General Defences Flashcards
Evidential Burden
Should D wish to argue a defence, they must raise sufficient evidence to demonstrate the defence is capable of being argued. D is not required to prove the requirements of the defence have been satisfied, merely provide evidence in support.
However exception where the legal burden may be reversed is for diminished responsibility.
Voluntary Intoxication (dangerous drugs alcohol etc)
Where D is being charged with a specific intent offence, the defence will be available so long as D lacks mens rea.
Where D is being charged with a basic intent offence, the defence is unavailable.
Specific Intent
Where the mens rea goes beyond the actus reus, then the offence is one of specific intent (aggravated criminal damage).
Where the offence requires proof of a purposive element it will be specific intent - offence that can only be committed intentionally.
Basic intent
Crimes of recklessness, negligence or strict liability.
Voluntary intoxication (non dangerous drugs - prescriptive or sedative drugs)
The D will have a defence to a specific intent offence if he has a total loss of bodily control.
Where D has been charged with basic intent offence, whether he has a defence turns on whether he has been reckless when ingesting the drug. If he did not appreciate such, and has suffered a total loss of bodily control, he will have a defence.
Involuntary intoxication
Defence available for any type of offence, so long as D lacks the mens rea.
Self defence
D may argue he was justified in acting as he did in order to:
- protect himself or another
- protect his property
- prevent a crime or to make a lawful arrest.
Requirements:
- The use of force was necessary in the circumstances as D believed them to be;
- The use of force by D was reasonable in all the circumstances as D believed them to be
Necessity
A mistaken and honest belief can form the basis of self-defence
D’s belief as to necessity to use force does not need to be reasonable.
D cannot rely on a mistake about the need to use defence where that mistake is induced by D’s involuntary intoxication
Can rely on a genuine belief in the need to use self-defence if it resulted from a mental illness or long- term use of alcohol.
D can make a pre-emotive strike but must apprehend that force will be used against him imminently.
There is no duty to retreat.
The threat must be immediate or at least imminent
Defence may be still be available where D has provoked the violence but if to allow him to attack the victim
Reasonable force
Force is reasonable if it is regarded as being proportionate in the circumstances.
D’s response is judged in the circumstances as he honestly believed him to be. This is objective but D’s beliefs are a relevant factor.
D’s response must be judged by the knowledge they had in the heat of the moment.
Jury may take into account any relevant factor when deciding whether the force was reasonable.
Householders and use of force
The D must be a householder
Self defence must be used while in or partly in a dwelling (includes vehicles, vessels and part of a building that is adjourned to a dwelling)
D believed V to be a trespasser
D’s use of force was necessary in the circumstances D believed them
D’s use of force was not grossly disproportionate in the circumstances as D believed them to be.
D’s belief need not be reasonable and may be mistaken
Householders may use disproportionate force and it still could be considered reasonable.
