Criminal Law 6 Defences

Question 1

In what 2 ways can the defence of intoxication work?

Answer 1

• negate the mens rea of an offence
• influencing factor on another legal principle/defence

Question 2

When can intoxication operate to negate the mens rea?

Answer 2

Any crime where:
- involuntarily taken
- medical treatment taken voluntarily
- non-dangerous drugs taken voluntarily
(But only when intoxication negates men’s rea)
- specific intent needed (i.e. offence can’t be committed recklessly)

Question 3

What does not count as involuntary intoxication?

Answer 3

Where D is aware they’re drinking alcohol but mistaken as to its strength

Question 4

If someone was voluntary intoxicated by dangerous drugs/alcohol, and committed a specific intent crime, is intoxication defence available?

Answer 4

Yes: ask if D still formed the necessary mens rea?

Question 5

If someone was voluntary intoxicated by dangerous drugs/alcohol and committed a basic intent crime, is intoxication defence available?

Answer 5

Less likely: ask would D have seen the risk if sober

E.g.
- throwing stones would have realised risk if sober - no defence
- smashed window because tripped when drunk - defence

Question 6

How do intoxication and self-defence interact?

Answer 6

drunken mistake as to need for self-defence doesn’t count

Question 7

How does intoxication interact with loss of control defence?

Answer 7

Loss of control defence cannot be approached with reference to intoxication
- But, if D is taunted as to his intoxication, can take it into account when consider gravity of qualifying trigger
- If D is addicted, this characteristic given to normal person test but normal person still has normal levels of tolerance/self-restraint and is sober

Question 8

How does intoxication interact with diminished responsibility?

Answer 8

Depends on if the intoxication is:
a) independent of abnormality
b) as a result of ADS

Question 9

If intoxication is independent of mental abnormality, what is asked?

Answer 9

If despite intoxication,
- suffering from mental abnormality
AND
- mental abnormality substantially impaired his mental responsibility

Question 10

If intoxication is a result of ADS, what is considered?

Answer 10

• Whether ADS led D to drink, even if there was an element of choice
• If it was, D’s responsibility was impaired.

(Attempts to rely on voluntary/temporary drunkenness even if based on habitual binge drinking, is not sufficient)

Question 11

What can self defence only be used to protect against?

Answer 11

Imminent attack of physical force (not a threat to one’s peace of mind)

Question 12

What is the test for self defence?

Answer 12

• D honestly believed use of force was necessary
• Level of force was objectively reasonable in the circumstances as D believed them to be

Question 13

What kind of defence is self-defence?

Answer 13

A complete defence against all crimes

Question 14

Is anticipatory self-defence allowed?

Answer 14

Yes

Question 15

Can self-defence be used by an antagonist?

Answer 15

Yes

Question 16

Can force be used against an innocent party?

Answer 16

Yes to prevent a crime being committed by someone else or to protect themselves

Question 17

What is the test for proving self-defence?

Answer 17

1. D honestly believed use of force was necessary
2. Level of force used was objectively reasonable in the circumstances as D believed them to be:
   - Non-Householder Cases: not reasonable if disproportionate
   - Householder Cases: not reasonable if grossly disproportionate: (i) was force grossly disprop in circumstances as D believed them to be (ii) whether level of force was reasonable

Question 18

Who holds the burden of proof for loss of control?

Answer 18

The prosecution: they must disprove, beyond reasonable doubt, that the D was acting under a loss of control

Question 19

What are the 3 requirements for loss of control defence?

Answer 19

• D must have lost self-control
• Due to fear and/or anger qualifying trigger
• A normal person might have acted in a similar way

Question 20

When can the defence of loss of control not be used?

Answer 20

• ‘revenge’
• excuse to use violence
• sexual infidelity
• attempted murder

Question 21

What is the difference in burden/standard of proof for loss of control and diminished responsibility?

Answer 21

Loss of Control:
- burden on prosecution to disprove it once defence raises it;
- standard is beyond reasonable doubt

Diminished Responsibility:
- burden on defence to prove that D was acting under diminished responsibility
- on balance of probabilities

Question 22

What are the requirements for diminished responsibility?

Answer 22

1. Abnormality of mental functioning
2. Must arise from undiagnosed recognised medical condition
3. Must have substantially impaired D’s ability to
   - understand the nature of C’s conduct,
   - form a rational judgement and/or
   - exercise self-control
4. Abnormality must provide an explanation for D’s conduct - there’s a causal link

Question 23

What is the definition of a principal?

Answer 23

Person who, with appropriate mens rea, commits the actus reus
Can have more than 1

Question 24

What is an ‘innocent agent’?

Answer 24

Where the person who performs the actus reus is not the principal

Question 25

When can consent apply?

Answer 25

• V consented
• Offence is one that can be consented to

Question 26

Whose view matters for consent?

Answer 26

• victim consented
• D thought V consented

(Chuck off balcony)

Question 27

What crimes can consent apply to?

Answer 27

General rule, only assault and battery.

BUT

Can apply to ABH where:
- intended to commit battery with consent of V
- did not see risk of ABH

Question 28

What are the exceptions to consent for ABH and above?

Answer 28

• medical treatment
• tattoo etc.
• sport (heat of game)
• horseplay (balcony)
• lawful correction of child
• sex (not anymore)