Week 16 Criminal: Defences 1 - Capacity (age) & Intoxication

what are the presumptions of criminal law?

criminal law presumes autonomy:

• Criminalisation would not be possible without the principle of autonomy - see Child & Ormerod p 29.

• We shouldn’t criminalise conduct that D cant avoid

• Autonomy is central to debates around mens rea - involuntary conduct means no offence committed

Criminal law presumes capacity - without capacity, no criminal liability:

• It derives from :

• S 50 Children and Young Persons Act 1993, which creates a conclusive presumption that children under 10 cannot commit an offence

• The McNaughten Rules whereby a person is presumed sane (1843) See Child & Ormerod, p 582-583

what is the presumption of capacity?

capcity is the 'mental or intellectual receiving power; [the] ability [for a person] to grasp or take in impressions, ideas, knowledge' - OED

Capacity should be understood as follows:

(1) rhe ability to apprieciate the consequenses of ones cats (intellectual/cognitive capacity)

(2) the ability to understand the difference between good and evil, right and wrong (moral capacity)

(3) the ability to control one's actions and to refrain from taking action (physical capacity)

Criminal law does not define capacity.

Instead criminal law defines situation when there is a lack of capacity - i.e incapacity:

• Infancy (age)

• Insanity

• Automatism

• Diminshed responsibility

• Intoxication

• Unfitness to plead

what is unfitness to plead?

 D is unfit to plead if, because of disability, is incapable of being tried in normal court process - see 4 and 4A, Criminal Procedure (Insanity Act) 1964

• Can be raised by both defence and prosecution

• Determined by judge - not jury

• To be fit to plead D must have sufficient ability to (M [2003] EWCA Crim 3452): understand the charges; understand the plea; challenge jurors; instruct legal representatives; understand course of the trial; and give evidence if they choose to do so, if D founf unfit to plead, normal criminal process ends, case tried through trial of facts, trial before jury to determine whether D committed the act or omission for the offence in question, court will only explore the actus reus, not mens rea, if D found to have committed the AR, they arent liable for the full offence, hospital order, supervision order or discharge (s5)

• Unfitness v insanity: insanity about D state of mind at time of offence

• Unfitness: about D state of mind at time of trial

what is capacity in relation to infancy (age)?

Children & Criminal Responsibility (UK)

• Minimum age of criminal responsibility in England & Wales: 10 years old

  • Among the lowest in Europe

  • Abolished the doli incapax presumption in 1998 (Children under 14 were once presumed incapable of forming criminal intent unless proven otherwise)

  • Now: no presumption — a child aged 10+ can be found criminally responsible without proving understanding of right/wrong

• Treated differently to adults:

  • Tried in youth courts

  • Anonymity preserved during proceedings

  • More informal settings

  • Different sentencing options (e.g. youth detention rather than adult prison)

• Criticism:

  • UK criminalises children too young

  • Over-punitive system, especially when compared to countries like:

    • Scotland: 12

    • France: 13

    • Germany: 14

    • Sweden: 15

    • Portugal: 16

🧓 Older Adults & Capacity

• No separate legal category for old age in criminal law

• Ageing-related illnesses like Alzheimer’s can affect capacity, but this is treated under the general rules for mental incapacity

• Law doesn’t presume older people lack capacity — it must be assessed case by case

🌍 International Standards & UK Compliance🔹 UN Convention on the Rights of the Child (CRC)

• Requires minimum age for criminal responsibility

• Emphasises dignity, fair treatment, and avoiding harm to children

• UK signed the Convention but still sets the minimum age at 10

🔹 CRC 2023 Observations: Strong Criticism of the UK

• The UN Committee is “deeply concerned” by the UK’s:

  • Low age of criminal responsibility

  • Harsh treatment of 16-17-year-olds as adults

  • Use of police cells, solitary confinement, and life imprisonment for children

  • Overrepresentation of ethnic minority children in custody

  • Reports of staff abuse in child detention centres

  • Failure to properly investigate complaints of abuse

🔁 Recommendation: Raise the age of criminal responsibility to at least 14

⚖ European Convention on Human Rights (ECHR)

• No specific age minimum in the Convention

• But in V and T v. UK (1999), the ECtHR raised concerns about the fairness of proceedings, not the age itself

🔚 Summary:

• UK law treats children as responsible from age 10, but this is increasingly criticised both domestically and internationally

• Old age isn’t a legal factor on its own, but conditions affecting mental capacity are recognised

• There is growing pressure (especially from the UN) for the UK to adopt a more child-rights–based approach in its justice system

what is capacity in relation to defences and denial of offence?

•  When D claims that one or more of the elements of the offence is absent, e.g. didn’t have mens rea

• Technically, these are not defences but simply a negation of a particular offence requirement

• Often linked to issues of capacity, e.g. intoxication

Defences:
D has committed the offence, but has a reason/justification for committing the crime.

General defences, e.g. duress, necessity, self-defence - applicable to all offences/attempted offences (unless excluded)

Compare to partial defences - only applicable to murder (loss of control or diminished responsibility)
 

Can defences also be a denial of offences?

• Insanity and automatism are often referred to as a defence, usually an incapacity defence - BUT

• Insanity can also be a denial of the MR element of an offence

• Automatism denies an element of the offence

• Where it denies the 'voluntary' requirements, some writers classified this as a denial of AR

• See Child & Ormerod, section 13.3.1

what is capacity in relation to intoxication?

Intoxication in Criminal Law: Not a Defence, But Sometimes Denies Mens Rea (MR)🔑 Key Concept:

Intoxication is not a defence itself — it’s only relevant if it prevents the defendant from forming the required mens rea (mental element) of a crime.

🧠 1. Intoxicated = No MR?

• Not automatically — depends on the case.

• If D forms the necessary intention while drunk, it's still valid (Kingston [1994]).

• Harris [2013]: effects of withdrawal ≠ intoxication (e.g. psychosis not caused by current intoxication doesn't trigger intoxication rules).

🍷 2. Voluntary vs. Involuntary Intoxication✅ Voluntary Intoxication (D’s own fault):

• Includes drinking alcohol or taking drugs knowingly (even if effects are stronger than expected – Allen [1988]).

• If voluntarily intoxicated, and charged with a basic intent crime, D is still liable, even if he lacked MR.

• Prior fault in getting intoxicated replaces missing MR (Majewski principle).

🚫 Involuntary Intoxication:

• E.g. drink is spiked, or D takes prescribed medication or a drug they reasonably thought was safe (Kingston, Hardie).

• If D didn’t know what they were taking or had no reason to expect aggression/loss of control, may be a valid reason for lacking MR.

💊 3. Dangerous vs. Non-dangerous Substances

• Dangerous drug = commonly known to cause aggression or erratic behaviour (e.g. alcohol, LSD) → Lipman [1970]

• Non-dangerous drug = e.g. Valium, taken as a sedative → Hardie [1985]

⚖ 4. Basic Intent vs. Specific Intent Crimes🟠 Basic Intent Crimes (MR = recklessness or intent):

• Voluntary intoxication = no excuse

• Includes:

  • Assault, battery

  • s.47 & s.20 OAPA

  • Sexual assault, rape (Heard [2007])

  • Manslaughter

  • Criminal damage

🔵 Specific Intent Crimes (MR = intention only):

• Voluntary intoxication can be used to negate MR

• Includes:

  • Murder

  • s.18 OAPA

  • Robbery, theft

  • Burglary (s.9(1)(a))

  • Attempts of specific intent crimes

→ If MR not proved, D may be convicted of a lesser basic intent offence (e.g. murder → manslaughter)

🔪 Dutch Courage Rule

D forms intent before drinking to carry it out drunk → Still liable (Gallagher [1963])

• Prior sober intention counts

• Intoxication used to enable, not prevent, crime

🧩 5. Did Intoxication Actually Cause the Lack of MR?

• If intoxication wasn’t the reason D lacked MR, then D is not liable

• Example: D drunkenly trips and breaks vase = accident, not criminal damage

• Richardson & Irwin [1999]: Ask — Would D have foreseen the risk if sober?