Defences

Question 1

What type of defence is intoxication?

Answer 1

General defence - available to almost any crime

Question 2

What two forms of intoxication are there?

Answer 2

A way to negate the MR of an offence

An influencing factor on another legal principle / defence

Question 3

Where does the burden of proof lie for intoxication?

Answer 3

Evidential burden on the defendant to raise issue of intoxication

Prosecution must prove, beyond reasonable doubt, that the defendant formed the MR

Question 4

When will intoxication not assist the defendant?

Answer 4

If prosecution can establish that D formed the MR even though they were drunk

Question 5

In what circumstances can intoxication operate to negate the MR?

Answer 5

Spiking / lacing

Drugs taken voluntarily in bona fide pursuance of medical treatment

Intoxication caused by non-dangerous drugs taken voluntarily

Specific intent crimes - cannot be committed recklessly

Question 6

What three questions should you ask to judge whether intoxication can operate to negate the MR?

Answer 6

Is the defendant voluntarily intoxicated or involuntarily intoxicated?

Is the intoxicant a dangerous alcohol / drug or a non-dangerous drug?

Is it a crime of basic intent or specific intent?

Question 7

What crimes is intoxication available for if it is involuntary?

Answer 7

Both specific and basic intent crimes

Question 8

What does not count as involuntary intoxication?

Answer 8

When D knows they are drinking, but thinks that alcohol is not as strong as it is

Question 9

When can voluntary intoxication work to negate the MR?

Answer 9

Specific intent crimes - but not basic intent

Question 10

What rule emerged from R v Heard about specific and basic intent offences?

Answer 10

Specific intent crimes require proof of a state of mind addressing something beyond the prohibited act itself, namely its consequences.

Question 11

What is the problem with the rule from R v Heard?

Answer 11

Criminal damage would become a specific intent offence even though it is generally considered a basic intent offence.

Question 12

What is a dangerous drug?

Answer 12

Common knowledge that a drug is liable to cause the taker to be aggressive / unpredictable - e.g. alcohol, illegal drugs

Question 13

What is a non-dangerous drug?

Answer 13

A soporific or sedative drug

Question 14

How does intoxication interact with self-defence?

Answer 14

If a defendant makes a drunken mistake as to the need to use self-defence, they cannot rely on that mistake

Question 15

How does intoxication interact with loss of control / DR?

Answer 15

It is not a bar to a plea of either of these things

Question 16

Where should you consider intoxication in murder?

Answer 16

MR

Question 17

Where should you consider intoxication in loss of control?

Answer 17

Fear / anger QT - D’s drug / alcohol addiction can be taken into account if taunted about extent of addiction

Normal person test - intoxicated person can still use this

Question 18

What four things should be considered if D has an abnormality of mental functioning and is voluntarily intoxicated to consider if DR can apply?

Answer 18

D must have an AMF

AMF must arise from a recognised medical condition

AMF must have substantially impaired the defendant’s ability to do one of the things in s2(1A) Homicide Act

AMF must provide the explanation for D’s conduct - even if it is not the only cause

Question 19

What four factors must be present for DR to apply when AMF arises from alcohol dependency syndrome?

Answer 19

D must have an AMF at the time of killing, due to ADS - will consider extent and severity of ADS here

AMF must arise from a recognised medical condition

AMF must have substantially impaired D’s ability to do one of the things in s2(1A)

AMF must provide an explanation for D’s conduct, even if it is not the only cause

Question 20

When does intoxication prevent the defendant from using another defence?

Answer 20

When a drunken mistake causes the defendant to use self-defence

Question 21

What is the question a court will ask regarding a defendant’s mens rea if they are voluntarily intoxicated by dangerous drugs/ alcohol and commit a basic intent offence?

Answer 21

Would the defendant have formed the MR if sober?

This is based on the test from Coley, McGhee and Harris - would D foresee the risk if sober

Question 22

What are the two elements to consent?

Answer 22

Either the victim consented, or the defendant believed the victim consented

The offence is one which a victim can consent to

Question 23

Where does the burden of proof lie in the defence of consent?

Answer 23

Prosecution must prove both that the victim did not consent, and that the defendant did not believe in the victim’s consent

Question 24

What is the general rule on when consent is available?

Answer 24

Only available as a defence to assault and battery

Question 25

When is consent available as a defence even where ABH or worse is caused?

Answer 25

D must have intended to only commit battery with the consent of the victim Did not see the risk of inflicting actual bodily harm

Question 26

What are the six public interest exceptions to the rule that you cannot consent to ABH or above?

Answer 26

Medical treatment Sport Horseplay Tattooing etc Sexual gratification Lawful correction of a child

Question 27

Where does the sport exception end?

Answer 27

if conduct is sufficiently grave and went beyond what a player could reasonably be regarded as having accepted by taking part in the sport some "off the ball" play might be outside of the scope of implied consent

Question 28

What does the horseplay exception include?

Answer 28

Essentially - mucking around - exception has received a lot of criticism

Question 29

What is the limits to the tattooing / piercing exception?

Answer 29

No body modification - e.g. removing an ear

Question 30

What is the law around consent and sexually transmitted exceptions?

Answer 30

A person may consent to the risk of acquiring a sexually transmitted infection However - you cannot consent to deliberate HIV infection - but only the RISK OF infection

Question 31

How does the court approach the public interest exceptions to the general rule on consent?

Answer 31

Not open to extension

Question 32

What is the test for self-defence?

Answer 32

D honestly believed that the use of force was necessary TRIGGER The level of force the defendant used in response was objectively reasonable in the circumstances as the defendant believed them to be RESPONSE

Question 33

Where does the burden of proof lie for self-defence?

Answer 33

It is for the prosecution to disprove that the defendant acted in self-defence Complete defence

Question 34

For the trigger in self defence, is the test objective or subjective

Answer 34

Subjective - D is judged on the fact that they believed them to be

Question 35

How does the court approach an opportunity to retreat / exit?

Answer 35

No duty to retreat - but the court may consider the fact that the defendant had an opportunity to retreat as a relevant factor

Question 36

How does the court approach anticipatory self-defence?

Answer 36

You can make the first hit in self defence - if there is an imminently apprehended attack and your object is to protect yourself / family / property and you use reasonable force

Question 37

Can self-defence be used by an antagonist?

Answer 37

Self defence is not automatically precluded in a situation where D was initial aggressor and victim retaliated Only where the violence offered by the victim was so out of proportion to what the original aggressor did that the roles were effectively reversed.

Question 38

Can self defence be against force used against an innocent 3rd party?

Answer 38

Yes - but these would be very unlikely and unusual set of facts

Question 39

What level of force can be used in response to the trigger in non householder cases?

Answer 39

Was the degree of force used by D reasonable in the circumstances? Decided by reference to the circumstances as D believed them to be Essentially: objectively reasonable given the facts as the defendant subjectively believed them to be allowances should be given for the heat of the moment - can't balance acts to a nicety

Question 40

What is the test for the response in householder cases?

Answer 40

Was the force grossly disproportionate in the circumstances as the defendant believed them to be? - if yes, no defence Was the level of force reasonable? - disproportionate force, which is not grossly disproportionate, may or may not be reasonable.

Question 41

When is a self defence issue a householder case?

Answer 41

Uses force while in / partly in a building [widely construed] Is not a trespasser at the time the force is used Believed the victim to be in / entering building as a trespasser Using force to protect yourself or another