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 trial proceedings 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 will happen if the defendant successfully pleads intoxication defence?

Answer 7

The court will find that the Def didn’t form the mens rea necessary to commit the offence and thus won’t be liable

Question 8

What is involuntary intoxication?

Answer 8

Defence may be available – this is when Def
unknowingly consumes alcohol/ drugs

Question 9

What is voluntary intoxication?

Answer 9

This is when Def knowingly and deliberately consumed intoxicating substance. Need to consider whether the intoxicating substance is dangerous or non-dangerous:

Question 10

What constitutes a dangerous substance?

Answer 10

Illegal drugs and alcohol

Question 11

What constitutes a non-dangerous substance?

Answer 11

Prescription medication and other substances you don’t expect to have intoxicating effect

Question 12

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

Answer 12

No

Question 13

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

Answer 13

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

Question 14

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

Answer 14

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

Question 15

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

Answer 15

Yes, subject to the proviso that intoxicated intent is still intent

Question 16

Will voluntary intoxication by a dangerous substance negate mens rea?

Answer 16

Only if the offence is one of specific intent

Question 17

If the crime is one of specific intent, why might the defence of voluntary intoxication of dangerous substance still apply?

Answer 17

Because the offence can only be committed intentionally and therefore the defendant may not have been able to form the required intent (although remember that drunken intent is still intent)

Question 18

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

Answer 18

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

Question 19

What would happen if the def was voluntarily intoxicated but has no mens rea for the offence?

Answer 19

He/she will be seen to have acted recklessly (and, therefore, will be guilty of basic intent crimes), but will be acquitted of any offence needing intention (i.e. specific intent crimes, such as murder.)

Question 20

Why is intoxication not a defence to strict liability offences?

Answer 20

Because strict liability offences have no mens rea requirement

Question 21

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 21

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

or

1. Prevent crime, or
2. Effect lawful arrest

Question 22

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

Answer 22

That force is immediately required

Question 23

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

(Trigger and response test)

Answer 23

1. Defendant must believe the force is immediately required; and
2. It must be objectively proportionate based on the facts that the defendant subjectively believes them to be

Question 24

When do the householder house rules apply?

Answer 24

When Def isn’t a trespasser, they are in a dwelling and the Def believes the victim is a trespasser

Question 25

What is the main thing to remember about householder cases?

Answer 25

The level of force used by the def can be greater

Question 26

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 26

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

Question 27

What type of defence is the householder defence?

Answer 27

A complete defence- if successful, def would be acquitted

Question 28

When is the defence of necessity relied upon?

Answer 28

Where Def’s commission of offence was lesser of two evils

Question 29

What are the three requirements for the defence of necessity?

Answer 29

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 30

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

Answer 30

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 31

In what circumstances is the defence of duress available?

Answer 31

The circumstances are such that death or personal injury will ensue if a crime is not committed.

Question 32

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

Answer 32

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

Question 33

What are the five requirements for duress?

Answer 33

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 34

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

Answer 34

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

Question 35

Will a person be deemed to be reckless if they are involuntarily intoxicated?

Answer 35

Unlikely- unlike with vol intox