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Criminal Defences

Criminal Defences
Series:  SULI
Practice Area:  Criminal Law, Scottish Law
ISBN:  9780414015210
Published by:  W. Green
Publication Date:  19 Sep 2006
Subscription Information:  Non-Subscribable Product
Format:  Hardback
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This vitally important new title provides criminal practitioners and others involved in Scots criminal law with an in-depth narrative guide to the law of criminal defences in Scotland. The comprehensive coverage considers defences in the widest sense, examining not only those which form part of substantive criminal law but also procedural matters such as pleas in bar of trial, abuse of process, delay, entrapment and prejudicial publicity.

Drawing on theoretical and comparative material where appropriate, Criminal Defences provides a more detailed treatment of this area than any other existing work and is unique in the quality and scope of its coverage. This title covers all recent changes and developments relating to defences and offers direction on areas where the law is still developing and unclear.

Publishing in the highly respected Greens Practice Library series this text presents a comprehensive and up-to-date examination of modern law. Several defences, such as entrapment, have only recently been recognised by the Scottish courts and others, for example delay, have been significantly affected by the Human Rights Act 1998, whilst major decisions such as Drury and Galbraith have reshaped various defences, including diminished responsibility. All these areas are covered in this thorough and indispensable text, providing all the information you need in one place.




Theory of Defences
Classification of Defences
The Implications of Classification

Procedural Issues Relating to Defences
Disclosure of Defences to the Prosecution
Notification of Special Defences
The Crown's Reciprocal Duty to Disclose
McLeod v HM Advocate
Disclosure under the ECHR
Pleading Mutually Inconsistent Defences


Theoretical basis
Historical development
Early origins
Hume's pure and quarrel self-defence
The modern law and requirements of the plea
Imminence of danger
Mistake as to imminence of danger
Owens v HMA, Jones v HMA, Drury v HMA, mistake and the ECHR
The possibility of retreat
Hume, McCluskey v HMA, Fenning v HMA, McBrearty v HMA
Killing to prevent a non-fatal attack
Killing in defence of other interests
Threat of rape
Crawford v HMA, McCluskey v HMA, Pollock v HMA
Defence of property
HMA v Craw, HMA v McBryde, Crawford v HMA
[For excessive force in self-defence see partial defences below]
Can an initial aggressor plead self-defence?
Hume, Robertson and Donoghue v HMA, Boyle v HMA, Burns v HMA
The defence of others
HMA v Carson, Fitzpatrick v HMA

Theoretical Basis
Historical Development
The law since Moss v Howdle
The objective conditions:
Danger to Life or Limb
Constrained to Break the Law
Choice of Evils
The subjective condition: necessity "dominating the mind"
Dawson v McKay
Fault in creating the circumstances of necessity

Theoretical Basis
Historical Development
The law since Thomson v HM Advocate
Is the defence available to all crimes?
Hume: "grave and atrocious crimes"
The objective requirements:
The nature of the threat
The immediacy of the harm
A "backward and inferior part in the perpetration"
The relevance of personal characteristics: Cochrane v HM Advocate
The subjective requirement: was the will overborne?
Excluding the defence
Voluntary exposure to the risk of coercion
Non-disclosure of the fact

Necessity and Coercion as Defences to Murder
The Scottish authority: Collins v HM Advocate
The inculpatory perspective
The exculpatory perspective
A partial defence?

Superior Orders
Theoretical Basis
Historical Development
Nuremberg and customary international law
The death of the defence?
The international trend towards non-recognition of the defence
Article 33 of the Statute of the International Criminal Court
Scots Law in light of international perspectives

Compliance with European Union law

Exercise of a right protected by the ECHR

Mental Abnormality (Insanity and Non-Insane Automatism)
Theoretical Basis
Historical Development of the Insanity Defence
From M'Naghten to Brennan via Kidd
Historical Development of the Automatism Defence
The Rise, Fall and Rise of Automatism: from Ritchie to Ross
The modern synthesis: the common ground between the two defences
The Alienation of Reason Requirement
The Distinction between Internal and External Factors
Difficult cases: Hypoglycaemia and Somnambulism
Internal Factors: Insanity
External Factors: Automatism
Self-Induced or Foreseen External Factors
Voluntary Intoxication as a Defence
The pre-Brennan position
The modern law

Theoretical Basis
Historical Development
The modern law
Minimum age for being subject to prosecution
Non-age and the Children's Hearings system
Non-age and art and part liability
Mentally Impaired Children: HM Advocate v S
The compatibility of the Scottish approach with international standards.


A Theory of Partial Defences

Historical Development
Provocation as a defence to crimes other than murder
The law since Drury v HM Advocate
Recognised Provocations
The subjective condition: loss of self-control
The objective condition: the "ordinary person"
Personal characteristics and the objective test
The (redundant?) "reasonable retaliation" requirement.

Diminished Responsibility
Historical Development
The limitation to mental illness
The law since Galbraith v HM Advocate
Recognised Abnormalities
The Aetiology of the Abnormality
Excluded Abnormalities
The pre-Brennan position
The modern position
Carraher v HM Advocate
Modern conceptions of psychopathy
Exacerbation of a Recognised Abnormality By Intoxication
The objective condition: "substantial impairment".

Running Provocation and Diminished Responsibility Together
The current position
Proposals for Reform

Partial Defences Not Specifically Recognised by Scots Law
Excessive Force in Self-Defence
Mercy Killings and Suicide Pacts


Error of Fact
Mistake as to an element of the crime
From Dewar to Jamieson
The modern position
Charging the jury on mistakes as to consent in rape and indecent assault
Irrelevant errors and aberratio ictus
Error as to mode of act.

Error of Law
What constitutes an "error of law"? Errors of civil law
Excusable Mistake of Law
Ignorance of Law and Unpublished Law.


Incrimination (Impeachment)


Insanity as a Plea in Bar of Trial
Theoretical Basis
The requirements of the plea
HMA v Brown
Disposals available to the court
Desertion pro loco et tempore
Examination of Facts
Subsequent Prosecutions

Res judicata
Prior decision on relevancy of the libel
Tholed Assize
Is the second charge for the "same offence"?
Subsequent prosecutions for perjury: Cairns v HM Advocate
Death of a victim after the first trial.
Was the first trial "validly brought to a conclusion"?
Fundamental nullity
Desertion simpliciter
Retrial after quashing of a conviction
The Boyle saga and the 1995 amendments
Evidential issues arising in subsequent prosecutions

Time-bar and delay
Limits on pre-trial custody
The 40-day rule
The 110-day rule
Grounds for extending pre-trial custody time limits
Commencement of summary prosecutions: the six-month rule
The 12-month rule in solemn proceedings
Reducing solemn proceedings to summary proceedings.
Trial within a reasonable time
Oppression and the pre-Human Rights Act position
Delay as a plea in bar of trial under Article 6 ECHR

Renunciation of the right to prosecute
The position of a socius criminis
The Thom principle: renouncing the right to prosecute a specific case
Renouncing the right to prosecute a class of crime: Earnshaw
The compatibility of this rule with the ECHR.
Oppression in circumstances other than delay: Abuse of Process
The English position
Does Scots law recognise this plea? Bennett, Petitioner

The nature of an entrapment defence
A substantive defence?
Abuse of process?
A ground for exclusion of evidence?
The Scottish position prior to the Human Rights Act
Entrapment in light of the Human Rights Act: Teixera de Castro; R v Loosely.


Criminal Defences is published by W. Green. To find out more about W. Green, and our products please visit https://www.sweetandmaxwell.co.uk/wgreen
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