Defences

Question 1

There is a distinction between crimes of basic and specific intent

Answer 1

DPP v Majewski

• Basic Intent: involve recklessness as a potential alternative mens rea
• Specific intent: require intent

Question 2

Intoxication as a defence

Answer 2

Never a defence for a basic intent crime.

Question 3

A drunken mistake does not help the defendant

Answer 3

O’Grady (murder)

Hatton (manslaughter)

Question 4

A drug is legally ‘non-dangerous’ if it is not common knowledge that it causes the taker to become aggressive or unpredictable

Answer 4

e.g. sleeping pills

R v Hardie

Question 5

Involuntary intoxication

Answer 5

may be a defence for both basic and specific intent

Question 6

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

Answer 6

When drunk he made it his aim to molest a child - he had formed the MR
R v Kingston

Question 7

Different types of intoxication

Answer 7

Set by public bodies:
Dangerous types
- heroin, alcohol etc: 
Sedatives (non-dangerous)
- prescribed medication

Question 8

Dangerous types of intoxication:

Answer 8

(Lipman) - killing his wife after taking LSD

(Gallagher) - liable as he was drinking to give him the courage to kill his wife

Question 9

Sedatives (non-dangerous) intoxication

Answer 9

Hardie: not liable when he was given valium to help his mental health and, not having done it before, set fire to his bedroom

Question 10

Duress and Intoxication

Answer 10

A mistake made when intoxicated cannot be relied upon, because it will not be a reasonable mistake (the reasonable man is always sober).

Question 11

Self-Defence and Intoxication

Answer 11

Force in self-defence will be unreasonable if it resulted form the intoxication, and so cannot be relied upon

Question 12

Consent (in sexual offences) and intoxication

Answer 12

D’s belief must be reasonable, so a drunken mistake cannot be relied upon.

Question 13

Consent (in offences against the person) and intoxication

Answer 13

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.

Question 14

Consent requirements

Answer 14

1. V must actually consent or

2. D must honestly believe that V consents (DPP v Morgan)

Question 15

When V’s consent negates D’s liability

Answer 15

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

Question 16

Simple assault or batter can always be consented to, but where harm is caused ‘most fights will be unlawful regardless of consent

Answer 16

AG’s Ref (No .6) 1980

Question 17

It is possible to consent to harmless assault or battery, but not to GBH.

Answer 17

R v Brown

- It is not in the public interest that GBH is done.

Question 18

Where ABH was caused accidentally consent may work as a defence.

Answer 18

R v Slingsby
Consent was allowed where D accidentally scratched his partner with his ring during foreplay, leading to a fatal infection

Question 19

Consent and sport

Answer 19

Consider the sport, level of play, fore used and D’s state of mind

Question 20

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

Answer 20

R v Wilson

Question 21

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

Answer 21

R v Dica

Question 22

D must believe in C’s consent, but that can be mistaken

Answer 22

R v Richardson

- thrown of balcony

Question 23

Self Defence

Answer 23

Two requirements:

1. D honestly believed that the use of force was necessary
2. The level of force was reasonable

Question 24

Self defence includes the common law defence of one’s

Answer 24

Person
Property (R v Hussey)
Others (Gladstone Williams)

Question 25

Self defence can only be used in protection from physical attack, not for peace of mind

Answer 25

R v Bullerton

Question 26

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

Answer 26

R v Riddel

Question 27

Force used as protection from an imminent attack

Answer 27

Devlin v Armstrong

- there is a duty to desist once the threat is no longer operative (Att-Gen ref (No. 2) 1983

Question 28

Pre-emptive strikes are allowed as self defence

Answer 28

R v Beckford

Question 29

D cannot rely on a drunken mistake

Answer 29

R v O’Connor

Question 30

In non-householder cases, the amount of force used must be reasonable

Answer 30

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

Question 31

In a householder case the level of force used must not be grossly disproportionate

Answer 31

R (Collins) v SS for Justice

Question 32

The defence of Duress

Answer 32

Two Types

• Duress by threat
• Duress of circumstance

Question 33

Duress by threat

Answer 33

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

Question 34

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.

Answer 34

R v Shayler.

Question 35

D’s perception fo the threat and his response to it are judged objectively

Answer 35

Hansan

Question 36

There must have been no evasive action that D could reasonable have taken

Answer 36

R v Hudson Taylor

Question 37

Duress cannot be a defence to murder

Answer 37

R v Howe

or attempted murder (R v Gotts)

Question 38

Duress is excluded as a defence when there is voluntary exposure to the risk despite peer pressure e.g. joining a criminal operation

Answer 38

Fitzpatrick

Question 39

Duress of Circumstance

Answer 39

Same elements as above, but the threat need not be accompanied by a command to commit a specific crime

Question 40

DoC: drove without a license to stop another killing herself

Answer 40

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?

Question 41

Deportation was an immediate enough threat to risk hijacking a plane.

Answer 41

R v Abdul