Defences Criminal articles



McRae 'Forensic Neuropsychology:The Legal Implications' 2015- Insanity defence- reasons for hospital order 'the respective offender will recieve the care and attention which he needs in the hope and expectation of course that hte result will be to avoid the commission of the offender of further criminal acts'- R v Birch. Mental disorder must be 'nature of degree which makes it appropriate to be detained in hospital for appropriate treatment.' Fit to plead- in 2006 R v Miller an adult was found fit to plead despite his 65 IQ- lowest 2.5% of population. In contrast in SC v UK an 11 year old with IQ of 56 was unfit to plead. 

Lack of age- children participating in trials that they dont understand may breach A6 of ECHR. Danger might be intimidated. Less concern for adults. Child is more likely to have court sympathies than an adult whos responsibility is more easily assumed. Sentences must take into account age or lack of maturity. Law Commission suggested new test in 2010. Unfit to plead unless can understand information relevant to trial, retain and weigh info, and communitcate decisions. Should be assessed by 'standardised psychiatric test' to ensure consistency. 

Psychopathy- no presumption of moral agency- maybe blind to moral considerations. Rehabilitiative model of punishment is unlikely to work. Hospital order would be to keep society safe. Law Commission 2013 wants psycopaths to be explicitly rejected from new proposed defence of 'not criminally responsible by reason of mental disorder.' 

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Wake 'Battered women, startled householders and pyschological self defence, anglo austrailian perspectives' 2013- Amendments under the Crime and Courts Act 2013 have exacerbated the difficulties in this area by putting the startled house holder in a better position than every other defendant. If D argues that he used disproportionate force to repel an intruder, this can be support for a claim they lost self control, if self defence is rejected. 

Loss of self control: Law Commission advised against the confusing loss of control terminology. In absense of loss of control requirement, the partial defence can be aligned with self defence. Fear trigger is designed to apply where the defendant is unable to satisfy the requirements of self defence, as the force used was more than what was objectively reasonable in the circumstances. Lord Chief Justice said although there will often be 'factual overlap' between the loss of control and self defence 'there are obvious differences between the two offences and they should not be elided.' Self defence doesnt bar loss of self control. Should be remembered in loss of control need to fear serious violence from the victim. No requirement of reasonable response. In most cases the fact the violence wasnt proportionate shows the loss of self control.

Battered women: rarely able to claim self defence, as force was disproportionate or unable to prove the threat was imminent. Loss of control is incompatible with the pattern of psychological and behavioural responses exhibited in response to long term physical and pyschological abuse.

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The fact it wasnt sudden doesnt negate the defence but the lack of immediacy renders it hard to assess whether they truly lost self control. Difficult to tell if revenge or not. Law Commissions recommendations were targeted towards ensuring this defence would be available to this group. They want a reformultated provocation partial defence. Objective requirement. Abused women who kill are now seen as between a victim of domestic violence and defendant charged with murder. A new concessionary defence of psychological self defence could sort this. 

Householders- Used to be that excessive force would negate the defence. S43 (2) of the Crime and Courts Act 2013 amends S76 of the 2008 act, so that disproportionate used of force is reasonable in startled householder cases. Force cannot be grossly disproportionate. Can be acquitted. Only applies if a trespasser. Concerns this could encourage vigilantism and doesnt accord with fact most burglars avoid home owner. If more likely to intervene more burglars could carry weapons. Some say nothing will change as rarely prosecuted. Grossly disproportionate force can result in murder conviction. Gov says line is when it is clear no more force is needed. Dangerous as allows serious violence and wanted by public.

Criminal Law Revision Committee, HoL Select Committee and Law Commission want a new partial defence where force used was unlawful because excessive or where attack was insufficiently imminent to satisfy self defence. Used in Austrailia. 

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Williams 'Voluntary intoxication- a lost cause?' 2013-  current law presents 3 challenges- 1) those intoxicated are likely to do more harm but it is arguable that individual culpability of drunken stupidity is less than that of deliberate sober calculation. 2) law refrom must choose between justice and simplicity. The more varied degrees the more accurately the d will be labelled but becomes harder to apply the law. 3) more degrees means longer and more complicated trials. Greater risk of a unanimous verdict not being reached.

1995 Law Commission said 'the Majewski approach operates fairly, on the whole and without undue difficulty.' In 2008 they said 'codifiication of the present law with clarification and modifications is still the right approach.' Suggestions were rejected as too complex. What is wrong with current rules? 1) 'the cause of the punishment is the drunkeness which has led to the crime, rather than the crime itself.' DPP v Beard. Majewski operates in 3 ways- i) prevents D from adducing evidence of intoxication to deny mens rea ii) intoxication was held to constitute the mens rea of basic intent crimes, rule of substance not evidence. iii) in R v Heard the jury was asked to decide whether D would have foreseen the relevant harm had she not been intoxicated. Sometimes juries asked hypothetical questions that the Law Commission didnt like. Only apply to basic intent so line needed between specific and basic. Basic intent mens rea is satisfied by recklessness. Intoxication cannot apply to any other offence. LC's 2008 report said under Majewski rule 'D would be treated as having been aware of any risk or circumstance..

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or risk would have been aware of but for his or her self induced state of intoxication.' Current rules only deal with reckless result crimes. 

Alternatives to Majewski- In result crimes should be able to convict of 'committing actus reus whilst intoxicated.' An objection to this is that since the sentence would be the same there would be little point looking at the intoxication. Still requires hypothetical question to jury. If same maximum still may be applied in different ways. 2) behaviour crimes- new offence could apply to crimes with other types of actus reus elements. Current test asks if wouldve foreseen sober. May be less need for intoxication as in many cases the prohibited behaviour will not ahve been carried out unintentionally and so D will have the mens rea. 3) inchoate eg burglary and attempt. A new offence wouldnt be desirable. In general offence of 'committing (actus reus of offence) whilst intoxicated'could potentially apply across the board and exceptions included for inchoate offences. 

Two major problems- Majewski is infringement on S8 of Criminal Justice Act 1967 or amount to criminalising intoxication itself. 2) only apply sucessfully to result crimes. The discussed approaches may be simpler and clearer. 

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Clarkson and Keating- self defence- not really a defence as makes the act lawful, not had the necessary actus reus. Can be permitted against an exempted actor eg a child with a gun. Must use only as much force is needed to avert the attack, sanctity of life is preserved in A2. Covers A3 and A5. SD is a justificatory defence. Where there is a mistake the actions arent justified but still excused. Reasonable is subjective so judged by what defendant thought. This defence has worked badly against battered women.

Intoxication- 2/3rds of police assualts committed by drunk people. Only cases where intoxication considered is where so intoxicated as to lack mens rea or be automatom. Often intoxication is the answer for crimes that can be taken to a lower level, unlike theft. Drunk self defence under S75(5) must be 'attributable' to their intoxication, if caused it is not reasonable. Not sure whether alcoholism is a disease of the mind under insanity. Reform- many want codification. 

Ashworth and Horder- self defence raised by defendant and on prosecution to prove beyond reasonable doubt that it wasnt permissible. Recognises an exception to the duty to avoid conflict (if this exists) in cases where D is acting lawfully by remaining in a place. Law Commission tried to reform without basic and specific intent, favouring where the fault element is integral and crimes where it is not. May add another layer of confusion but may simplify. 

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