Criminal Law – 4ed (2024) Chapter 9 Defences

• Defences are assertions explaining why the accused should not be convicted, such as mistaken identity or lack of mens rea.
• Self-defence stands out among formal defences.
• Self-defence, if successful, leads to the defendant's acquittal.
• Intoxication, from alcohol or drugs, significantly influences crime commission.

Intoxication as a defence?

• Intoxication frequently underlies offending, including violence, public disorder, and driving offences, often lowering inhibitions causing aggressive behaviour.
• Intoxication may serve as a defence only when it results in the inability to form mens rea.
• An accused claiming they committed an offence while intoxicated, or acted out of character due to intoxication, will not have a valid defence.
• In R v Kingston, the defendant, drugged unknowingly, indecently assaulted a boy and was still found guilty; a drugged intent is still an intent.
• Intoxication is relevant when the defendant is so intoxicated that they completely lack mens rea; a successful intoxication defence means the prosecution failed to prove mens rea.

Type of Offence

• When considering intoxication:
  • Determine the intoxication's voluntariness, as rules vary accordingly.
  • Identify the type of offence: basic or specific intent.
• Specific intent offences require intention as mens rea; recklessness is insufficient, as seen in murder.
• Basic intent crimes allow mens rea to be fulfilled with less than intent, such as recklessness for assault occasioning actual bodily harm.
• An intoxication defence is more beneficial if the offence is of specific intent.
• Courts limit this scope to prevent excessive success, categorising sexual offences as basic intent.
• R v Heard states there’s no universally logical test for distinguishing crimes where voluntary intoxication can be a defence from where it cannot.
• Categorisation is achieved on an offence by offence basis.

Voluntary Intoxication

• Voluntary intoxication is evident when someone drinks pints of beer or uses cocaine to stay awake.
• Situations like underestimating alcohol's effect or mixing it with medication are less clear.
• In DPP v Majewski, being voluntarily intoxicated excludes arguing lack of mens rea for basic intent offences.
• According to Majewski, voluntarily reducing oneself to an intoxicated state constitutes recklessness that serves as mens rea for basic intent crimes, meaning there is no valid defence

Voluntary Intoxication: Specific vs. Basic Intent

• For specific intent crimes like murder, a defendant can argue voluntary intoxication to demonstrate a complete lack of mens rea
• Rv Lipman showed that extreme intoxication causing a defendant to kill someone while hallucinating absolved them of murder because murder cannot be committed recklessly.
• Because manslaughter is a crime of basic intent, the defendant in Lipman, despite not being guilty of murder, was found guilty of manslaughter.
• A defendant not guilty of a specific intent offence due to intoxication is likely guilty of a lesser, basic intent offence.

Summary of Voluntary Intoxication

• Voluntary Intoxication is not a defence where the defendant still meets all elements of mens rea of the relevant offence
• Complete intoxication causing inability to form intent is a complete defence of crimes of specific intent
• Intoxication is not a defence to basic intent crimes regardless of the defendant's mens rea impairment

Involuntary Intoxication

• Involuntary intoxication occurs when someone's drink is spiked or they take a prescribed drug with unexpected effects.
• R v Hardie indicated that involuntarily taking a non-dangerous drug, leading to unforeseen effects, can result in acquittal.
• The jury must consider whether the act of taking the drug was reckless.
• Each involuntary intoxication case is fact-dependent, especially concerning prescribed drugs taken without medical consultation.
• Involuntary intoxication is a potential defence for any offense, basic or specific, as long as the defendant lacked mens rea.
• If the mens rea is clear, the defence is invalid.

Summary of Involuntary Intoxication

• Straight forward flowchart which is summarised as, if the involuntary intoxicated defendant has mens rea then they are guily and if they don't they are not guilty

Dutch Courage

• Intentionally consuming alcohol or drugs to embolden oneself to commit a crime negates the intoxication defence regarding mens rea, known as 'Dutch courage'.
• In Attorney General for Northern Ireland v Gallagher, the accused consumed a bottle of whiskey before killing his wife and the prior intention to kill overrides any mens rea defence.
• Public policy prevents individuals from using intoxication deliberately as a means to avoid conviction.

Intoxication and Mistake

• An intoxication defence is invalid for basic intent crimes like simple assault, even with a mistake about circumstances.
• R v O'Grady established that a mistake due to intoxication is not a valid defence, regardless of specific or basic intent.
• Self-defence fails if a defendant's mistaken belief is due to voluntary intoxication.
• The defendant also has right to self-defence if their reaction is of a sober person

Intoxication and Lawful Excuse

• Defendants may use a defence of lawful excuse for basic criminal damage if they thought the owner would have consented to the damage had they known the circumstances (Jaggard v Dickinson).
• Although contradictory, if a defendant commits criminal damage believing the owner would consent, they will not be found guilty of the offence.
• If the defendant punches their victim, thinking they are under attack, then they will be guilty of assault.

Self-defence

• Actions to safeguard oneself, property, or others from attack or prevent crime may be deemed justifiable
• Effective self-defence results in acquittal.
• Section 3 clarifies the use of reasonable force to prevent crime or assist in lawful arrests.
• The CJIA 2008, section 76, clarifies legal principles of self-defence is successful, the accused will have a complete defence and must be acquitted.
• Self-defence can be used to avoid any relevant offence, as long as force used is reasonable and defence is successful, the accused will have a complete defence and must be acquitted.

Evidential Burden

• Those pleading self-defence possess an evidential burden, raising it during the trial.
• Prosecution disproves the defence beyond reasonable doubt to avoid acquittal.

Was Force Necessary?

• The initial determination is whether force was warranted, excluding revenge or retaliation.
• Self defence is for to defend themselves or another from attack or to prevent the commission of a criminal offence.
• Force necessity is assessed subjectively based on the defendant's honest belief.

Mistaken Belief

• A defendant mistakenly believing force is necessary will not lose the defence if the belief was honestly held - Williams (Gladstone).
• A defendant is judged on facts as they honestly believed them to be, despite any mistake.
• Unreasonable mistakes can still be honestly held.
• CJIA 2008 states they are entitled to relief, regardless of mistake being honest.

Mistaken Belief Due to Voluntary Intoxication

• Voluntary intoxication-induced mistakes do not validate self-defence (R v O'Grady). The CJIA provides that a defendant cannot rely on any mistaken belief attributable to intoxication that was voluntarily induced.

Was the Amount of Force Used Reasonable?

• Key factor is whether the force used was reasonable in the circumstances.
• Judged by the jury based on the seriousness of the offence and the degree of force used. Whether the court considers that some one acted reasonably in each situation will depend upon a number of factors, including the seriousness of the offence - this includes the degree of force used to defend his property.
• CJIA 2008 confirms defendant is judged on the facts as they believed them, saying reasonable force depending on state of mind.
• Self Defence = Defendant honestly believed force was necessary + Defendant used reasonable force in the circumstances

What Does 'Reasonable' Mean

• Degree of force used is not reasonable if disproportionate (CJIA 2008).
• Crown Prosecution accounts for striking balance between promoting responsible citizenry and deterring vigilantism.
• Greater danger to the greater the force to respond. .
• Rv Clegg - first shots are self defence, final shots that had broken through was excessive force.

Who Decides Reasonableness?

• Reasonable force is objecitve meaning the defendant thought they used it isn't relevant.
• Degree of force is decided by the magistrates.
• Thus question asked if the degree is the circumstances honestly and geniuely believed is appropriate by the court.

Defendant's Characteristics

• Admissable - Physical characteristics.
• Inadmissable - Psychiatric characterisitcs.
• R v Marting - paranoid personality disorder is no admissible.

Householder Cases

• Public outcry led to provision added to CJIA 2008.
• Degree of Force used by defendant is not have been reasonable in the circumstances as they belived them to be if it was grossly disproportionate (s 76(5A)).
• In other words, householder may have used more than proportionate force, provided that they haven't gone completely over the top.
• This is when the homeowner or another uses force in self-defence in a dwelling

When is Force 'Grossly Disproportionate'?

• If force is grossly disproportionate then it because unawful.
• If the use of forse will be viewed by a jury as a question of fact.

Summary of Householder Cases

• If proportionate in D in circumstances as believed to be - force is resonable - self-defence
• If disproportionate in circumstances as believed to be - force may be reasonable - may be self defense.
• If grossly disproportionate in circmstances as believed to be - force is not reasonable - not delf defence.

No Duty to Retreat

• The defendant is able to use the force even if there was a possibility that the D could have retreated (CJIA 2008, s 76(6A)).

The 'Heat of The Moment'

• Person may had acted differently with the benefit of hindisght.
• Defendant is under a lot of pressure to decide if they have significant force to apply at the same time.
• Defendant doesn't always make correct decisions in the "moment of unexpected anguish".

Pre-Emptive Strikes

• Defendant does what need to be done to keep themselves from harm and they can assess circumstances to justify what they believe they about to do.

Summary:

• Voluntary, limited or Dutch courage cannot be rlied on by D
• Involuntary may be relied upon if mens rea isn't shown by D
• Mistake is not allowed.