Defences

Intoxication

Can be used for any crime. Where the D is arguing that they only committed the crime because they were intoxicated.

Voluntary intoxication

There’s a distinction between specific and basic intent crimes (Majewski). Specific are crimes committed with intention only and basic intent crimes can be committed intentionally and recklessly.

Specific- murder, s.18 GBH, theft, robbery.

Basic- assault, battery, s.47 ABH, s.20 GBH, UAM.

Specific intent defence

The defence is available if the D was so intoxicated that they couldn’t form the mens rea (intention).

Basic intent defence

The defence is not available as the fact the D got voluntarily intoxicated is evidence of recklessness and the crime is complete. However, Richardson & Irwin states that the defence may be available as long as the D wouldn’t have seen the risk even if he were sober. SR- Dutch courage (where D gets intoxicated to gain the confidence to commit a crime) Gallagher- defence is not available as they formed the mens rea previously.

Involuntary intoxication

Kingston- the defence is available for both specific and basic intent crimes, as long as the D was so intoxicated that they couldn’t form the mens rea. Drugged intent is still intent. SR- Hardie- with an unexpected side effect of a prescription drug, defence is still available as long as the side effect wasn’t expected.

Self defence definition

S.76 of the Criminal Justice and Immigration Act 2008- the defence can be used to protect yourself, someone else, or to prevent a crime.

The first stage of self defence?

S.76 (3) CJ&I Act 2008- The force must be necessary. The D must have held a genuine belief even if he was mistaken in believing it. This is subjective.

SR- S.76 (4)- the defence is available if the D made a genuine mistake (Gladstone Williams).

S.76 (5)- if the reason the D made a mistake is because they were intoxicated, there’s no defence.

The D can make the first move in order to protect themselves and still argue self-defence (Beckford).

The second stage of self defence?

The force must be reasonable, meaning proportional to the threat. Lord Morris in Palmer: if the D is under attack, it is difficult to weigh up how much force they should use. They must have acted honestly and instinctively.

SR- if the D uses excessive force, they will lose the defence (Martin).

Crime and Courts Act 2013- if the self defence is in the home it can be disproportionate as long as it isn’t grossly disproportionate.

Insanity definition

S.1 criminal procedure (insanity & unfitness to plead) act 1991- there must be evidence from 2 doctors; one of which must be an expert in mental health.

The first stage of insanity?

M’Naghten defined the defence of insanity as having 3 stages, the first being that the D must be suffering from a defect of reason. This means the D’s reasoning is impaired. It must be more than absentmindedness or confusion (Clarke).

The second stage of insanity?

The defect of reason must be caused by a disease of the mind. This covers any physical disease which affects mental operation. Examples:

Epilepsy- Sullivan. Sleep walking- Burgess. Schizophrenia. Chronic depression. Diabetes- low blood sugar- internally affected disease- Hennessy.

The third stage of insanity?

D must not understand the nature and quality of their act. The must not have known what they were doing and the consequences of it (Windle).

Automatism definition

Lord Denning in Bratty- ‘an act done by the muscles without any control by the mind’.

Can be used for specific intent crimes, but not basic.

Examples of automatism

Reacting to a swarm of bees/spasm/reflex/sneezing (Hill v Baxter).

Diabetes- low blood sugar (Quick).

Concussion- from a blow to a head.

Hypnotism.

Effects of medication such as anaesthetic.

The first stage of automatism?

The D must have lost full control of their actions. They did the actus reus of the crime involuntarily (Broome v Perkins).

SR- self-induced automatism- if the D was aware that their actions or omission would result in an automatic state (Bailey). As self-induced automatism is evidence of recklessness, its basic intent so the defence isn’t viable.

The second stage of automatism?

The D must have no mens rea for the crime.

Duress definition

The D only commits the crime because they were forced. There’s two types: duress by threats and circumstances. Exam tip- consider stages 1-5 for threats, and 2-5 for circumstances (where the D feels forced to commit a crime because of the situation).

The first stage of duress?

The D must have committed a crime which was nominated by the person making the threat (Cole).

The second stage of duress?

The threat must be of death or serious injury (Valderamma- Vega).

The third stage of duress?

The threat must be against the D or someone they are responsible for (Wright).

The fourth stage of duress?

The threat must be immediate or almost immediate so that the D doesn’t have time to go to the police (Hasan).

The fifth stage of duress?

It should be asked whether the D should’ve resisted the threats. Graham- the D must pass a subjective and objective test. SUBJECTIVE: did the D act because he reasonably believed that if he didn’t, he or another would suffer death or serious injury?

OBJECTIVE: would a sober person of reasonable firmness, sharing the D’s characteristics have done the same? Characteristics include: age, pregnancy, disability.

SR- if the D brought the pressure on themselves e.g. by joining a gang, they have no defence (Hasan).