- Information
- AI Chat
General Defences
Criminal Law (LW2220)
University of Leicester
Preview text
CRIMINAL LAW 2017-
GENERAL DEFENCES
Theory of Defences
Traditionally the defences have been analysed within a framework of justifications and excuses. Justifications focus on the act; excuses focus on the accused. However, the classifications have created controversy and revised theoretical frameworks have been developed.
General defences available to any criminal charge (subject to some exceptions) not limited to certain type of offence like diminished responsibility and loss of control are (only available to murder charges)
Defence of duress = a general defence so in theory could apply to any criminal charge however duress cannot be pleaded as a defence to murder
Justificatory Accepted no harm is done, act is justified Conduct justified on the basis that greater harm is avoided For example, consent (and possibly self defence)
Excusatory Harm is done, act is not justified, but D is excused because of the circumstances or condition of the accused For example, duress is excusatory Focus is not on the act but on the actor (D) Does it matter? Perhaps, see the relationship between duress and necessity
Exemptions Defendant lacks reasoning skills (e. Insanity) – D arguing not that there was a rational account for what they did but rather that their actions are not amenable to rational account thus defence operates more as an exemption rather than an excuse
See Horder (2004) and Tadros (2007) for fuller analysis on the theoretical basis of the defences.
Reading Horder (2004) Excusing Crime, OUP. Tadros (2007) Criminal Responsibility, OUP.
Consent
Consent is justificatory in nature – it is argued that D’s act is justified
Consent may operate as a defence to offence of assault in certain circumstances. These are circumstances where it is accepted by the law that
protecting autonomy of individual by respecting their consent is a greater good than criminalizing the conduct involved
Where consent is accepted as a defence, it is because the act is justified because to criminalize it would interfere significantly with freedom, autonomy and capacity of the individual to choose
For some crimes, like rape and sexual assault, consent (or lack of it) is a definitional element of the offence. For other offences, like assault, consent can operate in certain circumstances as a defence. The types of conduct where consent is valid are unclear. The availability of consent as defence to assault is, as you have already seen, shaped by considerations of public policy/private morality:
Brown [1994] AC 212 In what context may consent be a defence? When does conduct which would otherwise be criminal become acceptable? What amounts to true consent? Whether conduct can be consented to depends on whether the conduct is deemed to be in the public interest – courts weigh up seriousness of harm against socially utility of the conduct But as Brown demonstrates, boundary between public interest and private morality are blurred Judicial bias against sado masochistic floggings?
Sado Masochistic floggings in homosexual context (included genital torture and blood letting) Majority held – consent could be a defence to common assault BUT where more than trivial injury was concerned (i. actual bodily harm), the activity needed to be in the ‘public interest’ for consent to be valid Majority held that sado masochistic floggings in homosexual context not in public interest
Reasoning: Lord Templeman - participants could not foretell the degree of harm; behaviour not essential to human happiness; danger of infection; such activities ‘breed and glorify’ a ‘cult of violence’ Lord Jauncey - young men might be corrupted Lord Lowry - the acts were not ‘conducive to family life’
Minority View: Lord Mustill - private morality is not a matter for criminal law Ask not whether the conduct is in the public interest, but whether there is a public interest in criminalisation
Wilson [1996] 2 Cr App R 241 D branded initials on wife’s buttocks with hot knife CA held - consensual branding was akin to tattooing Not in the public interest to criminalise – Court adopted Lord Mustill’s approach in Brown
Operation of defence of consent is by reference to subjective views of those who are responsible for enforcing and making criminal law
‘True’/ Informed consent
What if D fails to disclose information which may be relevant to V’s consent?
To give valid consent a person must have adequate knowledge of the circumstances in which s/he agrees to take part in conduct which exposes them to risk of harm. What constitutes informed consent? This issue has arisen in the context of sexual intercourse with HIV infected persons:
Dica [2004] 3 WLR 213 D who failed to disclose HIV positive status was convicted of inflicting GBH on two women CA held that D was in long term relationships with his Vs and had deliberately concealed his HIV status, deliberately kept Vs ignorant to his condition and so no reason for Vs to suspect they were running the risk, therefore they had not consented to that risk. Although Vs had freely given consent to sexual intercourse they had not consented to risk of catching HIV, D guilty Principle of case = where V is unaware that D is HIV positive, it cannot be said that V impliedly consented to risk of transmission by having unprotected sex
Konzani [2005] 2 Cr App R 14 D did not disclose HIV status and had sexual intercourse with 3 women without disclosing it to them Vs contracted HIV, D convicted of s assault
Trial judge held – Consent could have been given to contract HIV if Vs were informed of HIV status (contrast Brown – one reason court held sado masochistic activities were not lawful because there was a risk of HIV being transmitted, would not be in public interest for HIV to be spread. Inconsistency between these two cases, Brown – cannot consent to transmission of HIV but in Konzani trial judge suggesting that you can if V is aware of risk of transmission) but Vs had not in this case given informed consent as they were not aware of Ds HIV status
CA – consent not given; there is a difference between running a risk and consenting to it
Reading Clarkson and Keating, p- Weait, ‘Knowledge, Autonomy and Consent: R v Konzani’ [2005] Crim LR 763 Cooper and James ‘Entertainment-the painful process of rethinking consent’ (2012) Crim LR
Self-defence/justifiable force
Is mainly justificatory in nature but does have some excusatory elements
Common law defence which overlaps with the statutory defence in S CLA 1967, and is clarified by s of the Criminal Justice and Immigration Act 2008 (as amended by s LASPO 2012 and s Crime and Courts Act 2013) – view this defence as a common law defence with a layer of statute on top
Self-defence is used where D uses force to avoid the greater harm of force to themselves, another person of property
Self-defence = complete defence meaning that if its proven D escapes liability all together (is acquitted), onus on prosecution to disprove it beyond reasonable doubt that conduct was not justified
Defence can be used to protect oneself, property or another person
To protect oneself/property/another
Criminal Law Act 1967 s. “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 persons unlawfully at large.”
The Criminal Justice and Immigration Act 2008 s provides clarification on the existing common law of self defence and s CLA 1967. Further amendments to the 2008 Act, were made by s of the Crime and Courts Act 2013 to modify the defence in its application to ‘householder’ cases.
To protect property Bayer [2004] 1 Cr App R 38 Self-defence can be used as a defence for protection of property if the threat to the property amounted to a criminal offence Ds = environmental protestors who objected against the planting of GMO crops Ds went to a farmer’s land to destroy his GMO crops in order to protect surrounding properties from contamination from GMO products Ds did not have a defence of self-defence because the farmer was engaged in lawful activity on his own property – threat to property needs to amount to a criminal offence Criminal Damage Act 1971 (section 5) includes a specific defence if damage done to protect property in ‘immediate need of protection’ and the means of protection ‘reasonable’. Honest belief in need to protect suffices. o Example: if row of houses were on fire and D knocked down a house to create a fire barrier to prevent fire spreading onto entire row then arguably that may come within the defence of Criminal Damage Act 1971 because the property that was destroyed was done because other houses needed immediate protection and the means were doing so (knocking over house) would be deemed reasonable
Despite falsely believing the victim had a gun, officer shot victim. Victim survived but had some injuries. The officer honestly and reasonably believed he was about to be shot and was allowed to rely on self-defence.
Duggan v North London Coroner (2017) EWCA Civ 142
Intoxicated mistake: Can an intoxicated defendant rely on his mistaken belief in the need to use force in self-defence? NO they cannot O’Grady [1987] 3 All ER 420 Drunk D not entitled to rely on his mistake that he was under attack or his mistake as to the degree of force necessary This is a policy decision
Hatton [2006] 1 Cr App R 16 Confirmed O’Grady and incorporated in s(5) CJIA 2008
Is this just? - It is inconsistent with the general rules on intoxication (which allow voluntary intoxication to negate the MR for murder and reduce liability to manslaughter)
- What if the drunken mistake is one that a sober reasonable person would have made?
- Response proportionate to the attack
- Response will not be ‘reasonable in the circumstances as D believed’ if it is ‘disproportionate’
- But D ‘may not be able to weight to an exact nicety the exact measure of necessary action’
- If D does what he ‘honestly and instinctively thought was necessary’ that is ‘strong evidence’ of ‘reasonable action’
AG for Northern Ireland’s Reference [1977] AC 105 Common law - AG Ref for NI (no 1 of 1975) –balancing exercise not done in calm analytical atmosphere of courtroom, but brief seconds under stress
Palmer v The Queen [1971] AC 814 (PC) Common law - Palmer-if in an unexpected moment of anguish, the defendant did what he honestly and instinctively thought necessary that is ‘potent evidence’ of reasonableness
Scarlett (1994) 98 Cr App R 290 D = landlord of pub who tried to eject customer (who was already worse for wear in drink) from his pub, however in doing so he used force which resulted in customer sustaining head injury and dying.
Court held if D mistakenly believed that the circumstances called for the degree of force used, irrelevant that objectively speaking it was not necessary
(high point of subjectivity) – Essentially Court said that whether response was proportionate or not, depending on whether D believed it was proportionate BUT this was overruled in Owino
Owino [1996] 2 Cr App R 128 Held that the force must be objectively reasonable in the circumstances
S CJIA closely resembles the decision in Palmer. It is an objective test but modified by reference to D’s view. It creates a presumption of reasonableness if D so thinks
S(6) CJIA 2008 The degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances.
However, s(7) CJIA 2008 states that a D ‘may not be able to weigh to an exact nicety the exact measure of any necessary action’ and also ‘evidence of a person’s having done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person’.
Test of proportionality is an objective test but it is modified by reference to D view in that there is this evidentiary presumption of reasonableness which is based on D’s view of what is necessary
Fatal force in defence of property Historically difficult to satisfy the proportionality test Can the defendant rely on his mental disorder in arguing the force was proportionate? Martin [2002] 2 WLR 1 A householder shot dead one and wounded a second escaping burglars. He argued mental disorders meant that he perceived a greater danger and this should be taken into account in judging proportionality. CA rejected
Oye (2014) 1 Cr App R 11. Confirmed that mental disorder not relevant to reasonableness
Physical characteristics might be relevant to proportionality but mental characteristics are not
In a ‘householder’ case New test for householders: The degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances (s(5A). R (on the application of Collins) v Secretary of State for Justice [2016] EWHC 33 (Admin) D (householder) put an intruder (Collins) in a ‘headlock’ whilst awaiting police. Collins lost consciousness (suffered serious injury from which he is not expected to recover).
used against bare hands traditionally self-defence is difficult because it is disproportionate
- Imminence The threat against which D is acting must be an imminent threat. So if D has a reasonable opportunity to escape then D expected to take that
Victims of domestic violence might be expected to leave home rather than use violence against their abusers in a pre-emptive way BUT this doesn’t really take into account the realities victims of domestic violence experience in leaving home
In certain circumstances it seems a pre-emptive attack may be justified: AG Reference (No of 1983) [1984] 2 WLR 465 D = shopkeeper, who prepared petrol bombs to protect himself & family at his shop against rioters Riot never happened D charged with preparing explosive substances contrary to fire arms act D allowed to have defence of self-defence BUT if D had used the bombs on the rioters then the defence would have failed because of excessive disproportionate force
This is a little troubling as court seems to have been generous in allowing D who pre- emptively made bombs the defence of self-defence but have not been generous in interpreting the imminence requirement for abused women who are unable to escape violence in the home
But in general the requirement of imminence works against abused women who use force in anticipation of an attack by a violent partner. Does this matter, particularly with the new defence of loss of self control? Are victims of domestic violence being treated less favourably than startled householders?
A new defence for victims of domestic abuse?
Loss of Self Control defence is available (but is only a partial defence applying to killing) and suddenness is relevant evidentially
Self-defence could be modified- relax imminence and consider disproportionately in all the circumstances of an abused person (Wake argues householders should not be treated more favourably than abused women, but NB her comments pre-date Collins).
Alternatively, start from scratch with a new complete defence Reading Clarkson and Keating, p- McColgan, ‘In Defence of Battered Women Who Kill’ (1993) OJLS 508 Wake, ‘Battered women, startled householders and psychological self defence: Anglo-Australian perspectives’ (2013) Journal of Criminal Law 433.
Duress
Duress operates within strict limitations. It is not, for example, available to those who have exposed themselves to risk of threats by voluntarily associating with known violent criminals and thereby placing themselves in a situation where they may be vulnerable to threats. It currently provides no defence to murder; a person who is threatened with death is expected to make a heroic sacrifice rather than kill an innocent third person.
Traditionally regarded as an excusatory defence – accepted that D did something wrong but in the circumstances their conduct is excused D has ‘no real choice’ so defence allowed It has been questioned whether the excuse/justification distinction is helpful (Clarkson (2004)) – critical of ‘moral involuntariness’ rhetoric
First limitation is about type of threat Threats of death or serious injury
Hudson and Taylor [1971] 2 QB 202 2 women (17, 19) prosecution witness of a trial of a man who had been charged with wounding During trial they refused to identify man accused of wounding Refused because they had been approached by D supporters to not identify otherwise they would have been put off During trial saw one of the men who threatened Women charged with perjury Court held possible to argue defence of duress as long as there were threats of death or serious injury
Threats to property (Duress not available but see s(2)(b) CDA 1971)
Valderrama-Vega [1985] Crim LR 220 Threats of death or serious injury need not be the sole threat D charged with unlawfully importing drugs D claimed imported drugs because he was subject to threats of death/serious injury as well as severe financial pressure as well as being exposed to wife of his homosexual behaviour (4 types of threats) Court held financial pressure and exposition of homo activity not relevant but provided threats of death/serious injury are operative doesn’t matter that there are other threats made which don’t count under duress
Second limitation Link between the threat and offence
Cole (1986) 83 Cr App R 173 D threatened against violence to him and family if he did not repay money to money lender To get money D robbed building society Court held no defence of duress because person threatening D did not specify to rob building society, just told him to repay him No link between threat and offence that was committed
Imminence/ lack of opportunity to escape - Defendant expected to take safe avenue of escape - Avenues technically open do not necessarily constitute reasonable opportunities
Hudson and Taylor [1971] 2 QB 202 - Case facts above – obvious that threats could not be carried out immediately as were in a court room with security. But, that did not mean that Ds shouldn’t have defence of duress because once Ds left court room the threat makers could get them on the streets. Court said in deciding whether Ds had reasonable opportunity to escape should look at all the circumstances
Defendants voluntarily placing themselves in a situation where they may be vulnerable to threats (Exposing oneself to threats)
Sharp [1987] 1 QB 853 Joining a violent gang with knowledge D joined a gang of armed robbers knowing that they used firearms D then participated in an armed robbery in a post offence but said only did so because was threatened of death by other gang members Defence of duress failed because court said one should not put themselves in positions where they can be likely to be under threats and if they do voluntarily put themselves in that position and then comes under pressure to commit and offence they cannot rely on defence of duress
Shepherd (1988) 86 Cr App R 47 Joining a group without knowledge of propensity to violence D joined a gang that were into shoplifting In order to shoplift would carry out distract tactics D did not have knowledge that in joining this gang that he was exposing himself to risk of threats of violence Defence of duress accepted
Hasan [2005] AC 467 Would a reasonable person realise that joining would expose oneself to the risk? D voluntarily associated with violent gangster/drug dealer (held duress not available as defence on the facts) HL said that not necessary for D to have foreseen compulsion to commit the type of crime charged HL left open question of objective or subjective foresight of risk of being compelled to commit offences (does D have to foresee the risk or enough that reasonable person would have?) Objective approach is seen to be the one preferred in practice by courts
A defence to murder? – Availability in relation to murder?
DPP v Lynch [1975] AC 653 Duress should be available to a secondary but not principle
D acted as driver, drove 3 members of IRA to place where they killed police man. D had no involvement in killing D said he did that because believed that if he refused to obey order he’d be shot HL drew distinction between actual killers (principle parties) and someone who helps (secondary parties) Held duress should be available to secondary parties but not principle because secondary party may hope to save their own life at the time it is not inevitable that someone else will lose theirs. Whereas the principle party knows that in order to save their own life they must take someone else’s
Abott v The Queen [1977] AC 755 Duress not available to principle parties (although two strong dissenting judgements) Dissenting judges thought it was illogical and unjust to not allow defence of duress to principle parties. Argued it was unjust because not reasonable to expect somebody to sacrifice their own life in order to save life of another person. Argued it was illogical to not allow duress as a defence to murder because duress is available to lesser charge of s18 causing grievous bodily harm with intent. The illogicality of not allowing duress as defence to murder arises from fact that mens rea for murder includes GBH rule
Hero or Coward? Howe [1987] 1 AC 417 Issue of whether duress as a defence to either secondary and/or principle parties resolved in this case (Howe is the leading case) Duress not available to either secondary or principle parties Ds = 2 men participated in sexual assault and killings of 2 other men On one occasion Ds were secondary parties and on another were principle parties Court said defence not available to either secondary or principle parties Reasoning was that it is not ‘just/humane’ to take innocent life to save loved one/self, not a ‘lesser of two evils’ to kill another person in order to save yourself/another. Cloak of protection should not be cast around a coward Administrative discretion will mitigate the harshness of the rule (i. sentencing, tariffs etc.) Although administrative discretion will mitigate harshness of rule, one can never lose the label of murderer. - Issue of fair labelling here. Howe sets a high standard as normal criteria in criminal law is the criteria of a reasonable person, arguable reasonable person is neither a hero or coward. So requirement in Howe for people to be heroes implies a higher standard than reasonable person
Attempted murder/conspiracy to murder: Gotts [1992] 2 AC 412 Duress not a defence to attempted murder but might be to conspiracy to murder Gotts (aged 16) threatened by father that if he didn’t stab his mother that he would shoot him G attempted to kill mother
Court said no objective way of measuring respective value of lives of the individuals involved. Court concluded that no more necessary to kill cabin boy than to kill any of the other men Case illustrates difficulty of arguing necessity as a defence for killing, if all life regarded as equally precious then one cannot justify the taking of one life to save another Ratio of this case is unclear, is there no defence of necessity on the facts or there no defence of necessity at all?
Southwark LBC v Williams [1971] Ch 734 Necessity no defence to the hungry/homeless Ds homeless, broke into unoccupied local property Lord Denning held no defence of necessity because if necessity admitted as defence to trespass then no one’s house would be safe i. if hunger were defence for stealing it would open gate through which all kinds of lawlessness would pass – no defence of necessity for sake of law and order. Denning realized harshness of denying necessity defence to hungry but said that could rely on prosecutors to no take up case
Medical necessity
Bourne [1939] 1 KB 687 Doctor preformed abortion on 14yr girl who had become pregnant as a result of being raped At the time unlawful to procure miscarriage But court held defence available because operation was performed to save the life of the mother Abortion to preserve the life of the mother This is now covered by miscarriage act Court implicitly recognizing defence of medical necessity
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 Prescribing contraceptives to girl under 16 without her parents’ consent Could potentially be charged with aiding and abetting unlawful sexual intercourse with child under 16 Court decided in this case that doctor not guilty provided that doc honestly believed it necessary to prescribe contraceptives in order to preserve the physical, mental, emotional health of the girl Court implicitly recognizing defence of medical necessity
F v Berkshire Health Authority [1990] 2 AC 1 Sterilisation to improve/prevent deterioration in physical/mental health Doctor had defence as if the woman were to get pregnant it would have an deteriorating impact on her One of the judges (Lord Goff) seemed to extend the potential scope of necessity beyond confines of medical necessity Lord Goff said that necessity could succeed if 2 conditions were satisfied: 1) Had to be not possible to communicate with the person who required assistance
- Action taken had to be no more than a reasonable person would do in the best interest of the assisted person Ex: of when this could apply is: Person (A) sees someone (B) about to step in front of bus, that person has headphones on. A reaches out and drags them away from bus but in doing so B becomes injured because they fall on floor. Wasn’t possible to communicate with B as they had headphones on (condition
- and arguably dragging B out of path of bus is no more than a reasonable person would do in order to act in best interest of assisted person (condition 2)
Necessity in relation to homicide
Howe [1987] 1 AC 417 Howe interpretation of Dudley and Stephens – necessity no defence to murder because it is simply a species of the main duress defence Decision in Howe seems to prevent D’s from arguing defence of necessity in relation to homicide Criticism of this is that it doesn’t allow for o A) the killing of one person will lead to net saving of lives o B) killing in circumstances where one will inevitably die
Re A (Conjoined Twins) [2000] 4 All ER 961 Harshness in law in denying necessity as a defence as to homicide may have been mitigated by CA in Re A Without separation both J and M would die Separation lawful – different reasoning by 3 judges LJ Robert Walker o No need to look for defence in this case because it could simply be decided by lack MR, basically applying evidential interpretation of Woollin LJ Ward o Ward of the view that it would be murder, adopts definitional interpretation of Woollin o Striking a balance where the interests of both cannot be paramount/Quasi self defence LJ Brooke a justificatory defence of necessity LJ Brooke: Act needed to avoid inevitable and irreparable evil Act no more than reasonably necessary to achieve that purpose Evil inflicted not to be disproportionate to evil avoided
If looking for ratio for Re A something that encapsulates what Ward and Brooke said, then defence of necessity only available where A designated with death and B will die also unless A is killed
A justificatory defence of necessity has very narrow scope in relation to homicide. It was argued in Nicklinson [2013] EWCA Civ 961 that doctors who kill (‘assist the dying’ of) patients with locked in syndrome should have a defence of necessity to murder. Stark examines why this argument failed.
On the face of it docs would be committing offence of murder
Court held yes duress would be available against such a crime but only if the person desisted from committing the offence as soon as they reasonably could D should have taken firearm straight to police
Abdul Hussain [1999] Crim LR 570 Hijacking – imminence requirement Ds charged with hijacking plane Ds belonged to a Muslim group that were being persecuted in Iraq, hijacked plane on its way to Sudan Ds fearful that if they returned to Iraq they would be executed Court held that defence of necessity could potentially be available to a charge of hijacking One of the factors to consider for defence to be available was requirement of imminence. How imminent was threat? Was there opportunity for Ds to escape threat and did they take it? Jury should consider whether the fear was operative on the minds of the Ds at the time they committed the offence, if so what would a reasonable person have done (did Ds show reasonable steadfastness)
S(D) [2001] Crim LR 986 (CA judgment) R v Shayler [2002] WLR 754 (HL judgement) Duress of circumstances not available to MI5 officer of disclosed info in ‘public interest’ CA said defence of necessity has ‘little currency’ in English law (meaning there isn’t really defence of necessity in English law) and so far as it does exist it consists entirely in the excusatory defence of duress of circumstances – (basically saying no defence of necessity there is only defence of duress of circumstances and duress of circ only applies where conditions are satisfied) HL held no defence of duress or necessity on the facts HL didn’t agree with everything CA said – left unclear
Quayle [2005] 1 WLR 3642 D with MS tried to argue using drugs for pain relief (no defence to possession/ supply of cannabis for medical use) Court rejected defence of possession of cannabis for medical use. Said that defence of necessity did exist, but refrained that in terms of duress of circumstances – requirement that there would be extraneous pressure (which there wasn’t in this case, pain was internal), physical injury, imminence
Rejected defence framed more like duress of circumstances than necessity Extraneous pressure Physical injury Imminence
Clarkson (2004) One defence of ‘Necessary Action’ To cover self-defence, duress by threats/circumstances and necessity Justification/excuse distinction not helpful Both look at act and the actor
‘Necessary Action’ Act reasonably and proportionally to avert danger or disaster Objections – fair labelling Clarkson argues not so pertinent to defences
Reading Clarkson and Keating, p-
Insanity
Why do we have defence of insanity? Because we cannot blame those who lack the capacity to think rationally
Purpose of punishing ‘insane’? Deterrence - no point in punishing for deterrence because not likely to deter someone who can’t think rationally Retribution Rehabilitation - Won’t work, only reason want to punish insane is to incapacitate them if they posed danger to society
Fitness to Plead In order for D to be fit to stand trial, they must be able to understand the charges they face, know the difference between guilty and not guilty plea and does he have capacity to instruct council and follow criminal proceedings. If not D is unfit to plea, in which case jury asked to determine whether D committed AR of the offence and if D did commit AR then judge as range of discretionary disposals Jury decided if D committed the AR Judge has a range of discretionary disposals o Detention at mental hospital (indefinite) o Guardianship order o Supervision and treatment order o Incapacitation
Successful Insanity Plea If D fit to plea and stand trial may try argue insanity at the time offence was committed. If successful, jury can make special verdict Jury can make special verdict not guilty by reason of insanity Normally the judge has a range of discretionary disposals (as above) Mandatory disposal for murder encourages D to plead diminished responsibility - if D charged with murder indefinite detention at mental applies so there is strong incentive to plead DR instead of insanity. Because if D successfully argued DR then judge can sentence him any way he wants (so could escape potentially be detained in mental hospital indefinitely
Lacking capacity to stand trial
General Defences
Module: Criminal Law (LW2220)
University: University of Leicester
- Discover more from:
