Defences Flashcards
Intoxication that negates the MR
If due to intoxication, the defendant did not form the necessary MR, then under certain circumstances, he will be entitled to a full acquittal.
Judge is obliged to direct jury on intoxication where a reasonable jury might conclude that there is a real possibility that the defendant did not form the MR
R v Bennett
Question is not whether D was incapable of forming the MR, but whether, even if still capable, he did actually form it
R v Pordage
If prosecution proves that D did form the MR, despite their intoxication, it will not be a defence to argue that they wouldn’t have done it if not drunk
R v Kingston (raped boy after being drugged)
Intoxication can negate the MR
In any crime if involuntary intoxication or if voluntary intoxication but in bona fide pursuance of medical treatment or by non-dangerous drugs taken voluntarily
In specific intent crimes
Burden of proof for intoxication
Evidential burden on D to raise the issue, prosecution must prove beyond all reasonable doubt that D formed the MR
Involuntary intoxication - defence available for all crimes (specific and basic intent)
R v Kingston (coffee laced)
R v Allen - drinking alcohol voluntarily but mistaken as to strength is not involuntary
A defendant who becomes intoxicated by taking prescription dugs according to the prescription is involuntarily intoxicated…
…but if he exceeds the prescription his intoxication may be voluntary
A defendant will also be involuntarily intoxicated if the drug he has taken is not considered dangerous
Defence still available
Where it is common knowledge that a drug is liable to cause the taker to become aggressive or to do dangerous or unpredictable things, the drug is to be classed with alcohol. Where there is no such common knowledge (sedative or soporific drugs) different rules apply
R v Hardie
Voluntary intoxication could be a defence to a charge of specific intent where the defendant’s intoxication negated the MR. It will not be a defence to a charge of basic intent
DPP v Majewski
Illegal drugs will treated in the same way as alcohol
R v Hardie
Majewski - basic / specific intent
Basic intent - D could be convicted on the basis of recklessness as to the consequences or where no foresight of the consequences is required
Specific Intent - where intention is the only form of MR
R v Heard - basic/specific intent
Specific intent crimes require intention to bring about a particular result or consequence
Specific intent
Murder, s18 OAPA, theft, criminal damage where it is only alleged that the defendant intended the damage and intended to endanger life by the damage caused, an attempt of an offence requiring specific intent
Basic Intent
s20 OAPA, assault occasioning ABH, Assault or battery, criminal damage where either intention or recklessness is alleged.
Intoxication and loss of control
When deciding whether the normal person might do as the defendant did, the reaction must be measured against that of a sober person - R v Morhall (but drew distinction between D who is taunted about addiction and D who is simply intoxicated)
AG for Jersey v Holley - neither intoxication nor dependency can be taken into account when considering whether D exercised normal self-control
Intoxication and diminished responsibility
Intoxication is no bar to diminished responsibility so long as D is suffering from an abnormality of mental functioning as required in the Act
Duress and Intoxication
If D is arguing duress and claims he made a mistake because he was intoxicated, he cannot rely on that mistake because he must have a reasonable belief that he was under threat and the reasonable man is never drunk
Self defence and intoxication
If a defendant makes a drunken mistake as to the need to use self-defence, he cannot rely on that mistake.
Consent and intoxication
R v Richardson & Irvin:
If jury satisfied that V had in fact consented to the accidental infliction of injury, this would be a defence
The jury should be allowed to consider whether the defendant believed that V consented even if the defendant wrongly believed V due to their intoxication
Statutory defences
Where a statutory defence allows for honest belief, defendant will be able to use this defence even if belief is due to his voluntary intoxication - Jaggard v Dickinson
Consent - two elements
1) Victim consented
2) Defendant believed that the victim consented
Prosecution must prove that the victim did not consent and that the defendant did not believe in his consent - R v Donovan
General rule: consent only available as defence to assault and battery
AG’s Ref (No6 of 1980), confirmed in R v Brown
Consent available for s47 ABH if defendant only intended to commit a battery with the consent of the victim and did not see the risk of inflicting ABH. If D intended to cause ABH, consent is not available (unless an excepted category)
R v Meachen (anal sex - didn’t see the risk of inflicting ABH).
Unclear whether this will apply to being reckless as to causing ABH with victim’s consent
Medical treatment can be consented to
Even if it causes GBH/death
Sport
Any incidental injury whilst playing sport will not be an offence as participants consent to incidental injury
R v Barnes - Conduct must be sufficiently grave to be categorised as criminal. In highly competitive sports, conduct outside the rules might be expected to occur in the heat of the moment
R v Billinghurst - players are deemed to consent to a force ‘of the kind which could reasonably be expected to happen during a game’ (punching jaw in rugby was consented to)
Horseplay (criticised)
R v Jones - boys tossed other boy in the air, resulting in a ruptured spleen. Consent available.
R v Aitken (drunk RAF soldiers setting fire to each other in fire-resistant suits)
R v Richardson and Irwin - D held friend over balcony, believing he was consenting and dropped him. Conviction quashed.
Sexual gratification/accidental infliction of harm/personal adornment
Meachen - there are no set rules, look at facts
R v Brown - considered nature of act - consent not available
R v Boyea - fisted girlfriend not intending to cause level of harm = not a defence
R v Slingsby - fisted girlfriend, injury caused by ring - no intention to cause harm = acquitted
Emmett - tied plastic bag over head and poured lighter fuel over breasts and set fire to them with her consent - not a defence
R v Wilson - branded wife with hot knife at her request; no difference to tattooing
Sexually transmitted diseases
R v Dica - if complainant consents to risk of contracting HIV, D has a defence, but it is not possible to consent to the deliberate infliction of HIV
Lawful correction of a child (now open to challenge under Art 3 ECHR)
R v Hopley - parent has defence of reasonable chastisement
R v H - jury must consider nature and context of parent’s behaviour, its duration, physical and mental consequences for the child and the reasons for punishment
Only deception as to nature or quality of the act of the accused’s identity will vitiate consent; deception as to the accused’s attributes, status or qualification will not
R v Richardson (dentist struck off - deception as to attributes. Conviction quashed)
R v Tabassum (breast cancer - deception as to quality of the act)
Consensual sexual intercourse is not consent to the risk of consequent disease, especially where the defendant concealed the fact that he was infected
R v Dica
In cases where consent can provide a defence to an OAPA, an honest belief in consent will also be a defence
R v Konzani
If defendant believes victim consented, he will be allowed the defence, even if the victim does not consent. This is the case even where the mistake was due to intoxication
R v Richardson & Irwin
Self- defence
Common law - complete defence for those who use force to defend themselves or another
s3 CLA 1967 - a person may use such force as is reasonable in the circumstances in the prevention of crime, in effecting or assisting a lawful arrest
Now put on statutory footing in CJIA 2008
Threat of attack must be actual or imminent
Self defence can be used in the protection of property
R v Hussey
Self defence cannot be used against threats to one’s peace of mind/psychological harm
R v Bullerton
D must honestly believe use of force was necessary (subjective) and the level of force must be necessary (objective). Defendant will be judged on the facts as he subjectively believed them to be (e.g. real gun when actually fake)
R v Gladstone & Williams
s76(3)-(4) CJIA 2008
If mistaken belief due to voluntary intoxication of the defendant, he will not be able to rely on his mistake for any crime. If the reasonable man would form the same conclusion, defence is available
R v O’Connor; s76(5) CJIA 2008
There is no duty to retreat
R v Bird - demonstration by D that he doesn’t want to fight is the best evidence that he was acting reasonably and in good faith
Defendant may strike first blow and still use defence - anticipatory self-defence
Beckford v R
Anticipated attack must be imminent
Devlin v Armstrong
Self defence may be used by an antagonist (here by a trespasser)
R v Forrester - allowed to rely on self-defence as W used excessive force to remove him
Self-defence is not automatically precluded in a situation where the defendant was the initial aggressor and the victim retaliated. Jury will decide whether or not defendant honestly believed it was necessary for him to use force and whether that force was reasonable
R v Rashford
Jury will decide whether foce was objectively reasonable in the circumstances as the defendant subjectively believed them to be
R v Owino
Jury must bear in mind that the defendant may have acted in the heat of the moment
AG’s Ref for Northern Ireland (No1 of 1975)
Palmer v T
Self-defence is an all or nothing offence. Complete defence, but if it fails in any element, the defence fails completely
R v Clegg
Children under 10 are presumed to be incapable of being guilty of an offence (doli incapax)
s16 Children and Young Persons Act 1963
Doli incapax can never apply to children over 10
R v T
Duress is only available where there is a nexus between the threat and the crime
R v Cole (Cole threatened by moneylenders so robbed bank. Duress not available as moneylenders had not stipulated that he commit robbery to meet their demands)
R v Hasan - duress
1) There must a threat to cause death or serious personal injury.
2) Threat must be directed against D or his immediate family or someone close/whom D would regard himself as responsible for
Duress not available for threats against property
M;Growther; DPP for NI v Lynch
Defendant may be able to regard himself as responsible for those he had never met before
R v Shayler
Duress - D must believe he has been threatened
R v Graham - belief must be reasonable
R v Martin - belief must be honestly held, even if unreasonable
R v Hasan - D must genuinely believe in efficacy of threat, but must be reasonable as well. If the defendant makes a mistake, it must be a reasonable mistake
Duress - would a reasonable person of reasonable firmness, sharing the characteristics of the defendant have responded in the same way?
Physical attributes (e.g. age, pregnancy) may be taken into account
Low IQ cannot be considered but a recognised mental illness has been allowed- R v Bowen
Duress - proportionality is important
Abbott v R - the more horrible the killing, the heavier the evidential burden on the accused arguing duress
Criminal offence must have been directly caused by the threats
R v Valderrama-Vega - cumulative effect of all the threats
Duress only available where no evasive action could be reasonably taken. BUT failure to take such an opportunity will not always prevent the defence
R v Hudson & Taylor
BUT described as ‘indulgent’ in Hasan
D may not be able to rely on duress to which he has voluntarily laid himself open e.g. joining a gang
R v Sharp - joined gang knowing they used firearms - no defence
R v Shepherd - defence because D could not have foreseen the possibility of violence being used - no knowledge of propensity to violence
Objective test for knowledge of possible coercion - D foresaw or ought to have foreseen the risk of being subjected to any compulsion by threats of violence
R v Hasan
Association need not be with criminals to prevent duress defence
R v Ali
Duress not available to a person charged with murder as a principal offender or as an accessory
R v Howe
Duress not available on a charge of attempted murder
R v Gotts
Necessity is not a defence to murder
R v Dudley and Stevens
Southwark v Williams
Defence of necessity not allowed to homeless person for trespass to unoccupied housing
Fireman responding to 999 not allowed defence of necessity for driving through red light
Buckoke v GLC (under statute emergency services can now go through red lights)
Exceptions
s52(b) CDA 1971
Medical cases where in best interests of victim - Gillick v West Norfolk HA; Re F
Gang threatened to kill him so drove over pavement
Necessity available - R v Willer
Dangerous driving as thought two policemen was assassins - necessity available
R v Conway
M drove whilst disqualified as wife threatened she would commit suicide if he didn’t
Necessity available - R v Martin
Test for duress of circumstances:
R v Martin:
Was the accused, or may he have been, impelled to act as he did because, as a result of what he reasonably believed to be the situation, he had good cause to fear that otherwise death or serious physical injury would result. Secondly, would a sober man of reasonable firmness, sharing the same characteristics of the accused, have responded to that situation by acting the same?
Threat must be of death or serious physical violence
Took gun off friend to stop him murdering - defence available where accused reasonably believed action was necessary to prevent death or serious injury to himself or another and he objectively acted reasonably and proportionately to the threat
R v Pommell
Necessity not available to prevent psychological injury
R v Baker and Williams
Hijacked plane to avoid deportation and execution
R v Abdul-Hussain - necessity available (but issues of proportionality); imminent threat not immediate
