Terminology -
Defences = legally recognised explanations for a defendant’s actions, which have the
consequence of excluding her criminal liability.
Full/partial defences.
True defences, failure of proof defences:
“What we think of as the definition of an offence and what we call a defence can
only be regarded as depending largely upon the accidents of language, the convenience
of legal drafting, or the unreasoning force of tradition” - Glanville Williams (1982)
Murder: unlawful killing of a person under the Queen’s peace with the intention to kill or
case GBH.
Diminished responsibility and loss of control are partial defences to murder - does
not lead to a full acquittal, only reduced offence (manslaughter).
True defences are full defences - e.g., self-defence.
Murder is a specific intent crime so intoxication is a partial defence to murder.
Justifications and Excuses - definitions
- Justification = D’s act is not wrongful, because it is justified by the circumstances;
justified conduct is correct behaviour which is encouraged or at least tolerated by
society.
- Excuse = D’s act is still wrongful, but it should be excused given the circumstances.
An excuse represents a legal conclusion that the conduct is undesirable, but D is not
morally to blame for it.
Justifications and Excuses - difficulties
Courts do not seem to have much respect for the distinction:
“I do not think it matters whether these defences are regarded as justifications or
excuses. Whatever label is used, the moral merits of the defence will vary with the
circumstances” Robert Walker LJ in Re A (Conjoined Twins) (2000) 4 All ER 961 at
1064
Distinction between the categories is often blurred.
Defences can be classed as both a justification and an excuse:
“In general no excuse is accepted into the criminal law which is not also a partial
justification, and no justification is accepted which is not also a partial excuse” (J.
Gardner (1996) “Justifications and Reasons” in A.P. Simester and A. T. H. Smith (eds)
Harm and Culpability).
Justification and Excuses - alternatives and significance.
Additional category: exemptions (e.g., insanity)
Significance of distinctions:
- justifications change the law, excuses/exemptions do not - excuses are more seen as
exemptions in today’s law e.g., children’s liability.
- excuses/exemptions do not change/alter the law, justifications do e.g., if a man shot
his neighbour’s dog because it was attacking his baby, and this was seen as a
justification, this would alter the law.
- resistance against (a police officer is justified to use force while conducting a lawful
arrest where the person resists) or assistance of an aggressor (where A helps B
attack C when C attacked B first, this is lawful under self-defence. But, where A helps
, B attack C where B is lawfully insane, A cannot rely on a defence and this is
unlawful).
- strict liability offences -
- mistakes over circumstances - laws view today on mistakes (e.g., you attack
someone believing they were attacking you), the mistake must be a genuine belief -
does not have to be reasonable. However, those who make a mistake as to an
excuse (e.g., duress) this mistake has to be reasonable.
INTOXICATION
Introduction -
Clear evidence of consistent association between alcohol and violence - significant number
of cases are committed by those intoxicated.
Research studies have found that over 50% of domestic abuse cases occurred while D is
intoxicated.
Loosened inhibitions (would not have committed the offence when sober)/lack of mens rea
(did not know what they were doing): R v Lipman (1970) 1 QB 152 (D was a drug addict and
while on an LSD trip had the illusion of descending to the centre of the earth and being
attacked by snakes, in this illusion D strikes V twice around the head causing brain
haemorrhage and shoved bed sheet into V’s mouth causing her to die of asphyxia. D claimed
he did not have the mens rea as he did not know what he was doing); Brennan v HM
Advocate (1977) SLT 151 (D consumed between 20 and 25 pints of beer and a quantity of
LSD, he stabbed his father to death, and claimed that he did not have the mens rea as he did
not know what he was doing).
Criminal law dilemma - on one hand strict principles suggest that D’s who lack mens rea
should accordingly escape liability, on the other hand, given the statistics on the connection
between crime and alcohol, the law is concerned with protecting the public and deterrents,
it cannot allow intoxicated people to escape criminal liability and punishment.
Intoxication as a partial defence to specific intent crimes/full defence of basic intent
crimes, shows that English law has tried to reconcile this dilemma/find a
compromise.
Drunken Intent -
R v Sheehan: R v Moore (1975) 1 WLR 73 - “a drunken intent is nevertheless an intent”.
Only cases in which intoxication is a relevant issue are those where D is so intoxicated that:
- D lacks mens rea
- D is in a state of automatism (not examinable)
Not a matter of whether D was capable forming mens rea, but whether mens rea was, in
fact, formed (did not foresee the risk = no mens rea).
Involuntary Intoxication -
The law sets a distinction between voluntary/involuntary intoxication.
If D is involuntarily intoxicated, D cannot be blamed for her actions = acquittal.
Involuntary intoxication covers spiked drinks, drinks laced with alcohol/drugs without D
knowing.
Only extends to those who are so involuntarily intoxicated that they did not or could not
form the mens rea of the offence.
Defences = legally recognised explanations for a defendant’s actions, which have the
consequence of excluding her criminal liability.
Full/partial defences.
True defences, failure of proof defences:
“What we think of as the definition of an offence and what we call a defence can
only be regarded as depending largely upon the accidents of language, the convenience
of legal drafting, or the unreasoning force of tradition” - Glanville Williams (1982)
Murder: unlawful killing of a person under the Queen’s peace with the intention to kill or
case GBH.
Diminished responsibility and loss of control are partial defences to murder - does
not lead to a full acquittal, only reduced offence (manslaughter).
True defences are full defences - e.g., self-defence.
Murder is a specific intent crime so intoxication is a partial defence to murder.
Justifications and Excuses - definitions
- Justification = D’s act is not wrongful, because it is justified by the circumstances;
justified conduct is correct behaviour which is encouraged or at least tolerated by
society.
- Excuse = D’s act is still wrongful, but it should be excused given the circumstances.
An excuse represents a legal conclusion that the conduct is undesirable, but D is not
morally to blame for it.
Justifications and Excuses - difficulties
Courts do not seem to have much respect for the distinction:
“I do not think it matters whether these defences are regarded as justifications or
excuses. Whatever label is used, the moral merits of the defence will vary with the
circumstances” Robert Walker LJ in Re A (Conjoined Twins) (2000) 4 All ER 961 at
1064
Distinction between the categories is often blurred.
Defences can be classed as both a justification and an excuse:
“In general no excuse is accepted into the criminal law which is not also a partial
justification, and no justification is accepted which is not also a partial excuse” (J.
Gardner (1996) “Justifications and Reasons” in A.P. Simester and A. T. H. Smith (eds)
Harm and Culpability).
Justification and Excuses - alternatives and significance.
Additional category: exemptions (e.g., insanity)
Significance of distinctions:
- justifications change the law, excuses/exemptions do not - excuses are more seen as
exemptions in today’s law e.g., children’s liability.
- excuses/exemptions do not change/alter the law, justifications do e.g., if a man shot
his neighbour’s dog because it was attacking his baby, and this was seen as a
justification, this would alter the law.
- resistance against (a police officer is justified to use force while conducting a lawful
arrest where the person resists) or assistance of an aggressor (where A helps B
attack C when C attacked B first, this is lawful under self-defence. But, where A helps
, B attack C where B is lawfully insane, A cannot rely on a defence and this is
unlawful).
- strict liability offences -
- mistakes over circumstances - laws view today on mistakes (e.g., you attack
someone believing they were attacking you), the mistake must be a genuine belief -
does not have to be reasonable. However, those who make a mistake as to an
excuse (e.g., duress) this mistake has to be reasonable.
INTOXICATION
Introduction -
Clear evidence of consistent association between alcohol and violence - significant number
of cases are committed by those intoxicated.
Research studies have found that over 50% of domestic abuse cases occurred while D is
intoxicated.
Loosened inhibitions (would not have committed the offence when sober)/lack of mens rea
(did not know what they were doing): R v Lipman (1970) 1 QB 152 (D was a drug addict and
while on an LSD trip had the illusion of descending to the centre of the earth and being
attacked by snakes, in this illusion D strikes V twice around the head causing brain
haemorrhage and shoved bed sheet into V’s mouth causing her to die of asphyxia. D claimed
he did not have the mens rea as he did not know what he was doing); Brennan v HM
Advocate (1977) SLT 151 (D consumed between 20 and 25 pints of beer and a quantity of
LSD, he stabbed his father to death, and claimed that he did not have the mens rea as he did
not know what he was doing).
Criminal law dilemma - on one hand strict principles suggest that D’s who lack mens rea
should accordingly escape liability, on the other hand, given the statistics on the connection
between crime and alcohol, the law is concerned with protecting the public and deterrents,
it cannot allow intoxicated people to escape criminal liability and punishment.
Intoxication as a partial defence to specific intent crimes/full defence of basic intent
crimes, shows that English law has tried to reconcile this dilemma/find a
compromise.
Drunken Intent -
R v Sheehan: R v Moore (1975) 1 WLR 73 - “a drunken intent is nevertheless an intent”.
Only cases in which intoxication is a relevant issue are those where D is so intoxicated that:
- D lacks mens rea
- D is in a state of automatism (not examinable)
Not a matter of whether D was capable forming mens rea, but whether mens rea was, in
fact, formed (did not foresee the risk = no mens rea).
Involuntary Intoxication -
The law sets a distinction between voluntary/involuntary intoxication.
If D is involuntarily intoxicated, D cannot be blamed for her actions = acquittal.
Involuntary intoxication covers spiked drinks, drinks laced with alcohol/drugs without D
knowing.
Only extends to those who are so involuntarily intoxicated that they did not or could not
form the mens rea of the offence.
