WALTERS V HUNT (1951) 2 AER

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1 1 DEFENCES INFANCY In Sierra Leone children under the age of fourteen (14) years are exempted from criminal responsibility. S 70 of the Child Rights Act 2007 provides in any judicial proceedings in Sierra Leone a child shall not be held to be criminally responsible for his action if he is below the age of fourteen (14) years. So children under fourteen years have absolute immunity, a conclusive presumption that the child is DOLI INCAPAX (incapable of committing a crime) even in the light of the clearest evidence that the child caused the Actus Reus with the requisite Mens Rea, he cannot be convicted for as long it appears that he had not at the time he did act attain the age of fourteen years in Sierra Leone. In the case of WALTERS V HUNT (1951) 2 AER 645, a husband and his wife were charged with receiving from their seven years old son a child s tricycle knowing it to have been stolen. They were acquitted on the grounds that since the child was incapable of stealing, the tricycle itself was not stolen. Children over fourteen years but under the age of eighteen are also doli incapax but in their case the presumption is rebuttable if it can be proved that not only that he caused the Actus Reus with the requisite Mens Rea but that the child did so with a mischievous discretion. Proof of mischievous discretion would involve showing at the time of doing the act the child knew that what he was doing was wrong. So the child hiding himself after committing a crime will suffice for proof of mischievous discretion. The younger the child the stronger the evidence required to proof mischievous discretion. In the case of R V YORK (1748), a boy of ten years was convicted of murder on evidence which shows that after killing a five years old girl, he had concealed the body and told lies about what had happened. R V GORRIE (1918) 83 JP REPORT 136, in that case a thirteen years old boy was charged with manslaughter of a schoolmate who had died from a trifling stab wound with a pen knife. Salter J told the jury that they must be satisfied that when the boy did this, he knew he was doing what was wrong and not merely what was wrong, but what was gravely wrong. Children under 14 are incapable of committing rape as first degree offenders. This is a conclusive presumption even though they can be liable for aiding and abetting rape. R V ELDERSHAW (1828) 3 CP 396, R V RAM V RAM (1893) 17 COX 609, in that case it was held that only a man can commit rape as principal offender, although a woman can be guilty as an aider and abettor to the rape.

2 2 According to s1 of the Child Rights Act no. 7 of 2007 a child is defined as any person under 18 (eighteen). INSANITY The defence of insanity is basically a condition of the mind of the accused at the time of commission of the offence. To succeed on the defence of insanity, at the commission of the crime, the accused must be suffering from a disease of the mind. It is for the accused to raise the defence of insanity at trial and convince the court on a balance of probability that at the time of committing the offence, he was suffering from a disease of the mind. When an accused relies rather on the defence of automatism, it was for the prosecution to prove that the accused was indeed insane and not merely suffering from temporary depression. In BRATTY V AG FOR NORTHERN IRELAND (1963) where it was held that the old notion that only the defence can raise the defence of insanity is now gone. The prosecution is entitled to raise it and it is their duty to do so rather than allow a dangerous person at large. The prosecution must prove the Actus Reus of the offence. In ATTORNEY GENERAL S REFERENCE NO. 3 (1998) QB 401 it was held that if the prosecution fails or is unable to prove that the accused did the act or made the omission charged, the accused is entitled to a complete acquittal on the grounds of non-proof of actus reus. Where are defence of insanity is successful at trial, that is it is proven that the accused was at the time of commission of the offence was insane, a verdict of not guilty by reason of insanity is returned. Pursuant to section 73(1) of the Criminal Procedure Act (1965), where it appears to the court that a person committed a criminal offence due to a disease of the mind, that insane person, under the act must be kept in custody as a criminal lunatic in some place and such manner as the court shall direct. The rules relating to the defences of insanity were laid down in the case of THE QUEEN V DANIEL M NAGHTEN (1843). Daniel M Naghten intending to kill the Prime minister Sir Robert Peel killed his secretary by mistake. At the court below, he was acquitted for murder on the grounds of insanity and this provoked a debate on the issue of insanity in The House of Lords to which the Judges submitted a number of questions. The answer to those questions became the famous M Naghten rules which have so far been accepted and acted upon by the courts. The basic propositions of law are to be found in the answers to question 2 and 3 where Their Lordships said The jurors ought to be told in all cases that every man is presumed sane and possess a sufficient degree of reason to be responsible for his crimes until the contrary is proved to their satisfaction and that to establish a defence on the grounds of insanity, it must be clearly proved that at the time of committing of the act, the party accused was labouring under such a defect of reason from a disease of the mind as not to know the nature and quality of the act he was doing, or if he did know, he did not know that what he was doing was wrong the question is whether the accused was

3 3 suffering from a defect of reason due to a disease of the mind. If the accused is unaware of the nature and quality of his act he will usually be entitled to a simple discharge on the ground of lack of necessary mens rea. The onus of proof of mens rea will be on the prosecution. If the accused tenders evidence of a defect of reason arising from a disease of the mind, then the onus of proof will shift from the accused. DISEASE OF THE MIND: whether a particular condition amounts to a disease of the mind within the rules is not a medical but legal question to be decided with the ordinary rules of interpretation. According to Lord Denning in BRATTY, he said any mental disorder which has manifested itself in violence and is proved to recur is a disease of the mind disease of the mind is basically malfunctioning of the mind over periods of time. In R V Kemp (1957) The Court of Appeal said that the law is not concerned with the brain but the mind. DEFECT OF REASON: the disease of the mind must have given rise to defect of reason. It is not enough to say you were absent minded or that you failed to use your powers of reasoning inherent in you. It does not matter whether the defect of reason was temporary or permanent. In R V Sullivan (1984) AC 1156 a defendant was treated as suffering from defect of reason when in fact he was suffering from epilepsy or epileptic fit (a temporary state). The defendant was charged with inflicting grievous bodily harm on P. at trial he admitted the act but asserted by way of defence that he had done so while in an epileptic seizure. The trial judge held that this amounted to a defect of reason due to insanity rather than automatism. He then changed his plea to assault occasioning actual bodily harm (Section 47 of The Offences against the Person s Act). In R V QUICK & PADDISSON (1973), The appellant a diabetic and psychiatric nurse was charged with assaulting a patient at the hospital where he had worked, he said he could not remember the incident but that on the day it occurred he had taken his prescribed insulin, a small whisky, a quarter of rum and had to lunch. Medical evidence showed he was suffering at the time from hypoglycaemia a deficiency of blood sugar after injection of insulin. The judge said the only the only defence open the accused was insanity. The issue on what is meant by defect of reason from a disease of the mind as within the M Naghten rules was considered. That is, whether a person who commits a criminal act while suffering from hypoglycaemia can raise the defence of automatism as the appellant submitted was possible or whether such a person must rely on the defence of insanity if he wishes to relieve himself from responsibility from his acts. Lawton J a self-induced incapacity will not excuse one when it could have been reasonably foreseen as a result of either doing or omitting to do something, e.g. Taking alcohol against medical advice after using certain prescribed drugs or failing to have regular meals while taking insulin Quick s automatic state was appears to be self-induced by not eating or taking a lump of when the first signs of hypoglycaemia manifested themselves. Although his conviction was quashed because his

4 4 defence of automatism was not left to the jury, the case appeared to rule out automatism where it was self-induced. The phrase nature and quality of the act refers to the physical nature and quality of the act and not the moral or legal quality. So looking at M Naghten physical act was that he killed a life in being and that what is important not his mistake as to whom he killed. He knew he was killing a human being, so he knew the nature and quality of his act. R V CODERE (1916) 12 Cri App Rep 21, Defendant murdered his wife by cutting her throat, thinking it was a loaf of bread. Defendant argued insanity.. At trial, expert witnesses had disagreed on whether he could be certified as insane. According to the M'Naghten rules (see R v McNaughton 8 E.R. 718) an insanity defence requires proof that the accused did not appreciate nature and quality of the act committed or, did not know what he was doing was wrong. Therefore, if it is clear that the accused was aware that the act was wrong and contrary to the law of the land then he is liable to be punished. On appeal, counsel for C argued that C s conduct before and after the murder, as narrated by various witnesses, pointed to the conclusion that he was not aware that the act was wrong. As C was incapable of understanding the heinousness of his actions it was argued that the defence of insanity should apply. The Court considered the meaning of the words nature and quality in the M Naghten rules and held that the Court in that case did not intend to distinguish between the physical and moral aspects of the act. If C understood the physical nature of the act it then ought to be considered whether he knew it was wrong. If he was aware that the act was wrong in law then he could be considered aware that he ought not to do it. On the available evidence, the Court held that whilst it was clear that C was abnormal mentally there was sufficient evidence that he was conscious that the act was wrong and contrary to law. The appeal was accordingly dismissed. Lord Reading: '... If the accused does know either that his act is morally wrong according to the ordinary standard adopted by reasonable men or that it is legally wrong then it cannot be said that he does not know he was doing what was wrong...'. The knowledge that the act is wrong, here we are not concern about whether or not the accused is able to distinguish between right and wrong in general but whether he was able to appreciate that what he was doing was wrong at the time he was doing it. It is clear that if the accused knew at the time of committing the act that his act was contrary to law then he knew it was wrong for that purpose. AUTOMATISM Liability for the conduct of an accused under the criminal law will only arises where that said conduct is willed or voluntary with the requisite mens rea. So where the accused is charged

5 5 with a criminal offence, to succeed on a defence of automatism he must prove that he was not in control of his bodily movement at the time of committing the offence. In BRATTY V A.G. OF NORTHERN IRELAND (1963), Lord Denning stated no act is punishable if it is done involuntarily and an involuntary act in this context means an act which is done by the muscles without the control of the mind, or an act done by a person who is not conscious of what he is doing. It is to be observed that in criminal law, an act is not to be regarded as an involuntary act simply because the actor does not remember it, nor is an act to be regarded as an involuntary act simply because the doer could not control his impulse to do it. For the defence of automatism to succeed there must be a total loss of bodily control during the commission of the prohibited act. BROOM V PERKINS (1987) where the accused got himself into a low blood sugar state; hyperglycaemia during which period he drove himself home from work in a very erratic manner and hit another car after which he could remember nothing about the journey. Seeing the damage to the car, he reported himself to the police. It was held that since the accused was able to exercise some voluntary control over his car, he had not been acting entirely involuntarily. Even in the light of medical evidence that it was possible for him to have been moving involuntarily, he failed on the defence of automatism. The principles of law in Broom V Perkins was adopted in the case of Attorney General s Reference No. 2 (1992) where whilst driving a lorry the accused crashed into a car and killed two people. The court held that his being in a trance like state (reduced awareness) while driving did not amount to automatism. So we see how the state of the mind is in respect to criminal liability. SELF-INDUCED AUTOMATISM Where the accused does something or fails to do something which results in a temporary state of unconsciousness, his automatism is said to be self-induced, which said condition cannot give success to a defence of automatism. For example, A gets involved in a criminal act because he is high on prohibited substance which has sedative (soporific) effect. Where for example an accused takes an unprescribed, example Valium medication to which he reacts and which said reaction he did not expect. The defence of automatism may be said to be available to such a person R V BAILEY (1983) 2 AER 520 in that case, the appellant was charged with wounding with intent and an alternative count of wrongful wounding (sections 18 and 20 of the offences against the persons act 1861). His defence was automatism caused by hyperglycaemia which was due to his failure to take sufficient food after taking insulin although he had taken some sugar and water. He claimed accordingly that he lacked the specific intent required for the purpose of section 18 and the basic intent required for section 20 (OAPA 1861). The judge directed the jury that the defendant s incapacity was self-induced. He could not plead automatism. He

6 6 was convicted of causing grievous bodily harm with intent contrary to section 18 (OAPA 1861). His appeal was dismissed. The Queen V Daniel M Naghten: In January 1843, at the parish of Saint Martin, Middlesex, Daniel M Naghten took a pistol and shot Edward Drummond, who he believed to the British Prime Minister Robert Pell, wounding him fatally. Drummond died five days later and M Naghten was charged with his murder. He pleaded not guilty by reason of insanity. At trial, evidence was given of the shooting of Drummond and witnesses were called on the behalf of the defendant, M Naghten, to attest to the fact he was not in a sound state of mind at the time of committing the act. Some of the witnesses who gave this evidence, had previously examined M Naghten, whilst others had not seen him prior to the trial and, and they formed their opinion on hearing the evidence given by other witnesses. The medical evidence brought forward stated that persons of otherwise sound mind, might be affected by morbid delusions and that M Naghten was so affected. A person labouring under such delusion, might usually possess a moral perception of right and wrong, but in relation to acts connected to their delusion may be carried beyond power of their own control leaving them with no such perception. Accordingly M Naghten was not capable of exercising control over his acts whilst under his delusion. Due to the nature of M Naghten s condition these delusions went on gradually until they reached a climax, ending with Drummond being shot. Evidence brought before the Court about the condition from which M Naghten suffered stated that a man may go on for years quietly whilst under the delusion s influence, but had the potential break out into extravagant and violent paroxysms. In relation to the charge against M Naghten, Lord Chief Justice Tindal stated that the question to be determined is, whether at the time the act in question was committed, the prisoner had or had not the use of his understanding, so as to know that he was doing a wrong or wicked act. If the jurors should be of opinion that the prisoner was not sensible, at the time he committed it, that he was violating the laws both of God and man, then he would be entitled to a verdict in his favour: but if, on the contrary, they were of opinion that when he committed the act he was in a sound state of mind, then their verdict must be against him. M Naghten was found not guilty. Following this, a panel of Judges attended the House of Lords and had a series of hypothetical questions on the topic of insanity put before them. The Issues raised were the hypothetical questions about insanity the judges had to address were as follows: (1) What is the law respecting alleged crimes committed by persons afflicted with insane delusion, in respect of one or more particular subjects or persons: as, for instance, where at the time of the commission of the alleged crime, the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit? (2) What are the proper questions to be submitted to the jury, when a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for example), and insanity is set up as a defence? (3) In what terms ought the question to be left to the jury, as to the

7 7 prisoner's state of mind at the time when the act was committed? (4) If a person under an insane delusion as to existing facts, commits an offence in consequence thereof, is he thereby excused? (5) Can a medical man conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial and the examination of all the witnesses, be asked his opinion as to the state of the prisoner's mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was conscious at the time of doing the act, that he was acting contrary to law, or whether he was labouring under any and what delusion at the time? It was Held that in response to these questions the Judges formulated the M Naghten Rules (1843) 4 St. Tr. (N.S.) 847. These provide the legal definition of insanity. They provide that a defendant wishing to rely on the defence of insanity must show that: (a) They laboured under a defect of reason (b) Caused by a disease of the mind; so that either (c) He did not know the nature and quality of his acts, (d) or that he did not know what he was doing was wrong. House of Lords stated: '.. That if the accused was conscious that the act was one which he ought not to do; and if the act was at the same time contrary to law, he is punishable. In all cases of this kind the jurors ought to be told that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction: and that to establish a defence on the ground of insanity, it must be clearly proved that at the time of committing the act the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or as not to know that what he was doing was wrong...'. R V QUICK & PADDISON (1973): The appellant (a nurse at a hospital) was a diabetic who suffered from hypoglycaemia (low blood sugar). He had taken insulin in the morning for his condition but had not eaten much during the day and had imbibed alcohol. This lead to an episode in which he blacked out and attacked his victim, who suffered black eyes, bruising and a fractured nose. He later passed out and denies any recollection of the events. At trial he was charged with assault occasioning Actual Bodily Harm contrary to s.47 Offences against the Person Act 1861 and was convicted. He had attempted to rely on the defence of automatism, but the trial judge ruled that only the defence of insanity would be available. On Appeal, the issue was whether a hypoglycaemia sufferer can rely on the defence of automatism or whether only the defence of insanity is available for this condition. It was held that a sufferer of hypoglycaemia can rely on the defence of automatism because the associated episodes (and the one in this case) are caused by the insulin (or lack thereof) which is an external factor, rather than by the diabetes, which is an internal factor. Therefore the conviction was quashed. No defence would be available for self-induced hypoglycaemia however. A sufferer of hyperglycaemia on the other hand would have to rely on the defence of insanity as episodes associated with that condition are caused by naturally occurring high blood pressure.

8 8 R V SULLIVAN (1984) AC 156: The defendant, a psychomotor epilepsy sufferer, had an epileptic seizure during which he kicked the victim in the head violently. He was charged with causing Grievous Bodily Harm contrary to sections 18 and 20 of the Offences Against the Person Act He pleaded not guilty to those charged but upon taking advice from counsel, pled guilty to Assault occasioning Actual Bodily Harm contrary to s.47 Offence Against The Person Act 1861 and was convicted of the offence. At trial evidence was adduced, which was accepted, that the defendant did not recall the incident; further, two medical experts gave evidence that the defendant s attack on the victim most likely occurred during the postictal stage of the epileptic seizure, at which stage a sufferer makes automatic movements without being conscious of them. The trial judge ruled that the appropriate defence in this case is insanity and not automatism. The issue for the appeal court was whether epilepsy amounted to a disease of the mind within the meaning of R v M Naghten (1843) 8 ER 718 and therefore whether insanity is the correct defence for epilepsy sufferers. The court agreed with the trial judge s assessment that epilepsy is a disease of the mind and that therefore the correct defence is one of insanity. Epilepsy is not caused by an external influence, but is rather an internal illness, which affects the mind, hence bringing it under the M Naghten definition. Lord Diplock: '. If the effect of a disease is to impair these faculties so severely as to have either of the consequences referred to in the latter part of the rules, it matters not whether the arteriology of the impairment is organic, as in epilepsy, or functional, or whether the impairment itself is permanent or is transient and intermittent, provided that it subsisted at the time of commission of the act...'. R V BAILEY (1983) 2 AER 503: The appellant (B) was convicted of wounding with intent. He claimed the defence of automatism caused by hypoglycaemia as a result of failing to take food after a dose of insulin. At trial, the jury were directed to disregard the automatism defence as it does not apply to self-induced incapacity. B appealed on grounds that the jury had been misdirected at trial as regards the mental element involved in the inducement of automatism. As was established in R V MAJEWSKI [1977] AC 443, self-induced intoxication negates a defence of automatism in basic intent cases. Individuals who consume alcohol or drugs to excess may be able to foresee the risk of causing harm to others. The key issue was whether this could be extended to a diabetic individual in B s circumstances. The Court noted that it is not common knowledge, even amongst diabetics such as B, that a failure to ingest food after taking insulin will result in aggressive behaviour. Thus, self-induced automatism, other than that due to taking alcohol or drugs, may provide a defence to crimes of basic intent. The question in each individual case will be whether the prosecution have proven the necessary element of recklessness. The jury in B s case were given no direction regarding recklessness and so were misdirected. Nevertheless, B did not provide a sufficient basis for the defence and even if he had done, a properly directed jury would have rejected it. There

9 9 was substantial evidence that he had armed himself purposefully in order to carry out the attack. Accordingly, the appeal was dismissed. R V KEMP (1957) 1 QB 399: The defendant assaulted his wife with a hammer. He had no previous history of violence and no apparent motive. He was charged with causing grievous bodily harm contrary to the Offences Against the Person Act The defendant argued that the attack was the result of loss of consciousness linked to arteriosclerosis, with the hardening of the arteries causing congestion of blood in his brain. This was used by the defence as grounds for a defence of automatism. The trial judge however directed the jury that the appropriate defence was one of insanity. The issue before the appeal court was whether the trial judge had correctly directed the jury that insanity is the appropriate defence in this case and more broadly whether the M Naghten disease of the mind test can apply to physical conditions as well. The court held that hardening of the arteries could amount to a disease of the mind due to its effect on a person s reasoning ability. Essentially the court was not concerned with how a defendant got to a certain state of mind (through a physical or psychological impairment), but that he reached that state and was in it at the time of committing the offence. The term disease of the mind was designed, inter alia, to limit the effect of the term defect of reason so as not to permit stupidity to act as a defence. The trial judge had therefore been correct in directing the jury that the appropriate defence is insanity and not automatism. Devlin: '.. In my judgment the condition of the brain is irrelevant and so is the question of whether the condition of the mind is curable or incurable, transitory or permanent. There is no warrant for introducing those considerations into the definition in the M Naghten Rules. Temporary insanity is sufficient to satisfy them. It does not matter whether it is incurable and permanent or not...'. R V DICKIE (1984) 1 WLR 104: A judge might only raise an issue of insanity and leave it to the jury where there was appropriate medical evidence and where he ensured that counsel were given opportunity to call necessary evidence. INTOXICATION Intoxication is normally caused by the intake of alcohol or drugs or a combination of both. Generally, voluntary intoxication would not afford an accused a defence to criminal responsibility. Where the intoxication is involuntary, the accused can succeed on a defence of intoxication. For example, where A s ginger beer is laced with alcohol. Where an accused raises the defence of drunkenness, he does so to show that he did not have the necessary

10 10 mens rea and that he did not foresee the result of his conduct or was not aware of the circumstances as the case may be. In many cases where drunkenness is a relevant, the defence raises is mistake and the evidence of the accused being drunk is circumstantial evidence that the mistake was made. An example quoted by Lord Denning is where a nurse got so drunk at a christening that she puts the baby on fire in mistake of a log of wood, or where a drunken man thought his friend lying on the bed was a dummy and stabbed him to death. The evidence of drunkenness in such cases makes the mistake much more credible and could reduce the conviction manslaughter. If he had the mens rea required for the crime, he is guilty even though the drink impaired his ability to judge between right or wrong. Dutch courage Problem: this is also known as voluntary intoxication. If a person drinks alcohol to give himself dutch courage to commit an offence, can he rely on his intoxication in defence to support a plea that when he committed the offence he was so drunk that he did not form or was incapable of forming the necessary intent. IN ATTORNEY GENERAL FOR NORTHERN IRELAND V GALLAGHER (1963) AC 349 in which the defendant having decided to kill his wife bought a knife and a bottle of whisky. He drank much of the whisky and then killed his wife with the knife. He pleaded insanity and in the alternative pleaded automatism as a defence. He said that at the time of commission of the offence he was by reason of drink, incapable of forming the intent required for murder at the time he did the act and therefore could only be charged for manslaughter. The court of Criminal appeal allowed the appeal on the grounds that the judge misdirected the jury to apply the M Naghten rules to the defendant s state of mind at the time when the actual murder was committed. For the M Naghten rules, the crucial time must be at the time the act was committed. It is clear in the Gallagher case that the Defendant had mens rea and that he was not insane. Lord Denning said If a man whilst sane and sober forms an intention to kill and makes preparation for it knowing it is a wrong thing to do and then gets himself drunk so as to give himself Dutch courage to do the killing and whilst drinking carries out his intention, he cannot rely on the self-induced drunkenness to a charge of murder, nor even reducing it to manslaughter. He cannot say that he got himself into such a stupid state that he was incapable of intent to kill. The wickedness of his mind before he got drunk was enough to condemn him coupled with the act which he intended to do and did do it. It has been said that involuntary drunkenness is a defence as for example, where the accused person s friend put alcohol in his juice. This means that if actus reus and mens rea is proven against such a person, he will still have a defence. It is for him to show that he would not have committed the act the act but for the alcohol. DPP V MAJEWSKI: The defendant took a cocktail of drink and drugs and, whilst intoxicated, assaulted pub landlord. He said that he did not know what he was doing, and had no mens rea, that self-induced intoxication could be a defence to a charge of assault, and that the

11 11 judge had misdirected the jury on the issue. The appeal failed. Whilst it is not blameworthy to do something involving a risk of injury to another if one genuinely does not perceive the risk, self-induced intoxication which destroys such a perception is not a sufficient defence in law. A specific intent requires something more than contemplation of the prohibited act and foresight of its probable consequences. The mens rea in a crime of specific intent requires proof of a purposive element. The intoxication was the defendant s own voluntary and reckless act, and set a mens rea for crimes of basic intent. DPP V BEARD: The accused raped a girl aged thirteen whilst he was drunk. He placed his hand over her mouth to stop her screaming, but without any intention of injuring her. He caused her death by suffocation, and was convicted of murder. It was argued on his behalf that the trial judge had misdirected the jury by not telling the jury that if they were of opinion that the violent act which was the immediate cause of death was not intentional, but only accidental, they should return a verdict of manslaughter. The appeal failed. Lord Birkenhead LC said: `the prisoner killed the child by an act of violence done in the course or in the furtherance of the crime of rape, a felony involving violence. The Court [of Criminal Appeal] held that by the law of England such an act was murder. No attempt has been made in Your Lordships House to displace this view of the law and there can be no doubt as to its soundness. Accordingly, in their Lordships opinion there is no substance in the first argument on behalf of the appellants. and Under the law of England as it prevailed until early in the 19th century voluntary drunkenness was never an excuse for criminal misconduct; and indeed the classic authorities broadly assert that voluntary drunkenness must be considered rather an aggravation than a defence. This view was in terms based upon the principle that a man who by his own voluntary act debauches and destroys his will power shall be no better situated in regard to criminal acts than a sober man. and The decisions cited: establish that where a specific intent is an essential element in the offence, evidence of a state of drunkenness rendering the accused incapable of forming such an intent should be taken into consideration in order to determine whether he had in fact formed the intent necessary to constitute the particular crime. If he was so drunk that he was incapable of forming the intent required he could not be convicted of a crime which was committed only if the intent was proved... In a charge of murder based upon intention to kill or to do grievous bodily harm, if the jury are satisfied that the accused was, by reason of his drunken condition, incapable of forming the intent to kill or to do grievous bodily harm he cannot be convicted of murder. But nevertheless unlawful homicide has been committed by the accused, and consequently he is guilty of unlawful homicide without malice aforethought, and that is manslaughter: per Stephen J. in Doherty s case (16 Cox C.C. 307). He concludes the passage: the law is plain beyond all question that in cases falling short of insanity a condition of drunkenness at the time of committing an offence causing death can only, when it is available at all, have the effect of reducing the crime from murder to manslaughter.

12 12 R V LETENOCK (1917) 12 CAR 221 Doherty (1882) 16 COX 306 IN R V PORDAGE [1975] CRIM LR 575, the court held that the key question to be asked was, taking into account the defendant's intoxicated state, did he form the necessary specific intent? R V Durante (1972) 1 kb 373: MISTAKE If A with the intention shoots and kills B, he is guilty of murder and it could not be a defence for him to say that he did not know that shooting or killing another is forbidden by criminal law. The defence of mistake is simply a denial of mens rea for a crime with which a person is charged. Generally, ignorance of the law is no excuse. In R V Bailey, the captain of a ship did not know that an act of parliament had been passed on the 18 th of May 1779 prohibiting shooting at sea. Notwithstanding his ignorance of the law, he was still charged, convicted and sentenced to prison. His ignorance was used as a mitigating factor for leniency in sentencing. It is a rather traditional maxim that everyone is presumed to know the law. DPP V MORGAN (1976) AC 182: The defendant was a Royal Air Force Pilot and he had invited his friends over to have sexual intercourse with his wife. He told them that any signs of struggle were not to be seen as a lack of consent and that she enjoyed it. The men were convicted of rape, while Morgan was convicted of aiding and abetting his wife s rape. The men had argued that they had the honest belief that the complainant had consented to sexual intercourse. The defendant appealed on the direction of the trial judge. The issue in this case was concerning whether there could be a conviction for rape if the defendant honestly believed that the woman consented to sexual intercourse, if his belief was not based on reasonable grounds. It was held that as long as a belief was genuine and honest pertaining to consent, it did not have to be a reasonable belief for a defence to rape. The focus was on the mens rea of rape; there had to be an intention to commit the crime, as well as a lack of consent. There was a requirement to know the woman had not consented or reckless to whether she did. Despite this decision, the conviction was upheld, as no reasonable jury would have found them not guilty, even if directed correctly by the judge. The complainant had clearly communicated her lack of consent for sexual activity in this case. ALBERT V LAVIN (1982) AC 506: The defendant (A) and the prosecutor (L), an off duty constable not in uniform, awaited a bus. A pushed past the queue, whose members objected. L stood in his way. A pushed past onto the step of the bus, turned, grabbed L s lapel and made to hit him. L in self defence pulled A from the bus and away from the queue.

13 13 A again tried to hit L, who said he would arrest him unless he stopped struggling, but A struck the constable several times and the constable arrested him for assaulting a constable in the execution of his duty. Before the justices, the defendant contended that L had not been acting in the execution of his duty. The magistrates convicted A because, given the reactions of the other members of the queue when the defendant pushed past, L had reasonably expected a breach of the peace to be about to take place and so he had been entitled to use reasonable force to prevent the breach of the peace. A constable could detain a man against his will without arresting him. The court addressed the question whether the defendant knew or should have known that L was a constable. Hodgson J said: It is however clear law that a police officer, reasonably believing that a breach of the peace is about to take place, is entitled to take such steps as are necessary to prevent it, including the reasonable use of force: King v Hodges [1974] Crim LR 424 and Piddington v Bates [1961] 1 WLR 162. If those steps include physical restraint of someone then that restraint is not an unlawful detention but a reasonable use of force. It is a question of fact and degree when a restraint has continued for so long that there must be either a release or an arrest, but on the facts found in this case it seems to me to be clear that that point had not been reached. Obviously where a constable is restraining someone to prevent a breach of the peace he must release (or arrest) him as soon as the restrained person no longer presents a danger to the peace. In this case the justices found that the defendant continued in breach of the peace up to the time when he assaulted the constable. R V TOLSON (1889) 23 QBD 168: The defendant appealed against her conviction for bigamy, saying that she had acted in a mistaken belief. It was held man commits bigamy if he goes through a marriage ceremony while his wife is alive, even though he honestly and reasonably believes she is dead. At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which a prisoner is indicted an innocent act has always been held to be a good defence. This doctrine is embodied in the somewhat uncouth maxim actus non facit reum, nisi mens sit rea. Honest and reasonable mistake stands on the same footing as absence of the reasoning faculty, as in infancy, or perversion of that faculty, as in lunacy.. So far as I am aware it has never been suggested that these exceptions do not equally apply in the case of statutory offences unless they are excluded expressly or by necessary implication. Stephen J said: The mental element of most crimes is marked by one of the words maliciously, fraudulently, negligently, or knowingly, but it is the general I might, I think, say, the invariable practice of the legislature to leave unexpressed some of the mental elements of crime. In all cases whatever, competent age, sanity, and some degree of freedom from some kinds of coercion are assumed to be essential to criminality, but I do not believe they are ever introduced into any statute by which any particular crime is defined. And Mens rea means in the case of rape, an intention to have forcible connection with a woman without her consent. As to the element of mens rea he said: Though this phrase is in common use, I think it most unfortunate, and not only likely to mislead, but actually misleading, on the

14 14 following grounds. It naturally suggests that, apart from all particular definitions of crimes, such a thing exists as a mens rea, or guilty mind, which is always expressly or by implication involved in every definition. This is obviously not the case, for the mental elements of different crimes differ widely. Mens rea means in the case of murder, malice aforethought; in the case of theft, an intention to steal; in the case of rape, an intention to have forcible connection with a woman without her consent; and in the case of receiving stolen goods, knowledge that the goods were stolen. In some cases it denotes mere inattention. For instance, in the case of manslaughter by negligence it may mean forgetting to notice a signal. It appears confusing to call so many dissimilar states of mind by one name. Stephen J. concluded: The principle involved appears to me, when fully considered, to amount to no more than this. The full definition of every crime contains expressly or by implication a proposition as to a state of mind. Therefore, if the mental element of any conduct alleged to be a crime is proved to have been absent in any given case, the crime so defined is not committed; or, again, if a crime is fully defined, nothing amounts to that crime which does not satisfy that definition. Section two (2) talks about simple Larceny, it says Stealing for which no special punishment is provided under this or any other Act for the tune being in force shall be simple larceny and a felony punishable with penal servitude for any term not exceeding five years, and the offender, if a male under the age of sixteen years, shall be liable to be once privately whipped in addition to any other punishment to which he may by law be liable. If ignorance of the law is accepted as a defence, it will leave the floodgates open. The existence of this rule makes it compelling for the state machinery to popularize such laws. In Sierra Leone, it is done through the gazette or such institutions. Ignorance e of the law is no excuse applies strictly in our jurisdiction, but in other jurisdictions for e.g. Germany and France, the rule has been modified. Unavoidable ignorance of the law is allowed by the courts as a defence. The defence was canvassed in the old English case of BURNS V NOELL (1880) 5 QBD 454 where the defence of an unavoidable ignorance of the law was canvassed in a German court. There are exceptions to that general rule, for e.g. Insanity and children who are immune from criminal responsibility because these persons cannot be presumed to know the law. There is a general principle of administrative law that delegated legislation or public notices ought to be published. They are made by enabling acts. In JOHNSON V SERGEANT & SONS (1918) 1 KB 101, it was held that ignorance of the law is a defence where a public notice was not published. Ignorance of the civil law i.e. law relating to property, contract or tort is different from ignorance of the criminal law, one can raise and succeed on the defence of ignorance or mistake of the civil law. For offences that require mens rea and such mistakes of the law goes towards negativing the mens rea.

15 15 In larceny, the claim of right should be a legal one not a moral right. This is according to section 1(1) of the Larceny act of 1916 which says: A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof: Provided that a person may be guilty of stealing any such thing notwithstanding that he has lawful possession thereof, if, being a bailey or part owner thereof, he fraudulently converts the same to his own use or the use of any person other than the owner. In ROSE V MATT (1951) 1 KB 810, defendant keen on airplane models, he persuaded shop keeper to accept a clock as security for the debt. He then comes back and puts the clock in his pocket and disappears with it. Had he stolen it? He owned it but gave a right of possession to hold it as security to money own. So he was stealing something that all the other rights belonged to him. It's simple, so you can steal goods that you mostly own. But if you own every single right including temporary possession, and no one else has rights you can do whatever you like. If no one has any interests, it's yours. The taking away or appropriation of another s property will amount to stealing if it is done without a claim of right made in good faith. That is to say the property was taken dishonestly and with an intention of permanently depriving the owner. So we see that sometimes, the mens rea of an offence is so defined as to require absence of a claim of right for e.g. if an accused believes that he has the right to do the act in question, he cannot be said that he has any mens rea and therefore cannot be guilty. This defence will prevail even if the accused defence is mistaken. The burden of proof of the mistake remains on the accused and it is for the prosecution to rebut there was any mistake. Mistake of fact is distinguished from a mistake of law be it civil or criminal law. A fact is something that is perceived by the senses for e.eg. A wedding ceremony is a fact because it is seen, whether or not it is legal is quite another story. Another example will be possession which can be factual or legal for e.g. Mary is holding on to a criminal law book. Whether or not it is hers is a question of law. Where the mistake of fact is pleaded in a criminal trial it is in order to negative the mens rea of the offence with the exception of strict liability offences. In DPP v Morgan, according to this case, it was held that where an offence is so defined that the mens rea of intention or recklessness is an element, a mistake of fact may negative that mens rea irrespective of whether the mistake of fact is relevant or not Albert v Lavin, R v Tolson, R V WHEAT (1921) 2 QB 11 held that a belief reasonably and in good faith that the accused person had been divorced, when in fact he has not been divorced, affords no defence to a charge of bigamy DURESS

16 16 It is agreed among lawyers that criminal responsibility should follow where an individual chooses to perform an act proscribed by the criminal law where he has both the capacity and fair opportunity to adjust his behaviour or conform with the law. It follows that no individual should be held responsible if he had no opportunity to choose an alternative to breaking the law. In ATTORNEY GENERAL V WHELAN (1934) LR 518, where it was held that threats of immediate death or serious personal violence so great as to overbear the ordinary powers of his resistance should be accepted as a justification for acts which would otherwise be criminal when an accused pleads the defence of duress, he basically admits that he had a choice but basically chose to commit the act with which he was charged. He claims to be excused from liability for deliberately doing what would otherwise be criminal. The accused may say that he had no choice, but this may not be strictly true. What he means is that his courage and will where not strong enough to take that course. Under the defence of duress, the accused basically denies he is responsible for his action. If A is threatened with a physical injury unless he assists in a criminal enterprise, he is faced with making a choice of assisting with the criminal enterprise or facing the consequences of not assisting. The question remains whether the accused has a fair opportunity to make a choice. In R V HUDSON & TAYLOR (1971) 2 QB 202, the defendant 17 and 18 were charged with perjury in a case in which they were witnesses to an unlawful wounding incident. Admitted to have given false evidence but raised the defence which took the form of threats that unless they did so, they would be cut up. They had no avenue of escape because those who threatened them were present in court during the trial. The recorder directed the jury that the defence of duress was not available to the boys since the duress was not imminent. On appeal, the crown contended the plea should have failed on the additional ground that they should have sought police protection before the trial. It was established that on a murder charge, the defence of duress was open to a person who is a principal in the second degree, and that imminent fear of death could be anticipatory. In DPP FOR NORTHERN IRELAND V LYNCH (1903) 1 KB 444, the appellant was a driver of a car which contained members of the IRA on an expedition in which they shot and killed a police officer. He pleaded hat he was not a member of the IRA, and believed he will be shot if he did not obey the leader of the group. The learned trial judge held that the defence of duress was not available to an aider and abettor of murder. At the court of criminal appeal, Lord Edmund Davies agreed that duress was a defence to a principal in the second degree to murder. His appeal was allowed and a retrial ordered. For the defence of duress, the compulsion must be sufficiently grave in the sense that it causes fear of death. In ABBOTT V QUEEN, the appellant was induced to take part in the murder of Gayle Benson under threat by one Malik that if he refused, he and his mother will be killed. The appellant pleaded duress on a charge of murder as a principal in the first degree. By a majority of 3/2,