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Defences Notes

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Criminal Law : Defences Infancy
?????Children below Ten o Under Children & Young Persons Act 1963, s16, children below 10 are conclusively presumed to be incapable of being guilty of any offence: doli incapax.
?????Children above 10: o Until 1998, there was a similar presumption for children 10-14, although this presumption was rebuttable by prosecution. o Crime and Disorder Act 1998, s34: abolished the presumption for 10-14 year olds. o R v T (2008), CA: defence of doli incapax can never apply to children over 10.

?????Defence: a way to negate the MR.
?????Woolmington: Prosecution need to prove, beyond reasonable, that D has committed the AR with necessary MR. So if D didn't have necessary MR due to intoxication, then full acquittal.
?????Bennett: judge direct jury to consider whether reasonable possibility that D did not form the MR.
?????Evidential burden on D to raise issue of intox; then prosecution must show beyond reasonable doubt that D formed necessary MR.
?????Consider 3 questions: o Voluntarily or involuntarily intox?
o Alcohol/dangerous drug or non-dangerous drug?
o Basic or specific intent crime?
Voluntary intox by alcohol or dangerous drugs
? ?? ? DPP v Majewski: o Voluntary intox defence to specific intent crimes only; o not to basic intent.
?????(R v Pordage) whether D formed the MR, not whether capable of forming MR (CF Beard).
?????R v Kingston: drunken intent is still an intent (release of inhibitions does not equal lack of MR).
?????Re aggravated crim dam o R v Heard: aggravated crim dam = specific intent crime (so voluntary intox is a defence); o R v Coley, McGee and Harris: Heard only obiter, aggravated crim damage - basic intent crime, voluntary intox not a defence. 1

? ?? ? Where basic intent crimes, defence not available, what to do:
?????Can't use intox to show didn't form MR.
?????Ask jury: would D have seen risk if had been sober o Lord Salmon Majewski; Judicial Studies Crown Court Book; R v Coley, McGee and Harris. Involuntary intox
?????Defence available for basic & specific intent crimes (Kingston)-? defence to use intox to show didn't form MR.
? ?? ? R v Allen: but ignorance of strength of drink which has been voluntarily taken does not make the intoxication involuntary
[i.e. getting more drunk than you expected is still voluntary intox]].

Voluntary intox by 'non dangerous drugs'
?????R v Hardie (re valium)---is a defence, can use to show no MR for specific & basic, unless was reckless in taking the drug: o Specific intent crime ? same as voluntary intox by dangerous drugs, defence re not forming MR. o Basic intent crime: ask was D reckless in taking the drug? Did foresee likelihood of making do something unpredictable. If yes, the MR is formed. Specific intent crimes:
?????Burglary under s9(1)(a) TA and s9(1)(b) where D has fulfilled the last element by stealing, attempting to steal or attempting to cause GBH.
?????S2 and s3 Crim Damage Act 1971.
?????Attempt & Conspiracy.
?????GBH-s18 OAPA. Basic intent crimes
?????Burglary under s9(1)(b) where D has fulfilled last element by causing GBH.
?????S1(1) and s1(2) Crim Damage Act.
?????Unlawful Act & gross neg manslaughter.
?????GBH s20 OAPA.
?????Assault & battery
?????Assault occasioning ABH.

2 Re statutory defences 'honest belief' defence to Crim Damage s5(2)(a); and theft, s2(1)(b) TA:
? D can use this defence of 'honest belief' even if his belief is due to voluntary intox (Jaggard v Dickinson) re crim damage.
? Same applies for theft s2(1)(b). Effect of Intoxication on other offences
?????Intoxication and self-defence o If D makes a drunken mistake as to need to use self-defence, he cannot rely on that mistake (R v O'Grady; Hatton).
?????Consent o Court reached strange decision re a drunken belief in consent in R v Richardson and Irwin (1999): Ds were uni students; after drinking, horseplay ensured, during which Ds lifted and dropped the victim over a balcony where he fell a distance of 10-12 feet, sustaining injuries. Ds charged under OAPA s20---convicted---appealed. o CofA upheld appeal and quashed convictions, on basis that there had been a misdirection by the trial judge. Stated:
? (1) if the jury were satisfied that V had in fact consented to the accidental infliction of injury, this would be a defence;
? and (2) the jury should have been allowed to consider whether D believed that V consented, even if Ds wrongly believed that V consented due to their intoxication!
o See also R v Aitken (1992): similar conclusion.
?????Loss of control/diminished responsibility (re murder) o Loss of self-control: o When considering the Coroners & Justice Act 2009, s54(1)(c), and deciding whether the normal person might do as D did, the reaction must be that of a person with normal levels of tolerance and self-restraint. o However, a drunken D is not precluded from using the defence. See: R v Asmelash. o Diminished responsibility: o Intoxication is no bar to a plea of diminished responsibility, as the issue for the jury is whether the D was suffering from an abnormality of mental functioning that substantially impaired his ability to do one of the things stated within the Homicide Act 1957.
?????Duress & duress of circumstances o If a D is using defence of duress/duress of circumstances, and claims he made a mistake because intoxication, he cannot rely on that mistake, because he must have a reasonable belief that he was under threat, and the reasonable man is never drunk.
?????Statutory Defences to specific crimes: 3

o Where there is a statutory offence that allows for an honest belief, D will be able to use this defence even if his belief is due to his voluntary intoxication (Jaggard v Dickinson (1980)---re Crim Damage Act 1971, s5(2)(a). o Eg Criminal Damage---s5(2)(a) Crim Damage Act 1971. o Similarly, a D who believed that the owner would consent to D's appropriation of the owner's property will not be dishonest, by virtue of s2(1)(b) Theft Act 1968, so will not be liable for theft.

4 Self-defence
?????S3(1) Criminal Law Act 1967: statutory defence for prevention of crime; and assisting in the arrest of an offender.
?????Common law self-defence o Defence of property: Hussey o Defence of another: Gladstone Williams
? Codified in: S76 Criminal Justice & Immigration Act 2008---only governs the 'response' limb, householder/non-householder
?????A complete defence, all or nothing (R v Clegg)---if works, gives acquittal.
?????Cannot use self-defence to protect against psychological harm/'peace of mind' (R v Bullerton). Trigger---was it necessary to use force
? Did D honestly believe the use of force was necessary.
? Take facts as D believed them to be, even if mistaken, even if unreasonable---R v Gladstone Williams
? D cannot rely on a drunken mistake, voluntary intox (O'Connor; Hatton).
? Anticipatory/pre-emptive strike allow (Beckford; Devlin v Armstrong, re petrol bombs kept; AG Ref No 2 of 1983 re petrol bombs kep after attacks in Brixton riots. ).
? No duty to retreat (Bird---way to remember: don't need to fly away)---but can be a relevant factor in deciding if reasonable. [also: s76(6)(a)].
? D can use self-defence even if D is aggressor (Forrester; Rashford).
? Force can be used against an innocent 3rd party (Hichens). Response---was the level of force used reasonable
?????S76 Crim Justice & Immigration Act 2008. S1(b): whether 'reasonable in all the circumstances'.
?????Objective test: was the amount of force used reasonable?
?????Householder: o Householder defined in s76(8A). o Dwelling house re mixed use building---s76(8B) o Force not reasonable if 'grossly disproportionate' (s76(5A)). o Denby Collins (Sir Brian Leveson), 2-limb test:
? (1) [s76(5A)]: if force was 'grossly disproportionate' in the circumstances ? no defence.
? (2) [see: s76(7)(a)-(b)]: If not 'grossly dis', then jury must ask whether 'reasonable'. 5

? So can be 'reasonable' and 'disproportionate'.
?????Non-householder: o S76(6): force must not be disproportionate to the circumstances.

?????Points for both (householder & non) o Whether force was 'reasonable': Objective test, but according to the facts as D believed them to be (Owino; s76(3). [[so objective test, but given facts as D subjectively believed them to be]]. o Even if mistaken, even if unreasonable mistake (Owino; s76(4)). o Cannot attribute mistaken belief to voluntary intox (s76(5); Hatton). For defence to work, he must have believed it regardless of whether drunk. S76(6): force must not be disproportionate. If he would have made the mistake anyway, if sober, can rely on the mistake. So ask: did he make the mistake because he was drunk, or would he have made it anyway?
o D judged not just on circumstances as he believed them to be; but also on the danger as he believed it to be (Harvey). o Press & Thompson: a soldier, had just completed tour of Afghanistan, was able to rely on psychiatric evidence re PTSD to substantiate his mistaken beliefs.
?????Jury should consider that D may have acted 'in the heat of moment' (s76(7)(a)): o AG Ref for N Ireland (No 1 of 1975): balancing of risk undertaken in the 'brief second or two' in circumstances. o Palmer--D 'cannot weight to a nicety' the exact measure of his necessary defensive action. o Reed v Wastie: don't use 'jeweller's scales'.
?????S76(7)(b), from Palmer: if D did what he honestly and instinctively thought was necessary = good evidence that he did only use reasonable force.

6 Duress
????Once D has raised the defence, burden of proof is on

prosecution to disprove---but only need disprove 1 element (Hasan)

Duress by threat

??? ?Complete defence ? acquittal.
? ?? ? 7 requirements, R v Hasan, Lord Bingham (confirming CA, Graham).
??? ?(1) Threat must be of death or serious injury o Not threat to property: Lynch.
??? ?(2) Threat is to D/immediate family/somebody D reasonably regards himself as responsible for o Can feel responsible for ppl you didn't know (Shayler).
??? ?(3) Objective test re D's belief in threat and appropriateness of response: o (i) reasonable belief threat was made. o (ii) Reasonable belief/good cause to fear threat would be be carried out
? Belief must be reasonable as well as genuine (CF selfdefence, can be unreasonable mistake). o (iii) Reasonable man (Sober man of reasonable firmness), sharing D's characteristics, would have done what D did?
? What characteristics to attribute to reasonable man?: age, sex, average firmness.
? Bowen: can consider recognised psychological conditions, but not low IQ (or pliability, vulnerability, timidness, emotionally unstable, alcohol)
? Can consider physical characteristics/illnesses, eg person with haemophilia, brittle bones, pregnancy, elderly, would have more to fear from violence than an average person.
? Proportionality, Abbott: whether crime committed proportional to threat made; more harm caused to 7

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