Criminal Law 6 - Defences

Question 1

Intoxication?

Answer 1

Only if it means D does not have capacity for relevant mens rea entirely

However, drugged intent and intoxicated intent still intent (R v Kingston 1995)

Question 1

Two stages

Answer 1

• Voluntary intoxication?
  -Type of offence (basic or specific intent)

Question 2

Specific and basic intent

Answer 2

Specific - intention (recklesness will not suffice). Murder, assault s18 OAPA 1861 (intent to cause GBH), theft

Basic - something less than intent (recklesness).

Beneficial to D if specific intent.

Question 3

Voluntary intoxciation

Answer 3

• If do not know strength does not matter.

DPP v Majewski (1976) - intoxication in of itself is reckless.
No defence is specific.

Question 4

Involuntary intoxication

Answer 4

R v Hardie (1985) - took valium did not know effects, was acquitted.

May be a defence whether basic or specific intent, but D needs to lack mens rea.
If clear evidence of mens rea D may not be able to rely on defence.

Attorney General for Northern Ireland v Gallagher (1963) - drunk before killing wife (intentionally) held liable due to wickedness of mind before the act.

Question 5

Mistake?

Answer 5

E.g. self defence when not needed.

-R v O’Grady - not able to rely upon mistake as consequence of intoxication.

Question 6

Lawful excuse

Answer 6

• Simple criminal damage and arson
  Honestly believed owner would have consented.
  Basic intent but applies when drunk.

Question 7

Self-defence

Answer 7

Violence must be unlawful (Lord Griffiths Beckford v R)
A person may use such force as reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

Evidential burden to discharge

Was force necessary? - Subjectively assessed,
Mistaken belief will not stop relying on defence if honestly held.
Even if unreasonable but may lead to conclude not honestly held.
If voluntarily intoxicated not allowed.

Question 8

Was force reasonable?

Answer 8

Judged on basis as to D’s honest and genuine beliefs.
-Cant be facts they are unaware of.

-Cannot be disproportionate.

Reasonableness objective test.

Physical build admissable to determining proprotionality.

Question 9

Householder

Answer 9

Cannot be grossly disproportionate
-may use more than proportionate force.

Householder?;
In or partly in;
-building or part of a building that is not a dwelling
-forces accomodation
-vehicle or vessel that is a dwelling
Need not be homeowner just not tresspasser.

Cannot be outside on driveway.

Both reasonable and disproportionate but not grossly disproportionate.

Question 10

Duty to retreat?

Answer 10

• no rule before resorting to action, may be taken into account if it was possible.

Allowance for heat of the moment. Sympathetic of the time pressures and hindsight. May not always have time to make a rational decision.

-* a person acting for a legitimate purpose may not be able to weigh up to a nicety the
exact measure of any necessary action (s 76(7)(a)); and
* evidence of a person’s only having done what the person honestly and instinctively
thought was necessary … constitutes strong evidence that only reasonable action was
taken by that person (s 76(7)(b))

Legitimate purpose - self defence or defence of another and prevention of crime.

Pre-emptive strikes;
allowed if honestly believe use of force necessary to ward of the attack.
Must be sufficiently specific or imminent to justify.