Defences

• Voluntary Intoxication with Basic Intent Offences:

  • recklessness is enough to constitute the mens rea
  • so intoxication cannot be considered a defence
  • DPP v Majewski 1976:
  • "if there were no penal sanction for any injury inflicted under the complete mastery of drink or drugs, voluntarily taken, the social consequences would be appalling"
• Voluntary Intoxication with Specific Intent Offences:

  • If the D has not formed the mens rea (specific intent ) before being intoxicated they will not be guilty
  • Lipman 1970:
  • guilty of manslaughter and not murder as he could not form the specific intention required for murder
  • Gallagher 1963:
  • D was guilty of murder as he had clearly formed the necessary intention to kill before he was intoxicated
• Involuntary Intoxication:

  • can be used for specific and basic intent
  • can rely on defence ONLY IF the D was so intoxicated that they were unable to form the mens rea required
  • NOT involuntary if you don't know how strong the drug was
  • Kingston 1994:
  • drugged intent is still intent - if the D had formed the mens rea of an offence then got involuntarily intoxicated, intoxication cannot be used
• Insanity : defined in the M'Naghten Rules (1843) as "It must be clearly proved that, at the time of committing the act, the defendant was labouring such a defect of reason, from disease of mind as to not know:

  1. the nature and quality of their act
  2. what they were doing was wrong

  Punishment:

  If a person is found not guilty by reason of insanity the court may instead give treatment order, hospital order, secure hospitals. And in some more severe cases they may spend the rest of their lives in a secure hospital as they are deemed a threat to society
• Elements of Insanity:

  • Defect of Reason: a complete loss of reason
  • Clarke - absent mindedness or confusion is not enough
  • Disease of the mind: (legal definition is different from medical)
  • Quick: must be internal - taking too much insulin does not count
  • Kemp: physical condition that affects the brain
  • Sullivan: permanent, transient or intermittent
  • Hennessy: internal factor - failing to take insulin
  • Burgess: a sleep disorder causing sleep walking
  • To not know nature and quality of act/not know it was wrong
  • Windle 1952: knew what he was doing was legally wrong even if he thought it was morally right
• Automatism (Hill v Baxter): defined by Bratty v AG for NI as " an act done by the muscles without any control by the mind, such as spasm, reflex action or a convulsion; or an act done by a person who is not conscious of what they are doing"

  • caused by external factors
  • R v T 1990: reduced or partial control of one's actions is not enough to constitute non-insane automatism
• Non-reckless automatism: when the defendant is not reckless in getting into a automatic state E.g. having an adverse, unexpected reaction to a prescribed drug.

  • R v Hardie 1984: had not been reckless in taking the Valium as he thought they would calm him down
• Reckless Automatism :

  • with basic intent offence:
  • has already satisfied the mens rea by being reckless getting into an automatic state
  • cannot be used
  • with specific intent offence:
  • can be used a defence
  • R v Bailey 1983: was an external factor causing automatism meaning he could not form the intention needed
• Self Defence: use reasonable force to defend himself, any other person or even his own property

  • Common Law and S3 of the Criminal Law Act 1967
  • For house-holders : S76(7) Criminal Justice and Immigration Act 2008
  • If belief for the use of necessary force was due to an intoxicated state self defence CANNOT be used - S76(5) Criminal Justice and Immigration Act 1008
• In self-defense cases, the jury uses a subjective test to determine if the force used was necessary
• R v Gladstone Williams (1987) established that it's not about the reasonableness of D's belief, but whether D genuinely and honestly believed the force used was necessary
• According to S76(6A), D is not obligated to retreat, but this may be considered depending on the situation
• If D is the initial aggressor, they can still claim self-defense if the victim responds with disproportionate force, allowing D to use an appropriate amount of force to defend themselves
• Self Defence: Reasonable force

  • objective test - Was the amount of force used by D an reasonable amount of for in comparison to the threat D believed be was facing?
  • R V Martin 2002 : force used was not reasonable as the danger had passed
• Self Defence : special case of house holders

  Applies when a house holder is confronted by an intruder and :

  • a person with a legitimate purpose may not be able to weigh out the exact measure of any necessary action
  • evidence that D had only done what D honestly and instinctually thought was necessary
  • D is not regarded as having acted reasonably of the degree of force was grossly disproportionate
• Duress of threats involves causing death or serious injury, directed at the defendant or the defendant's immediate family

  • cannot be used for murder or attempted murder (Pommell 1995)
• In duress cases, it is assessed whether the defendant was actually compelled to act as they did due to a reasonable fear of serious injury or death
• The evaluation includes considering if a sober person of reasonable firmness, sharing the characteristics of the defendant, would respond in the same way
• In the case of R v Graham 1982, the defendant's will to resist a threat being eroded by drink is not taken into account
• Threats in duress cases must relate directly to the crime committed, as seen in R v Cole 1994 where the defendant was told to "pay up," not necessarily commit the robberies
• For duress to apply, the threats must be imminent, meaning there must be no other safe option for the defendant. For example, the time in which the defendant could have reasonably gone to the police
• Duress cannot be used if the defendant voluntarily exposed themselves to the threat, as in the case of R v Hassan 2005 where joining the gang opened him up to such threats
• Duress of Circumstances : where there is no outright threat made but instead the threat comes from the circumstance D was in

  • Willer 1986 : the D drove 'under that form of compulsion, that is, under duress'
  • like duress of threats, this cannot be used for murder or attempted murder (Pommell 1995)
• Consent : (For case : R v Slingsby 1995)

  • only relevant to non-fatal offences (except S47, S20, S18)
  • Diane Pretty - om the UK a person who kills cannot rely on the defence of consent (Euthanasia is still illegal)
  • Real/Valid consent:
  • Did the V give true consent or was it through fear or submission?
  • R v Oluboja 1982 : V did not give genuine consent and had merely submitted under pressure
  • Implied consent:
  • Wilson v Pringle 1987 : the ordinary 'jostlings' of everyday life were not battery
  • also applies within sport as the player have agreed to and injury within the rules of the sport
• Consent Exceptions:

  Attorney-General's Reference(No6 of 1980) (1981) : consent is not a defence to S47 and above (E.g. getting into a fight voluntarily) as it is not within the public interest (public policy) to cause harm without a good reason.

  Exceptions to this include:

  • properly conducted games/sports (R v Barnes 2004)
  • reasonable surgical interference
  • tattooing
  • body piercing
  • horseplay (messing around)
  • dangerous exhibitions (e.g. extreme mountain biking)