LAW MODERATIONS 2000 - 2001

CRIMINAL LAW; TUTORIAL SIX (HT Wk 3): GENERAL DEFENCES

General

**G.Williams "Theory of Excuses" 1982 Crim LR 732

J C Smith, Justification and Excuse in the Criminal Law.

1. Insanity, etc

*Homicide Act, 1957

****McNaghten (1843) 10 C1 & F 200

Hill v Baxter [1958] 1 QB 277

**Sullivan [1983] Crim L R 257; 740

**Bailey [1983] Crim L R 533

*Bell [1984] 3 All E R 842

***Hennessy [1989] Crim L R 357

*Burgess [1991] Crim L R 548

***Law Com 143, Chap. 12

*A-G's Ref (No 3 of 1998) [1999] 3 All ER40

2. Necessity, duress, etc

****Dudley and Stephens (1884) 14 QBD 273

***(Paul) Graham [1982] Crim L R 365

****Burke, Howe, etc[1987] Crim L R 480

*Sharp [1987] QB 853.

Shepherd (1987) 86 Cr App Rep 47

***Conway [1988] 3 All E R 1025

**Martin [1989] Crim L R 284

****Gotts [1992] Crim L R 724 (+ Article at 1992 Crim L R 778-789)

Law Com 143, Cl. 45 and 46

****Law Com 218 pp 46-64

*Bowen [1996] Crim L R 577

Baker; Ward (1999) 2 Cr App Rep 335

Abdul-Hussein [1999] Crim L R570

*Cairns [1999] Crim L R 626

Article 1994 Crim L R 334

3. Self-defence. etc

Criminal Law Act, 1967, s.3

**Palmer [1971] AC 814

****McInnes (1971) 55 Cr App Rep 551

***Williams [1984] Crim L R 163

**AG's Ref (No 2 of 1983) [1984] 2 WLR 465

****Clegg [1995] 1 All E R 334 (HL) (+ Editorial 1995 Crim L R 185)

**Owino (1996) 2 Cr App R 128

Phillips (unreported Court of Appeal3/12/99)

4. Mistake

****Morgan [1976] AC 182

**Tolson (1889) 23 QBD 168, ****188

Pappajohn ***1 Oxford Jour Leg Stud 432 - 438

***Williams [1984] Crim L R 163; (1984) 78 Cr App R 276

**Taylor (1985) 80 Cr App Rep 327

***Beckford [1988] Crim L R 116

****B v DPP [2000] 1 All ER 833

Lee (Court of Appeal 9th September 2000, unreported)

***CPS v K (Court of Appeal 31st October 2000, unreported)

5. Intoxication

**Criminal Justice Act, 1967, s.8

**Majewski [1976] 2 All E R 142

****Caldwell [1981] Crim L R 392; [1981] 1 All E R 961

*Brennan [1977] S L T 151]

***Jaggard v Dickinson [1980] 3 All E R 716

*Hardie [1984] All E R 848

****O'Grady [1987] Crim L R 706

*Fotheringham [1988] Crim L R 846

*Allen [1988] Crim L R 698

**Tandy [1989] 1 All E R 267

**O'Connor [1991] Crim L R 135

****Kingston [1993] Crim L R 781 (+Article 1994 Crim L R 272);

[1994] Crim L R 846 (HL); [1995] 2 AC 355

Law Com 143, 9.7 - 9.17

Sooklal [1999] 1 WLR 2o4

CLRC 14th Report, Part VI, pp 111 - 118

**Articles 1993 Crim L R 415; 426; 1994 Crim L R 272

****Law Com 218 pp 81-86



Essays

Should duress exculpate or mitigate?



What should we do with the drunken offender ?



What reforms, if any, would you recommend in the law of self defence ?



Is there any defence of mistake of fact?



How valid are the "McNaghton rules" today?



Problems

V is a doctor at a psychiatric hospital attached to a prison. He suffers from diabetes, for which he must take regular does of insulin. He knows that if, having taken insulin, he does not take adequate food he is liable to lose self-control and behave violently. On the day in question he takes insulin but does not take breakfast or lunch. he is working with two patients, W and X, both of whom have recently been acquitted of murder on grounds of insanity, when he suddenly loses self-control. He attacks them, killing W instantaneously and injuring X who struggles with V. An inexperienced but armed warden, Y, then comes upon the scene. Y assumes that W and X must have been attacking V and shoots at X intending to kill him. His first shot misses but strikes Z, another patient, who was walking past the window. Z dies as a result. Y's next shot kills X. What defences are open to V and to Y on charges of murder?



One evening Dylan meets Teresa, the sister of his girlfriend Vivien. Teresa tells Dylan that Vivien has told her of her great desire to have intercourse with him, but that Vivien is too shy to let him know. In fact Teresa is inventing this story, Vivien having said no such thing. Teresa further encourages Dylan to make efforts to overcome Vivien's shyness. The next evening Dylan goes out with Vivien. Having consumed six pints of lager in the course of the evening, Dylan escorts Vivien to her home. Vivien immediately goes to her bedroom to hang up her coat. Teresa then arrives home and urges Dylan to have intercourse with Vivien, saying that she knows that however reluctant Vivien may appear, she will enjoy being "taken by force". Teresa retires to her bedroom. Vivien returns to the lounge where Dylan has intercourse with her despite her every protestation. What defences (if any) are open to Dylan on a charge of rape? Would it make any difference to the outcome if Teresa had given Dylan a glass of lager (which she had secretly "spiked") before urging Dylan to have intercourse with Vivien ?