General Defences Flashcards
What are general defences?
There are various defences available to a person charged with an offence.
Some defences are specific to certain offences (e.g. criminal damage and murder) whereas others can be used to answer a wider range of charges and are often referred to as ‘general defences’.
What are some general defences?
Automatism
Intoxication: Voluntary or Involuntary
Inadvertence and Mistake
Duress
Duress of Circumstances
Defence of Self, Others or Property
What is automatism and how may it be grounds to claim it as a defence?
If defendants have total loss of control over their actions, they cannot be held liable for those actions and there may be grounds to claim a defence of automation. Drink and drugs don’t apply.
e.g a swarm of bees flies into a car causing a reflex action by the driver resulting in an accident (an example given in Hill v Baxter [1958]
What is the difference between voluntary intoxication and involuntary intoxication?
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What is an about distinction between the two?
Voluntary intoxication (you got yourself in that condition)
Involuntary intoxication (you are not responsible for getting in that condition)
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The distinction is important when considering whether the offence alleged is one of ‘specific’ or ‘basic’ intent
Can voluntary intoxication be used as a defence for certain crimes?
Specific intent vs Basic intent
Where an offence is a specific intent offence defendants who were voluntarily intoxicated at the time the offence was committed may be able to show they were so intoxicated that they were incapable of forming the mens rea required for the offence.
An individual who is voluntarily intoxicated would not be able to say this if accused of an offence of basic intent as the courts have accepted that a defendant is still capable of forming basic intent even when completely inebriated (DPP v Majewski [1977])
Can involuntary intoxication be used as a defence for certain crimes?
Where the offence is a basic intent offence, such as s. 47 assault, defendants who were involuntarily intoxicated (perhaps because their drink had been spiked) at the time of the offence may be able to say that they lacked the mens rea for that basic intent offence.
Difference between voluntary intoxication and involuntary intoxication with regards to defences for specific intent vs basic intent.
Voluntary intoxication can be raised in answer to a charge of an offence of specific intent but not basic intent.
Involuntary intoxication can be raised in answer to a charge of both specific and basic intent.
If defendants simply misjudge the amount or strength of intoxicants which they take, will this regarded as involuntary intoxication?
No - so if a defendant knowingly drinks beer but is unaware that the beer has been laced with vodka, this will still be ‘voluntary’ intoxication.
Similarly, if defendants can be shown to have actually formed the required mens rea necessary for the offence, intoxication (voluntary or involuntary) will not be available as a drunken intent is still an ‘intent’ (R v Kingston [1995] 2 AC 355).
Where the defendant forms a ‘mistaken belief’ based on the fact that he/she is intoxicated, that belief may sometimes be raised as a defence.
Give an example of where this may be the case?
In cases of criminal damage where a defendant has mistakenly believed that the property being damaged is his/her own property, and that mistaken belief has arisen from the defendant’s intoxicated state, the courts have accepted the defence under s. 5 of the Criminal Damage Act 1971 (Jaggard v Dickinson [1981] QB 527).
Where the defendant forms a ‘mistaken belief’ based on the fact that he/she is intoxicated, that belief may sometimes be raised as a defence.
Give an example of where this would not be the case?
Where a defendant charged with murder could not rely on a mistake induced by his own voluntary intoxication and claim ‘self-defence’), or where the defendant mistakenly believed that the victim of a rape was consenting to sexual intercourse.
If defendants become intoxicated in order to gain false courage to go and commit a crime will they be able to claim a defence of intoxication?
No - even if the crime is one of specific intent.
This is because they have already formed the intent required and the intoxication is merely a means of plucking up ‘Dutch’ courage to carry it out (Attorney-General for Northern Ireland v Gallagher [1963] AC 349).
How may inadvertence and mistakes be used as a defence?
There are occasions where a defendant makes a mistake about some circumstance or consequence, however, claims that a defendant ‘made a mistake’ or did something ‘inadvertently’ will only be an effective defence if they negate the mens rea for that offence.
Therefore, if someone wanders out of a shop with something that has not yet been paid for, that mistake or inadvertence might negative any mens rea of ‘dishonesty’.
There are occasions where a genuine mistake on the part of the defendant may amount to a defence.
In R v Lee [2001], a case arising from an assault on two arresting police officers, the Court of Appeal reviewed the law in this area, reaffirming the following points:
- A genuine or honest mistake could provide a defence to many criminal offences requiring a particular state of mind, including assault with intent to resist arrest (R v Brightling [1991])
- A defence of mistake had to involve a mistake of fact, not a mistake of law.
- People under arrest are not entitled to form their own view as to the lawfulness of that arrest. They have a duty to comply with the police and hear the details of the charge against them (R v Bentley (1850) 4 Cox CC 406).
- Belief in one’s own innocence, however genuine or honestly held, cannot afford a defence to a charge of assault with intent to resist arrest under s. 38 of the Offences Against the Person Act 1861.
How may duress be used as a defence?
Where a person is threatened with imminent death or serious physical injury unless he/she carries out a criminal act, he/she may have a defence of duress.
The threat of serious physical injury does not appear to include serious psychological injury (R v Baker [1997])
Threats of death/serious harm to loved ones may allow a defence of duress.
What are the key elements to using duress as a defence:
- the threat must have driven the defendant to commit the offence;
- the defendant must have acted as a sober and reasonable person sharing the defendant’s characteristics would have done;
- the threatened death/injury must be anticipated at or near the time of the offence—not sometime in the distant future.
When is duress not available as a defence?
If the defendant failed to take advantage of an opportunity to neutralise the effects of the threat (perhaps by escaping from it), which a reasonable person of a similar sort to the defendant would have taken in the same position.
If defendants knowingly expose themselves to a risk of such a threat of death or serious physical injury.
How may duress of circumstances be used as a defence?
There may be times when circumstances leave the defendant no alternative but to commit an offence.
In R v Martin [1989]: The defendant is stopped in his car by police. He is discovered to have driven while disqualified. The reason he gave for doing this, was that his wife had threatened suicide had he not driven their son to work. The defendant wife had previously attempted suicide.
When is duress of circumstances not available as a defence?
If the defendant commits a very serious offence in order to avoid very minor or trivial consequences, this defence is unlikely to be available.
E.g murder, attempted murder or treason.
What is the difference between duress and duress of circumstances?
Duress comes from a threat made which compels him/her to commit an offence: a gun to the head type of situation where one person says to another ‘Do this or else . . .’.
With duress of circumstances, there is no such threat being made. Rather there is a threatening situation or set of circumstances from which the defendant wishes to escape and, in so doing, feels impelled to commit an offence as the lesser of two present evils.
Here the threat is ‘situational’ and the defendant feels ‘If I don’t do this, then the consequence will be death or serious physical injury . . .’.
In determining whether or not the defence of ‘duress of circumstances’ was available, the court held that the jury must ask two questions in relation to the appellant:
- Was he (or might he have been) impelled to act as he did because, as a result of what he reasonably believed to be the situation, he had good cause to fear he would suffer death or serious injury if he did not do so?
- If so, would a sober person of reasonable firmness and sharing the same characteristics, have responded to the situation in the way that he did?
With duress of circumstances, is there a need for the threat to be ‘real?
Defendants need only hold an honest belief that those circumstances exist without necessarily having reasonable grounds for that belief.
Where the common law defences of self-defence, defence of property or the Criminal Law Act 1967 defence of lawful arrest are raised in relation to taking someone’s life, the provisions of which article will apply?
Article 2 of the European Convention on Human Rights will apply.
Human Rights
Article 2 of the Convention states:
- Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
- Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.
When can force be used?
s. 76 of the Criminal Justice and Immigration Act 2008.
A person may use such force as is reasonable in the circumstances as he believes them to be for the purpose of:
(a) self-defence; or
(b) defence of another; or
(c) defence of property; or
(d) prevention of crime; or
(e) lawful arrest.
