Transcript Slide 1

Defences 2
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In this lecture we will consider:
Mistakes which negative the mens rea.
Mistakes which provide an excuse.
Mistake and transferred malice.
The availability of intoxication as a defence –
the rule in Majewski.
• The effect of successfully pleading the
defence.
• Limitations on the intoxication rules.
The defence of mistake
• A defendant charged with a criminal offence
may assert that he committed the act under a
mistaken belief, e.g. he may have believed
the property he intentionally damaged was
his own or that he was acting in self defence
when he injured V.
• To what extent, if at all, should the law allow a
mistake on D’s part to negative his criminal
liability?
Mistakes negativing mens
rea
• A mistake of fact/civil law which results
in D not having mens rea for the crime
will mean that one of the essential
elements of that crime is lacking and D
will not be liable. Such a mistake need
only be honest (as opposed to also
being reasonable) (D.P.P. v Morgan
(1976)).
• Sometimes what appears to be a
mistaken belief in the existence of facts
which, if true, would have provided a
defence on the basis that D acted
lawfully in self defence / prevention of
crime is, on further analysis, a denial of
mens rea.
Examples
• The offence of battery is defined in
terms of “unlawful" application of
force.
• S.20 OAPA 1861- "unlawful" and
malicious wounding/inflicting gbh.
• A mistaken belief on D’s part that he was
acting in self defence/to prevent crime is a
denial that he intended/was reckless as to
applying "unlawful" force/as to "unlawfully”
doing some physical harm.
• i.e. a denial of mens rea because
“unlawfulness" is a definitional element of
such crimes (to which the mens rea extends)
(Beckford (1988)).
• Thus, only an honest belief acting in self
defence etc needed.
A reasonable mistake which
provides an excuse
• Prior to Morgan, it was asserted in some
cases that, where D acted under a mistaken
belief in the existence of facts which, if they
were true, would have meant an element of
the actus reus could not be proven, the
offence would be treated as one where an
honest and reasonable mistake as to this
element of the actus reus will excuse D.
• Most of these cases have arisen in the
context of bigamy, see eg Tolson (1889),
where the only intention required is that to go
through a ceremony of marriage. Mens rea is
not required as to the actus reus requirement
of “being married.” Negligence only is
needed. (So a D who mistakenly believes her
spouse is dead and remarries would only
have a defence to a bigamy charge if the
spouse later turns up if her belief was a
reasonable one.
• Morgan did not overrule Tolson.
• However, note the possible effect of B v
DPP (2000) (which involved mistaken
belief as to the age of V in age-based
sexual offences). It is now likely that an
honest belief is a good defence, even if
unreasonable, except possibly in
bigamy cases.
• Lord Nicholls stated in B v DPP that the
requirement that the belief had to based
on reasonable grounds was a:
• relic from the days before D could give
evidence in his own defence [which
explained why a jury would determine
D’s state of mind] by the conduct to be
expected of a reasonable person.”
• and that
• “there has been renewed emphasis on the
subjective nature of the mental element in
criminal offences. The courts have rejected
the reasonable belief approach and preferred
the honest belief approach. When mens rea
is ousted by a mistaken belief, it is as well
ousted by an unreasonable belief as by a
reasonable belief. …It is D’s belief, not the
grounds on which it is based, which goes to
negative the intent.”
• Irrelevant mistakes
Mistake and transferred
malice
• Where D, with the mens rea of a crime,
brings about the actus reus of that crime
on an unintended V or object, the
doctrine of transferred malice can be
used to find him guilty - any alleged
mistake on his part as to the
person/object he intended to harm is
irrelevant, see Latimer (1886).
The defence of Intoxication
• "I was drunk", is an excuse/ justification/
explanation put forward on occasions by
persons for things they have done
which, ordinarily, they would not have.
As we shall see, however, it will only
afford a defence in limited
circumstances.
Intoxication negativing
mens rea
• Evidence that D was intoxicated when
he committed the actus reus may result
in a finding that he lacked the mens rea
required for that offence = not guilty.
• There are, however, policy
considerations.
The rule in Majewski (1976)
• Self-induced intoxication which results in D
having no mens rea for the offence charged is
a "defence" to a crime of "specific intent" but
not to any other crime (a crime of basic
intent).
• D is presumed to be reckless in voluntarily
becoming intoxicated and this recklessness is
sufficient mens rea for an offence of basic
intent (see dicta of Lord Elwyn-Jones).
Problems with Majewski
Rule
• It conflicts with s.8 CJA 1967.
• Ld Elwyn-Jones in Majewski stated that
the reference to “all the evidence” in s.8
meant all the “relevant evidence” and,
as there is a substantive rule of law that
in crimes of basic intent evidence of
intoxication is irrelevant, it cannot be
considered.
• The recklessness in getting drunk does not
coincide in point of time with the actus reus of
the offence - it precedes it.
• D’s recklessness is in relation to the effects of
the intoxicant e.g. inability to control his
actions, whereas the mens rea required for
an offence is recklessness as to a
consequence of his actions e.g recklessness
as to causing some physical harm.
Scope of the Rule
• Applies to self-induced or voluntary
intoxication i.e the intentional taking of
alcohol or drugs, being aware that one
is taking such substances.
• Where D knows he is drinking alcohol it
is irrelevant whether he knows the
precise nature or strength of the alcohol
(Allen (1988)).
The rule applies to intoxication
by alcohol or "dangerous" drugs.
• Lipman (1970)- all types of drugs were
equated with alcohol. However, see
Bailey (1983) and Hardie (1985) which
suggest that a drug can only render D a
voluntary intoxicant where it is generally
known in the community at large that
the drug can render the user
aggressive/unpredictable.
• Rule applies only where D actually
lacks mens rea because of the
intoxication as a drunken intent is still
an intent.
• Burden of proof remains on prosecution
to establish that, despite D’s
intoxication, he still formed the intent,
see Sheehan (1975).
• Voluntary intoxication is only a defence
to crimes of specific intent.
• What exactly is a crime of specific
intent?
• What if D pleads intoxication on a crime
of basic intent? Consider the possible
effect of Richardson (1999).
How the Majewski rule
operates
• Where D successfully pleads no mens
rea in relation to a crime of specific
intent he will only be acquitted if there is
no lesser related basic intent offence as
if there is he will be convicted of that
offence instead.
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A few examples illustrate the point:
murder -> manslaughter
s.18-> s.20
theft -> an acquittal
Limitations / qualifications
on the intoxication rules
• The distinction between dangerous and
soporific drugs
• In Hardie (1985), the CA stated that if D was
intoxicated at the time of the actus reus
through taking a soporific drug e.g. valium, so
that he lacked the mens rea for the offence,
he ought to be acquitted provided he was not
reckless in taking the drug.
• Intoxication induced to give “Dutch courage”
• Even in crimes of specific intent, D cannot
use evidence of intoxication to plead lack of
mens rea at the time of committing the actus
reus if he deliberately got himself into that
state after forming the mens rea (Att Gen for
N. Ireland v Gallagher (1963)).
• Involuntary Intoxication – this follows the rule
in Kingston (1994):
• (i) If D was an involuntary intoxicant but was
still capable of forming the mens rea for the
offence in question and actually did form the
mens rea, he is still liable - a drugged intent is
still intent.
• (ii) Involuntary intoxication is a defence to any
crime, be it of specific or basic intent,
provided it had the effect that D lacked the
mens rea for the offence.
• Intoxication giving rise to a belief in a defence
• In certain statutory offences, the statute
expressly states that D will not be liable if he
held a certain specified belief and that such
belief need not be reasonable.
• Thus, the belief need not be a sober one. See
e.g. Jaggard and Dickinson (1980).
• Although a mistaken belief that one is
being attacked or as to the severity of
an attack will entitle D to respond with
reasonable force to defend himself
against an attack of the severity he
believed it to have, a mistaken belief of
this sort which was induced by drink
would not, see O’Grady (1987) which
was followed in O’Connor (1991).
• The effect is that if D is so intoxicated
that he lacks the mens rea he is not
liable for murder but if he was drunk and
believed that he was defending himself
when he killed, he cannot rely on his
mistaken belief in self defence.
• Mistaken belief in consent
• In Richardson, the court held that
evidence of intoxication can be taken
into account on the issue of D’s
mistaken belief in the victim’s
consent.
• Intoxication and excusatory defences
• D’s unreasonable belief that acted under
duress will afford a defence (Martin (David
Paul (1989)) However, the decision is
probably incorrect as it is inconsistent with an
earlier decision of the HL. Thus, it is unclear
whether D could rely on a drunken mistaken
belief in duress.
• Intoxication giving rise to insanity
• Where intoxication brings on a "disease
of the mind" so that D is (temporarily)
insane, he will be found not guilty by
reason of insanity (DPP v Beard 1920))
but would obviously face the
consequences of such a finding.