General Defences

Question 1

WHAT IS A GENERAL DEFENCE?

Answer 1

A general defence is one that may be raised to all crimes. Where a general defence is successfully pleaded, the defendant will avoid liability entirely.

Question 2

WHAT IS THE FIRST STEP IN CONFRONTING INTOXICATION?

Answer 2

By making two crucial distinctions:

1. Between substances which are regarded as
   intoxicants and those that are not
2. Between intoxication for which the defendant is
   responsible and intoxication for which the defendant
   is not responsible.

Question 3

WHAT SUBSTANCES ARE REGARDED AS INTOXICANTS?

Answer 3

Any substance commonly known to produce effect generally associated with intoxication can be regarded as intoxicants.

Hardie [1985] indicates that a substance may be regarded as an intoxicant when it produces the effects which would be expected of it.

Question 4

WHAT IS VOLUNTARY INTOXICATION?

Answer 4

Where the defendant knows they were consuming an intoxicant or where they realised they may be taking an intoxicant.

Allen [1988] held that the defendant will still be regarded as voluntarily intoxicated even if they underestimated/made a mistake as to the strength of the intoxicant.

Question 5

WHAT IS INVOLUNTARY INTOXICATION?

Answer 5

Where the defendant is unaware they were consuming an intoxicant.

Question 6

WHAT MUST THE DEFENDANT LACK IN BOTH TYPES OF INTOXICATION?

Answer 6

The mens rea of the offence.

Question 7

WHAT IS THE LIABILITY WHERE THE DEFENDANT IS INVOLUNTARILY INTOXICATED?

Answer 7

The defendant is entitled to produce evidence of the intoxication to refute the prosecutions allegations of mens rea.

The rules were established in Kingston [1994}

Question 8

WHAT IS THE LIABILITY WHERE THE DEFENDANT IS VOLUNTARILY INTOXICATED?

Answer 8

The rules were established by the House of Lords in DPP v Majewski [1976] and are based on a distinction between specific intent and basic intent offences.

Question 9

WHAT ARE SPECIFIC INTENT OFFENCES?

Answer 9

These require proof of intention and nothing else.

This category includes:

• murder
• causing GBH with intent to cause such harm
• theft
• robbery

Question 10

WHAT ARE BASIC INTENT OFFENCES?

Answer 10

Proof of recklessness is sufficient.

This category includes:

• manslaughter
• assault
• criminal damage

Question 11

WHAT ARE THE RULES ESTABLISHED IN DPP V MAJEWSKI [1976] WHERE A DEFENDANT IS CHARGED WITH A SPECIFIC INTENT OFFENCE?

Answer 11

The defendant may introduce evidence of intoxication in asserting that at the time of the offence, they did not have the required intention.

The issue whether the defendant did or did not form the intention - not whether they are capable of forming it.

Further to Gallagher [1963] the defendant cannot use the defence of intoxication where they formed the intent to commit the crime, but then gets drunk as to acquire ‘Dutch courage’.

Question 12

WHAT ARE THE RULES ESTABLISHED IN DPP V MAJEWSKI [1976] WHERE A DEFENDANT IS CHARGED WITH A BASIC INTENT OFFENCE?

Answer 12

The defendant is simply not allowed to introduce evidence of voluntary intoxication to explain why they were not aware of the risk.

Question 13

WHAT WILL THE DEFENDANT BE CHARGES WITH IF THEY RAISE A DEFENCE OF INTOXICATION IN RESPECT OF A SPECIFIC INTENT OFFENCE?

Answer 13

A person who raises intoxication as a defence to avoid liability for conviction of a specific intent offence, will inevitably be charges of any associated basic intent offence.

For example:
In Lipman [1970] the defendant, who killed his girlfriend whilst on an LSD trip, avoided liability for murder but was convicted of manslaughter.

Question 14

WHAT IS THE DEFENCE OF ‘MISTAKE’?

Answer 14

Merely a denial of mens rea

The defendant is saying that they could not have intended or known the risk of the consequence.

Question 15

WHAT CAME OUT OF THE CASE B (A MINOR) V DPP [2000] IN RESPECT OF THE DEFENCE OF ‘MISTAKE’?

Answer 15

There is no need for the mistake to have been reasonable. What is important, is that it prevented the defendant from having the necessary mens rea.

Question 16

WHAT IS ‘DURESS’?

Answer 16

There are two forms of duress:

1. Duress by threats
2. Duress by circumstance

Question 17

WHAT DOES THE DEFENDANT ARGUE FOR DURESS BY THREATS?

Answer 17

That they were compelled to commit an offence because of direct threats of harm to themselves or someone for whom they are responsible.

Question 18

WHAT DOES THE DEFENDANT ARUGE FOR DURESS BY CIRCUMSTANCE?

Answer 18

That they were compelled to commit an offence because of the circumstances they found themselves in.

Question 19

WHEN IS THE DEFENCE OF DURESS BY CIRCUMSTANCES AVAILABLE?

Answer 19

Where the defendant acts reasonably and proportionately to avoid a threat of death or serious injury.

Question 20

WHERE THE DEFENCE OF DURESS BY CIRCUMSTANCES IS AVAILABLE, WHAT MUST THE JURY DETERMINE?

Answer 20

1. Was the defendant impelled to act as they did as a
   result of what they reasonably believed to be the
   situation in which they had good cause to fear death
   or injury?
2. If so, would a sober person of reasonable firmness,
   with the same characteristics as the defendant, act as
   the defendant did?

If the answer is YES to both, the defendant must be aqcuitted.

Question 21

WHAT DID THE CASE OF ‘RE A (CHILDREN) (CONJOINED TWINS: SURGICAL SEPARATION) [2000]’ HOLD?

Answer 21

Doctors would have a defence of necessity if the operated to separate the twins in order to prevent the weaker twin causing the death of the stronger twin.

Necessity can therefore be a defence for murder - in limited cases

Question 22

WHAT ARE THE DIFFERENCES BETWEEN DURESS BY CIRCUMSTANCE AND NECESSITY?

Answer 22

With duress by circumstance, there needs to be a threat of death or serious injury to the defendant or another. This is not the case with necessity (Pipe v DPP [2012])

To please necessity, the defendant will need to demonstrate he took the option which was the ‘lesser of two evils’

Duress can be based on mistaken belief. Necessity cannot.

Question 23

WHAT ARE THE REQUIREMENTS FOR DURESS BY THREATS?

Answer 23

Further to Hasan [2005] the requirements for this defence have tightened.

The defence CANNOT succeed if:

1. The crime is murder or attempted murder - the
   defendant is expected to withstand pressure (Howe
   [1987])
2. The defendant is at fault in associating themselves
   with a person or group whom they knew might
   pressure them into committing an offence. This
   applies to:
   • Terrorist & Criminal gangs (Sharp [1987])
   • Violent drug dealers (Heath [2000])

Question 24

WHAT TWO TESTS MUST THE DEFENCE OF DURESS BY THREATS SATISFY?

Answer 24

If the crime is NOT murder or attempted murder and the defendant is not at fault, the plea must satisfy two tests:

1. A Subjective test
2. An Objective test

Question 25

WHAT IS THE SUBJECTIVE TEST FOR DURESS BY THREATS?

Answer 25

1. The defendant’s will must have been overborne by a
   threat of death or serious injury
2. The threat must be made against the defendant
   himself or someone for whom he is responsible
   (Shayler [2001])
3. The threat must be made with the purpose of
   compelling the defendant to commit a crime.
4. The defendant may rely on this defence even where
   he is mistaken as to the facts giving rise to the threat
   (Martin [2000])

Question 26

WHAT IS THE OBJECTIVE TEST FOR DURESS BY THREATS?

Answer 26

This test was established in Graham [1982] and confirmed by Hasan [2005].

There must be evidence that a sober person of reasonable firmness, sharing the relevant characteristics of the defendant, would have responded as the defendant did.

Question 27

WHAT ARE RELEVANT CHARACTERISTICS?

Answer 27

In Bowen [1996] the Court of Appeal gave examples of the characteristics relevant to the objective part of the test:

Age
Sex
Pregnancy
Serious physical disability
Recognised mental illness or psychiatric condition

Question 28

IN WHAT THREE SITUATIONS DOES THE LAW ALLOW THE DEFENDANT UT FORCE?

Answer 28

1. To protect themselves or others
2. To protect property
3. To prevent crime

Question 29

WHAT IS THE RULE ABOUT USING FORCE TO PRVENT CRIME?

Answer 29

This rule is stated in s3(1) Criminal Law Act 1967:

‘a person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large’

Question 30

WHEN WILL THE DEFENCE OF SELF-DEFENCE FAIL?

Answer 30

If the defendant is not acting for any of the three situations allowed by the law, the defence will fail (burns [2010]).

Question 31

WHAT ARE THE FOUR COMMON LAW PRINCIPLES THAT ARE RESTATED BY S76 CRIMINAL JUSTICE AND IMMIGRATION ACT 2008?

Answer 31

1. The reasonableness of force is to be judged on the
   facts and circumstances as the defendant believed
   them to be (s76(3)).
2. An intoxicated mistake about the facts or
   circumstances is not a defence (s76(5)).
3. Excessive or disproportionate force is not reasonable
   (s76(6)).
4. The defendant will not be expected to weigh to a
   nicety the exact measure of any necessary action and
   evidence of honest and instinctive self-defence or
   prevention of crime will be strong evidence that only
   reasonable force was used (s76(7)).

Question 32

WHAT ARE THE REQUIREMENTS FOR SELF-DEFENCE?

Answer 32

Two conditions must be satisfied:

1. The use of some force must be necessary

   - this must be answered in relation to the facts as 
     they were or as the defendant believed them to 
     be, even if they were mistaken. The mistake does 
     not gave to be reasonable, merely genuine (s76(4) 
     & Williams (Gladstone) [1987])

2. The actual force used must be proportionate

   - an objective test is applied here - would a 
     reasonable person consider than an appropriate 
     degree of force was used in the view of the danger 
     which existed or were genuinely believed to have 
     existed? (s76(3)).

Question 33

IN WHAT CIRCUMSTANCES COULD THE DEFENDANT LOSE THE DEFENCE IN RESPECT OF HIS ‘MISTAKE’?

Answer 33

It was held in Taj [2018] that under s76(5), the defendant could lose the defence if his mistake was:

1. A mistaken state of mind as a result of being drunk or
   intoxicated at the time of the offence
2. A mistaken state of mind as a consequence of earlier
   drinking or drug taking

Question 34

WHAT IS EXCESSIVE SELF-DEFENCE?

Answer 34

There is no restriction on the offences to which self-defence/prevention of crime can be a defence and is commonly pleaded to a charge of murder.

However, if the defendant kills using more force than is proportionate, they will lose the defence entirely and be convicted of murder, more merely manslaughter.

Question 35

WHAT DOES THE CRIMINAL JUSTICE AND IMMIGRATION ACT 2008 SAY ABOUT HOUSEHOLDER CASES?

Answer 35

s76(5a) states:

‘in householder cases, the degree of force used by the defendant is not to be regarded as having been reasonable in the circumstances as the defendant believe them be, if it was grossly disproportionate in those circumstances’

Question 36

WHAT GUIDANCE WAS PROVIDED BY THE COUR IN ‘SECRETARY OF STATE FOR JUSTICE (ON THE APPLICATION OF DENBY COLLINS) [2016]’ IN TERMS OF THE ‘HOUSEHOLDER DEFENCE’?

Answer 36

s76(5a) does not allow householders to use disproportionate force in all cases. The correct approach is to ask:

1. Whether the level of force used was reasonable in the
   circumstances they believed existed
2. In householder case, grossly disproportionate force
   used by the defendant will always be unreasonable

s76(5a) doe NOT therefore breach Article 2, European Convention of Human Rights

Question 37

WHAT IS ANTICIPATORY SELF-DEFENCE?

Answer 37

Striking the first blow may be the most effective form of defence.

Bird [1985] recognised that there is no duty to seek to avoid confrontation (whether by retreat or other means).

Question 38

WHAT DOES CRIMINAL JUSTICE AND IMMIGRATION ACT 2008 SAY IN RESECT OF ANTICIPATORY SELF-DEFENCE?

Answer 38

s76(6a) states:

‘a possibility that the defendant could have retreated is to be considered (as far as relevant) as a factor to be taken into account, rather than giving rise to a duty to retreat.

Question 39

WHAT DID FIELD [1972] HOLD IN RESECT OF ANTICIPATORY SELF-DEFENCE?

Answer 39

The defendant will not lose the defence because they ‘knowingly walked into trouble’.

Question 40

WHAT GUIDANCE DID MALNICK V DPP [1989] PROVIDE IN TERMS OF A DEFENDANT ARMING HIMSELF?

Answer 40

Individuals may not arm themselves to repel violence, which they have knowingly and deliberately brought about by creating a situation in which violence was likely to be inflicted.

This is different from where the defendant has picked up a weapon at. the last minute when faced with a threat.

Question 41

WHAT DID THE COURT OF APPEAL CONFIRM IN BOTH KEANE [2010] AND HARVEY [2009]?

Answer 41

The defence is not automatically denied to once who provokes violence.

Although the defendant may have been the original aggressor, he will nevertheless be able to please self-defence where the ‘tables had turned’ and the victim’s response with disproportionate.