DENIALS OF AN OFFENCE
-These provide complete defences for (almost) any criminal offence, denials of liability= defences
-Where committed actus reus and mens rea of an offence, but want to escape liability – defence
-Denials of an offence rather than defences:
oIntoxication: explains lack of mens rea on the basis of intoxication e.g. D drunk and stabs what
thinks is a theatrical dummy, but it was her friend lacks subjective mens rea for any offence
against the person
oSane automatism: D lack of voluntary movement (and associated mens rea) due to external
circumstances affecting e.g. dangerous driving as a result of a swarm of bees
oInsanity: lack of mens rea is due to a medical condition, which causes bodily malfunction which
prevent D understanding nature or quality of acts
Need evidence for condition or circumstance that applied at time of offence
Successful plea on insanity= ‘not guilty by reason of insanity’
Prosecution can use evidence to alternative route to liability – through method of inculpation e.g.
for intoxication voluntary choice of intoxication can excuse conduct for one offence but will provide
evidence for another e.g. causes intent to kill will be not guilty of murder, but liable for manslaughter
Criminal responsibility
CRIMINAL LIABILITY = ACTUS REUS + MENS REA – DEFENCE
Infancy
From age 10 criminally responsible
Abolished by the Crime and Disorder Act 1998, s.34
Context of murder of James Bulgar [1993, aged 2] by Robert Thompson and Jon Venables (both
aged 10) both sentenced to custody till age of 18 were released on life-long licence, given new
identities
Intoxication
Intoxicants, like alcoholic, can reduce significantly moral and practical judgements, encourage
unpredictable behaviour may not reflect character when sober
Not a defence to criminal offences – can affect sentence, but not defence
Intoxication rule only applies when, as a result of intoxication, D lacks required mens rea – Kingston
For Rule need to have missing mens rea incapable of forming mens rea – e.g. D mistakenly kills V
thinking V is a theatrical dummy, but still ‘capable’ of forming mens rea
Courts consider despite D lacking mens rea at time of commission of actus reus (T2), still interested
if earlier conduct at time of becoming intoxicated (T1) can substitute missing element
Voluntary intoxication= little sympathy from courts – Majewski [1976]: if voluntarily take alcohol
or drugs, very little chance to get sympathy from courts Simister: “intoxication is never a defence
[2009]
Involuntary intoxication= would not be fair to say risks were chosen no liability if involuntary –
Allen
Kingston (1994)
Y and X hired P to take photos of D for blackmail. P invited V (15year old boy) to his flat, gave alcohol
and drugs and left him asleep; then drugged Ds coffee and encouraged D to assault V as he slept; D
did, charged with indecent assault. HOL held drunken intention is still an intention D still had mens
rea for crime at time of actus reus despite effect of drugs, could still form intention to assault V no
defence where D commits offence, drunken intent still intent
Actus reus + Mens rea (intoxication irrelevant) = Crime
1
, Allen (1988)
D committed actus reus of buggery and indecent assault, lacked mens rea said consumed large amount
of wine supplied by friend, did no realise strength of wine guilty as intoxication was voluntary
Needs to have Actus reus + Missing mens rea (and Involuntary) = no Crime
Basic intent and specific intent
Basic intent: Crime is one where the mens rea is intention or recklessness and does not exceed the
actus reus D does not have to have foreseen any consequence, or harm, beyond that laid down in
the definition of the actus reus.
Specific intent:
Crime where in theory the mens rea goes beyond the actus reus, in the sense that the D has some
ulterior purpose in mind – e.g. "aggravated" offence of criminal damage (contrary to s1(2) of the
Criminal Damage Act 1971), offence is committed where D causes damage or destruction to property
with the intention of endangering life. The actus reus is almost identical to that of the simple offence,
the differentiating factor is the further or "specific" intent that the defendant must possess, to
endanger life.
Summary: present position may be summarised as follows:
BASIC INTENT CRIMES SPECIFIC INTENT CRIMES
Murder – Beard [1920]
Battery + Assault
Criminal damage with intent to endanger life
s.20 & s.47 OAPA 1961 – s.47= Majewski (1977) Wounding or GBH (s.18 OAPA)
Manslaughter – Bard (1920) Theft, Robbery, Complicity, etc
Rape – Woods (1980)
DPP v Majewski (1977)
Intoxicated by range of dangerous drugs, including alcohol, D involved in bar fight where assaulted
several people and police officers during arrest, charged with assault occasioning ABH(s.47), and
assaulting a police officer (s.38)
held basic intent offences, voluntary intoxication can be used as substitute for mens rea he lacked at
time of conduct
Heard (2007)
Whilst drunk, D exposed penis and rubbed on police officers leg; D claimed lack of mens rea due to
intoxication (lack of intentional touching); charged with sexual assaultheld guilty of sexual assault as
it is a basic offence
Dutch courage
Strength or confidence gained from drinking alcohol – AG of Northern Ireland V Gallagher
Attorney General of Northern Ireland v Gallagher (1963)
Form intention to do something. D wanted to kill his wife, so he wanted courage so had drunk risky,
then killed his wife, and tried to rely on being drunk. Held there was no defence. Despite him being
intoxicated, it was held he could still form the MR, so no defence
Lord Denning stated if intended to commit offence, and uses alcohol in preparation to get courage
no defence
Prior fault- dangerous drug
2
-These provide complete defences for (almost) any criminal offence, denials of liability= defences
-Where committed actus reus and mens rea of an offence, but want to escape liability – defence
-Denials of an offence rather than defences:
oIntoxication: explains lack of mens rea on the basis of intoxication e.g. D drunk and stabs what
thinks is a theatrical dummy, but it was her friend lacks subjective mens rea for any offence
against the person
oSane automatism: D lack of voluntary movement (and associated mens rea) due to external
circumstances affecting e.g. dangerous driving as a result of a swarm of bees
oInsanity: lack of mens rea is due to a medical condition, which causes bodily malfunction which
prevent D understanding nature or quality of acts
Need evidence for condition or circumstance that applied at time of offence
Successful plea on insanity= ‘not guilty by reason of insanity’
Prosecution can use evidence to alternative route to liability – through method of inculpation e.g.
for intoxication voluntary choice of intoxication can excuse conduct for one offence but will provide
evidence for another e.g. causes intent to kill will be not guilty of murder, but liable for manslaughter
Criminal responsibility
CRIMINAL LIABILITY = ACTUS REUS + MENS REA – DEFENCE
Infancy
From age 10 criminally responsible
Abolished by the Crime and Disorder Act 1998, s.34
Context of murder of James Bulgar [1993, aged 2] by Robert Thompson and Jon Venables (both
aged 10) both sentenced to custody till age of 18 were released on life-long licence, given new
identities
Intoxication
Intoxicants, like alcoholic, can reduce significantly moral and practical judgements, encourage
unpredictable behaviour may not reflect character when sober
Not a defence to criminal offences – can affect sentence, but not defence
Intoxication rule only applies when, as a result of intoxication, D lacks required mens rea – Kingston
For Rule need to have missing mens rea incapable of forming mens rea – e.g. D mistakenly kills V
thinking V is a theatrical dummy, but still ‘capable’ of forming mens rea
Courts consider despite D lacking mens rea at time of commission of actus reus (T2), still interested
if earlier conduct at time of becoming intoxicated (T1) can substitute missing element
Voluntary intoxication= little sympathy from courts – Majewski [1976]: if voluntarily take alcohol
or drugs, very little chance to get sympathy from courts Simister: “intoxication is never a defence
[2009]
Involuntary intoxication= would not be fair to say risks were chosen no liability if involuntary –
Allen
Kingston (1994)
Y and X hired P to take photos of D for blackmail. P invited V (15year old boy) to his flat, gave alcohol
and drugs and left him asleep; then drugged Ds coffee and encouraged D to assault V as he slept; D
did, charged with indecent assault. HOL held drunken intention is still an intention D still had mens
rea for crime at time of actus reus despite effect of drugs, could still form intention to assault V no
defence where D commits offence, drunken intent still intent
Actus reus + Mens rea (intoxication irrelevant) = Crime
1
, Allen (1988)
D committed actus reus of buggery and indecent assault, lacked mens rea said consumed large amount
of wine supplied by friend, did no realise strength of wine guilty as intoxication was voluntary
Needs to have Actus reus + Missing mens rea (and Involuntary) = no Crime
Basic intent and specific intent
Basic intent: Crime is one where the mens rea is intention or recklessness and does not exceed the
actus reus D does not have to have foreseen any consequence, or harm, beyond that laid down in
the definition of the actus reus.
Specific intent:
Crime where in theory the mens rea goes beyond the actus reus, in the sense that the D has some
ulterior purpose in mind – e.g. "aggravated" offence of criminal damage (contrary to s1(2) of the
Criminal Damage Act 1971), offence is committed where D causes damage or destruction to property
with the intention of endangering life. The actus reus is almost identical to that of the simple offence,
the differentiating factor is the further or "specific" intent that the defendant must possess, to
endanger life.
Summary: present position may be summarised as follows:
BASIC INTENT CRIMES SPECIFIC INTENT CRIMES
Murder – Beard [1920]
Battery + Assault
Criminal damage with intent to endanger life
s.20 & s.47 OAPA 1961 – s.47= Majewski (1977) Wounding or GBH (s.18 OAPA)
Manslaughter – Bard (1920) Theft, Robbery, Complicity, etc
Rape – Woods (1980)
DPP v Majewski (1977)
Intoxicated by range of dangerous drugs, including alcohol, D involved in bar fight where assaulted
several people and police officers during arrest, charged with assault occasioning ABH(s.47), and
assaulting a police officer (s.38)
held basic intent offences, voluntary intoxication can be used as substitute for mens rea he lacked at
time of conduct
Heard (2007)
Whilst drunk, D exposed penis and rubbed on police officers leg; D claimed lack of mens rea due to
intoxication (lack of intentional touching); charged with sexual assaultheld guilty of sexual assault as
it is a basic offence
Dutch courage
Strength or confidence gained from drinking alcohol – AG of Northern Ireland V Gallagher
Attorney General of Northern Ireland v Gallagher (1963)
Form intention to do something. D wanted to kill his wife, so he wanted courage so had drunk risky,
then killed his wife, and tried to rely on being drunk. Held there was no defence. Despite him being
intoxicated, it was held he could still form the MR, so no defence
Lord Denning stated if intended to commit offence, and uses alcohol in preparation to get courage
no defence
Prior fault- dangerous drug
2
