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31 Cards in this Set

  • Front
  • Back

Defences onus

no onus on accused but does have evidential burden

two exceptions

mental disorder and diminished responsibility

must prove

special defences

alibi, mental disorder, incrimination and self defence

automatism and coercion

defence statements mad prior

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

Imminent Danger

acted to protect third party hma v carson

may make reasonable mistake Lieser v hma

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

proportionate force

lethal force permisible in lethal threat, or rape

Mcluskey v hma

excessive force Moore v Macduougall

accused starts fight

Carr v hma


CH conviction after Mrder charge

three conditions Drury v Hma

recognised provocation

immediate loss of control

ordinary person proportionality test

by infidelity

need not be married, relationship of fidelity

McCoy v HMA

confession must be clear and unequivocal

McCoy v hma

second and third conditions

2 loss of self control must immediately follow Drury

cumulative provocation not recognised Thomson v HMA


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


consciously weigh up conditions

Dawson v Dickson


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

does threat have to be to that person

must threat be one immediately

Ordinary person

HMA V docherty

trotter v hma

cochrane v hma

3 is it defence to murder

must not have risked t

collins v hma

thomson v hma

mental condition three defences

1 mental disorder

2 automatism

3 diminished responsibility

unfitness for trial

CPSA s53 f

mental disorder defence

Brennan v HMA

complete defence

accused had mental

unable to appreciate nature etc

a mental disorder

CPSA s307 1 adopts the definition

unable to appreciate nature or wrongfulness of conduct

Nature Simon Fraser

Wrongfulness HMA v Sharp

If plea successful

acquittal followed by exam of facts

if this alone decides beyond reasonable doubt , then court can make disposal


plea was accused in state of unconsciousness

share wrongful nature test

but if proved, no exam of facts


Ross v HMA

1total alienation of reason

2external factor caused

internal factor is mental disorder

automatism is external


automatism by scottish courts

Hyperglycaemia and hypo

excessive amount of glucose, i.e. diabetes, falls under metal disorder

low amount, falls under automatism

Macleod v Mathieson


which accused was not bound to foresee

ebsworth v hma

Diminished Responsibility

Partial Defence

CH charge

two conditions

An abnormally of mind

substantial impairment of the ability to determine or control actions

abnormality of mind

eg battered woman syndrome

can be drug dependancy etc Daniel v the queen


voluntary intoxication not defence Brennan

if so intoxicated no mens rea Ross v hma, can form automatism

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