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 defendant 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

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

The court will consider the effect of each aspect on the conduct

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

Only if D did not form the relevant MR
- 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

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

In the context of basic intent offences, what is an exception to general rule that a defendant cannot be absolved from liability for a mistake induced via voluntary intoxication (non-dangerous substance) ?

Answer 15

criminal damage - Jaggard v Dickinson

Question 16

Why is intoxication not a defence to strict liability offences?

Answer 16

Because strict liability offences have no mens rea requirement

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

Will a defendant be precluded from relying on self-defence where his belief as to whether force was ‘reasonably necessary’ was induced by voluntary intoxication?

Answer 18

Yes (R v O’Grady)

Question 19

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

Answer 19

That force is immediately required

Question 20

What two-limbed test is considered when assessing whether D’s use of ‘force’ amounts to self-defence ?

Answer 20

Force must be:
1) necessary (subjective) - based on facts as D believed them to be;
AND
2) reasonable (objective/subjective)
- jury must consider whether force was ‘proportionate’ based on facts as the defendant believed them to be at the time?

Question 21

For self-defence, how should the jury approach the relationship between ‘necessity’ and ‘reasonableness’ ?

Answer 21

An act considered necessary does not mean that the resulting action is always reasonable (R v Clegg)
- need to assess each requirement independently of each other

Question 22

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 22

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

Question 23

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

Answer 23

Decisions that were made in the heat of the moment

Question 24

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

Answer 24

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

Question 25

When considering whether force was ‘necessary’, what are five key principles to remember in assessing whether D held an ‘honest’ belief?

Answer 25

1) Pre-emptive strike does not rule out defence
2) No legal duty to retreat
3) Threat must be immediate and imminent
4) D may still plead self-defence, even where he instigated the initial attack.
5) Key question is whether D’s belief was ‘honest’ ≠ reasonable

Question 26

What are the four conditions that must be satisfied to rely on self-defence in householder cases?

Answer 26

1) Must be a householder
2) Force must be used while in/partly in a dwelling (≠ include garden)
3) D must honestly believe that V is a trespasser; AND
4) Force must be:
(i) necessary - same test as regular self-defence; and
(ii) not grossly disproportionate (objective)

Question 27

In householder cases, what two-step inquiry must the jury undertake when assessing whether a defendant’s use of force was ‘grossly disproportionate’?

Answer 27

Standard offers more-leeway to householders than regular self-defence cases.
R v Ray
1) Was the degree of force grossly disproportionate’ in the circumstances as D believed them to be?; AND
2) If not, was it reasonable, notwithstanding being possibly disproportionate?

Question 28

Can you rely on the householder standard of self-defence if you drag a burglar outside your home, and then use force in a subsequent altercation?

Answer 28

NO - no longer in property!