed as insane.
• Medical witnesses give conflicting views so medically unqualified jurors having to choose.

Contravening the ECHR?

To detain defendants who are epileptics, diabetics or sleepwalkers is arguably a breach of Article 5.

M’Naghten rules seen as contrary to the presumption of innocence enshrined in ECHR Article 6 because burden of proof on defendant.

Should mental illness be a legal defence seems to adopt mad not bad but cannot you not be mad and bad while might be a relationship between mental illness and crime but seems stronger link between adverse social circumstances and crime  so why not a defence of social adversity.