Defences Flashcards
How can intoxication arise?
From drink or drugs
What is a fundamental requirement for intoxication to be arguable as a defence?
It is only ever a potential defence if D arguing intoxication caused them to lack MR
What is the difference between a crime of basic and specific intent?
Crime of specific intent is one where recklessness won’t suffice; specific intention is needed (murder/s18)
Where a crime does not require proof of intention, it is classed as a basic intent crime
How does intoxication work as a defence for a basic intent crime?
Distinguish between voluntary and involuntary intoxication
1) Voluntary intoxication will never impact upon their liability for a basic intent crime
* You are deemed to have been reckless by getting voluntarily intoxicated, so this won’t be a defence
2) If the crime is one of basic intent, only involuntary intoxication will aid them as a defence
- Not knowing the strength of drugs does not make it involuntary intoxication
- Taking a non-dangerous drug that has unexpected consequences may count as involuntary intoxication provided the defendant was not reckless in taking the drug.
How does intoxication work as a defence for a specific intent crime?
If D argues that intoxication caused them to lack MR and the crime is one of specific intent, this will acquit them of the specific intent crime, irrespective of whether this intoxication was voluntary or involuntary
What are Dutch courage cases?
This is where D consumes alcohol/drugs to get courage to commit an offence
D cannot rely on intoxication as a defence in these situations
Give a summary of intoxication and basic/specific intent crimes
1) Basic intent crime + voluntary intoxication = no defence
2) Basic intent crime + involuntary intoxication = defence
3) Specific intent crime + voluntary/involuntary = acquittal for specific intent, but likely guilty for a basic intent alternative offence
How does intoxication interact with self-defence?
Generally, for self-defence, D is judged on the circumstances as they honestly believed them to be
However, if D makes a mistake as to the need to defend themselves, due to their voluntary intoxication, they cannot rely on self-defence
How does intoxication interact with the lawful excuse defences for the criminal damage offences?
If D makes a mistake as to whether or not the owner would consent to the causing of damage, due to intoxication (either voluntary or involuntary), they can still rely on a lawful excuse defence
Give an brief overview of self-defence
Self-defence and prevention of crime have been combined into one statute
Self-defence is a complete defence to a criminal charge, if not disproved by prosecution
- There is an evidential burden on D
- Once D has discharged the evidential burden, legal burden of proof returns to prosecution, who must disprove the defence beyond reasonable doubt
What are the 2 elements of self-defence?
1) Did D believe force was necessary?
2) Was the force used reasonable in the circumstances as D perceived them to be?
Explain the 1st element of self-defence (did D believe force was necessary?)
This is assessed subjectively based on D’s beliefs
Generally, D can still rely on self-defence, even if they were mistaken as to the need to use force and even if that mistake was not necessarily a reasonable mistake to make
- Exception is where mistaken belief arises from voluntary intoxication – self-defence not available
- So long as D honestly/genuinely believed force was necessary, this element is satisfied
Explain the 2nd element of self-defence (Was the force used reasonable in the circumstances as D perceived them to be?)
1) Whether the force was reasonable is assessed objectively, but viewed in a subjective context (what the circumstances were as D perceived them)
1a) The reasonableness of the belief is relevant to deciding if it was genuinely held by D
1b) They consider D’s physical characteristics in deciding if force was reasonable
- If D was very slight or frail for instance
- Psychiatric conditions/characteristics are not considered
2) Defence will fail if force used was disproportionate
2a) Exception if there is a householder case; ie where the incident occurred in a dwelling – self-defence can be relied on if force was not grossly disproportionate
- D doesn’t have to be the homeowner
- Cannot occur outside the house or at a workplace
What further principles are important to remember in relation to self-defence?
1) Court will take account of the fact that these decisions are made in ‘the heat of the moment’
- D might not time to make a rational decision
- D may be acting for a legitimate purpose – defence of another, prevention of crime, so court considers what they honestly and instinctively did at the time
2) There is no duty to retreat, but this is a factor considered in deciding whether the force used was reasonable
3) D can use a pre-emptive strike and rely on the defence – wouldn’t negate the availability of self-defence
