defences of criminal acts

Question 1

can the effect of mistake be used if it is due to voluntary intoxication?

Answer 1

no- Williams (Gladstone) because of the public policy issues involved and R v Kingston says absence of moral fault is not sufficient to negate the mens rea- intoxication can only be a defence if it causes the D to lack the relevant mens rea for the offence

Question 2

what questions are considered in relation to intoxication as a defence?

Answer 2

was the intoxication voluntary or involuntary? is the crime one of basic or specific intent?

Question 3

what is specific intent?

Answer 3

MR needs intent (recklessness not sufficient)

Question 4

can intoxication be a defence for sexual assault?

Answer 4

no- R v Heard as s3 for lack of reasonable belief in consent only quires recklessness

Question 5

what is basic intent?

Answer 5

MR can be fulfilled with less than intent e.g. s47 OAPA, unlawful act manslaughter and criminal damage

Question 6

is being spiked or losing count of yours drinks voluntary or involuntary intoxication?

Answer 6

Voluntarily intoxicated R v Allen

Question 7

what does DPP v Majewski say about intoxication and basic intent

Answer 7

volunatry intoxication cannot be a defence for offences with basic intent

Question 8

what is the law around taking alcohol to gain confidence to commit a crime?

Answer 8

cannot use voluntary intoxication defence if they had mens rea for the crime before they started to drink- AG for NI v Gallagher

Question 9

how does the law regard intoxication and mistakes

Answer 9

any mistake made due to intoxication is no defence to a charge of manslaughter or murder- R v Hatton of either basic or specific intent

Question 10

what does O Grady say about VI and self defence?

Answer 10

if D holds a particular belief because of their intoxication defends themselves, they will be guilty

Question 11

what is involuntary intoxication?

Answer 11

when D did not know they were taking any alcohol or drug or they take a medically prescribed drug according to instructions and it has strange side effects

Question 12

can someone who is involuntarily intoxicated have a defence to any crime?

Answer 12

yes- specific or basic if they did not have the mens rea for it e.g. if someone is spiked and prosecution couldn’t prove they intended or were reckless as to causing assault

Question 13

how do unexpected side effects relate to involuntary intoxication as a defence?

Answer 13

R v Hardie- although no one forced him to take tablets, the change in behaviour was from a non-dangerous drug and the behaviour was not normally associated with the drug so wasn’t foreseeable

Question 14

what is the defence of intoxication and lawful excuse?

Answer 14

jaggard v Dickson-if D can rely on defence of a lawful excuse, they wont be guilty e.g. criminal damage even if their mistake was due to their voluntary intoxication

Question 15

when can the self-defence defence be applied?

Answer 15

s 3(1) of CLA 1967- ‘in the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large’

Question 16

what is a ‘householder’ case?

Answer 16

a D uses force on someone they find in their dwelling

Question 17

how was s 76 of CJIA 2008 amended in relation to householder cases?

Answer 17

designed to safeguard those who use SD or in defence of another while in or partly in a building or part of a building that is a dwelling, forces accommodation or vehicle or vessel that is a dwelling (the accused doesn’t have to be homeowner but cannot be a trespasser)

Question 18

how is reasonable force determined in a householder case?

Answer 18

the use of proportionate force is reasonable, disproportionate force may be reasonable or unreasonable which is a matter for the jury to decide when taking into account all of the circumstances but grossly disproportionate force will be unreasonable

Question 19

is there a duty to retreat?

Answer 19

no rule of law stating that D must retreat before resorting to self-defence or wait for the assailant to hit them first- R v Bird BUT whether they should have retreated in the circumstances is considered by the jury

Question 20

what must be considered for the accused to successfully argue self defence?

Answer 20

whether the force was necessary (i.e. not revenge or retaliation), the D is mistaken about what the other party is going to do, and was the amount of force used reasonable?

Question 21

why is the effect of mistake relevant to arguing self defence?

Answer 21

the D is judged on the facts as they honestly believe them to be even if they are mistaken, this applies even if the belief is unreasonable, BUT if the Ds mistake is an unreasonable one to make it may be a reason for the jury to conclude that the belief was not honestly held

Question 22

what is acknowledged in Palmer v R 1971?

Answer 22

Lord Morris- a D acting in SD may not always have time to make a rational decision and would be acting ‘in a moment of unexpected anguish’

Question 23

in deciding whether a D acted reasonably, what must the jury take into account?

Answer 23

that a person acting for a legitimate purpose may not be able to weigh up to a nicety the exact measure of any necessary action and that evidence of a persons 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 by the person for that purpose

Question 24

what does legitimate purpose mean?

Answer 24

acting in SD, the defence of a person or the prevention of crime

Question 25

what must the D apprehend to justify their actions of SD?

Answer 25

that the danger is sufficiently specific or imminent

Question 26

can a D rely on unknown facts?

Answer 26

no because D shouldnt be able to evade criminal liability when using excessive violent based on facst which they were unaware of- R v Dadson 1850

Question 27

does the D have an evidential burden to discharge?

Answer 27

yes- must make it a live issue at trial- usually cross examining prosecution witnesses and by the D giving evidence that they acted in SD. Once D has discharged its evidential burden, prosecution must disprove defence beyond all reasonable doubt