Criminal Law - Defences

Question 1

Defences - What are the defences available

Answer 1

Firstly, state that these are full defences, and if proven, D will have no liability for the offence. Insanity is the exception to this - it results in a special verdict rather than a full acquittal.

• Intoxication
  
  • Voluntary intoxication or dangerous drugs
  • Voluntary intoxication by non-dangerous drugs
  • Voluntary intoxication by anything
• Consent
• Self-defence
• Infancy
• Duress
  
  • Duress by threat
  • Duress of circumstances
  • Necessity
• Insanity
• Automotism

Question 2

Defences - Intoxication

Answer 2

• You should first state that this is not strictly a defence, but may negate the mens rea and entitle D to a full acquittal. D must meet the evidential burden (show that he was drunk), and the prosecution must then prove that D went on to form the MR.
• Go on to ask: is D voluntarily or involuntarily intoxicated? By alcohol/dangerous drugs, or by non dangerous drugs? Is the crime one of basic or specific intent? Apply one of the 3 following scenarios:
  
  • Voluntary intoxication or dangerous drugs
  • Voluntary intoxication by non-dangerous drugs
  • Voluntary intoxication by anything

Question 3

Defences - Voluntary intoxication or dangerous drugs

Answer 3

• First explain DPP v Majew_ski_: t_here is a distinction between crimes of basic and specific intent. Basic intent crimes are those th_at involve recklessness as a potential alternate form of mens rea, whereas specific intent crimes require intent.
• R v Heard explained that specific intent means intent to achieve certain consequences; basic intent means recklessness or intent to commit the basic act. The classification, which you should memorise, is:
  
  • Specific intent crimes:
    
    • Ss 18 & 24 OAPA
    • Theft
    • Robbery
    • S 9(1)(a) burglary
    • Ss 2 & 3 CDA criminal damage (where damaged property or life was intended)
    • Inchoate offences
  • Basic intent crimes
    
    • ss.20,23 & 47 OAPA; also battery
    • Rape & other sexual offences
    • s. 9(1)(b) burglary
    • Criminal damage (where only recklessness is alleged)
• Once you have determined whether you are dealing with a specific or basic intent crime, state that intoxication is never a defence for a basic intent crime such as battery but that intoxication may be a defen_ce_ _to a spe_cific intent crime such as theft.
• Discussion point: according to Lord Elwyn-Jones in R v Majewski, voluntary intoxication may even be used as evidence of D’s recklessness in respect of a basic intent crime. However, that may not be a correct reading of the ratio in Majewski. In the same case, Lord Salmon suggested that the better question to ask is: “would D have foreseen the risk if sober?” Lord Salmon’s interpretation was followed in Coley, McGhee and Harris.
• If it is a specific intent crime, go on to ask: despite his intoxicated state, did D still go on to form the necessary MR? If D was so drunk that it could not have been his direct aim or purpose to, e.g. steal, then he will not be liable, but the possibility that he did form it despite being drunk is still open.

Question 4

Defences - Voluntary intoxication by non-dangerous drugs

Answer 4

• A drug is legally “non-dangerous” if it is not common knowledge that it causes the taker to become aggressive or unpredictable, e.g. sleeping pills (R v Hardie).
• There is no need to distinguish between basic and specific intent here, as it may be a defence to both (Hardie), so just go on to ask: despite his intoxicated state, did D still go on to form the necessary MR?

Question 5

Defences - Voluntary intoxication by anything

Answer 5

• As for voluntary intoxication above, there is no need to distinguish between basic and specific intent, as it may be _a defen_ce to both. Ask: despite his intoxicated state did D still go on to form the necessary MR?
• E.g. R v Kingston: Kingston molested a child after his drink was spiked. It was no defence to argue that the drugs released his paedophilic inhibitions, even though he would never have done it sober, because he had actually, when drunk, made it his aim to molest a child - he had formed the MR.

Question 6

What is the effect of intoxication on the other defences?

Answer 6

• DURESS
  
  • A mistake made when intoxicated (one that would not have been made when sober) cannot be relied upon, because it will not be a reasonable mistake, and the reasonable man is always sober.
• SELF-DEFENCE
  
  • Wh_en_ intoxicated a mistake made about the need to use force in self defence will be unreasonable if it resulted from the intoxication, and so cannot be relied upon.
• CONSENT (in sexual offences)
  
  • D’s _belief in conse_nt must be reasonable, so a drunken mistake cannot be relied upon.
• CONSENT (in offences against the person)
  
  • In *R _v Richardson_ _& I_rwin* two drunk studen**ts dropped their friend off a b_alcony_ thin_king_ _he cons_ented, but they were entitled to rely upon a drunken mistake here.
• STATUTORY DEFENCES
  
  • Statutory defen_ces_ such a_s s. 5(2)(a) Criminal Damage Act 1971 or s. 2 Theft Act 1968, only require an h_ones_t belief, and so even drunken mistaken bel_iefs can be relied upon if they are honestly held by D (J_agga_rd v Dickinson).

Question 7

Defences - Consent

Answer 7

• Two requirements:
  
  • 1) V must actually consent; or
  • 2) D must honestly believe that V consents (DPP v Morgan; R v Donovan).
• When does V’s consent negate D’s liability? You must consider:
  
  • 1) the nature of the offence and the level of harm caused or risked; and
  • 2) the nature of, and the reason for, the activity causing the harm.
• AG’s Ref. (No.6 of 1980): simple assault or battery can always be consented to, but where harm is caused “most fights will be unlawful regardless of consent.” It is possible to consent to harmless assault or battery, but not to consent to GBH (R v Brown). Where an activity involves endangerment to life or a realistic chance of harm well beyond a transient or trivial injury, it cannot be consented to (R v Emmett).
• R v Meachen (consented to broom in anus) - held that consent is a defence to a charge of simple assault or battery, but once harm arises the issue is more complex. The mere occurrence of injury alone does not remove the possibility of consent as a defence. For ABH, where the harm caused was accidental (i.e_. not foreseen_ by D), the defence of consent may work, regardless of the nature of the activity (see also R v Slingsby-consent was allowed where D accidentally scratched his partner with his ring during foreplay, which led to a fatal infection). Where D intended to cause harm a defence of consent cannot work, unless it falls into one of the excluded categories. The court in Meachen did not rule on the situation where D caused harm accidentally, but had for_eseen_ the risk of harm.
• Excluded categories: activities where consent may be a valid defence even where D intended or was reckless as to harm:
  
  • Sport - consider the sport, level of play, force used and D’s state of mind (R v Barnes).
  • _Sexual g_ratification and personal adornment:
    
    • R v Brown - not in public interest that GBH is done = consent is never a defence to GBH.
    • R v Meachen - intended battery with V’s consent, but not ABH, and did not see the risk of ABH = consent a defence to ABH here.
    • R v Wilson - V consented to an amateur branding that went wrong = consent was held to be a defence to ABH, as the branding was analogous to tattooing.
    • R v Dica - consent to sex is also consent to the risk of HIV; but where HIV is deliberately inflicted it is GBH and cannot be consented to.
  • Horseplay (R v Jone_s_).
  • Everyday contact (Collins v Wilcock).
• Consent must be informed. Consent obtained by fraud (R v Clarence) is negated in two circumstances:
  
  • Deception as to the identity of D (R v Ri_chardson__); o_r
  • Deception as to the nature and quality of the act (R v Tabassum (fake breast exam); R v Dica).
• D must believe in C’s consent, but that belief can be mistaken (R v Richardson & Irwin - not convicted because they genuinely believed that D consented to being thrown off the balcony, even though they were drunk).

Question 8

Defences - Self-defence

Answer 8

• Two requirements:
  
  • 1) D honestly believed that the use of force was necessary; and
  • 2) the level of force used was reasonable.
• Includes the common law defence of one’s person, one’s property (R v Hussey) and others (R V Gladstone Williams), and the statutory defence of the prevention of crime (s. 3 CLA 1967). Some of the common law is codified in s. 76 of the Criminal Justice and Immigration Act 2008.
• The Trigger: Consider the trigger that necessitated the use of force, and the response in the amount of force used. Can only be used in protection from physical attack, not for peace of mind (R v Bullerton). Simply fleeing from danger and causing an accident in a car would not give rise to the defence - force has to be met by force (R v Riddell).
  
  • Force used to protect from imminent attack (Devlin v Armstrong).
  • Pre-emptive strikes are allowed (Devlin; R v Beckford).
  • D can use force if he genuinely believes it is necessary, even if that belief is mistaken (R v Gladstone Williams; ss. 76(3) & 76(4)(b)(i)).
  • D cannot rely on a mistaken belief if it is a drunken mistake (R v O’Connor; s. 76(5)).
  • D has no duty to retreat (R v Bird).
  • D c_an_ _use self-defence ev_en if he was the original aggressor, if V has gone over to the offensive (R v Forrester).
• The Response:
  
  • In non-householder cases, the amount of force used must be reasonable.
    
    • This is an objective test, but judged according to the facts as D subjectively believed them to be in the heat of the moment (ss. 76(6-7); R v Owino; AG for NI (No.1 of 1975); Palmer v R).
    • The court will bear in mind that “a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action” (s. 76(7)(a)); and “evidence of a person’s having only done what (they_] honestly and instinctively thought was necess_ary… constitutes strong evidence that only reasonable action was taken” (s. 76(7)(b)).
  • In ‘householder cases the level of force used must not be ‘grossly disproportionate’ (s. 76(5A) CJIA, added by s. 43 Crime and Courts Act 2013).
    
    • A householder can thus employ a greater degree of force than a non-householder without losing the protection of self-defence. This is not a licence for a householder to do whatever he likes. The rule was clarified in R (Collins) v Secretary of State for Justice. There is a two level test:
      
      • (i) Was the force grossly disproportionate? If yes the defence fails. If no then:
      • (ii) Was the force reasonable? If no the defence fails.
    • ‘Householder is defined in s. 76(8A)-(8F). The defence applies to all lawful occupiers of a property, not just to the owner (R v Day ). In Day, a student visiting as a guest of one occupier was entitled to rely on the ‘householder’ standard when pushing an unwelcome caller from a room.
  • Self-defence is an all or nothing defence. If the force used by D is only slightly excessive, D will lose the defence entirely (R v Clegg).

Question 9

Defences - infancy

Answer 9

Children under 10 are conclusively presumed to be incapable of committing any offence, and so cannot be liable for anything.

Question 10

Defences - Duress by threat

Answer 10

• The modern test for duress, as originally set out in R v Graham, and since reformulated by Lord Bingham in R v Hasan, requires all of the following elements to be met:
  
  1. Threat of death or serious injury (i.e. GBH - R v Saunders) to the person (not threats to property-DPP NI v Lynch);
  2. Threat must have been made to D, D’s immediate family, or someone for whom D would reasonably regard himself as being responsible (this can include strangers, in the right circumstances - Rv Shayler). The threat can be relayed to D i_ndirectly_ (R v Brandford) (e.g. in Brandford a man telling his girlfriend that he was at risk of serious harm from others if she did no_t_ transport drugs), however the more directly conveyed the threat, the more likely the defence of duress will apply. Mere pressure is not sufficient (Brandford).
  3. D’s perception of the threat and his response to it are judged objectively (Hasan): both his belief in the threat and his decision to commit the crime in response must be reasonable. There must be ‘good cause’ to fear the threat (Graham). Would the reasonable person believe that a threat has been made, and that it would be carried out? The courts may take into account V’s age, sex and any recognised medical conditions (R v Bowen);
  4. Causal nexus - the threats must be immediate and D’s conduct must have been directly caused by those threats (R v Cole);
  5. There must be no evasive action that D could reasonably have taken (R v Hudson & Taylor). Hasan criticised Hudson, taking a stricter view of wh_at_ amounts to reasonable evasion;
  6. D cannot rely on threats to which he has voluntarily laid himself open, e.g. being a gang member (R v Sharp compared with R v Shepherd - in Shepherd D thought the gang was a non-violent gang of thieves, so D could rely on duress as a defence when the gang threatened him to carry out a crime). Objective test -D cannot rely upon duress where D “foresaw, or ought to have fores_een_**, the risk of bei_ng_ subjected to any compulsion by threats of violence” (Hasan); and
  7. Duress cannot be a defence to murder (R V Abbott; R v Howe) or attempted murder (Rv Gotts).

Question 11

Defences - Duress by circumstances

Answer 11

• Same elements as above, except that the threat need not be accompanied by a command to commit a specific crime, e.g.:
  
  • Rv Willer - committed road traffic offences in escaping from violence.
  • R v Martin - drove without a licence to stop another killing herself.
  • Rv Abdul Hussein - deportation an immediate enough threat to risk hijacking a plane. It was immediate because it could not be known when it would occur, but if an explicit threat is made (e.g. “pay today or you’re dead”), the maximum limit of immediacy is 24 hours (per Lord Bingham in R v Hasan).

Question 12

Defences - Necessity

Answer 12

• The common law doctrine of necessity applies to “lesser of two evils” situations. Some situations, such as ambulances racing to emergencies, are covered by statute. Other cases may be covered by the common law. Examples:
  
  • Mouse’s Case-D was allowed to jettison cargo to save a ship.
  • R v Dudl_ey_ & Stevens - the defendants ate a shipwreck survivor in order to survive, but the court held that ne_cessity_ is ne_ver a defence to mu_rder (it is interesting to note that public opinion at the time was that the defendants were in the right, and the sentencing was relatively lenient).
  • Re A: Conjoined Twins - this was a reference regarding clinical negligence in a situation in which conjoined twins needed to be surgically separated - leaving them be would lead to them both dying, but separating them would only save one and would involve killing the other. Necessity could work in such a situation.

Question 13

Defences - insanity

Answer 13

• There is a presumption of sanity (i.e. that D was of sound mind when he committed the offence), which must be rebutted for this defence to apply. If the defence can show insanity, this may result in a ‘special verdict’ - at the discretion of the court. NOTE: also see insane automatism (overleaf).
• McN_aug_hton rules (A.K.A. ‘M’Naghten rules’):
  
  • D must be suffering from a disease of th_e_ mind at the time of the offence - note that a
  • disease of the physical brain would not suffice, unless the mental faculties of reasoning, understanding or memory were impaired (Kemp);
  • The disease must result from an internal cause (R v Quick & Paddison) - post-traumatic
  • stress disorder would not suffice as that results from external causes (Re T); iii) As a result of the disease, D must have a defect of reasoning - this means a ‘complete
  • deprival’ of reasoning ability, so momentary confusion would not suffice (Clarke); and
  • As a result of his defect in reasoning, D did n_ot_ understand:
    
    • The nature and quality of the act (e.g. Codere - thinking that a person’s neck was a loaf of bread); or
    • That the act was legally wrong (not morally wrong) (Windle**).

Question 14

Defences - Automotism

Answer 14

• The defence of automatism will negate the MR (AG**’s Ref No. 2 of 1992) and so result in a complete acquittal.
• STEP 1: Define automatism: “An act done by the muscles without any control by the mind or an act done by a person who is not conscious of what he is doing” (Bratty). Thi_s_ requires the complete destruction of voluntary control - merely reduced control over one’s body would not suffice (AG’s Ref No. 2 of 1992).
• Step 2: Is it insane or non-insane automatism?
  
  • Describe events - does this fit the definition of automatism? If so, next consider:
  • Is it caused by an internal factor? If yes, this is insane automatism, in which case you shoul_d_ go through the M’Naghten rules (see defence of insanity).
  • If the automatism was caused by an external factor (e.g. a blow to the head, intoxication or post-traumatic stress), then it is non-insane automatism (Sullivan) (go through the following steps for non-insane automatism).
• Step 3: Is the crime one of basic or specific intent?
  
  • Specific: if automatism is shown, D could not have formed the intent so must be acquitted (Bailey).
  • Basic: consider whether the automatism was self-induced. (go to Step 4 below).
• Step 4: Was the automatism self-induced?
  
  • Not self-induced =D must b_e_ acquitted.
  • Self-induced = consider whether the drug was dangerous or non-dangerous (go to Step 5 below- and also consider whether the defence of intoxication might apply)
• STEP 5: Dangerous or non-dangerous drug?
  
  • _Dangerous d_rug = no defence to a basic intent crime, so D cannot have a d_efence o_f automatism.
  • Non-dangerou_s drug = consider whether D was aware that his actions might make him “aggressive, unpredictable or uncontrolled” (Bailey; Hardie). If D was aware of this, then D cannot have a defence of automatism. If D was not aware of this, the _defenc_e applies and D must b_e acquitted.