19/03/2020
- Key Terminology
- Defences - legally recognised explanations for a defendant’s actions, which have the
consequence of excluding her criminal liability. This is not the same as mitigations (may
impact upon the sentence imposed).
- Partial defences -
- Loss of self control and diminished responsibility
- Conviction for manslaughter not murder
- Full defences -
- Acquitted. No criminal conviction.
- Justifications and Excuses
- Justification
- The defendant’s act is not wrongful, because it is justified by the circumstances;
justified conduct is correct behaviour which is encouraged or at least tolerated by
society.
- Excuse
- The defendant’s act is still wrongful, but it should be excused given the
circumstances. An excuse represents a legal conclusion that the conduct is
undesirable, but the defendant is not morally to blame for it.
- Distinction used to explain rules framing defences.
- Difficulties -
- Courts do not seem to have much respect for the distinction:
- “I do not think it matters whether these defences are regarded as justifications or
excuses. Whatever label is used, the moral merits of the defence will vary with
the circumstances” - Robert Walker LJ in Re A (Conjoined Twins) [2000] 4 AII ER
961 at 1064
- Distinction between the categories is often blurred.
- Defences can be classed as both a justification and an excuse:
- “In general no excuse is accepted into the criminal law which is not also a partial
justification, and no justification is accepted which is not also a partial excuse” -
(J. Gardner (1996) “Justifications and Reasons” in A.P Simester and A.T.H Smith
(eds) Harm and Culpability).
- “Essential to the moral architecture of criminal law”
- Other issues: Alternatives and Significance -
- Significance of distinctions:
- Justifications change the law (the lawful conduct in X circumstances is effectively
amended), excuses/exemptions do not.
- E.g. D shoots his neighbour's dog as it was attacking his baby. If his conduct is
deemed to be justifiable, the law will be changed to the extent where it would
, now be lawful for a person to shoot a dog which was attacking a baby. Brings
about a change in what is lawful/wrongful.
- Resistance against or assistance of an aggressor?
- Mistakes over circumstances
- Mistakes in terms of justifications needs to be “genuine”, not necessarily
“reasonable”.
- Mistakes in terms of excuses must be “reasonable”.
- Involuntary Conduct
- Involves insanity and automatism.
- These are classified as “excuses”.
- Based on whether or not D’s conduct was voluntary or involuntary.
- Insanity
- Basis of criminal liability is free agency. Insanity includes, however, a lack of
responsibility.
- Problematic - shades of insanity. Where should we draw the line?
- Consequence of finding insanity - special verdict of not guilty by reason of insanity.
- The burden of proof is on the defendant to show insanity on the balance of probabilities.
- The M’Naghten Rules
- Not based off any medical criteria for insanity, but rather legal criteria that are set out in
the ‘M’Naghten Rules’.
- M’Naghten (1843) 10 C & F 200, 8 Eng Rep 718 -
- “(...) every man is to be presumed to be sane (...) to establish a defence on the
ground of insanity, it must be clearly proved that, at the time of the committing of
the act, the party 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 he was doing what was wrong.”
- R v Sullivan [1984] AC 156 - "The purpose of the legislation relating to the defence of
insanity, ever since its origin in 1800, has been to protect society against the recurrence
of the dangerous conduct. The duration of a temporary suspension of the mental
faculties of reason, memory and understanding, particularly if, as in the appellant's case,
it is recurrent, cannot on any rational ground be relevant to the application by the Courts
of the M'Naghten Rules, though it may be relevant to the course adopted by the
Secretary of State, to whom the responsibility for how the defendant is to be dealt with
passes after the return of the special verdict of "not guilty by reason of insanity"
- Disease of the Mind/Defect of Reason
- DIsease of the mind helps to draw a distinction between insanity and automatism.
- R v Kemp [1957] 1 QB 399 - D suffered from arteriosclerosis - a hardening of the
arteries. This brought about a state of unconsciousness during which he attacked his
wife with a hammer. Court held that the condition of the brain is irrelevant.
, - Also held that “disease of the mind” is not a medical term, but a legal term. Whether the
mental faculties of reason, understanding and memory, are impaired or absent.
- Significantly, “disease of the mind” is not limited to mental illness. Diseases such as
schizophrenia will naturally be defined as “disease of the mind”, however people with
conditions that would not generally be described as mental illnesses are also able to
come under “disease of the mind”, such as sleepwalkers etc.
- Internal or external cause?
- R v Sullivan [1984] AC 156 - Epilepsy was held to be insanity in this case. Court
held that it did not matter whether the impairment was temporary or permanent,
but whether it was caused by internal or external factors. The malfunctioning of
the mind here was caused by an internal factor, and on that basis D’s conduct
could be held as due to insanity.
- R v Burgess [1991] 2 QB 92 - D was charged with GBH, but claimed that the
violence was committed whilst he was sleepwalking, and this amounted to non-
insane automatism. The medical evidence relied upon was that sleepwalking was
a near cousin of epilepsy, therefore the Court had no option but to rule that
sleepwalking was a form of insanity.
- In other countries sleepwalking has been held to be automatism.
- R v Thomas, The Independent, 21 November 2009 - D, who was generally a
decent man and devoted husband, strangled his wife to death during a
nightmare. He was acquitted on the basis that the prosecution withdrew the case.
- Diabetes - Hypoglycemia and Hyperglycemia; diabetics may suffer excessive low
blood sugar or excessively high blood sugar. Both may be caused by both
internal and external factors. This distinction is something the courts have had to
deal with.
- R v Quick; R v Paddison [1997] QB 910 - The court distinguished between the
two above conditions, holding that a malfunctioning of the mind caused by
hypoglycemia, was due to external factors e.g. the taking of insulin, and therefore
this was automatism, and D was entitled to an acquittal on that ground.
- R v Hennessy [1989] 1 WLR 287 - Hyperglycemia - this gave rise to insanity as
it was caused by internal factors. D was charged with taking a conveyance and
driving whilst disqualified. D held that at the relevant time he had failed to take
his proper dose of insulin due to stress, anxiety and depression and this induced
the state of hyperglycemia. The Court accepted the distinction between this case
and the above two cases, and held that this was insanity.
- R v Clarke [1972] 1 AII ER 219 - The disease of the mind induced a defect of reason.
Shoplifting case. Court held here that an insanity defence does not apply to those who
retain any power of reasoning.
- Nature/Quality of the Act was wrong
- The defendant must not know:
- The nature and quality of her acts; or
