LAW ESSAY

Criminal defences operate in a variety of ways. Explain the categories in broad terms, before comparing and contrasting the nature and characteristics of two specific defences

Introduction

In the field of Criminal Law, there are a variety of conditions that will tend to negate elements of a crime, known as defences. In civil proceedings and criminal prosecutions under common law, a defendant may raise a defence in an attempt to avoid criminal or civil liability. There are two kinds of defences; failure-of-proof defences and affirmative defences. The prosecution has to prove every element of crime beyond reasonable doubt. A criminal defendant will be acquitted of all charges if the prosecution cannot prove every element of the offense beyond reasonable doubt. This is known as a failure of proof defence. An affirmative defence is a new fact or set of facts which operates to defeat a new claim, even if the facts supporting that specific claim are true. This essay aims to identify and explain several defences; insanity, self-defence, and alibi. Furthermore I will select two of the defences detailed to contrast their nature and characteristics.

Insanity

Although the insanity defence is probably the most controversial of all criminal defence strategies, it is also one of the least used. On many occasions it has been used, particularly in the much-publicized cases of John Wayne Gacy (1994), Ted Bundy (1989), and Andrew Goldstein (1999). Insanity and diminished responsibility is defined as ‘where the court is satisfied, on written or oral evidence of two medical practitioners, that a person…is insane…the Court shall…make a finding of such, discharge the trial diet, remand the person in custody or on bail’ 1 It should also be noted that there is the possibility of ‘Insanity in Bar of Trial’. According to the Mental Health (Care and Treatment) (Scotland) Act 2003; ‘If a person's mental disorder is such that he/she cannot participate adequately in the court process, then it has long been held that it is unfair for the person to be tried. If this is the case the court may find the person insane in bar of trial and there is no trial, or where the trial has commenced, it will be discharged.’ This is to ensure the fair trial of those who cannot understand what they have done or taken part in. In the case concerning Andrew Goldstein, a schizophrenic man who threw a woman to her death in front of a subway train, was found guilty of second degree murder after a jury rejected his plea of insanity. In this trial from 1999, defence lawyers had pinned their hopes on taking Andrew Goldstein off his anti-psychotic medication and then putting him on the stand to show the jury his mental state at the time of the attack in the subway. This kind of strategy was stopped when the judge ordered that he be offered his medication daily and neither forced or deprived of it. In doing this, Goldstein took his medication and therefore did not take to the stand. It has been argued that the verdict was not surprising, because the law makes it very difficult to use mental illness as a defence.

Self – Defence

Self-defence involves defending oneself, one’s property or the well-being of another person from physical harm. This

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