Defences

Question 1

Intoxication that negates the MR

Answer 1

If due to intoxication, the defendant did not form the necessary MR, then under certain circumstances, he will be entitled to a full acquittal.

Question 2

Judge is obliged to direct jury on intoxication where a reasonable jury might conclude that there is a real possibility that the defendant did not form the MR

Answer 2

R v Bennett

Question 3

Question is not whether D was incapable of forming the MR, but whether, even if still capable, he did actually form it

Answer 3

R v Pordage

Question 4

If prosecution proves that D did form the MR, despite their intoxication, it will not be a defence to argue that they wouldn’t have done it if not drunk

Answer 4

R v Kingston (raped boy after being drugged)

Question 5

Intoxication can negate the MR

Answer 5

In any crime if involuntary intoxication or if voluntary intoxication but in bona fide pursuance of medical treatment or by non-dangerous drugs taken voluntarily

In specific intent crimes

Question 6

Burden of proof for intoxication

Answer 6

Evidential burden on D to raise the issue, prosecution must prove beyond all reasonable doubt that D formed the MR

Question 7

Involuntary intoxication - defence available for all crimes (specific and basic intent)

Answer 7

R v Kingston (coffee laced)

R v Allen - drinking alcohol voluntarily but mistaken as to strength is not involuntary

Question 8

A defendant who becomes intoxicated by taking prescription dugs according to the prescription is involuntarily intoxicated…

Answer 8

…but if he exceeds the prescription his intoxication may be voluntary

Question 9

A defendant will also be involuntarily intoxicated if the drug he has taken is not considered dangerous

Answer 9

Defence still available

Question 10

Where it is common knowledge that a drug is liable to cause the taker to become aggressive or to do dangerous or unpredictable things, the drug is to be classed with alcohol. Where there is no such common knowledge (sedative or soporific drugs) different rules apply

Answer 10

R v Hardie

Question 11

Voluntary intoxication could be a defence to a charge of specific intent where the defendant’s intoxication negated the MR. It will not be a defence to a charge of basic intent

Answer 11

DPP v Majewski

Question 12

Illegal drugs will treated in the same way as alcohol

Answer 12

R v Hardie

Question 13

Majewski - basic / specific intent

Answer 13

Basic intent - D could be convicted on the basis of recklessness as to the consequences or where no foresight of the consequences is required

Specific Intent - where intention is the only form of MR

Question 14

R v Heard - basic/specific intent

Answer 14

Specific intent crimes require intention to bring about a particular result or consequence

Question 15

Specific intent

Answer 15

Murder, s18 OAPA, theft, criminal damage where it is only alleged that the defendant intended the damage and intended to endanger life by the damage caused, an attempt of an offence requiring specific intent

Question 16

Basic Intent

Answer 16

s20 OAPA, assault occasioning ABH, Assault or battery, criminal damage where either intention or recklessness is alleged.

Question 17

Intoxication and loss of control

Answer 17

When deciding whether the normal person might do as the defendant did, the reaction must be measured against that of a sober person - R v Morhall (but drew distinction between D who is taunted about addiction and D who is simply intoxicated)

AG for Jersey v Holley - neither intoxication nor dependency can be taken into account when considering whether D exercised normal self-control

Question 18

Intoxication and diminished responsibility

Answer 18

Intoxication is no bar to diminished responsibility so long as D is suffering from an abnormality of mental functioning as required in the Act

Question 19

Duress and Intoxication

Answer 19

If D is arguing duress and claims he made a mistake because he was intoxicated, he cannot rely on that mistake because he must have a reasonable belief that he was under threat and the reasonable man is never drunk

Question 20

Self defence and intoxication

Answer 20

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

Question 21

Consent and intoxication

Answer 21

R v Richardson & Irvin:

If jury satisfied that V had in fact consented to the accidental infliction of injury, this would be a defence

The jury should be allowed to consider whether the defendant believed that V consented even if the defendant wrongly believed V due to their intoxication

Question 22

Statutory defences

Answer 22

Where a statutory defence allows for honest belief, defendant will be able to use this defence even if belief is due to his voluntary intoxication - Jaggard v Dickinson

Question 23

Consent - two elements

Answer 23

1) Victim consented
2) Defendant believed that the victim consented

Prosecution must prove that the victim did not consent and that the defendant did not believe in his consent - R v Donovan

Question 24

General rule: consent only available as defence to assault and battery

Answer 24

AG’s Ref (No6 of 1980), confirmed in R v Brown

Question 25

Consent available for s47 ABH if defendant only intended to commit a battery with the consent of the victim and did not see the risk of inflicting ABH. If D intended to cause ABH, consent is not available (unless an excepted category)

Answer 25

R v Meachen (anal sex - didn't see the risk of inflicting ABH). Unclear whether this will apply to being reckless as to causing ABH with victim's consent

Question 26

Medical treatment can be consented to

Answer 26

Even if it causes GBH/death

Question 27

Sport

Answer 27

Any incidental injury whilst playing sport will not be an offence as participants consent to incidental injury R v Barnes - Conduct must be sufficiently grave to be categorised as criminal. In highly competitive sports, conduct outside the rules might be expected to occur in the heat of the moment R v Billinghurst - players are deemed to consent to a force 'of the kind which could reasonably be expected to happen during a game' (punching jaw in rugby was consented to)

Question 28

Horseplay (criticised)

Answer 28

R v Jones - boys tossed other boy in the air, resulting in a ruptured spleen. Consent available. R v Aitken (drunk RAF soldiers setting fire to each other in fire-resistant suits) R v Richardson and Irwin - D held friend over balcony, believing he was consenting and dropped him. Conviction quashed.

Question 29

Sexual gratification/accidental infliction of harm/personal adornment

Answer 29

Meachen - there are no set rules, look at facts R v Brown - considered nature of act - consent not available R v Boyea - fisted girlfriend not intending to cause level of harm = not a defence R v Slingsby - fisted girlfriend, injury caused by ring - no intention to cause harm = acquitted Emmett - tied plastic bag over head and poured lighter fuel over breasts and set fire to them with her consent - not a defence R v Wilson - branded wife with hot knife at her request; no difference to tattooing

Question 30

Sexually transmitted diseases

Answer 30

R v Dica - if complainant consents to risk of contracting HIV, D has a defence, but it is not possible to consent to the deliberate infliction of HIV

Question 31

Lawful correction of a child (now open to challenge under Art 3 ECHR)

Answer 31

R v Hopley - parent has defence of reasonable chastisement R v H - jury must consider nature and context of parent's behaviour, its duration, physical and mental consequences for the child and the reasons for punishment

Question 32

Only deception as to nature or quality of the act of the accused's identity will vitiate consent; deception as to the accused's attributes, status or qualification will not

Answer 32

R v Richardson (dentist struck off - deception as to attributes. Conviction quashed) R v Tabassum (breast cancer - deception as to quality of the act)

Question 33

Consensual sexual intercourse is not consent to the risk of consequent disease, especially where the defendant concealed the fact that he was infected

Answer 33

R v Dica

Question 34

In cases where consent can provide a defence to an OAPA, an honest belief in consent will also be a defence

Answer 34

R v Konzani

Question 35

If defendant believes victim consented, he will be allowed the defence, even if the victim does not consent. This is the case even where the mistake was due to intoxication

Answer 35

R v Richardson & Irwin

Question 36

Self- defence

Answer 36

Common law - complete defence for those who use force to defend themselves or another s3 CLA 1967 - a person may use such force as is reasonable in the circumstances in the prevention of crime, in effecting or assisting a lawful arrest Now put on statutory footing in CJIA 2008 Threat of attack must be actual or imminent

Question 37

Self defence can be used in the protection of property

Answer 37

R v Hussey

Question 38

Self defence cannot be used against threats to one's peace of mind/psychological harm

Answer 38

R v Bullerton

Question 39

D must honestly believe use of force was necessary (subjective) and the level of force must be necessary (objective). Defendant will be judged on the facts as he subjectively believed them to be (e.g. real gun when actually fake)

Answer 39

R v Gladstone & Williams | s76(3)-(4) CJIA 2008

Question 40

If mistaken belief due to voluntary intoxication of the defendant, he will not be able to rely on his mistake for any crime. If the reasonable man would form the same conclusion, defence is available

Answer 40

R v O'Connor; s76(5) CJIA 2008

Question 41

There is no duty to retreat

Answer 41

R v Bird - demonstration by D that he doesn't want to fight is the best evidence that he was acting reasonably and in good faith

Question 42

Defendant may strike first blow and still use defence - anticipatory self-defence

Answer 42

Beckford v R

Question 43

Anticipated attack must be imminent

Answer 43

Devlin v Armstrong

Question 44

Self defence may be used by an antagonist (here by a trespasser)

Answer 44

R v Forrester - allowed to rely on self-defence as W used excessive force to remove him

Question 45

Self-defence is not automatically precluded in a situation where the defendant was the initial aggressor and the victim retaliated. Jury will decide whether or not defendant honestly believed it was necessary for him to use force and whether that force was reasonable

Answer 45

R v Rashford

Question 46

Jury will decide whether foce was objectively reasonable in the circumstances as the defendant subjectively believed them to be

Answer 46

R v Owino

Question 47

Jury must bear in mind that the defendant may have acted in the heat of the moment

Answer 47

AG's Ref for Northern Ireland (No1 of 1975) Palmer v T

Question 48

Self-defence is an all or nothing offence. Complete defence, but if it fails in any element, the defence fails completely

Answer 48

R v Clegg

Question 49

Children under 10 are presumed to be incapable of being guilty of an offence (doli incapax)

Answer 49

s16 Children and Young Persons Act 1963

Question 50

Doli incapax can never apply to children over 10

Answer 50

R v T

Question 51

Duress is only available where there is a nexus between the threat and the crime

Answer 51

R v Cole (Cole threatened by moneylenders so robbed bank. Duress not available as moneylenders had not stipulated that he commit robbery to meet their demands)

Question 52

R v Hasan - duress

Answer 52

1) There must a threat to cause death or serious personal injury. 2) Threat must be directed against D or his immediate family or someone close/whom D would regard himself as responsible for

Question 53

Duress not available for threats against property

Answer 53

M;Growther; DPP for NI v Lynch

Question 54

Defendant may be able to regard himself as responsible for those he had never met before

Answer 54

R v Shayler

Question 55

Duress - D must believe he has been threatened

Answer 55

R v Graham - belief must be reasonable R v Martin - belief must be honestly held, even if unreasonable R v Hasan - D must genuinely believe in efficacy of threat, but must be reasonable as well. If the defendant makes a mistake, it must be a reasonable mistake

Question 56

Duress - would a reasonable person of reasonable firmness, sharing the characteristics of the defendant have responded in the same way?

Answer 56

Physical attributes (e.g. age, pregnancy) may be taken into account Low IQ cannot be considered but a recognised mental illness has been allowed- R v Bowen

Question 57

Duress - proportionality is important

Answer 57

Abbott v R - the more horrible the killing, the heavier the evidential burden on the accused arguing duress

Question 58

Criminal offence must have been directly caused by the threats

Answer 58

R v Valderrama-Vega - cumulative effect of all the threats

Question 59

Duress only available where no evasive action could be reasonably taken. BUT failure to take such an opportunity will not always prevent the defence

Answer 59

R v Hudson & Taylor | BUT described as 'indulgent' in Hasan

Question 60

D may not be able to rely on duress to which he has voluntarily laid himself open e.g. joining a gang

Answer 60

R v Sharp - joined gang knowing they used firearms - no defence R v Shepherd - defence because D could not have foreseen the possibility of violence being used - no knowledge of propensity to violence

Question 61

Objective test for knowledge of possible coercion - D foresaw or ought to have foreseen the risk of being subjected to any compulsion by threats of violence

Answer 61

R v Hasan

Question 62

Association need not be with criminals to prevent duress defence

Answer 62

R v Ali

Question 63

Duress not available to a person charged with murder as a principal offender or as an accessory

Answer 63

R v Howe

Question 64

Duress not available on a charge of attempted murder

Answer 64

R v Gotts

Question 65

Necessity is not a defence to murder

Answer 65

R v Dudley and Stevens

Question 66

Southwark v Williams

Answer 66

Defence of necessity not allowed to homeless person for trespass to unoccupied housing

Question 67

Fireman responding to 999 not allowed defence of necessity for driving through red light

Answer 67

Buckoke v GLC (under statute emergency services can now go through red lights)

Question 68

Exceptions

Answer 68

s52(b) CDA 1971 Medical cases where in best interests of victim - Gillick v West Norfolk HA; Re F

Question 69

Gang threatened to kill him so drove over pavement

Answer 69

Necessity available - R v Willer

Question 70

Dangerous driving as thought two policemen was assassins - necessity available

Answer 70

R v Conway

Question 71

M drove whilst disqualified as wife threatened she would commit suicide if he didn't

Answer 71

Necessity available - R v Martin

Question 72

Test for duress of circumstances:

Answer 72

R v Martin: Was the accused, or may he have been, impelled to act as he did because, as a result of what he reasonably believed to be the situation, he had good cause to fear that otherwise death or serious physical injury would result. Secondly, would a sober man of reasonable firmness, sharing the same characteristics of the accused, have responded to that situation by acting the same? Threat must be of death or serious physical violence

Question 73

Took gun off friend to stop him murdering - defence available where accused reasonably believed action was necessary to prevent death or serious injury to himself or another and he objectively acted reasonably and proportionately to the threat

Answer 73

R v Pommell

Question 74

Necessity not available to prevent psychological injury

Answer 74

R v Baker and Williams

Question 75

Hijacked plane to avoid deportation and execution

Answer 75

R v Abdul-Hussain - necessity available (but issues of proportionality); imminent threat not immediate