General Defences

Question 1

What are the General Defences?

Answer 1

• Intoxication.
• Consent.
• Self-Defence.

Question 2

How does the Defence of Intoxication operate?

Answer 2

Due to their Intoxication, the Defendant cannot be liable for the Offence because they did not form the requisite Mens Rea.

The Prosecution must prove otherwise beyond a reasonable doubt.

Where a reasonably Jury may conclude that a Defendant did not possess the requisite Mens Rea due to Intoxication, the Judge must give a direction on Intoxication. Something to the following effect:

“If the Defendant’s ability to appreciate the risk was impaired due to intoxication, the jury should assess the Defendant’s awareness as if they were sober. If the jury is certain the Defendant would have recognized the risk while sober, the first stage of determining liability is satisfied.”

Question 3

When will Intoxication Negate Mens Rea ?

Answer 3

• The Intoxication is involuntary.
• The Intoxication is voluntary, but in bona fide pursuit of medical treatment.
• The Intoxication is voluntary, but caused by non-dangerous drug.
• The Offence requires Specific Intent, not Basic Intent, namely because Voluntary Intoxication is itself an act of Recklessness.

Question 4

What is a Dangerous Drug?

Answer 4

Any drug that is commonly known to cause aggression or to spur dangerous or unpredictable behaviour.

This includes all illicit drugs and alcohol.

Question 5

What is the Difference between Basic and Specific Intent?

Answer 5

• Basic Intent entails recklessness or no need for foresight.
• Specific Intent requires a clear desire to realise a particular goal.

This is essentially the difference bewteen §20 and §18, respectively.

Question 6

Does Intoxication preclude Reliance on other Defences?

Answer 6

Only when pleading Self-Defence.

Question 7

Is Intoxicated Belief in Consent viable?

Answer 7

Yes, but only if the Defendant genuinely (even if mistakenly) believed the Victim had consented, regardless of Intoxication.

This only applies to non-sexual, non-violent cases e.g. horseplay; otherwise, Reasonableness is the standard.

This also applies to Statutory Defences requiring Honesty in such cases.

Question 8

How does the Defence of Consent operate?

Answer 8

• The Offence is one the Victim can consent to; and
• Either the Victim consented or the Defendant believed they consented.

Question 9

What Offences can a Victim Consent to?

Answer 9

Offences Against the Person:

• Assault.
• Battery.

Public Interest Exceptions:

• Sport.
• Horseplay.
• Medical treatments.
• Lawful correction of a Child.
• Tattooing, body piercing, and personal adornment.
• Accidental harm during sexual gratification, unless it results in ABH.

For Assault and Battery, even if ABH is inflicted, the Defendant will not be liable if they merely intended to Batter the Victim and not to inflict such harm.

Question 10

What constitutes ‘Horseplay’?

Answer 10

Rough, playful, or boisterous physical interaction, typically involving friendly or mischievous behavior without any intent to cause serious harm.

Question 11

What constitutes ‘Lawful Correction of a Child’?

Answer 11

It depends on:

• The nature and context of the Parent’s behaviour;
• The behaviour’s duration;
• The physical and mental consequences for the Child; and
• The reasons why the punishment was inflicted.

Question 12

How does the Defence of Self-Defence operate?

Answer 12

A person escapes liability by acting, either in reaction or anticipation, for one of the following purposes:

• Protecting oneself, another, or one’s Property from imminent physical attack;
• Preventing a Crime; or
• Assisting in the arrest of an Offender; and

In doing so, exercising a reasonable, proportionate degree of force that they honestly believe is necessary.

The task for the Jury is to decide if the Force used was objectively reasonable given the facts as the Defendant subjectively believed them.

When acting instinctively and honestly for a Legitimate Purpose, strong evidence of Reasonableness arises.

Although there is no Duty to Retreat in English law, the opportunity itself may be regarded as a relevant factor.

Question 13

May Self-Defence be Raised by an Antagonist?

Answer 13

Yes, namely if the Protagonist uses excessive and disproportioante force, going far beyond what is reasonable.

Question 14

May Self-Defence be Raised if Force is used against an Innocent Thirdy Party?

Answer 14

Yes, namely if it is necessary and proportionate to prevent an imminent threat to oneself or public safety.

This is not lightly inferred.

Question 15

How does Self-Defence differ in Householder Cases?

Answer 15

The extent of Force used will only be unreasonable if it was grossly disproportionate.

Question 16

What constitutes a ‘Householder Case’?

Answer 16

The Defendant, a non-Trespasser, seeks to protect themself or another by use of Force against a believed Trespasser entering (or already in) a Dwelling or part thereof.

Use of Force must be in the Dwelling or part thereof.

A ‘Dwelling’ includes vehicles, vessels, forces accommodations, and places of work that are internally accessible from the living area.