General Defences

Question 1

What can the defence of intoxication be used for?

Answer 1

• A way to negate the mens rea of an offence; or
• An influencing factor on another legal principle/ defence.

Question 2

When can intoxication operate to negate the mens rea?

Answer 2

• In any crime where the intoxication is caused by drink or drugs taken involuntarily, i.e. ‘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).

Question 3

What Qs should you ask to see if intoxication negates MR?

Answer 3

• Is the defendant voluntarily intoxicated or involuntarily intoxicated?
• Is the intoxicant a dangerous alcohol/drug or a non-dangerous drug?
• Is it a crime of basic intent or specific intent?

Question 4

When can voluntary intoxication be a defence?

Answer 4

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.

Question 5

How does intoxication work to negate MR?

Answer 5

Intoxication working to negate the mens rea
The court will ask did the defendant 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 e.g. D was so intoxicated they did not know what they were doing.
The court will ask did the defendant form the mens rea even though intoxicated, in cases of:
* Involuntary intoxication (such as being drugged without consent);
* Voluntary intoxication by non-dangerous drugs (e.g. Hardie, the D who took Valium to calm his nerves); or
* Voluntary intoxication and D has committed a specific intent crime (e.g. murder).
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 foresaw the risk of harm if sober, Coley, McGhee and

Question 6

How does intoxication work with the other defences?

Answer 6

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.

Question 7

Involuntary intoxication may be raised successfully as a defence to which crimes?

Answer 7

Crimes of both specific and basic intent involving dangerous or non-dangerous substances

Question 8

When will intoxication prevent the defendant from using another defence?

Answer 8

When a drunken mistake caused the defendant to use self-defence

Question 9

What is the question a court will ask regarding a defendant’s mens rea if they are voluntarily intoxicated by dangerous drugs/ alcohol and commit a basic intent offence?

Answer 9

Would the defendant have formed the mens rea if sober?

Question 10

what happens if D has a valid justification or excuse for their behaviour?

Answer 10

If a valid and complete defence exists, D will not be criminally liable.

Question 11

Can consent prevent D from being liable for a crime?

Answer 11

Sometimes

For example, for property offences there is a statutory defence for a defendant who believes the owner consents. This is found in the Criminal Damage Act 1971, s 5(2)(a) and the Theft Act 1968, s 2(1)(b).

Question 12

What are the elements for the defence of consent?

Answer 12

There are two elements to consent, whether the:
- victim consented; or
- defendant honestly 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.

Question 13

When is consent a defence to an offence against the person?

Answer 13

The general rule is that consent is only available as a defence to assault and battery.

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).

Question 14

What the requirements for consent for offences against the person?

Answer 14

s the offence more than assault/ battery?
· No- Consent is available if: V consented or D honestly believed that V was consenting.
· Yes- Did D intend to cause ABH or above?
o Yes- Consent is no available unless any of the exceptions apply.
o No & did not see risk- Consent is available, Meachen.
o No & reckless- No guidance from court but if prohibited harm then check to see if one of the exceptions apply.

Question 15

What are the exceptions to the general rule that consent is only available as a defence to assault and battery? If ABH was caused what are the exceptions for consent that could be used for D’s defence?

Answer 15

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.

Question 16

What is the exception for consent for medical treatment?

Answer 16

Consent can be given for surgery and other medical treatment that causes harm. Consent can be given to a high risk of death.

Question 17

What is the exception for consent for sport?

Answer 17

Consent to incidental injury during sport - but if the offence against the person is caused “off the ball” there is no defence of consent

Question 18

What is the exception for consent for horseplay?

Answer 18

R v Jones (1986) 83 Cr App R 375
Some boys at a youth club tossed two other boys into the air, resulting in one suffering a ruptured spleen and the other a broken arm. The Court of Appeal held that they ought to have been allowed to raise the issue of consent to injuries sustained through ‘rough and undisciplined’ horseplay, for the jury to then consider.

Question 19

What is the exception for consent for Tattooing, body piercing and personal adornment?

Answer 19

R v Wilson [1997] QB 47 (CA)
FACTS: The defendant used a hot knife to brand his initials onto the buttocks of his wife, at her request. He argued consent to a charge under the OAPA 1861 s 47, and was successful.

DOES NOT INCLUDE BODY MODIFICATION in particular the removal of an ear, the removal of a nipple and the division of a tongue into a fork like a reptile, in the category of tattooing and personal adornment.

Question 20

What is the exception for consent for Sexual gratification/ accidental infliction of harm exception?

Answer 20

R v Dica [2004] QB 1257
The Court of Appeal held that if the complainant consents to the risk of contracting HIV through having sexual intercourse, the defendant does have a defence to a charge under the OAPA 1861, s 20.

R v Brown
The consensual sadomasochistic activity that occurred in R v Brown such as burning their genitals or beatings for sexual pleasure was not deemed to be a suitable exception. The courts considered the nature of the act rather than the circumstance in which it occurred.

R v Emmett (1999) The Times, 15 October
FACTS: The parties were involved in consensual activities with the defendant tying a plastic bag over his fiancée’s head in order to increase her sexual pleasure. He also, with her consent, poured lighter fuel on her breasts and set fire to it.
HELD: The court saw this as violent conduct which moved beyond those acts which can be consented to.

Question 21

What is another defence for offence against the person that is not consent?

Answer 21

A parent has a defence of reasonable chastisement in applying force to a child.

In considering whether or not a parent could use this defence, the jury must look at the nature and context of the parent’s behaviour, its duration, the physical and mental consequences for the child, and the reasons why the punishment was inflicted.

Question 22

What does self-defence refer to?

Answer 22

here a person acts to:
* protect themselves;
* protect someone else;
* protect property;
* prevent a crime; or
* assist in the arrest of an offender.

Question 23

What are the statutory and common law defences for self-defence?

Answer 23

The CJIA 2008, s 76(2) identifies the defences to which the section applies:
(a) the common law defence of self-defence; and
(aa) the common law defence of defence of property; and
(5) the defence provided by section 3(1) of the Criminal Law Act 1967 … (use of force in prevention of crime or making arrest).

The common law defence envisaged two possible reasons for acting:
* In the protection of life and limb of yourself or another: see e.g. R v Gladstone Williams(1984) 78 Cr App R 276 (CA).
* In the protection of property: R v Hussey (1925) 18 Cr App R 160 (CA).

Question 24

When can self-defence be used?

Answer 24

self defence can only be used to protect yourself or another, or property from imminent attack: i.e. from a threat of physical force, not a threat to one’s peace of mind

Question 25

What is the test for self-defence?

Answer 25

A defendant is entitled to rely on any of these defences if:
* the defendant honestly believed that the use of force was necessary; and
* the level of force the defendant used in response was objectively reasonable in the circumstances as the defendant believed them to be.

These requirements are know as the trigger and response.

Question 26

What kind of defence is self-defence?

Answer 26

It is a complete defence, so D will either be acquitted by self-defence or the defence will fail.

Question 27

How is D honestly believed that the use of force was necessary is assessed?

Answer 27

A defendant is to be judged on the facts as they subjectively believed them to be, whether the belief is reasonable or not.
For instance, if a defendant mistakenly believed that they were being attacked with a deadly weapon and used such force as was reasonable to repel an attack with a deadly weapon, then D has a defence; it is immaterial that they were mistaken and they were in fact being attacked with something less deadly.

Question 28

Will mistaken belief for self-defence be valid if D was intoxicated?

Answer 28

If the mistaken belief is due to the voluntary intoxication of the defendant, then the defendant will not be able to rely on their mistake

Question 29

Is there a duty to retreat in English law?

Answer 29

No

Question 30

Can self-defence be anticipatory?

Answer 30

A defendant may make the first blow and still rely on the defence.

Question 31

Can self-defence be used by the antagonist?

Answer 31

Yes

Question 32

Can Force can be used against an innocent third party?

Answer 32

this defence was capable of extending to the use of force against an innocent third party to prevent a crime being committed by someone else. The court felt that facts capable of giving rise to such a defence would only rarely be encountered and might include:
* a police constable bundling a passerby out of the way to get at a person the constable believed was about to shoot a firearm or detonate an explosive device; or
* a person seeking to give car keys to another to enable them to drive and X, believing that other to be unfit to drive through drink, knocked the keys out of the first person’s hands and retained them.

Question 33

When does the reasonableness of the level of force in self-defence differentiate?

Answer 33

non-‘householder’ cases; and
* ‘householder’ cases

Question 34

What are the relevant provisions for non ‘householder’ cases?

Answer 34

considering the force used, the jury must decide if the force used was objectively reasonable, given the facts as the defendant subjectively believed them to be, CJIA 2008, s 76(3), s76(4) ands76(6).

Question 35

question to be asked when judging whether the response was reasonable for the purposes of self-defence?

Answer 35

Was the level of force used objectively reasonable in the circumstances as D subjectively believed them to be?

Question 36

What is a householder case?

Answer 36

A householder case is one where D:
* Acts to protect themselves or another.
* Uses force while in or partly in a building, or part of a building, that is a dwelling (including vehicles, vessels and buildings that are dwellings and places of work if connected by an internal access route);
* Is not a trespasser at the time the force is used; and
* Believed the victim to be in, or entering, the building or part as a trespasser.

Question 37

What are the two Qs asked to the jury for householder cases?

Answer 37

Was the force grossly disproportionate in the circumstances as D believed them to be? If it was, there can be no defence.

• If not, was the level of force reasonable? The jury should take into account that the level of force should not be weighed to a nicety and that if the defendant believed in a moment of unexpected anguish that they were using reasonable force, that was very good evidence that the force was reasonable. R v Ray (Steven) listed circumstances which the jury should consider in determining whether the degree of force used by a householder was reasonable e.g. the shock of coming upon an intruder, the time of day, the vulnerability of the occupants, particularly children etc.

Question 38

What are the general defences?

Answer 38

Intoxication – this covers voluntary and involuntary intoxication through dangerous drugs/alcohol or through non-dangerous drugs.

Self-defence – this covers what is known as the ‘trigger’ and ‘response’ for both householder and non-householder cases.

Consent – this covers the general rule regarding consent and the exceptions to that rule.

Question 39

How does the general defence of intoxication work?

Answer 39

The general defence of intoxication can work by negating the mens rea for the offence or is a relevant consideration to another legal principle or another defence.

Question 40

How does the self-defence defence work?

Answer 40

Self-defence requires the ‘trigger’ that the use of force is necessary and a ‘response’ that the level of force is reasonable. What is deemed reasonable will depend on whether it is a householder or non-householder case.

Question 41

How does consent as a defence work?

Answer 41

Consent is available for offences of assault or battery and may be available for offences of ABH or higher depending on the circumstances and/or whether any exceptions apply.

Question 42

A man spends the evening in the pub and returns home extremely drunk. He takes the lift to his first floor flat and the movement of the lift causes him to vomit all over the lift. This is damage of property belonging to another as effort will have to be expended to return the lift to its original state.

Does the man have the mens rea for basic criminal damage?

The man does not have the mens rea as voluntary intoxication is a defence to this specific intent crime

The man will have the mens rea if when sober, he would have seen the risk of vomiting in the lift while drunk

The man will have the mens rea as a reasonable person would have seen the risk that a person might vomit in a lift when drunk

The man will have the mens rea as voluntary intoxication is no defence to this basic intent crime

The man does not have the mens rea as he did not intend to vomit in the lift

Answer 42

The man will have the mens rea if when sober, he would have seen the risk of vomiting in the lift while drunk

Correct. The man is voluntarily intoxicated, this is a basic intent crime and the jury will be asked this question, as per R v Coley, McGhee and Harris. The answer will depend on whether the man tends to be sick when very drunk and whether it has happened before in similar circumstances.
The other options are incorrect.
The mens rea for basic criminal damage is intention or recklessness as to destroying or damaging to property belonging to another. Mens rea is not confined to intention.
Criminal damage is a basic intent crime not a specific intent crime. An intoxicated defendant will be deemed to be reckless as to causing damage if they would have seen the risk of causing damage when sober.
The test for recklessness is a subjective one (not an objective, reasonable person test). The defendant must see the risk, in this case of causing damage to property belonging to another, and it must be an unreasonable risk to take in the circumstances known to the defendant.

Question 43

A new accountant was brought into the man’s office to be introduced. The accountant said ‘hello’ and the man smiled and grasped her hand to shake it. The new accountant pulled her hand away, as she had severe eczema which made contact with her hand painful.

Did the man commit the offence of battery?

This was not battery as a handshake cannot be described as force

This was not battery as the man was friendly rather than hostile or aggressive

This was not a battery as the man did not have the mens rea for the offence

This was a battery as the woman did not consent to having her hand shaken

This was a battery as a handshake can be described as force

Answer 43

This was not a battery as the man did not have the mens rea for the offence

Correct. The actus reus of battery took place when the man grasped her hand as the merest touch constitutes force (Collins v Wilcock), and there is no need for the force to be hostile, rude or aggressive (Faulkner v Talbot). Not all applications of force satisfy the requirements of a battery offence. The use of force must be unlawful, for example without consent, and must be accompanied with the relevant mens rea.
The mens rea is intentional or reckless use of unlawful force on another person. The man intended to and did apply force to the accountant, but not unlawful force. The man would not have realised that the accountant would not have consented to the everyday courtesy of shaking hands- he would have honestly believed the accountant consented. The defence might argue that this is covered by implied consent, the kind of everyday physical contact that is accepted to move around in society (Collins v Wilcock).

Question 44

During a party, the hostess goes into her kitchen where she finds her boyfriend arguing with a man she has never seen before. The man grabs her boyfriend by the shoulders. Thinking the man was a stranger who had not been invited, the woman picks up a frying pan and brings it down on the man’s head, fracturing his skull. In fact, the man is her boyfriend’s cousin who had been invited to the party. The woman believed she was acting to protect her boyfriend.

Which test will be used to determine her whether the woman acted in self-defence?

Was the force proportionate?

Was the force grossly disproportionate, and if not, was the force reasonable?

Was the force reasonable?

Was the force reasonable and proportionate?

Was the force grossly disproportionate?

Answer 44

Was the force grossly disproportionate, and if not, was the force reasonable?

Correct. The answer best reflects the wording of s 76 Criminal Justice and Immigration Act 2008. The woman must honestly believe that it was necessary to use force to protect another (the trigger) – a subjective question. The force used must be reasonable (the response) – an objective question but judged on the facts as the defendant believed them to be.
The woman acted to protect her boyfriend who, she believed, was being attacked by a stranger. When assessing her response, this case should be identified as a householder case (s 76(8A)), as the act took place in a dwelling house, the woman was not a trespasser and she believed the man was a trespasser. First it must be asked if the force was grossly disproportionate, s 76(5A). If it was, the woman cannot use the defence. If it was not, then it must be asked if the force was reasonable, R v Ray (Steven).

Question 45

A woman, who never drinks alcohol, goes to a party. One of her friends thinks it would be funny to get her drunk. Her friend gives the woman fruit punch laced with vodka. The woman enjoys the punch, drinks several glasses and becomes very drunk. She tells the friend that she feels odd, and the friend explains that is because the punch is full of vodka. As a result, the woman pours the contents of her glass into the dog’s water bowl. The dog, which is small, drinks the contents of its bowl and becomes ill. The woman has damaged property belonging to another.

Does she have the mens rea for simple criminal damage?

She does not have the mens rea because she is intoxicated

She has the mens rea because she is intoxicated

She does not have the mens rea as she did not intend to endanger the life of the dog

She will have the mens rea if she would have seen the risk of damaging the dog had she been sober

She will have the mens rea if she saw the risk of damaging the dog even though drunk

Answer 45

She will have the mens rea if she saw the risk of damaging the dog even though drunk

Correct. This is involuntary intoxication. This can be used as a ‘defence’ to both specific and basic intent crimes, DPP v Majewski. Simple criminal damage is a basic intent crime. She can use evidence of her intoxication to show she did not form the mens rea. The mens rea of simple criminal damage is intention or recklessness as to damaging property belonging to another. She can use her drunken state to show she did not see a risk of damaging the dog. However, if she did see the risk, she will be liable as a drunken intent is still an intent, R v Kingston.
The other options were incorrect.
· She will have the mens rea if she would have seen the risk of damaging the dog had she been sober- this is the test for basic intent crimes when the defendant is voluntarily intoxicated, R v Coley, McGhee and Harris.
· She does not have the mens rea because she is intoxicated- her involuntary intoxication does not operate as an automatic defence.
· She has the mens rea because she is intoxicated- this is not the test for a basic intent crime, even when the defendant is voluntarily intoxicated, see R v Coley, McGhee and Harris.
She does not have the mens rea as she did not intend to endanger the life of the dog- the mens rea of simple criminal damage is intention or recklessness as to damaging property belonging to another. It would be enough if she saw the risk of damaging the dog.

Question 46

An eighteen-year-old girl is having a party when strangers that have not been invited arrive and go into the back garden where the party is taking place. The girl confronts one of the strangers and tells him to leave or she will call the police. He replies, ‘Not before I have had a kiss’ and puts his arm round the girl, attempting to kiss her. One of the girl’s friends picks up an empty beer bottle and smashes it on the stranger’s head.

Which of the following best describes the question(s) the jury will be asked to consider in relation to the friend’s response for the purposes of self-defence?

The jury will be asked to consider if the force was grossly disproportionate

The jury will be asked to consider if the force was grossly disproportionate, and if not, was it reasonable?

The jury will be asked to consider if the force was reasonable, but it does not matter if it was disproportionate, as the exact measure of force cannot be weighed to a nicety

The jury will be asked to consider if the force was proportionate

The jury will be asked to consider if the force was reasonable which means proportionate

Answer 46

The jury will be asked to consider if the force was reasonable which means proportionate

Correct. The answer reflects the wording of s 76 Criminal Justice and Immigration Act 2008. The friend must honestly believe that it was necessary to use force to protect another (the trigger), a subjective question. The force used must be reasonable (the response), an objective question, but judged on the facts as the defendant believed them to be.
The friend acted to protect the girl who, she honestly believed, was being attacked by the stranger. When assessing her response, this case should be identified as a non-householder case because, even though the stranger is a trespasser, one of the elements in the test for a householder case in s 76(8A) is missing. The force is not used by the friend while in a building, s 76(8A)(b). Therefore, the test is that the force must be reasonable. It will not be reasonable if it is disproportionate, s 76(6). In a non-householder case, to be reasonable, the force used must therefore be proportionate.
The other options are incorrect.
In a non-householder case, it is not appropriate to consider whether the force used by the defendant is grossly disproportionate.
While s 76(7)(a) states that the force cannot be weighed to a nicety, and s 76(7)(b) states that evidence that the defendant only did what they honestly and instinctively thought was necessary constitutes strong evidence that only reasonable action was taken by the defendant, it should also be noted that s 76(6) provides that force cannot be reasonable if it is disproportionate.

Question 47

A woman picks some wild mushrooms while out on a walk. She brings them home and cooks them. When she tells her husband and son that the mushrooms had been growing wild, the son suggests they might be poisonous and says he is not going to eat them. The woman also decides not to eat any, but her husband says, ‘Don’t be silly. They smell delicious and I’m happy to take the risk, so I’ll eat them.’ The woman puts them on toast and gives them to her husband. He eats them and suffers kidney failure.

Is the woman liable for an offence under s 20 Offences Against the Person Act 1861?

She will be liable as she saw the risk of causing actual bodily harm or worse

She will not be liable as the husband consented

She will not be liable as there was no causal link between her acts and the husband’s kidney failure

She will be not be liable as she did not intend any harm

She will be liable as she saw the risk of causing some harm

Answer 47

She will not be liable as there was no causal link between her acts and the husband’s kidney failure

Correct. To satisfy the mens rea of a s 20 OAPA 1861 offence, the defendant must intend to cause some harm, or see a risk of causing some harm to someone. Although the woman saw the risk of causing her husband some harm which constitutes the mens rea of the offence, the actus reus is incomplete. Kidney failure constitutes serious harm, but it was not caused by the woman. Factual causation is satisfied as but for the woman’s act in serving the man the mushrooms, he would not have suffered grievous bodily harm. However, there is no legal causation because the man’s decision to eat the mushrooms was a free, deliberate and informed act which broke the chain of causation. As in R v Kennedy, he knew there was a possibility that the mushrooms would do him harm and deliberately took the risk.
The husband did consent to take the risk and eat the mushrooms. However, it is not possible to consent to actual bodily harm or worse for no good reason as held by the House of Lords in R v Brown. This rule applies where harm that amounts to actual bodily harm or above, was intended or foreseen by the defendant, as it was here. There are no relevant exceptions that apply here.

Question 48

When is the defence of consent implied?

Answer 48

s the law that people impliedly consent to the inevitable physical contact that occurs as
part of everyday life.

Question 49

When is consent valid?

Answer 49

*
Consent is only valid if it is freely given by a fully informed and competent adult.
*
Consent is not valid if it is obtained by fraud as to the identity of the defendant or fraud
as to the nature and quality of the act.

Question 50

Question 1
The defendant has been told that his next door neighbour is a convicted paedophile. He
is concerned about his son, aged eight years, who often plays outside. He approaches the
neighbour in the street and says: ‘If you go near my son, I’ll break your legs!’ The neighbour
is frightened and runs back into his house.
Has the defendant committed the offence of simple assault?
A Yes, because the defendant makes a deliberate threat to break the neighbour’s legs.
B Yes, because the neighbour clearly apprehends unlawful personal force as he is
frightened.
C Yes, because the defendant intends the neighbour to apprehend unlawful force to
ensure that the neighbour stays away from his son.
D No, because the threat of force must be an immediate one and here it is conditional
upon the neighbour going near the man’s son.
E No, because words alone will not suffice and the defendant did not hit the neighbour.

Answer 50

Option D is correct. The actus reus of simple assault requires the victim to apprehend
immediate and unlawful personal force and both A and B demonstrate the requirement for
the neighbour to apprehend such force. However, because the apprehension must be of
immediate force, the threat does not satisfy the actus reus as it is a conditional one to break
the neighbour’s legs only ‘if’ he goes near the defendant’s son. This is why D is the correct
answer.
Option B refers to the neighbour being afraid, but this is not actually a requirement of the
actus reus of assault, although it would be evidence that he apprehends the infliction of
unlawful force. Option C is wrong because, although this may satisfy the mens rea of the
offence, the actus reus is not complete. Option E is wrong as words alone can satisfy the actus
reus of simple assault.

Question 51

Question 2
A woman is playing in a football match against a rival team. The match is important as it is
the final game in the league and hotly contested on both sides. The teams are level at one
goal each when, just before full time, the woman (legitimately) tackles an opposing player
to stop her shooting at goal. The opposing player trips and falls awkwardly to the floor as
a result of the impact. Her right arm is badly broken in the fall.
Which of the following best describes the woman’s liability for inflicting or causing
grievous bodily harm (GBH) to the opposing player?
A The woman is liable for causing GBH as she caused the opposing player to suffer a
fractured arm and, by tackling the opposing player, she intended to cause grievous
bodily harm.
B The woman is liable for causing GBH as she caused the opposing player to suffer
really serious harm and, when tackling her, was reckless as to causing the injury.
C The woman is liable for inflicting GBH if the injury is classified as actual bodily harm
and the woman was at least reckless as to causing such harm.
D The woman cannot be liable for a statutory assault because the injury occurred in the
context of a football match and this will always provide an accused with a complete
defence.
E The woman is unlikely to be liable for inflicting or causing GBH because consent will
operate as a defence provided the football match was properly conducted, which it
appears to be.

Answer 51

Option E is the correct answer because by taking part in a football match, the opposing
player has given valid consent to harm but such consent will not defend all behaviour in a
sporting environment. In this instance, the woman ‘tackled’ the opposing player ‘legitimately’
during play and the opposing player fell ‘awkwardly’. Given this, it is likely the defence of
consent would succeed.
Option A is wrong as although a broken arm may well be grievous bodily harm (defined as
‘really serious harm’), the prosecution is unlikely to establish an intention to cause grievous
bodily harm in the context of a contact sport such as football where the participant is focused
on the game. Option B is wrong because the mens rea for s 18 GBH in this context does not
include recklessness. Option C is wrong as the actus reus of a s 20 GBH is the same as for
s 18, namely a wound or grievous bodily harm – not actual bodily harm. The mens rea is
accurately described.
Option D is wrong because a person can be criminally liable for injuries incurred in a sporting
event such as a football match. Although the general rule is that a victim cannot consent to
actual bodily harm or above, there is an exception for injuries which occur in sport. However,
this only applies if the sport is properly conducted and so does not ‘always’ provide the
accused with a defence.

Question 52

Question 3
A man who is standing on a train objects when another passenger sits down on the last
remaining seat. He begins shouting and swearing at the passenger, who becomes nervous
and anxious. A police officer who is also on the train goes to the passenger’s assistance.
When the man shows no signs of calming down, the officer tries to arrest him. During the
scuffle, the officer is bitten on her finger, an injury which draws blood and requires four
stitches. In interview, the man states that the officer put her hand over his mouth, so he
could not breathe, and he bit the officer to make her let go. He denies intending to cause
her really serious harm, but accepts that he knew she would suffer some harm by biting her
in this way.
The prosecution have advised that they intend to charge the man with the most serious
offence of assault in relation to the passenger and the police officer which can be justified
on the evidence.
Which of the following best describes the man’s potential liability in relation to the
passenger and the police officer?
A The man is liable for battery in relation to the passenger and intentionally causing a
wound to the officer.
B The man is liable for simple assault in relation to the passenger and wounding the
officer intending to resist arrest and intending to cause her some harm.
C The man is liable for simple assault in relation to the passenger and inflicting grievous
bodily harm on the officer.
D The man is not liable for an assault in relation to the passenger and liable for inflicting
grievous bodily harm on the officer.
E The man is liable for battery to the passenger and causing actual bodily harm to the
officer.

Answer 52

The best answer is option B. With regard to the incident with the passenger, the man did not
apply any unlawful force and so cannot be charged with battery. For this reason, options
A and E are both wrong. The relevant assault would be a simple assault as the man caused
the passenger to apprehend immediate and unlawful personal physical force and intended
or was reckless as to doing so. This is apparent from the evidence that the passenger was
‘nervous and anxious’.
The most serious offence with which the man could be charged for the assault on the police
officer is a s 18 assault. The actus reus is to wound or cause grievous bodily harm. The man
has caused a wound to the officer as he bites her finger drawing blood; this is apparent as
the injury required four stitches. Although the man’s intention was not to cause grievous bodily
harm, just to stop the officer from suffocating him, he is liable under the alternate mens rea.
He has an intention to resist arrest and an intention (or recklessness) as to causing actual
bodily harm.
Options C, D and E are wrong because the question required the most serious assault to
be identified. Thus, although the man could be charged with either a s 20 or a s 47 assault,
this does not meet that criteria. Furthermore, option D states (wrongly) that the man is not
liable for an assault in relation to the passenger, whilst E suggests that he would be liable for
battery.

Question 53

Basic intent?

Answer 53

crimes of basic intent are those where the mens rea can be fulfilled with
something less than intent

Question 54

Specific intent?

Answer 54

The basic rule is that a specific intent crime is one where the mens rea, or part of the mens
rea, is intention – recklessness will therefore not suffice

*
  Murder: intention to kill or cause grievous bodily harm
*
  Assault – s 18 OAPA 1861: intention to cause grievous
bodily harm
*
  Theft – s 1 TA 1968: intention to permanently deprive

Question 55

When do householder cases for self-defence apply?

Answer 55

A ‘householder’ case is defined in the statute as one in which the defendant uses force in self-
defence or in defence of another while in or partly in:
*
a building or part of a building that is a dwelling;
*
forces accommodation; or
*
a vehicle or vessel that is a dwelling.

Question 56

Question 1
The defendant is lying on the grass in the park having consumed an illegal, hallucinatory
drug. He is approached by the victim, a park attendant, who is carrying a spike for picking
up litter. Convinced that the victim is an alien who is about to attack him, the defendant
grabs the spike and stabs her to death.
Which statement best describes the defendant’s criminal liability for homicide?
A The defendant has a complete defence of intoxication to homicide because he lacked
mens rea when he attacked the park attendant.
B The defendant can rely upon his intoxication for the offence of murder but will be liable
for unlawful act manslaughter.
C The defendant cannot rely upon his intoxication as a defence to murder as he was
reckless in becoming intoxicated.
D The defendant can rely upon his intoxication as a defence to homicide even though a
sober person would not have made this mistake.
E The defendant cannot rely upon his intoxication as a defence to unlawful act
manslaughter as it is a crime of specific intent.

Answer 56

Answer
The correct answer is option B. The defendant can rely upon his voluntary intoxication for
murder as this is an offence of specific intent and he lacks the relevant mens rea because
he believes he is killing an alien and not a human being. However, he would be guilty of
unlawful act manslaughter as this is a crime of basic intent and the mens rea is satisfied by
the defendant becoming voluntarily intoxicated.
Option A is wrong because the defendant does not have a complete defence to homicide
as he will be liable for unlawful act manslaughter. Option C is wrong as the defendant
can rely upon his voluntary intoxication for murder as it is a crime of specific intent and
he lacks the mens rea. However, he cannot rely upon his mistaken belief that he is about
to be attacked because he only made the error due to his intoxication; hence, option D is
wrong. Option E is wrong because, although the defendant cannot rely upon his voluntary
intoxication for unlawful act manslaughter, this offence is one of basic rather than specific
intent.

Question 57

Question 2
The defendant has unknowingly taken some amphetamines, which were added to her food
as a ‘joke’. She then discovers that the victim has stolen her mobile phone and loses her
temper. She attacks the victim, intending to cause her really serious harm. The victim suffers
a fractured jaw and a broken nose. The defendant is charged with intentionally causing
grievous bodily harm. The defendant claims she would never have acted this way if she
had not taken the drugs.
Can the defendant rely upon her intoxication as a defence to the charge?
A No, because the defendant had mens rea when she attacked the victim.
B No, because this is a ‘Dutch courage’ case.
C Yes, because this type of assault is a crime of specific intent.
D Yes, because the defendant was involuntarily intoxicated.
E Yes, because the defendant would not have acted in this way had she not been
intoxicated.

Answer 57

Answer
The correct answer is option A. Although this is a case of involuntary intoxication because
the defendant unknowingly took amphetamines, she cannot rely on the defence as she still
had mens rea at the time she attacked the victim. This is also the reason why Option D is
wrong. Option B is wrong as the defendant did not become intoxicated in order to commit
the offence and so this is not a ‘Dutch courage’ scenario.
The remaining answers are all wrong as the defendant cannot rely upon her involuntary
intoxication as a defence. Furthermore, for option C, it is irrelevant whether the s 18
assault of causing grievous bodily harm is a crime of basic or specific intent, as the issue
for involuntary intoxication is whether the defendant lacked mens rea at the time of the
offence. Also, the fact that she would not have acted in this way without taking the drugs is
irrelevant (option E).

Question 58

Question 3
A man and his family are awoken in the early hours of the morning by their dog barking.
His wife and daughter are terrified, but the man is more annoyed and goes downstairs to
investigate. He is confronted by an intruder, the burglar, in the kitchen. The burglar snatches
a knife that is on the work surface and lunges at the man but the man manages to grab
the burglar’s wrist, forcing him to drop the knife. As the burglar tries to run away, the man
smashes him over the back of the head with a plate, causing the burglar to fall to the
floor. The man then kicks him hard in the ribs before standing on his other wrist to stop him
getting away. The burglar suffers significant swelling to the back of his head and severe
bruising to the ribs and his wrist.
Is the man able to rely on the defence of self- defence in relation to the degree of force
he uses?
A No, a reasonable person would assess the degree of force used by the man as
disproportionate.
B No, as hitting and kicking the burglar while he is trying to run away and then standing
on his wrist will always be regarded as unreasonable.
C Yes, the man is entitled to use any force he regards as being reasonable given that the
burglar tried to attack him with a knife.
D Yes, the degree of force used by the man was reasonable and not disproportionate.
E Yes, the degree of force used by the man was not unreasonable because his actions
were not grossly disproportionate in the circumstances as he believed them to be.

Answer 58

Answer
Option E is correct. According to s 76(6) of the CJIA 2008, the degree of force will not usually
be regarded as being reasonable where it is disproportionate. However, in ‘householder’
cases, s 76(5A) provides that disproportionate force may be regarded as reasonable; but if
the force used is ‘grossly’ disproportionate then the defence will fail. In the man’s case, hitting
the back of the burglar’s head with a plate while he is trying to run away, kicking him in the
ribs and then standing on his wrist may be disproportionate, but it is unlikely that his actions
will be regarded as grossly so. Hence, he may succeed in arguing self- defence.
Option D is wrong because the degree of force may well be regarded as disproportionate
given that he kicked the burglar when he was on the floor – an action that was not necessary
to detain him.
Options A and B are wrong as the man is likely to be able to rely on self- defence. As for
option C, it is wrong to state that the man can use any force.

Question 59

A man was drinking in a public bar and became very intoxicated. He had an argument with another customer and suddenly smashed this other customer in the face with his empty glass causing a wound that amounted to grievous bodily harm. The man was so intoxicated that he did not know what he was doing. The man’s intoxication was voluntary. The man was arrested by the police. He has been charged with wounding with intent to cause grievous bodily harm.

Which of the following best describes the man’s liability for wounding with intent to cause grievous bodily harm?

A. He is not guilty because he was so intoxicated that he did not form the necessary intention for the offence.

B. He is not guilty because intoxication provides a reasonable excuse for the attack.

C. He is guilty because his voluntary intoxication is sufficiently reckless to satisfy the mens rea requirement for this offence.

D. He is guilty because causing grievous bodily harm with intent is a crime of specific intent and intoxication is no defence to a crime of specific intent.

E. He is guilty because causing grievous bodily harm with intent is a crime of basic intent and intoxication is no defence to a crime of basic intent.

Answer 59

A - He is not guilty because he was so intoxicated that he did not form the necessary intention for the offence.

Question 60

A man is walking along a street when a woman runs towards him shouting loudly and waving her arms. The man is confused by what the woman is shouting, but genuinely believes that the woman is about to attack him. A reasonable person in the man’s position would not have believed that the woman was about to attack him.

As the woman approaches the man, the man pushes her to the chest with both hands, causing her to stumble backwards. The force he used to push her would have been reasonable if the man were being attacked. The woman is shocked and angry, but not injured. The woman explains to the man that she was trying to warn him about some roof tiles that were falling from a nearby building.

A police officer sees the incident and the man is arrested and subsequently charged with common assault. The man intends to rely at court on the defence that he acted in self-defence when he pushed the woman.

Which of the following best explains whether the man can rely on self-defence?

A. He cannot rely on self-defence, because he pushed the woman before being physically attacked by her.

B. He cannot rely on self-defence, because his belief that the woman was about to attack him was unreasonable.

C. He cannot rely on self-defence, because his belief that the woman was about to attack him was mistaken.

D. He can rely on self-defence, because he believed that the woman was about to attack him and the amount of force he used was reasonable.

E. He can rely on self-defence, because he believed that the woman was about to attack him and he did not cause unreasonable harm to the woman.

Answer 60

D - He can rely on self-defence, because he believed that the woman was about to attack him and the amount of force he used was reasonable