Defences: Intoxication & Self-Defence

Question 1

when can intoxication be argued? how does this operate?

Answer 1

Intoxication will only give rise to a defence if it results in a loss of capacity to form the mens rea.

therefore, this isn’t a ‘defence in the strict sense. It is actually the case that the prosecution can’t prove the mens rea

Question 2

re: intoxication

give an example

Answer 2

o i.e. drugged intent is still intent. If they intended to satisfy the actus reus even if they were intoxicated this will not give rise to a defence

Question 2

re: intoxication

what are specific intent crimes? what is their relationship to intoxication?

give examples

Answer 2

i.e. offences where the mens rea is intention only

Examples:
o Murder
o S18 GBH
o Theft

It is easier to argue the intoxication defence for specific intent crimes

Question 3

re: intoxication

what are basic intent crimes? what is their relationship to intoxication?

give examples

Answer 3

i.e. offences where the mens rea is less than intent (i.e. recklessness)

Examples:
o Unlawful act manslaughter
o All other assaults
o Criminal damage
o Sexual offences (this has been categories as basic intent for policy reasons i.e. to reduce the availability of the defence)

Question 4

re: intoxication

what is the position regarding voluntary intoxication and basic intent crimes?

Answer 4

the defence of intoxication will not be available

this is because D’s conduct in itself in getting intoxicated is reckless

Question 5

re: intoxication

what is the position regarding voluntary intoxication and specific intent crimes?

Answer 5

may be available if they were so intoxicated they did not have the mens rea to commit the crime

the reason for this is because crimes of specific intent require intention, they cannot be committed recklessly.

Question 6

re: intoxication

what can happen even if D is found NG after successfully pleading voluntary intoxication?

give an example

Answer 6

even if D is found not guilty of a specific intent crime, they will usually be guilty of an alternative basic intent offence

i.e. not guilty of murder but guilty of manslaughter (which is a basic intent offence)

Question 7

re: intoxication

explain dutch courage

Answer 7

• If D has become deliberately intoxicated to negate the mens rea, they will not be able to rely on the defence of intoxication

Question 8

re: intoxication

explain voluntary intoxication and mistake

give an example

Answer 8

A mistaken belief caused by voluntary intoxication can never be relied upon by D

example:
D (wrongly believes due to being intoxicated) that she is about to be assaulted to acts in self-defence:
o The defence of self-defence will fail where D’s mistaken belief is induced by voluntary intoxication
o D may only rely on self-defence if their reaction did not exceed that of a sober person in the same situation

Question 9

re: intoxication

what does P need to prove for voluntary intoxication?

Answer 9

If P can prove that D had the mens rea for the relevant offence, intoxication will not operate as a defence

NB: intoxication is never a defence for basic intent crimes, even if D lacked the mens rea.

Question 10

re: intoxication

explain voluntary intoxication and the defence of ‘lawful excuse’

Answer 10

• Lawful excuse is the defence in relation to criminal damage
• The mens rea is that D honestly believed the owner did or would have consented to the damage had they known the circumstances.
• The belief only needs to be genuinely held and as such it is irrelevant if D formed that view whilst intoxicated

Question 11

re: involuntary intoxication

what are the key questions for the court?

Answer 11

o Was D’s intoxication involuntary?
o If so, did D also lack the necessary mens rea for the crime?

Question 12

re: involuntary intoxication

how is this different to voluntary intoxication?

Answer 12

it doesn’t matter whether the crime is of basic or specific intent

Question 13

re: involuntary intoxication

when might someone be involuntary intoxicated?

Answer 13

if they have been spiked or had an adverse reaction to medication

Question 14

re: involuntary intoxication

if someone has voluntarily taken medication and had an adverse reaction, what is the question for the court?

give an example

Answer 14

‘was is reckless for D to take the medication?’

example:

D took his girlfriend’s Valium and started a fire. He was found not to be reckless because he was told by his girlfriend it would be harmless. However, there may be other instances where D takes medication prescribed for someone else without consulting a doctor and it will be reckless.

Question 15

re: involuntary intoxication

explain the MR element of this test

what is something to look for in a fact pattern?

Answer 15

• If there is clear evidence of the mens rea they will not be able to rely on the defence
• In other words, even if the are involuntarily intoxicated but have the mens rea, they cannot rely on the defence

if someone ‘blacked out’ they would unlikely have the required MR

Question 16

re: self-defence

when can this be argued?

Answer 16

it is a general defence that can be argued in relation to any offence

Question 17

re: self-defence

when can D use the defence?

Answer 17

D has a defence if he uses reasonable force to:
o Defend himself
o Defence others
o Defend property
o Prevent crime
o Assist with lawful arrest

Question 18

re: self-defence

what are the limbs to this defence?

Answer 18

o Was is necessary to use force? (subjective)
o Was the amount of force used reasonable? (objective)

Question 19

re: self-defence

explain the evidential burden

Answer 19

1. D has the evidential burden to discharge. They do not have to prove the defence, but they must raise it at trail.
2. P must then disprove the defence beyond all reasonable doubt. If they fail to do so, D will be acquitted.

Question 20

re: self-defence

explain ‘Was it necessary to use force?’

Answer 20

• D’s actions must have been necessary to defend themselves or another from attack of to prevent the commission of a criminal offence

o This is subjective, i.e. did D believe it was necessary to use the force

• D cannot rely on the defence is they used force out of revenge or retaliation

Question 21

re: self-defence

explain ‘Was it necessary to use force?’ in relation to a mistaken belief

Answer 21

o D will be judged on the facts as they honestly believed them to be, even if they are mistaken that the use of force was necessary
o This will apply even if D’s belief was unreasonable
o However, if D’s mistake was unreasonable, the jury may believe that the belief was not honestly held

Question 22

re: self-defence

explain mistake and intoxication

Answer 22

voluntary > mistake that force was necessary = self-defence not allowed

involuntary > mistake that force was necessary = self-defence allowed

Question 23

re: self-defence

what is considered when determining ‘was the amount of force used was reasonable’? what type of test is this?

Answer 23

This is an objective test for the judge/jury

They will consider the reasonableness of the force in the circumstances as D honestly believed to exist

Question 24

re: self-defence (reasonable force)

explain ‘…in the circumstances as D honestly believed to exist’

give an example

Answer 24

• D can only rely on facts they actually knew at the time
• the court will consider the reasonableness of the belief to determine if it was genuinely held. If it was unreasonable, the judge/jury might decide it’s not genuine i.e. a teacher falls and a pupil thinks they are going to hit them, so hits them first. The court might decide this is so unreasonable it is not genuine.

Question 25

re: self-defence (reasonable force)

explain ‘reasonableness of the force in the circumstances…’

Answer 25

force will not be reasonable if it was disproportionate in the circumstances as D believed them

i.e. the greater harm D was in, the greater level of force will be justified

this is objective

Question 26

re: self-defence (reasonable force)

what is relevant when considering ‘reasonableness of the force in the circumstances…’?

Answer 26

D’s physical characteristics are relevant to this assessment, but not mental state

D is not required to retreat, but if they could have done this would likely affect reasonableness

‘acts in the heat of the moment’

Question 27

re: self-defence (reasonable force)

does D need to be assaulted before they can self-defend?

Answer 27

D also does not have to wait to be assaulted in order to claim self-defence provided that the honestly believe the use of force was necessary to ward off an attack

However, the danger they apprehend must be sufficiently specific or imminent to justify their actions

Question 28

re: self-defence (reasonable force)

explain ‘acts in the heat of the moment’

Answer 28

the courts must make allowances for the fact that in the ‘heat of the moment’, a rational decision is not always made. The courts must consider:
- a person acting in self-defence may not be able to weigh up to a nicety the exact measure of any necessary action; and
- if the person only did what they honestly and instinctively thought was necessary, this will be strong evidence it was reasonable action

in summary: so long as they were acting in self-defence (etc), they will be assessed on what they did honestly and instinctively rather than with the benefit of hindsight

Question 29

re: self-defence (householder cases)

explain the level of force

Answer 29

a greater level of force can be used, i.e. in the circumstances as D believe them…:
- force is proportionate > force is reasonable & self-defence allowed
- force is disproportionate > force may be reasonable & self-defence may be allowed
- force is grossly disproportionate > force unreasonable & self-defence not allowed

Question 30

re: self-defence (householder cases)

who is a ‘householder’?

Answer 30

A householder is a D who uses self-defence or defence of another while in (or partly in):
o A building or part of a building that is a dwelling
o Forces accommodation
o A vehicle or vessel that is a dwelling

D need not be a homeowner, but they must not be a trespasser

Question 31

re: self-defence (householder cases)

give examples when D is not a householder

Answer 31

o Outside their home on the driveway
o At the factory where they works
o When trespassing in a neighbours apartment

Question 32

re: self-defence (householder cases)

explain ‘grossly disproportionate’

Answer 32

• This means that D can use force that is disproportionate. It is when it is grossly disproportionate that it becomes unlawful
• This is a question for the judge/jury