DEFENCES
- D may commit mens rea & actus reus of offence but if they have a defence,
will not be liable (e.g. may have mens rea & actus reus of murder but if out of
self defence because they were attacked first → not liable)
- Where a defence operates, it does so completely – D is not liable for the
offence.
- in problem question must examine each point in term
- Defences must be distinguished from matters of mitigation - will not affect
whether or not the D is guilty of the offence charged, but will affect the
sentence imposed ; and partial defences to murder - (loss of control &
diminished responsibility) do not lead to a complete acquittal. but
reduce the offence for which D is convicted of from murder →
manslaughter
Classifying defences
- ‘Failure of proof’ defences (i.e. a failure to prove the actus reus or mens rea,
aka ‘denials of actus reus’ or ‘denials of mens rea’) , cannot prove MR & AR
vs
- ‘supervening’ defences (i.e. ‘true’ defences which operate following proof of
actus reus and mens rea) , true defences following completion of MR & AR
- (The exception is intoxication which most agree is a failure to prove mens
rea, i.e it is a denial of mens rea. So, if relevant, intoxication should be addressed
when you are analysing the mens rea of an offence.)
KEY DEFENCES:
1. Intoxication
2. Public and Private defence
3. Duress
4. Necessity
1. INTOXICATION
- The effects of alcohol or drugs, or both, on D’s mens rea (focus in problem Q)
- “D’s claim that ‘it was the drink’ may provide some moral mitigation, and may
become relevant at sentencing, but it is not an answer to a criminal charge. If
it were, there would be a lot more space in prisons!” (Smith, Hogan and
Ormerod)
English law not concerned with ‘intoxication and loosened inhibitions’ - if at the time
of the crime, D knows what they are doing it is irrelevant that D would not have
committed the crime/ whatever excuse they come up with
,R v. Sheehan and Moore (1974) 60 Cr App R 308)
- Stressed that a DRUNKEN INTENT is nevertheless an intent, criminal law not
concerned with people who claim that they would not have committed the
crime had they not been intoxicated
- Loss of D’s control is their own fault
R v. Bowen [1996] 2 Cr App R 157.
- GENERAL RULE: Person’s low IQ (short of mental impairment) not relevant
+ No good for D to say that D would not have committed the offence if D has
been sober
- However, was HELD: that a recognised mental illness or psychiatric condition
may count
The role of prior fault:
Necessary to distinguish between two points in time: (T1) & (T2)
(T1) - when D performed a blameworthy act—for example, when D voluntarily
became dangerously intoxicated; and
(T2) - when D completed the actus reus of a relevant offence, but lacked an
element of mens rea due to intoxication/automatism/insanity.
At T1 we ask whether D made a blameworthy choice: whether we have a simple
denial of offending*, or conduct that also demonstrates prior fault. Where prior fault is
found, our focus shifts to T2, asking whether D’s prior fault is sufficient to substitute
for the missing offence elements in order to create liability.
*denial of offending = lack of mens rea (i.e. did D’s intoxication lead to a lack
of mens rea?)
Kingston [1994] 3 All ER 353
- P drugged D & encouraged D to indecently assault V as he slept. D
did so → charged with indecent assault
- HELD: D’s mens rea at T2 was proved irrespective of his intoxication (no
denial of offending as a result of drunk state) - D was still able, and did in fact,
form an intention to assault V. D acted with the mens rea required for the
offence.
Involuntary Intoxication
- Intoxicated through no fault of one’s own (spiked drink, forced to drink against
will). What is the effect of involuntary intoxication?
- D cannot be blamed for their actions, however this protection extends only to
the D who is so intoxicated that he does not form the mens rea.
(re Kingston: “D [...] did in fact form an intention to assault V” → mens
rea)
Voluntary Intoxication
, - What counts as ‘voluntary’? Intentional taking of alcohol & drugs, addiction
falls under voluntary intoxication.
- Even in cases where D is so intoxicated but they lack mens rea, if D is
voluntarily intoxicated, D will still be liable.
- If D is voluntarily intoxicated, the burden of proof in the case remains
incumbent upon the prosecution. It is for the prosecution to prove that D
satisfied the elements of the offence charged, not for D to prove their
innocence (Woolmington v DPP [1935] UKHL 1).
R v. Allen [1988] Crim LR 698.
- D claimed he had not realised that his friend’s home-made wine had a high
alcohol content
- HELD: where D knows he is drinking alcohol, it is irrelevant whether he knows
the precise nature or strength of the alcohol , clear case of voluntary
intoxication
R v. Hardie [1984] 3 All ER 848 (subjective or objective test?).
- D given out of date valium tablets (sedative) , told it would calm his
nerves & not impair his awareness of self control , hours later D
started a fire in his bedroom flat → charged with arson
- At trial raised defence that the effect on him of taking the drug had been such
that he did not form the mens rea , judge directed the jury that bcs D had
voluntarily self-administered the drug its effect could not negate mens rea =
could not have the defence + was convicted
- Appealed, contending judge had misdirected jury on his defence
- CoA HELD: had become INvoluntarily intoxicated, court thought drug
not intoxicating → subjective test?
Prior-fault intoxication as a method of inculpation
- Supervening defences
- “Where, because of her intoxication, the prosecution fail to establish that D
had mens rea at the time of the offence (T2), the starting point is that no
liability should be found: D lacks an essential element of the offence.”
Prior-fault intoxication rules
1. D must be voluntarily intoxicated;
2. D’s offence must have been one of ‘basic intent’, as opposed to one of
‘specific intent’;
3. D’s intoxicant taken at T1 must have been ‘dangerous’ in the sense that it is
commonly known to lead to unpredictability or aggression; and
4. D must lack mens rea at the time of the offence (T2) because of that
intoxication.
(where these elements are satisfied = D will be liable as if the missing MR elements
were satisfied)
