GENERAL DEFENCES Flashcards
INTOXICATION
Is not strictly a defence but is referred to as such.
It may operate to either:
- prevent the formation of the MR, or
- in conjunction with another defence
If evidence supports a R jury concluding that a R possibility exists that D did NOT form the MR, judge must direct jury on intoxication.
The issue in any question of intoxication is whether D ACTUALLY formed the MR, NOT their capacity to do so.
If D forms MR despite being intoxicated, it will provide no defence whatsoever (R v Kingston)
BofProof: In order to raise the defence, D must adduce sufficient evidence. If they do, the BofProof shifts to the prosecution to prove, beyond R doubt, that D actually formed the MR.
Test depends on whether a SPECIFIC or BASIC intent crime is in concern.
SIC are crimes in which:
- intention is the only form of MR available (DPP V Majewski), or
- “intention” is intention to commit the act and bring about a particular consequnece or result (R v Heard).
— EG: Murder, s.18 or wounding, robbery, theft.
TEST: despite intoxic., did D manage to form the MR?
BIC are crimes in which:
- recklessness is a part of the MR (DPP v Majewski), or
- “intention” is intention to commit only the act, not the consequences (R v Heard)
— EG: s.20 GBH or wounding, assault occ ABH, assault or battery.
TEST: was D reckless in becoming intoxic.?
Three types of Intoxication
- Voluntary intoxication by dangerous drugs
- – available ONLY for SICs (DPP v Majewski)
- Involuntary intoxication by non-dangerous drugs
- – available for both SIC and BIC.
- Involuntary intoxication
- – available for both SIC and BIC (R v Kingston)
- – will not operate if the drug is alcohol, D knows they are consuming but are mistaken about its strength (R v Allen)
- – D will be involuntarily intoxic. when take a drug not considered dangerous (anything but illegal drugs and alcohol) (R v Hardie)
CONSENT
Is a statutory defence for certain offences:
- Criminal damage
- theft (s.2(1)(b) Theft Act 1968)
In general, operates as a defence to assault and battery (AG’s Ref. (No.6 of 1980); R v Brown)
Will apply to harm caused in situations of typical everyday contact with other persons, regardless of whether D causes the harm intentionally or recklessly (Collins v Willcock)
If offence not worse than assault/battery, then consent available where (R v Donovan):
- victim consents, AND
- D believes that they consent
If offence worse than ABH
- If NOT, and D did not foresee the risk of inflicting ABH, consent WILL be available (R v Meachen)
- If NOT, BUT D was reckless or foresaw the risk, consent only available if an exception applies
- If YES, D did intend to cause the harm, consent only available if one of the exceptions applies
EXCEPTIONS
- Medical Treatment
- Sport (R v Barnes; R v Billinghurst)
- Horseplay (R v Jones; R v Aitken; R v Richardson and Irwin)
- Sexual Gratification (Seems to swing on whether a couple on private or not) so R v Brown, no consent)
- STDs
For consent to be valid:
- Victim must have given INFORMED consent, OR
- D must have honestly believed that V consented.
SELF-DEFENCE
Is a COMPLETE defence and an ALL OR NOTHING defence, it either succeeds completely or fails altogether (R v Clegg)
Can be used to defend:
- Oneself or part of oneself from physical harm (s76(2)(a) CJIA 2008), but not psychological harm (R v Bullerton).
- Property (R v Hussey; s76(2)(a) CJIA)
- Other people (R v Gladstone Williams)
- Prevention of crime (s.3(1) CLA; s.76(2)(b) CJIA)
TEST: D must:
- HONESTLY BELIEVE that the use of force is necessary, D’s belief is judged SUBJ (as D held them to be)
- the LEVEL OF FORCE used must be R in non-householder cases, and not grossly disproportionate in householder cases, judged OBJ.`
DURESS
There are three types of duress:
- BY THREAT
- OF CIRCUMSTANCES
- NECESSITY
If any are fully established, they will operate as a complete defence.
