#14652 - General Defences - GDL Criminal Law

_______________________________________________________

(See ‘Loss of Control’ and ‘Diminished Responsibility’ specific defences under ‘Murder & Voluntary Manslaughter’)

Automatism

An excuse defence – the criminal act was committed but there was no voluntary control of it as to intention (differentiated from mens rea intention – even strict liability acts must have been intended in that they must have been caused by a voluntary movement of muscle)

An act must be voluntary and freely willed if it is to constitute actus reus

Divided into:

• Insane automatism:

  • D must prove on the balance of probabilities

  • Arises out of a disease of the mind

• Non-insane automatism

  • Evidential burden on D which then P must disprove beyond a reasonable doubt

  • Arises out of an external cause

Non-insane Automatism

R v Ryan: if it was proven that a muscular flinch caused the trigger to be pulled this was a ‘reflex action’ and liability couldn’t be found – though here they found the act voluntary

Bratty v AG for NI

D strangled his female friend of the family to death whilst giving her a lift. He claimed psychomotor epilepsy removed his volition from his muscular movements

Held: it was right not to leave automatism to the jury. There was purposive action behind the seizure movements & this made it an insanity case

• Lord Denning: voluntariness is essential in “every criminal case”. An involuntary action will be:

  • “done by the muscles without any control by the mind, such as a spasm”

  • “an act done by a person who is not conscious of what he is doing” such as when concussed or sleepwalking

However an act “which has manifested itself in violence” is a disease of the mind

AG Ref No. 2 of 1992

HGV driver collision caused 2 deaths. Expert witness evidence that he was in a state known as ‘driving without awareness’ but that this state retained the ability to move the steering wheel & react to stimuli. The jury acquitted on the basis that this was not voluntary ‘driving’

Held: (CA) automatism requires complete loss of voluntary control – here the partial involuntariness was not enough

AG Ref No. 4 of 2000

Bus driver had accidentally pressed the accelerator killing two pedestrians on a pedestrian island. The break pedals had caused similar issues for other drivers. Trial judge directed verdict of not-guilty as this was not a voluntary act of driving

Held: (CA) automatism does not cover the unintentional wrong footing because the driving is still voluntary

Outward factorisation:

R v Quick

D hypoglycaemic by excessive injection of insulin - ABH

Held: non-insane automatism – external factorisation

R v Hennessy

Hyperglycaemic by failing to take insulin. 2^nd ‘external factor’ raised of stress & heartache – driving w/o a licence

Held: insane automatism – internal factorisation . 2^nd factor rejected as the normal stresses & disappointments of human life are not external factorisations vitiating liability

R v T

D suffered PTSD as a result of rape

Held: should have been left to the jury as the rape was an external factorisation

R v Smith

PMT raised as automatism

Held: could not amount to automatism

Insane Automatism

• Royal Commission on Capital Punishment: this hinges on the fact that it would be ‘unreasonable to impute guilt’ onto someone completely removed from their senses

HOWEVER:

• Ronnie Mackay: “insanity and DOM are legal concepts which have little to do with current psychiatric thinking”

Mc’Naghten definition of insanity: “such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing”

The problem with this, as Ronnie Mackay points out, is that it left no discretion as to hospital order where the judiciary understood ‘disease of the mind’ widely, including epilepsy.

• Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 – disposal flexibility

• Domestic Violence, Crime and Victims Act – ensures all hospital orders must be compliant with the Mental Health Act i.e. can no longer be given to individuals who do not have a mental disorder defined there

R v Sullivan

D kicked a man during epileptic fit

Held: insanity was correct as, per Lord Diplock, the purpose of insanity is to prevent the recurrence of dangerous conduct. The fact that the ‘insanity’ was temporary but recurrent meant it fell within this purpose. It did not need to have manifested itself in violence

Bratty v AG for NI (above)

R v Burgess

D was having a night in with his neighbour and fell asleep. He said he couldn’t remember hitting V with a video recorder.

Held: (CA) rejected Canadian SC ruling which viewed sleepwalking as non-insane automatism - also rejected Denning’s dicta in Bratty. Here it was an internal factorisation & therefore insanity.

Intoxication

Distinction between dangerous drugs (alcohol) & soporific drugs (Valium):

R v Hardie

D taking ‘valium like smarties’ set fire to wardrobes – charged property damage

Held: must be shown D had some knowledge taking such medication might lead to aggressive tendencies – they are of a wholly different kind per Parker LJ

Involuntary intoxication is not automatism where mens rea is apparent:

R v Kingston

Penn drugged a young boy and then drugged Kingston whom he was employed to get some dirt on, knowing his paedophilic inclinations. They both engaged in an indecent assault on the boy

Held:

• At first instance, that a drugged intent is still an intent, and he was convicted.

• (CA) per Lord Taylor that the criminal law is not served by convicting someone who has crossed the line from non-criminal to criminal conduct (paedophilic tendencies -> paedophilic acts) due to the “clandestine act of a third party”

• (HL) per Lord Mustill that criminal law is not about moral responsibility – CA’s principle of fault is not the type of fault associated with mens rea which is intention as the time

R v Coley

Attempted murder – D cannabis user & violent video game enthusiast. D’s case that he blacked out after going to bed and awoke in V’s bedroom. Expert evidence that he may have experienced a ‘brief psychotic episode’

Held: this was a case of voluntary intoxication which did not disposses D of enough control to be automatism. It could also not be insanity which must have internal causes

• Hughes LJ: intoxication & insanity must be distinguished by a disease of the mind, not a defect of reason

Might be a mitigating factor in sentencing

Voluntary intoxication differentiated by:

• Basic intent crimes (mens rea is for the actus reus e.g. rape) – voluntary intoxication no defence

• Specific intent crimes (mens rea goes beyong actus reus e.g. murder ‘with intent to…’) – voluntary intoxication might impair mens rea

  • Lipman: LSD trip caused D to ram bedsheets down V’s neck because he thought she was a serpent. Held: no specific intent (to kill) to manslaughter conviction

  • Majewski: drug binge attacked police officers – claimed no recollection. Held: basic intent ABH and therefore intoxication could not be relied on

  • Brown and Stratton: specific intent will need to take into account drunkenness to see if he formed intent to cause the requisite degree of harm

Dutch courage:

Gallagher

D drank a bottle of whiskey to get up courage to kill V but mind then distorted from alcohol to form mens rea

Held: liability found, per Lord Denning that voluntary consumption of alcohol with the purpose of creating mens rea will not distort the court’s finding mens rea

Section 6(5) of the Public Order Act 1986 provides as follows:

• "For the purposes of this section a person whose awareness is impaired by intoxication shall be taken to be aware of that of which he would be aware if not intoxicated, unless he shows either that his intoxication was not self-induced or that it was caused solely by the taking or administration of a substance in the course of medical treatment."

Involuntary action: fairness

• Jeremy Horder: the “blunt instrument of acquittal on the grounds of insane and non-insane automatism” fails to acknowledge the difficult shades of grey in criminal responsibility

• Child & Reed:

  • Where D is not at fault for involuntary action -> automatism means she fails actus reus

  • Where D is at fault for involuntary action -> automatism “become an inculpatory tool…to…construct liability” i.e. the prosecution will fill in the missing actus reus with fault-based involuntariness

Self-Defence

Justificatory defence

Criminal Justice & Immigration Act

• Criminal law recognises sometimes unlawful force is justified

• P must prove no lawful justification

• D has evidential burden to raise that force was justified

Force must be justifiable, reasonable and proportionate

Prevention of Crime

R v Jones (Margaret)

D protesting Iraq war which they found to be illegal – broke into military base

Held: (HL) crime must be recognised in UK domestic law – not international law

Mistaken self-defence

Gladstone Williams (above)

NB: if the mistake is caused by intoxication it will not be a defence for the basic intent crime

R v Drone questions to ask for self-defence:

1. Was D under an actual or threatened attack by V?

2. Did D act to defend himself against the attack?

3. Was the response commensurate with the degree of danger?

Sometimes further questions must be asked:

1(a) If D was not under actual or threatened attack, did he have an honest belief that he was

3(a) Was the response commensurate with the believed degree of danger?

R v Orwino

D argued reasonable force when V, wife, was about to assault him

Held: a ‘reasonable belief’ is best determined by D’s honest & instinctive...