General defences

Question 1

‘Absence of a valid defence’

Answer 1

For a defendant to be criminally liable, they must have the actus reus and mens rea of the relevant offence, as well as the absence of a valid defence ( a justification or excuse for the defendant’s behaviour). If a valid and complete defence exists, D will not be criminally liable.

Question 2

What sort of defence is intoxication and how does it work?

Answer 2

A general defence, meaning it is available to almost any crime. It works in two ways:

(1) As a way to negate the mens rea (so not really a defence)
(2) An influencing factor on another legal principle or defence.

Question 3

How can intoxication work to negate the mens rea?

Answer 3

R v Woolmington - The prosecution need to prove, beyond reasonable doubt, that the defendant has committed the actus reus with the necessary mens rea. If, due to intoxication, the defendant did not form the necessary mens rea, then under certain circumstances, they may be acquitted due to lack of mens rea.

R v Bennett - The judge is obliged to direct the jury on intoxication whenever there is evidence such that a reasonable jury might conclude that there is a reasonable possibility the accused did not form the mens rea.

R v Pordage - if the accused’s intoxication does not negate the mens rea, it is not a defence for the accused to say they would not have behaved as they did but for being drunk.

Question 4

R v Kingston - intoxication example

Answer 4

P invited K to his flat and gave him some coffee, then showed him a boy asleep on the bed and invited him to indecently assault the boy. The appellant did so. K’s defence was that he was involuntarily intoxicated as he alleged that P had drugged the coffee. The HoL held that K was liable; if he had still formed the mens rea in an intoxicated state, it was no defence to plead he would not have committed the offence when sober.

Question 5

Questions to ask when considering intoxication as a way to negate the mens rea

Answer 5

(1) If it was involuntary intoxication - the defence might still be available, the question is: did D still form the necessary mens rea?
(2) If it is voluntary intoxication:
(a) By non-dangerous drugs - the defence might still be available, the question is: did D still form the necessary mens rea?
(b) By dangerous drugs/alcohol -
(i) For specific intent crimes - the defence might still be available, the question is: did D still form the necessary mens rea?
(ii) For basic intent crimes - would D have formed the mens rea if they were sober?

Question 6

Involuntary intoxication

Answer 6

Where D was forced to consume alcohol or other intoxicating drugs, or was deceived into doing so (R v Kingston)

Where the defendant is aware that they are drinking alcohol, but is mistaken as to the strength of the alcohol, this will NOT count as involuntary (R v Allen)

Question 7

Voluntary intoxication

Answer 7

DPP v Majewski - Voluntary intoxication would not be a defence to a charge of basic intent

R v Coley, McGhee and Harris - The direction for this has been changed to for the jury to consider whether the defendant would have seen the risk had they not been intoxicated.

Question 8

Basic intent offences

Answer 8

Any offence where the defendant could be convicted on the basis of recklessness, e.g.:

• Battery
• Unlawful act manslaughter
• Gross negligence manslaughter
• Malicious wound/inflicting GBH (s 20 OAPA 1861)
• Assault occasioning ABH (s 47 OAPA 1861)
• Battery
• Assault
• Basic criminal damage and aggravated criminal damage (s 1(1) and 1(2) CDA 1971)
• Burglary under s 9(1)(b) where the defendant has fulfilled the last element by causing GBH

Question 9

Specific intent offences

Answer 9

Where intention is the only form of mens rea available, e.g.

• Murder
• Wounding of grievous bodily harm with intent (s 18 OAPA 1861)
• Theft
• Robbery
• Burglary under s 9(1)(a)
• Burglary under s 9(1)(b) where D has fulfilled the last element by stealing, attempting to steal, or attempting to cause GBH
• Attempts

Question 10

Dangerous and non-dangerous drugs

Answer 10

R v Hardie: drugs can be divided into 2 categories:

• Dangerous: Where it is common knowledge that a drug is liable to cause the taker to become aggressive, or do dangerous or unpredictable things. e.g. illegal drugs and alcohol
• Non-dangerous: Where there is no such common knowledge, e.g. a merely soporific or sedative drug.

In R v Hardie, the defendant took Valium and later started a fire. CoA allowed his appeal on the basis that the Valium was taken for calming his nerves, and there was no evidence that the appellant knew it would make him aggressive, incapable of appreciating risks to others or susceptible to other side effects, so as to make his taking it reckless.

Question 11

Interaction between intoxication and self defence

Answer 11

If a defendant makes a drunken mistake as to the need to use self-defence, they cannot rely on that mistake.

Question 12

Interaction between intoxication and loss of control

Answer 12

Intoxication is not a bar to a plea of loss of control or diminished responsibility.

Mens rea - even though intoxicated, did D form the mens rea of intention to kill or intention to cause grievous bodily harm? A drunken intent is still intent (R v Kingston)

Loss of control - did D lose self control? Did D act due to the fear or anger qualifying trigger? D’s drug or alcohol addiction can be taken into account when assessing the magnitude of the qualifying anger trigger if D was taunted about the addiction. Normal person test - an intoxicated person is not precluded from using the defence. If D is addicted to drugs or alcohol this will be a characteristic given to the normal person but the normal person will still have normal levels of tolerance and self-restraint (Asmelash)

Question 13

Interaction between intoxication and diminished responsibility

Answer 13

• Voluntary intoxication cannot be relied upon on its own to find diminished responsibility (Dowds)
• If the defendant has an abnormality of mental functioning (AMF), and is voluntary intoxicated, apply Dietschmann
• D must have an AMF.
• AMF must arise from a recognised medical condition.
• AMF must have substantially impaired the defendant’s ability to do one of the things in s 2(1A) Homicide Act 1957
• AMF must provide an explanation for D’s conduct, even if it is not the only cause (alcohol can be another reason)
• If the defendant’s AMF is alcohol dependency syndrome (ADS):
• D must have an AMF at the time of killing due to ADS.
• This must have impaired defendant’s ability, as above.
• AMF must provide explanation for conduct, as above.

Question 14

Interaction between intoxication and consent

Answer 14

R v Richardson and Irwin - Defendants lifted and dropped the victim over a balcony. An appeal was allowed because the jury should have been directed to consider whether the defendant believed the victim had consented, even if the defendants wrongly believed the victim had consented due to intoxication.

Question 15

Interaction between intoxication and statutory defences

Answer 15

Where there is a statutory defence that allows for an honest belief, the defendant will be able to use this defence even if their belief is due to their voluntary intoxication.

Jaggard v Dickinson - Dickinson broke a window in the drunken belief that the house was that of a friend with whom she was staying. The test was subjective, so Dickinson was entitled to the defence under s 5(2) CDA 1971, even where the belief resulted from the defendant’s intoxication.

Question 16

Consent as a general defence

Answer 16

For offences against the person, the consent of the victim may also preclude a crime. It is not clear whether consent operates as a defence to the crime, or whether the absence of consent is an element of the offence. The Law Lords were divided on this in R v Brown.

Question 17

Two elements to consent

Answer 17

Whether:
(1) the victim consented; and
(2) the defendant believed the victim consented.
It is for the prosecution to prove both of these elements.

If the defendant wrongly believed the victim consented, the defence could still be available (R v Richardson and Irwin)

Question 18

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

Answer 18

The general rule is that consent is only available as a defence to assault and battery.

Question 19

Consent - example cases

Answer 19

AG’s Reference (No 6 of 2010) - Two boys decided to settle an argument by a fight. It was held that one was guilty under OAPA 1861 s 47 of assault occasioning actual bodily harm. Judge said ‘most fights will be unlawful regardless of consent.’

R v Brown - confirmed that generally consent is only available as a defence to assault and battery. A group of sadomasochists caused injuries to each other for sexual pleasure. The defendants were charged with offences of assault occasioning ABH s 47 and GBH s 20. Consent failed, because it could not be a defence to anything greater than battery unless it fell into one of the accepted ‘good reasons’/exceptions.

R v Meachen - extended the use of consent to be available when ABH or worse is caused, provided the defendant (a) intended to only commit a battery with the consent of the victim; and (b) did not see the risk of inflicting ABH.

Question 20

Offences against the person and consent - summary

Answer 20

(1) Is the offence more than assault/battery?
(2) If no, consent is available if the victim consented or the defendant honestly believed that the victim was consenting.
(3) If yes, did the defendant intend to cause ABH or above?
(4) If yes, consent is not available unless one of the exceptions apply.
(5) If no, and they did not see the risk either, consent is available (R v Meachen)
(6) If no and they were reckless as to the risk: no guidance from the court, but check to see if one of the exceptions reply.

Question 21

Consent: public interest exceptions to the rule that consent is only available for assault and battery

Answer 21

(a) Medical treatment
(b) Sport
(c) Horseplay
(d) Tattooing, body piercing and personal adornment
(e) Sexual gratification/accidental infliction of harm

Question 22

Consent - Medical treatment

Answer 22

Consent can be given for surgery and other medical treatment that causes harm. Consent can be given to a high risk of death.

Question 23

Consent - Sport

Answer 23

Any incidental injury caused while playing within the rules of the game will not be an offence, because participants have consented to this.

R v Barnes - In highly competitive sports, conduct outside the rules might be expected to occur in the heat of the moment. If what occurred went beyond what a player could reasonably regard as having accepted by taking part, this would indicate it would not be covered by consent. In Barnes, the victim sustained a serious leg injury as a result of a late tackle. The jury had to consider whether the contact had been so obviously late and/or violent as to not be regarded as an instinctive error, reaction or misjudgement.

R v Billinghurst - B punched G and fractured his jaw in two places during a rugby match. He was charged under s 20 OAPA 1861. Players are deemed to consent to force of ‘a kind which could reasonably be expected to happen during the game.’ Evidence was given by rugby players that punching was an accepted part of the modern game. However, the judge differentiated between ‘on the ball’ and ‘off the ball’ play, and that ‘off the ball’ was outside the scope of consent.

In some Canadian cases, it has been held that spectators of ice hockey consent to a certain amount of violence.

Question 24

Consent - Horseplay

Answer 24

R v Jones - Some boys tossed two other boys into the air, resulting in a ruptured spleen and a broken arm. CoA held that they ought to have been allowed to raise the issue of consent to injuries sustained through ‘rough and undisciplined’ horseplay, for the jury to then consider.

R v Aitken - Drunken RAF officers were setting fire to one another’s fire-resistant suits as a joke. They set fire to the victim’s suit and he was severely burned. Their conviction was quashed, relying on Jones.

Question 25

Consent - tattooing, body piercing and personal adornment

Answer 25

R v Wilson - The defendant used a hot knife to brand his initials onto the buttocks of his wife, at her request. He argued consent to a charge under s 47 OAPA 1861. CoA held there was no logical difference between this and tattooing, piercing or personal adornments, which is a lawful activity. Interesting contrast to decision in R v Brown.

R v BM - CoA refused to include body modification in the form of the removal of an ear, the removal of a nipple and the division of a tongue into a fork like a reptile, in the category of tattooing and personal adornment.

Question 26

Consent - sexually transmitted diseases

Answer 26

R v Dica - If the complainant consents to the risk of contracting HIV through sexual intercourse, the defendant does have a defence to a charge under OAPA 1861 s 20. ‘It does not follow…that consensual acts of sexual intercourse are unlawful merely because there may be a known risk to the health of one or other participant…They are simply prepared, knowingly, to run the risk – not the certainty – of infection, as well as all the other risks inherent in and possible consequences of sexual intercourse’. However, it is not possible to consent to deliberate HIV infection.

Question 27

Consent - sadomasochistic activity

Answer 27

R v Brown - Activity such as burning their genitals or beating for sexual pleasure was not deemed to be a suitable exception.

Question 28

Consent - sexual gratification/accidental infliction of harm

Answer 28

R v Boyea - The defendant inserted his fist into the victim’s vagina. The defendant claimed he did not intend to cause the level of harm sustained and that it was done for sexual gratification. Consent was not allowed as a defence.

R v Emmett - The parties were involved in consensual activities with the defendant tying a plastic bag over his fiancée’s head for sexual pleasure. He also, with her consent, poured lighter fuel on her breasts and set fire to it. The court saw this as violent conduct which moved beyond acts which can be consented to.

R v Slingsby - The defendant inserted his fist into the victim during sex. The victim’s injury was caused by a ring on the finger of the defendant. There was no intention to cause harm and the defendant did not see the risk of causing harm. The victim died of septicaemia. The defendant was acquitted of unlawful act manslaughter on the grounds that he lacked mens rea.

Question 29

Consent - lawful correction of a child

Answer 29

R v Hopley - A parent has a defence of reasonable chastisement in applying force to a child.

This is now open to challenge under ECHR Article 3.

R v H - The jury must look at the nature and context of the parent’s behaviour, its duration, the physical and mental consequences for the child, and the reasons why the punishment was inflicted.

The area is also governed by s 58 Children Act 2004; the reasonable punishment defence cannot be relied upon if it results in ABH or above.

Question 30

Consent - limitation on extending the categories of exceptions

Answer 30

R v BM - Court said that these categories should not be extended by the courts.

Question 31

Self defence

Answer 31

‘Self defence’ can be taken to cover a number of defences, where a person acts to:

• protect themselves
• protect someone else
• protect property
• prevent a crime; or
• assist in the arrest of an offender.

Question 32

Sources of the self defence defence

Answer 32

• A long established common law defence.
• Supplemented by a statutory defence in Criminal Law Act 1967, s 3.
• Criminal Justice and Immigration Act 2008 s 76(1)(b) states that it applies when ‘the question arises whether the degree of force used by D against a person (V) was reasonable in the circumstances’. This is the second part of the common law test; the response. In R v SoS for Justice, the court noted that s 76 governs the second limb of the defence, but in earlier cases such as R v Dawes, Hatter and Bower, it was adopted as applying to both parts of the defence.

Question 33

When will self defence apply?

Answer 33

• CIJA 2008, s 76(2) identifies the defences to which the section applies:
  (a) the common law defence of self-defence; and
  (aa) the common law defence of defence of property; and
  (5) the defence provided by section 3(1) of the Criminal Law Act 1967…(use of force in prevention of crime or making arrest’
• The common law defence envisaged two possible reasons:
  (1) In the protection of life and limb of yourself or another (R v Gladstone Williams);
  (2) In the protection of property (R v Hussey)

Question 34

When can self defence not be used?

Answer 34

Self defence can only be used to protect yourself or another, or property from imminent attack, i.e. from a threat of physical force, not a threat to one’s peace of mind. ‘physical harm may not be used to prevent psychological harm. Like must be met with like.’ (R v Bullerton).

With regard to prevention of crime, s 3 Criminal Law Act 1967: ‘A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting int he lawful arrest of offenders or suspected offenders or of persons unlawfully at large.’

Question 35

The test for defences of self defence

Answer 35

A defendant is entitled to rely on any of these defences if:

(a) TRIGGER - the defendant honestly believed that the use of force was necessary (R v Gladstone Williams); and
(b) RESPONSE - the level of force the defendant used in response was objectively reasonable in the circumstances as the defendant believed them to be.

Question 36

What sort of defence is self defence?

Answer 36

R v Clegg - Self defence is a complete defence to all crimes. However, if it fails in any way, it will fail in its entirety.

R v Dawes, Hatter and Bower - If a defence of self defence fails to murder, it is possible a jury will convict of voluntary manslaughter on the basis of a loss of control instead.

Question 37

Self defence - the trigger: D honestly believed the use of force was necessary

Answer 37

This is judged on the facts as the defendant subjectively believes them to be (R v Gladstone Williams, s 76(3) CJIA 2008)

R v Gladstone Williams - V saw a woman being robbed and attempted to lawfully apprehend the robber. Williams arrived on the scene and mistakenly thought the robber was being unlawfully attacked by V. Williams attacked V but successfully argued self defence. The defendant’s actions must be judged according to the facts as he honestly believed them to be. ‘If the belief was in fact held, its unreasonableness, so far as guilt or innocence is concerned, is neither here nor there.’

Question 38

Self defence - mistake induced by voluntary intoxication

Answer 38

R v O’Connor, s 76(5) CJIA 2008 - If the mistaken belief is due to the voluntary intoxication of the defendant, then the defendant will not be able to rely on their mistake.

Question 39

Self defence - no duty to retreat

Answer 39

There is no duty to retreat in English law, although the fact the defendant had an opportunity to retreat may be regarded as a relevant factor in the reasonableness of their actions (R v Bird, s 76(6A) CIJA 2008)

R v Bird - ‘what is necessary is that he should demonstrate by his actions that he does not want to fight…A demonstration by the accused that at the time he did not want to fight is, no doubt, the best evidence that he was acting reasonably and in good faith.’

Question 40

Anticipatory self-defence

Answer 40

A defendant may make the first blow and still rely on the defence.

AG’s Reference (No 2 of 1983) - The accused would be entitled to the defence of self-defence if ‘his object was to protect himself or his family or his property against imminent apprehended attack and to do so by means which he believed were no more than reasonably necessary’

Beckford v R - ‘A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike’ (Lord Griffiths)

Devlin v Armstrong - can be used when it was ‘to ward off or prevent an attack which he honestly anticipated…the anticipated attack must be imminent.’

Question 41

Self defence may be used by an antagonist

Answer 41

R v Forrester - Whether or not F was a trespasser did not entitle W to use excessive force to remove him. F would be entitled to rely on self-defence if W used excessive force in attempting to remove him.

R v Rashford - Self defence is not automatically precluded in a situation where the defendant was the initial aggressor and the victim retaliated. This will depend on the circumstances of the case. Self defence is available to the person who started the fight if the person whom they attack not only defends themselves but goes over to the offensive.

R v Keane and McGrath - ‘Self-defence could arise in the case of the original aggressor, but only where the violence offered by the victim was so out of proportion to what the original aggressor did that the roles were effectively reversed…’

Question 42

Self defence - Force can be used against an innocent third party

Answer 42

R v Hitchens - Appeal was dismissed but the court confirmed that self defence was capable of extending to the use of force against an innocent third party to prevent a crime being committed by someone else. The facts would rarely arise but might include:
(a) a police constable bundling a passerby out the way to get at a person the constable believed was about to shoot a firearm or detonate an explosive device
(b) a person seeking to give car keys to another to enable them to drive and X, believing that other to be unfit to drive through drink, knocked the keys out of the first person’s hands.
CoA confirmed a defendant could use force against an innocent third party to protect themselves.

Question 43

Self defence - the response

Answer 43

The jury must go on to consider the level of force used in response to the threat. The level of force must be reasonable. The CJIA 2008 works on the assumption that what is reasonable will depend on the circumstances and differentiates between:

• ‘non-householder’ cases; and
• ‘householder’ cases

Question 44

Self defence - the response: non-householder cases

Answer 44

• The question of whether the degree of force used by D was reasonable is to be decided by reference to the circumstances as D believed them to be (s 76(3)) CJIA 2008)
• If D claims to have held a particular belief as to these circumstances (s 76(4)):
• The reasonableness or otherwise of that belief is relevant to the question as to whether D genuinely held it (s 76(4)(a))
• If it is determined that D genuinely held it, D is entitled to rely on it, whether or not it was mistaken (s 76(4)(b)(i)) or if it was mistaken, the mistake was a reasonable one to have made (s 76(4)(b)(ii)).
• D however cannot rely on any mistaken belief due to voluntary intoxication (s 76(5))
• In a case other than a householder case, the degree of force used is not reasonable in the circumstances that D believed them to be if it was disproportionate in those circumstances (s 76(6))

Question 45

Self defence - the response: non-householder cases; relevant considerations as to whether force was reasonable

Answer 45

• A person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action (s 76(7)(a), Palmer v R)
• The evidence of a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken (s 76(7)(b), R v Palmer).
• The test is an objective one.

Question 46

Self defence - the response: non-householder cases; case law

Answer 46

R v Owino - A defendant must be judged in accordance with his honest belief, even though that belief may have been mistaken. The jury must then decide whether the force used was reasonable in those circumstances as he believed them to be.

R v Harvey - The defendant must be judged not just on the circumstances as they believed them to be, but also on the danger as they believed it to be.

R v Press and Thompson - A soldier was allowed to rely on psychiatric evidence that he suffered from PTSD to substantiate his mistaken beliefs.

A-G’s Reference for N Ireland - ‘the postulated balancing of risk against risk, harm against harm, by the reasonable man is not undertaken in the calm analytical atmosphere of the court room after counsel, with the benefit of hindsight…but in the brief second or two which the accused has to decide…and under all the stresses to which he was exposed.’

Palmer v R - ‘If a jury thought that in a moment of unexpected anguish a person had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken.’

Question 47

Self defence - the response: householder cases

Answer 47

Force will not be reasonable if it was grossly disproportionate (as opposed to just disproportionate in non-householder cases) (s 76(5A))

R (on the application of Denby Collins) v SoS for Justice - For householder cases there is a two part test for the second limb of self-defence. First, the jury must be asked if the force was grossly disproportionate. If it was, there can be no defence. If it was not, secondly, the jury must be asked whether the level of force was reasonable. Sir Brian Leveson noted that the effect and purpose of making a different category for householders was to allow a discretionary area of judgment with a different emphasis from non-householder cases. The most obvious example would be the extent to which it is appropriate to take account of the opportunity to retreat.

R v Ray - ‘the kind of circumstances which the jury should consider in determining whether the degree of force used by a householder was reasonable…the shock of coming upon an intruder, the time of day, the presence of other help, the desire to protect the home and its occupants, the vulnerability of the occupants, particularly children, or the picking up of an object (such as a knife or stick that would be lawfully to hand in the home), the conduct of the intruder at the time.

Question 48

What is a householder case?

Answer 48

‘8A (a) the defence concerned is the common law defence of self defence,
(b) the force concerned is force used by D while or partly in a building, or part of a building, that is a dwelling or is forces accommodation (or is both),
(c) D is not a trespasser at the time the force is used, and
(d) at that time D believed V to be in, or entering, the building or part as a trespasser.
(8B) Where–
(a) a part of a building is a dwelling where D dwells,
(b) another part of the building is a place of work for D or another person who dwells int he first part, and
(c) the other part is internally accessible from the first part, that other part, and any internal means of access between the two parts, are each treated for the purposes of subsection (8A) as a part of a building that is a dwelling.’

‘(8E) The fact that a person derives title from a trespasser, or has the permission of a trespasser, does not prevent the person from being a trespasser for the purposes of subsection (8A).

(8F) In subsections (8A) to (8C)–
“building” includes a vehicle or vessel, and
“forces accommodation” means service living accommodation for the purposes of Part 3 of the Armed Forces Act 2003’