Defences

Question 1

What is meant by the phrase ‘drunk intent is still intent’?

Answer 1

It means that simply saying you committed an offence while intoxicated is not a defence, or saying you acted out of character due to intoxication.

Eg - D drinks a spiked coffee and rapes a child. The drink didn’t change his guilt because P proved that D still had the necessary mens rea

In short - it only comes into play when D is so intoxicated that they lack the mens rea entirely

Question 2

Why is intoxication not technically a defence?

Answer 2

Because if it is successfully argued, the outcome is that the prosecution are unable to prove mens rea

Question 3

What are the two stages to determining if a defendant can rely on the defence of intoxication?

Answer 3

A) determine if the intoxication was voluntary or not as the rules differ depending on how D was intoxicated

B) identify the type of offence D has been charged with (offences of specific intent vs basic intent)

Question 4

What is an offence of specific intent?

Answer 4

The basic rule is that the mens rea must have intention as a part of it - such as murder

Question 5

What is a crime of basic intent?

Answer 5

A crime where the mens rea can be fulfilled with something less than intent - most assaults come into this category, apart from s18

Question 6

Are sexual offences offences of basic intent

Answer 6

Yes

Question 7

Is intoxication still voluntary if you take the drugs by choice nut dramatically underestimate the strength of the drugs

Answer 7

Yes - that is still voluntary intoxication

Question 8

Can the defence of voluntary intoxication be used for crimes of basic intent?

Answer 8

No - NEVER. Because drinking in itself fulfils the recklessness requirement

Question 9

If someone is so intoxicated (voluntarily) that they lack mens rea, can they still be guilty of the offence?

Answer 9

Yes if it’s a crime of specific intent and no if it’s a crime of basic intent

Question 10

What is an unclear example of involuntary intoxication?

Answer 10

Where someone takes a non-dangerous or prescribes drug which leads to an unpredictable and aggressive behaviour that one would not normally be expected.

The question for the jury is deciding if taking the drug is reckless.

For example - a jury held that a man taking his girlfriends Valium was not reckless because it is typically used as a setative and his girlfriend told him it would be fine

Question 11

When does involuntary intoxication work as a defence?

Answer 11

It can apply to ANY offence but only if the defendant lacked the required mens rea

Question 12

What is the Dutch courage defence and does it work ?

Answer 12

Dutch courage is when a defendant deliberately consumes drugs or alcohol to gain the confidence to commit a criminal offence and may not rely on their intoxication to negate the mens rea of their offence

Question 13

What does AG for NI v Gallagher establish in relation to Dutch courage?

Answer 13

In this case a man had the intent to kill his wife. He then drank a bottle of whisky to get the courage to stab her and then stabbed her.

The court held that ‘the wickedness of the defendant’s mind before he got drunk is enough to condemn him, coupled with the act which he intended to do and did do’

Note that this applied even when there was no coincidence between actus reus and mens rea, because of public policy reasons

Question 14

Can intoxication be used as a defence in the content of mistake (eg self defence)?

Answer 14

No not if D’s mistaken belief is induced by voluntary intoxication

D can only rely on self defence if their reaction did not exceed that of a sober person in the same situation

Question 15

Can a defendant use self defence if they MISTAKENLY believes that he is under attack and hits someone?

Answer 15

If they are sober they can - they can rely of the defence of self - defence

They can’t if they are drunk as you can’t rely on a mistake caused by intoxication - D would be guilty of assault

Question 16

Can D use the defence of lawful excuse for property damage if he mistakenly thinks the person would consent and he is intoxicated?

Answer 16

Yes, D would be not guilty of criminal damage

Question 17

What is the impact of self-defence being used successfully

Answer 17

The defendant will have a complete defence and must be acquitted

Question 18

What is the burden on the defendant regarding self-defence?

Answer 18

They do not need to prove the defence but they must raise it to make it a live issue at trial and then the prosecution must prove it not to be the case beyond a reasonable doubt.

Question 19

Where are the key consolidated principles relating to the defence of
Self-defence?

Answer 19

S76 of the Criminal Justice and Immigration Act 2008

Question 20

What is the first thing that must be demonstrated for self-defence?

Answer 20

That the use of force was ‘necessary’ - a defendant can’t rely on self defence if they use force on someone as a form of retaliation or out of revenge.

The defence is only necessary if the force was necessary to defend themselves or another from attack or to prevent the commission of a criminal offence.

That question of necessity is subjectively assessed - the court asks if the defendant believed the use of force was necessary

Question 21

Can self-defence apply to cases of mistaken belief (where D is mistaken about what the other party is going to do)?

Answer 21

Yes - their mistaken belief will not prevent them from using self-defence If they mistakenly believe that the use of force is necessary.

Note that D is judged on the facts as they honestly believed them to be, even if they are mistaken. This applies even if D’s beliefs were unreasonable

Note that if D’s mistake was an unreasonable one to make this maybe a reason for the jury to conclude the belief was not honestly held

Question 22

Does the allowance for mistaken belief to be used within self-defence apply to mistaken belief due to voluntary intoxication

Answer 22

No - the defendant cannot rely on any mistaken belief attributable to VOLUNTARY intoxication

Question 23

Can D use self-defence as a result of a mistaken belief flowing from an involuntary intoxication?

Answer 23

Yes

Question 24

Who decides if the amount of force used is reasonable in self-defence cases?

Answer 24

The jury or magistrates

Question 25

On what basis is the reasonableness of D’s use of force assessed?

Answer 25

With regards to the circumstances as D honestly and genuinely believed them to be

Question 26

What are the two elements of self-defence?

Answer 26

1 - D honestly believed that force was necessary

2 - D used reasonable force in the circumstances that they believed them to be

Question 27

For self defence can someone rely on facts that they’re not aware of ?

Answer 27

No - use the bus trip example

Question 28

Can the reasonableness of a belief impact the court’s assessment as to if it is honestly held?

Answer 28

Yes - the maths teacher example on page 178 of the ulaw book

Question 29

What does ‘reasonable mean in the context of self-defence’?

Answer 29

It means it is not disproportionate.

The greater the danger to D, the more force they can use to repel an attack. But if the use of force is excessive, the defence will fail

Question 30

Why is R v Clegg controversial regarding use of force

Answer 30

The case happened in NI during the conflict - look it up on ulaw page 178

Question 31

Is the test for reasonableness of use of force in self defence a subjective or objective test

Answer 31

It is an objective test so D’s belief about the reasonableness of the force is irrelevant - the question for the jury is weather the degree of force is reasonable in the context that the defendant honestly and genuinely believed them to be

Question 32

Which of the Defendant’s characteristics can be taken into account in determining if D acted reasonably? self defence

Answer 32

The physical characteristics are admissible - the treat to a frail elderly lady would seem greater than to a robust young person. I’m contrast, a defendant’s psychiatric condition is not relevant to whether or not D used reasonable force in self -defence

Question 33

When will the force used in self-defence be held to be not reasonable in the context of self-defence?

Answer 33

If the use of force is grossly disproportionate

Question 34

D shoots a burglar as he runs from his house - can he rely on his paranoid condition to say that his force was reasonable given his illness made him perceive a greater danger to his physical safety than others

Answer 34

No - only D’s physical characteristics are admissible here - not his psychiatric ones

Question 35

Can a householder use more than proportionate force?

Answer 35

Yes, they can use disproportionate force, they just can’t go over the top

Question 36

Can D be a householder in her friends house

Answer 36

Yes as long as she isn’t trespassing

Question 37

Can D be a householder in her campervan she stays in over summer

Answer 37

Yes.

Question 38

Can D be a householder if she is at the factory premesis where she works

Answer 38

No

Question 39

Can D use the householder defence if she is outside her home on the driveway

Answer 39

No

Question 40

Can D use the householder defence if she is halfway out the door of her rented house

Answer 40

Yes

Question 41

Can D use the householder defence if she is in a campervan while on holiday

Answer 41

Yes

Question 42

Can D use the householder defence if she is in her grocery store which is on the floor below the flat where she lives

Answer 42

Yes because her dwelling would be accessible from her place of work

Question 43

When, in a householder case, may force maybe be reasonable

Answer 43

If it is disproportionate but not grossly so

Question 44

Is there a duty for the defendant to retreat before resorting to action

Answer 44

No - the possibility that D could have retreated is considered and taken into account but no more

Question 45

Does the court account for the fact that D acts in the heat of the moment in self-defence cases?

Answer 45

Yes - in deciding whether D acted reasonably, the court must take into account that

• a person acting for a legitimate purpose may not be able to weigh up to a nicety the exact measure of any necessary action

And

• evidence of a persons only having done what the person honestly and instinctively

Eg punching someone away from you when you could have just pushed them - if you instinctively did so - it can be seen as reasonable action as taken by that person

Question 46

Does D have to wait to have been assaulted to claim self-defence?

Answer 46

No - as long as they honestly believe that the use of force is necessary to ward off an attack, a pre-emptive strike is okay

Question 47

What are the 2 elements of self defence

Answer 47

Did D believe it was necessary to use force (subjective)

And

Was the degree of force used reasonable in the circumstances (objective)