Criminal Law: Defences Flashcards
Intoxication
Voluntary intoxication + crimes of basic intent:
- If D has committed a crime of basic intent, voluntary intoxication is not a defence because getting voluntarily intoxicated is considered to be reckless, and recklessness (R) is suffice for the MR (Majewski).
- But the jury can be directed to consider whether or not they think D would have realised the risk had he not been intoxicated (Richardson and Irwin). If they decide that D would not have realised the risk of some injury to the victim if they had been sober, then they should find them not guilty.
Voluntary intoxication + crimes of specific intent:
- If D has committed a crime of specific intent, is voluntarily intoxicated but is unable to form the MR due to being too intoxicated, they they can be found guilty of a lesser offence for which R is suffice (Sheehan v Moore).
- But if D is able to form the MR (or has already formed it), they will be guilty:
AG for Northern Ireland v Gallagher.
•Involuntary intoxication - crimes of basic and specific intent:
- For both crimes of basic and specific intent, if D is involuntarily intoxicated but had formed the necessary MR then the defence will be unsuccessful: R v Kingston.
- But if D had not formed, or was unable to form the necessary MR then it will suceed:
R v Hardie.
Insanity
For the defence to be successful three things must be proven, which were laid out in: M’Naghten.
1) D must suffer from a defect of reason (DOR).
2)The DOR must be the result of a disease of the mind (DOM).
3) The DOM caused by the DOR must cause D to not know the nature and quality of his act, or if they do, not to know what he was doing was wrong.
1) D must suffer from a DOR.
D’s powers of reasoning must be impaired. If they are capable of reasoning but has failed to use those powers, then this is not a DOR (Clarke).
2) The DOR must be the result of a DOM.
A DOM was defined in Bratty v Attorney General for Northern Ireland as “any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind”
The DOM must be caused by an internal factor: (Quick).
- If ordinary mental faculties of reason, memory and understanding are affected this is a DOM:
(Kemp).
- A DOM can be organic e.g. epilepsy, diabetes (as in Kemp) or functional e.g. paranoia, schizophrenia or manic depression (Sullivan). (Hennessy)
3) Finally, the DOR caused by the DOM must cause D to not know the nature and quality of the act or if they do, not know that it was wrong.
A) Not know the nature and quality of the act: This may be because they are in a state of unconsciousness, impaired consciousness or in an automatic state.
B) Not know it was wrong: Wrong relates to being legally wrong, not morally wrong (R v Johnson).
Self-defence / prevention of crime
Self-defence / prevention of crime:
If self-defence is successful D will be acquitted of the crime. It allows D to use reasonable force under:
• Common Law (Private) to:
1) Defend yourself from an attack.
2) Prevent an attack on a third party.
3) Defend your property.
• Under S 3 Criminal Law Act 1967 in the:
1) Prevention of crime
2) unlawful arrest if offenders, suspected offenders or persons unlawfully at large.
Two things must be satisfied for the defence to be successful:
1. The use of force must be necessary:
- The threat must be imminent: There must be some immediacy about the threat.
- Pre-emptive strike: D does not have to wait until they are hit before hitting back (R v Beckford).
- Retreat: D does not have to be shown to have retreated from the threat (R v Bird (1985).
• Self-defence and mistake:
Under S 76(4) of the Criminal Justice and Immigration Act 2008 if D genuinley but mistakenly believes force is necessary, the defence can succeed even if the mistake was unreasonable (R v Williams).
• Mistake and intoxication:
Under S 76(5) of the Criminal Justice and Immigration Act 2008 D cannot rely on a mistaken belief if the mistake is made due to being voluntarily intoxicated (R v O’Grady).
- The degree of force must be REASONABLE and PROPORTIONATE to the threat.
Covered under the: Criminal Justice and Immigration Act (CJIA) 2008.
• Reasonable
- Under s 76(7)(a) D does not have to weigh to a nicety the exact measure of necessary action.
- And under s 76(7)(b) If there is evidence that D ‘honestly and instinctively’ thought the level of force he used was the right level in the circumstances, force is reasonable.
• The force used must be proportionate to the threat.
- Retaliation or revenge:
If the force is used after all danger from the assailant is over then the defence is not proportionate (R v Clegg).
- Excessive force:
The force used must only be enough to repel an attack (Martin (Anthony)).
