Defences Flashcards
There is a distinction between crimes of basic and specific intent
DPP v Majewski
- Basic Intent: involve recklessness as a potential alternative mens rea
- Specific intent: require intent
Intoxication as a defence
Never a defence for a basic intent crime.
A drunken mistake does not help the defendant
O’Grady (murder)
Hatton (manslaughter)
A drug is legally ‘non-dangerous’ if it is not common knowledge that it causes the taker to become aggressive or unpredictable
e.g. sleeping pills
R v Hardie
Involuntary intoxication
may be a defence for both basic and specific intent
Molested a child after his drink was spiked - no defence to argue that the drugs had released his paedophilic inhibitions even though he would never have done it sober
When drunk he made it his aim to molest a child - he had formed the MR
R v Kingston
Different types of intoxication
Set by public bodies: Dangerous types - heroin, alcohol etc: Sedatives (non-dangerous) - prescribed medication
Dangerous types of intoxication:
(Lipman) - killing his wife after taking LSD
(Gallagher) - liable as he was drinking to give him the courage to kill his wife
Sedatives (non-dangerous) intoxication
Hardie: not liable when he was given valium to help his mental health and, not having done it before, set fire to his bedroom
Duress and Intoxication
A mistake made when intoxicated cannot be relied upon, because it will not be a reasonable mistake (the reasonable man is always sober).
Self-Defence and Intoxication
Force in self-defence will be unreasonable if it resulted form the intoxication, and so cannot be relied upon
Consent (in sexual offences) and intoxication
D’s belief must be reasonable, so a drunken mistake cannot be relied upon.
Consent (in offences against the person) and intoxication
Two drunk friends dropped their friend off a balcony thinking he consented, but they were entitled to rely upon a drunken mistake here.
R v Richardson.
Consent requirements
- V must actually consent or
2. D must honestly believe that V consents (DPP v Morgan)
When V’s consent negates D’s liability
Consider
- nature of the offence and the level of harm caused or risked
- the nature of, and the reason for, the activity causing the harm
Simple assault or batter can always be consented to, but where harm is caused ‘most fights will be unlawful regardless of consent
AG’s Ref (No .6) 1980
It is possible to consent to harmless assault or battery, but not to GBH.
R v Brown
- It is not in the public interest that GBH is done.
Where ABH was caused accidentally consent may work as a defence.
R v Slingsby
Consent was allowed where D accidentally scratched his partner with his ring during foreplay, leading to a fatal infection
Consent and sport
Consider the sport, level of play, fore used and D’s state of mind
V consented to a amateur branding that went wrong - consent was held to be a defence to ABH, as the branding was analogous to tattooing
R v Wilson
Consent to sex is also consent to the risk fo HIV; but where HIV is deliberately inflicted it is GBH and cannot be consented to
R v Dica
D must believe in C’s consent, but that can be mistaken
R v Richardson
- thrown of balcony
Self Defence
Two requirements:
- D honestly believed that the use of force was necessary
- The level of force was reasonable
Self defence includes the common law defence of one’s
Person
Property (R v Hussey)
Others (Gladstone Williams)
Self defence can only be used in protection from physical attack, not for peace of mind
R v Bullerton
Simply fleeing from danger and causing an accident in a car would not give rise to self-defence - force has to be met with force
R v Riddel
Force used as protection from an imminent attack
Devlin v Armstrong
- there is a duty to desist once the threat is no longer operative (Att-Gen ref (No. 2) 1983
Pre-emptive strikes are allowed as self defence
R v Beckford
D cannot rely on a drunken mistake
R v O’Connor
In non-householder cases, the amount of force used must be reasonable
This is an objective test, but judged according to the facts a D subjectively believed them to be in the heat of the moment.
R v Owino
In a householder case the level of force used must not be grossly disproportionate
R (Collins) v SS for Justice
The defence of Duress
Two Types
- Duress by threat
- Duress of circumstance
Duress by threat
Test set out in Lord Bingham in R v Hansen:
- threat of death or serious injury
- threat made to D or close to D
- D’s objective perception to the threat
- Casual nexus
- No evasive action
- No voluntary threats
- Duress cannot be a defence to murder
Duress: the threat must have been made to D, D’s immediate family, or someone for who D would reasonable regard himself as being responsible for, including strangers.
R v Shayler.
D’s perception fo the threat and his response to it are judged objectively
Hansan
There must have been no evasive action that D could reasonable have taken
R v Hudson Taylor
Duress cannot be a defence to murder
R v Howe
or attempted murder (R v Gotts)
Duress is excluded as a defence when there is voluntary exposure to the risk despite peer pressure e.g. joining a criminal operation
Fitzpatrick
Duress of Circumstance
Same elements as above, but the threat need not be accompanied by a command to commit a specific crime
DoC: drove without a license to stop another killing herself
R v Martin:
Set out parameters of the defence:
- Was he impelled to act; did he have reasonable belief?
- Would the sober and person sharing the same characteristic act as D did?
Deportation was an immediate enough threat to risk hijacking a plane.
R v Abdul
