Criminal Law - Defences 1: Intoxication and Consent
Intoxication
Way to negate mens rea of offence
Influencing factor on another legal principle/defence
If able to use evidence of intoxication to show did not form necessary mens rea, then would be entitled to full acquittal
R v Bennett (1995) - judge obliged to direct jury where reasonable possibility that accused did not form MR
R v Pordage (1975) - about whether did or did not form mens rea, not about whether capable of forming it
R v Kingston (1995) - If unable to show it negated MR, no defence to say would not have behaved as they did if they weren't intoxicated - loss of inhibition not enough
Need to ask:
Voluntary or involuntary intoxication?
If involuntary may work to negate crimes of specific or basic intent
Dangerous alcohol/drug or non-dangerous drug?
If non-dangerous may work
Crime of basic or specific intent?
If specific may work - DPP v Majewski (1977)
Or if taken voluntarily in bona fide pursuance of medical treatment
R v Allen (1988) - if aware drinking alcohol but mistaken as to strength, will still count as voluntary
If basic intent cannot be a defence if would have seen the risk if had not been intoxicated (R v Coley, McGhee v Harris, R v G)
Specific intent - intention only form of MR i.e. recklessness insufficient
Dangerous and non-dangerous drugs - drugs divided into two categories
R v Hardie (1985) - where common knowledge that liable to cause taker to become aggressive, then is to be class with alcohol as dangerous
Generally will not be a defence, whether specific or basic intent
Loss of self-control
Coroners and Justice Act 2009 s54(1)(c) - whether consider if normal person would have acted like that, considered on basis of person with normal levels of tolerance and self-restraint
However drunken defendant not precluded from using as defence - R v Asmelash
Diminished responsibility
Intoxication not a bar to plea - issue is wheher suffering from abnormality of mental functioning that substantially impaired ability to do one of the things stated in Homicide Act 1957
Duress and duress of circumstances
Precluded from using - cannot say made mistake because intoxicated because about reasonable belief that under threat - reasonable man is never drunk
Self-defence
Cannot rely on drunken mistake as to need to use self-defence
Consent
Can rely on drunken belief in consent - R v Richardson and Irwin (1999)
R v Aitkin (1992)
Statutory defences
Able to use where statutory defence allows for honest belief, can use even if mistake due to intoxication - Jaggard v Dickinson (1980) - Criminal Damage Act 1971. s5(2)(a)
If believes owner would consent to appropriation of goods - will not be dishonest and therefore not liable for theft by virtue of s2(1)(b) Theft Act 1968
Consent
Statutory defence for property offences - Criminal Damage Act 1971 s5(2)(a) - Theft Act 1968 s2(1)(b)
For purposes of this course treated as defence - Lords Jauncey and Templeman in R v Brown (1994)
Two elements
Victim consented
Defendant believed they consented
If wrongly believed in consent, defence may still be available - R v Richardson and Irwin
If victim consent, but defendant did not know, defence may be available - depends on level of harm and circumstances
Defence Against the Person
General rule - can only consent to assault and battery - AG's Reference (No 6 of 1980)
Confirmed in R v Brown
Unless falls under accepted "good reason" - Lord Jauncey
Extended consent in R v Meachaen (2006) - available as defence where only intended to commit battery and didn't forsee risk of inflicting actual bodily harm or worse
Not clear as to defence is have consent and intended to cause actual bodily harm or worse
Exceptions
Medical treatment
Sport - incidental injury caised while playing within rules
R v Barnes (2005) - cannot go beyond what player could reasonably have been regarded as having accepted by taking part - prosecution reserved for when conduct sufficiently grave to be categorised as criminal
Considers type of sport, level, nature of act, degree of force, extent of risk, state of mind
If competitive enough, conduct outside rules might be expected in heat of the moment - doesn't mean necessarily criminal
R v Billinghurst (1978) - consent to force of "a kind which could reasonably be expected to happen during a game - considered "on the ball" and "off the ball" play
Horseplay
R v Jones (1986)
R v Aitken (1992)
R v Richardson and Irwin - criticised decision
Tattooing/Personal Adornment
R v Wilson (1997) - interesting contract to R v Brown
Sexual gratification/accidental infliction of harm
R v Dica (2004) - complaintant consented to risk of contracting HIV - held to have defence
Judge LJ: "It does not follow that consensual acts of sexual intercourse are unlawful merely because there may be a kown risk to the health of one or other participant."
R v Brown - held not to have defence - considered nature of act rather than circumstances in which it occurred
However not possible to consent to deliberate HIV infection - HIV is GBH
R v Boyea (1992) - fist insertion - defence not allowed
R v Emmett (1999) - plastic bag over head and setting fire to breasts - defence not allowed - held that so violent it moved beyond those acts which can be consented to
R v Slingsby (1995) - fist insertion - damage caused by ring defendant had forgotten about - no intention and did not see risk - defence allowed due to no mens rea for assault or battery - accident
Consistent with Meachaen - did not intent or see risk - Professor Sir John Smith believes Boyea should have been decided in same way
Lawful correction of a child
R v Hopley (1860) - reasonable chastisement - not open to challenge under ECHR Article 3 - no one should be subjected to torture or inhuman or degrading treatment
R v H (2002) - considers nature and context, duration, physical and mental consequences and reasons - also governed by Children Act 2004 s58