General defences Flashcards
What are the three general defences?
1) intoxication
2) self-defence
3) consent
What is the defence of intoxication
general defence- available to almost any crime.
Used in 2 ways
1) to negate the mens rea (it is necessary to look at three things:
1) voluntary or involuntary intoxication,
2) dangerous or non-dangerous drug
3) specific or basic intent)
2) an influencing factor on another legal principle/defence (principles are:
1) self-defence,
2) consent
3) loss of control
4) diminished responsibility
5) statutory defences)
How can intoxication negate the mens rea of an offence?
When deciding if intoxication can operate as a defence by negating the mens rea of an offence, the first thing to consider is whether the intoxication was voluntary or involuntary.
In all cases of involuntary intoxication, the defence might be available if the defendant was unable to form the mens rea due to the intoxication.
In cases of voluntary intoxication, the next question to consider is whether the voluntary intoxication is through dangerous drugs/alcohol or whether it is through non-dangerous drugs. If it is through non-dangerous drugs then the defence may be available irrespective of what type of offence it is, if the defendant did not/was not able to form the mens rea due to their intoxication.
In all cases of voluntary intoxication through dangerous drugs or alcohol it is necessary to consider what type of offence has been committed. If the offence is a specific intent offence, that is an offence which requires intention as the mens rea, then intoxication may be a defence if the defendant did not/was not able to form the mens rea due to the intoxication.
If the offence is a basic intent offence, that is an offence which can be committed intentionally or recklessly, then you should ask whether the defendant would have formed the mens rea if they had been sober. In most instances the answer to this question will be yes and intoxication would not be available to negate the mens rea.
What about the defence of self-defence
Statutory or common law defence.
Completed defence (if found to exist- they will be found not guilty)
Trigger:
1) honestly believed that the use of force was necessary
2) judged on the facts as D subjectively believed them to be
3) mistaken belief is due to the voluntary intoxication of the defendant, then the defendant will not be able to rely on their mistake
4) no requirement to retreat
5) anticipatory self-defence
6) self-defence by the agonist
7) force against innocent party
Response:
The second consideration was whether the force used was objectively reasonable
Householder:
Was the level of force used grossly disproportionate? if so, no defence
Was the use of force reasonable?
The use of disproportionate force which is not grossly disproportionate may or may not be reasonable
VS
Non-householder
Was the degree of force objectively reasonable in the circumstances?
In the circumstances as D subjectively believes them to be
Belief- genuinely held
S.76&7)CJIA 2008
What is a householder?
A householder case:
at the time of the offence, the defendant is in a building to part of a building that is a dwelling.
Part dwelling/part business
D is not a trespasser
Victim is, or D believes victim is a trespasser
Non-householder:
Anywhere other than a dwelling
What is the defence of consent?
2 elements to consider:
1) the victim consented; and
2) defendant believed the victim consented
Consent-non fatal offences
General rule- defence only available for assault and batter.
Available for ABH if:
1) only intended assault or battery; or
2) did not see the risk of inflicting ABH
What are the exceptions to the general rule:
1) medical treatment
2) sport
3) horseplay
4) tattooing, body piercing and personal adornment
5) sexual gratification/accidental infliction of harm
How can you rely on consent as a defence?
If you are seeking to rely on the general defence of consent, you should consider whether the offence is more than assault or battery. If the answer to that question is no, then consent is available if the victim consented or if the defendant honestly believed that the victim consented.
If the offence is more than assault or battery then you would then need to consider whether the defendant intended to commit an offence of ABH or higher. If the defendant did not intend to commit an offence of ABH or higher and did not see the risk of committing an offence of ABH or higher then consent is available if the victim consented or if the defendant honestly believed that the victim consented.
If the defendant did not intend to commit an offence of ABH or higher but was reckless as to whether that level of offence was committed then the guidance from the courts is unclear but it is likely that you would need to see if one of the exceptions applies in order to rely on the defence of consent.
If the defendant intended to commit an offence of ABH or higher then consent is not available unless one of the exceptions to the general rule apply.
