Criminal law – live webinar - introduction to defences and denials of offending
Fundamental concepts
Theft – can often be confusing
Asking the right questions
Who can be liable and why?
Default rule = everyone can be liable
- However, there are rules and exceptions – for example a 5-year-old cannot be liable or
someone seriously mentally disturbed cannot be liable etc.
When can there be no liability? = denial of offences / defences
Infancy (age) – subjects of criminal law
Insanity – denials of offences or defence
Automatism – denial of offence
Diminished responsibility – partial defence to murder
Loss of control – partial defence to murder
Intoxication – denial of offence
The unfitness to plead – procedure
Unfitness to plead
- Can the defendant understand the charges?
- Can they understand the course of trial or give evidence?
- If unfit – trial of the facts – section 4 and 4A of the Criminal Procedure (Insanity) Act 1964
- If AR committed – hospital order, supervision order or an absolute discharge
- Seemed to be unfair and a problematic system
Denial of offence
- When D claims that one or more elements of the offence are absent
- Technically, these are not defences but simply a negation of a particular offence
requirement
- Often linked to issues of capacity
- For denial of offences look at context of AR and MR and the denials at hand rather than
liability
Defences
- A defence is raised where an offence has been committed i.e., all elements of the offence
are present
- You need to discuss and conclude in relation to D’s liability for an offence or an attempted
offence first, then discuss any potential defences
- A general defence tend to be duress, necessity, self-defence
- Partial defences (to murder only) are loss of control and diminished responsibility
- Insanity? Automatism? Intoxication?
, - For defences liability needs to be established first
General defences
- General defences are applicable to all offences unless excluded
- Contrast with partial defences applicable only to murder, loss of control and diminished
responsibility
- Do general and partial defences have anything in common
o ‘mental’ element of the defences is captured differently, with different words and
requirements
Intoxication – denial of offending
- Intoxication can be relevant in two ways:
o Can result in Ds lacking the mens rea of an offence – (case of Kingston- had the MR
despite being intoxicated at the time as it was clear he had paedophilic thoughts
prior to the assault) – (case of Gallagher)
o Can result in Ds making a mistake which may allow them to rely on a defence
- Lack of men’s rea due to intoxication = not applicable if D would have had the MR sober
- Richardson and Irwin 1999 – would D (as opposed to a reasonable person) have foreseen the
risk of injury if sober?
- Murder – specific MR offence
Intoxication and lack of men’s rea
- Is the substance dangerous and non-dangerous?
- Is the intoxication voluntary or involuntary?
- If voluntary, is the crime charged specific or basic intent?
Voluntary intoxication
DPP v Majewski (1977) AC 443 – assaulted several people after consuming drugs and alcohol, JL
confirmed that self-induced intoxication can be a defence to crimes of specific intent, but not crimes
of basic intent – note that one is reckless by voluntary intoxication
MR? – yes= no defence, no = defence if crime one of specific intent but not if one of basic intent
D must have been intoxicated at the time of the offence for Majewski to apply
- Coley, McGhee, Harris (2013) EWCA Crim 223: withdrawal symptoms that produce mental
illness – not intoxication – intoxication rules do not apply if D suffered alcohol related illness
but not drunk at the time of the offence
- Case of Taj (textbook) – self-defence claim – said he made a mistake due to intoxication – at
the time of the offence he was not intoxicated but the facts of his prior intoxication was still
present
No application to basic intent crimes
Criticism of this
- Contrary to CJA 1967 s8
- Contrary to general requirement re coincidence of MR and AR (intoxication happens prior to
the commission of the offence)
Fundamental concepts
Theft – can often be confusing
Asking the right questions
Who can be liable and why?
Default rule = everyone can be liable
- However, there are rules and exceptions – for example a 5-year-old cannot be liable or
someone seriously mentally disturbed cannot be liable etc.
When can there be no liability? = denial of offences / defences
Infancy (age) – subjects of criminal law
Insanity – denials of offences or defence
Automatism – denial of offence
Diminished responsibility – partial defence to murder
Loss of control – partial defence to murder
Intoxication – denial of offence
The unfitness to plead – procedure
Unfitness to plead
- Can the defendant understand the charges?
- Can they understand the course of trial or give evidence?
- If unfit – trial of the facts – section 4 and 4A of the Criminal Procedure (Insanity) Act 1964
- If AR committed – hospital order, supervision order or an absolute discharge
- Seemed to be unfair and a problematic system
Denial of offence
- When D claims that one or more elements of the offence are absent
- Technically, these are not defences but simply a negation of a particular offence
requirement
- Often linked to issues of capacity
- For denial of offences look at context of AR and MR and the denials at hand rather than
liability
Defences
- A defence is raised where an offence has been committed i.e., all elements of the offence
are present
- You need to discuss and conclude in relation to D’s liability for an offence or an attempted
offence first, then discuss any potential defences
- A general defence tend to be duress, necessity, self-defence
- Partial defences (to murder only) are loss of control and diminished responsibility
- Insanity? Automatism? Intoxication?
, - For defences liability needs to be established first
General defences
- General defences are applicable to all offences unless excluded
- Contrast with partial defences applicable only to murder, loss of control and diminished
responsibility
- Do general and partial defences have anything in common
o ‘mental’ element of the defences is captured differently, with different words and
requirements
Intoxication – denial of offending
- Intoxication can be relevant in two ways:
o Can result in Ds lacking the mens rea of an offence – (case of Kingston- had the MR
despite being intoxicated at the time as it was clear he had paedophilic thoughts
prior to the assault) – (case of Gallagher)
o Can result in Ds making a mistake which may allow them to rely on a defence
- Lack of men’s rea due to intoxication = not applicable if D would have had the MR sober
- Richardson and Irwin 1999 – would D (as opposed to a reasonable person) have foreseen the
risk of injury if sober?
- Murder – specific MR offence
Intoxication and lack of men’s rea
- Is the substance dangerous and non-dangerous?
- Is the intoxication voluntary or involuntary?
- If voluntary, is the crime charged specific or basic intent?
Voluntary intoxication
DPP v Majewski (1977) AC 443 – assaulted several people after consuming drugs and alcohol, JL
confirmed that self-induced intoxication can be a defence to crimes of specific intent, but not crimes
of basic intent – note that one is reckless by voluntary intoxication
MR? – yes= no defence, no = defence if crime one of specific intent but not if one of basic intent
D must have been intoxicated at the time of the offence for Majewski to apply
- Coley, McGhee, Harris (2013) EWCA Crim 223: withdrawal symptoms that produce mental
illness – not intoxication – intoxication rules do not apply if D suffered alcohol related illness
but not drunk at the time of the offence
- Case of Taj (textbook) – self-defence claim – said he made a mistake due to intoxication – at
the time of the offence he was not intoxicated but the facts of his prior intoxication was still
present
No application to basic intent crimes
Criticism of this
- Contrary to CJA 1967 s8
- Contrary to general requirement re coincidence of MR and AR (intoxication happens prior to
the commission of the offence)
