Defences

Question 1

How can intoxication operate as a defence?

Answer 1

Two different forms:
- A way to negate the mens rea of an offence
- An influencing factor on another legal principle/defence

Question 2

Intoxication negating the mens rea

Answer 2

Prosecution must prove beyond reasonable doubt that the defendant has committed the actus reus with the necessary mens rea.

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.

Judge is obliged to direct jury on intoxication whenever there is evidence such that a reasonable jury might conclude that there is a reasonable possibility that the accused did not form the mens rea.

Question 3

What if intoxication did not negate the mens rea?

Answer 3

No answer to say that they would not have behaved as they did but for being drunk. If P can establish that the defendant formed the necessary mens rea despite their intoxication, then intoxication will not assist the defendant.

Question at issue: was whether the defendant did form the mens rea (whether capable or incapable of forming it)

Question 4

R v Kingston

Answer 4

No defence to be drugged. If he still formed the mens rea in his intoxicated state it was no defence to plead that he would not have committed the offence when sober.

Question 5

Intoxication: burden

Answer 5

evidential burden on defence to raise intoxication, prosecution must then prove beyond a reasonable doubt they did form the mens rea.

Question 6

Questions to ask for intoxication

Answer 6

1. Is the defendant voluntarily intoxicated or involuntarily intoxicated?
2. Is the intoxicant a dangerous alcohol/drug or a non-dangerous drug?
3. Is it a crime of basic or specific intent?

Question 7

Involuntary intoxication

Answer 7

Where the intoxication is involuntary, the defence of intoxication may be available for any offence (both specific and basic intent crimes).

Note: if they are aware they are drinking alcohol but just confused as to the strength, this is not involuntary intoxication.

Did they see the risk of harm even though drunk?

Question 8

Voluntary intoxication

Answer 8

Can be a defence to a charge of specific intent where the defendant’s intoxication negated the mens rea required for the offence charged.

BUT is not a defence to a charge of basic intent. Should ask jury to consider whether the defendant would have seen the risk had they not been intoxicated.

Question 9

Specific intent crimes

Answer 9

• Murder
• S18
• Theft
• Robbery
• All burglary offences (except 9(1)(b) where has caused GBH)
• Attempts

Question 10

Basic intent crimes

Answer 10

• Unlawful act manslaughter
• Gross negligence manslaughter
• s20
• Assault occasioning ABH
• Battery
• Assault
• Basic criminal damage and aggravated criminal damage
• Burglary under s9(1)(b) where D has fulfilled the last element by causing GBH

Question 11

Non-dangerous drugs

Answer 11

Valium - court held no evidence that the appellant knew it would make him aggressive, incapable of appreciating risks to others or susceptible to other side effects to make taking it reckless.

Question 12

Intoxication and other defences

Answer 12

Self-defence: drunken mistake as to the need to use self-defence - cannot rely on that mistake

Loss of control: can still use loss of control if drunk
- Drug or alcohol addiction can be taken into account in assessing the magnitude of the qualifying anger trigger (if taunted about the addiction).
- if addicted to to drugs or alcohol this will be a characteristic given to the normal person but the normal person will still have normal levels of tolerance and self restraint and be sober

Diminished responsibility:
- alcohol is not a bar, ignore it (must have occurred without it - but can be a competing reason)
- Alcohol dependency syndrome can be a recognised medical condition

Question 13

Intoxication and consent

Answer 13

• if jury are satisfied that v had in fact consented to the accidental infliction of injury, this would be a defence; and
• the jury should have been allowed to consider whether the defendant believed that V consented, if the defendants wrongly believed that V consented due to their intoxication.

Question 14

Intoxication and statutory defences

Answer 14

Where a statutory defence allows for honest belief, the defendant will be able to use this defence even if their belief is due to their voluntary intoxication.

• simple criminal damage (where the defendant believes that the owner would have consented to the damage
• theft - where defendant believed the owner would consent to D’s appropriation of the owner’s property will not be dishonest - so will not be liable for theft.

Question 15

What is ‘self-defence’?

Answer 15

Where a person acts to:
- protect themselves
- protect someone else
- protect property
- prevent a crime
- assist in the arrest of an offender

Must be from an imminent attack (must be physical). If successful, will result in acquittal BUT not available as a partial defence. See loss of control.

For the prosecution to disprove.

Question 16

Test for self-defences

Answer 16

Trigger: The defendant honestly believed that the use of force was necessary; and

Response: The level of force the defendant used in response was objectively reasonable in the circumstances as the defendant believed them to be.

Question 17

Trigger: The defendant honestly believed that the use of force was necessary

Answer 17

Defendant is to be judged on the facts as they subjectively believed them to be - whether that belief is reasonable or not.

• If believes that being attacked with a dangerous weapon then should be judged according to those facts.
  UNLESS mistaken due to intoxication can not be relied upon

Question 18

Duty to retreat

Answer 18

Although the response must be reasonable there is no duty to retreat. (although having an opportunity to retreat may be regarded as a relevant factor).
- Should demonstrate they do not want to fight.

Question 19

Anticipatory self-defence

Answer 19

A defendant may make the first blow and still rely on the defence.

i.e. unreasonable to wait to be punched or shot BUT principles are still applicable.

Question 20

Self-defence by antagonist

Answer 20

• being a trespasser does not entitle someone to use excessive force in attempting to remove you
• self-defence is not automatically precluded where defendant was the initial aggressor and the victim retaliated BUT violence offered by the victim must be so out of proportion to what the original aggressor did that the roles were effectively reversed

Question 21

Can force be used against an innocent third party

Answer 21

• police constable bundling a passerby out of the way to get at a person the constable believed was about to shoot a firearm or detonate an explosive device
• person knocking keys out of someone’s hand when they were about to give keys to someone drunk (drink driving)

Question 22

Response: non-householder cases

Answer 22

The level of force the defendant used in response was objectively reasonable in the circumstances as the defendant believed them to be.

Objective test.

Judged on the circumstances as they believed them to be and the danger as they believed it to be. (eg allowed to rely on psychiatric evidence that he suffered from post traumatic stress disorder to substantiate his beliefs).

Question 23

Response test: non householder cases

Answer 23

Jury must decide if the force used was objectively reasonable given the facts as the defendant subjectively believed them to be.

Will not be reasonable if disproportionate.
Can bear in mind the defendant may have acted in the ‘heat of the moment’.

Person 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 purpsoe.

Question 24

Test for householder cases

Answer 24

Trigger: defendant honestly believed that the use of force was necessary; and
Response: the level of force the defendant used in response was objectively reasonable in the circumstances as the defendant believed them to be.

householder cases: force will not be reasonable if it was grossly disproportionate

Question 25

When will force be reasonable (self-defence)?

Answer 25

Non-householder cases: if it was disproportionate (must be reasonable and proportionate)

Householder cases: force will not be reasonable if it was grossly disproportionate
Will look at 1) was is grossly disproportionate and if no then 2) was it reasonable

Question 26

Definition of householder cases

Answer 26

• Where occurs in a dwelling or dwelling is in part of the building (through internal access route). (being in a yard does not count)
• Defendant must not be a trespasser at the time the force is used.
• Must believe the victim to be in or entering the building or part of the building as a trespasser.
• Only used for protecting self or another - NOT property, preventing crime or assisting int he arrest of an officer