10) General Defences Flashcards
Absence of a valid defence
- Necessary for criminal liability
- No justification or excuse for D’s behaviour.
Intoxication
- General defence = available to most crimes
- A way to negate mens rea of an offenc;
- An influencing factor on another legal principle / defence.
How can intoxication be used
- To negate mens rea
- As an influencing factor on another legal principle / defence
How does intoxication work to negate the mens rea?
- Evidence of intoxication to show that they did not form the necessary mens rea for the offence
- Not strictly a defence - although referred to in that way.
Woolmington
- Prosecution need to prove
- Beyond reasonable doubt
- That the defendant has committed the actus reus with necessary mens rea
- Due to intoxication the defendant did not form the necessary mens rea.
Entitled to full acquittal
R v Bennett
Judge is obliged to direct the jury on intoxication whenever there is evidence such that a reasonable jury might conclude there is a reasonable possibility that the accused di not form the mens rea
R v Pordage
- Question is not whether the defendant was incapable of forming the mens rea
- But whether, even if still capable, they did form it.
Intoxication will not assist the defendant if still formed mens rea when drunk
R v Kingston
Paedophile
Formed mens rea even though involuntarily intoxicated
How can intoxication operate to negate the mens rea?
- Any crime where involuntary intoxication
- Any crime were drugs were taken in bona fide pursuance of medical treatment
- Any crime were intoxication caused by non-dangerous drugs taken voluntarily.
- Crimes were specific intent is required (generally where offence cannot be committed recklessly)
What are dangerous drugs?
- Illegal drugs
- Alcohol
Where is the evidential burden for the issue of intoxication?
- Defendant to raise issue of intoxication
- Prosecution to prove beyond reasonable doybt that necessary mens rea was formed
Questions to ask to establish, when can intoxication operate to negate the mens rea?
- Is the defendant voluntarily or involuntarily intoxicated?
- Is the intoxicant a dangerous or non-dangerous drug?
- Is it a crime of basic intent or specific intent?
Involuntary Intoxication
- If intoxication is involuntary then defence may be available for both specific and basic intent crimes
- eg if deceived into consuming them
Is it involuntary intoxication where intended to drink alcohol, but was not aware of the strength of the alcohol?
- No does not count as involuntary intoxication
- If they are aware they are drinking alcohol
DPP v Majewski
- Pub brawl - attacked the landlord; Charged with assault
- Voluntary intoxication could be a defence to a charge of specific intent, where intoxication negates mens rea
- Voluntary intoxication would not be a defence against a charge of basic intent - ie reckless course of conduct leads to recklessness
How should the jury be directed when a defendant who is voluntarily intoxicated and has committed a basic intent crime?
Method used:
Should the defendant have seen the risk had they not been intoxicated
R v Coley; McGhee and Harris
R v Coley; McGhee and Harris
Jury to oconsider whether the the defendant would have seen the risk had they not been intoxicated.
Basic intent offence
- Defendant could be convicted on the basis of recklessness, as to the consequences; or
- No foresight as to the consequences required
- eg battery - as must intend or be reckless.
Specific Intent Offence
- Where intention was the only form of mens rea available
- Recklessness was insufficient
- Eg murder, must intend to kill or cause GBH
*
Specific Intent or basic intent?
Murder
Specific Intent Crimes
Specific Intent or basic intent?
Unlawful act manslaughter?
Basic Intent Crimes
Specific Intent or basic intent?
Gross negligence manslaughter?
Basic intent manslaughter
Specific Intent or basic intent?
Wounding or GBH with intent
(s18 OAPA)
Specific intent crimes
Specific Intent or basic intent?
Malicious wounding/ inflicting GBH
s20 OAPA
Basic intent crime
Intoxication defence not applicable
Specific Intent or basic intent?
Assault occasioning ABH
s47 OAPA
Basic intent crimes
Intoxication defence not applicable
Specific Intent or basic intent?
Battery or assault
Basic intent crime
Defence of intoxication does not apply
Specific Intent or basic intent?
Basic criminal damage and aggravated criminal damage
- Basic intent crime
Specific Intent or basic intent?
Theft, Robbery & burglary
Specific intent crimes
Defence of intoxication can apply
Is there an agreed definition of specific and basic intent offences?
No
Definition of specific intent crimes?
“…proof of a state of mind addressing something beyond the prohibited act itself, namely the consequence”
R v Heard
Case criticised as an overeach - concentrate on Majewski
How could s1(2) Criminal Damage be a specific intent cromes?
- Using the definition for R v Heard
- Could be treated as a specific intent offence, as the mens rea includes an intention or recklessness as to life being endangered through crimianl damage
Case criticised as an overeach - concentrate on Majewski
Dangerous Drugs
- Where it is common knowledge that a drug is liable to make the taker become aggressive
- Do unpredictable things
- eg alcohol or illegal drugs
R v Hardie
Non dangerous drugs
- Where there is no such common knowledge of a drug being dangerous
- Eg a drug know to be merely soporific or sedative drug
- Different rules apply for non dangerous drug
- Defence may be available if D did not form necessary mens rea
R v Hardie
R v Hardie
- D took Valium and started a fire.
- No mens rea because of Valium
- Majewski rules applied
- Valium taken to calm nerves, no awareness that would make him more aggressive or reckless.
When might the defence of intoxication negating Mens Rea be available?
- Involuntary intoxication & no mens rea
- Voluntary intox, non dangerous drugs & no mens rea
- Voluntary intox, dangerous drugs, specific intent & no mens rea
Defences & interaction iwth intoxication
- Self defence - Defendant makes drunken mistake as to need to use self defence, cnanot rely on that mistake
- Loss of control and diminshed resonsibility - Intoxication is no bar to a plea of loss of control or diminshed responsibility
General rule of intoxication and defence
Intoxication will not enable a defendant to rely on a defence, whether the crime they have committed is one of specific or basic intent
What is the second way that intoxication can impact legal analysis?
Inflience on another legal principle or defence
eg self defence or loss of control
Impact of intoxication on murder?
Even though intoxicated, did Defendant form the mens rea of intention to kill or cause GBH?
Drunken intent is still intent - KINGSTON
Kingston
Drunen intent is still intent
Impact of intoxication on murder?
Normal person test
* If addicted to drugs or alcohol, this will be a characteristic that will be given to the normal person, but the normal person will still have normal levells of tolerance and self restraint and be sober
Asmelah
Impact of intoxication on diminished responsibilty
- Defendant has abnormality of mental funcitoning (AMF) and is voluntarily intoxicated.
- Must have AMF
- AMF from recognised medical condition
- Have substantially impaired defendents ability to do things under s2(1) of Homicide Act
- AMF must provide an explanation for D’s conduct - even if not the only cause …. alcohol can be a reason
Dowds
Voluntary intoxication is not, on its own capable of being relied upon to found the defence of diminished responsibility.
AMF from ADS
Abnormality of Mental Functioning arising from Alcohol Dependency Syndrome
* D must have AMF due to ADS
* AMF must arise from a recognised medical condition
* Must have substantially impaired D’s ability to dothings in s2(1A)
* AMF myst provide an explanation for conduct, even if not only cause
Intoxication and consent
Facts
R v Richardson and Irwin
- Defendants were university students
- After drinking at a student union they decamped
- Horseplay ensued, lifted and dropped victim over balcony.
- Charged under OAPA, s 20
Intoxication and consent
Held
R v Richardson and Irwin
Quashed conviction under misdirection.
* If satisfied of consent, this would be a defence.
* Consider whether defendant believed that the victim consented. Even if wrongly believed that victim consented.
Intoxication and statutory defences
Where there is a statutory defence that allows or an** honest belief, **defendant will be able to use this defence even if their belief is due to voluntary intoxication.
Jaggard v Dickinson
- Broke window in drunken belief was the house of the friend.
- Subjective belief defence
- Irrespective of whether reasonable
- s5(2)(a) CDA defendant believes that the owner would have consented to the damage.
Can the defendant rely on a drunken mistake as to the need to use self-defence?
No
Cannot rely on a drunken defence for self defence.
Can loss of control and diminished responsibility still be pleaded if intoxicated?
Yes, but it does impact various aspects of the legal analysis.
Can a defendant rely on the defence of consent if intoxicated?
Ys, if the jury are satisfied that victim consented to the accidental infliction of injury
or
Defendant believed even wrongly that the victim consented (due to their intoxication) - defendant may have a defence Richardson & Irwin
Can defence of intoxication be used if there are statutory defences?
- If there is honest belief defences
- D will be able to use the defence, even if the belief is due to voluntary intoxication
eg Jaggard v Dickinson
Coley, McGhee and Harris
- Defendant would be deemed reckless if would have foresaw the harm if they were sober
- Defendant will not be criminall liable if they would have not seen the risk of harm
Involutnary intoxication may be raised successfully as a defence to which crimes?
- Crimes of both specific and basic intent involving dangerous or non-dangerous substancs
- Key question is did the defendant still form the necessary mens rea
R v Pordage
What is the question a court will ask regarding a defendant’s mens rea if they are voluntarily intoxicated by dangerous drugs/ alcohol and commit a basic intent offence?
The court will ask did the defendant form the mens rea even though intoxicated, in cases of:
- Involuntary intoxication (such as being drugged without consent);
- Voluntary intoxication by non-dangerous drugs (e.g. Hardie, the D who took Valium to calm his nerves); or
- Voluntary intoxication and D has committed a specific intent crime (e.g. murder).
When will intoxication prevent the defendant from using another defence?
If a defendant makes a drunken mistake as to the need to use self-defence, they cannot rely on that mistake.
When is consent a defence to an offence against the person?
The general rule is that consent is only available as a defence to assault and battery
AG’s Reference(No 6 of 1980)
- Two boys decided to settle an argument by a fight
- Nose and bruises
- OAPA, s47= assault occassioning actual bodily harm
Unlawful regardless of consent - Lord Lane CJ
R v Brown
FACTS
SM caused inuries
No medical treatment required.
Participants were charged with ABH (OAPA s47) and causing GBH (OAPA s20)
Defence of consent failed
R v Brown
HELD
- Consent could not be a defence to anything greater than battery, unless it fell into one of the accepted good reasons
(eg organised sporting contests and games, parental chastisement and reasonable surgery)
Well known exceptions under R v Brown?
(eg organised sporting contests and games, parental chastisement and reasonable surgery)
R v Meachen
- Extended use of consent
- Available where ABH or worse providing that the defendent
- Intended only to commit a battery with consent of the victim AND
- Did not see the risk of ABH
If the defendant intended to cause ABH, then is consent available as a defence if the victim consented?
- Consent is not available as a defence if the defendant intended to cause ABH
Whatis the situation re: being reckless as to causing ABH withthe victim’s consent?
- Still subject to academic dbate
If the offence is less than assault or battery, is the defence of consent available?
YES if
* Victim consented, or
* D honestly believed that victim was consenting.
If the offence is more than assault or battery, and intended to cause ABH+ is cthe defence of consent available?
Consent is not available, unless any of the exceptions apply
If the offence is more than assault or battery, and the D did not intend to cause ABH+ or see the risk, is the defence of consent available?
Yes, consentis available
Meachan
If the offence is more than assault or battery, and the D did not intend to cause ABH+ & was reckless, is the defence of consent available?
No
Guidance from court, but if prohibited harm then check if the execeptions apply.
When can a victim consent to offences against the person of ABH+?
If the situation falls under one of the public interest exceptions:
* Medical treatment
* Sport
* Horseplay
* Tatooing, body piercing & personal adornment
* Sexual gratification / accidental infliction of harm
What are some of the exceptions that enable consent?
- Medical treatment
- Sport
- Horseplay
- Tatooing, body piercing & personal adornment
- Sexual gratification / accidental infliction of harm
Consent - Exception
Medical Treatment
Consent can be given for surgery and other medical treatment that causes harm.
Consent can be given to a high risk of death
Sport
There is a public interest in encouraging people to play sport, therefore any incidental injury while playing within the rules of the game will not be an offence.
Participants have consented to such incidental injury.
R v Barnes
In organised sport, criminal prosecution should be reserved for those situations where the conduct was sufficiently grave to be criminal.
* Must go beyond the usual conduct in the sport.
* Fact dependent
* Need to consider whether the contact had been so obviously late and/or violentthat it was not regarded as an instinctive reaction, error or misjudgemnet
R v Bilinghurst
Punched during rugby match in an off-the-ball incident. Charged under OAPA, s20
* Off the ball punching was outside the scope of the implied consent.
* Was convicted.
*
Horseplay exception
- Received much criticism
- R v Jones*; R v Richardson and Irwin, R v Aitken
R v Aitken
- Drunken RAF soldiors setting fire to fire resistant sutis as a joke
- Victim severely burned.
- Quashed the conviction relying on Jones
R v Jones
- Some boys at a youth club tossed other boys
- Ruptured spleen and broken arm
- Ought to allow the issue of consent to injuries sustained through “rough and undisciplined” horseplay
R v Richardson and Irwin
- Dropped friend over the balcony
- Consent qushed as believed cosent
Cases relating to personal adornment
R v Wilson
R v BM
R v BM
CoA refused to include body modification, in particular the removal of an ear, the removal of an ear, the removal ofa nipple, division of a tongue, in the category of tatooing and personal adornment.
R v Wilson
- Hot knife to brand his initials on wifes buttocks at her request.
- Argued consent under s47, OAPA
- No logical difference between branding, tatoo and piercing, which i slawful
Direct contrast to the R v Brwon
Sexual gratification exception
- Used to be the case that there may be defence
- In light of s71 Domestic Abuse Act 2021
- A person cannot consent to the infliction of harm resulting in ABH for sexual gratification.
- Only consent is to the risk of acquiring STIS
r V dICA
- Consent to the risk of contracting HIV
- Similar to pregnancy
Not possible to consent to deliberate HIV infection because HIV is considered GBH as it disables the victim and requires long term health care
Lawful correction of a child exception
Cases
- R v Hopley
- R v H
R v Hopley
Parent has a defence of reasonable chastisement in applying force to a child
Under challenge under ECHR Art 3
R v H
- Jury must look at the nature and the context of the parent’s behaviour
- Duration
- Physical and mental consequences for child
Children Act 2004, s58
Outlines that the reasonable punishment defence cannot be relied on if it results in ABH
Limitation on extending the categories of exception
R v BM
* Categories should not be extended by the courts
* Should not be extended
* Close analogy to the Brown Case
Where does the general rule that consent is only availbel as a defence for assault and battery come from?
AG’s Reference (No 6 of 1980)
R v Meachan
Consent is available even where ABH or worse is caused provided:
* D only intended to commit a battery
* With the consent of the victim
* Did not see the risk of inflicting ABH or above
Is consent available if ABH+ has been caused, was intendended or could forsee it was possible?
No….
Unless one of the exceptions apply
When is consent a defence to an offence against the person?
The general rule is that consent will operate as a defence to assault and battery only, **AG’s Reference (No 6 of 1980). **
The case of **R v Meachen **extended the rule to provide that the defence could still operate even where ABH or worse was caused provided the defendant only intended to commit a battery with the consent of the victim and did not see the risk of causing ABH.
Is the defence of consent available for assault and battery?
If the defendant wrongly believed the victim consented, the defence could be available, R v Richardson and Irwin.
Equally if the victim consented, even if the defendant did not know this, the defence could be available.
Name an exception that is not available if D intended or was reckless as to causing ABH or above
Lawful correction of a child
The Children Act 2004, s 58 outlines that the reasonable punishment defence cannot be relied on if it results in ABH or above for example.
