General Defences

Question 1

What is automatism?

Answer 1

This is the notion that a person will lack the necessary physical action to complete an offence because their body will loose control involuntarily and as such their actions will not be voluntary and free (think being attacked by bees, cramping and sneezing)

Question 2

What is the difference between voluntary and involuntary intoxication?

Answer 2

Involuntary intoxication can be raised as a defence against both offences of specific and basic intent

Involuntary intoxication can only be raised against specific intent as it is viewed they can still make the metal decisions for a basic intent offence

• voluntary intoxication CAN BE USED AS A DEFENCE AGAINST MURDER
• misjudging the strength of the alcohol will not make it involuntary. Even if your drink was unknowingly spiked with stronger alcohol, the fact you knew you were drinking some alcohol will make it voluntary
• intoxication can be brought as a defence to criminal damage where there is a MISTAKEN BELIEF, brought on by that intoxication that they are damaging their own property. This DOES NOT apply to things like murder or rape (relating to a mistaken belief of self defence or consent)

Question 3

What is the defence of inadvertence or mistake?

Answer 3

Where a person makes an HONEST and GENUINE mistake it can be a defence even if it is not necessarily reasonable to make

The mistake must be in relation to some fact, not lawfulness; so in regards to ASSAULT WITH INTENT TO RESIST ARREST, the mistaken belief by a person that they are innocent will not negate the offence as, innocent or not, they are obligated to hear the charge and go through the process

• in regards to theft, a mistaken belief that you have a right to appropriate property would be a defence

Question 4

What is the defence of duress?

Answer 4

This is a defence raising from a fear of DEATH OR SERIOR INJURY (ONLY).

For duress to be in play it MUST…

• have driven the actions taken in committing the offence
• the actions taken must be the same that a sober and reasonable person would take
• the threats must be to bear or immediate harm/death and not some time in the future
• a fear of psychological harm WIL NOT COUNT
• duress CANNOT be used against MURDER or ATTEMPTED MURDER
• if you put yourself in harms way (joining a VIOLENT gang or terrorist organisation) you cannot use duress as a defence against any offences you might commit because it is taken as an occupational hazard that you have entered into voluntarily
• an example of it in use would be a cab driver threatened to carry people in excess of his licence

Question 5

What is the defence of duress of circumstances?

Answer 5

There may be circumstances where there is no alternative but to commit an offence

Where a person drove whilst disqualified because a family member threatened suicide if they did not do something for them it was accepted as a defence.

It is the notion of the lesser of 2 evils; if I do not do this there will be DEATH OR SERIOUS HARM

The circumstances will be weighed against the reasonableness of normal people

• it is NOT AVAILABLE to MURDER, ATTEMPTED MURDER OR TREASON but is open for HIJACKING
• there is no requirement that the threat be real or reasonable; only that the person honestly believed it was and that their actions in response would be reasonable to a sober and reasonable person
• if you commit a serious offence to avoid a minor consequence then it will not apply

Question 6

What is the defence of self, others or property?

Answer 6

Article 2 of the HRA states that life can be considered lawful if…

• the force used is no more than absolutely necessary
• in defence of any person from unlawful violence
• to effect and arrest or prevent the escape of a person lawfully detained
• in action lawfully taken to prevent riot or insurrection

Question 7

What is the defence of persons, prevention of crime and lawful arrest?

Answer 7

A person can use such force as is reasonable in the circumstances as THEY BELIEVE them to be for the purposes of…

• self-defence
• defence of others
• defence of property
• prevention of crime
• lawful arrest

DISPROPORTIONATE force CAN be considered reasonable when DEFENDING YOUR HOME. GROSSLY DISPROPORTIONATE force WILL NOT BE

It is the reasonableness of THAT PERSONS belief; that at the time and under the circumstances, they genuinely and honestly believed that force was necessary. The reasonableness of that belief under the circumstances will be assessed and used to determine if they did honestly have that belief. If they do, then even if mistaken, the defence is available.

The actions taken can then be assessed against the belief they had to determine if the force used was ONLY WHAT WAS NECESSARY AND REASONABLE under those circumstances and belief

Question 8

What is the defence for children under 10?

Answer 8

Children under 10 are not capable of criminal responsibility and will never be suspects