Criminal Law and Evidence Defences 1 Defences - The structure of criminal liability - The third part of the process

of determining criminal liability is defences. So it ends up as actus reus, mens rea and does the accused have a defence. -Burden and standard of proof in relation to defences Burden of proof still lies with the prosecution. All the excused has is an evidential burden. All they have to do is provide some evidence that goes towards his claim. The prosecution must then disprove it. Authority- Lambie v HM Advocate. Exceptions to this rule- mental disorder and diminished responsibility defences. Burden of proof lies with the accused for these defences (CPSA s. 51A(4)). Standard of proof the accused needs to satisfy in these cases is balance of probabilities. -Special defences If you wish to use a special defence, you have to give a few weeks notice to the prosecution in writing to use it in court. CPSA s. 78(1). Hume is the best authority on special defences:- alibi, insanity (mental disorder), incrimination, self-defence. Automatism and coercion are treated as special defences for the purposes of the notice rule CPSA s. 78 (2). Defence statements -CPSA s.70A -All solemn cases will require a defence statement. This is notice of the defence the accused wishes to use. In summary cases, special defences will still exist as usual. Self-Defence (1) Defence to crimes of violence e.g. murder, culpable homicide, assault etc. It is a complete defence, so if it is accepted, then there is no conviction. The rules of self-defence are in HMA v Doherty 3 conditions: 1. Imminent danger to life or limb 2. No reasonable opportunity to escape 3. Force used must be proportional. 1. Someone must be about to attack you or in the process of attacking you. Pre-emptive selfdefence is not allowed. Imminent requirement doesnt mean you need to wait til the violence is in progress. Defending third parties -HMA v Carson- two guys on Sauchiehall St. A third person attacked someone, but the one not attacked used a knife to fend him off. Court allowed this to be self defence -HMA v Dewar Reasonable Mistake -Owens v HMA -Lieser v HMA

2. No reasonable opportunity to escape - Initially trial judges said if they ignored any way out of the area, the defence wouldnt work. -HMA v Doherty- D stabbed his friend to death after friend attacked him. There was a way out to leave the area, so the judge ruled this meant self-defence was not allowed. -McBrearty v HMA- Lessened the strictness of the need to escape. Leading Authority -HMA v Dewer- Escape rule doesnt make sense in third party defence cases, as you are not being attacked. Trial judge said you need to apply escape requirement, but this was finally changed in third party cases. Violence must only be used as a last resort is the new test in third party cases, replacing escape. 3. Proportionality Violence should be proportionate. When the attack has no use of weapons and the accused uses one, the courts have tended to count that as disproportionate. Not a rule of law though. -Moore v MacDougall- Man punches woman, so her friend, Moore, used nail scissors and stabbed him. This meant the conviction for assault stood. -Lethal force: McClusky v HM Advocate- Authority that you can only use lethal force if the threat you were facing was one of great bodily harm or death. -Rape/Property: McClusky v HM Advocate- You can use lethal force on rapists, but only if you are a woman. You can never kill for property. 4. If the accused starts a fight. - In some circumstances when you start the fight or willingly get stuck in the fight, you can plead self-defences. -Boyle v HMA -Burns v HMA Both authority. If the violence becomes disproportionate to what is expected e.g. pulling a knife.