Criminal Law - Defences

Question 1

Intoxication

Answer 1

• Technically not a defence
• If defendant successfully pleads intoxication court will accept that they could not form the mens rea
• Courts will very rarely permit this defence (a few situations where they may allow it - involuntary intoxication, non-dangerous substance, specific intent offence)
• Will only be available if they were so intoxicated that they could not form the mens rea
• If defendant’s intent was not formed by their intoxicated state this will not be a defence (e.g. D who has paedophilic tendancies and sexually assaults a minor whilst intoxicated)
• If defendant does not know the strength of the alcohol / drug they have taken the court will not consider this to be involuntary intoxication
• If a defendant’s intoxication was part voluntary and part involuntary the court will consider how each part affected the defendant
• Never a defence to strict liability offences

Question 2

Involuntary Intoxication

Answer 2

• Intoxication potentially available to negate mens rea
• Defendant unknowingly consumed drugs / alcohol

Question 3

Self-Defence

Answer 3

A complete defence so will result in acquittal

Available if a defendant is:

• Protecting themselves, another or property
• Preventing crime
• Effecting lawful arrest

Self-defence trigger and response test:

• Trigger: did D honestly believe use of force was immediately required? Subjective and does not have to be reasonable
• Response: was amount of force reasonable based on the facts that the defendant believed them to be at the time? (i.e. proportionate) Objective test

Householder exception:

• Defendant is not a trespasser but believe victim to be a trespasser (e.g. burglary)
• Heightened level of anxiety may lead to a greater use of force than may be proportionate
• Can use force that is not grossly disproportionate or not so disproportionate as to be unreasonable
• Defendant must be in a dwelling, must not be a trespasser and must believe victim to be a trespasser

Question 4

Voluntary Intoxication

Answer 4

Defendant knowingly consumed intoxicating substance

Non-dangerous substance:

• Intoxication potentially available to negate mens rea
• Prescription medication or other substances you would not associating with intoxicating effect
• Substance must be taken in accordance with instructions

Specific intent offences

• Intoxication potentially a defence for specific intent offences (those that can only be committing intentionally)
• If the defendant becomes intoxicated to gain the courage to commit a specific intent offence they will be guilty

Question 5

Necessity

Answer 5

Can be relied upon where the defendant’s act was the lesser of two evils

The following must be satisfied:

• Act required to avoid some inevitable and irreparable evil
• Defendant only did what was reasonably necessary
• The evil inflicted was not disproportionate to the evil avoided

Not available to a charge of murder

Question 6

Duress

Answer 6

Very restricted

Can be relied upon if the defendant was subjected to threats and committed an offence to prevent threats being realised

Seven restrictions:

1. Not available for murder or attempted murder
2. Must be a threat of death or serious injury
3. Threat must be against the defendant, their close relative or friend or someone for whom the defendant reasonably feels responsible
4. Defendant must have good cause to fear
5. A person of reasonable firmness with the defendant’s characteristics would have acted the same
6. The threat must be sufficiently immediate and there must be no opportunity to take evasive action
7. Cannot be relied upon if the defendant has voluntarily associated with the maker of the threat knowing them to have violent criminal tendancies