CRIMINALCAPACITY AND DEFENCES

Question 1

CRIMINAL LIABILITY

Answer 1

Capacity is distinct from a defence. It excuses the potential defendant from liability because they are unable to commit the alleged offence. This may be caused by age or mental state.

Question 2

CHILDHOOD

Answer 2

1. In English law, a child under the age of 10 is incapable of committing a crime.
2. This does not mean that a child who has reached the age of 10 will be treated the same as an adult.
3. It is accepted that a child, especially one who is still of a
   very young age, may not be able to apply the same ‘moral’ standards as an adult

Question 3

4

UNFITNESS TO PLEAD

Answer 3

For a defendant to be fit to plead, they must be
1. “of sufficient intellect to comprehend the course of the proceedings in the trial
2. as to make a proper defence, 3. to challenge a juror to whom they might wish to object, and
4 to comprehend the details of the evidence”

Question 4

3

If Defendant Unfit

Answer 4

1. If the defendant is not fit, the court will decide whether the defendant “did the act or made the omission charged against them as the ofence”.
2. Essentially, the court will decide on the actus reus alone.
3. The court will not look at the mental element, as the defendant has been found** not to be legally responsible **for their actions.

Question 5

4

If Court Finds Defendant Committed the
Act and the Defendant is unfit

Answer 5

1. If the court finds that the defendant has committed the act, the court has a variety of disposals.
2. Often the court will send the defendant to hospital for a set period of time or until they improve.
3. A defendant can also receive a supervision order or even an absolute discharge.
4. However, in the case of murder, the court is obliged to send the defendant to hospital for an indefnite period.

Question 6

INTOXICATION

Answer 6

The law draws a sharp distinction between voluntary intoxication (for example, when a defendant decides to drink alcohol excessively) and involuntary intoxication (for example, when someone pours alcohol in the defendant’s drink without their knowledge, that is, ‘spiking’ drinks), as well as between dangerous and
nondangerous drugs.

Question 7

4

Involuntary Intoxication

Answer 7

1. The courts have held that where the defendant has become intoxicated through no fault of their own, they may not be able to form the mental state required for the offence.
2. Not Always a Defence
   A defendant who is involuntarily intoxicated can still form the mens rea for an offence if the defendant’s intent was not formed by the defendant’s intoxicated state, but rather by their own desires and predilections—drunken intent is still intent.
3. Ignorance of Strength of Intoxicant No Defence
   If a defendant simply does not know the strength of the alco-hol or the drug they are taking, the court will not consider this to be involuntary intoxication.
4. Part Voluntary, Part Involuntary
   If a defendant states that some of their intoxication was voluntary and some was involuntary (for example, they drink a double shot of alcohol where they think it was a single shot), a court will have to consider how each part of the intoxication, voluntary and involuntary, affected the defendant before making its decision.

Question 8

2

Voluntary Intoxication

Answer 8

If a defendant becomes voluntarily intoxicated, the court will look to
1. whether the drug was dangerous or nondangerous and

2. whether the offence committed is one of basic intent or specifc intent.

Question 9

4

Dangerous vs. Nondangerous Drugs

Answer 9

1. Alcohol and illegal drugs are considered to be ‘dangerous’
   and will not negate mens rea.
2. However, if the defendant becomes intoxicated after taking prescription medication, this will be considered intoxication by a nondangerous substance.
3. In these circumstances, the intoxication can negate mens rea, subject to the proviso set out above that intoxicated intent is still intent.
4. If the drug taken is dangerous, the court will go on to consider whether the offence is one of basic or specifc intent.

Question 10

Basic Intent

Answer 10

1. A crime of basic intent, such as s20 GBH, can be committed either intentionally or recklessly.
2. A court will find that a defendant who voluntarily becomes intoxicated and then causes
   injury to a victim has been reckless by becoming intoxicated and, therefore, has satisfied the mens rea of a basic intent offence, such as s20 GBH.

Question 11

Specifc Intent

Answer 11

1. Specifc intent offences, such as causing grievous bodily harm with intent (section 18 of OAPA), can be committed only intentionally;
2. recklessness will not satisfy the mens rea requirement of these offences.
3. A court will not find that a defendant who was voluntarily intoxicated has the required mental state to desire the outcome of the offence—for
   example, for s18 GBH with intent, that the victim be severely injured. Again, this is subject to the proviso that drunken intent is still intent.

Question 12

Specifc/Basic Intent Crimes Distinguished

Answer 12

There is not an exhaustive list of which crimes require specifc intent and which simply require basic intent.
1; Murder,grievous bodily harm under s18, theft, robbery, and burglary are examples of specifc intent ofences.
2. Grievous bodily harm under s20, actual bodily harm, battery, assault, criminal damage, and arson are examples of basic intent ofences.

Question 13

Intoxication and Strict Liability Offences

Answer 13

Intoxication is never a defence to a strict liability offence because such offences do not require any mental state on the part of the defendant.

Question 14

Courage and intoxication

Answer 14

If a defendant becomes intoxicated to gain the courage to commit a specifc intent crime, they will be guilty of the offence.

Question 15

4

SELF-DEFENCE

Answer 15

Self-defence is a broader defence than the name suggests, as it covers 1. defence of self,
2. defence of another or property,
3. prevention of crime, and
3. effecting lawful arrest. It provides a complete defence to any charge, and so a successful plead-ing will result in acquittal.

Question 16

3

For this defence to be available:

Answer 16

1. The defendant must be acting to protect themselves, another, or property; or must be acting to prevent a crime or to effect a lawful arrest;
2. The defendant must have a subjective belief that force was immediately required; and
3. The amount of force the defendant uses must be reasonable based on the facts that the defendant believed them to be at the time. Reasonable has been interpreted to mean proportionate.

Question 17

4

The Householder Exception

Answer 17

1. When an intruder enters someone’s home, the level of force deemed to be reasonable in self-defence is higher than in other circumstances.
2. Householders may use any force that is** not grossly disproportionate** or not** so disproportionate **as to be unreasonable and still rely on self-defence.
3. The courts will take into account that decisions are mad**e in the heat of the moment **in deciding what amounts to grossly disproportionate.
4. To fall into the householder exception, the defendant must be in a dwelling, must not be a trespasser, and must believe that the victim is a trespasser.

Question 18

Necessity

Answer 18

1.mNecessity is sometimes also referred to as duress of circum-stance. It can be relied upon where the defendant’s commis-sion of the offence was the lesser of two evils.
2.. The following requirements must be satisfied:
(1) The act was required to avoid some inevitable and irreparable evil;
(2) The defendant only did what was reasonably necessary; and
(3) The evil inficted was not disproportionate to the evil
avoided
It is important to note that this defence is not available to a
charge of murder. If a defendant is faced with a choice of dying or killing another to avoid their own death, they are le-gally obliged to sacrifce their own life rather than another’s.

Question 19

7

Duress

Answer 19

It can, at times, be relied upon if the defendant was subjected to threats and committed an ofence to avoid the threats being realised.
There are seven restrictions on the offence:
1. It is not available for murder or attempted murder;
2. There must be a threat of death or serious injury;
3. The threat must be against the defendant, their close relative or friend, or someone for whom the defendant reasonably feels responsible;
4. The defendant must have good cause to fear, taking into account the nature of the threat;
5. A person of reasonable frmness 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 7. The defendant cannot rely on the defence if they have voluntarily associated with the maker of the threat, knowing that their associate has violent criminal tendencies.ction; and