COMMENT So, common assault, section 47 & 20 OAPA offences and manslaughter are all basic intent crimes. Obviously where crimes require Caldwell recklessness, voluntary intoxication is not relevant because no thought is required to commit them.
INTOXICATION (INVOLUNTARY)
I. What is it?
This could be either the person who thought he was drinking only orange juice but who was in fact drinking orange juice spiked with lashings of vodka; or the person who is on a medically supplied course of drugs.
II. Liability for basic intent crimes
These persons will not be regarded as being voluntarily intoxicated and would have a defence of lack of mens rea to basic intent crimes.
IMPORTANT Just as with voluntary intoxication, if despite or because of his involuntary intoxication the accused forms the necessary mens rea for the crime, he will be guilty - there is no separate defence of involuntary intoxication recognised by the law.
COMMENT Just like voluntary intoxication, if I become aggressive and kill you after unknowingly had a drink which has caused my aggression, then I will still be guilty of murder if I had formed the intention to kill you, or had formed the intention to cause you grievous bodily harm.
R v KINGSTON [1995] 2 AC 355 - HL
Here, involuntary intoxication provided no defence where the accused (with the necessary mens rea) indecently assaulted a boy when the intent was induced by the influence of drugs administered secretly to the accused by a third party.
INSANITY
I. Introduction
The defence of insanity is essentially a denial of the mens rea element of a crime and a special verdict, provided by section 2 of the Trial of Lunatics Act 1883, of ‘not guilty by reason of insanity’ is used by the courts where a person is shown to be insane.
II. Unfit to stand trial/plead
Where it is clear that a defendant is totally unfit to stand trial, he may be committed directly to a mental hospital under the Mental Health Act 1983.
Ditto if a person is committed for trial and it is then clear that he is unfit, the court may find that he is unfit to plead; that is to say, the court has determined that he is unable to grasp the charge against him and the difference between a plea of guilty and not guilty.
NOTE Conversely, if he can grasp these points, then he is fit to plead even though he cannot remember any part of the actus reus.
II. Burden & standard of proof
Importantly, where the defence claim the accused is unfit to plead, they have the evidential burden of proving on a balance of probabilities - the civil standard of proof - that the accused is unfit to plead. Where the question is brought up by the prosecution or the trial judge, then the evidential burden switches to the prosecution to prove beyond reasonable doubt - the criminal standard - that the accused is unfit.
III. The M’Naghten rules
M’NAGHTEN’S CASE (1843) 10 Cl & F 200 - HL
The defence of insanity is still governed by the M’Naghten rules which stem from this case, where the defendant shot dead the secretary to the Prime Minister, Sir Robert Peel, and was found to be not guilty of murder on the ground of insanity. If a person falls within the rules, he is insane.
A. Presumption of sanity
Lord Tindal CJ, ‘Every man is to be presumed to be sane.’
COMMENT So, recognising the ancient principle that ‘he who asserts must prove’, it is clear that the burden of proving insanity lies on the party who asserts it and the jury, who are finders of fact, will decide.
B. What must be proved?
Lord Tindal, ‘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.’
1. Defect of reason
Plays a central role in the rules. It is the basic reason why irresistible impulse, and other emotional defects or disorders such as absent-mindedness are not within the rules, since they are not defects of reason.
Here, a forgetful and slightly disturbed lady went through a supermarket check-out without paying for some goods. Held, no a defect of reason.
COMMENT Rationality is the litmus test of criminal responsibility, and so defects of will are regarded either as non-existent or as irrelevant. In this respect, the defence of diminished responsibility under the Homicide Act 1957 is potentially much more liberal - see HOMICIDE notes.
IMPORTANT The ‘defect of reason’ must be such that the accused did not ‘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’. So, if I chop you up thinking that you are a leg of lamb, then I do not know that nature and quality of my act. In simple English, I do not what I was doing.
If I do indeed know the nature and quality of my act - know what I am doing - then I will still be found insane unless I know that it is wrong; and by this is meant legally wrong, rather than morally wrong.
R v WINDLE [1952] 2 All ER 1 – CA
Here, Lord Goddard said, ‘It would be an unfortunate thing if it were left to juries to consider whether some particular act was morally right or wrong. The test must be whether it is contrary to law’.
EXAMPLE 1. My defect of reason has made me think that you are trying to kill me and so I kill you. I know the nature and quality of my act, and I also know that what I am doing is not wrong because I am acting in self-defence. I am insane.
EXAMPLE 2. My defect of reason has made me think that I am a contract killer, hired by the mafia to kill you. I kill you. I know that what I have done is wrong, that is to say illegal. I am not insane.
COMMENT Again, diminished responsibility under the Homicide Act 1957 would come into play.
2. Disease of the mind
If the defect of reason does not come about from a disease of the mind, then a person is not insane.
COMMENT It is the meaning of this concept around which most of the recent case law turns as it is this which primarily distinguishes insanity from other conditions, particularly automatism, which would allow for an acquittal.
The meaning of ‘disease of the mind’ is a legal question for the judge to decide rather than a medical one, even though the evidence of medical experts is required by section 1 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991.
(1) Mind
R v SULLIVAN [1984] AC 156 - HL
This case concerning a section 47 OAPA attack during an epileptic fit. Here, Lord Diplock said that the word ‘mind’ is used in the ordinary sense of ‘the mental faculties of reason, memory and understanding’.
(2) Disease
As for the disease which must cause these mental faculties to be impaired, it certainly need not be one primarily located in the brain. Thus, arteriosclerosis (hardening of the arteries) causing temporary loss of consciousness is a disease of the mind for these purposes even though it is of physical rather than mental origin.
Clearly, a disease is something internal to the accused and so an impairment of the mind of short effect caused by some external factor such as violence, drugs, including anaesthetics, alcohol and being put under hypnosis cannot fairly be said to be due to disease.
R v QUICK [1973] QB 910 - CA
Here, Quick’s condition of hypoglycaemia (having an abnormally small amount of sugar in the blood) causing him to commit an OAPA attack, was held not to have been due to a disease of the mind since it was attributable to an external factor - his use of insulin prescribed by his doctor.
COMMENT In QUICK, the defendant was a diabetic. Diabetes can, like epilepsy, be a disease of the mind and provide a defence of insanity when it is the condition itself - the disease - that causes the attack rather than, in QUICK, by failing to treat himself properly after taking insulin and thus causing the attack.
R v HENNESSEY [1989] 1 WLR 287 - CA
Another diabetes case, though this time the defendant was suffering from hyperglycaemia (having an abnormally high amount of sugar in the blood) at the relevant time. Here, the Court of Appeal held it was caused by the illness of diabetes itself. In other words, the illness was brought on by nothing that the defendant did or had done to him.
RECAP If the mental state is brought about by some external factor, such as a bump on the head; not using or failing to take prescribed medicine properly; or a traumatic experience inducing Post Traumatic Stress Disorder, then we are not talking about a disease of the mind and so we are not talking about insanity. We may be talking automatism, though.
COMMENT The point really is that external factors are ‘one-off’ events, rather than internal factors which may be permanent or recurrent and which need treating in order to protect the public.
R v BURGESS [1991] 2 QB 92 - CA
Here, the defendant had attacked a woman whilst both parties were asleep. He was found to be suffering from a disease of the mind inducing insane automatism.
IV. Procedure and the court’s powers
Where the special plea is accepted or when a person is found unfit to plead, then the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 makes important changes by way of amendment to the Criminal Procedure (Insanity) Act 1964.
A. Medical evidence
Under the 1964 Act, as amended, before reaching a verdict the court must hear evidence from at least two qualified medical practitioners, at least one of whom must be approved by the Home Secretary as having special experience in the diagnosis or treatment of mental disorder.
B. Powers
Where the court reaches a verdict of not guilty by reason of insanity or unfitness to plead, the court may:
(1) Under section 5 of the Act, make an order admitting him to a mental hospital, whether with or without a restriction as to time.
(2) Make a guardianship order under the Mental Health Act 1983.
(3) Make a supervision and treatment order under the 1991 Act
(4) Make an absolute discharge.
NOTE There is an important proviso here: in cases of murder, the court must make an order admitting him to a mental hospital coupled with an indefinite restriction direction.
C. Actus reus & mens rea requirements
1. Insanity pleas
ATTORNEY-GENERAL’S REFERENCE (NO.3 OF 1998) [1999] 3 AER 40 - CA
Here, the insane defendant had developed a conviction that he was Jesus Christ and attacked a man, thinking he was going to be taken away and crucified. Held, the Jury must find that the defendant has committed the actus reus of the alleged crime, though not the mens rea if he were insane at the time.
DPP v H (1997) 1 WLR 1406 - CA
This case is authority for the proposition that insanity is not relevant for strict liability offences.
2. Unfitness to plead
Unfitness to plead differs from insanity in that it relates to the defendant’s mental capacity at the time of trial and not at the time of the alleged offence.
R v ANTOINE 30 MARCH 2000 - HL
Where a defendant is found unfit to plead, it is only necessary to prove the actus reus of the crime.
COMMENT Has the defendant had a fair trial in these circumstances? On the face of it, it appears that there may be a breach of Article 6 (right to a fair trial) European Convention on Human Rights, incorporated into our domestic law by the Human Rights Act 1998.
R v M; R v KERR; R v H (2002) 1 WLR 824 - CA
The court stated that section 4 of the 1964 Act is compatible with the Convention because Article 6 does not apply to proceedings which cannot result in a conviction.
CHILDREN
I. Under 10 - s.50 Children and Young Persons Act 1933
Children aged under 10 are irrebuttably presumed to be doli incapax.
II. Children aged 10-13
Formerly a rebuttable presumption of doli incapax which could be rebutted if the prosecution proved that the child had ‘mischievous discretion’, that is to say knew that what he or she did was ‘seriously’ wrong, not just naughty or mischievous.
However, section 34 of the Crime and Disorder Act 1998 (CDA) now provides that the ‘rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence is hereby abolished’.
COMMENT Therefore, as far as children between 10 and 14 are concerned, the CDA 1998 would appear to leave them to be treated as equally responsible as adults.
NECESSITY
I. What is it?
Necessity differs from duress of circumstances in that it involves justifying a choice between two evils: the evil represented by committing the offence being outweighed by the greater evil which would happen if the offence were not to be committed.
II. Is it a defence?
It has long been unclear whether a general defence of necessity exists in English law.
R v DUDLEY (1884) 14 QBD 273
Here, the two accused had found themselves adrift in a small boat on the high seas with another man and the young cabin boy. They had had virtually no food or water for 20 days and had been reduced, for example, to drinking their own urine. Finally they killed and ate the cabin-boy who was likely anyway to have been the first to die and without this deed they would probably themselves not have survived the further four days which elapsed before they were rescued. They were convicted of murder.
COMMENT This case has set the tone whereby English courts have generally rejected a defence of necessity even where the balance of evils points much more clearly in favour of committing the offence.
Here, a civil case concerning the legality of instructions issued to drivers of fire-engines, Lord Denning MR said that a driver would have no defence if he proceeded through a red light to save a man in imminent peril in a blaze 200 yards away. Importantly, Denning commented, ‘nevertheless such a man should not be prosecuted. He should be congratulated!’
BUT was acknowledged in the case below.
R v MARTIN (1989) 88 Cr App R 343 – CA
Here the defendant drove while disqualified in response to his wife’s threat to commit suicide. Brown J said that ‘the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury’ and that ‘the defence of necessity exists but only in the rarest of circumstances’.
NOTE ‘Proportionately’ means that the criminal act itself must be weighed against the danger.
DURESS (BY THREATS)
I. What is it?
This is a defence that although a criminal act has been committed, the defendant was forced by another’s threats to commit the offence.
All the decisions recognising duress as a defence have concerned threats of death or grievous bodily harm.
R v STEANE [1947] KB 997
Here, Lord Goddard CJ said, obiter, that it included fear of imprisonment.
R v ORTIZ (1986) 83 Cr App R 173
Here, threats to the accused’s wife or family appear to have been considered to be sufficient.
COMMENT Therefore, it appears that threats to third parties, especially close relatives, can suffice.
II. The approach is objective
A. Introduction
The fact that the accused believes that a threat of death or grievous bodily harm will be carried out if he does not commit the offence is not of itself sufficient ‘if a person of reasonable firmness sharing the characteristics of the defendant would not have given way to the threats’.
COMMENT So, the threat will only be treated as operating or substantial - and the accused will only be excused - if a person of reasonable firmness, sharing the characteristics of the defendant, might have succumbed.
R v GRAHAM [1982] 1 All ER 801 - CA
Here, Lord Lane CJ said that the jury must ask themselves two questions. Firstly, did they think that the defendant felt compelled to act as he did because he thought the threat would be carried out if he didn’t? Secondly, would a sober person of reasonable firmness, sharing the characteristics of the defendant, have acted in the same way? If the answer to both is ‘yes’, then the defendant should be acquitted.
B. The defendant’s characteristics
Obviously, the age and sex of the defendant are relevant characteristics.
R v BOWEN [1997] 1 WLR 372 - CA
Here, the defendant pleaded duress to a charge of obtaining services by deception on the basis that he had a low IQ of 68 but was nevertheless found guilty.
Stuart-Smith LJ, ‘In most cases it is probably only the age and sex of the defendant that is capable of being relevant’
COMMENT Stuart-Smith LJ did suggest other circumstances, including ‘pregnancy, where there is added fear for the unborn child; and serious physical disability, which may inhibit self protection’.
III. Immediacy/police protection
As with provocation, the immediacy of the threat and the possibility of seeking police protection are important matters.
R v HUDSON & TAYLOR [1971] 2 QB 202 - CA
Here, two girls were charged with committing perjury and claimed that they had been threatened with injury if they told the truth, and that they had seen one of the men who had made the threats in the public gallery. This amounted to duress on the basis that the police could not always protect them and the threat was sufficiently immediate because they could have been carried out as soon as the girls had left the court.
COMMENT The court in HUDSON declined to lay down any hard and fast rules other than to say that, ‘It is essential to the defence of duress that the threat shall be effective at the moment when the crime is committed. The threat must be a ‘present’ threat in the sense that it is effective to neutralise the will of the accused at that time.’
IV. Scope of the defence
A. Murder
R v HOWE [1987] AC 417 - HL
Here, the defendants were part of a gang and claimed to have killed through duress by the gang leader. The House of Lords were emphatic that duress provided no defence.
B. Not available where defendant exposes himself to risk of duress
A person cannot rely on the defence if he has voluntarily and knowingly exposed himself to the risk of such duress by joining a criminal organisation or gang.
R v FITZPATRICK [1977] NI 20
Here, the accused had voluntarily joined the IRA and was therefore unable to plead duress based on threats from that organisation as a defence to, inter alia, armed robbery carried out on its behalf.
Further, it now seems clear that the defence is not available generally to a defendant who has voluntarily placed himself in a position where he was likely to be subject to threats, for example by owing money for drugs.
R v HEATH (1999) TLR 15/10/99 - CA
Here, it was no defence to charge of possession of a large quantity of drugs. The defendant heroin user had owed his supplier £1,500. The supplier passed the debt to someone else, who contacted and threatened the defendant with violence unless he collected a consignment of drugs for which £1000 of the debt would be written off.
DURESS (OF CIRCUMSTANCES)
I. Introduction
The early authorities on the defence of duress of circumstances were a series of cases dealing with road traffic offences, where the defendants claimed they were being forced to commit them because they were being chased by attackers.
R v WILLER (1986) 83 Cr App R 225 - CA
The first case, where the accused drove his car on to the pavement and into (and back out of) a shopping precinct to escape from a gang of youths bent on attacking himself and his passengers. At his trial for reckless driving, the judge refused to put the defence of necessity to the jury, but the Court of Appeal thought that ‘a very different defence’, that of duress, should have been available.
NOTE Must not drive longer than necessary.
DPP v TOMKINSON [2001] EWHC ADMIN 192 - DIV
Wife had driven further than was necessary after being violently assaulted by her husband at home.
II. What must the defendant show
(1) The accused must show that he acted as he did because he reasonably believed he would suffer death or serious physical injury if he did not.
(2) The jury must find that a sober person of reasonable firmness, sharing the characteristics of the defendant, would have acted in the same way
III. Scope of the defence
This defence is no longer just applicable to road traffic offences, being extended by the case below to all crimes except murder and some forms of treason.
R v POMMELL [1995] 2 Cr App R 607 - CA
Here, the defendant was convicted of possessing a prohibited weapon and ammunition without a firearms certificate where he had been found by the police in bed with a loaded pistol. His defence was that he had taken it from a person who had visited him during the night expressing an intention to kill someone. The point was that he should have handed the gun to the police immediately, rather than keeping it.
R v ABDUL-HUSSAIN & OTHERS (1999) Crim LR 570 - CA
Lays out some important principles.
SELF DEFENCE AND RELATED DEFENCES
I. Introduction
We know the law recognises that the use of force is sometimes justified and when this occurs the act will not be unlawful. Easily the best-known justification for the use of force is the common law defence of self-defence. Related to this is the defence of property, also a common law defence; and there is also a statutory defence under section 3 of the Criminal Law Act 1967 for the use of force in the prevention of crime and in the effecting of lawful arrests.
So, we have two common law defences - self-defence and defence of property; and one statutory defence allowing for the use of force in the preventing a crime and in making an arrest.
II. Statutory defence
Section 3(1) of the Criminal Law Act 1967 provides that, ‘A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.’
A. Reasonable force
The heart of the matter here is exactly what constitutes reasonable force.
IMPORTANT This section is relevant to the common law defences.
The degree of force used by an accused will not be regarded as reasonable unless the accused believed that it was necessary to use that degree of force.
1. Traditional view
Was that if the accused misjudged the degree of force permissible and used excessive force, then he was deprived of the defence. This was clearly harsh on an accused who had genuinely tried to use only a reasonable degree of force but who had in fact overreacted.
2. Common sense approach
The courts have moved away from this traditional approach towards a common sense approach.
R v PALMER [1971] AC 814 - PC
Here, Lord Morris advocated leaving the matter to the common sense of a jury in self-defence cases.
R v SHANNON (1980) 71 Cr App R 192 - CA
Here, Ormrod LJ said that the test of reasonable force was ‘a bridge between what is sometimes referred to as the objective test, that is what is reasonable judged from the viewpoint of an outsider looking at a situation quite dispassionately, and the subjective test, that is the viewpoint of the accused himself with the intellectual capabilities of which he may in fact be possessed and with all the emotional strains and stresses to which at the moment he may be subjected.’
COMMENT In other words, a jury should stand back and consider the situation in the cool light of day but also consider the mental stress that the defendant was under at the time.
R v MARTIN [2001] LTL C0102104
Lord Woolf, ‘In judging whether the defendant had only used reasonable force, the jury has to take into account all the circumstances, including the situation as the defendant honestly believes it to be at the time, when he was defending himself. It does not matter if the defendant was mistaken in his belief as long as his belief was genuine. Accordingly, the jury could only convict…if either they did not believe his evidence that he was acting in self-defence or they thought that [he] had used an unreasonable amount of force. These [are] issues which [are] ideally suited to a decision of a jury.’
3. Motive
If the use of force was in any way connected with motives such as retaliation, revenge or simply pure aggression, then the force will be unreasonable.
COMMENT It would now seem that the reasonableness of the degree of force used is coming close to being treated as merely evidence of motivation. In other words, the more excessive the force, the more likely it is that the accused was not genuinely motivated.
4. Murder
Where the charge is murder, there is no rule whereby, if the defence fails because of the use of excessive force, it can have the effect of reducing the conviction to manslaughter. As things stand, therefore, the defence either succeeds, in which case the accused is acquitted, or it fails, in
which case the accused will be convicted of murder. This was confirmed in the case below.
R v CLEGG [1995] 1 All ER 334 - HL
Here, a soldier fired at car that had gone through a road block in Northern Ireland.
NOTE This case is also authority for the proposition that there is no difference between the statutory and common law defences in the use of reasonable force. As Lord Lloyd said, ‘it would not be practicable to draw a distinction between the two defences, since they so often overlap’.
B. Arrests
They must be lawful. See cases in the FREEDOMS topic in ELS where the defendants got civil damages because the arrests were not lawful and therefore any force used would amount to common assault, or worse.
III. Self defence
This is the situation where a person is being attacked and seeks to defend himself. May only use reasonable force.
BECKFORD v THE QUEEN [1988] AC 130 - HL
Lord Griffiths, ‘A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike’.
COMMENT It would appear, therefore, that someone can take pre-emptive action to avert an attack. BUT note the Tony Martin case and the use of reasonable force.
IV. Defence of property
This common law defence is also covered by section 3(1) of the Criminal Law Act 1967 - prevention of crime. The only point is whether the defence of property is worth killing for which is extremely doubtful.
