Defences

Question 1

What is the only way intoxication can ever be a potential defence?

Answer 1

Intoxication is only ever a potential defence is defendant is arguing that intoxication caused them to lack mens rea

It is never a defence to criminal liability (ie. can’t say ‘I only did this because I was drunk’)

Question 2

For which offences can INVOLUNTARY intoxication be raised as a defence?

Answer 2

Involuntary intoxication can be a defence to any offence

Will be a defence only if the involuntary intoxication caused them to lack the MR of the offence - if there is clear evidence of mens rea, defendant can’t rely on the defence

(Nb. Can’t claim involuntary intoxication if just didn’t know how high alcohol content was)

Question 3

For which offences can the defendant rely on the defence of voluntary intoxication (by drink or drugs)?

Answer 3

Specific intent offences only (ie. where MR is intention)

Defence only available if the voluntary intoxication caused them to lack the MR of the offence

(ie. ask: Did the defendant still form the necessary mens rea?)

Question 4

Is voluntary intoxication available as a defence for basic intent offences (ie. those which can be committed recklessly?)

Answer 4

No (MR is essentially implied - they are deemed to have been reckless by getting intoxicated)

Ask: Would the defendant have formed the necessary MR if sober?

Question 5

Is the defence of voluntary intoxication available for Dutch Courage cases?

Answer 5

No

Where a defendant deliberately gets intoxicated to summon up courage to commit a criminal offence, they cannot rely on their intoxication as a defence

Question 6

What is the effect of intoxication on the defence of self-defence?

Answer 6

If the defendant makes the mistake as to the need to defend themselves as a result of their voluntary intoxication, they will not be able to rely on self-defence

Question 7

What is the effect of intoxication on the defence of lawful excuse?

Answer 7

Can rely on lawful excuse under s5 CDA (re whether owner would consent) even if the belief that they could rely on the consent of the owner was mistaken as a result of their voluntary intoxication

Question 8

For which offences can a defendant rely on the defence of self-defence?

Answer 8

All offences

General defence - can apply to any crime &, if successful, result in complete acquittal

Question 9

What are the two questions to be asked when considering self-defence?

Answer 9

1. Did the defendant genuinely believe it was necessary to use force? (subjective)
2. Was the degree of force used reasonable in the circumstances as the defendant perceived them to be? (objective)

(If householder, was the force grossly disproportionate?)

Question 10

What must be satisfied for the defence of self-defence?

Answer 10

1. Did the defendant genuinely believe it was necessary to use force?
   - Subjective - based on the facts as defendant honestly & genuinely believed them to be
   - Belief may be mistaken (except if drunken mistake because of voluntary intoxication)
2. Was the degree of force used reasonable in the circumstances as the defendant perceived them to be?
   - Objective
   - No duty to retreat, but will be considered in relation to ‘reasonableness’
   - Includes a pre-emptive strikes
   - Defendant’s physical characteristics of relevance (eg. if v frail) will be taken into account when deciding reasonableness (but not psychiatric characteristics)
   - Account is taken of fact that decisions are made in ‘heat of the moment’

–> If it is a HOUSEHOLDER case, ask: was the force GROSSLY DISPROPORTIONATE?

Question 11

What is the difference between householder & non-householder cases in self-defence?

Answer 11

For non-householder cases, the question is whether the amount of force used was reasonable in all the circumstances as the defendant believed them to be

For householder cases, the question is whether the force was GROSSLY DISPROPORTIONATE in the circumstances as the defendant believed them to be
(ie. could be disproportionate but still reasonable)

Question 12

What five conditions must be satisfied for the defendant to be considered a ‘householder’?

Answer 12

1. Defendant is using the defence of self-defence

and

2. Defendant uses force while he is in a building

and

3. Defendant is not a trespasser in the building

and

4. Defendant believes that the victim is a trespasser in the building

and

5. The building is a dwelling-house
   - Not nec where D himself dwells
   - If mixed use: if D lives there & there is an internal door between dwelling & office/shop etc., whole office is a building

Question 13

What condition must be satisfied for a mixed use building to be considered a dwelling in relation to self-defence?

Answer 13

If the defendant LIVES THERE & there is an INTERNAL DOOR between the dwelling & the office/shop etc.

Question 14

Is loss of control a full defence or a partial defence?

Answer 14

A partial defence (ie. defendant remains liable for causing the death, but their behaviour is excused in some way)

ie. Could lead to a conviction for voluntary manslaughter instead of murder

Question 15

Is diminished responsibility a full defence or a partial defence?

Answer 15

A partial defence (ie. defendant remains liable for causing the death, but their behaviour is excused in some way)

ie. Could lead to a conviction for voluntary manslaughter instead of murder

Question 16

For which offences are the defences of diminished responsibility & loss of control available?

Answer 16

Murder only.

Not relevant for any other crime!

Question 17

Where does the burden of proof lie in the defence of diminished responsibility?

Answer 17

Burden of proof is on the defendant - must prove all the elements of diminished responsibility

Standard of proof is on the balance of probabilities

(ie. accused must show that it is more likely than not that they were suffering from diminished responsibility at the time of the killing)

Question 18

What are the four elements to the defence of diminished responsibility which must be proved?

Answer 18

(a) An abnormality of mental functioning

which

(b) Arose from a recognised medical condition (mental or physical)

and

(c) Substantially impaired the defendant’s ability to:
- Understand the nature of their conduct &/or
- Form a rational judgement &/or
- Exercise self-control

and

(d) Provides an explanation for the defendant’s act or omission in doing the killing
(ie. causal link between their medical condition & their behaviour)

Question 19

What are the three elements that must be established for the defence of loss of control?

Answer 19

a. The defendant must lose self-control
- Does not need to be sudden (could be response to culmination of events occurring over time)
- Will not count if acted in a considered desire for revenge

b. The loss of control must have a qualifying trigger
- 1. FEAR (of serious violence from victim against defendant or another identified person)
- D must be genuinely afraid (subjective)
- 2. ANGER (things said &/or done that amount to circumstances of an extremely grave character & caused defendant to have a justifiable sense of being seriously wronged)
- Objective assessment
- Sexual infidelity excluded unless part of wider background/context where there is/are other qualifying trigger(s)
-Nb. neither will count if defendant incited the situation to provide an excuse to use violence

c. A person of the defendant’s sex & age, with a normal degree of tolerance & self-restraint & in the circumstances of the defendant, might have reacted in the same or in a similar way as the defendant did
- Objective assessment (except any such circumstances of D that detract from a normal degree of tolerance & self-restraint)

Question 20

What is the rule about sexual infidelity in relation to the partial defence of loss of control?

Answer 20

Sexual infidelity cannot be relied upon on its own as a qualifying trigger, but can be taken into account as one of a number of factors

Question 21

What is the burden of proof for the defence of loss of control?

Answer 21

Once the defence raises defence, burden reverts to prosecution to disprove loss of control beyond all reasonable doubt

Question 22

What are the two qualifying triggers for the partial defence of loss of control?

Answer 22

1. FEAR of serious violence from victim against defendant or another identified person
2. ANGER ie. thing(s) said or done that amount to circumstances of an extremely grave character & that caused the defendant to have a justifiable sense of being seriously wronged

Question 23

What is the final element a defendant must show for a successful for defence of loss of control if they have shown a loss of control due to a qualifying trigger?

Answer 23

That a person of the defendant’s sex and age with a normal degree of tolerance & self-restraint might have reacted in the same or a similar way in the circumstances

Question 24

Does a loss of control need to be sudden?

Answer 24

No - it could be the response to a culmination of events occurring over a period of time

(But will not count if defendant acted in a considered desire for revenge)