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FLK 2: Criminal Liability > Topic 9 - Defences > Flashcards

Topic 9 - Defences Flashcards

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1
Q

What is the general defence of intoxication?

A

Intoxication can negate the mens rea of an offence or influence another legal principle/defence.

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2
Q

What must be established for a defendant to be criminally liable?

A

The actus reus and mens rea of the relevant offence and the absence of a valid defence.

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3
Q

What does the principle of intoxication allow a defendant to do?

A

Use evidence of their intoxication to show that they did not form the necessary mens rea.

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4
Q

In R v Bennett [1995], what must a judge do regarding intoxication evidence?

A

Direct the jury on intoxication if there is evidence that a reasonable jury might conclude the accused did not form the mens rea.

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5
Q

What was confirmed in R v Pordage [1975] regarding mens rea?

A

The question is not whether the defendant was incapable of forming mens rea, but whether they did form it.

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6
Q

When can intoxication operate to negate mens rea?

A

In cases of involuntary intoxication, bona fide medical treatment, non-dangerous drugs, and specific intent crimes.

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7
Q

What are the three questions to ask when addressing intoxication as a defence?

A
  • Is the defendant voluntarily or involuntarily intoxicated?
  • Is the intoxicant dangerous or non-dangerous?
  • Is it a crime of basic intent or specific intent?
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8
Q

What constitutes involuntary intoxication?

A

Intoxication caused by being forced to consume substances or being deceived into consuming them.

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9
Q

What did R v Allen [1988] establish regarding mistaken beliefs about alcohol strength?

A

Mistaken beliefs about the strength of alcohol do not count as involuntary intoxication.

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10
Q

What is the significance of DPP v Majewski [1977] regarding voluntary intoxication?

A

Voluntary intoxication can be a defence for specific intent crimes but not for basic intent crimes.

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11
Q

What is the distinction between basic intent and specific intent offences?

A
  • Basic intent: conviction based on recklessness
  • Specific intent: intention is the only form of mens rea available.
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12
Q

Give examples of basic intent offences.

A
  • Unlawful act manslaughter
  • Assault occasioning ABH
  • Battery
  • Burglary under s 9(1)(b).
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13
Q

Give examples of specific intent offences.

A
  • Murder
  • Theft
  • Robbery
  • Wounding with intent.
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14
Q

What did Lord Elwyn-Jones state regarding self-induced intoxication?

A

No wrong is done by holding a person answerable for injuries caused while intoxicated.

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15
Q

What did the court in R v Hardie [1985] determine about dangerous and non-dangerous drugs?

A
  • Dangerous drugs: likely to cause aggressive or unpredictable behavior
  • Non-dangerous drugs: might allow for intoxication as a defence.
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16
Q

What is the actus reus and mens rea of aggravated criminal damage?

A
  • Actus reus: destroy or damage property
  • Mens rea: intention or recklessness regarding damage and endangerment of life.
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17
Q

How does intoxication interact with self-defence?

A

A drunken mistake about the need for self-defence cannot be relied upon.

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18
Q

In the context of loss of control, how can intoxication be considered?

A

D’s addiction can be considered in assessing the magnitude of the qualifying anger trigger.

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19
Q

What must be established regarding the mens rea in murder cases when intoxication is present?

A

Did D form the mens rea of intention to kill or cause grievous bodily harm despite intoxication?

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20
Q

What must be assessed to determine if D lost self-control?

A

Whether D acted due to a fear or anger qualifying trigger

D’s drug or alcohol addiction can be considered in assessing the magnitude of the qualifying anger trigger if D was taunted about the addiction.

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21
Q

Is an intoxicated person precluded from using the defence of loss of control?

A

No, an intoxicated person can still use the defence

The normal person test applies, meaning that a normal person would still have normal levels of tolerance and self-restraint.

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22
Q

What is required for a defence of diminished responsibility?

A

The defendant must have an abnormality of mental functioning (AMF) arising from a recognised medical condition

The AMF must substantially impair the defendant’s ability to do one of the things in s 2(1A) Homicide Act 1957.

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23
Q

What factors must be taken into account if the defendant’s AMF arises from the alcohol dependency syndrome (ADS)?

A

Extent and severity of the ADS

The AMF must provide an explanation for D’s conduct, even if it is not the only cause.

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24
Q

What was the outcome of R v Richardson and Irwin regarding drunken belief in consent?

A

The Court of Appeal quashed their convictions due to misdirection by the trial judge

The jury should have been allowed to consider whether the defendants believed the victim consented, even if this belief was due to intoxication.

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25
In what situations can a defendant use a statutory defence despite voluntary intoxication?
When there is an honest belief in consent ## Footnote This applies to defences under the Criminal Damage Act 1971 and the Theft Act 1968.
26
What are the two elements of consent in criminal liability?
1. The victim consented or 2. The defendant believed the victim consented ## Footnote The prosecution must prove both that the victim did not consent and that the defendant did not believe in the victim’s consent.
27
When is consent available as a defence to an offence against the person?
Only for assault and battery ## Footnote The status of consent for more serious offences is less clear.
28
What was the ruling in AG's Reference (No 6 of 1980) regarding fights?
It is not in the public interest for people to cause each other actual bodily harm for no good reason ## Footnote Minor struggles may not be treated the same way.
29
What did the House of Lords decide in R v Brown regarding consent?
Consent is not a defence to anything greater than battery unless it falls within accepted exceptions ## Footnote Examples include organised sports and reasonable surgery.
30
Under what circumstances can consent be a defence even when actual bodily harm is inflicted?
If D intended only to commit a battery with the consent of the victim and did not see the risk of inflicting actual bodily harm ## Footnote If D intended to cause actual bodily harm, consent is not available as a defence.
31
What public interest exceptions allow consent for offences resulting in actual bodily harm?
* Medical treatment * Sport * Horseplay * Tattooing, body piercing, and personal adornment * Sexual gratification/ accidental infliction of harm
32
What did R v Wilson establish regarding consent for personal adornments?
Branding is lawful if consented to by the victim ## Footnote This case contrasts with R v Brown.
33
What does the Domestic Abuse Act 2021 state about consent in relation to sexual activity?
A person cannot consent to the infliction of harm that results in ABH or more for the purposes of obtaining sexual gratification ## Footnote The only exception is consenting to the risk of acquiring a sexually transmitted infection.
34
What was established in R v Dica regarding consent and sexually transmitted diseases?
If the complainant consents to the risk of contracting HIV, the defendant may have a defence ## Footnote Deliberate infection with HIV is considered grievous bodily harm.
35
What is the defence of reasonable chastisement in relation to children?
A parent has a defence when applying reasonable force to a child ## Footnote This is outlined in R v Hopley.
36
What is the legal status of consent to deliberate HIV infection?
It is not possible to consent to deliberate HIV infection because HIV is considered grievous bodily harm.
37
What defence does a parent have when applying force to a child?
A parent has a defence of reasonable chastisement in applying force to a child.
38
Which article of the European Convention on Human Rights challenges the reasonable chastisement defence?
Article 3, which states that no one shall be subjected to torture or inhuman or degrading treatment.
39
What factors must a jury consider regarding a parent's use of force on a child?
* The nature and context of the parent's behaviour * The duration of the behaviour * The physical and mental consequences for the child * The reasons for the punishment
40
What did Lord Burnett of Maldon state about extending categories of exceptions in law?
New exceptions should not be recognised on a case by case basis, save perhaps where there is a close analogy with an existing exception.
41
What does self-defence encompass?
* Protecting oneself * Protecting someone else * Protecting property * Preventing a crime * Assisting in the arrest of an offender
42
What is the outcome if the self-defence plea is successfully pleaded?
It results in an acquittal.
43
What is the statutory defence related to self-defence found in the Criminal Law Act 1967?
Section 3 allows reasonable force in the prevention of crime or assisting in lawful arrest.
44
What does the Criminal Justice and Immigration Act 2008, section 76 clarify?
It governs the second limb of the self-defence test regarding the reasonableness of force used.
45
What does section 76 of the CJIA 2008 identify?
* Common law defence of self-defence * Common law defence of defence of property * Defence under section 3(1) of the Criminal Law Act 1967
46
What is a key requirement for self-defence?
Self-defence can only be used to protect against imminent attack.
47
What does section 3 of the Criminal Law Act 1967 state?
A person may use such force as is reasonable in the circumstances in the prevention of crime.
48
What must a defendant demonstrate to rely on self-defence?
* Honest belief that the use of force was necessary * Objective reasonableness of the force used
49
Is there a duty to retreat in English law regarding self-defence?
No, there is no duty to retreat.
50
What does the case R v Bird (1985) highlight about self-defence?
There is no rule that a person attacked is bound to run away if they can.
51
What is anticipatory self-defence?
A defendant may make the first blow and still rely on the defence if they believe it is necessary.
52
What must the anticipated attack be for anticipatory self-defence to apply?
The anticipated attack must be imminent.
53
In R v Forrester (1992), what was the outcome regarding self-defence for a trespasser?
F was allowed to rely on self-defence if W used excessive force in attempting to remove him.
54
What did the Court of Appeal state in R v Rashford (2005) about self-defence?
Self-defence is not automatically precluded if the defendant was the initial aggressor.
55
What is the significance of R v Gladstone Williams regarding mistaken belief in self-defence?
The defendant's actions are judged according to the facts as they honestly believed them to be.
56
What happens if a mistaken belief in self-defence is due to voluntary intoxication?
The defendant will not be able to rely on their mistake.
57
What does R v O'Connor establish regarding intoxication and mistaken belief?
Mistaken belief due to voluntary intoxication cannot be relied upon in self-defence.
58
What must the jury decide regarding the defendant's belief in the necessity of using force?
Whether the defendant honestly believed that it was necessary for them to use force to defend themselves.
59
In R v Keane and McGrath, what does the Court of Appeal state about self-defence?
'Self-defence could arise in the case of the original aggressor, but only where the violence offered by the victim was so out of proportion to what the original aggressor did that the roles were effectively reversed.'
60
Can force be used against an innocent third party?
Yes, the court confirmed that this defence was capable of extending to the use of force against an innocent third party to prevent a crime being committed by someone else.
61
What is the legal standard for the level of force used in self-defence?
The level of force must be reasonable.
62
What differentiates non-'householder' cases from 'householder' cases in the context of self-defence?
'Householder' cases require the force to not be grossly disproportionate, whereas non-'householder' cases require the force to not be disproportionate.
63
What does CJIA 2008, s 76(3) state regarding the reasonableness of force?
The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be.
64
What is the effect of a mistaken belief in self-defence according to CJIA 2008, s 76(4)?
If it is determined that D genuinely held a mistaken belief, D is entitled to rely on it for the purposes of subsection (3), whether or not it was mistaken.
65
In self-defence, what does s 76(6) state about the reasonableness of force used?
The degree of force used by D is not to be regarded as having been reasonable if it was disproportionate in those circumstances.
66
True or False: A person's actions in self-defence must be judged in a calm analytical atmosphere.
False
67
What must the jury consider regarding the defendant's actions 'in the heat of the moment'?
That the defendant may not be able to weigh to a nicety the exact measure of any necessary action.
68
What is the significance of R v Palmer regarding self-defence?
It established that evidence of a person's actions based on their honest and instinctive belief can constitute strong evidence that only reasonable action was taken.
69
What constitutes a 'householder case'?
A case where the defendant relies on the common law defence of self-defence, uses force while in or partly in a dwelling, is not a trespasser, and believes the victim to be a trespasser.
70
What does s 76(5A) of the CJIA 2008 state regarding householder cases?
The degree of force used by D is not to be regarded as reasonable if it was grossly disproportionate in those circumstances.
71
What two-part test must the jury use in householder cases according to R v Ray?
* Determine if the force was grossly disproportionate * If not grossly disproportionate, then determine if the force was reasonable.
72
What may influence the jury's assessment of reasonable force used by a householder?
* The shock of encountering an intruder * The time of day * The presence of other help * The desire to protect the home and its occupants * The vulnerability of the occupants * The conduct of the intruder
73
Fill in the blank: The Criminal Justice and Immigration Act 2008 works on the assumption that what is reasonable will depend on the circumstances in which the force is used and differentiates between _______ and 'householder' cases.
non-'householder'
74
What is included in the definition of 'a dwelling'?
Places of work and internal access routes ## Footnote A dwelling can include parts of a building where a person resides and works, allowing movement between these spaces.
75
What must be true for a defendant to not be considered a trespasser at the time force is used?
The defendant must not be a trespasser and must believe the victim to be entering as a trespasser.
76
What is a 'householder case' according to CJIA 2008?
A case where the common law defence of self defence applies, force is used in a dwelling, the defendant is not a trespasser, and believes the victim is a trespasser.
77
What are the four criteria that define a 'householder case'?
1. Common law defence of self defence 2. Force used in a dwelling or forces accommodation 3. Defendant is not a trespasser 4. Defendant believes victim is a trespasser
78
What does subsection (8B) state regarding internally accessible parts of a building?
If one part is a dwelling and another part is a place of work, both are treated as a dwelling for the purposes of subsection (8A).
79
What must be true for a part of a building to be treated as forces accommodation?
It must be living or sleeping accommodation for the defendant and internally accessible from a place of work.
80
True or False: A person who derives title from a trespasser cannot be considered a trespasser.
False
81
Fill in the blank: In subsection (8F), 'building' includes a _______.
vehicle or vessel.
82
According to subsection (8E), what does not prevent a person from being a trespasser?
Deriving title from a trespasser or having permission from a trespasser.

FLK 2: Criminal Liability (11 decks)

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