9. Defences

Question 1

Is intoxication ever a defence?

Answer 1

YES
- If it means the defendant lacks the MR of the offence (less of a defence here)
NO
- if the defendant was voluntarily intoxicated

Question 2

Crimes of Specific Intent

Answer 2

Part of the MR is intention (recklessness does not suffice)

Question 3

Offences of basic intent

Answer 3

the MR can be fulfilled with something less than intent (like recklessness) as is the case with assaults

Question 4

Are sexual offences crimes of specific or basic intent

Answer 4

For the purposes of the defence of intoxication they are treated as crimes of basic intent

Question 5

Specific Intent Crimes Examples

Answer 5

Murder
s 18 assault
Theft

Question 6

Voluntary intoxication and a crime of basic intent: can intoxication be a defence

Answer 6

Never

Question 7

Voluntary intoxication and a crime of specific intent: is intoxication a defence

Answer 7

Yes, if it causes the defendant to lack the MR (of intention) but this will not preclude the court from convicting them with a lesser offence (like manslaughter)

Question 8

What amounts to involuntary intoxication

Answer 8

• if the defendant is spiked
• if the defendant takes medication they are assured is harmless (they will not be reckless) here)

Question 9

For what crimes can involuntary intoxication provide a defence for?

Answer 9

Crimes of basic and specific intent IF the defendant lacks the MR because of this intoxication (does not work if defendant ‘knows what they are doing’)

Question 10

What is ‘Dutch courage’

Answer 10

When the defendant deliberately consumes alcohol or drugs to gain the confidence to commit an offence
- cannot rely on this as a defence

Question 11

If a defendant makes a ‘mistake’ because they are intoxicated (ie. thinks they are about to be attacked) is this a defence?

Answer 11

No, if the mistake is caused by the intoxication this is not a defence

Question 12

Intoxication and lawful excuse: does the defence apply here?

Answer 12

If the belief in the excuse is genuinely held, the intoxication is irrelevant so lawful excuse may provide a defence but it will not rid them of the MR

Question 13

The defence of self defence in statute

Answer 13

A person may use such force as is reasonable in the circumstances 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 14

Legal and Evidential burden for self-defence

Answer 14

1. D must discharge evidential burden by cross-examining prosecution witness and defendant giving evidence themselves
2. Now, CPS must disprove this defence beyond a reasonable doubt

Question 15

When will force be deemed as ‘necessary’ wrt to self defence

Answer 15

1. if it was necessary to defend themselves or another or prevent a criminal offence

Question 16

Self-defence and mistaken belief - would this mistaken belief prevent D from relying on the defence?

Answer 16

No, if the belief in the necessity of the force was genuinely held

Question 17

Is the test for whether force was necessary subjective or objective

Answer 17

a. defendant is judged on facts as they believed them to be
b. BUT if the defendant’s belief was unreasonably held, the jury may conclude that they do not believe that the belief was HONESTLY held by the defendant

Question 18

Whether the amount of force used was reasonable: is this decided objectively or subjectively

Answer 18

The test for reasonableness is objective - decided by magistrates or jury - with reference to the facts that the defendant believed

Question 19

Two components of establishing the defence of self defence

Answer 19

1. D honestly believed that force was necessary
2. D used reasonable force in the circumstances as they believed them to be

BUT reasonableness of that belief is relevant to the question of whether it was genuinely held

Question 20

When is the amount of force considered ‘unreasonable’

Answer 20

If the amount of force was disproportionate in the circumstances

Question 21

What characteristics are relevant (and which are not) when assessing the ‘reasonableness’ of the force used in self defence

Answer 21

1. Physical characteristics (eg. strength, age, and build)
2. Psychological characteristics like conditions are NOT relevant

Question 22

Is ‘whether the amount of force used was reasonable’ applied equally across all self-defence claims?

Answer 22

No, households have greater leeway, and force will be reasonable so long as it is not GROSSLY disproportionate

Question 23

Definition of a Householder Case

Answer 23

Case where defendant uses force in self-defence or in the defence of another while in or partly in:
- a building or part of a building that is a dwelling
- forces accommodation or
- a vehicle or vessel that is a dwelling

Question 24

Must the defendant be a ‘homeowner’ for it to be a ‘householder case’?

Answer 24

No, they just cannot be a trespasser and must be in or partly in a dwelling

Question 25

If the defendant could have retreated before resorting to force - will this be considered in self-defence claims?

Answer 25

It may be taken into account if they could have, but is not a requirement

Question 26

What allowances are made for those acting 'in the heat of the moment'

Answer 26

The court will consider (when assessing reasonableness of the response) that - a person acting for a legitimate purpose (self-defence) may not be able to weigh up to a nicety the exact measure of any necessary action - evidence that a person did what they honestly and instinctively thought was necessary will be strong evidence that they were acting reasonably

Question 27

Self-Defence: Must a defendant wait until they are attacked to 'fight back' under this defence

Answer 27

No, if they honestly believed the use of force was necessary to ward off an attack - danger will need to be sufficiently specific or imminent here

Question 28

Automatism

Answer 28

A rare criminal defense that can be used when a defendant's mental state is in question. It can be used to argue that the defendant lacked voluntariness, culpability, or was otherwise excused. There are two types of automatism as a legal defense: sane automatism, which includes sleepwalking, fainting, and hypoglycemic attacks, and insane automatism, which includes schizophrenia and other mental diseases.

Question 29

Possible defence available to a diabetic suffering hyperglycaemia:

Answer 29

Insanity Medical conditions raised as grounds for insanity include diabetes when caused by hyperglycaemia (high blood sugar level) but not hypoglycaemia (low blood-sugar level), as this is caused by an external factor. The possible defence available here to a diabetic suffering hyperglycaemia is insanity.

Question 30

Intoxication, Self-defence, and mistake in need for force

Answer 30

For the defence of self-defence to succeed the defendant must use reasonable force in the circumstances. He may be judged based on his honest, albeit mistaken belief as to the circumstances - R v Williams (Gladstone) [1984]. However, where the mistaken belief in the circumstances and the need to defend himself is due to his voluntary intoxication the defence of self-defence must fail - R v O’Grady [1987].

Question 31

If an individual suffers from a psychiatric condition - will this be taken into account when determining whether the amount of force used in self-defence was reasonable?

Answer 31

No - but may form the basis for a downgrading of offence by virtue of diminished responsibility

Question 32

Legal Burden of proving diminished responsibility:

Answer 32

On the defendant, for all elements

Question 33

Legal and Factual Causation in Criminal Trials:

Answer 33

Legal: the actions must be a substantial and operating cause of death and no intervening events Factual: the but for test