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Defences week 16
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lecture notes on defences week 16 part 1
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Defences 1: General principles – intoxication part 1Questions for establishing criminal liability
Who can be liable?
Why can she/he be liable?
Which actions can a person be held liable for?
For which participation? Author or accomplice?
When can there be no liability? – denial of offences and defences
Natural person – this module focuses only on natural persons, however corporations can also be
liable
A person = rationality and self-consciousness are common defining characteristics of the ‘person’
Presumptions of criminal law
- Criminal law presumes freedom and autonomy
- Criminal law presumes capacity and rational being – to be held liable in criminal law, a
person is presumed to be capable – derives from S50 Children and Young Persons Act 1933
which creates a conclusive presumption that children under 10 cannot commit an offence
- The M’Naghten rules whereby a person is presumed sane to be liable
Presumption of capacity
- Cognitive capacity
- Moral capacity
- Physical capacity
- Criminal law doesn’t define capacity, just defines situations where there is incapacities
Incapacity
- Infancy – subjects of criminal law
- Insanity – denial of offence/defence
- Automatism – denial of offence
- Diminished responsibility – partial defence to murder
- Intoxication – partial defence to murder
- Unfitness to plead – procedure
Relevance of the defendant’s capacity
- Crime, plea, trial and sentence
Insanity and unfitness to plead
- Unfitness to plead (sections 4 and 4A of the Criminal Procedure (insanity) Act 1964)
o A procedural concept, used by the prosecution or the defence alike, by which the
court examines whether the defendant will understand the trial procedure
- Whereas insanity reflects on the defendant’s state of mind at the time of the offence,
independently of how s/he is later, at the time of trial for example.
o The same factual elements – lack of capacity – but considered
For insanity – at the time when the crime was committed
, For UF2P – at the time of the criminal justice process (plea; standing trial)
Age and subjects of criminal liability
Assumption that age = young age (no presumption of a person lacking capacity because they are old)
– threshold
Children above 10 years old
- The law pre-1998 - Between 10 and 14 it was presumed that children not capable of criminal
liability – this was later abolished by Crime and disorder Act 1998
Children under 10
- Irrebuttable presumption of doli incapax – children and young persons act 1933, s. 50
- Protective measures only – no trial
- Presumption works if children involved are liable
- This is different from the doctrine of innocent agent whereby a child may be directed as an
adult – causation
o Walter v Lunt (1951)
o DPP v K and B (1997)
- History – Cl rule of seven (Justice Hale) – Ingleby Committee (1960): 12 years old
- Comparatively – Scotland threshold is 12 and most other European states are 12
- Issue of maturity, and mental and emotional capacity
UK international obligations
- UN convention of Rights of the Child 1989 s 40 (3) (a) and (b) requires presumption of non-
liability but does not provide guidance as to what age should be
- ECHR – no provisions
- ECtHR – T and V v UK (1999) – no challenge of age and presumption; challenge of fairness of
proceedings; see also SC v UK (2005) Crim LR 130
- Concerning the presumption of irresponsibility most countries adopt the presumption and
tie it up with welfare measures
- Children should not be treated as adults during proceedings and not always for sentencing
purposes
Defences and denials of offences – the differences
Denials of offending
- When D claims that one or more of the elements of the offence are absent
- Technically, these are not defences but simply a negation of a particular offence
requirements
- Denial of offences are often linked to issues of capacity
Defences
- A defence is raised where an offence has been committed, all elements of the offence are
present
- You need to discuss and conclude in relation to D’s liability for an offence or an attempted
offence first, then discuss any potential defences
- A general defence tends to be duress, necessity, self-defence
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