Intoxication
Voluntary intoxication by alcohol
Voluntary intoxication on specific intent offences
The defence of intoxication is available for specific intent offences, although only as a partial defence. In DPP v Beard, it was held that a defendant charge with a specific crime can prove that he/she is so intoxicated as to for the necessary mens reason intent for the crime, he/she will be acquitted of that crime but will be convicted of a basic intent offence.
Voluntary intoxication on basic intent offences
Generally, as in DPP v Majewski, the defence of intoxication for basic intent offence will be rejected, however, R v Richardson and Irving held that the Crown must prove that the defendant must foreseen the risk of the harm he committed had he or she had not been intoxicated in order for the defence to be rejected. If not, then the defendant can raise the defence of intoxication.
Voluntary intoxication by illegal drugs
R v Lipman held that no specific intent is required to prove manslaughter in response to intoxication. Self induced intoxication is no defence and if the act will cause harm to the victim, manslaughter is inevitable.
For sedative, R v Hardie held that it must be considered whether the defendant's act is reckless or not.
Involuntary intoxication
If Involuntary intoxication negates the Mens Rea of the offence, it will be a full defence for any type on offence (Basic intent or Specific intent crimes). However, R v Kingston held that intoxicated intent is still intent and the fact that the intoxication was Involuntary doesn't make any difference.
Sunday, 23 February 2014
Self defence/ prevention of crime
Self defence/ prevention of crime
Under Criminal Justice and Immigration Act 2008, the first requirement for self defence/prevention of crime would be the use of "defensive force will only lawful if it is necessary and it will only be necessary if it is used to resist, repel or was off an unjust imminent threat,. The act of self defence cannot be retaliatory or revengeful". An attack at some future will not be sufficient.
Mistake
If self defence or prevention of crime arises from a mistake, it must be one which the defendant genuinely believed. Whether the degree of force is reasonable or not will be decided to circumstances as the defendant would believe to be (R v Williams).
- R v O'Grady held that a defendant cannot rely on self defence where it results from a mistaken caused by his/her own intoxication.
The second requirement would be the self defence must be reasonable. The defendant do not have a duty to retreat (R v Bird) or attack with proportionate force, although the degree of force must be only necessary to repel an attack (R v Martin).
In circumstances where defendant is the aggressor or deliberately provokes the victim, there is no guaranteed right to rely of self defence (R v Keane).
Under Criminal Justice and Immigration Act 2008, the first requirement for self defence/prevention of crime would be the use of "defensive force will only lawful if it is necessary and it will only be necessary if it is used to resist, repel or was off an unjust imminent threat,. The act of self defence cannot be retaliatory or revengeful". An attack at some future will not be sufficient.
Mistake
If self defence or prevention of crime arises from a mistake, it must be one which the defendant genuinely believed. Whether the degree of force is reasonable or not will be decided to circumstances as the defendant would believe to be (R v Williams).
- R v O'Grady held that a defendant cannot rely on self defence where it results from a mistaken caused by his/her own intoxication.
The second requirement would be the self defence must be reasonable. The defendant do not have a duty to retreat (R v Bird) or attack with proportionate force, although the degree of force must be only necessary to repel an attack (R v Martin).
In circumstances where defendant is the aggressor or deliberately provokes the victim, there is no guaranteed right to rely of self defence (R v Keane).
Insanity
Insanity
To prove insanity, the rules established in R v M'Naghten must be fulfiled;
1. First of all, a defendant must be acquitted if, because of the disease of mind, he/she did not know the nature and quality of his/her act.
2. If, because of the disease of the mind, he/she did not know his or her act was wrong, even if he/she did know the nature and quality of his/her act.
So this means there are three criteria that needs to be established at courts which is basically to be insane;
"a person must be suffering from a defect of reason, arising from a disease of mind which prevent him/her to know the nature and quality of the act he/she was doing or what he/she doing is wrong. "
Disease of the mind
Basically means a disease that produces mental malfunctioning and it can be a physical or a mental disease. In Bratty v AG, Lord Denning defined it as" any mental disorder which has manifested itself in violence and is prone to recur is a disease of mind".
In R v Kemp, the condition of the brain does not matter, it is whether the condition of the mind is curable or incurable, transitory or permanent.
It must be an internal factor, arising from the body as in R v Hennessy not from a external factor as in R v Quick
Defect of reason
Basically inability to use reasoning to defend his/her actions not failing to use his/her powers of reasoning as in R v Clarke.
Not knowing the nature and quality of his/her act or did not know what he/she done was wrong
Nature and quality of act
It refers to the physical quality of act. People acting in delusions do not know the nature and quality of their act as they do not know the consequences of his/her actions and the circumstances he/she is acting in.
Not knowing the act was wrong
Basically means he defendant did not know what he/she is doing is legally wrong as in R v Windle.
To prove insanity, the rules established in R v M'Naghten must be fulfiled;
1. First of all, a defendant must be acquitted if, because of the disease of mind, he/she did not know the nature and quality of his/her act.
2. If, because of the disease of the mind, he/she did not know his or her act was wrong, even if he/she did know the nature and quality of his/her act.
So this means there are three criteria that needs to be established at courts which is basically to be insane;
"a person must be suffering from a defect of reason, arising from a disease of mind which prevent him/her to know the nature and quality of the act he/she was doing or what he/she doing is wrong. "
Disease of the mind
Basically means a disease that produces mental malfunctioning and it can be a physical or a mental disease. In Bratty v AG, Lord Denning defined it as" any mental disorder which has manifested itself in violence and is prone to recur is a disease of mind".
In R v Kemp, the condition of the brain does not matter, it is whether the condition of the mind is curable or incurable, transitory or permanent.
It must be an internal factor, arising from the body as in R v Hennessy not from a external factor as in R v Quick
Defect of reason
Basically inability to use reasoning to defend his/her actions not failing to use his/her powers of reasoning as in R v Clarke.
Not knowing the nature and quality of his/her act or did not know what he/she done was wrong
Nature and quality of act
It refers to the physical quality of act. People acting in delusions do not know the nature and quality of their act as they do not know the consequences of his/her actions and the circumstances he/she is acting in.
Not knowing the act was wrong
Basically means he defendant did not know what he/she is doing is legally wrong as in R v Windle.
Consent
Consent
This defence can only be used for Assault or Battery offences except for some situations, it has limited and controlled applications. However, in Attorney General's Reference (No. 6 of 1980), it was held that "where two people fight, the blows inflicted can amount to battery and that the unlawfulness cannot be denied by one party that the other consented to the fight" .
The first rule that needs to be fulfilled for a successful pleading of consent would be that the alleged victim's consent must not be obtained through deception or if it was, then the deception must not have been such as to alter his/her perception of the nature and quality of the act that is complained of as in R v Richardson, R v Tabassum. Also, in R v Olugboja, consent must be positive not through fear or submission.
The second rule would be the defence can only be pleaded on the crimes Assault or Battery unless in these circumstances;
Sports - In R v Billinghurst, it was held that in sports where physical contact is involved, players will have implied consent to harm or injuries as long as the physical contact is within rules in the sport.
Rough horseplay - In R vs Jones (or R v Atkins) , it was held that consent can be used as a defence in situations where the defendant has no intention to cause injuries. In R v Richardson and Irvin, the defendant can use consent if his or her victim was consenting to run the risk of personal injury, even if it arises from a mistaken belief and from intoxication.
Surgery - Includes tattooing and body piercing. In R v Wilson, it was held that the victim consented to the act and harm suffered by her as she actually instigated the act and the husband did not have any aggressive intent.
Consent may exists initially but have been negated or withdrawn prior to the actions of the defendant which actually caused injury.
If consent is successful, the offence against the defendant will be invalidated.
This defence can only be used for Assault or Battery offences except for some situations, it has limited and controlled applications. However, in Attorney General's Reference (No. 6 of 1980), it was held that "where two people fight, the blows inflicted can amount to battery and that the unlawfulness cannot be denied by one party that the other consented to the fight" .
The first rule that needs to be fulfilled for a successful pleading of consent would be that the alleged victim's consent must not be obtained through deception or if it was, then the deception must not have been such as to alter his/her perception of the nature and quality of the act that is complained of as in R v Richardson, R v Tabassum. Also, in R v Olugboja, consent must be positive not through fear or submission.
The second rule would be the defence can only be pleaded on the crimes Assault or Battery unless in these circumstances;
Sports - In R v Billinghurst, it was held that in sports where physical contact is involved, players will have implied consent to harm or injuries as long as the physical contact is within rules in the sport.
Rough horseplay - In R vs Jones (or R v Atkins) , it was held that consent can be used as a defence in situations where the defendant has no intention to cause injuries. In R v Richardson and Irvin, the defendant can use consent if his or her victim was consenting to run the risk of personal injury, even if it arises from a mistaken belief and from intoxication.
Surgery - Includes tattooing and body piercing. In R v Wilson, it was held that the victim consented to the act and harm suffered by her as she actually instigated the act and the husband did not have any aggressive intent.
Consent may exists initially but have been negated or withdrawn prior to the actions of the defendant which actually caused injury.
If consent is successful, the offence against the defendant will be invalidated.
Involuntary manslaughter: Gross negligence manslaughter
Involuntary manslaughter: Gross negligence manslaughter.
Gross negligence manslaughter is unlawful killing without malice aforethought arising from a lawful act which the defendant performed so badly as to make it criminal.
R v Adomako states that there are four elements of this offence:
1. First of all, there must be a duty of care. Lord Mackay referred in R v Adomako that "the ordinary principles of negligence will apply" and this is referring to the "Neighbour test" established in Donoghue v Stevenson.
A duty of care can arise from many different situations like omissions;
- R v Stone and Dobinson held that there is duty of care if a person voluntarily assumed responsibility of another.
- R v Litchfield and R v Pitwood states the there is duty of care when a person has a contractual duty. In R v Lichfield, it was held that it is up to the jury whether or not the negligence is gross negligence.
- R v Evans and R v Miller held that if the defendant created a dangerous situation which he/she knows is life threatening, he/she has a duty of care.
- R v Singh states that there is duty of care exist between landlords and tenants.
- R v Wacker held that there is a duty of care between people during an illegal act together as it was held that the defendant knew the safety of the illegal immigrants depended on his actions.
- R v Wilouhby held that the defendant owe a duty of care to the victim as they have an agreement to do an act, even if its an illegal one.
- R v Khan and Khan held that there is a duty of care that exist between drug dealers and there customers.
2. The second requirement is that there must be a breach of duty which caused death.
R v Stone and Dobinson, R v Pitwood, R v Miller, R v Hutton and R v Gibbons and Proctor shows that the breach itself could be an act or omission.
3. The third requirement is that the breach of duty is serious enough to amount to gross negligence;
- R v Bateman define gross negligence as a action that is "so wrong in all circumstances" as to be deserving of criminal punishment. It must also go beyond civil liability and mere compensation and is left for the jury to decide;
- In R v Finlay, the jury decided that the defendant's conduct did not show such a disregard for life and safety as to amount to gross negligence and he was not guilty.
- In R v Edwards, the jury decided that the defendant had ignored an obvious and serious danger as he decided to take the risk and this amounted to gross negligence.
The last requirement is basically that there is a risk of death .
Negligence is gross when there is a risk of death and this could arise from;
R v Bateman - There was a disregard for the life and safety of others.
R v Stone and Robinson - There was a risk to the health or welfare of the victim.
Both interpretations have been approved in R v Adomako.
- R v Misra and R v Srivastava held that that the defendants behaviour must be grossly negligent and consequently criminal as to gross negligence.
- R v Winters held the defendant guilty as his actions shown a disregard for life and safety of others and amounted to gross negligence
Gross negligence manslaughter is unlawful killing without malice aforethought arising from a lawful act which the defendant performed so badly as to make it criminal.
R v Adomako states that there are four elements of this offence:
1. First of all, there must be a duty of care. Lord Mackay referred in R v Adomako that "the ordinary principles of negligence will apply" and this is referring to the "Neighbour test" established in Donoghue v Stevenson.
A duty of care can arise from many different situations like omissions;
- R v Stone and Dobinson held that there is duty of care if a person voluntarily assumed responsibility of another.
- R v Litchfield and R v Pitwood states the there is duty of care when a person has a contractual duty. In R v Lichfield, it was held that it is up to the jury whether or not the negligence is gross negligence.
- R v Evans and R v Miller held that if the defendant created a dangerous situation which he/she knows is life threatening, he/she has a duty of care.
- R v Singh states that there is duty of care exist between landlords and tenants.
- R v Wacker held that there is a duty of care between people during an illegal act together as it was held that the defendant knew the safety of the illegal immigrants depended on his actions.
- R v Wilouhby held that the defendant owe a duty of care to the victim as they have an agreement to do an act, even if its an illegal one.
- R v Khan and Khan held that there is a duty of care that exist between drug dealers and there customers.
2. The second requirement is that there must be a breach of duty which caused death.
R v Stone and Dobinson, R v Pitwood, R v Miller, R v Hutton and R v Gibbons and Proctor shows that the breach itself could be an act or omission.
3. The third requirement is that the breach of duty is serious enough to amount to gross negligence;
- R v Bateman define gross negligence as a action that is "so wrong in all circumstances" as to be deserving of criminal punishment. It must also go beyond civil liability and mere compensation and is left for the jury to decide;
- In R v Finlay, the jury decided that the defendant's conduct did not show such a disregard for life and safety as to amount to gross negligence and he was not guilty.
- In R v Edwards, the jury decided that the defendant had ignored an obvious and serious danger as he decided to take the risk and this amounted to gross negligence.
The last requirement is basically that there is a risk of death .
Negligence is gross when there is a risk of death and this could arise from;
R v Bateman - There was a disregard for the life and safety of others.
R v Stone and Robinson - There was a risk to the health or welfare of the victim.
Both interpretations have been approved in R v Adomako.
- R v Misra and R v Srivastava held that that the defendants behaviour must be grossly negligent and consequently criminal as to gross negligence.
- R v Winters held the defendant guilty as his actions shown a disregard for life and safety of others and amounted to gross negligence
Involuntary manslaughter: Manslaughter by an unlawful and dangerous act;
Involuntary manslaughter: Manslaughter by an unlawful and dangerous act;
Unlawful act manslaughter is where there is an unlawful killing but the killer did not have the mens rea of Murder (Unlawful Killing).
There are four criteria required to prove unlawful act manslaughter;
1. The first requirement is that there must be an unlawful act which must be positive (R v Lowe) and criminal offence (R v Franklin);
- R v Lamb states the actus reus of the unlawful act must be fulfilled, like causing the victim to fear unlawful force for Assault.
- R v Arobekiake states that the defendant must have the mens rea for the unlawful act and does not need to be directed to the victim.
- R v Mitchell also states the unlawful act does not need to be directed to the victim.
- R v Goodfellow states the unlawful act does not need to be directed to a person or anyone.
- R v Scarlett states that in situations where contact or battery occurs, it must be proven the defendant used excessive force for it to be an unlawful act.
2. The second requirement would be that the unlawful act must be dangerous. For an unlawful act to be dangerous, it must be meet the tests set in R v Church;
- A reasonable and sober person would see a risk of harm that can arise from the act.
- There must be a risk of physical harm, fear of apprehension of harm is not enough (R v Dawson) unless the victim is vulnerable (R v Watson), like too frail or weak and this would also be apparent to the sober and reasonable man.
R v Ball states that the tests will be an objective one, based on the sober and reasonable person's perception not the defendant. Similarly, DPP v Newbury and Jones states there is no need for the defendant to foresee some harm from his/her actions.
3. The third requirement is to prove that the unlawful , dangerous act resulted to the victim's death;
Normal criminal causation is applied;
Factual causation - But for test
Legal causation - operating and significant cause and any intervening acts
There would only be issues in this criteria if there is drugs involve as the question that will be asked is if the drugs the defendant suppliers caused the victim's death;
- R v Cato held that if the defendant was the one who injects drugs to the victim, it will be held as an unlawful act.
- R v Dalby held that if the defendant is only supplying the drugs, he will not be doing an unlawful act even of the victim dies from the drugs.
- R v Dias held that self injection of drugs that are prepared by a third party is not an unlawful act, as the victim's own conduct is the direct cause of death.
The last requirement would be to prove that the defendant must have the mens rea for the initial unlawful act (Assault, Battery, etc).
Unlawful act manslaughter is where there is an unlawful killing but the killer did not have the mens rea of Murder (Unlawful Killing).
There are four criteria required to prove unlawful act manslaughter;
1. The first requirement is that there must be an unlawful act which must be positive (R v Lowe) and criminal offence (R v Franklin);
- R v Lamb states the actus reus of the unlawful act must be fulfilled, like causing the victim to fear unlawful force for Assault.
- R v Arobekiake states that the defendant must have the mens rea for the unlawful act and does not need to be directed to the victim.
- R v Mitchell also states the unlawful act does not need to be directed to the victim.
- R v Goodfellow states the unlawful act does not need to be directed to a person or anyone.
- R v Scarlett states that in situations where contact or battery occurs, it must be proven the defendant used excessive force for it to be an unlawful act.
2. The second requirement would be that the unlawful act must be dangerous. For an unlawful act to be dangerous, it must be meet the tests set in R v Church;
- A reasonable and sober person would see a risk of harm that can arise from the act.
- There must be a risk of physical harm, fear of apprehension of harm is not enough (R v Dawson) unless the victim is vulnerable (R v Watson), like too frail or weak and this would also be apparent to the sober and reasonable man.
R v Ball states that the tests will be an objective one, based on the sober and reasonable person's perception not the defendant. Similarly, DPP v Newbury and Jones states there is no need for the defendant to foresee some harm from his/her actions.
3. The third requirement is to prove that the unlawful , dangerous act resulted to the victim's death;
Normal criminal causation is applied;
Factual causation - But for test
Legal causation - operating and significant cause and any intervening acts
There would only be issues in this criteria if there is drugs involve as the question that will be asked is if the drugs the defendant suppliers caused the victim's death;
- R v Cato held that if the defendant was the one who injects drugs to the victim, it will be held as an unlawful act.
- R v Dalby held that if the defendant is only supplying the drugs, he will not be doing an unlawful act even of the victim dies from the drugs.
- R v Dias held that self injection of drugs that are prepared by a third party is not an unlawful act, as the victim's own conduct is the direct cause of death.
The last requirement would be to prove that the defendant must have the mens rea for the initial unlawful act (Assault, Battery, etc).
Loss of self control
Loss of self control
Under the S.54-56 of the Coroners and Justice 2009, the loss of self control replaces the defence of provocation.
The first requirement for this defence would be that the loss of self control does not need to be sudden but must be in near future (R v Ibrams and Gregory)and the defendant must not have any considered desire of revenge.
The second requirement is the loss of self control must arise in one of these qualifying triggers:
- Fear trigger is where the defendant fears violence to an identified person as in R v Pearson.
- Anger trigger is things said or done that are of extremely grave character that gave the defendant a justifiable sense of being wronged as in R v Clinton.
R v Clinton states that sexual infidelity is not a qualifying trigger and will be disregarded unless there are other triggers involve.
The last requirement is to prove that a reasonable person of the defendant's age and sex, in the same circumstances as the defendant would have reacted in the same way;
- The defendant's age and sex is taken in to account in order to determine the level of self control expected of a person as on R v Camplin.
- The circumstances of the defendant is considered as this can trigger t the defendant to lose self control more than in a normal person as in R v Aluwhalia, R v Morhall, R v Gregson and R v Hill.
- Even if it can be proven that a reasonable person of the defendant's age, sex and in the same circumstances, the jury can still decide that a reasonable person wouldn't have reacted the same way as in R v Van Dongen.
Under the S.54-56 of the Coroners and Justice 2009, the loss of self control replaces the defence of provocation.
The first requirement for this defence would be that the loss of self control does not need to be sudden but must be in near future (R v Ibrams and Gregory)and the defendant must not have any considered desire of revenge.
The second requirement is the loss of self control must arise in one of these qualifying triggers:
- Fear trigger is where the defendant fears violence to an identified person as in R v Pearson.
- Anger trigger is things said or done that are of extremely grave character that gave the defendant a justifiable sense of being wronged as in R v Clinton.
R v Clinton states that sexual infidelity is not a qualifying trigger and will be disregarded unless there are other triggers involve.
The last requirement is to prove that a reasonable person of the defendant's age and sex, in the same circumstances as the defendant would have reacted in the same way;
- The defendant's age and sex is taken in to account in order to determine the level of self control expected of a person as on R v Camplin.
- The circumstances of the defendant is considered as this can trigger t the defendant to lose self control more than in a normal person as in R v Aluwhalia, R v Morhall, R v Gregson and R v Hill.
- Even if it can be proven that a reasonable person of the defendant's age, sex and in the same circumstances, the jury can still decide that a reasonable person wouldn't have reacted the same way as in R v Van Dongen.
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