Defences

Question 1

Can a defendant attempt to use the defence of intoxication for specific intent crimes?

Answer 1

Yes, for crimes where recklessness will not suffice

Question 2

In cases of voluntary intoxication, can the defendant argue they lacked the MR?

Answer 2

Not for basic intent crimes

Can be used for specific intent crimes

Question 3

Can involuntary intoxication be used as a defence?

Answer 3

Maybe, but only if the defendant lacks the MR

Question 4

If a defendant commits an offence while intoxicated, can they rely upon the defence of mistake?

Answer 4

Not for crimes of basic intent such as simple assault

Also, if they only act in a certain way due to error of judgment as a result of intoxication, then cannot rely upon any mistake made as a consequence of intoxication

Question 5

If a defendant wishes to argue self defence, who must discharge the evidential burden?

Answer 5

The defendant

Question 6

When establishing whether force was necessary in self-defence, how is this assessed?

Answer 6

Subjectively, i.e. whether defendant believed that use of force was necessary

Question 7

How is mistake assessed in the context of self defence?

Answer 7

Defendant is judged on facts as they honestly believed them, even if mistaken or unreasonable

Question 8

In establishing whether force used for self-defence was reasonable, how is it assessed?

Answer 8

Objective test

Question 9

How are the defendant’s characteristics relevant in assessing the reasonableness of force used in self-defence?

Answer 9

If they are particularly vulnerable then higher level of force may be deemed reasonable, and vice versa

Psychiatric condition is not relevant

Question 10

How does the assessment of reasonableness of force differ in “householder cases”?

Answer 10

a householder may use more than proportionate force provided they have not ‘gone completely over the top’

Question 11

How is a householder case defined?

Answer 11

Use of self-defence / defence of another while in or partly in a building / part of / vehicle used as a dwelling

Question 12

Must the defendant retreat before acting in self-defence?

Answer 12

No, however if they could have but didn’t then this could be taken into account (but no more)

Question 13

How does the court consider the “heat of the moment”?

Answer 13

Court will take into account that

1. A person acting for a legitimate purpose may not be able to weigh up exact action needed
2. Evidence of a person’s only having done what the person honestly and instinctively thought was necessary

Question 14

Can self-defence be used for pre-emptive strikes?

Answer 14

Yes, provided there is honestly belief that use of force is necessary to ward off an attack, and the danger is sufficient specific or imminent to justify the actions