General defences

Question 1

What is the general rule for the burden of proof for defences for the prosecution?

Answer 1

The prosecution bears the burden of proving that the defendant committed the offence and also disproving any defence - legal burden

Question 2

What is the general rule for the burden of proof for defences for the defence?

Answer 2

If the defendant wishes to argue a defence, they must raise sufficient evidence to demonstrate that the defence is capable of being argued - evidential burden

Question 3

How can intoxication be argued as a defence?

Answer 3

The defence would argue that due to the intoxicated state the defendant could not form the necessary mens rea

Question 4

What is the operation of the defence of voluntary intoxication entirely reliant upon?

Answer 4

Whether the offence is one of specific or basic intent

Question 5

What are the Majewski rules?

Answer 5

1. if the offence is one of specific intent, the defendant will have a defence of intoxication where they have been unable to form the necessary mens rea
2. where the offence is one of basic intent, no defence available

Question 6

What is specific intent?

Answer 6

• where the mens rea of the offence goes beyond the actus reus (ulterior intent) - aggravated criminal damage
• where the offence requires proof of a ‘purposive element’ - can only be committed intentionally - murder

Question 7

What is basic intent?

Answer 7

Included crimes of recklessness, negligence or strict liability

Question 8

What is classed as a dangerous drug?

Answer 8

• alcohol
• illegal drugs

Question 9

What is classed as a non-dangerous drug?

Answer 9

Not clearly defined but described as:
- soporific or sedative
- prescription medication - even if not prescribed to the defendant

Question 10

Are the rules different for involuntary intoxication?

Answer 10

Yes, it is irrelevant whether the offence the defendant has been charged with is basic or specific intent - the defence can be utilised in both

Question 11

What are the requirements for self-defence?

Answer 11

1. the use of force by D was necessary in the circumstances as D believed them to be
   2.The use of force by D was reasonable in all the circumstances as D believed them to be

Question 12

Is it for the defence to prove the existence of the elements or for the prosecution to disprove them?

Answer 12

For the prosecution to disprove them

Question 13

When may it be necessary to use force?

Answer 13

• to protect oneself or another from imminent attack
• to protect property
• prevent crime

Question 14

Is necessity objective or subjective?

Answer 14

Subjective - it looks to the circumstances as the defendant believed them to be

Question 15

Can D rely on the belief force was necessary in the circumstances even where the belief is mistaken?

Answer 15

Yes if genuinely held

Question 16

Does D’s belief that force was necessary need to be reasonable?

Answer 16

No it must merely be genuinely held

Question 17

Can D rely on a mistake about the need to use self-defence where that mistake is induced by D’s voluntary intoxication?

Answer 17

No even when charged with an offence of specific intent

Question 18

Can the defendant make a pre-emptive strike?

Answer 18

Yes but the defendant must apprehend that force will be used against him imminently

Question 19

Can the D use force if they had the opportunity to retreat?

Answer 19

Yes, there is no duty to retreat

Question 20

Can the D use force if they instigated or provoked the attack?

Answer 20

It depends, if violence was provoked specifically in order to allow the defendant to attack then no

Question 21

Is reasonable force objective or subjective?

Answer 21

Objective

Question 22

What is reasonable force?

Answer 22

If it regarded as being ‘proportionate’ in the circumstances

Question 23

On what basis will the defendant be judged in relation to whether the force was reasonable?

Answer 23

The defendant’s response is judges in the light of the circumstances as they honestly believed them to be - objective but defendant’s beliefs are a factor

Question 24

Are psychiatric conditions relevant to the determination of whether the defendant’s force was reasonable?

Answer 24

No

Question 25

When can the householder defence be used?

Answer 25

It is restricted to the use of self-defence of oneself or others. It cannot be used when D is acting in defence of property, to prevent crime or to assist in the lawful arrest