Criminal - General Defences

In what circumstances can self-defence be used?

to protect yourself, another, or your property from attack

is self-defence a statutory or common law defence?

found in both common law and the Criminal Justice and Immigration Act 2008, s.76

Can physical self-defence be used against an emotional/mental attack?

No

- only applies to be physically attacked oneself

What is the 2-part test for whether D can validly use the defence of self-defence?

- if the defendant honestly believed that the use of force was necessary (the trigger)

and

- the level of force the defendant used in response was objectively reasonable in the circumstances as the defendant believed them to be (the response)

Who bears the burden of proof once self-defence is invoked?

- defendant must raise enough evidence to suggest self-defence applies (low threshold)

- then the prosecution must prove beyond reasonable doubt that it does not

Is self-defence an all or nothing defence?

- D will either be acquitted or the defence will fail - cannot slightly reduce the sentence

- except for murder: if self-defence fails, possible for the jury to convict the defendant of the lesser offence of voluntary manslaughter on the basis of a loss of control

What standard of belief is required for D's belief that use of force was necessary (in self-defence)?

- D is to be judged on the facts as they reasonably believed them

- regardless of whether that belief is reasonable or not

UNLESS D's belief is mistaken due to voluntary intoxication - in that case, cannot rely on their mistake

Is there a duty to retreat? (for self-defence)

- no duty for D to retreat in order to rely on self-defence

- however, the fact that D had an opportunity to retreat may be regarded as a relevant factor

Can D rely on self-defence where they made the first blow?

- yes, can pre-emptively strike V

- to protect their family/property before V has acted

- but the attack must be imminent

Can D use self-defence defence to avoid liability for attacking an innocent third party to protect themselves?

Yes, defendant can use force against an innocent third party to protect themselves, but this is rare

example: policeman knocking innocent person out of the way to get to a person about to set off a bomb

What level of force is acceptable for self-defence?

- must be objectively reasonable in the circumstances and the danger as the defendant subjectively believed them to be

- will not be reasonable if it is disproportionate

What factors should be taken account when judging whether force was reasonable or disproportionate?

- D must be judged on the circumstances as they believed them to be, and also on the danger as they believed it to be.

- A person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action

- evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.

- The defendant can be mistaken and the mistake does not need to be a reasonable one.

What is a 'householder' self-defence case?

- D acts to protect themselves or another (not property)

and

- Uses force while in or partly in a building, or part of a building, that is a dwelling (eg an internal walkway, but not a driveway)

and

- Is not a trespasser at the time the force is used

and

- Believed the victim to be in, or entering, the building or part as a trespasser.

How does the test for householder self-defence cases vary from regular self-defence?

for householder cases:

force will not be reasonable if it was GROSSLY disproportionate (not just disproportionate)

What is the two-part test for self-defence in householder cases?

- Was the force grossly disproportionate in the circumstances as D believed them to be?

(If it was, there can be no defence)

- If the force was not grossly disproportionate, was the level of force reasonable?

What should the jury take into account when deciding whether the actions of the householder were unreasonable?

(part 2 of test)

- consider the circumstances in which D found themselves and as D believed them to be

- shock of coming upon 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, particularly children

- the object that they had to hand at the time (e.g., using a knife might be reasonable here where otherwise it would not)

- the conduct of the intruder at the time or when they have previously trespassed in the home

How can intoxication work as a defence?

- in order to negate the mens rea of the offence

- as an influencing factor on another legal principle/ defence

When does intoxication affect mens rea?

- In any crime where the intoxication is caused by drink or drugs taken involuntarily, i.e. 'spiking' or 'lacing' someone's drink or food with a drug or alcohol.

- In any crime where the intoxication is caused by drugs taken voluntarily, but in bona fide pursuance of medical treatment.

- In any crime where the intoxication is caused by non-dangerous drugs taken voluntarily (dangerous drugs are those which are illegal or alcohol)

- In crimes where a specific intent is required (generally where the offence cannot be committed recklessly).

When will not intoxication not affect mens rea?

- not an excuse for D to say they would not have behaved in that way if they were sober

- does not automatically negate mens rea: if prosecution can show that D had the necessary mens rea, even when drunk, they will still be liable

Where does the evidential burden lie for intoxication?

- there is an evidential burden on the defendant to raise the issue of intoxication

- prosecution must then prove beyond reasonable doubt that the defendant formed the necessary mens rea.

What are 3 issues you should consider in a question re intoxication?

- 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?

What will count as involuntary intoxication?

- where D was forced to consume alcohol or other intoxicating drugs

- or was deceived into doing so

will not apply where defendant is aware that they are drinking alcohol, but is mistaken as to the strength

What is the effect of involuntary intoxication?

defence of involuntary intoxication may be available for any offence, basic or specific intent

Can voluntary intoxication be a defence to all types of offence?

only a defence to offences of specific intent (not to those of basic intent)

What are crimes of basic intent?

- where the defendant could be convicted on the basis of recklessness as to the consequences

- or where no foresight as to the consequences is required

eg battery, assualt, ABH, GBH

What are crimes of specific intent?

crimes where D must have intended the result

- rather than mere recklessness

- e.g., murder, theft, robbery

Will D be liable for basic intent offence if they are voluntarily intoxicated?

Yes, if they would have foreseen the harm if they were sober

(even if they do not have correct mens rea in their current drunken state)

What is the difference between dangerous and non-dangerous drugs?

Dangerous drugs = it is common knowledge that a drug is liable to cause the taker to become aggressive/do dangerous or unpredictable things

Non-dangerous drugs = no common knowledge that it could have the above effect eg for drugs that are merely sedatives like Valium

flowchart showing application of intoxication rules

Can D rely on defence of self defence if they have made a drunken mistake as to the need to use self-defence?

No - this will negate ability to use self-defence!

Can D be convicted of murder if intoxicated?

As long as they formed the correct mens rea (drunken intention is still intention)

Can a person use diminished responsibility defence if they were drunk?

- yes, but drunkenness does not count as DR

- D must still have an abnormality of mental functioning

Can drunken mistake make D not dishonest?

- D who believes that the owner would consent to D's appropriation of the owner's property will not be dishonest (subjective test of D's actual belief)

- and therefore will not be liable for theft.

Will defence of consent apply if drunken D incorrectly believes V consents?

- D will have a defence if the jury are satisfied that V consented to the accidental infliction of injury

- or D (even wrongly) believed that V consented (due to their intoxication)

When will the defence of consent apply?

- if V actually consented (even if D did not know)

- or D honestly believed that V was consenting (even if they did not consent)

Which offences against the person can use the defence of consent?

general rule: consent is only available as a defence to assault and battery, unless one of the exceptions applied

basis: should not encourage people harming each other, even with consent

When can more than assault/battery still be justified via consent?

- if D only intended to committ battery, with victim's consent, and did not see risk of inflicting anything further, but accidentally cause more harm than this (Meachen)

- or if one of the public interest exceptions applies

What are the public interest exceptions that allow V to consent to ABH and above?

- Medical treatment

- Sport

- Horseplay

- Tattooing, body piercing and personal adornment

- Sexual gratification/ accidental infliction of harm.

Can V consent to harm during sex?

- a person cannot consent to the infliction of ABH or more, for the purposes of obtaining sexual gratification

Can V consent to risk of acquiring STD?

Yes, can validly consent to this

- therefore can be a defence to D charged with GBH for transmission of STD

- but cannot consent to deliberate HIV infection

What level of harm is legal to inflict when punishing a child?

- A parent has a defence of "reasonable chastisement" in applying force to a child

- but only for assault, cannot be used if their punishment results in ABH or above

Can consent be a defence to injuries sustained in sport?

- If the act 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

- what would be accepted depends on type and level of sport, degree of force etc

- but consent can apply if the injury was accidental and not intended, even if unforeseen harm occurs