Defences

Question 1

How can intoxication be used as defensively?

Answer 1

A way to negate the mens rea of an offence; or
* An influencing factor on another legal principle/defence.

Question 2

How does intoxication negate the mens rea of an offence?

Answer 2

If, due to intoxication, the defendant did not form the necessary mens rea, then under certain circumstances, the defendant will be entitled to a full acquittal.

Confirmed that the question at issue is not whether the defendant was incapable of forming the mens rea, but whether, even if still capable, they did form it.

• In any crime where the intoxication is caused by drink or drugs taken involuntarily, ie ‘spiking’ or ‘lacing’ someone’s drink or food with a drug or alcohol
• In any crime where the intoxication is caused by drugs taken voluntarily, but in bona fide pursuance of medical treatment
• In any crime where the intoxication is caused by non-dangerous drugs taken voluntarily (dangerous drugs are those which are illegal or alcohol)
• In crimes where a specific intent is required (generally where the offence cannot be committed recklessly)

Question 3

How does involuntary intoxication impact the mens rea?

Answer 3

Where the intoxication is involuntary, the defence of intoxication may be available for any offence (both specific and basic intent crimes).
This could arise where D was forced to consume alcohol or other intoxicating drugs, or was deceived into doing so, for example by drugs being placed in their food or their drink being laced with alcohol. See R v Kingston.
However, where the defendant is aware that they are drinking alcohol, but is mistaken as to the strength of the alcohol, this will not count as involuntary intoxication (R v Allen [1988] Crim LR 698).

Question 4

How does voluntary intoxication impact the mens rea?

Answer 4

The House of Lords held that voluntary intoxication could be a defence to a charge of specific intent, where the defendant’s intoxication negated the mens rea required for the offence charged.
However, voluntary intoxication would not be a defence to a charge of basic intent.

If the defendant’s ability to appreciate the risk was or may have been impaired through drink the jury should be asked to consider his awareness as it would have been had the defendant been sober. If they are sure the defendant would have been aware of the risk if he had been sober, the first stage is satisfied.

Question 5

How might drug usage impact the mens rea?

Answer 5

The court in R v Hardie [1985] 1 WLR 64 held that drugs are divided into two categories.
(a) Dangerous drugs: Where it is common knowledge that a drug is liable to cause the taker to become aggressive, or to do dangerous or unpredictable things, that drug is to be classed with alcohol. Illegal drugs will fall into this category.
(b) Non-dangerous drugs: Where there is no such common knowledge, eg a merely soporific or sedative drug. Different rules apply for non-dangerous drugs, the defence of intoxication might be available if D did not form the necessary mens rea.

Question 6

What is a basic intent offence?

Answer 6

A crime was categorised as one of basic intent where the defendant could be convicted on the basis of recklessness as to the consequences, or where no foresight as to the consequences is required.
An example of a basic intent offence is battery as D must intend or be reckless as to applying unlawful force on another.

Question 7

What are key examples of basic intent offences?

Answer 7

• Unlawful act manslaughter
• Gross negligence manslaughter
• Malicious wounding/inflicting GBH, s 20
• Assault occasioning ABH, s 47
• Battery
• Assault
  Basic criminal damage and aggravated
  criminal damage, s 1(1) and s 1(2) CDA 1971
  Burglary under s 9(1)(b) where D has
  fulfilled the last element
  by causing GBH

Question 8

What is a specific intent offence?

Answer 8

Crimes of specific intent were those where intention was the only form of mens rea available, ie where recklessness was insufficient mens rea for the offence to be made out.
An example of a specific intent offence is murder as D must intend to kill or cause grievous bodily harm, recklessness is not enough.

Question 9

What are key examples of specific intent offences?

Answer 9

• Murder
  Wounding or grievous bodily harm with
  intent, s 18 Offences Against the Person
  Act (OAPA) 1861
  Theft
  Robbery
  All burglary under s 9(1)(a) TA 1968
• Burglary under s 9(1)(b) where D has
  fulfilled the last element by:
• Stealing
• Attempting to steal or attempting to cause GBH
  Attempted offences

Question 10

How does intoxication work to negate the mens rea?

Answer 10

The court will ask whether the defendant did form the mens rea even though intoxicated:
* If yes, a drunken intent is still intent, D will be criminally liable, see Kingston. Another example would be if D takes drugs or alcohol in order to commit a specific intent crime (sometimes referred to as ‘Dutch courage’).
* If no, D lacks the mens rea and will be acquitted eg D was so intoxicated they did not know what they were doing.
The court will ask whether the defendant did form the mens rea even though intoxicated, in cases of:
* Involuntary intoxication (such as being drugged without consent);
* Voluntary intoxication by non-dangerous drugs (eg Hardie, the D who took Valium to calm his nerves); or
* Voluntary intoxication and D has committed a specific intent crime (eg murder).

Question 11

How does intoxication relate to other offences?

Answer 11

Self-defence: D cannot rely on a drunken mistake as to the need to use self-defence.
* Loss of control and diminished responsibility can still be pleaded if D was intoxicated but it does impact various aspects of the legal analysis.
* Consent: If the jury are satisfied that V consented to the accidental infliction of injury or D (even wrongly) believed that V consented (due to their intoxication), D may have a defence (Richardson & Irwin).
* Statutory defences, where these allow for an honest belief, D will be able to use the defence even if their belief is due to voluntary intoxication, see Jaggard v Dickinson on the lawful excuse defence for criminal damage.

Question 12

When is the consent defence available for assault and/or battery?

Answer 12

(a) Either the victim consented or the defendant believed the victim consented.

Question 13

When is consent available for ABH+?

Answer 13

General rule is it’s not available unless:

Consent is available as a defence, even where actual bodily harm or worse is caused provided the defendant:
* Intended only to commit a battery with the consent of the victim; and
* Did not see the risk of inflicting actual bodily harm.
If however, the defendant intended to cause actual bodily harm, then consent is not available as a defence, even if the victim consented (unless the conduct falls into one of the exceptions which follow).

Question 14

What are the public interest exceptions for consent?

Answer 14

Medical treatment;
* Sport (if what occurred went beyond what a player could reasonably be regarded as having accepted by taking part in the sport, this would indicate that the conduct was not covered by the defence of consent);
* Horseplay;
* Tattooing, body piercing and personal adornment; and
* Sexual gratification/accidental infliction of harm.
* Lawful correction of a child

Question 15

What constitutes self-defence?

Answer 15

• Protect themselves;
• Protect someone else;
• Protect property;
• Prevent a crime; or
  Assist in the arrest of an offender.

From immediate physical attack

Question 16

What is the test of self-defence?

Answer 16

A defendant is entitled to rely on any of these defences if:
* The defendant honestly believed that the use of force was necessary; and
* The level of force the defendant used in response was objectively reasonable in the
circumstances as the defendant believed them to be

Question 17

What about where a mistake is induced by voluntary intoxication?

Answer 17

If the mistaken belief is due to the voluntary intoxication of the defendant, then the defendant will not be able to rely on their mistake. This is the case whether the crime committed is a specific or basic intent crime

The Court of Appeal applied R v O’Connor and the earlier case of R v O’Grady and held that the mistake that he was being attacked by a sword had been induced by the defendant’s intoxication so could not be relied upon.

Question 18

Is there a duty to retreat?

Answer 18

Despite the fact that the force must have been reasonable, there is no duty to retreat in English law. Although the fact that the defendant had an opportunity to retreat may be regarded as a relevant factor.

Question 19

What about where the defendant initiated the attack?

Answer 19

A defendant may make the first blow and still rely on the defence. However, there is no doubt that the principles set out here are still applicable.

Lord Lane CJ stated that the accused would be entitled to the defence of self-defence if:
[…] his object was to protect himself or his family or his property against imminent
apprehended attack and to do so by means which he believed were no more than reasonably necessary to meet the force used by the attackers.

A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike.

The plea of self-defence may afford a defence where the party raising the defence uses force, not merely to counter an actual attack, but to ward off or prevent an attack which he honestly anticipated. In that case, however, the anticipated attack must be imminent

Question 20

Can self-defence be used by an antagonist?

Answer 20

His appeal against conviction for assault was allowed. It was held that this direction was, in effect, removing from the jury’s consideration the issue of whether or not F was attacked by W, in such a way as to entitle him to use reasonable force to defend himself. Whether or not F was a
trespasser did not entitle W to use excessive force to remove him. F would be entitled to rely on self-defence if W used excessive force in attempting to remove him, if that was what W was trying to do.

The Court of Appeal held that self-defence is not automatically precluded in a situation
where the defendant was the initial aggressor and the victim retaliated. The success of the defence would depend upon the circumstances of the case. The court made it clear that selfdefence is available to the person who started the fight if the person whom they attack not only
defends themselves but goes over to the offensive. It would then be for the jury to decide whether or not the defendant honestly believed that it was necessary for them to use force to defend themselves and whether the amount of force they used was reasonable.

Question 21

Can force be used against an innocent third party in self-defence?

Answer 21

the court did confirm that this defence was capable of extending to the use of force against an innocent third party to prevent a crime being committed by someone else. The court felt that facts capable of giving rise to such a defence would only
rarely be encountered and might include:
* A police constable bundling a passer-by out of the way to get at a person the constable believed was about to shoot a firearm or detonate an explosive device; or
* A person seeking to give car keys to another to enable them to drive and X, believing that other to be unfit to drive through drink, knocked the keys out of the first person’s hands and retained them.
The Court of Appeal confirmed that a defendant could use force against an innocent third party to protect themselves.

Question 22

What is a householder case?

Answer 22

A householder case is one where D:
* Acts to protect themselves or another;
* Uses force while in or partly in a building, or part of a building, that is a dwelling (including vehicles, vessels and buildings that are dwellings and places of work if connected by an internal access route);
* Is not a trespasser at the time the force is used; and
* Believed the victim to be in, or entering, the building or part as a trespasser.

The ‘trigger’ is unchanged but the ‘response’ is more lenient towards householders.
The jury must be asked two questions:
* Was the force grossly disproportionate in the circumstances as D believed them to be? If it was, there can be no defence.
* If not, was the level of force reasonable? The jury should take into account that the level of force should not be weighed to a nicety and that if the defendant believed in a moment of unexpected anguish that they were using reasonable force, that was very good evidence that the force was reasonable. R v Ray (Steven) listed circumstances which the jury should consider in determining whether the degree of force used by a householder was reasonable eg the shock of coming upon an intruder, the time of day, the vulnerability of the occupants, particularly children etc

Question 23

What is non-householder case?

Answer 23

Force will not be reasonable if it was disproportionate. In deciding this, the jury must take into account that:
- A person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and
- That evidence of a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.
* The defendant can be mistaken and the mistake does not need to be a reasonable one.

Question 24

Is the test for self-defence objective or subjective?

Answer 24

The essential elements of self defence are clear enough. The jury must decide whether the defendant honestly believed that the circumstances were such as to require the use of force to defend himself from an attack or a threatened attack. In this respect a defendant must be judged in accordance with his honest belief, even though that belief may have been mistaken.
But the jury must then decide whether the force used was reasonable in the circumstances as he believed them to be.
It is also worth noting that the Court of Appeal held in R v Harvey [2009] EWCA Crim 469 that the defendant must be judged not just on the circumstances as they believed them to be, but also on the danger as they believed it to be.
Also, in R v Press and Thompson [2013] EWCA Crim 1849 a soldier, who had just completed a tour of Afghanistan, was allowed to rely on psychiatric evidence that he suffered from post-traumatic stress disorder to substantiate his mistaken beliefs.
Therefore, in considering the force used, the jury must decide if the force used was objectively reasonable, given the facts as the defendant subjectively believed them to be

Question 25

Does it matter that the defendant was acting in the heat of the moment?

Answer 25

The two points made by s 76(7) replicate the common law:
* Section 76(7)(a):
- ‘that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action’ is derived from Palmer v R; and
- ‘in the circumstances one did not use jewellers’ scales to measure reasonable force’ comes from Geoffrey Lane J in Reed v Wastie[1972] Crim LR 221.
* Section 76(7)(b): ‘that evidence of a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose’ is also taken from R v
Palmer.