Criminal Law 6 Defences COPY Flashcards
In what 2 ways can the defence of intoxication work?
- negate the mens rea of an offence
- influencing factor on another legal principle/defence
When can intoxication operate to negate the mens rea?
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)
What does not count as involuntary intoxication?
Where D is aware they’re drinking alcohol but mistaken as to its strength
If someone was voluntary intoxicated by dangerous drugs/alcohol, and committed a specific intent crime, is intoxication defence available?
Yes: ask if D still formed the necessary mens rea?
If someone was voluntary intoxicated by dangerous drugs/alcohol and committed a basic intent crime, is intoxication defence available?
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
How do intoxication and self-defence interact?
drunken mistake as to need for self-defence doesn’t count
How does intoxication interact with loss of control defence?
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
How does intoxication interact with diminished responsibility?
Depends on if the intoxication is:
a) independent of abnormality
b) as a result of ADS
If intoxication is independent of mental abnormality, what is asked?
If despite intoxication,
- suffering from mental abnormality
AND
- mental abnormality substantially impaired his mental responsibility
If intoxication is a result of ADS, what is considered?
- 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)
What can self defence only be used to protect against?
Imminent attack of physical force (not a threat to one’s peace of mind)
What is the test for self defence?
- D honestly believed use of force was necessary
- Level of force was objectively reasonable in the circumstances as D believed them to be
What kind of defence is self-defence?
A complete defence against all crimes
Is anticipatory self-defence allowed?
Yes
Can self-defence be used by an antagonist?
Yes
Can force be used against an innocent party?
Yes to prevent a crime being committed by someone else or to protect themselves
What is the test for proving self-defence?
- D honestly believed use of force was necessary
- 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
Who holds the burden of proof for loss of control?
The prosecution: they must disprove, beyond reasonable doubt, that the D was acting under a loss of control
What are the 3 requirements for loss of control defence?
- D must have lost self-control
- Due to fear and/or anger qualifying trigger
- A normal person might have acted in a similar way
When can the defence of loss of control not be used?
- ‘revenge’
- excuse to use violence
- sexual infidelity
- attempted murder
What is the difference in burden/standard of proof for loss of control and diminished responsibility?
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
What are the requirements for diminished responsibility?
- Abnormality of mental functioning
- Must arise from undiagnosed recognised medical condition
- Must have substantially impaired D’s ability to
- understand the nature of C’s conduct,
- form a rational judgement and/or
- exercise self-control - Abnormality must provide an explanation for D’s conduct - there’s a causal link
What is the definition of a principal?
Person who, with appropriate mens rea, commits the actus reus
Can have more than 1
What is an ‘innocent agent’?
Where the person who performs the actus reus is not the principal
When can consent apply?
- V consented
- Offence is one that can be consented to
Whose view matters for consent?
- victim consented
- D thought V consented
(Chuck off balcony)
What crimes can consent apply to?
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
What are the exceptions to consent for ABH and above?
- medical treatment
- tattoo etc.
- sport (heat of game)
- horseplay (balcony)
- lawful correction of child
- sex (not anymore)
