Defenses Flashcards
- Intoxication
1.1 Absence of a valid defence
For a defendant to be criminally liable, they must have the actus reus and mens rea of the relevant offence and the absence of a valid defence - a justification or excuse for D’s behaviour. If a valid and complete defence exists, D will not be criminally liable. Intoxication is available to almost any crime. You will come across intoxication in two different forms:
* A way to negate the mens rea of an offence; or
* An influencing factor on another legal principle/defence.
First, let us consider the law when addressing whether intoxication can be used to negate mens rea.
1.2 How intoxication works to negate the mens rea
Full Aquittal
The principle of intoxication allows the defendant to use evidence of their intoxication to show that
they did not form the necessary mens rea for the offence. Strictly speaking, it is not a defence, but many practitioners and academics refer to it in that way. Since the leading case on the burden of proof, Woolmington [1935] AC 462, it has been clear that the prosecution need to prove, beyond reasonable doubt, that the defendant has committed the actus reus with the necessary mens rea. If, due to intoxication, the defendant did not form the necessary mens rea, then under certain circumstances, the defendant will be entitled to a full acquittal.
R v Bennett [1995] Crim LR 877 (CA):
It was held that the judge is obliged to direct the jury on intoxication whenever there is evidence such that a reasonable jury might conclude that there is a reasonable possibility that the accused did not form the mens rea.
Intoxication will not assist the defendant.
If the accused’s drunkenness was not such as to negate mens rea, it is no answer for the accused to say that they would not have behaved as they did but for being drunk. If the prosecution can establish that the defendant formed the necessary mens rea, despite their intoxication, then intoxication will not assist the defendant.
R v Kingston [1995] 2 AC 355
A good example of this legal principle is the case of R v Kingston [1995] 2 AC 355, see below. Please note the facts of this case contains a description of an indecent assault on a child which is sadly common in this type of work. This reflects the nature of this subject, our society and the realities of practice.
Key case: R v Pordage [1975] Crim LR 575 (CA)
Confirmed that the question at issue is not whether the defendant was incapable of forming the mens rea, but whether, even if still capable, they did form it.
1.3 When can intoxication operate to negate the mens rea?
- In any crime where the intoxication is caused by drink or drugs taken involuntarily, ie ‘spiking’ or ‘lacing’ someone’s drink or food with a drug or alcohol
- In any crime where the intoxication is caused by drugs taken voluntarily, but in bona fide pursuance of medical treatment
- In any crime where the intoxication is caused by non-dangerous drugs taken voluntarily (dangerous drugs are those which are illegal or alcohol)
- In crimes where a specific intent is required (generally where the offence cannot be committed recklessly)
Evidential burden on the defendant
It would appear that there is an evidential burden on the defendant to raise the issue of intoxication, and then the prosecution needs to prove beyond reasonable doubt that the
defendant formed the necessary mens rea
Whether intoxication will negate the mens rea
When addressing whether intoxication will negate the mens rea of the alleged offence you should
ask the following three questions:
(a) Is the defendant voluntarily intoxicated or involuntarily intoxicated?
(b) Is the intoxicant a dangerous alcohol/drug or a non-dangerous drug?
(c) Is it a crime of basic intent or specific intent?
1.4 Involuntary intoxication
Where the intoxication is involuntary, the defence of intoxication may be available for any offence (both specific and basic intent crimes). This could arise where D was forced to consume alcohol or other intoxicating drugs, or was deceived into doing so, for example by drugs being placed in their food or their drink being laced with alcohol. See R v Kingston. However, where the defendant is aware that they are drinking alcohol, but is mistaken as to the strength of the alcohol, this will not count as involuntary intoxication (R v Allen [1988] Crim LR 698).
Key case: R v Kingston [1995] 2 AC 355
Kingston (K) admitted to paedophiliac tendencies, which he said he managed to keep under control. As a result of a business dispute, P arranged to blackmail K by photographing and audiotaping him in a compromising situation. P lured a boy of 15 to his flat where he gave the boy sedatives and some cannabis. The boy fell asleep on the bed and remembered nothing until he woke up next morning. P invited K to his flat and gave him some coffee. He then showed K the boy
asleep on a bed and invited him to indecently assault the boy
Key case: R v Kingston [1995] 2 AC 355
This the appellant did and he was
photographed and taped doing so. K’s defence was that he was involuntarily intoxicated. He
claimed that P had drugged the coffee and this had the effect of making him lose his inhibitions
and commit the offence. The House of Lords held that K was liable, saying that if he had still formed the mens rea in his intoxicated state, it was no defence to plead that he would not have committed the offence when sober.
1.5 Voluntary intoxication
Key case: DPP v Majewski [1977] AC 443
This is the key case in this area.
The defendant was involved in a pub brawl in which he attacked the landlord and was charged with an assault occasioning actual bodily harm contrary to s 47 OAPA. The trial judge refused to direct the jury that the defendant’s drunkenness may constitute a defence. The defendant was convicted and appealed to the Court of Appeal against his conviction.
Court of Appeal
The Court of Appeal certified the following question for the House of Lords: Whether a defendant may properly be convicted of an assault notwithstanding that, by reason of his self-induced incapacity, he did not intend to do the act alleged to constitute the assault.
Specific Intent v Basic Intent
The House of Lords held that voluntary intoxication could be a defence to a charge of specific
intent, where the defendant’s intoxication negated the mens rea required for the offence charged.
However, voluntary intoxication would not be a defence to a charge of basic intent.
Lord Elwyn-Jones
If a man of his own volition takes a substance which causes him to cast off restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition. His course of conduct by reducing himself by drugs and drink to that condition on my view supplies the evidence of mens rea, of guilty mind certainly sufficient for crimes of basic intent
Recklessness
It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea in assault cases. The drunkenness is in itself an
intrinsic, an integral part of the crime, the other part being the evidence of the unlawful use of force against the victim. Together they add up to criminal recklessness. Self-induced
intoxication, however gross and even if it has produced a condition akin to automatism cannot excuse crimes of basic intent […]
DPP v Majewski
It is not clear from DPP v Majewski how the jury should be directed when a defendant who is voluntarily intoxicated has committed a basic intent crime. The extract from Lord Elwyn-Jones suggests that the prosecution is excused having to prove the mens rea, while Lord Salmon in the same case referred to the defendant being unable to use intoxication as a defence.
Lord Elwyn-Jones’s method
As Lord Elwyn-Jones’s method has been criticised, the method used by the courts today is for the jury to consider whether the defendant would have seen the risk had they not been intoxicated (R v Coley, McGhee and Harris [2013] EWCA Crim 223).
Judicial Studies Board Crown Court Book in R v G:
If the defendant’s ability to appreciate the risk was or may have been impaired through drink the jury should be asked to consider his awareness as it would have been had the defendant been sober. If they are sure the defendant would have been aware of the risk if he had been
sober, the first stage is satisfied.
1.5.1 Dangerous and non-dangerous drugs
The court in R v Hardie [1985] 1 WLR 64 held that drugs are divided into two categories.
(a) Dangerous drugs: Where it is common knowledge that a drug is liable to cause the taker to become aggressive, or to do dangerous or unpredictable things, that drug is to be classed with alcohol. Illegal drugs will fall into this category.
(b) Non-dangerous drugs: Where there is no such common knowledge, eg a merely soporific or sedative drug. Different rules apply for non-dangerous drugs, the defence of intoxication might be available if D did not form the necessary mens rea.
Key case: R v Hardie [1985] 1 WLR 64
Facts: In this case D took Valium belonging to his girlfriend. Later he started a fire and said, when
charged with criminal damage, that he had no mens rea because of the Valium. He was convicted
as the judge directed the jury that drugs were to be treated as drink and the Majewski rules applied.
Held: The Court of Appeal allowed his appeal on the basis that the Valium was taken for calming his nerves, and there was no evidence that the appellant knew it would make him aggressive, incapable of appreciating risks to others or susceptible to other side effects, so as to make his taking it reckless.
1.5.2 The distinction between crimes of basic and specific intent
Majewski provided a leading method for categorising crimes for some time.
Basic intent offence
A crime was categorised as one of basic intent where the defendant could be convicted on the
basis of recklessness as to the consequences, or where no foresight as to the consequences is
required. An example of a basic intent offence is battery as D must intend or be reckless as to applying
unlawful force on another.
Specific intent offence
Crimes of specific intent were those where intention was the only form of mens rea available, ie where recklessness was insufficient mens rea for the offence to be made out. An example of a specific intent offence is murder as D must intend to kill or cause grievous bodily
harm, recklessness is not enough.
Specific Intent Crimes
- Murder
- Wounding or grievous bodily harm with intent, s 18 Offences Against the Person Act (OAPA) 1861
- Theft
- Robbery
- All burglary under s 9(1)(a) TA 1968
- Burglary under s 9(1)(b) where D has fulfilled the last element by:
- Stealing
- Attempting to steal or attempting to
cause GBH - Attempts
Basic intent crimes
- Unlawful act manslaughter
- Gross negligence manslaughter
- Malicious wounding/inflicting GBH, s 20
- Assault occasioning ABH, s 47
- Battery
- Assault
- Basic criminal damage and aggravated criminal damage, s 1(1) and s 1(2) CDA 1971
- Burglary under s 9(1)(b) where D has fulfilled the last element by causing GBH
Specific and basic intent offences
However, there is no agreed definition of specific and basic intent offences. In the controversial
Court of Appeal case of R v Heard [2007] EWCA Crim 125, Lord Justice Hughes gave the following rule for determining specific intent crimes:
[…] proof of a state of mind addressing something beyond the prohibited act itself, namely its
consequences.
Applying Heard definition
If the Heard definition was applied, it would mean that aggravated criminal damage contrary to s 1(2) CDA 1971 which is generally thought of as a basic intent offence would be treated as a specific intent offence, as the mens rea includes an intention or recklessness as to life being
endangered by the defendant’s act of criminal damage.
Application of R v Heard on aggravated criminal damage
Section 1(2) Criminal Damage Act 1971
Actus reus
* Destroy or damage
* Property
Mens rea
* Intention or recklessness as to the destruction or damage of property
* Intention or recklessness as to the endangerment of life by the damage or destruction
Hughes LJ in Coley, McGhee and Harris:
However, more recently Hughes LJ in Coley, McGhee and Harris, while noting that there was now room for doubt as to whether aggravated criminal damage was a crime of basic intent due to the ‘passing obiter reference’ in Heard, said there was force in the argument that voluntary intoxication should not be a defence to crimes of recklessness. He said it was not necessary to resolve the matter in the case before him.
Dennis J Baker in Glanville Williams’s Criminal Law described the court in Heard
As having ‘embarked on an ill-considered legislative venture’ and the court’s reasoning as being
‘contradictory and fallacious’. The case is also criticised by David Ormerod in Smith, Hogan and
Ormerod’s Criminal Law, where he concludes that any offence which may be committed recklessly ought to be held to be an offence of basic intent. It is therefore proposed that you concentrate on the Majewski method for distinguishing between
crimes of basic and specific intent.
1.6 Intoxication and other defences
Up to this point, we have considered intoxication as a way to negate the mens rea of an offence. The second way that intoxication can impact your legal analysis is as an influencing factor on another legal principle or defence. Generally, intoxication will not enable a defendant to rely on a defence, whether the crime they
have committed is one of specific or basic intent.
1.7 Summary
Intoxication working to negate the mens rea
The court will ask whether the defendant did form the mens rea even though intoxicated:
* If yes, a drunken intent is still intent, D will be criminally liable, see Kingston. Another example
would be if D takes drugs or alcohol in order to commit a specific intent crime (sometimes referred to as ‘Dutch courage’).
* If no, D lacks the mens rea and will be acquitted eg D was so intoxicated they did not know what they were doing
The court will ask whether the defendant did form the mens rea even though intoxicated, in cases
of:
Involuntary intoxication (such as being drugged without consent);
* Voluntary intoxication by non-dangerous drugs (eg Hardie, the D who took Valium to calm his
nerves); or
* Voluntary intoxication and D has committed a specific intent crime (eg murder).
Intoxication working to negate the mens rea
Where D is voluntary intoxicated by dangerous drugs/alcohol and commits a less serious crime of
basic intent (where recklessness is a form of mens rea available), the defendant will be deemed
reckless if they would have formed the MR if sober (Coley, McGhee and Harris):
* If yes, D will be criminally liable eg if D got drunk and started throwing pebbles at a window
which smashed. D will be criminally liable if they would have realised the risk of damaging the
window had they have been sober.
* If no, D will not be criminally liable eg if D smashed the window by tripping over a broken step
that they would have tripped on if sober.
Intoxication and other defences
- Self-defence: D cannot rely on a drunken mistake as to the need to use self-defence.
- Loss of control and diminished responsibility can still be pleaded if D was intoxicated but it
does impact various aspects of the legal analysis. - Consent: If the jury are satisfied that V consented to the accidental infliction of injury or D
(even wrongly) believed that V consented (due to their intoxication), D may have a defence
(Richardson & Irwin). - Statutory defences, where these allow for an honest belief, D will be able to use the defence
even if their belief is due to voluntary intoxication, see Jaggard v Dickinson on the lawful
excuse defence for criminal damage.
- Consent
For offences against the person, the consent of the victim may also preclude a crime. It is not clear whether consent operates as a defence to the crime or whether the absence of consent is an element of the offence. The Law Lords in the important House of Lords case of R v Brown [1994] AC 212 were divided on this. Lords Jauncey and Templeman said consent was a defence, while
Lord Mustill said lack of consent was part of the offence.
Lord Lowry
Lord Lowry spoke of it as a defence, but then cited the Law Commission’s Draft Code, which treats the absence of consent as an element of the offence of common assault. For the purposes of this Workbook it is being treated as a defence. There are two elements to consent:
(a) Either the victim consented or the defendant believed the victim consented.
(b) The offence is one which a victim can consent to.
2.1 Either the victim consented or the defendant believed the victim
consented
It is for the prosecution to prove both that the victim did not consent and that the defendant did not believe in the victim’s consent. So if the defendant wrongly believed the victim consented, the defence could be available (R v Richardson and Irwin). Equally if the victim consented, even if the defendant did not know this, the defence could be available. Whether the defence of consent is
available will depend on the level of harm inflicted on the victim and the circumstance in which the
harm was inflicted.
Key case: R v Richardson and Irwin [1999] 1 Cr App R 392
Facts: The defendants were university students. After drinking at a student union bar they decamped to a flat belonging to one of their friends, the victim. Horseplay ensued during which the defendants lifted and dropped the victim over a balcony where he fell a distance of 10–12 feet
(around 3/3.5 me), sustaining injuries. The defendants were charged under s 20 OAPA. The defendants were convicted and appealed against their conviction.
The Court of Appeal
Held: The Court of Appeal upheld their appeal and quashed their convictions on the basis that
there had been misdirection by the trial judge. Their Lordships stated:
(a) That if the jury were satisfied that V had in fact consented to the accidental infliction of injury, this would be a defence; and
(b) That the jury should have been allowed to consider whether the defendant believed that V
consented, even if the defendants wrongly believed that V consented due to their intoxication!
2.2 The offence is one which a victim can consent to
The general rule is that consent is only available as a defence to assault and battery.
Key case: AG’s Reference(No 6 of 1980) [1981] QB 715 Two boys decided to settle an argument by a fight and one sustained a bleeding nose and bruises. It was held that the other was guilty under s 47 OAPA of assault occasioning actual bodily harm (ABH). […] it is not in the public interest that people should try to cause or should cause each other
actual bodily harm for no good reason. Minor struggles are another matter. So, in our judgment, it is immaterial whether the act occurs in public or private […] this means that most fights will be unlawful regardless of consent.
(Per Lord Lane CJ)
Key case: R v Brown [1994] AC 212
The general rule that consent is only available as a defence to assault and battery was confirmed by the House of Lords in this case.
Facts: A group of sadomasochists, caused injuries to each other for sexual pleasure. No medical
treatment was required. The participants were charged with offences under s 47 and s 20 OAPA.
The defence of consent failed.
Judgement
Held: The court held that consent could not be a defence to anything greater than a battery, unless it fell into one of the accepted ‘good reasons’: …] the line properly falls to be drawn between assault at common law and the offence of
assault occasioning ABH created by sec 47 of the 1861 Act with the result that consent of the victim is no answer to anyone charged with the latter offence or sec 20 unless the
circumstances fall within one of the well-known exceptions such as organised sporting contests and games, parental chastisement or reasonable surgery.
Key case: R v Meachen [2006] EWCA Crim 2414
This subsequent Court of Appeal case has extended the use of consent.
Consent is available as a defence, even where actual bodily harm or worse is caused provided the
defendant:
- Intended only to commit a battery with the consent of the victim; and
- Did not see the risk of inflicting actual bodily harm.
If however, the defendant intended to cause actual bodily harm, then consent is not available as a
defence, even if the victim consented (unless the conduct falls into one of the exceptions which follow). The situation regarding being reckless as to causing actual bodily harm with the victim’s consent is unclear and is still the subject of academic debate.
2.3 The exceptions
The general rule is that consent is only available as a defence to assault and battery. However,
the victim can consent to offences against the person of ABH and above if the situation falls under
one of the public interest exceptions such as:
* Medical treatment;
* Sport;
* Horseplay;
* Tattooing, body piercing and personal adornment; and
* Sexual gratification/accidental infliction of harm.
* Lawful correction of a child
2.3.1 Medical treatment
Consent can be given for surgery and other medical treatment that causes harm. Consent can be given to a high risk of death.
2.3.2 Sport
There is a public interest in encouraging people to play sport, and therefore any incidental injury
caused while playing within the rules of the game will not be an offence. Participants have consented to such incidental injury. The following cases have explored this issue. There is a public interest in encouraging people to play sport, and therefore any incidental injury caused while
playing within the rules of the game will not be an offence. Participants have consented to such incidental injury. The following cases have explored this issue.
Key case: R v Barnes [2005] WLR 910
Held: The Court of Appeal said that in organised sport, criminal prosecution should be reserved for those situations where the conduct was sufficiently grave properly to be categorised as criminal. If what occurred went beyond what a player could reasonably be regarded as having accepted by taking part in the sport, this would indicate that the conduct was not covered by the
defence of consent. Whether conduct reached this level depended on all the circumstances, which included the type of sport, the level at which it was played, the nature of the act, the degree of force used, the extent of the risk of injury, and the state of mind of the defendant
Key case: R v Barnes [2005] WLR 910 Judgement
In highly competitive sports, conduct outside the rules might be expected to occur in the heat of the
moment; the fact that such conduct was penalised and even resulted in a warning or a sending off, did not necessarily mean that the threshold level required for it to be regarded as criminal had been reached. Here, V had sustained a serious leg injury as a result of a late tackle by D in a
football match. The jury needed to consider whether the contact had been so obviously late and/or violent that it was not to be regarded as an instinctive reaction, error or misjudgement in the heat of the game.
Key case: R v Billinghurst [1978] Crim LR 553
Facts: B punched G and fractured his jaw in two places during a rugby match in an off-the-ball
incident. He was charged under s 20 OAPA.
Held: The judge directed that the players are deemed to consent to force of ‘a kind which could
reasonably be expected to happen during a game’. The victim said he had been punched on previous occasions and had punched others. Mervyn Davies, a former Welsh International said that in the modern game punching is the rule not the exception! However, the judge considered ‘on the ball’ and ‘off the ball’ play and as B’s conduct was found to be ‘off the ball’ it was outside the scope of the implied consent. B was therefore convicted.
Consenting to certain amount of violence
In some Canadian cases, it has been held that spectators at ice hockey matches consent to a certain amount of violence!
2.3.3 Horseplay
This exception has received much criticism. Key case: R v Richardson and Irwin [1999] 1 Cr App R 392
The defendants seized their friend whom they claimed they believed was consenting and held him
over a balcony. They dropped him and he broke several bones. Their conviction was quashed as the trial judge had not directed the jury to consider consent.
