General Defences

Question 1

What is intoxication in legal terms?

Answer 1

Intoxication is a general defence available for almost any crime, used to negate the mens rea of an offence or as an influencing factor on another legal principle/defence.

Question 2

How does intoxication negate mens rea?

Answer 2

The principle of intoxication allows the defendant to show they did not form the necessary mens rea for the offence due to intoxication.

Question 3

What is the leading case on the burden of proof regarding mens rea?

Answer 3

Woolmington [1935] AC 462 established that the prosecution must prove, beyond reasonable doubt, that the defendant committed the actus reus with the necessary mens rea.

Question 4

What must be proven for a full acquittal based on intoxication?

Answer 4

If the defendant did not form the necessary mens rea due to intoxication, they may be entitled to a full acquittal.

Question 5

What does R v Bennett [1995] Crim LR 877 establish about jury direction?

Answer 5

The judge must direct the jury on intoxication if there is evidence that a reasonable jury might conclude the accused did not form the mens rea.

Question 6

What does R v Pordage [1975] Crim LR 575 clarify about mens rea?

Answer 6

The question is not whether the defendant was incapable of forming mens rea, but whether they did form it despite their intoxication.

Question 7

When can intoxication operate to negate mens rea?

Answer 7

Intoxication can negate mens rea in cases of involuntary intoxication, voluntary intoxication for medical treatment, non-dangerous drugs, and specific intent crimes.

Question 8

What are the three questions to consider regarding intoxication and mens rea?

Answer 8

1. Is the defendant voluntarily or involuntarily intoxicated? 2. Is the intoxicant dangerous or non-dangerous? 3. Is it a crime of basic intent or specific intent?

Question 9

What is involuntary intoxication?

Answer 9

Involuntary intoxication occurs when a defendant is forced or deceived into consuming intoxicating substances, potentially allowing a defence for any offence.

Question 10

What does R v Allen [1988] Crim LR 698 state about mistaken strength of alcohol?

Answer 10

If the defendant is aware they are drinking alcohol but mistaken about its strength, it does not count as involuntary intoxication.

Question 11

What is the significance of DPP v Majewski [1977] AC 443?

Answer 11

This case established that voluntary intoxication can be a defence for specific intent crimes but not for basic intent crimes.

Question 12

What are basic intent offences?

Answer 12

Basic intent offences are those where recklessness suffices for mens rea, such as battery, unlawful act manslaughter, and assault.

Question 13

What are specific intent offences?

Answer 13

Specific intent offences require intention as the only form of mens rea, such as murder, theft, and robbery.

Question 14

How does R v Hardie [1985] 1 WLR 64 classify drugs?

Answer 14

Drugs are classified as dangerous if they are known to cause aggressive or unpredictable behavior, while non-dangerous drugs do not have this common knowledge.

Question 15

What is the court’s stance on intoxication and consent?

Answer 15

In R v Richardson and Irwin [1999] 1 Cr App R 392, the court allowed consideration of whether the victim consented to injury, even if the defendants were intoxicated.

Question 16

How does intoxication affect self-defence?

Answer 16

A defendant cannot rely on a drunken mistake regarding the need to use self-defence.

Question 17

What is the relationship between intoxication and diminished responsibility?

Answer 17

Voluntary intoxication alone cannot establish diminished responsibility; an abnormality of mental functioning must also be present.

Question 18

What must be shown for diminished responsibility related to alcohol dependency syndrome?

Answer 18

The defendant must have an abnormality of mental functioning due to alcohol dependency syndrome that substantially impaired their ability to understand their conduct.

Question 19

What is the summary of intoxication as a defence?

Answer 19

Intoxication can negate mens rea if the defendant did not form it due to involuntary intoxication or voluntary intoxication by non-dangerous drugs or specific intent crimes.

Question 20

What is the risk of damaging property when intoxicated?

Answer 20

D will not be criminally liable if the damage was caused by an accident, such as tripping over a broken step.

Example: If D smashed the window by tripping over a broken step that they would have tripped on if sober.

Question 21

Can a defendant rely on self-defence if intoxicated?

Answer 21

D cannot rely on a drunken mistake regarding the need to use self-defence.

Question 22

Can intoxication affect loss of control and diminished responsibility?

Answer 22

Yes, intoxication can impact various aspects of the legal analysis for these defences.

Question 23

What is the role of consent in criminal liability?

Answer 23

The victim’s consent can sometimes prevent a defendant from being liable for a crime, such as in property offences.

Question 24

What are the elements of consent?

Answer 24

1. The victim consented, or the defendant believed the victim consented.
2. The offence is one which a victim can consent to.

Question 25

Who has the burden of proof regarding consent?

Answer 25

It is for the prosecution to prove that the victim did not consent and that the defendant did not believe in the victim’s consent.

Question 26

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

Answer 26

Consent is generally only available as a defence to assault and battery.

Question 27

What did AG’s Reference (No 6 of 1980) establish?

Answer 27

It held that it is not in the public interest for people to cause each other actual bodily harm for no good reason.

Question 28

When can consent be a defence even if actual bodily harm is caused?

Answer 28

Consent is available if D intended only to commit a battery with the victim’s consent and did not see the risk of inflicting actual bodily harm.

Question 29

What are the exceptions to the general rule of consent?

Answer 29

Victims can consent to offences against the person if it falls under public interest exceptions such as medical treatment, sport, horseplay, tattooing, and sexual gratification.

Question 30

Can a victim consent to deliberate HIV infection?

Answer 30

No, it is not possible to consent to deliberate HIV infection as it is considered grievous bodily harm.

Question 31

What does self-defence cover?

Answer 31

Self-defence covers actions taken to protect oneself, others, property, prevent a crime, or assist in the arrest of an offender.

Question 32

What are the requirements for self-defence?

Answer 32

1. The defendant honestly believed that the use of force was necessary.
2. The level of force used was objectively reasonable in the circumstances.

Question 33

What is the ‘trigger’ in self-defence?

Answer 33

The trigger is the defendant’s honest belief that the use of force was necessary.

Question 34

What is the significance of R v Gladstone Williams?

Answer 34

It established that a defendant’s actions must be judged according to the facts as they honestly believed them to be.

Question 35

What happens if a mistaken belief is due to voluntary intoxication?

Answer 35

The defendant cannot rely on their mistake if it was induced by voluntary intoxication.

Question 36

Is there a duty to retreat in self-defence?

Answer 36

No, there is no duty to retreat in English law, although it may be a relevant factor.

Question 37

What is anticipatory self-defence?

Answer 37

A defendant may make the first blow and still rely on self-defence if they believe it is necessary to protect against an imminent attack.

Question 38

Can force be used against an innocent third party?

Answer 38

Yes, force can be used against an innocent third party to prevent a crime being committed by someone else.

Question 39

What must the jury consider regarding the response in self-defence?

Answer 39

The jury must consider whether the level of force used in response to the threat was reasonable.

Question 40

What did the Court of Appeal confirm regarding a defendant’s use of force?

Answer 40

A defendant could use force against an innocent third party to protect themselves.

Question 41

What must the jury consider after concluding that the defendant believed force was necessary?

Answer 41

The jury must consider the level of force used in response to the threat, which must be reasonable.

Question 42

What does the Criminal Justice and Immigration Act 2008 (CJIA 2008) differentiate between?

Answer 42

‘Non-householder’ cases and ‘householder’ cases, to which s 76(5) applies.

Question 43

What is the standard for determining the reasonableness of force in non-householder cases?

Answer 43

The degree of force used by D is to be decided by reference to the circumstances as D believed them to be.

Question 44

What is relevant to the question of whether D genuinely held a belief about the circumstances?

Answer 44

The reasonableness or otherwise of that belief is relevant.

Question 45

What did the Court of Appeal hold in R v Harvey regarding the defendant’s judgment?

Answer 45

The defendant must be judged on the circumstances as they believed them to be and on the danger as they believed it to be.

Question 46

What psychiatric evidence was allowed in R v Press and Thompson?

Answer 46

A soldier was allowed to rely on psychiatric evidence of post-traumatic stress disorder to substantiate his mistaken beliefs.

Question 47

What must the jury consider when evaluating the reasonableness of force used?

Answer 47

The jury must decide if the force used was objectively reasonable, given the facts as the defendant subjectively believed them to be.

Question 48

What did Lord Diplock state about the jury’s consideration of force?

Answer 48

The jury should consider the decision made by the accused under stress, not in a calm analytical atmosphere.

Question 49

What does s 76(7)(a) state about a person’s ability to measure necessary action?

Answer 49

‘A person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action.’

Question 50

What does s 76(7)(b) indicate about instinctive actions taken for a legitimate purpose?

Answer 50

‘Evidence of a person’s having only done what they honestly and instinctively thought was necessary constitutes strong evidence that only reasonable action was taken.’

Question 51

What is self-defense according to the summary?

Answer 51

Self-defense can be used to protect oneself, another, or property from attack or imminent anticipated physical attack.

Question 52

What are the conditions for relying on self-defense?

Answer 52

The defendant must honestly believe that the use of force was necessary and the belief must be subjective.

Question 53

What happens if a mistaken belief is due to voluntary intoxication?

Answer 53

The defendant will not be able to rely on their mistake.

Question 54

Is there a duty to retreat in self-defense cases?

Answer 54

There is no duty to retreat, but the opportunity to do so may be a relevant factor.

Question 55

What must the jury consider regarding the proportionality of force used?

Answer 55

Force will not be reasonable if it was disproportionate, and the jury must consider the context of the defendant’s actions.

Question 56

Who bears the burden of disproving self-defense?

Answer 56

It is for the prosecution to disprove that the defendant acted in self-defense.

Question 57

What is the nature of the self-defense as a general defense?

Answer 57

It is an all or nothing defense; the defendant will either be acquitted by self-defense or the defense will fail.

Question 58

What defines a ‘householder case’?

Answer 58

A householder case is one where the defendant relies on the common law defence of self-defence, uses force while in or partly in a dwelling, is not a trespasser at the time, and believes the victim to be a trespasser.

Question 59

What does the CJIA 2008, s 76(5A) state about force in householder cases?

Answer 59

The degree of force used by the defendant is not regarded as reasonable if it was grossly disproportionate in the circumstances as the defendant believed them to be.

Question 60

What is the two-part test for householder cases according to Sir Brian Levesen?

Answer 60

First, the jury must determine if the force was grossly disproportionate; if it was, there can be no defence. If it was not, the jury must then assess whether the level of force was reasonable.

Question 61

What should the jury consider when determining the reasonableness of force used in householder cases?

Answer 61

The jury should consider that the level of force should not be weighed to a nicety and that a belief in using reasonable force during unexpected anguish is strong evidence of reasonableness.

Question 62

What does ‘building’ include in the context of householder cases?

Answer 62

‘Building’ includes a vehicle or vessel, and ‘part of a building’ includes places of work and internal access routes.

Question 63

What are the key criteria for a case to be classified as a householder case?

Answer 63

The defendant must act to protect themselves or another, use force in a dwelling, not be a trespasser, and believe the victim to be a trespasser.

Question 64

What is the difference in the ‘trigger’ and ‘response’ in householder cases?

Answer 64

The ‘trigger’ remains unchanged, but the ‘response’ is more lenient towards householders.

Question 65

What circumstances should the jury consider according to R v Ray (Steven)?

Answer 65

The jury should consider circumstances such as the shock of encountering an intruder, the time of day, and the vulnerability of occupants, especially children.

Question 66

What is a ‘householder case’?

Answer 66

A householder case is one where the defendant relies on the common law defence of self-defence, uses force while in or partly in a dwelling, is not a trespasser at the time the force is used, and believes the victim to be in, or entering, the building as a trespasser.

Question 67

What does the CJIA 2008, s 76(5A) state about force in householder cases?

Answer 67

In a householder case, the degree of force used by the defendant is not regarded as reasonable if it was grossly disproportionate in the circumstances.

Question 68

What is the two-part test for householder cases according to Sir Brian Leveson?

Answer 68

First, the jury must determine if the force was grossly disproportionate in the circumstances as the defendant believed them to be. If it was, there can be no defence. If not, the jury must then determine whether the level of force was reasonable.

Question 69

What factors should the jury consider in determining the reasonableness of force used in householder cases?

Answer 69

The jury should consider that the level of force should not be weighed to a nicety and that a defendant’s belief in using reasonable force during unexpected anguish is strong evidence of reasonableness.

This is based on R v Palmer and codified in CJIA 2008, s 76(7).

Question 70

What elements define a householder case according to CJIA 2008, s 76(8A)-(8F)?

Answer 70

A householder case is defined by the defendant acting to protect themselves or another, using force in a dwelling or connected building, not being a trespasser, and believing the victim to be a trespasser.

Question 71

What are the two questions the jury must ask in householder cases?

Answer 71

1. Was the force grossly disproportionate in the circumstances as the defendant believed them to be? If yes, there can be no defence. 2. If not, was the level of force reasonable?

Question 72

What circumstances should the jury consider when determining the reasonableness of force in householder cases?

Answer 72

The jury should consider factors such as the shock of encountering an intruder, the time of day, and the vulnerability of the occupants, especially children.

This is referenced in R v Ray (Steven).