Flashcards in Intoxication and Consent Deck (28):
Prosecution need to prove beyond reasonable doubt that the defendant has committed the AR with the necessary MR. If, due to intoxication the defendant did not form the MR, then defendant will be entitled to a full acquittal under certain circumstances.
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 that the accused did not form the mens rea.
R v Beard
Intoxication can only be a defence if it renders the accused incapable of forming the MR.
Sheehan and Moore
Criticised Beard as incompatible with the subjective test set out in the Criminal Justice Act 1967, s.8.
R v Pordage
The issue is not whether the defendant was incapable of forming the MR, but whether, even if still capable, he did form it.
R v Kingston
Ratio: If a defendant formed the MR when intoxicated, that claim that he would not have formed the MR if sober is irrelevant.
Example of involuntary intoxication.
Facts: K admitted to paedophiliac homosexual tendencies which he managed to keep under control. Following a business dispute, P arranged to blackmail K by photographing and audiotaping him in a compromising situation. P lured a 15 year old boy to his flat where he gave him sedatives and cannabis. P invited K to his flat and gave him some coffee. He then showed K the naked boy and incited him to abuse him. K did and was photographed and taped doing so. He claimed P had drugged him and he would not have acted in this was if he had not been intoxicated. HoL held K was liable since if he had formed the MR in his intoxicated state it was no defence to plead that he would not have committed the offence when sober.
R v Allen
Where the defendant is aware that he is drinking alcohol, but is mistaken as to the strength of the alcohol, this will not count as involuntary intoxication.
DPP v Majewski
Ratio: Voluntary intoxication can be a defence to a charge of specific intent, where D’s intoxication negated the MR required for the offence charged. However, voluntary intoxication is not a defence to a charge of basic intent.
Facts: D attacked a pub landlord in a brawl and was charged with assault occasioning ABH. Trial judge refused to direct the jury that the defendant’s drunkenness may constitute a defence. On Appeal, the HoL held that voluntary intoxication can be a defence to a charge of specific intent, where D’s intoxication negated the MR required for the offence charged. However, voluntary intoxication is not a defence to a charge of basic intent.
R v Coley, McGhee and Harris
In cases of voluntary intoxication, a jury should consider whether the defendant would have seen the risk had he not been intoxicated. If he would have foreseen the risk, the first limb of the R v G test for recklessness is satisfied.
R v Heard
Ratio: A specific intent crime is one which required proof of a state of mind addressing something beyond the prohibited act itself, namely its consequences.
Note: this case is criticised in academic debate.
R v Hardie
Ratio: Drugs should be divided into two categories:
- Those liable to cause to user to become aggressive, dangerous or unpredictable (should be classed with alcohol)
- Sedative or soporific drugs
Facts: D took Valium. When he later started a fire, his defence was that the Valium had negated his MR. At first instance, the judge directed that drugs were to be treated as drink and he was convicted. CoA allowed his appeal on the basis that the Valium was taken for calming the nerves, and there was no evidence that the appellant knew it would make him aggressive or incapable of appreciating risks to other or other side effects so as to make its administration itself reckless.
R v Asmelash
A drunken defendant is not precluded from relying on the defence of Loss of Self-Control.
R v Richardson and Irwin
Ratio: If the jury is satisfied that V consents to the accidental infliction of an in injury, consent would be a defence.
Facts: Defendants were students who had been drinking in a bar before returning to one of their flats. They were engaging in horseplay during which the defendants dropped the victim over a balcony where he fell 10-12 feet. At first instance they were convicted. On appeal their convictions were quashed on the basis that there had been misdirection from the trial judge. Judge stated that if the jury were satisfied that V had in fact consented to the accidental infliction of injury, this would be a defence and that the jury should have been allowed to consider whether the defendant believed that V consented, even if the defendants wrongly believed that V consented due to their intoxication.
R v Aitken
If the jury is satisfied that V consents to the accidental infliction of an in injury, consent would be a defence.
Jaggard v Dickinson
Where there is a statutory defence that allows for an honest belief, the defendant will be able to use this defence even if his belief is due to his voluntary intoxication.
AG’s Reference (No 6 of 1980)
Ratio: Consent is only available as a defence to assault and battery, not ABH.
Facts: Two boys decided to settle an argument with a fight and one sustained a bleeding nose and bruises. The other was held guilty for Assault occasioning ABH.
R v Brown
Case concerned sadomasochistic homosexuals who caused injuries to each other for sexual pleasure. Charged with offences of assault occasioning ABH and assault occasioning GBH. Defence of consent was not applicable.
R v Meachen
Consent is available as a defence, even where actual ABH or worse is caused provided the defendant intended only to commit a battery with the consent of the victim and did not see the risk of inflicting ABH.
R v Barnes
Ratio: In organized sport, criminal prosecution should be reserved for those situations where the conduct was sufficiently grave properly to be categorised as criminal. If what occurred went beyond what a player could reasonably be regarded as having accepted by taking part in the sport, this would indicate that the conduct was not covered by the defence of consent.
Facts: V sustained a serious leg injury as a result of a late tackle by D in a football match. Jury needed to consider whether the contact had been so obviously late and/or violent that it was not to be regarded as an instinctive reaction, error or misjudgement in the heat of the game.
R v Billinghurst
Ratio: Players consent to force of a kind which could reasonably be expected to happen during a game.
Facts: B punched G and fractured his jaw during a rugby match in an off-the-ball incident. He was charged under OAP 1861, s 20 because although punching was commonplace in matches, this incident occurred off-the-ball and so not within the scope of implied consent.
R v Jones
Ratio: In situations concerning horseplay, the defence of consent can be raised if there is a prior pattern of behaviour.
Facts: Some boys at a youth club tossed two other boys into the air, resulting in one suffering a ruptured sleep and the other a broken arm. Court held that the defence of consent could be considered as the boys had always indulged in rough horseplay.
R v Wilson
Ratio: Tattooing and personal adornment can be consented to.
Facts: D used a hot knife to brand his initials onto the buttocks of his wife, at her request. He successfully argued consent.
R v Dica
If the complainant consents to the risk of contracting HIV through having sexual intercourse, the defendant does have a defence to a charge under the OAPA 1861, s 20. However, you cannot consent to deliberate HIV infection.
R v Boyea
Ratio: Example of consent not being allowed as a defence.
Facts: D inserted his fist into V’s vagina. D claimed he did not intend to cause the level of harm sustained and that it was done for the purpose of sexual gratification. Consent was not allowed as a defence.
R v Emmett
Ratio: Example of consent not being allowed as a defence.
Facts: D tied a plastic bed over V’s head to increase her sexual pleasure. He also, with her consent, poured lighter fuel on her breasts and set fire to it. Consent was not allowed as a defence.
R v Slingsby
Ratio: Example of consent being a defence.
Facts: D inserted his fist into V and injured her with a ring on his finger. There was no intention to cause harm and D did not see the risk. V died of septicaemia resulting from cuts caused by the ring. D was acquitted of manslaughter as he lacked the MR for assault of battery.
R v Hopley
A parent has a defence of reasonable chastisement in applying force to a child.