defences 1: capacity age and intoxication.

what is the presumption of capacity?

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

what is unfitness to plead?

D is unfit to plead (i.e. unfit to stand trial) if, because of disability, is incapable of being tried in normal court process – see s 4 and 4A, Criminal Procedure (Insanity Act) 1964

•  can be raised by both defence and prosecution

•  determined by judge – not jury

how can someone be fit to plead?

• Understand the charges

•  Understand the plea;

•  Challenge jurors;

•  Instruct legal representatives;

•  Understand course of the trial; and

• Give evidence (if D chooses to do so)

what do we do if the D is found 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 the mens rea

what if the D is found to have committed AR?

• not liable for the full offence

• Hospital order (with or without restriction order), supervision order, or discharge – see s 5 Criminal Procedure (Insanity Act) 1964

What is the difference between unfitness v insanity?

• Insanity: about D’s state of mind at time of offence

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

how does infancy affect ability to plead?

• Assumption that age = young age

 

But what about old age?

• No presumption of a person lacking capacity because s/he becomes old

• Yet, capacity can be affected: Alzheimer’s, other memory losses etc.

 

Criminal law does not recognize a legal concept tailored to old age. The effects of ageing may be recognised but through concepts based on generic lack of capacity.

 

Young age: evolving capacity – threshold for criminal liability is 10 years old

what is the criminal liability of children?

Children 10-17: can be tried in court, but are treated differently to adults

• Youth courts

• Three magistrates or a single district judge, sitting alone

• Less formal and defendants addressed by first name

• Identity of the child will not be disclosed outside the court – will remain anonymous throughout proceedings but these restrictions can be challenged after proceedings have ended

• Public not permitted to enter court – but some press might be

• Different sentences

• Special centres for young people, not adult prisons

what was criminal liability of children pre 1998?

•  Children and Young Persons Act 1933, s.50: rebuttable presumption of ‘doli incapax’ – criticised

•  children 10-14 years old not able to form criminal mens rea – but could be rebutted if prosecution could prove that D - new acts were ‘seriously wrong’ as opposed to ‘naughty’

•  C (A Minor) v DPP [1995] 3 WLR 888: HL said doli incapax still law

•  Home Office Consultation Paper: Tackling Youth Crime, 1997

• White Paper, No More Excuses: A new approach to tackling youth crime in England and Wales | Home Office:

• “To prevent offending and re-offending by young people, we must stop making excuses for youth crime. Children above the age of criminal responsibility are generally mature enough to be accountable for their actions and the law should recognise this.”

Crime and Disorder Act 1998, s. 34: presumption abolished for children aged 10 and over à E&W has lowest age in Europe (also NI)

• T [2008] EWCA Crim 815 – confirms this

how is the age of criminal liability different in E&W compared to others?

• Scotland: 12

• France: 13

• Germany: 14 (18-21, may still be sentenced by juvenile justice if considered mentally immature)

• Poland: 13

• Portugal: 16

• Sweden: 15 (more lenient sentences until 18)

• Australia: 10-14, rebuttable presumption; 14-17 more lenient sentences

• New Zealand: 10-14, rebuttable presumption (children 10-13 only serious crimes)

what are the UK international obligations?

UN Convention on Rights of the Child 1989, Article 40

• (1): States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth …

• (3)(a): requires “establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law” – but no guidance as to age

 

ECHR (no provision)

• ECtHR: V and T v. UK (1999) – no challenge of age and presumption; challenge of fairness of proceedings; see also SC v UUK 2005 Crim LR 130 (and some more recent cases)

what are defences and denial of offences?

• 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

what are general defences?

duress, necessity, self-defence – applicable to all offences/attempted offences (unless excluded)

• Compare to partial defences – only applicable to murder only

• loss of control and diminished responsibility

can defences also be 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 MR, whilst others classify as a denial of AR

 

intoxication (defence)

Intoxication is not a defence per se, but a denial of MR

•  E.g. D stabs sleeping friend, drunkenly mistaking friend for a theatrical dummy à D lacks MR for offence against the person – explains lack of MR on a basis of intoxication – Child & Ormerod, p 555

 

Intoxication does not automatically mean there is no MR – will depend on the case

•  intoxicated mens rea is still mens rea

• Kingston [1994] 2 All ER 353: drunken intention is still an intention

 

D must have been intoxicated at the time of the offence à If D suffered from an alcohol-related condition, but was not drunk at the time of the offence, the intoxication rules do not apply

• Harris [2013] EWCA Crim 223: withdrawal symptoms that produce a mental illness (here psychosis) ≠ intoxication

 

what is the role of prior fault?

Law Com, 2013 discussion paper: “It is a well established principle of criminal law that a defendant cannot rely on excuses arising from his own prior fault” para. 6.1

• “where an intoxicated accused engages in criminal conduct and there is a degree of fault in the accused’s decision to become intoxicated, that fault […] is sufficient to provide the necessary blameworthiness to convict the D” para. 6.4

• Where D’s intoxication is due to D’s own fault, the law allows a finding of guilt even where D denies MR.

• D’s fault in inducing the intoxication à substitutes for missing MR to create liability, MR not negated.

what are the intoxication rules?

D was voluntarily intoxicated

D took a dangerous drug

The offence charged is one of basic intent

D lack MR because of intoxication

what are the Key Questions to ask?

Is the intoxication voluntary or involuntary?

Is the substance ‘dangerous’ or ‘non dangerous’?

Is the crime charged a specific or basic intent crime?

Did D lack MR because of the intoxication?

what is voluntary or involuntary intoxication?

Because of the rule of prior fault, D can only be held liable (the defence will not apply) if they became voluntarily intoxicated

What is voluntary?

•  Where D knowingly takes a dangerous drug/alcohol, even where D does not know the strength, or where effect is greater than anticipated –  Allen [1988] Crim LR 698, CA

•  Knowingly taking medication in excess of amount prescribed

What is involuntary?

• Taking medication in accordance with prescription

•  Taking a non-dangerous drug

•  Deceived into taking drug (e.g. spiked drink) – R v Kingston [1995] 2 AC 355

What is a dangerous or non dangerous substance?

• If D was voluntarily intoxicated, they can only be held liable (defence will not apply) if they took a dangerous substance

Issue/question: Did D take a dangerous drug?

What is a dangerous drug?

If there is common knowledge that the substance can make a person aggressive or to do a dangerous or unpredictable things e.g alcohol

Lipman (1970) 1 QB 152

What is considered a non - dangerous drug?

If there is no such common knowledge, and not known to D personally i.e the subtance is arguably merely a sedative.

e.g Valium

Hardie (1985) 1 WLR 64

Basic or specific intent crime?

When D has become voluntarily intoxicated by taking a dangerous drug…

•  if crime charged is a basic intent crime à evidence of intoxication cannot be used to negate MR à D still liable

•  if crime charged is a specific intent crime à evidence of intoxication can be used to negate MR à D not liable, defence applies

Majewski [1977] AC 443, HL

D assaulted several people after consuming drugs and alcohol. HL confirmed that self-induced intoxication can be a ‘defence’ to crimes of specific intent, but not crimes of basic intent.

What are the examples of basic intent crimes?

•  Manslaughter

•  Assault

•  Battery

•  s.47 & s. 20 OAPA 1861

•  Sexual assault (Heard case) & Rape

•  Criminal damage

Intention or recklessness is an acceptable MR

 

What are examples of specific intent crimes?

• Murder

•  s.18 OAPA 1861

•  Robbery

•  Burglary (s(9)(1)(a))

•  Theft

•  Attempts of crimes of specific intent

Intention only MR

If there is a basic intent crime as an alternative to the offence considered, D will be convicted of this (e.g Murder ⇒ Manslaughter)

What is the specific intent and dutch courage rule?

• Where D becomes voluntarily intoxicated in order to commit a specific intent crime à intoxicated mens rea is still mens rea à no ‘defence’

 

AG for Northern Ireland v. Gallagher [1963] AC 349, HL, Lord Denning at 382:

• “If a man, whilst sane and sober, forms an intention to kill and makes preparation for it, knowing it is a wrong thing to do, and then gets himself drunk so as to give himself Dutch courage to do the thing, and whilst drunk carries out his intention, he cannot rely on this self-induced drunkenness as a defence to a charge or murder, nor even as reducing it to manslaughter.

• He cannot say that he got himself into such a stupid state that he was incapable of an intent to kill….

• The wickedness of his mind before he got drunk is enough to condemn him, coupled with the act which he intended to do and did do”

 

4. D lacked MR because of intoxication

• When D has become voluntarily intoxicated by taking a dangerous drug and lacks mens rea for basic intent offence… D will only be liable if intoxication was reason for lacking MR

• Example: D becomes voluntarily by dangerous drug, later trips and breaks V’s vase in the fall (basic intent offence of criminal damage) à No liability because D’s intoxication not reason for lack of MR – D would have accidentally damaged vase even if sober

Richardson and Irwin [1999] 1 CR App R 392 – would D have foreseen the risk of harm to V (s. 20 offence) if sober?