- Created by: Francesca Marks
- Created on: 08-04-15 13:39
Policy considerations, operates as an excusatory defence, but is it a defence per se? Burden of proof? There has been disagreement about whether it is a defence or not. Got to prove the despite the drink they formed the necessary mens rea.
Doctrine of prior fault- the doctrine of prior fault does not allow a D to benefit from a defence if the condition or circumstances that give rise to the defence are of his own making or will. He cannot benefit from a defence that was a result of his own prior fault. This is a strict approach to the fault element. Limited circumstances that you can use intoxication in.
Intoxicated mens rea- If D is able to form mens rea for the substantive offence, the defence of intoxication is not available. This applies even if the intoxication is involuntary or voluntary, specific or basis intent crime or if the drug is dangerous or non dangerous.
Sheehan and Moore 1975- 'we think that the proper direction to the jury is first to warn them that the mere fact the defendants mind was affected by drink so that he acted in a way which he would not have done when he was sober does not assist him at all, provided the necessary intention was there. A drunken intent is nevertheless an intent' Lord Lane
Is this fair and appropriate?
Majewski 1977- 'if a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in the condition... it is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea in an assault case.' Elwyn. This is the same view as in Sheehan and Moore.
Involuntary intoxication- a person is considered to be involuntarily intoxicated where the consumption is not deliberate or where it is pursuant to doctors orders or caused by a non dangerous drunk - eg having a drink spiked, or side effects of agression that are not foreseeable.
Acquitted if this is argued sucessfully.
Hardie 1984 - conviction quashed as couldnt form the mens rea due to the adverse and unforeseeable effects of the ordinary drug.
Voluntary intoxication- is normally no defence but in certain cases it can operate as a partial excuse reducing the level of D's liability. A person is voluntarily intoxicated where he or she has knowingly taken the alcohol or drugs. An error as to the nature or strength of the substance is irrelevant. Allen 1988- argued didnt know alcohol percentage but this didnt work.
A distinction is drawn between 'specific intent' and 'basic intent' crimes. Specific intent= murder, wounding/GBH with intent (S18 Offences Against the Person Act 1861)- only intention suffices as you cant commit recklessly. Basic intent= manslaughter, wounding/GBH (s20 OAPA 1861) ABH s47 OAPA 1961, battery and assault. Can be committed recklessly, taking the risk. It is everything else not in specific.
Is it a worthwhile distinction? Is intoxication really a defence?
Voluntary intoxication is not a defence to basic intent crimes. It is a defence to specific intent if D does not have the mens rea.
For specific intent crimes voluntary intoxication may form a partial defence- reduction of crime eg murder to manslaughter. Logic for this is that there is always a lower crime they can be charged for.
Majewski 1976- 'there is nothing unreasonable or illogical in the law holding that a mind rendered self inducingly insensible (short of MNaughten insanity, through drink or drugs, to the nature of the prohibited act or its probable consequences as is wrongful a mind as one which consciously contemplates the prohibited act and foresees its probable consequences (or is reckless to whether they ensue). The latter is all that is required by way of mens rea in a crime of basic intent. But a crime of specific intent requires something more than contemplation of the prohibited act and foresight of its probable consequences. The mens rea in a crime of specific intent requires proof of a purposive element. This purposive element either exists or not, it cannot be supplied by saying that the impairment of mental powers by self induced intoxication is its equivilant for it is not. So that the 19th C development of the law as to the effect of self induced intoxication on criminal responsibility is jurisdictionally entirely acceptable.' - Simon.
Majewski rules: Caldwell 1982- 'The speech of Lord Elwyn Jones in Majewski with which Lord Simon and I agreed is authority that self induced intoxication is no defence to a crime in which recklessness is enough to constitute the necessary mens rea.'
Dutch courage- AG for NI v Gallagher 1963- 'if a man, whilst sane and sober forms an intention to kill and then gets himself drunk so as to give himself the Dutch courage to do the killing, and whilst drunk carries out this intention, he cannot rely on this self induced drunkeness as a defence to a charge of murder.' Denning.
These rules work well with murder etc but not with theft as there is no lower offence to fall back on.
Drunken mistake- O'Grady 1987- 'where the jury are satisfied that D was mistaken in his belief that any force or the force which he in fact used was necessary to defend himself and are further satisfied that the mistake was caused by voluntary intoxication then the defence must fail.' -Lane You are reckless by being drunk so are still responsible for your actions.
Confirmed in Criminal Justice and Immigration Act 2008 s76(5)- D cannot 'rely on any mistaken belief attributable to intoxication that was voluntary.'
How important are policy considerations in framing the rules regarding intoxication? Are the Majewski rules sensible? Is it fair to say that someone who becomes voluntarily intoxicated has a reckless mind? Does intoxication operate as a defence?
Self defence and crime prevention
Negates liability- acquitted or partially acquitted.
What are some important questions that arise?
- How should the law balance the right to life with the right to defend ones self?
- To what extent does the law suceed in balancing the right to life of those seeking to rely on self defence and the deceased?
- When can someone said to be justified in acting in self defence?
- What is the permittted response to a threat of unjustified harm?
- Should self defence be a complete defence?
- Do homeowners need addditonal legal protection to defend themselves against intruders?
- Do battered women who kill have recourse to an appropriate legal defence?
- Should there be a partial defence of excessive force?
- What are the legal elements of self defence?
- In what contexts does it operate?
A justificatory defence- it isnt an excuse like loss of control and diminished responsibility. They are excuses as they partially excuse what you did but they dont justify it. Justification- you were justified in what you did, completely acquitted, allowed and lawful. Not all buy into it.
General defence- can be used against many crimes. It is also a complete defence. Balancing of harms? When does it become legal?
Burden of proof- defendant has evidential burden. Prosecution has burden of proof. Standard of proof= beyond reasonable doubt. This is all normal. 'It is because it is an essential element of all crimes of violence that the violence or the threat of violence should be unlawful so that self defence if raised as an issue in a criminal trial, must be disproved by the prosecution, if the prosecution fail to do so the accused is entitled to be acquitted because the prosecution will have failed to prove an essential element of the crime, namely that the violence used by the accused was unlawful.' Griffiths.
1) common law defence- can use whenever even if victim is younger than ten.
2) Statutory Defence of Crime Prevention Criminal Law Act 1963 s3(1).
3) tried to codify the two Criminal Justice and Immigration Act 2008 s76 applies both the common law and statutory defence. Cannot use when victim is under age of responsibility, they are not committing a crime. The previous statute and common law defences still exist. Same legal elements- the tests are the same.
Elements of the test- (jury look at these)
1) the use of force must be necessary (subjective)
2) the use of force must be reasonable (proportionality)
Necessity of force- person seeking to rely on the defence must believe his or her action to be necessary. Subjective test.
D is judged on the facts as he believed them. If his mistake was reasonable and honest he will still have a defence.
R v Williams 1984- 'if the defendant may have been labouring under a mistake as to the facts he must be judged according to his mistaken view of the facts, that is so whether the mistake was, on an objective view, a reasonable mistake or not' Lane
The reasonableness of force- the amount of responsive force used must be reasonable in the circumstances. Beckford v R 1988- 'the test to be applied for self defence is that a person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself or another.' This test contains both subjective and objective elements so was problematic.
R v Owino 1995- ' the jury have to decide whether a defendant honestly believed that the circumstances were such as required him to use force to defend himself from an attack or threatened attack.In this respect a defendant must be judged in accordance with his honest belief, even though that belief may have been mistaken. But the jury must decide whether the force used was reasonable in the circumstances as he believed them to be. Objective- had to be proportionate.
Imminence- Devlin v Armstrong 1971- 'a plea of self defence may afford a defence not merely to counter an actual attack, but to ward off or prevent an attack which he honestly anticipated. In that case however, the anticipated attack must be imminent.' MacDemlott. Issues around different interpretation of imminent.
Beckford v R 1988- 'a man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot, circumstances may justify a pre emptive strike.' Griffiths
AG Reference No 2 of 1983- 1984- 'the defence of lawful object is available to a defendant against whom a charge under S4 of the Act of 1883 has been preferred, if he can satisfy the jury on the balance of probabilities that his object was to protect himself or his family or his property against imminent apphrehended attack to meet the force used by attackers.'
A duty to retreat?
R v Julien 1969- 'it is not, as we understand it, the law that a person threatened must take to his heels and run, what is necessary that he should demonstrate by his actions that he does not want to fight. He must demonstrate that he is prepared to temprise and disengage and perhaps make some physical withdrawal.'
D will not have a defence if he uses excessive force. R v Clegg 1995.
Case study 1: Burgulars.
R v Martin 2002- Tony Martin shot two burgulars as they fled from his property, fatally injuring one and wounding another. Convicted of murder and given a life sentence. Case attracted significant attention because it was percieved that home owners should legally be able to defend themselves and their property from intruders. If self defence was available Martin would have avoided criminal liability. This defence was unsucessful- as they were running away judge didnt leave it to jury to decide. In his eyes it was necessary but it was not proportional. The threat had passed. Suggestion he had stored a gun for such an eventuality.
On appeal he tried to allege that his perception of the reasonableness of force was influenced by a paranoid disorder which should therefore be considered. This failed. It was reduced to manslaughter on the grounds of diminshed responsibility, not self defence.
More contraversy- Tony Martins law, the surviving burgular was allowed to sue Martin and given legal aid to do so, Munir Hussain was given 30 months for GHB with intent on a burgular after he was left with brain damage in Dec 2009, Tony Pledge in 2009 and Kenneth Clarke re examined proposals in June 2010.
Was law reform necessary? The law permits the use reasonable force. Should someone who assaults a fleeing burgular benefit from legal defence? Should the law provide some allowance for the fact that a homeowner, in a state of panic or confusion may respond disproportionately?
Legal Aid, Sentencing, and Punishment of Offenders Act 2012 s148- no duty to retreat in the face of trespass to property.
Crime and Courts Act 2013 s 43- (amends s76 of Criminal Justice and Immigration Act 2008) - 'in a householder case the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in the circumstances.'
Self defence involving householders is now treated differently to none house holders which require in s76(6) 'in a case other than a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in the circustances.'
Case study 2
Battered women who kill- R v Aluwalia 1992. She threw petrol on her sleeping husband and set him on fire. He got severe burns and died a week later. She was subject to physical violence at the hands of her husband during their ten year marriage. In the evening before he threatened to beat her up if she didnt give him money. She was convicted of murder but the conviction was quashed on the grounds that the court shouldve considered diminshed responsibility. A was not able to rely on provocation and self defence was not raised.
Typically battered women who kill are required to rely on a partial defence of diminished responsibility or loss of control. Is self defence releveant in such cases? Battered women who kill describe their behaviour as self defence. They percieve the threat and can tell when they are about to be abused. Battered womens syndrome.
Problems with BWWK using self defence : Wheres the imminence or the tipping point? Cant use premptive strike as the threat isnt imminent. Not a reasonable person- not seen as proportionate. The planning is a block on use of self defence. They wont justify the actions of battered women. It may not be seen as necessary.
Should we be concerned about gender bias? Is law reform required? Is it more appropriate to rely on loss of control or diminished responsibilty? Should there be a defense of excessive force?