general defences Flashcards
if a D proves intoxication - what is the effect (is it a full or partial defence)?
it is a full defence and therefore, a full acquittal
what situations can a person use intoxication to negate MR?
- Involuntary intoxication (eg, drugged without consent)
- Voluntary intoxication by non-dangerous drugs
- Voluntary intoxication and D has committed a specific intent crime
who has the evidential burden to raise issue of intoxication?
on the D to raise the issue and then prosecution need to prove beyond reasonable doubt that D formed the necessary MR
if D is aware they are drinking alcohol but mistaken on the strength of alcohol - do they have a defence?
no this does not count as involuntary intoxication
if a person is involuntary intoxicated can they use the defence of intoxication for basic intent crimes as well as specific?
yes, can use intoxication as defence for both
what is a basic intent offence?
one where D could be convicted on basis of recklessness as to the consequences or no foresight to consequences is required
what is a specific intent offence?
intention was only form of MR (eg, no recklessness)
what is a dangerous drug?
where it is common knowledge that a drug is liable to case the taker to become aggressive, or do dangerous or unpredictable things (eg, illegal drug)
what is the general rule - can a D use intoxication to rely on another defence for either specific or basic intent crime?
generally no
if a D relies on drunken mistake to use self-defence = is it successful?
no - drunken intent is still intention
if a person is intoxicated and wants to plead loss of control or diminished responsibility - can they?
they can still plead intoxication but it does impact the legal analysis eg,
loss of control = drug taken into account when assessing magnitude of qualifying anger trigger
can a D use voluntary intoxication on its own to rely on defence of diminished responsibility?
no they cannot BUT if the D has an abnormality of mental functioning AND is voluntary intoxicated then they can as abnormality of mental functioning is FROM the alcohol dependency syndrome
if there is a statutory defence that allows for honest belief and D states their belief is due to their voluntary intoxication - can they use this?
yes D will be able to use this defence even if their belief is due to their voluntary intoxication
if D wrongly believes V consented or V consented to accidental infliction of injury whilst intoxicated = can D use this as a defence?
yes, D may be able to have a defence
involuntary intoxication may be raised successfully as a defence to which crimes?
Crimes of both specific and basic intent involving dangerous or non-dangerous substances
(key Q: is did D still form necessary MR?)
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?
would the D have formed the MR sober?
what are the two elements for consent?
- either V consented, or D believed V consented
- offence is one which V can consent to
if D wrongly believes V consented - is a defence of consent available?
yes it may be available
who needs to prove consent?
for prosecution to prove that both V didn’t consent and D didn’t believe in V’s consent
if V consents but D doesnt know this - can there be a defence of consent?
yes, there could potentially be a defence of consent available
when is consent available as a efence to OAPA?
battery and assault
what are the exceptions when a person can consent to offences against the person of ABH and above?
- medical treatment
- sport
- horseplay
- tattooing, body piercing and personal adornment; and
- sexual gratification / accidental infliction of harm
can a person consent to accidental injuries sustained during consensual sex?
person cannot consent to inflicting of harm that results in ABH or more for purposes of obtaining sexual gratification
(only exception is person may consent to risk of acquiring a sexually transmitted infection)
what are the 2 requirements that must be shown for self-defence (trigger and response)?
D honestly believed use of force was necessary; and
level of force D used in response was objectively reasonable in circumstances as D believed them to be
where does the burden of proof lie for self-defence?
for prosecution to disprove D acted in self-defence
is there a duty to retreat for self-defence?
no, there is no duty to retreat but the fact D had an opportunity to retreat may be regarded as a relevant factor
can a D make the first blow and still rely on a defence of self-defence?
Yes, they can = man that is about to be attacked doesnt have to wait to be hit first before they can hit
can D use self-defence if use force against an innocent third party to prevent a crime being committed by someone else?
yes, you can
