DEFENCES

  • Created by: Lucy J M
  • Created on: 08-06-19 14:56

VOLUNTARY INTOXICATION

As D had taken... he can claim voluntary intoxication, where D is under the influence of alcohol, drugs or solvents of his own accord. It is not a real defence but used to show D may not have the necessary mens rea.

As D has committed S.18 GBH with intent, this is a specific intent intent crime which means the mens rea can only be intention. Voluntary intoxication can show D did not have the necessary mens rea (intention) for the crime and it can be lowered to the basic intent option. Eg. Sheehan and Moore murder reduced to manslaughter. However, if D has the mens rea for the crime then drunken intent is still intent (AG for NI v Gallagher). Here, the effect of intoxication may reduce Ds charge of S.18 to S,20 GBH.

As D has committed assault/ battery/ ABH/ GBH this is a basic intent crime which means the mens rea only has to be recklessness. Voluntary intoxication is no defence because Ds conduct in becoming intoxicated is when he forms his recklessness (Majewski, Lipman). Here the effect of intoxication will be no defence for D.

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INVOLUNTARY INTOXICATION

As D took... without his knowledge because... he can claim involuntary intoxication, where D is under the influence of alcohol or drugs without his knowledge. It is only a defence if D does not have the necessary mens rea. 

In Kingston involuntary intoxication failed as he had the necessary mens rea and the intoxication simply took away any resistance. However, in Hardie it succeeded as the drug had an involuntary effect and D had not been reckless in taking it. Here, involuntary intoxication will...

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SELF DEFENCE

When D... he could claim self defence which is available when D uses force to protect himself, another or property (common law) or to prevent a crime (S.3 criminal law act 1967). It must be necessary and reasonable and the jury decide (Bailey). 

To decide if it is necessary S.76 Criminal justice and immigration act 2008 states D can rely on a genuine belief of circumstances even if mistaken and unreasonable, eg. Williams.  D does not need to show a reluctance to fight (Bird), can strike first (Beckford), and can prepare for an attack (AGs ref 2 of 84). Here, the force was necessary because... (why)

The amount of force must be reasonable in the circumstances. The CJ&IA 2008 states D does not have to weigh up the exact measure of force as long as he acts honestly and instinctively. The degree of force must be measured against the circumstances as D believed them to be. It will fail if the force was excessive (Clegg). Here, Ds force was reasonable because...(how much)

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CONSENT

When D... he could claim the defence of consent. This means V has given permission. It is only available for assault or battery (Brown). Eg, v consented to battery in Slingsby. V must consent to both the nature and quality of the act (Tobassum, Dica). Consent is not allowed for other defences as it is not in the public interest that people harm eachother for no good reason (AGs ref 6 of 89). However, there are exceptions if the act has a social purpose (Brown).

CHOOSE WHICH APPLIES ONLY

HORSEPLAY: D can claim V consented to horseplay as long as he had an honest belief. In Jones even though D threw V in the air and failed to catch him, consent was allowed as Ds belief was honest. In Aitken when D set fire to V his mistken belief was allowed. In Richardson and Irwin when Ds threw V over a balcony their drunken mistaken belief was allowed. Here. as long as D honestly believed V consented to... it does not matter if he was mistaken.

CONTACT SPORT: D can claim V consented to contact sport. Games such as wrestling and boxing (within the rules) and other sports eg, football, rugby, ice hockey, within course of play can be consented to. In Billinghurst it failed as the contact was outside the scope of the game of rugby. Here, as D and V were playing... and as long as it was part of the game, D can claim consent.

BODY ADORNMENT: D can claim V consented to body adornment such as tattoos (Brown) and branding (Wilson). Here, as D did... to V, this may be seen as body adornment and therefore harm that can be consented to.

SURGERY: D can claim V consented to surgery in which he suffers a wound.

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AUTOMATISM

When D... he could claim the defence of automatism. It is 'an act done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion, or an act done by a person who is not conscious of what he is doing...' (Bratty v AG for NI).

D must act with a total loss of consciousness or control. There must be a total destruction of voluntary control (AGs Ref 2 of 93). It fails if the loss of intermittent or D maintains enough control (Broome v Perkins). The cause must be external, eg, swarm of bees (Hill v Baxter), PTSD (R v T), sneezing (Whooley), effect of a drug, hypnosis, blow to the head. It cannot be self induced (Bailey). Here, D can claim automatism because the external factor of... caused him to...

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INSANITY

When D... he could claim the defence of insanity. This uses a legal definition rather than a medical one. It comes from the M'Naughten rules. First 'in all cases, every man is presumed to be sane'. To prove insanity D must suffer a defect of reason from a disease of the mind and D does not know the nature and quality of his act, or does not know it is wrong. D proved it on the balance of probabilities and is not guilty by reason of insanity. 

Defect of reason means Ds powers of reasoning are imapired, absent mindedness or confusion is not enough (Clarke). Ds powers of reasoninf are impaired because...

Disease of the mind must be internal (Quick) but can be mental or physical as long as it affects Ds mind. Eg, blood condition (Kemp), epilepsy - can be permanent, transient or intermittent (sullivan), diabetes (Hennessey), sleep disorder (Burgess). Ds internal condition is...

D must not know the nature and quality of his act or not know it is wrong. This means D does not understand his act. If D knows his act is wrong insanity fails, even if he has a mental illness (Windle). D does not know the nature and quality of his act because...

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DURESS

When X says... to D, this may be the defence of duress, which can result in an acquittal. D is forced to commit a crime becayse of a threat of death or serious injury. There can be a threat of other things (eg, Valderrama Vega to disclose homosexuality) but as long as it is also with a threat of death or serious injury it is allowed. It can be aimed at D or family/ friends (Martin- Ds wife, Conway- passenger in Ds car). It must be for D to commit a specific crime or it fails (Cole).

The 2 part test from Graham must be satisfied. Here D honestly believed life was in immediate danger because... As it is subjective, Ds mental condition can be considered (Martin) as long as his belief is genuine and reasonable (Hasan).

Here, a sober person of reasonable firmness (sharing Ds characteristics) would respond in the same way (objective). Age, gender, physical health but not low IQ (Bowen) or vulnerability (Hegarty) can be taken into account. Ds characteristics of... can/ not be considered.

* If D brings the duress on himself it will not be allowed. In Sharp duress failed as he knew the gang were violent when he joined whereas in Sheperd it was allowed as he had no knowledge the gang would use violence. Here it may fail because... 

*Duress fails if there is time to escape/ raise the alarm (Gill) unless raising the alarm would be ineffective (Hudson and Taylor). Here...

*The threat must be able to take effect as soon as the crime is committed but can 'hang over D' (Abdul-Hussain). Here...

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DURESS OF CIRCUMSTANCES

When D finds himself in the situation of... he could argue the defence of duress of circumstances. It means there is a threat of death or serious injury because of the situation D is in. If successful, D will be acquitted. It was first used in Willer for reckless driving offence. The first criminal use was in Pommell.

The 2 part test from Graham must be satisfied. Here D honestly believed life was in immediate danger because... As it is subjective, Ds mental condition can be considered (Martin) as long as his belief is genuine and reasonable (Hasan).

Here, a sober person of reasonable firmness (sharing Ds characteristics) would respond in the same way (objective). Age, gender, physical health but not low IQ (Bowen) or vulnerability (Hegarty) can be taken into account. Ds characteristics of... can/ not be considered.

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DEFENCES

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