8 - Defences

Question 1

What role does the concept of a defence play in avoiding criminal liability, and how do intoxication and self-defence factor into this?

Answer 1

A defence allows a defendant to assert why they should not be convicted, such as by claiming mistaken identity or lack of the required mens rea.

Formal defences, like self-defence, are recognised by law. When successful, they result in a full acquittal for the defendant.

Intoxication (whether from alcohol or drugs) is frequently involved in criminal cases and presents a unique challenge in criminal law.

The development of common law on intoxication has been shaped by public policy considerations, requiring courts to balance whether and in what situations a defendant’s intoxication should allow them to avoid criminal liability.

Question 2

When can intoxication be used as a defence in criminal law?

Answer 2

The defence of intoxication may apply only if the intoxication causes a loss of capacity to form the mens rea (the mental element) required for the offence.

Importantly, an accused cannot simply claim a defence on the basis of having been intoxicated at the time of the offence, nor can they argue that they acted out of character due to intoxication.

Intoxication as a defence is only relevant where the intoxicated state entirely negates mens rea. This is not technically considered a true defence but rather a situation where the prosecution is unable to prove mens rea.

Simply claiming to have acted differently or “out of character” due to intoxication does not constitute a defence.

Example: In R v Kingston [1995] 2 AC 355, the defendant’s coffee was spiked, leading him to commit indecent assault. Despite arguing that his actions resulted from being drugged, the court held that as long as the defendant had the necessary mens rea, the lack of moral fault was irrelevant. The principle from this case shows that a drugged intent is still an intent.

Question 3

Which defence is intoxication not a bar to?

Answer 3

Intoxication is no bar to a plea of loss of control or diminished responsibility.

Question 4

What are the two stages to determine if intoxication can be used as a defence in criminal law?

Answer 4

There are two stages in determining whether a defendant may rely on intoxication as a defence:

Stage 1: The court first considers whether the intoxication was voluntary or involuntary, as the rules differ based on how the defendant became intoxicated.

Stage 2: The court then identifies the type of offence the defendant is charged with, categorising it as a basic intent or specific intent crime.

Classifying a crime as basic or specific intent can be challenging, as it stems from a blend of legal principle and public policy.

Question 5

What is a specific intent offence, and how does it affect the intoxication defence?

Answer 5

Specific intent offences are crimes where intention is required as the sole mens rea, meaning recklessness is insufficient to establish guilt.

Examples of specific intent offences include:
- Murder: where there must be an intention to kill or cause grievous bodily harm.
- Theft (s.1 TA 1968): requiring the intention to permanently deprive the owner.
- s.18 Assault (OAPA 1861): which requires an intention to cause grievous bodily harm.

Impact on Intoxication Defence:
- If the defendant’s intoxication prevents them from forming the specific intent required for the offence, this may serve as a defence.
- Therefore, it benefits a defendant to be facing a specific intent charge when claiming intoxication, as intoxication could negate the mens rea needed for guilt.

Question 6

What is a basic intent offence, and how does it impact the intoxication defence?

Answer 6

Basic intent offences are crimes where recklessness can satisfy the mens rea requirement, meaning the crime does not require a specific intention.

Examples of basic intent offences include:
- s.20 Assault (OAPA 1861): requiring either an intention or recklessness as to causing some bodily harm.
- s.47 Assault (OAPA 1861): which involves intention or recklessness as to assault or battery.
- Criminal damage: requiring intention or recklessness as to damaging property.

Impact on Intoxication Defence:
- For basic intent crimes, the defence of intoxication generally cannot be used if the defendant voluntarily became intoxicated, as recklessness may still be present.
- This limitation is influenced by public policy, and courts have restricted the intoxication defence’s scope by classifying certain offences, such as sexual offences, as basic intent to avoid excessive use of intoxication as a defence.

Question 7

How is voluntary intoxication defined, and when is a defendant considered voluntarily intoxicated?

Answer 7

Voluntary intoxication occurs when a defendant knowingly consumes alcohol or drugs, intending to experience their effects.

Clear cases of voluntary intoxication include:
- Going out drinking with friends and consuming several pints of beer.
- Using stimulants like cocaine to stay awake for professional reasons.

Less obvious situations include:
- Underestimating the effect of a small amount of alcohol (e.g., after a couple of glasses of wine).
- Combining alcohol with medication against medical advice.

Example: Lars smokes cannabis he recently bought, unaware of its unusually high potency. Despite this, because he knowingly consumed the drug, his intoxication is still classified as voluntary. Mistakes about strength do not make intoxication involuntary.

Question 8

What is the impact of voluntary intoxication on criminal liability, according to DPP v Majewski?

Answer 8

In DPP v Majewski [1976], the defendant argued he could not form the mens rea for assault occasioning actual bodily harm due to his extreme intoxication.

Judgment and Principle:
- Lord Elwyn held that voluntary intoxication is inherently reckless behaviour, providing sufficient evidence of mens rea for crimes of basic intent.
- He stated that when a person “of his own volition takes a substance” that diminishes their reason and self-control, they should be held criminally responsible for any harm caused.
- In essence, voluntary intoxication equates to recklessness, and recklessness satisfies the mens rea requirement for basic intent crimes, such as assault.

Question 9

How does voluntary intoxication impact liability for offences of basic intent?

Answer 9

Following the decision in Majewski, a defendant cannot argue lack of mens rea for a basic intent offence due to voluntary intoxication.

Reasoning: The act of voluntarily becoming intoxicated is itself reckless, which is sufficient to satisfy the mens rea requirement for basic intent crimes.

Example: This rule applies to crimes where recklessness alone is enough to establish mens rea, such as certain types of assault.

Public Policy Rationale: The judgement is based on public policy rather than strict legal principles, acknowledging the range of offences committed by people who place themselves in a state of intoxication.

Principle in Summary:
Voluntary intoxication + basic intent crime = no defence, as the recklessness in getting intoxicated fulfils the mental element of the offence.

Question 10

How does voluntary intoxication impact liability for offences of specific intent?

Answer 10

Rule for Specific Intent Offences: For crimes like murder, voluntary intoxication may be used as a defence if the defendant was so intoxicated that they lacked the mens rea entirely.

Effect of Intoxication: If the intoxication was severe enough to prevent the defendant from forming the necessary intent for the offence, they are not liable for a specific intent crime.
- Example - R v Lipman [1970]: Lipman, while under the influence of LSD and hallucinating, killed a victim but lacked the specific intent required for murder. The court accepted that Lipman’s extreme intoxication prevented the formation of mens rea for murder.

Public Policy Consideration: Although extreme intoxication may preclude liability for a specific intent offence, defendants generally face liability for an alternative, lesser basic intent offence, as seen in Lipman’s conviction for manslaughter.

Question 11

How does voluntary intoxication affect liability based on intent in specific scenarios?

Answer 11

Example Scenarios and Outcomes:

Scenario (a): Dorian intended to cause GBH but formed this intention only because he was drunk.
Outcome: Guilty of s18 assault under OAPA 1861, as the intoxicated intention to cause GBH meets the specific intent requirement, even if he would not have acted this way sober.

Scenario (b): Dorian’s intoxication led him to forget they were on the third floor, resulting in his wife’s injuries.
Outcome: Not guilty of s18 assault (specific intent crime) due to lack of intent to cause GBH. However, he is guilty of s20 assault (basic intent crime) because his recklessness in becoming intoxicated satisfies the mens rea for causing some bodily harm.

Scenario (c): Dorian was so intoxicated that he unintentionally pushed his wife off the balcony.
Outcome: Not guilty of s18 assault as he lacked mens rea, but guilty of s47 assault since recklessness from intoxication meets the mens rea for inflicting force.

Question 12

Provide a summary of voluntary intoxication.

Answer 12

If Mens Rea is Proven: If the prosecution establishes that the defendant had the required mens rea despite intoxication, the defence of intoxication will fail. The court will ask ‘Would the defendant have formed the mens rea if sober?’

Specific Intent Crimes: Intoxication can be a complete defence for specific intent crimes if the defendant was so intoxicated that they were incapable of forming the necessary intent.

Basic Intent Crimes: Intoxication cannot serve as a defence, even if the defendant lacked mens rea. The voluntary act of intoxication itself constitutes recklessness, fulfilling the mental element required for these offences.

Question 13

How is involuntary intoxication defined in criminal law?

Answer 13

Involuntary Intoxication occurs when a person becomes intoxicated without their own decision to do so, meaning it is not their fault they are in this state. Examples include:

Spiked drinks: If someone unknowingly consumes alcohol or drugs, such as in the case where Callum’s drink is spiked with vodka, causing him to become intoxicated.

Unpredictable reactions to non-dangerous drugs: When someone voluntarily takes a non-dangerous or prescribed drug with no reason to foresee any negative effects, but it results in unusual or aggressive behaviour.

Example - R v Hardie [1985]: Hardie took Valium, a sedative, expecting it to calm him but instead started a fire under its unusual effects. He was acquitted as the drug’s effect was unexpected, and taking it was not reckless.

Question 14

How does involuntary intoxication apply as a defence in offences of specific intent?

Answer 14

Involuntary intoxication may serve as a defence to specific intent offences if the defendant was so intoxicated that they lacked the mens rea necessary to commit the crime.

Specific intent offences require proof that the defendant had the intention to bring about a specific consequence.

Example: If Joanna involuntarily took her mother’s medication, leading to aggressive behaviour, and she genuinely lacked the intention or foresight of harm, her involuntary intoxication may serve as a defence to an offence of specific intent, as she was unable to form the required mens rea.

Question 15

How does involuntary intoxication impact offences of basic intent?

Answer 15

Involuntary intoxication can also provide a defence to basic intent offences if the intoxication caused the defendant to lack mens rea.

Basic intent offences can be committed recklessly, meaning that involuntary intoxication will only be a defence if the defendant did not have any reckless intent at the time of the offence.

Example: If Joanna, under the influence of her mother’s prescribed medication, acts aggressively but genuinely lacks any foresight or recklessness, involuntary intoxication may be a defence to the basic intent offence of assault occasioning actual bodily harm, as she did not foresee the risk of her actions.

Question 16

Provide a summary of involuntary intoxication as a defence.

Answer 16

• If the defendant has the necessary mens rea they are guilty.
• If the defendant does not have the necessary mens rea, they are not guilty.

Question 17

What is the principle of ‘Dutch courage’ and how does it affect criminal liability for intoxicated defendants?

Answer 17

• The principle of ‘Dutch courage’ applies when a defendant deliberately consumes alcohol or drugs to gain the confidence to commit a criminal offence.
• Such defendants cannot rely on their intoxication as a defence to negate the mens rea of the offence.

Example: In Attorney General for Northern Ireland v Gallagher [1963] AC 349, the accused intentionally drank whiskey before killing his wife. He claimed he lacked mens rea due to intoxication.
However, the court held that Gallagher’s premeditated intention to kill, combined with his actions, demonstrated that his wicked state of mind before consuming alcohol was sufficient for liability.

This ruling was based on public policy considerations, as allowing intoxication as a defence in such situations would enable individuals to get drunk deliberately before committing crimes to evade responsibility.

Question 18

How does the principle of intoxication affect a defendant’s ability to raise a mistake as a defence in crimes of basic intent?

Answer 18

• A defendant who commits an offence while intoxicated cannot rely on the defence for crimes of basic intent, such as simple assault.
• If a defendant reacts based on a mistaken belief about circumstances, the situation is evaluated differently. For example, in Sonia’s case, she mistakenly thought a security guard was about to assault her and hit him with her shoe.
• However, because Sonia was intoxicated, her perception of the threat was likely distorted, and case law establishes that she cannot rely on a mistake induced by her intoxication.

Question 19

What does case law establish regarding intoxication and mistaken beliefs in self-defence?

Answer 19

In R v O’Grady [1987] 3 WLR 321, the defendant claimed he acted in self-defence after a drunken altercation led to the victim’s death. His appeal was denied because the conviction for manslaughter upheld the principle that intoxicated individuals cannot rely on mistakes stemming from their drunken state.

The reasoning is that a person is deemed reckless for becoming intoxicated, so they cannot use mistakes caused by that intoxication as a defence, regardless of whether the offence is of basic or specific intent.

The defence of self-defence fails if a defendant’s mistaken belief is induced by voluntary intoxication, and a defendant may only rely on self-defence if their reaction aligns with that of a sober person in the same situation.

Question 20

Provide a summary of intoxication and mistake.

Answer 20

• The defence of self- defence will fail where a defendant’s mistaken belief is induced by voluntary intoxication.
• The defendant may only rely on self- defence if their reaction did not exceed that of a sober person in the same situation.

This decision has been described as one based on public policy and there is an underlying
logic to the principle. Unfortunately, the situation is complicated by the rather different
outcome where the defendant relies upon the defence of lawful excuse in criminal damage.

Question 21

How does the intoxication of a defendant affect their ability to use the defence of lawful excuse under s 5(2) of the CDA 1971 when accused of simple criminal damage or arson?

Answer 21

• Defendants accused of simple criminal damage or arson can avail themselves of a defence of lawful excuse under s 5(2) of the Criminal Damage Act 1971.
• This applies if the defendant honestly believes that the owner of the property had consented or would have consented to the damage had they known of the circumstances.
• The belief need only be genuinely held, making it irrelevant if the defendant arrived at this belief due to intoxication (as established in Jaggard v Dickinson).
• This situation appears contradictory because simple criminal damage is a crime of basic intent, meaning the defendant cannot rely on intoxication to negate the mens rea part of the offence.

Question 22

How do the legal authorities differentiate the effect of intoxication on self-defence versus lawful excuse?

Answer 22

• If a defendant mistakenly believes they are under attack and punches the victim while sober, they may rely on the defence of self-defence and will not be guilty of assault.
• If the same defendant is intoxicated, believing they are under attack, they will be guilty of assault as they cannot rely on a mistake caused by intoxication.
• Conversely, if the intoxicated defendant commits criminal damage, mistakenly believing the owner would consent to the damage, they can rely on the defence of lawful excuse and will not be convicted.
• The decision in Jaggard v Dickinson contrasts with R v O’Grady, reflecting the development of the law on a case-by-case basis.

Question 23

Under what circumstances can a defendant lawfully use force in the context of self-defence and prevention of crime?

Answer 23

The use of force may be justified to protect oneself, property, or others from attack, or to prevent a crime from being committed.

Self-defence is often discussed in the media, particularly regarding how far a householder may go to protect their property.

If a defendant is not to blame for their conduct, they may be completely excused from criminal liability and acquitted of the charge.

Self Defence:
- The law on self-defence is complex, with overlapping aspects causing potential confusion.
- Historically, the common law defence of self-defence meant that an accused could be acquitted if the prosecution failed to prove that the violence used was unlawful, as noted by Lord Griffiths in Beckford v R [1988].
- Section 3 of the Criminal Law Act 1967 allows a person to use reasonable force in the prevention of crime or in assisting the lawful arrest of offenders.
- The Criminal Justice and Immigration Act (CJIA) 2008, section 76, codified these defences to clarify the law and improve understanding.
Collectively, these defences are referred to as ‘self-defence’, with a common focus on the issue of reasonable force.
If reasonable force is successfully demonstrated, the accused will have a complete defence and must be acquitted.

Question 24

What are the legal and evidential burdens on an accused relying on self-defence in a trial?

Answer 24

An accused wishing to rely on self-defence has an evidential burden to discharge, meaning they must raise the defence to make it a live issue at trial.

This is typically done through cross-examination of prosecution witnesses, particularly the alleged victim, and the defendant giving evidence of their self-defence claim.

Once the defence has discharged their evidential burden, the prosecution must disprove the defence beyond a reasonable doubt.
If the prosecution fails to disprove the defence, the accused must be acquitted and will leave court a free person.

Question 25

What was the purpose of introducing Section 76 of the Criminal Justice and Immigration Act 2008, and what did it achieve?

Answer 25

• Section 76 of the CJIA 2008 was introduced in response to media coverage and a perceived lack of transparency in the existing law.
• It aimed to clarify some of the legal principles that had emerged from case law and to establish them on a statutory footing.
• The CJIA 2008 served as a consolidating measure, bringing together existing law rather than seeking to change it.

Question 26

What factors determine whether the use of force was necessary for a successful self-defence argument?

Answer 26

In determining if the accused can successfully argue self-defence, the first question is whether the use of force was necessary at all.

A defendant may not rely on self-defence if they use force on another person:
- Out of revenge
- In retaliation

The defence will only be available if the defendant’s action was necessary to:
- Defend themselves or another from attack
- Prevent the commission of a criminal offence

This question is assessed subjectively, focusing on whether the defendant honestly believed that the use of force was necessary.

Question 27

How does mistaken belief affect the defence of self-defence, and what are the legal principles involved?

Answer 27

There may be circumstances in which the defendant is mistaken about what the other party is going to do, but allowance is made for the particularly stressful position the defendant finds themselves in.

If a defendant acts in self-defence due to a mistaken belief that the use of force is necessary, their mistake will not prevent them from relying upon the defence, provided their belief was honestly held.

In Williams (Gladstone) [1987], the defendant believed he was defending a youth but punched a police officer instead. The appeal court confirmed:
- The defendant is judged on the facts as they honestly believed them to be, even if mistaken.
- This applies even if the defendant’s belief was unreasonable.
- However, if the defendant’s mistake was an unreasonable one to make, this may be a reason for the jury to conclude that the belief was not honestly held.

The principle from this case is now enshrined in the CJIA 2008 (s 76(4)), stating that:
- if it is determined that the defendant genuinely held that belief that force was necessary, they are entitled to rely on it, whether or not their understanding of the circumstances was mistaken or (if so) whether that mistake was a reasonable one to have made.

Question 28

What are the implications of voluntary intoxication on a defendant’s mistaken belief in self-defence according to the CJIA 2008?

Answer 28

Where a defendant only made the mistake because they were voluntarily intoxicated, self-defence will not be available to them.

This is evidenced in R v O’Grady [1987], which discusses public policy considerations behind this decision.

Under s 76(5) of the CJIA 2008, the defendant cannot rely on any mistaken belief attributable to intoxication that was voluntarily induced.

For example:
- If Lawrence is drunk, having consumed a significant quantity of alcohol, and mistakenly believes that Justin is about to attack him, he cannot argue self-defence after striking Justin with an empty bottle because his belief was induced by alcohol.
- Conversely, if Ayo is drunk due to his drinks being spiked by an associate and mistakenly believes he is being attacked by Tom (who has merely lost his balance and fallen onto him), Ayo can rely upon his mistaken belief, as his intoxication is involuntary.

Question 29

How does a court determine whether the amount of force used in self-defence was reasonable?

Answer 29

When a defendant raises self-defence, a key question for the court is whether the force used was reasonable in the circumstances.

The assessment of what is regarded as reasonable is decided by the jury or magistrates, but:
- Because the facts may vary widely, a specific definition of reasonable force is impossible to establish.

For instance, in the example of Brad chasing a youth throwing stones:
- Grabbing the youth until the police arrive would be considered reasonable.
- Giving the youth a severe beating would not be reasonable.
- Opinions may vary on the reasonableness of giving the youth slaps or threatening him.

The reasonableness of the force used will depend on factors such as:
- The seriousness of the offence being prevented (e.g., criminal damage).
- The degree of force used to defend property.

Question 30

On what basis is a defendant judged when asserting self-defence, particularly regarding their belief in the necessity of force?

Answer 30

The defendant is judged on the basis of the facts as they honestly and genuinely believed them to be, confirmed by the CJIA 2008.

Under s 76(3), whether the use of force was reasonable in the circumstances will be decided based on the circumstances that the defendant honestly believed to exist.

For example:
- In the case of Warren pushing in front of Jin at a bus stop, Jin punched Warren in response.
Jin’s knowledge of Warren’s imminent robbery does not affect his decision to use reasonable force to prevent queue jumping.
- The court must decide if Jin’s force was reasonable, considering he did not know about the robbery; thus, his response (punching) would be seen as excessive.

Question 31

What is the significance of a defendant’s awareness of the facts when assessing the reasonableness of their force in self-defence?

Answer 31

A defendant cannot rely on facts of which they are unaware when justifying their use of force in self-defence.

Just because a defendant claims to have perceived particular facts does not guarantee belief in those facts.

The reasonableness of the belief is crucial to determining whether the defendant genuinely held it, as stated in s 76(4).

For example:
- In the scenario with Ichika and Maya in a school corridor, Maya shoved Ichika, believing she was about to be pushed.
- The court may question whether Maya genuinely believed Ichika was lunging at her, as there is no context to suggest such behaviour.
- If the court finds that Maya’s belief was unreasonable, it may conclude that she did not honestly hold that belief, impacting her self-defence claim.

Question 32

What does ‘reasonable’ mean in the context of self-defence, and how is it assessed according to the CJIA 2008?

Answer 32

The degree of force used by the defendant is considered unreasonable if it is disproportionate to the circumstances, as per s 76(6).

The Crown Prosecution Service states that self-defence must balance:
- The public interest in encouraging responsible citizen contributions to law and order.
- Discouraging vigilantism and violence.

Generally, the greater the danger to the defendant, the more force they may use to repel an attack. However:
- If the jury or magistrates determine the level of force is excessive, the defence will fail.
- Evaluating reasonableness can be complex and often relies heavily on specific facts; some court decisions have sparked controversy.
- For instance, in R v Clegg [1995], Clegg’s first three shots at a car approaching him were deemed self-defensive, but the final shot, after the car had passed, was excessive.

Question 33

How do specific scenarios illustrate the concept of reasonable force in self-defence?

Answer 33

Specific examples highlight the application of reasonable force:
- Ruth slapped Jonah across the face after he touched her knee inappropriately. This was considered a reasonable response to the sexual assault, supporting her self-defence claim.
- Albert kicked Tanisha’s car out of frustration for parking in a disabled space. When Tanisha drove her car at him to prevent further damage, hitting him and breaking his leg, her reaction was deemed unreasonable despite acting to prevent a crime.

The outcome of these scenarios illustrates how reasonableness can depend on the context and specific details of each case.

Question 34

Who is responsible for deciding whether the force used in self-defence is reasonable?

Answer 34

• The test for reasonableness is objective; thus, the defendant’s belief that they used reasonable force is irrelevant.
• Whether the amount of force used by the defendant was reasonable is a question to be decided by magistrates or the jury.
• The court assesses whether the degree of force is reasonable based on the circumstances as the defendant honestly and genuinely believed them to be (s 76(3))

To determine if the force was reasonable, the question to be asked is - Was the level of force used objectively reasonable in the circumstances as D subjectively believed them to be?

Question 35

What characteristics of the defendant may influence the assessment of reasonableness in self-defence claims?

Answer 35

Evidence of the physical characteristics of the defendant is admissible; for example, a threat to a frail elderly lady would appear greater than to a robust young person.

However, a defendant’s psychiatric condition is not relevant to determining whether reasonable force was used in self-defence.

In R v Martin (Anthony), the defendant was convicted of murder after shooting a burglar fleeing the scene. On appeal, he presented evidence of suffering from a paranoid personality disorder, arguing it caused him to perceive greater danger. The Court of Appeal ruled that psychiatric evidence related to his condition was inadmissible in determining whether he had used reasonable force.

Question 36

What is the significance of self-defence in householder cases, and how does the CJIA 2008 impact the assessment of reasonable force?

Answer 36

The issue of self-defence in one’s own home has attracted extensive media coverage, particularly following cases like R v Martin (Anthony), where there was significant public outcry over the defendant’s conviction for shooting and killing a burglar as the latter was running away from Martin’s house.

As a result of this public pressure, a provision was added to the CJIA 2008, which states that:
- In a householder case, the degree of force used by the defendant is not to be regarded as reasonable if it is grossly disproportionate (s 76(5A)).

This means that where a householder is involved, force will be classified as unreasonable if it is grossly disproportionate; in other words, a householder may use more than proportionate force provided they have not “gone completely over the top.”

Question 37

How is a ‘householder’ defined in the context of self-defence cases, and what conditions must be met for this definition?

Answer 37

A ‘householder’ case is defined in the statute as one in which the defendant uses force in self-defence or in defence of another while in or partly in:
- A building or part of a building that is a dwelling.
- Forces accommodation.
- A vehicle or vessel that is a dwelling.

Importantly, the defendant does not need to be the homeowner; all that is required is that they are not a trespasser and are in or partly in a dwelling at the time of the incident.

Question 38

In what specific situations can one rely on the ‘householder’ defence if they reacts to a burglar during the night?

Answer 38

Can rely on the ‘householder’ defence when she assaults Baz:
- In the bedroom of her detached property that she owns.
- In her houseboat moored on the River Thames.
- In the army barracks where she is living on a temporary basis.
- In a campervan where she is staying on holiday.
- While halfway out of the door of her rented house.

However, cannot rely on the ‘householder’ defence if she assaults Baz:
- Outside her home on the driveway.
- At the factory premises where she works.
- When she is trespassing in her neighbour’s apartment.
- In her grocery shop, which is on the floor below the flat where she lives, because Milly’s dwelling would be accessible from her place of work.

Question 39

When is the use of force considered ‘grossly disproportionate’ in householder cases, and what implications does this have for self-defence?

Answer 39

The effect of the provision regarding self-defence in householder cases is that a householder may use force that is both reasonable and disproportionate.

However, if the force is deemed grossly disproportionate, then it becomes unlawful.
For example:
- If Tunji hits Kola on the head with a baseball bat while trying to leave the property, although this may be seen as disproportionate, it is unlikely to be regarded as grossly disproportionate; this is ultimately a question of fact for a jury to decide.
- Conversely, if Tunji hits Kola repeatedly with the bat after Kola has fallen, this would be regarded as grossly disproportionate due to the severity of the attack, especially since Kola was attempting to leave the premises.

There have been few cases on this issue, largely because the determination is so context-dependent.

Question 40

How do contextual factors influence the assessment of reasonableness in self-defence for householders?

Answer 40

In R (Collins) v Secretary of State for Justice [2016] EWHC 33 (Admin), Collins suffered serious injury when restrained in a headlock by a householder after unlawfully entering the property.
- The Crown Prosecution Service chose not to prosecute the householder, a decision that was unsuccessfully challenged by Collins.
- The court noted that there may be instances where a jury considers a householder’s actions in self-defence to exceed what might be described as the minimum proportionate response but are still reasonable given the specific and extenuating circumstances of the case.
- This indicates a more sympathetic approach when assessing whether a householder may rely upon self-defence compared to other defendants.

Question 41

Provide a summary of the evaluation process for force in householder cases regarding self-defence?

Answer 41

In householder cases, the evaluation process involves:
- Considering the degree of force used by the defendant (D).
- Determining if the force was proportionate in the circumstances as D believed them to be.
- If the force is reasonable, it may constitute self-defence.
- If the force is disproportionate in the circumstances as D believed them to be, it may still be reasonable.
- If the force is grossly disproportionate in the circumstances as D believed them to be, then it is not reasonable and does not constitute self-defence.

Question 42

What does the principle of “no duty to retreat” entail regarding self-defence and the use of force?

Answer 42

There is no rule of law that requires a defendant to retreat before resorting to action in self-defence.

When assessing whether the use of force was reasonable, the possibility that the defendant could have retreated is to be considered, but it should not be given undue weight (CJIA 2008, s 76(6A)).

Question 43

How does the law of self-defence account for actions taken in the ‘heat of the moment’ by the defendant?

Answer 43

The law demonstrates empathy towards the defendant, acknowledging that they may not have sufficient time to consider their response due to the urgency of the situation.

Factors include:
- The understanding that a person may act differently with the benefit of hindsight.
- Acknowledgment that the defendant might be under significant pressure to quickly determine if force is necessary and to what degree.

In Palmer v R [1971] AC 814, Lord Morris highlighted that defendants acting in self-defence may lack time for rational decision-making, particularly in moments of unexpected anguish.

Question 44

What statutory considerations guide the assessment of a defendant’s actions in self-defence during the ‘heat of the moment’?

Answer 44

The perspective from Palmer v R is reflected in statute:
- The court must consider that a person acting for a legitimate purpose may not be able to weigh the exact measure of any necessary action (s 76(7)(a)).
- Evidence showing a person acted instinctively and honestly in what they thought was necessary constitutes strong evidence that only reasonable action was taken by that person (s 76(7)(b)).

A legitimate purpose includes acting in self-defence, the defence of another, or the prevention of crime.

For example, when Ariel instinctively punches Juliet in the face to protect herself, she will be assessed on her honest and instinctive response at the moment rather than judged with hindsight.

Question 45

Provide a summary of intoxication.

Answer 45

Voluntary intoxication is a defence to crimes of specific intent, namely those offences where the required mens rea is intention (and nothing else). Even then, the defence will only succeed if the defendant lacked mens rea.

Intoxication cannot be relied upon by the defendant for ‘Dutch courage’ cases nor is it available where the defendant is simply mistaken as to the strength of the alcohol.

Voluntary intoxication is no defence to crimes of basic intent – those that can be committed recklessly.

Involuntary intoxication may be a defence to crimes of both basic and specific intent, but only where the defendant lacks mens rea.

Taking a non- dangerous drug that has unexpected consequences may count as involuntary intoxication provided the defendant was not reckless in taking the drug.

A defendant who makes a mistake due to their voluntary intoxication may still rely on the defence of lawful excuse for criminal damage but a defence of self- defence would fail.

Question 46

Provide a summary of self-defence.

Answer 46

There is a common law defence of reasonable force in self- defence, and a statutory defence under s 3(1) of the Criminal Law Act 1967 of reasonable force in the prevention of crime. In addition, many of the points from case law have been consolidated into
legislation by virtue of s 76 of the CJIA 2008. These are general defences so they can apply to any crime and, if successful, result in a complete acquittal.

The court must first consider whether the use of force was necessary at all, and this will be
subjectively assessed based on the defendant’s own beliefs.

If so, the force used must be reasonable in the circumstances – a question that is assessed objectively by the magistrates or jury.

Force will not be reasonable where it is disproportionate unless it is a ‘householder’ case
where it will be unreasonable if it is grossly disproportionate.

If the defendant made a mistake about the circumstances, the reasonableness of the
force will be assessed on the basis of the facts as they honestly (even if unreasonably) believed them to be. The exception to this rule is where the defendant’s mistake was due to their voluntary intoxication; here, they cannot rely on their mistaken view of the facts as a basis for self- defence.

There is no duty to retreat and a defendant may act pre- emptively. Account will also be taken of the fact that the defendant acted in the ‘heat of the moment’.