Defences

Question 1

What type of defence is intoxication?

Answer 1

General defence - available to almost any crime

Question 2

What two forms of the defence of intoxication are there?

Answer 2

A way to negate the MR of an offence

An influencing factor on another legal principle / defence

Question 3

Where does the burden of proof lie for intoxication?

Answer 3

Evidential burden on the defendant to raise issue of intoxication

Prosecution must prove, beyond reasonable doubt, that the defendant formed the MR

Question 4

When will intoxication not assist the defendant?

Answer 4

If prosecution can establish that D formed the MR even though they were drunk

Question 5

In what circumstances can intoxication operate to negate the MR?

Answer 5

Spiking / lacing

Drugs taken voluntarily in bona fide pursuance of medical treatment

Intoxication caused by non-dangerous drugs taken voluntarily

Specific intent crimes - cannot be committed recklessly

Question 6

What three questions should you ask to judge whether intoxication can operate to negate the MR?

Answer 6

Is the defendant voluntarily intoxicated or involuntarily intoxicated?

Is the intoxicant a dangerous alcohol / drug or a non-dangerous drug?

Is it a crime of basic intent or specific intent?

Question 7

What crimes is intoxication available for if it is involuntary?

Answer 7

Both specific and basic intent crimes

Question 8

What does not count as involuntary intoxication?

Answer 8

When D knows they are drinking, but thinks that alcohol is not as strong as it is

Question 9

When can voluntary intoxication work to negate the MR?

Answer 9

Specific intent crimes - but not basic intent

Question 10

What do specific intent offences require?

Answer 10

Specific intent crimes require proof of a state of mind addressing something beyond the prohibited act itself, namely its consequences.

Question 11

What is the problem with the rule from R v Heard?

Answer 11

Criminal damage would become a specific intent offence even though it is generally considered a basic intent offence.

Question 12

What is a dangerous drug?

Answer 12

Common knowledge that a drug is liable to cause the taker to be aggressive / unpredictable - e.g. alcohol, illegal drugs

Question 13

What is a non-dangerous drug?

Answer 13

A soporific or sedative drug

Question 14

How does intoxication interact with self-defence?

Answer 14

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

Question 15

How does intoxication interact with loss of control / DR?

Answer 15

It is not a bar to a plea of either of these things

Question 16

Where should you consider intoxication in murder?

Answer 16

MR

Question 17

Where should you consider intoxication in loss of control?

Answer 17

Fear / anger QT - D’s drug / alcohol addiction can be taken into account if taunted about extent of addiction

Normal person test - intoxicated person can still use this

Question 18

What four things should be considered if D has an abnormality of mental functioning and is voluntarily intoxicated to consider if DR can apply?

Answer 18

consider the standard DR defence

• D must have an AMF
• AMF must arise from a recognised medical condition
• AMF must have substantially impaired the defendant’s ability to do one of the things in s2(1A) Homicide Act
• AMF must provide the explanation for D’s conduct - even if it is not the only cause

Question 19

What four factors must be present for DR to apply when AMF arises from alcohol dependency syndrome?

Answer 19

D must have an AMF at the time of killing, due to ADS - will consider extent and severity of ADS here

AMF must arise from a recognised medical condition

AMF must have substantially impaired D’s ability to do one of the things in s2(1A)

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

Question 20

When does intoxication prevent the defendant from using another defence?

Answer 20

When a drunken mistake causes the defendant to use self-defence

Question 21

What is the question a court will ask regarding a defendant’s mens rea if they are voluntarily intoxicated by dangerous drugs/ alcohol and commit a basic intent offence?

Answer 21

Would the defendant have formed the MR if sober?

This is based on the test from Coley, McGhee and Harris - would D foresee the risk if sober

Question 22

What are the two elements to consent?

Answer 22

Either the victim consented, or the defendant believed the victim consented

The offence is one which a victim can consent to

Question 23

Where does the burden of proof lie in the defence of consent?

Answer 23

Prosecution must prove both that the victim did not consent, and that the defendant did not believe in the victim’s consent

Question 24

What is the general rule on when consent is available?

Answer 24

Only available as a defence to assault and battery

Question 25

When is consent available as a defence even where ABH or worse is caused?

Answer 25

D must have intended to only commit battery with the consent of the victim Did not see the risk of inflicting actual bodily harm

Question 26

What are the six public interest exceptions to the rule that you cannot consent to ABH or above?

Answer 26

Medical treatment Sport Horseplay Tattooing etc Sexual gratification Lawful correction of a child

Question 27

Where does the sport exception end?

Answer 27

if conduct is sufficiently grave and went beyond what a player could reasonably be regarded as having accepted by taking part in the sport some "off the ball" play might be outside of the scope of implied consent

Question 28

What does the horseplay exception include?

Answer 28

Essentially - mucking around - exception has received a lot of criticism

Question 29

What is the limits to the tattooing / piercing exception?

Answer 29

No body modification - e.g. removing an ear

Question 30

What is the law around consent and sexually transmitted diseases?

Answer 30

A person may consent to the risk of acquiring a sexually transmitted infection However - you cannot consent to deliberate HIV infection - but only the RISK OF infection

Question 31

How does the court approach the public interest exceptions to the general rule on consent?

Answer 31

Not open to extension

Question 32

What is the test for self-defence?

Answer 32

D honestly believed that the use of force was necessary TRIGGER The level of force the defendant used in response was objectively reasonable in the circumstances as the defendant believed them to be RESPONSE

Question 33

Where does the burden of proof lie for self-defence?

Answer 33

It is for the prosecution to disprove that the defendant acted in self-defence Complete defence

Question 34

For the trigger in self defence, is the test objective or subjective

Answer 34

Subjective - D is judged on the fact that they believed them to be

Question 35

How does the court approach an opportunity to retreat / exit?

Answer 35

No duty to retreat - but the court may consider the fact that the defendant had an opportunity to retreat as a relevant factor

Question 36

How does the court approach anticipatory self-defence?

Answer 36

You can make the first hit in self defence - if there is an imminently apprehended attack and your object is to protect yourself / family / property and you use reasonable force

Question 37

Can self-defence be used by an antagonist?

Answer 37

Self defence is not automatically precluded in a situation where D was initial aggressor and victim retaliated 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.

Question 38

Can self defence be against force used against an innocent 3rd party?

Answer 38

Yes - but these would be very unlikely and unusual set of facts

Question 39

What level of force can be used in response to the trigger in non householder cases?

Answer 39

Was the degree of force used by D reasonable in the circumstances? Decided by reference to the circumstances as D believed them to be Essentially: objectively reasonable given the facts as the defendant subjectively believed them to be allowances should be given for the heat of the moment - can't balance acts to a nicety

Question 40

What is the test for the response in householder cases?

Answer 40

Was the force grossly disproportionate in the circumstances as the defendant believed them to be? - if yes, no defence Was the level of force reasonable? - disproportionate force, which is not grossly disproportionate, may or may not be reasonable.

Question 41

When is a self defence issue a householder case?

Answer 41

Uses force while in / partly in a building [widely construed] Is not a trespasser at the time the force is used Believed the victim to be in / entering building as a trespasser Using force to protect yourself or another

Question 42

Which of the lawful exceptions regarding consent are not available if D intended or was reckless as to causing ABH or above?

Answer 42

Lawful correction of a child

Question 43

Who bears the burden of proof for diminished responsibility?

Answer 43

Defendant, on the balance of probabilities

Question 44

If you make a mistake and act in self defence when will this hold?

Answer 44

Genuinely held - valid Mistake through intoxication - not valid

Question 45

What is the difference between a specific and basic intent crime?

Answer 45

Specific intent - you cannot be reckless, only MR that will work is intention

Question 46

Name some specific intent crimes

Answer 46

Murder, S18 Theft, robbery All S9(1)(a) burglary, S9(1)(b) unless causing GBH Attempts

Question 47

What must the prosecution prove to disprove consent?

Answer 47

D did not believe victim consented Victim did not consent

Question 48

Is consent available if the defendant does not know that the victim consents

Answer 48

Yes - although this may be illogical

Question 49

When is consent available if D intended to cause ABH+ and the offence is more than battery?

Answer 49

Only if one of the limited exceptions applies

Question 50

When is consent available if D did not intend, and was not reckless to cause ABH+ and the offence is more than battery?

Answer 50

Consent is always available

Question 51

When can you take pre-emptive action in self-defence?

Answer 51

Only if there is an imminent and immediate threat

Question 52

If you establish diminished responsibility, what will you be charged with?

Answer 52

Voluntary manslaughter

Question 53

Who bears the burden of proof of loss of control?

Answer 53

Prosecution once the defence have raised the evidential burden

Question 54

If you establish loss of control, what will you be charged with?

Answer 54

Voluntary manslaughter

Question 55

What is the burden on the defendant for the defences of a) self-defence, b) loss of control and c) diminished responsibility?

Answer 55

Self - defence - evidential Loss of control - evidential DR - evidential and legal

Question 56

What is the exception to the rule that voluntary intoxication is a defence to a specific intent crime?

Answer 56

If the defendant has deliberately become intoxicated to give themselves the courage to commit the act