In this blog post, we will be considering some of the defences that defendants can use when they are facing criminal charges. There are quite a few of these defences, so we will cover some in this blog post and some in my next blog post. We will be considering the general defences that can be used for a range of criminal offences. There are also other ones that can only be used for particular criminal offences, but we will be focusing on the general ones today.
The defences that we will be considering in this blog post are intoxication, self-defence, prevention of crime, and mistake. In my next blog post, we will be looking at the defences of duress, necessity, insanity and automatism.
Intoxication
Voluntary
Intoxication may be caused by alcohol or drugs and can be further divided into two separate defences – voluntary and involuntary, which apply in different ways. Voluntary intoxication is where the defendant had the alcohol or drugs of their own volition, without being coerced or having them unknowingly. This can be used as a defence to a crime of specific intent, where it can be proved that the defendant did not have the mental capacity to form the required intention.
However, it will not apply where the defendant deliberately got themselves intoxicated to ensure they went through with the criminal act, as they had already formed the necessary intent before they became intoxicated. In addition, voluntary intoxication is no defence to crimes of basic intent, where recklessness would be sufficient to prove intent, as they have already shown recklessness by becoming intoxicated.
Taking a non-dangerous drug, such as those issued on prescription, may also count as voluntary intoxication. This will depend on the defendant’s awareness of the effects of that drug in the quantity and conditions under which it was taken.
Involuntary
Involuntary intoxication occurs when the defendant was unaware that they were having the drugs or alcohol that caused the intoxication. This most commonly occurs when their food or drink has been spiked. However, being ignorant of the strength or effect of alcohol or drugs will not count as involuntary intoxication.
It should be noted that involuntary intoxication will not be a defence if the defendant had already formed the intent prior to becoming intoxicated. The reasoning for this is simply that the intoxication has nothing to do with them deciding to commit the criminal act – they had already formed this intent.
Self-Defence
Self-defence can be used as a defence to crimes committed with force and occurs where the defendant acted in the way that they did to defend themselves from being injured. However, they may only use reasonable force to do this.
To establish whether reasonable force was used, the courts use a two-part test. The first question that they will ask is whether the use of force was necessary under the circumstances. This looks at whether there was any need for force to be used at all. Could the situation have been resolved in a different way, such as the defendant moving away? If the use of force was not necessary, self-defence does not apply.
The next thing to consider is whether the force used is reasonable in the circumstances. The defendant does not have to wait for the other person to attack first, but the force used should be reasonable, so, for example, using a knife would probably not be a reasonable response to being slapped.
Both of these tests are subjective, meaning that they are based on what the defendant honestly believed at the time of the incident. However, the court must then ask whether a reasonable person with the same characteristics as the defendant would have acted in the same way, adding an objective element.
Prevention of Crime
Prevention of crime operates under the same rules as self-defence regarding the necessity and reasonableness of any force used. However, prevention of crime arises as a defence where the defendant was trying to stop someone from committing a criminal act. It is particularly important to pay attention to the question of necessity here, as a crime like shoplifting would probably not need the defendant to take action.
Mistake
The defence of mistake can be used if the defendant genuinely believed something that caused them to commit the crime. If a defendant successfully pleads mistake, they will not have formed the mens rea necessary for the crime and so they cannot be found guilty. Mistake can be used in conjunction with the defences of self-defence or prevention of crime, where the defendant honestly believed they needed to use force.
A mistake as to law will not usually be a defence, as it is no defence for the defendant to be unaware of the law – they are responsible for finding this out.
A mistake of fact can form a successful defence if the result of the mistake is that the defendant has no mens rea. The mistake must be honest but does not need to be reasonable.
Wrapping Up
You should now have a good grasp of these four defences in criminal law. Next time, we will be considering the remaining four, so come back in two weeks for that!
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