9. Criminal Capacity and Defences

Question 1

Under what age are children not criminally culpable?

Answer 1

Under ten

Question 2

What is the test for whether a defendant is fit to plead?

Answer 2

Of sufficient intellect to comprehend the course of proceedings in the trial as to:

1. Make a proper defence
2. Challenge a juror to whom they may wish to object, and
3. Comprehend details of evidence

Question 3

Where a defendant is not fit to plead, what will the court do?

Answer 3

Decide whether they committed the crime on the actus reus alone

Question 4

What are the options for the court regarding a convicted deemed to have committed the actus reus but who is otherwise unfit to plead?

Answer 4

1. Send to hospital for a set period
2. Supervision order
3. Absolute discharge

Question 5

When a defendant charged with murder is unfit to plead, what is the court obliged to do?

Answer 5

Send the defendant to hospital for an indefinite period

Question 6

Regarding intoxication, what does the law draw a line between?

Answer 6

Voluntary and involuntary intoxication

Question 7

What have the courts held when a defendant becomes intoxicated through no fault of their own?

Answer 7

They may not be able to form the mental state required for the offence

Question 8

When will involuntary intoxication not be available, and what facts will be a tip off to this?

Answer 8

Not available where the intent was not formed by the intoxicated state, but rather their desires and tendencies toward the behaviour

Question 9

Is involuntary intoxication available where the defendant underestimates the strength of their own drink?

Answer 9

No. If a defendant simply does not know the strength of the alcohol or the drug they are taking, the court will not consider this to be involuntary intoxication.

Question 10

However, what occurs where the intoxication is part voluntary and part involuntary, i.e. defendant was drinking but was also spiked?

Answer 10

A court will have to consider how each part of the intoxication, voluntary and involuntary, affected the defendant before making its decision.

Question 11

When considering voluntary intoxication, what are the two things the court will consider?

Answer 11

1. Whether the drug was dangerous or non-dangerous,
2. And, if dangerous, whether the offence was basic intent or specific intent

Question 12

Will voluntary intoxication by a non-dangerous substance negate mens rea?

Answer 12

It can! If the defendant becomes intoxicated after taking prescription medication, this will be considered
intoxication by a nondangerous substance. In these circumstances, the intoxication can negate mens rea, subject to the proviso set out above that intoxicated intent is still intent.

Question 13

Will voluntary intoxication by a dangerous substance negate mens rea?

Answer 13

Only if the offence is one of specific intent

A court will not find that a defendant who was voluntarily intoxicated has the required mental state to desire the outcome of the offence—for example, for s18 GBH with intent, that the victim be severely injured.

Remember: Intoxication can negate mens rea for s18 GBH only. Voluntary intoxication can negate mens rea for specific intent offences. Section 18 GBH is a specific intent offence, but both s20 GBH and ABH are basic intent offences, which means they can be committed recklessly. Therefore, voluntary intoxication cannot negate the mens rea of s20 GBH and ABH but can negate mens rea for s18 GBH. Note, however, that drunken intent is still intent, so if the reveller formed the intention in their drunken state, they will still be liable.

Question 14

In what specific intent situation will a voluntarily intoxicated person still be guilty?

Answer 14

Where they become intoxicated only to gain the courage to commit the offence

Question 15

Why is intoxication not a defence to strict liability offences?

Answer 15

Because strict liability offences have no mens rea requirement

Question 16

Intoxication overview

Answer 16

Question 17

For self-defence to be available, what three things must the defendant be acting to protect, or what other two things must they be trying to do?

Answer 17

Protect:
1. Self
2. Another, or
3. Property

or

1. Prevent crime, or
2. Effect lawful arrest

Question 18

To rely on self-defence, what must the defendant subjectively believe?

Answer 18

That force is immediately required

Question 19

To rely on self-defence, what must be true of the force used?

Answer 19

Defendant must believe the force is immediately required, and it must be objectively proportionate based on the facts that the defendant subjectively believes them to be

Question 20

Regarding the amount of force used, what is the standard where the defendant is a householder acting against an intruder who has entered their home?

Answer 20

The householder may use any force as long as it is not grossly or unreasonably disproportionate

Question 21

In determining what is grossly or unreasonably disproportionate, what will the court consider?

Answer 21

Decisions that were made in the heat of the moment

Question 22

In addition to being in their dwelling, what are the two other criteria the defendant must satisfy to rely on the householder exception?

Answer 22

Defendant must:
1. Not be a trespasser, and
2. Believe that the victim is a trespasser

Question 23

What are the three requirements for the defence of necessity?

Answer 23

1. Act was required to avoid an inevitable evil
2. Defendant only did what was reasonably necessary
3. What they inflicted was not disproportionate to what was avoided

Question 24

What offence is necessity not available for, and what is the effect of this?

Answer 24

Murder, therefore if someone is faced with the choice of killing another or dying/being killed themselves, the law will not excuse them if they do not sacrifice themselves.

Law technically silent on whether necessity is available for attempted murder.

Question 25

In what limited circumstances is duress available?

Answer 25

When defendant was subjected to threats and committed an offence to avoid the threats being realised

Question 26

What offences is duress not available for, and how is this different to necessity?

Answer 26

Murder and attempted murder. In theory attempted murder is not precluded from necessity.

Question 27

What are the five requirements for duress?

Answer 27

1. Threat must be of death or serious injury
2. Threat must be against defendant, their close friend/relative, or someone from whom they feel responsible
3. Defendant must have good cause to feel fear
4. Person of reasonable firmness would have reacted the same
5. Threat must be sufficiently immediate with no opportunity to take evasive action

Question 28

Even when the conditions are met, when is duress not available?

Answer 28

When the defendant voluntarily associates with the maker of the threat, knowing of their tendencies

Question 29

Please state the requirements for self-defence.

Answer 29

1. The defendant must be acting to protect themselves, another, or property; or must be acting to prevent a crime or to effect a lawful arrest;
2. The defendant must have a subjective belief that force was immediately required; and
3. The amount of force the defendant uses must be reasonable based on the facts that the defendant believed them to be at the time. Reasonable has been interpreted to mean proportionate.