Defence

Question 1

Intoxication as a defence?

Answer 1

Only where the intoxication results in a loss of capacity to form the mens rea may there be a defence.

Question 2

2 stages in determining whether a D may rely on the defence of intoxication?

Answer 2

1. Court consider whether D’s intoxication was voluntary (rules differ)
2. Type of offence D has been charged: basic or specific intent

Question 3

Type of offences

Answer 3

1. Offences of specific intent mens rea is intention (recklessness will not suffice). E.g. murder; theft intention to permanently deprive
2. Offences of basic intent : mens rea can be less than intent. Courts tried to limit scope, e.g. by categorising sexual offences as basic intent.
   - unlawful act manslaughter
   - most assaults (except assault s 18 OAPA intention to cause grievous harm)
   - criminal damage

Question 4

Voluntary intoxication

Answer 4

1. Cases of voluntary:
   - takes alcohol or drugs
   - taking drugs or alcohol but mistaken as to its strength - still voluntary intoxication
   - has alcohol with medication when have been told not to
2. Impact on criminal liability
   - Voluntary intoxication ==> crime of basic intent=> no defence (getting intoxicated is reckless)
   - voluntary intoxiccation => crime of specific intent => defence to specific intent (acquitted of murder but convicted of manslaughter (basic intent)

Question 6

What amount to involuntary intoxication?

Answer 6

1. drink was spiked
2. taking non-dangerous drug or prescribed drug : will be determined by fact:
   - Valium drug normally used as sedative and harmless, - not reckless
   - taking drugs have been prescribed for sb else without consulting doctor - Reckless

Question 7

Legal effect of involuntary intoxication

Answer 7

May be defence to any defence (whether basic or specific intent) but only if D lacks mens rea

Question 8

Dutch courage

Answer 8

A D deliberately consumes alcohol or drugs in order to gain confidence to commit a criminal offence may not rely upon their intoxication to negate mens rea of offence

Question 9

Intoxication and mistake

Answer 9

D will not be able to rely on any mistake that D makes as consequence of her intoxication.

• the defence of self defence will fail where a D’s mistake belief is induced by voluntary intoxication
• defendant may only rely on self defence if their reaction did not exceed that of a sober person in the same situation.

Question 10

Intoxication and lawful excuse

Answer 10

D can rely on defence of lawful excuse if D is intoxicated. (Jaggard v Dickinson)

Question 11

Elements of self defence

Answer 11

1. D honestly believed that force was necessary
2. D used reasonable force in the circumstances as they believed them to be

Question 12

Mistaken belief

Answer 12

1. D is judged on the facts that they honestly believed them to be
2. even if they are mistaken
3. even if belief was unreasonable

Question 13

Mistaken belief due to voluntary intoxication

Answer 13

Where the D only made the mistake because they were voluntarily intoxicated, self defence will not be available to them

Question 14

how to determine whether the force used by D was reasonable?

Answer 14

• Whether the use of force was reasonable will be decided on the basis of circumstances that the D honestly believed to exist. Cannot rely on the facts of which they are unaware.
• the reasonableness or otherwise of that belief is relevant to the question whether the defendant genuinely held it.
  *not “reasonable” if it was disproportionate in the circumstances - test is objective and to be decided by judges

Question 15

Defendant’s characteristics

Answer 15

1. physical characteristics are admissible : e.g. threat vs frail elderly laby vs than a robust young person
2. Psychiatric condition is not relevant to whether or not the D used reasonable force in self defence

Question 16

Householder cases

Answer 16

where householder is involved, force will be classified as unreasonable if it is grossly disproportionate.
A householder means:
- a building or part of building that is a dwelling
- forces accomodation
- a vehicle or vessel that is a dwelling

D need not to be homeowner, they must not a trespasser and are in or partly in a dwelling

Question 17

Other issues

Answer 17

1. No duty to retreat
2. The heat of the moment:
   - a person acting for legitimate purpose may not be able to weigh up to a nicety the exact measure of any necessary action
   - evidence of a person’s only having done what the person honestly and instinctively thought was necessary… constitutes strong evidence that only reasonable action was taken by that person
   - pre-emptive strikes: a D does not have to wait to be assaulted to claim self defence provided they honestly believe that the use of force is necessary to ward off an attack. (danger they apprehend must be sufficiently specific or imminent to justify their actions).