Chapter 13 - Defences

Question 1

What is intoxication in the legal context?

Answer 1

: Intoxication as a legal defense includes both drunkenness from alcohol and being under the influence of drugs.

Question 2

Can you use intoxication as a defense if you only commit an offense when intoxicated?

Answer 2

No. It is not a valid defense to say you committed a crime only because you were drunk or high. It is also not an excuse to say you acted out of character due to intoxication.

Question 3

Is arguing that you were intoxicated a defense?

Answer 3

No. Simply being intoxicated is not a defense. Intoxication only becomes relevant as a defense if it affects the defendant’s mens rea (guilty mind).

Question 4

What happened in the case of R v Kingston?

Answer 4

The defendant, with known pedophilic tendencies, was given drugged coffee without his knowledge and indecently assaulted a boy. The court held that the defendant still had the necessary mens rea despite the involuntary intoxication, and therefore could not use intoxication as a defense.

Question 5

How can intoxication be used as a defense?

Answer 5

Intoxication can be a defense if it prevents the defendant from forming the necessary mens rea for the offense. It is important to distinguish between voluntary and involuntary intoxication and whether the crime involves specific or basic intent.

Question 6

What is a crime of specific intent?

Answer 6

Crimes of specific intent are crimes where the required mens rea is intention and nothing less. Recklessness is insufficient mens rea for crimes of specific intent. Examples include murder, theft, and assault with intent to cause grievous bodily harm.

Question 7

What was the impact of the ruling in R v Heard?

Answer 7

The court ruled that voluntary intoxication is not a defense to any sexual offense, likely due to public policy concerns. This means that even if a defendant was too intoxicated to form the mens rea for a sexual offense, they could still be convicted.

Question 8

What is a crime of basic intent?

Answer 8

A crime of basic intent is a crime that can be committed intentionally or recklessly. Some examples include assault occasioning actual bodily harm and criminal damage.

Question 9

What is the significance of the DPP v. Majewski ruling?

Answer 9

This House of Lords decision established that voluntary intoxication is not a defense to crimes of basic intent. The reasoning is that by becoming voluntarily intoxicated, the defendant is acting recklessly, which is sufficient mens rea for a crime of basic intent.

Question 10

How does voluntary intoxication relate to crimes of basic intent?

Answer 10

Voluntary intoxication is never a defense to crimes of basic intent, regardless of whether the defendant lacked mens rea. This is because becoming voluntarily intoxicated is considered reckless, which is sufficient mens rea for crimes of basic intent.

Question 11

How does voluntary intoxication relate to crimes of specific intent?

Answer 11

Defendants may be able to use evidence of voluntary intoxication to argue that they lacked the mens rea for a crime of specific intent. For example, they may argue that they were too intoxicated to form the necessary intention to kill or cause grievous bodily harm.

Question 12

What happened in the case of R v Lipman?

Answer 12

The defendant was under the influence of LSD and killed the victim. The court allowed the defendant’s intoxication to negate the mens rea of murder because they were unable to prove the necessary intent. He was convicted of manslaughter instead.

Question 13

What typically happens if a defendant successfully uses voluntary intoxication to negate the mens rea of a specific intent crime?

Answer 13

Although they may avoid conviction for the specific intent crime, they will usually be guilty of a lesser basic intent offense. For example, if they successfully argue they lacked the intent for murder, they would likely be found guilty of manslaughter.

Question 14

What are examples of involuntary intoxication?

Answer 14

A defendant may be considered involuntarily intoxicated if:
* They unknowingly consume drugs or alcohol (e.g. their drink is spiked).
* They have an unexpected reaction to a prescribed medication.

Question 15

How is involuntary intoxication treated as a defense?

Answer 15

Involuntary intoxication can be a defense to both basic and specific intent crimes if the defendant can demonstrate that they lacked mens rea.
* For example, if someone unknowingly consumes a drug that makes them aggressive and they then commit an assault, they could use involuntary intoxication as a defense if the prosecution cannot prove they had the necessary intent or recklessness for the assault.

Question 16

What happened in the case of R v Hardie?

Answer 16

The defendant took his friend’s Valium and subsequently started a fire. His conviction for arson was overturned on the basis of involuntary intoxication because he took a non-dangerous drug and had an unexpected reaction.

Question 17

How does the court determine if intoxication from taking a non-dangerous drug is considered voluntary or involuntary?

Answer 17

Two elements must be satisfied:
* The drug must be considered non-dangerous.
* The defendant’s reaction to the drug must be unpredictable and not typically associated with the drug.

Question 18

What is “Dutch courage”?

Answer 18

“Dutch courage” refers to the act of deliberately consuming alcohol or drugs to gain confidence to commit a crime.

Question 19

Can a defendant use intoxication as a defense in “Dutch courage” cases?

Answer 19

No. If the defendant had the mens rea to commit the crime before becoming intoxicated, they cannot use their later intoxication as a defense. The prior intent to commit the crime is enough to convict them.

Question 20

What happened in Attorney- General for Northern Ireland v Gallagher?

Answer 20

The defendant drank whiskey to work up the courage to kill his wife. The court held that he could not rely on voluntary intoxication because he had the mens rea for murder before he started drinking.

Question 21

Can a defendant rely on a mistake caused by intoxication to argue self-defense?

Answer 21

No. The case of R v O’Grady establishes that if a defendant makes a mistake about the need to use force in self-defense because of voluntary intoxication, they cannot use the defense of self-defense.

Question 22

What is the outcome if a defendant charged with a crime of specific intent successfully argues a lack of mens rea due to intoxication?

Answer 22

They will be acquitted of the specific intent crime, but likely convicted of a lesser basic intent crime.
* For example, they might be acquitted of murder, but convicted of manslaughter.

Question 23

What is the outcome if a defendant charged with a crime of specific intent accepts that they had the mens rea, but argues they acted in self-defense due to a mistaken belief caused by intoxication?

Answer 23

They will not be able to rely on self-defense and will be convicted of the specific intent crime. For example, if they accept that they had the mens rea for murder but argue they acted in self-defense due to an intoxicated mistaken belief, they will likely be convicted of murder.

Question 24

What is the criticism of the ruling in R v O’Grady?

Answer 24

Some legal scholars argue that it is illogical to allow defendants to use voluntary intoxication to negate the mens rea for a specific intent crime, but not to rely on a mistaken belief in the need for self-defense caused by intoxication.
* They argue that a drunken mistake should be allowed as a defense for specific intent crimes but not basic intent crimes.

Question 25

What is the defense of “lawful excuse” in criminal damage cases?

Answer 25

The defense of “lawful excuse” can be used in criminal damage cases if the defendant honestly believed that the owner of the property would have consented to the damage.

Question 26

What happened in the case of Jaggard v Dickinson?

Answer 26

The intoxicated defendant broke a window to enter a house, mistakenly believing it belonged to a friend. The court ruled that she could still rely on the defense of “lawful excuse” despite her drunken mistake.

Question 27

Can a defendant use voluntary intoxication to negate the mens rea for a criminal damage charge?

Answer 27

No. Criminal damage is a crime of basic intent. Since voluntary intoxication is never a defense to crimes of basic intent, the defense would fail.

Question 28

What is the inconsistency highlighted by Jaggard v Dickinson?

Answer 28

While a defendant cannot rely on a mistake caused by intoxication for the defense of self-defense, they can rely on a drunken mistake for the defense of “lawful excuse” in criminal damage cases. This creates an inconsistency in the law.

Question 29

Can a defendant use voluntary intoxication as a defense if their actions were merely out of character?

Answer 29

No. The fact that a defendant acted out of character due to intoxication does not excuse their actions.

Question 30

Can a defendant use voluntary intoxication as a defense if they underestimated the strength of the alcohol or drugs?

Answer 30

No. Underestimating the effects of alcohol or drugs does not excuse a crime.

Question 31

Can taking a non-dangerous drug that has unexpected consequences be considered involuntary intoxication?

Answer 31

Yes, but only if the defendant was not reckless in taking the drug. In other words, the defendant must not have known, or had reason to know, that the drug could have the unexpected consequences.

Question 32

How is recklessness determined in cases of voluntary intoxication by alcohol or dangerous drugs compared to non-dangerous drugs?

Answer 32

• Voluntary intoxication by alcohol or dangerous drugs is automatically considered reckless.
• For non-dangerous drugs, the court must determine if the defendant was actually reckless in taking the drug (did they know or should they have known the risks?).

Question 33

When can force be legally justified?

Answer 33

Force may be justified if it is used:
* In self-defense.
* To protect another person from attack.
* To protect property.
* To prevent a crime.

Question 34

What are the two legal sources of the defense of self-defense?

Answer 34

• Common Law: The common law defense applies when the defendant argues that the prosecution has failed to prove that the force used was unlawful.
• Statutory Law: Section 3(1) of the Criminal Law Act (CLA) 1967 provides a statutory defense for using reasonable force in the prevention of crime or in effecting or assisting in a lawful arrest.

Question 35

Can the defense of self-defense be applied to any crime?

Answer 35

Yes. Self-defense is a general defense and can apply to any crime, including homicide offenses.

Question 36

What is the key factor that determines if the defense of self-defense is successful?

Answer 36

The defendant must have used “reasonable force”. This means that the amount of force used must be proportionate to the threat. If excessive force is used, the defense will fail.

Question 37

What is the purpose of Section 76 of the Criminal Justice and Immigration Act (CJIA) 2008?

Answer 37

Section 76 was enacted to codify the legal principles of self-defense that had developed through case law. It aimed to clarify the law and make it more transparent.

Question 38

What is the first question the court considers when assessing self-defense?

Answer 38

The court first considers whether the use of force was necessary at all. This means determining whether the defendant genuinely believed that force was required to protect themselves or another person, or to prevent a crime.

Question 39

Can the defense of self-defense be used if the defendant was mistaken about the need to use force?

Answer 39

Yes, but only if the defendant honestly believed that force was necessary. This is true even if the mistaken belief was unreasonable.

Question 40

What is the significance of the case R v Williams (Gladstone)?

Answer 40

This case establishes that a defendant can rely on self-defense even if their belief in the need to use force was mistaken, as long as that belief was honestly held.

Question 41

What does Section 76(4) of the CJIA 2008 state about mistaken belief?

Answer 41

It states that the reasonableness or unreasonableness of a belief is relevant to whether the defendant genuinely held the belief. However, if the belief was genuinely held, the defendant is entitled to rely on it for self-defense, regardless of whether it was mistaken or unreasonable.

Question 42

How does the case of R v Martin (Anthony) relate to self-defense and mistaken belief?

Answer 42

In this case, the court held that psychiatric evidence of a paranoid personality disorder could not be used to justify the defendant’s use of force. This means that evidence of mental illness is not admissible to support a claim of self-defense based on a mistaken belief.

Question 43

What is the exception to the rule that a defendant can rely on a mistaken belief for self-defense?

Answer 43

The exception is when the mistaken belief is caused by voluntary intoxication. In this case, the defendant cannot rely on self-defense.

Question 44

What do Sections 76(3) and 76(5) of the CJIA 2008 say about intoxication and self-defense?

Answer 44

• Section 76(3): The reasonableness of the force used is assessed based on the defendant’s belief in the circumstances.
• Section 76(5): A defendant cannot rely on any mistaken belief caused by voluntary intoxication to support a claim of self-defense.

Question 45

How does the court determine if the force used in self-defense was reasonable?

Answer 45

The reasonableness of the force is assessed objectively, taking into account all the circumstances of the case. The jury decides whether the level of force used was proportionate to the perceived threat.

Question 46

What does Section 76(6) of the CJIA 2008 state about reasonable force?

Answer 46

Force is not considered reasonable if it was disproportionate to the circumstances as the defendant believed them to be.

Question 47

How does the case of R v Clegg illustrate the principle of reasonable force?

Answer 47

In this case, a soldier was convicted of murder for shooting at a car after it had already passed a checkpoint. While the first three shots were considered self-defense, the final shot, fired after the danger had passed, was deemed excessive force.

Question 48

What are “householder cases”?

Answer 48

“Householder cases” refer to situations where a defendant uses force against an intruder in their dwelling.

Question 49

How does the law treat the use of force in householder cases compared to other self-defense cases?

Answer 49

Householders are given more leeway in the use of force compared to defendants in other self-defense cases.

Question 50

What does Section 76(5A) of the CJIA 2008 state about reasonable force in householder cases?

Answer 50

It states that in a householder case, force will not be considered reasonable if it was “grossly disproportionate” to the circumstances.

Question 51

Does a defendant have a duty to retreat before using force in self-defense?

Answer 51

No. There is no duty to retreat before resorting to self-defense.

Question 52

What does Section 76(6A) of the CJIA 2008 say about the possibility of retreat?

Answer 52

It states that the possibility of retreat is a factor that the jury can consider when deciding if the force used was reasonable, but it is not a requirement.

Question 53

How does the “heat of the moment” factor into self-defense cases?

Answer 53

The courts recognize that a defendant acting in self-defense may not have time to make a rational decision.

Question 54

What does Section 76(7) of the CJIA 2008 state about the “heat of the moment”?

Answer 54

It states that the jury should consider two things:
* A person acting in self-defense may not be able to perfectly weigh the necessary action.
* Evidence of a person acting instinctively for a legitimate purpose is strong evidence that only reasonable action was taken.

Question 55

What are “pre-emptive strikes” in self-defense?

Answer 55

“Pre-emptive strikes” are actions taken in self-defense before an actual attack has begun.

Question 56

When are pre-emptive strikes allowed in self-defense?

Answer 56

Pre-emptive strikes are justified if the danger the defendant apprehended was imminent and specific enough to warrant the use of force.

Question 57

Can a defendant rely on unknown facts to justify their use of force in self-defense?

Answer 57

No. A defendant can only rely on the facts as they knew them at the time of the incident.

Question 58

What are the legal and evidential burdens in self-defense cases?

Answer 58

• Evidential burden: The defendant must raise enough evidence to make self-defense a live issue at trial.
• Legal burden: The prosecution must then disprove the defense beyond a reasonable doubt.

Question 59

What happens if the prosecution fails to disprove self-defense?

Answer 59

The defendant will be acquitted.

Question 60

What is the exception to the principle that force used in self-defense must be proportionate?

Answer 60

The exception is in “householder cases” where the force used is only considered unreasonable if it was “grossly disproportionate.”