GENERAL DEFENCES
- ‘General defences’: used when the prosecution has not been able to prove all requirements of liability beyond reasonable doubt
- Two main categories of general defences:
1. Denial of basic requirements of mens rea and voluntary conduct (e.g., mistake and automatism)
2. No denial of basic requirements but rely on other circumstances of excuse and justification (e.g., duress and self-defence)
DEFENCES DENYING BASIC REQUIREMENTS OF MENS REA AND VOLUNTARY CONDUCT
MISTAKE AND INADVERTENCE
- Offences requiring subjective fault (e.g., crimes requiring intention or subjective recklessness)
● Mistake that a particular ingredient of the offence charged is lacking (mistake)
● Failure to appreciate the presence of a particular ingredient of the offence (inadvertence)
- Test of mistake and inadvertence is subjective: no ‘reasonable person’ requirement
- Whenever an offence requires subjective awareness of a particular element, a genuine mistake that such an element is absent will be
a defence
A3.2 Offences requiring - Mistake and inadvertence fully refute proof of intention and knowledge
Intention or Foresight - Mistake and inadvertence do not fully refute proof of foresight or awareness of risk
- Belief is normally only sufficiently strong to leave a faint possibility that the believer might be wrong.
Belief does not sufficiently amount to recklessness or malice
- Depends on how one defines ‘belief’ and how the jury understands it
A3.4 Implications of the - Inadvertence is not a defence
Demise of Objective - Mistake can be a defence
Recklessness ● Ruling out a risk mistakenly due to belief does not amount to objective recklessness as long
as it is held with conviction equal to certainty and admitting no doubts
- The treatment of mistake between subjective and objective recklessness does not vary
A3.5 Offences Satisfied by - Inadvertence is not a defence where the risk was reasonably foreseeable
Negligence - Mistake can be a defence if the mistake is a reasonable (also interpreted as ‘understandable’) one
A3.8 Offences of Strict Liability - Inadvertence is not a defence
- Mistake is not a defence
, MISTAKE OF LAW AND OTHER DEFENCES
- Where mens rea includes legal concepts and D is mistaken about that legal concept: D lacks mens rea
● E.g., dishonesty test under Theft Act 1968, s.2(1): ‘belief he has in law the right to deprive the other of it’
- Statutory Instruments Act 1946, s.3: proof that a relevant statutory instrument has not been issued at the time of the alleged
offence is a defence
AUTOMATISM
- Used where D’s conduct lacks the basic requirement of being voluntary
- Limited to cases where there is a total destruction of voluntary control. Impaired or reduced control is not enough.
- Automatism should not be self-induced
- Automatism will only be barred if D is at fault to the degree required by the particular offence charged
INTOXICATION
- Not a defence per se: more like credibly proves mistake or inadvertence
- Applies equally to a mistaken state of mind immediately and closely after earlier drink or drug taking, even if the person is not drunk
or intoxicated at the time
Voluntary Intoxication
- Intoxication is voluntary if D knowingly takes alcohol or other dangerous intoxicating drugs not under medical supervision or direction
- Does not matter that D may have misjudged the degree of intoxication that would be caused
- Not a separate defence recognised in law
Involuntary Intoxication
- Intoxication is involuntary if D unknowingly takes alcohol or other intoxicating drugs not under medical supervision or direction
- Not a separate defence recognised in law: the only benefit is avoiding the application of restrictive rules
A3.17 Specific and Basic Intent - Specific intent: intention as applied to acts considered according to their purpose
Basic intent: intention as applied to acts apart from their purposes
- Voluntary intoxication is only a defence for crimes of specific intent. Not for basic intent
(recklessness).
- Offences include murder, theft, robbery, wounding with intent, burglary under the Theft Act 1968, s.
9(1)(a), and any offence of attempt, dishonesty, aggravated criminal damage,
- Offences do not include sexual assault under Sexual Offences Act 2003, s.3: manslaughter,
malicious wounding, all forms of assault, taking a conveyance
- ‘General defences’: used when the prosecution has not been able to prove all requirements of liability beyond reasonable doubt
- Two main categories of general defences:
1. Denial of basic requirements of mens rea and voluntary conduct (e.g., mistake and automatism)
2. No denial of basic requirements but rely on other circumstances of excuse and justification (e.g., duress and self-defence)
DEFENCES DENYING BASIC REQUIREMENTS OF MENS REA AND VOLUNTARY CONDUCT
MISTAKE AND INADVERTENCE
- Offences requiring subjective fault (e.g., crimes requiring intention or subjective recklessness)
● Mistake that a particular ingredient of the offence charged is lacking (mistake)
● Failure to appreciate the presence of a particular ingredient of the offence (inadvertence)
- Test of mistake and inadvertence is subjective: no ‘reasonable person’ requirement
- Whenever an offence requires subjective awareness of a particular element, a genuine mistake that such an element is absent will be
a defence
A3.2 Offences requiring - Mistake and inadvertence fully refute proof of intention and knowledge
Intention or Foresight - Mistake and inadvertence do not fully refute proof of foresight or awareness of risk
- Belief is normally only sufficiently strong to leave a faint possibility that the believer might be wrong.
Belief does not sufficiently amount to recklessness or malice
- Depends on how one defines ‘belief’ and how the jury understands it
A3.4 Implications of the - Inadvertence is not a defence
Demise of Objective - Mistake can be a defence
Recklessness ● Ruling out a risk mistakenly due to belief does not amount to objective recklessness as long
as it is held with conviction equal to certainty and admitting no doubts
- The treatment of mistake between subjective and objective recklessness does not vary
A3.5 Offences Satisfied by - Inadvertence is not a defence where the risk was reasonably foreseeable
Negligence - Mistake can be a defence if the mistake is a reasonable (also interpreted as ‘understandable’) one
A3.8 Offences of Strict Liability - Inadvertence is not a defence
- Mistake is not a defence
, MISTAKE OF LAW AND OTHER DEFENCES
- Where mens rea includes legal concepts and D is mistaken about that legal concept: D lacks mens rea
● E.g., dishonesty test under Theft Act 1968, s.2(1): ‘belief he has in law the right to deprive the other of it’
- Statutory Instruments Act 1946, s.3: proof that a relevant statutory instrument has not been issued at the time of the alleged
offence is a defence
AUTOMATISM
- Used where D’s conduct lacks the basic requirement of being voluntary
- Limited to cases where there is a total destruction of voluntary control. Impaired or reduced control is not enough.
- Automatism should not be self-induced
- Automatism will only be barred if D is at fault to the degree required by the particular offence charged
INTOXICATION
- Not a defence per se: more like credibly proves mistake or inadvertence
- Applies equally to a mistaken state of mind immediately and closely after earlier drink or drug taking, even if the person is not drunk
or intoxicated at the time
Voluntary Intoxication
- Intoxication is voluntary if D knowingly takes alcohol or other dangerous intoxicating drugs not under medical supervision or direction
- Does not matter that D may have misjudged the degree of intoxication that would be caused
- Not a separate defence recognised in law
Involuntary Intoxication
- Intoxication is involuntary if D unknowingly takes alcohol or other intoxicating drugs not under medical supervision or direction
- Not a separate defence recognised in law: the only benefit is avoiding the application of restrictive rules
A3.17 Specific and Basic Intent - Specific intent: intention as applied to acts considered according to their purpose
Basic intent: intention as applied to acts apart from their purposes
- Voluntary intoxication is only a defence for crimes of specific intent. Not for basic intent
(recklessness).
- Offences include murder, theft, robbery, wounding with intent, burglary under the Theft Act 1968, s.
9(1)(a), and any offence of attempt, dishonesty, aggravated criminal damage,
- Offences do not include sexual assault under Sexual Offences Act 2003, s.3: manslaughter,
malicious wounding, all forms of assault, taking a conveyance
