Defences Flashcards
Intoxication - When it amounts to a defence
It can only be a defence if it causes the defendant to lack the relevant mens rea for that offence. Questions need to be asked to satisfy defence:
1) Establish that the defendant lacked the necessary mens rea for the offence
2) Was the intoxication voluntary or involuntary?
3) Is the crime one of basic or specific intent?
Voluntary intoxication
Knowingly gets intoxicated - obvious.
Also if know taking drugs/alcohol but are mistaken as to it’s strength.
Or takes alcohol with medication when been told not to.
No defence for offences of basic intent.
Can use for specific intent offences to argue lacked MR.
Involuntary intoxication
Involuntary:
Obvious examples - spiked.
Whether the defendant’s conduct in taking the
drug/alcohol was itself reckless e.g. Valium normally a sedative but led to unpredictable behaviour.
Legal effect:
May be a defence to any offence, whether of basic or specific intent, but only if the defendant lacks mens rea.
Intoxication - dutch courage
A defendant who deliberately consumes alcohol or drugs in order to gain the confidence to
commit a criminal offence may not rely upon their intoxication to negate the mens rea of the
offence.
Intoxication and mistake
The defence of self- defence will fail where a defendant’s mistaken belief is induced by voluntary intoxication.
The defendant may only rely on self- defence if their reaction did not exceed that of a sober person in the same situation.
Intoxication and lawful excuse
Defence of lawful excuse for simple criminal damage or arson.
Where D believes owner consented or would have if they knew circumstances.
Irrelevant that the defendant came to it because they were intoxicated.
Self- defence and prevention of crime
Piecemeal development so referred to together as self defence.
May operate as a defence to an offence.
D required to raise defence as a live issue at trial then on prosecution to disprove it beyond a reasonable doubt.
Self-defence - was force necessary?
Defendant’s action was necessary to defend themselves or another
from attack or to prevent the commission of a criminal offence - subjective.
Self-defence - mistaken belief
Doesn’t matter if mistaken even if belief unreasonable.
However, if the defendant’s mistake was an unreasonable one to make, this may be a
reason for the jury to conclude that the belief was not honestly held.
If mistaken because of voluntary intoxication, cannot use self defence.
Self-defence - was the amount of force used reasonable?
D is judged on the basis of the facts as they honestly and genuinely believed
them to be.
Reasonable if not disproportionate in light of the circumstances as D believed them to be.
Test for reasonableness is objective.
Physical characteristics of the defendant are admissible but not psychiatric ones.
Self-defence - householder cases
Unreasonable if grossly disproportionate.
If just disproportionate then force may be reasonable and may be able to use defence.
Need not be homeowner just not trespasser and are in or partly in dwelling.
Self-defence - no duty to retreat
No rule of law that states a defendant must retreat before resorting to action.
When deciding whether the use of force was reasonable, the possibility that the defendant could have
retreated is to be considered and taken into account.
Self-defence - heat of the moment
Account taken of fact D may be under significant pressure to make up mind quickly when deciding if force necessary and what degree.
Self-defence - pre-emptive strikes
A defendant 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.
