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31 Cards in this Set
- Front
- Back
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Defences onus |
no onus on accused but does have evidential burden |
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two exceptions |
mental disorder and diminished responsibility must prove |
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special defences |
alibi, mental disorder, incrimination and self defence automatism and coercion defence statements mad prior |
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Self Defence three requirements |
complete defence HM Adv v Doherty 1imminent danger to life or limb 2no reasonable app to escape 3 force used must be proportionate |
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Imminent Danger |
acted to protect third party hma v carson may make reasonable mistake Lieser v hma |
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No reasonable escape |
must be one does not put you at risk Mcbrearty v Hm adv OTHERWISE KNOWN: only violence as last resort Duffy v Harvie |
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proportionate force |
lethal force permisible in lethal threat, or rape Mcluskey v hma excessive force Moore v Macduougall |
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accused starts fight |
Carr v hma |
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Provocation |
CH conviction after Mrder charge three conditions Drury v Hma recognised provocation immediate loss of control ordinary person proportionality test |
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by infidelity |
need not be married, relationship of fidelity McCoy v HMA confession must be clear and unequivocal McCoy v hma |
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second and third conditions |
2 loss of self control must immediately follow Drury cumulative provocation not recognised Thomson v HMA |
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Necessity |
1immediate danger death great harm Moss v Howdle 2 no other reasonable course Moss v Howdle 3conduct reasonable in removing danger Lord Advs ref 2001 |
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2 |
consciously weigh up conditions Dawson v Dickson |
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Coercion |
only broke law because third party threatened complete defence Thomson v hMA 1 immediate threat of death 2 ordinary person 3 must not have risked being coerced in first place |
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does threat have to be to that person must threat be one immediately Ordinary person |
HMA V docherty trotter v hma cochrane v hma |
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3 is it defence to murder must not have risked t |
collins v hma thomson v hma |
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mental condition three defences |
1 mental disorder 2 automatism 3 diminished responsibility |
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unfitness for trial |
CPSA s53 f |
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mental disorder defence |
Brennan v HMA complete defence accused had mental unable to appreciate nature etc |
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a mental disorder |
CPSA s307 1 adopts the definition |
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unable to appreciate nature or wrongfulness of conduct |
Nature Simon Fraser Wrongfulness HMA v Sharp |
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If plea successful |
acquittal followed by exam of facts if this alone decides beyond reasonable doubt , then court can make disposal |
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Automatism |
plea was accused in state of unconsciousness share wrongful nature test but if proved, no exam of facts |
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requirements |
Ross v HMA 1total alienation of reason 2external factor caused internal factor is mental disorder automatism is external |
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Sleepwalking |
automatism by scottish courts |
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Hyperglycaemia and hypo |
excessive amount of glucose, i.e. diabetes, falls under metal disorder low amount, falls under automatism Macleod v Mathieson |
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requirements |
which accused was not bound to foresee ebsworth v hma |
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Diminished Responsibility |
Partial Defence CH charge two conditions An abnormally of mind substantial impairment of the ability to determine or control actions |
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abnormality of mind |
eg battered woman syndrome can be drug dependancy etc Daniel v the queen |
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Intoxication |
voluntary intoxication not defence Brennan if so intoxicated no mens rea Ross v hma, can form automatism |
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Key authorities in summary |
¨Self-defence:HM Advocate v Doherty¨ Provocation:Drury v HMAdvocate¨ Necessity:Moss v Howdle ¨Coercion:Thomson v HMAdvocate¨ Mentaldisorder: CPSA s.51A (defence), s.53F (unfitnessfor trial) ¨ Automatism:Ross v HMAdvocate
¨Diminishedresponsibility: CPSA s.51B¨ Intoxication:Brennan v HMAdvocate, Rossv HM Advocate |
