Criminal Law - General Defences (2) Flashcards
What are the general defences?
General Defences: Most offences have specific in-built defences. However, there are a number of ‘general defences’ that individuals can rely on to partially or wholly reduce their liability in respect of multiple types of offence.
What is the defence of self defence and prevention of crime?
Self-Defence and Prevention of Crime: Individuals are permitted to use ‘reasonable force’ to defend themselves or others, or prevent crimes from being committed. This is a complete defence, meaning liability is wholly removed.
(1) In Practice: Though available for a range of offences, this defence is typically raised in respect of assaults and homicides. These offences often require acts to be ‘unlawful’ - this defence renders the act lawful.
(2) Burden of Proof: Defendants must raise this defence if they wish to rely on it. However, the Prosecution has the burden of disproving it (beyond reasonable doubt).
(3) Elements: It must be determined that force was necessary in the circumstances, and reasonable therein.
Necessary in Circumstances
Necessary in Circumstances: It must be necessary to use force in the circumstances as believed by the Defendant. This is subjective.
(1) Circumstances: The Defendant must base this necessity off of the facts perceived at the time. This means they cannot claim self-defence based on facts they learn after-the-fact (R v Dadson).
>(A) hits (B) over the head unprovoked. (A) later learns (B) had just robbed a bank. (A) cannot claim self-defence as they did not have this knowledge at the time.
(2) Mistaken Belief: The Defendant can still claim self-defence if they made a mistake as to the circumstances, provided the mistake was honestly made. This is a subjective test (R v Williams).
Honest: Honest simply means the mistaken facts were truly believed by the Defendant, irrespective of how reasonable the mistake was to make.
In Practice: In practice, the less reasonable a mistake is to make, the less likely the jury is to believe that the mistake was honest.
Exceptions: Mistakes are not honest if they owe to psychiatric issues (R v Martin) or voluntary intoxication (R v O’Grady).
>It is unclear what the effect of making a mistake during intoxication that a sober person would also have made is.
Reasonable Force
Reasonable Force: The force used must be reasonable, according to the facts as the Defendant believed them. This is objective.
(1) Reasonable: The ordinary person would regard the force used as proportionate, in the context of the circumstances as the Defendant honestly believed them to be.
>Revenge and retaliation are never reasonable.
>The greater the threat, the greater the force permitted.
>Courts can consider physical characteristics, such as an old person being more at risk. They cannot consider psychological characteristics here.
(2) Householder Reasonableness: Householder’s (non-trespassers in an occupied dwelling) can use disproportionate force to protect themselves against perceived trespassers (s67 CJIA).
>Dwellings include occupied vehicles or vessels.
>Force is only unreasonable if grossly disproportionate (Collins v Secretary of State).
>(A) is awoken in the night by a burglary in their room. They can hit them with a bat, which is disproportionate but reasonable. They cannot stab the person 15 times, as this is grossly disproportionate.
Additional Considerations
Additional Considerations: A number of additional considerations must be made when considering self-defence.
(1) Pre-Emptive Strikes: Defendants do not need to be attacked before reacting in self-defence. They need merely honestly apprehended an immediate and sufficient threat (Beckford v R).
(2) Preliminary Retreat: Defendants do not need to attempt retreat before reacting in self-defence. However, this may affect how reasonable force was (s76 CJIA).
(3) Heat of the Moment: Courts recognise that self-defence often occurs in the ‘heat of the moment’. Defendants are not expected to ‘weigh up to a nicety the exact measure of necessary action’ (s76).
>This means courts grant more leniency when considering what was ‘reasonable’ and ‘honest’ at the time.
What is the defence of intoxication?
Intoxication: Defendants may be able to rely on a state of intoxication a defence to state of mind offences, meaning offences that require intent or recklessness.
Voluntary Intoxication
Voluntary Intoxication: Individuals who were knowingly and freely intoxicated at the time of offence may partially reduce their liability by claiming voluntary intoxication (DPP v Majewski).
(1) Defence: Defendants have a partial defence to a crime of specific intent if their voluntary intoxication prevented them from forming the necessary intent, except for sexual assaults (R v Heard).
(2) Effect: Successful defence means the Defendant is charged with a related offence of basic intent (R v Lipman).
>(A) gets very drunk and beats another man, breaking his bones. If he successfully pleads voluntary intoxication, he can reduce s18 GBH (intent) to s20 GBH (intent and recklessness).
(3) Underestimation: It is irrelevant that a person miscalculated the strength of their intoxicant so long as they consumed it voluntarily (R v Allen).
(4) Dutch Courage: Voluntarily intoxicating oneself in order to gain courage to commit an offence is not a defence, as the necessary intent was already formed (AG v Gallagher).
(5) Mistaken Facts: The effect of mistake whilst voluntarily intoxicated will differ by offence.
Criminal Damage: Defendants can rely on a mistaken belief to consent in defence to criminal damage, even if derived through voluntary intoxication (Jaggard v Dickinson).
>(A) drunkenly breaks into what they think is their friend’s house after a night out, thinking they would consent. Instead, it is their friend’s neighbours. They can rely on mistaken consent.
Self-Defence: Defendants cannot rely on mistaken belief to warrant self-defence if derived through voluntary intoxication (R v O’Grady).
>(A) drunkenly believes a person to be swinging a punch at them, even though they are going to open a door. (A) punches them to protect himself. (A) cannot rely on self-defence.
Involuntary Intoxication
Involuntary Intoxication: Involuntary intoxication is a complete defence to any offence, provided the Defendant did not possess the mens rea prior to intoxication (R v Kingston).
(1) Involuntary: This means the Defendant was intoxicated against their will and knowledge, or consumed a subject through which intoxication was objectively unforeseeable.
>Being spiked with a drug is involuntary (R v Kingston).
>Consuming prescription medication with an adverse side-effect is involuntary intoxication (R v Hardie).
(2) Mens Rea: The Defendant must not have had the intent or motive to commit the offence. If the involuntary intoxication simply reduces their inhibitions to conduct an offence, then there is no defence.
>Individual attracted to children was involuntarily drugged. This relieved their inhibitions, and they had sexual intercourse with a child. Involuntary intoxication was therefore not a defence (R v Kingston).
