1 .Compare and contrast the defences of Duress, Self Defence and Necessity.

2 .Compare and contrast insanity, diminished responsibility and automatism

Answer 1: To Begin with the defences of Duress, Self defence and Necessity are types
of affirmative defences. Which means they are able to negate liability even if all the
actus reus and mens rea elements are present. Usually in each cases the claim to
negate liability is when the action taken by the defendant was reasonably necessary to
save himself from the threat of harm. However in necessity it is not always required for
example in Re F [1990] where it was held that necessity also known as duress of
circumstances may be available where it is in the patients best interests and moreover
in exceptional cases where it is necessary and proportionate to avoid an ‘inevitable evil’.
Moreover both the Self defence and necessity are justificatory which means it will apply
where the accused admits they committed a criminal act but their actions can actions
can be justified ans therefore they should not be criminally culpable. On the other hand
duress is excusatory defence which means which means it applies where the defendant
could not have committed the offence due a lack of criminal intent or mens
reas.Furthermore Self –defence and duress involves actions taken by the defendant
because of the unreasonable threat of harm which means the defendant took action
against the victim because they felt that some harm the victim may cause to them
(Graham ,s.3 of the Criminal Act 1967).However Duress and Necessity have degrees of
overlap which involves the preventive measure taken involves an intentional killing , in
this scenario this is not a defence to defence to duress but it is like to be a defence for
necessity for example in the 9/11 terrorist plane scenario although there was intention
they were given defence to necessity.

In contrasting between these three defences there are many areas to distinguish
between them first of all duress is not available where the defendant is charged with
murder (Howe [1987]) or attempted murder (Gotts [1992]) whereas the necessity can be
available for murder and attempted murder. However in duress there is controversy
regarding the unfair victimization of an innocent person because of the conformity of law
where the defendant is excused because of the reasonable point of view. For necessity
the circumstances are so exceptional , so compelling that the defendant felt and so
would most people ,that the defendant was correcting in the way that he did (Dudley
and Stephens), so the action is excused because the action justified in the eyes of the
society rather than the defendant’s (D) point of perspective. So this is the vital difference
between duress and necessity. Moreover it is self-defence is also socially permissible
because as Article 2 of the European Convention on Human Rights (ECHR) guarantees
the right to life of a human being so under tis the person has the right to use force which
is no more than absolutely necessary in defence of any person from unlawful violence,
in order to effect a lawful arrest or prevent an escape, in action taken for the purpose of
quelling a riot. The other differences between duress, self defence and necessity is that
duress requires threat of death or serious injury (Hudson and Taylor [1971]) but self –
defence and necessity does not require threat of death or serious injury as necessity
requires the circumstances the D is involved in and self-defence requires the D needs to
believe that some unreasonable force might be used against them.

Lastly self-defence involves the crimes involving the use of force s.3 of the Criminal
Law Act 1967 states unlike necessity where it does not require use of force but what the
D thinks is reasonable to use for example over speeding in order to avoid accident is
likely to be a defence to necessity not self-defence.

To conclude these were the vital similarities between the defences of duress, self-
defence and necessity. Although these are different kinds of defences they have some
form of similarities and differences between them.

2. Answer: First of all to begin with the defences of insanity, diminished responsibility
and automatism are all criminal defences. In comparison they are all mental condition
defences as per the Hennessy, Quick and Coroners and Justice Act 2009 (CJA 2009).It
needs to show that due to mental conditions the defendant was unable to understand
what they are doing. They all affect the capacity of the human brain to understand the
nature and conduct and act of the defendant and lack the reasoning. Moreover their
operation is based on excuse if it is proven that the defendant will get defence under
this defences then there is likely to be no conviction on them. Furthermore they medical
evidence is necessary to prove these defences as in for insanity as per the M’Naghten
(1843) it needs to be shown that defendant had a disease of mind (R v Sullivan) and for
diminished responsibility also medical evidence is required ( Dix [1981]) , although the
availability of the defence is for the jury not the medical expert. Also Automatism also
requires medical evidence as always. On the other the hand insanity often requires that
the mental condition of the defendant affected their understanding of the nature and
quality of the conduct (R v Codere) and to understand what they were doing is legally
wrong (R v Windle, R v Johnson) and automatism also requires this as stated by Lord
Denning in ( Bratty v A.G for Northern Ireland) as the act done by the defendant (D) who
is conscious of what he was doing for the external caused the D’s mind to have no
control. However in case of diminished responsibility the defence can be established
without it as under s.52 (1)(a) the mental condition must impair the one of the three
abilities provided in that particular section.

In contrasting these defences firstly insanity requires a disease of the mind the definition
is legal one not a medical one I(R v Sullivan, R v Kemp) and the automatism requires
an external factor (R v Quick). However as per s.52 (1)(a) of the CJA 2009 for
diminished responsibility the d’s mental condition need to be medically recognized as
per World Health Organisation.Automatism is complete defence which means the D can
be fully acquitted however insanity is based on special verdict as it is a qualified
defence and diminished responsibility is a special partial defence which applies to
murder and the other two can be pleaded in relation of all crimes. There should prior
fault for automatism which even if the defendant had some fault which lead to
automatism he can plea under this but it does not apply for insanity (R v Clarke) and for
diminished responsibility voluntary intoxication cannot be recognized medical condition
as per Di Duca [1959] and Regina v Dowds (2012) however if there is connection
between the abnormality and intoxication it can suffice (Hill [2008]) although it will
depend upon the jury to decide (Stewart [2009]).

For the defences of diminished responsibility and insanity the burden of proof shifts to
the D which means the D needs to prove not guilty on the balance of probabilities
(Dunbar [1958]), however for automatism it is not required the prosecution needs to
prove beyond reasonable doubt that the D is at fault. On the other hand the defence off
diminished responsibility is a statutory defence applying only to murder and it only
applies to those charged with murder as principal or secondary offenders but not those
charged with attempted murder (Campbell [1997]).

To conclude these were the differences and similarities between these particular
defences of insanity, diminished responsibility and automatism.

SAME ANGEL (2)

Backup: There are two theories that justify punishment: retributivism according to which
punishment ensures that justice is done, and utilitarianism which justifies punishment
because it prevents further harm being done. The gist of the defense is that those who
do not freely choose to commit an offense should not be punished, especially in those
cases where the defendant's actions are involuntary. All three of these differences
concern mental abnormalities. Diminished responsibility is a partial statutory defense
and a partial excuse. Insanity and automatism are excuses and defences of failure of
proof. While automatism and diminished responsibility can only be raised by the
defendant, insanity can be raised by the defence or the prosecution. It can be raised by
the prosecution when the defendant pleads diminished responsibility or automatism.
The defendant may also appeal against the insanity verdict. With insanity and
diminished responsibility, the burden of proof is on the defendant. With automatism the
burden of proof is on the prosecution and they must negate an automatism claim
beyond reasonable doubt.
There are two types of automatism: sane and insane. Sane automatism is caused by an
external factor and insane automatism by an internal factor. Automatism occurs when
the defendant's conscious mind is not connected with the part of mind that controls
actions. Insanity can be used where a disease of mind prevented the defendant from
reasoning. Automatism and insanity excuse the defendant because his state of mind
was such that he cannot be regarded as responsible for his actions. Both of these
defences apply to all offences. Unlike automatism and insanity, diminished responsibility
may be caused by external or internal factors but these must be within s. 2 of the
Homicide Act 1957. Diminished responsibility is a statutory partial defence created by s.
2 and is a special defence to murder. Where successful, it reduces liability from murder
to manslaughter, removing the mandatory sentence (life imprisonment). Diminished
responsibility is successful where the defendant did not have the rational capacity to
order his actions according to rules, which must be due to an abnormality of mind.
Unlike the other two defences, diminished responsibility only impairs responsibility and
does not fully excuse it.

The courts make the distinction between external and internal causes for the purposes
of insanity and automatism in order to separate those who can be released and those
who cannot. This is because the two defences have very different results for the
defendant. Where successful, automatism results in an acquittal whereas insanity
results in a special verdict of 'not guilty by reason of insanity'. The insanity label carries
a certain stigma which may not be desirable for defendants suffering from normal
medical conditions such as diabetes, which are also included in the definition of
insanity. Diabetics who fail to take their medication and suffer from hypergylcaemia fall
under the definition of insanity. On the other hand, diabetics who have an adverse
reaction from their medication fall under automatism, since their inability to reason
arises from an external factor, namely the medication. The courts have moved away
from the medical definition of insanity towards a legal definition. This is demonstrated by
R v Sullivan, in which it was stated that 'any disease that affects the way the mind
reasons, remembers or comprehends is a disease of the mind'. Therefore the disease
needs to affect the functioning of the mind. There are two approaches to what
constitutes a disease of the mind. Kemp tells us that a diasease of mind is any disease
which affects the ability to reason. Bratty provides a more limited view, defining a
disease of mind as being any mental disorder which has manifested itself in violence
and is prone to recur is a disease of the mind.

Automatism will not be appropriate where the insanity verdict is appropriate. It also
cannot be used where there is self-induced incapacity or for strict liability offences. With
automatism there is no need to prove a mental disease. By contrast, insanity requires a
causal link between the mental disease and the offence. The M'Naghten case lays
down the rules of what constitutes insanity: At the time of committing the act, the
defendant was laboring under such a defect of reason, arising from a defect of mind,
that he did not know the nature and quality of his act or, if he did know this, that he did
not know that what he was doing was wrong. R v Clarke required an inability to reason
rather than a (temporary) failure to reason. Quick confirms that the insanity defence is
not appropriate for those whose condition is temporary, easily remediable and caused
by some external factor. By contrast, automatism can be raised where there is 'a
malfunctioning of the mind of transitory effect, caused by the application to the body of
some external factor, such as violence, drugs, including anaesthetics, alcohol and
hypnotic influences’. Unlike insanity, it is a temporary malfunctioning. There are three
requirements for automatism: complete loss of control, an external cause, and
automatism must not be self-induced. In Bratty v Attorney-General for NI, Lord Denning
states that automatism is satisfied by 'an act which is done by the muscles without any
control by the mind such as a spasm, a reflex action, or a convulsion; or an act done by
a person who is not conscious of what he is doing such as an act done whilst suffering
from concussion'. Insanity on the other hand does not require a complete loss of control,
but only a disease of the mind that allows the defendant to be excused. An insane
defendant is conscious of what he is doing but does not understand that it is wrong or
cannot stop himself from doing it.

The scope of insanity is relatively narrow. Diminished responsibility was introduced to

counteract the narrow M’Naghten rules which only give an excuse to those who killed
while suffering from severe mental illness which falls within those rules. Diminished
responsibility has been more popular than insanity since the judge has a discretion in
sentencing from absolute discharge to life imprisonment. Before 1991 the insanity
verdict included a mandatory indefinite confinement to a mental hospital at the Home
Secretary's discretion. Now the court has a wide-ranging discretion including absolute
discharge, guardianship and supervision. Although there seems to be little difference in
the courts discretion now, the insanity label still carries the certain stigma to it. The
scope of diminished responsibility is wider than insanity, since the defendant can rely on
the defence even if he is aware of what he is doing and that it is wrong, if his condition
reduced his capacity to understand and reason about whether the act was the right or
wrong thing to do, as long as this is due to a mental abnormality. In this way the scope
of it is also wider than automatism, which cannot be raised where there is a self-induced
incapacity. Automatism also requires a complete loss of control, which is not required
for diminished responsibility. With diminished responsibility, the abnormality has to
substantially impair the defendant's responsibility for the offence. The mental
abnormality needs to arise from a condition stated in Section 2(1): Where a person kills
or is a party to a killing of another, he shall not be convicted of murder if he was
suffering from such abnormality of mind (whether arising from a condition of arrested or
retarded development of mind or any inherent causes or induced by disease or injury)
as substantially impaired his mental responsibility for his acts or omissions in doing or
being a party to the killing. This however provides a rather wide scope for what can
consitute mental abnormality. In Byrne the abnormality of mind was interpreted to mean
a 'state of mind so different from that of ordinary human beings that the reasonable man
would term it abnormal.' It is a matter for the jury to decide whether the defendant's
condition falls within this criteria and they have a wide discretion to use their
commonsense. Since medical experts are used to determine what the defendant's
condition was, this leaves the defendant at the hands of the jury and the medical
experts when his condition is being determined.

As a conclusion, diminished responsibility arose to counteract the narrow M'Naghten

rules of insanity. Although it seems to have a wider scope than insanity, it can only be
used as a defence to murder and requires an abnormality of mind. Automatism does not
require a disease of the mind but requires complete loss of control. Diminished
responsibility is a more desirable defence to the defendant, as it does not carry the
stigma attached to insanity. While insanity requires the defendant to be legally insane,
automatism requires an external factor which results in the defendant not being able to
control his actions. These defences result in very different results for the defendant:
diminished responsibility resulting in voluntary manslaughter, insanity in a special
verdict, and automatism in an outright acquittal.