Criminal Law

Defences

Intoxication

Introduction

Intoxication is not a defence to a crime as such, but where a person is intoxicated through

drink or drugs and commits a crime, the level of intoxication may be such as to prevent the
defendant from forming the necessary mens rea of the crime. Public policy plays a strong factor
in ascertaining whether the defendant's intoxication may be used by a defendant to negate
the mens rea of a crime. It is obviously not in the public interest for criminals to escape liability
simply by asserting they were so drunk they did not know what they were doing. This is often
seen as an aggravating factor rather than a mitigating factor, particularly where the defendant
put himself in that position.

Balancing exercise
The law has formulated various rules of certain ambit in seeking to strike the balance between
on the one hand, imposing criminal liability on a party who did not have the mental element of
the crime and on the other, protecting the public from those who deliberately  put themselves in
a position where they are unable to control their actions. For this reason the law draws a
distinction between involuntary intoxication and voluntary intoxication. The law is generally
more accommodating to those who have not voluntarily put themselves into an intoxicated
state.

Involuntary intoxication (without the requisite mens rea)  

The most obvious example of involuntary intoxication is where a person has had their food or
drink spiked without their knowledge. However, it may also cover where a particular drug has
an unexpected result to that anticipated. The case of R v Hardie, is demonstrative of this point.
R v Hardie

The defendant had voluntarily consumed up to seven old valium tablets (a non-controlled drug
having a sedative effect) for the purpose of calming his nerves. Whilst under the influence of
the drug he had started a fire in the flat in which he had been living, but claimed to have been
unable to remember anything after taking the tablets. The defendant was convicted of causing
criminal damage being reckless as to whether life would be endangered, following the trial
judge's direction to the jury that self-induced intoxication was not available by way of defence
to a basic intent crime. The defendant appealed.

The conviction was quashed on appeal on the grounds that he could not be expected to
anticipate that tranquillizers would have that effect upon him. The Court of Appeal held that
the trial judge should have distinguished valium, a sedative, from other types of drugs, such as
alcohol, which were widely known to have socially unacceptable side effects. Whilst the
voluntary consumption of dangerous drugs might be conclusive proof of recklessness, no such
presumption was justified in the case of non-dangerous drugs. The jury should have been
directed to consider whether the defendant had been reckless in consuming the valium, in the
sense that he had been aware of the risks associated with its consumption, although not
necessarily aware of the risk that he would actually commit aggravated criminal damage.

However, if the effect is anticipated but the defendant merely underestimates the strength,
then the intoxication remains voluntary. 

R v Allen 
The appellant consumed some homemade wine. This had a much greater effect on him than
anticipated. He committed sexual assaults and claimed he was so drunk he did not know what
he was doing. He argued that he had not voluntarily placed himself in that condition as the
wine was much stronger than he realized.

Held: The intoxication was still voluntary even though he had not realized the strength of it. The
crime of sexual assault is one of basic intent and therefore the appellant was unable to rely on
his intoxicated state to negative the mens rea.
 

At one time it was considered that involuntary intoxication could be an outright defence to a

criminal charge:
Pearson's case 
The appellant killed his wife in a fit of drunkenness. He had beaten her with a rake-shank and
she died of the wounds and bruises which she received. His only defence was that he was
drunk.
Park. J.
"Voluntary drunkenness is no excuse for crime. If a party be made drunk by stratagem, or the
fraud of another, he is not responsible."

NB. However, in the case of R v Kingston, the House of Lords held there was no such defence.
Only where the defendant could be shown to lack the mens rea of the offence due to his
intoxicated state could he escape criminal sanction. Thus where drink or drug removes the
inhibitions of the defendant so that they may do things which they would not do when they are
sober, they nevertheless often have the mens rea of the crime. The law will not excuse this
behaviour even where the defendant had been drugged by the fraud of another:

R v Kingston (House of Lords)
Kingston had a business dispute with a couple. They employed Penn to gain some damaging
information on Kingston in order to blackmail him. Kingston was homosexual with paedophiliac
predilections. Penn invited a 15 year old boy to his room and gave him a soporific drug in his
drink. The boy remembers nothing from the time of getting drinking the drink on Penn's bed
until waking the next morning. Penn then invited Kingston to the room and drugged his drink
without his knowledge. Penn and Kingston then both engaged in gross sexual acts with the
unconscious boy. Penn recorded the events and took photographs. Kingston was charged with
indecent assault on a youth. At his trial the judge directed the jury:

"In deciding whether Kingston intended to commit this offence, you must take into account any
findings that you may make that he was affected by drugs. If you think that because he was so
affected by drugs he did not intend or may not have intended to commit an indecent assault
upon [D.C.], then you must acquit him; but if you are sure that despite the effect of any drugs
that he might have been slipped - and it is for you to find whether he was drugged or not - this
part of the case is proved, because a drugged intent is still an intent. So intention is crucial,
intention at the time; and, of course, members of the jury, you will bear in mind there is a
distinction between intention at the time and a lack of memory as to what happened after the
time. "

The jury convicted him and he appealed to the Court of Appeal where his conviction was
quashed.

The prosecution appealed to the Lords.

Held:
Appeal allowed. There is no principle of English law which allows a defence based on
involuntary intoxication where the defendant is found to have the necessary mens rea for the
crime. The prosecution had established the defendant had the necessary intent for the crime - a
drunken intent is still an intent.

Voluntary intoxication (with mens rea)

Where the defendant has voluntarily put themselves in the position of being intoxicated to the
extent that they are not capable of forming the mental element of the crime the law is less
forgiving. The law draws a distinction between crimes of basic intent and crimes of specific
intent. This distinction was drawn in DPP v Beard and affirmed in DPP v Majewski.
DPP v Beard (House of Lords)
The appellant whilst intoxicated raped a 13 year old girl and put his hand over her mouth to
stop her from screaming. She died of suffocation. 

Lord Birkenhead LC:

"Under the law of England as it prevailed until early in the 19th century voluntary drunkenness
was never an excuse for criminal misconduct; and indeed the classic authorities broadly assert
that voluntary drunkenness must be considered rather an aggravation than a defence. This view
was in terms based upon the principle that a man who by his own voluntary act debauches and
destroys his will power shall be no better situated in regard to criminal acts than a sober man.

Where a specific intent is an essential element in the offence, evidence of a state of

drunkenness rendering the accused incapable of forming such an intent should be taken into
consideration in order to determine whether he had in fact formed the intent necessary to
constitute the particular crime. If he was so drunk that he was incapable of forming the intent
required he could not be convicted of a crime which was committed only if the intent was
proved. ... In a charge of murder based upon intention to kill or to do grievous bodily harm, if
the jury are satisfied that the accused was, by reason of his drunken condition, incapable of
forming the intent to kill or to do grievous bodily harm ... he cannot be convicted of murder.
But nevertheless unlawful homicide has been committed by the accused, and consequently he
is guilty of unlawful homicide without malice aforethought, and that is manslaughter"

DPP v Majewski [1977] AC 443 House of Lords

The appellant had taken a substantial quantity of drugs over a 48 hour period. He then went to
a pub and had a drink. He got into a fight with two others. The landlord went to break up the
fight and the appellant attacked him. When the police arrived, he assaulted the arresting
officer. Another officer was struck by the appellant when he was being driven to the police
station. The next morning he attacked a police inspector in his cell. He was charged with four
counts of occasioning actual bodily harm and three counts of assaulting a police constable in
the execution of his duty. The appellant claimed he had no recollection of the events due to his
intoxication. He was found guilty on all counts and appealed contending that he could not be
convicted when he lacked the mens rea of the offences due to his intoxicated state.
Held:
Conviction upheld. The crime was one of basic intent and therefore his intoxication could not
be relied on as a defence.

Crimes of specific intent: A) Crimes of specific intent have sometimes been stated to include
crimes where the offence can only be committed intentionally i.e. where recklessness will not
suffice. B) Another definition often used is where the offence requires an ulterior intent i.e. one
which requires proof of an intent which goes beyond the prohibited act e.g. criminal damage
with intent to endanger life.

Crimes which have been categorized as being 'specific intent' crimes include:

 Murder (R v Lipman)
 Grievous bodily harm (R v Brown and Stratton)

The approach taken in crimes of specific intent 

Where a crime is categorized as being one of specific intent, the defendant is allowed to rely on
their intoxication to demonstrate that they lacked the mens rea of the offence. This is subject to
the caveat that a drunken intent is nevertheless an intent:
 
 
R v Sheehan and Moore 
The two appellants, in a drunken state, poured petrol over a man and set light to him causing
his death.
Held:
The relevant question was not whether the appellants were capable of forming the mens rea it
was whether they had in fact formed the mens rea - a drunken intent is still an intent. The
burden of proving mens rea remained on the prosecution.

".....in cases where drunkenness and its possible effect upon the defendant's men's rea is an
issue, we think that the proper direction to a jury is, first, to warn them that the mere fact that
the defendant's mind was affected by drink so that he acted in a way in which he would not
have done had he been sober does not assist him at all, provided that the necessary intention
was there. A drunken intent is nevertheless an intent.

The jury is to be directed to have regard to all the evidence, including that relating to drink, to
draw such inferences as they think proper from the evidence, and on that basis to ask
themselves whether they feel sure that at the material time the defendant had the requisite
intent."
 Crimes of basic intent 

Crimes which have been categorized as crimes of basic intent include:

 
 Assault, battery, Actual Bodily Harm and GBH (DPP v Majewski)
 Sexual assault (R v Heard) 

 Rape (R v Woods)

The approach taken in crimes of basic intent

Where a defendant's intoxication is voluntary and the crime is one of basic intent, the
defendant is not permitted to rely on their intoxicated state to indicate that they lack the mens
rea of the crime.

Other matters relating to intoxication

  
Intoxication and Dutch courage
 
 Where a person forms the intention to commit a crime and then drinks in order to enable them
to carry out the crime, they cannot then claim the intoxication prevented them from forming
the mens rea:

A-G for N. Ireland v. Gallagher [1963] AC 349 House of Lords

The Respondent was an aggressive psychopath and prone to violent outbursts. This was
particularly so if he had taken alcohol. He was frequently violent towards his wife. He had spent
some time in a mental hospital for which he blamed his wife. On his release he went out and
brought a bottle of whiskey and a knife. He intended to use the knife to kill his wife and brought
the whiskey as he knew that this would make him aggressive to the extent that he would be
able to kill. He drank the whiskey and killed his wife with the knife and a hammer. He was
convicted of murder and appealed to the Court of Criminal Appeal N.I on the grounds of a mis-
direction. His conviction was quashed. The Attorney General appealed to the House of Lords on
the grounds that the defence of intoxication was not open to him because before taking the
drink, when there was no defect in his reason, he had clearly evinced an intention to kill his wife
and any temporary derangement of his reason at the time of the killing was the result of his
own voluntary act in taking the drink.

Held:

Appeal allowed. The conviction restored. Where a person forms the intention to kill and drinks
in order to give themselves Dutch courage, they cannot then rely on their intoxication to
demonstrate they did not have the necessary mens rea.

Lord Denning:
"My Lords, this case differs from all others in the books in that the accused man, whilst sane
and sober, before he took to the drink, had already made up 'his mind to kill his wife. This
seems to me to be far worse— and far more deserving of condemnation—than the case of a
man who before getting drunk, has no intention to kill, but afterwards in his cups, whilst drunk,
kills another by an act which he would not dream of doing when sober. Yet by the law of
England in this latter case his drunkenness is no defence even though it has distorted his reason
and his will-power. So why should it be a defence in the present case? And is it made any better
by saying that the man is a psychopath?"

Intoxication in conjunction with other defences:

Self -defence
Where a defendant is labouring under a mistaken belief that they are under attack and acting in
self-defence, they cannot rely on such mistaken belief where it was induced by voluntary
intoxication. This applies to crimes of both basic intent and specific intent (R v O’Grady).

Self-defence

INTRODUCTION

At common law the defence of self-defence operates in three spheres. It allows a person to use
reasonable force to:

(a) Defend himself from an attack.

(b) Prevent an attack on another person, e.g. R v Rose (1884), where the defendant who had
shot dead his father whilst the latter was launching a murderous attack on the defendant's
mother, was acquitted of murder on the grounds of self-defence.

(c) Defend his property.

In addition, s3(1) of the Criminal Law Act 1967(STATUTE SEARCH FOR JAMAICA) provides that:
"A person may use such force as is reasonable in the circumstances in the prevention of crime,
or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons
unlawfully at large."

Both the common law and statutory defences can be raised in respect of any crime with which
the defendant is charged, and if successful will result in the defendant being completely
acquitted. However, if a defendant uses excessive force this indicates that he acted
unreasonably in the circumstances. There will therefore be no valid defence, and the defendant
will be liable for the crime.

1. REASONABLE FORCE

The general principle is that the law allows only reasonable force to be used in the
circumstances and, what is reasonable is to be judged in the light of the circumstances as the
accused believed them to be (whether reasonably or not). In assessing whether a defendant
had used only reasonable force, Lord Morris in Palmer v R [1971] AC 814, felt that a jury should
be directed to look at the particular facts and circumstances of the case. His Lordship made the
following points:

* A person who is being attacked should not be expected to "weigh to a nicety the exact
measure of his necessary defensive action".
* If the jury thought that in the heat of the moment the defendant did what he honestly and
instinctively thought was necessary then that would be strong evidence that only reasonable
defensive action had been taken.
* A jury will be told that the defence of self-defence will only fail if the prosecution show
beyond reasonable doubt that what the accused did was not by way of self-defence.

The issue of a mistake as to the amount of force necessary was considered by the Court of
Appeal in R v Scarlett:

R v Scarlett - The defendant, a publican, sought to eject a drunk person from his premises. The
drunk person made it clear that he was not going to leave voluntarily. The defendant believed
that the deceased was about to strike him and so he put his arms around the drunk person's
body, pinning his arms to his sides. He took him outside and placed him against the wall of the
lobby. The drunk person fell backwards down a flight of five steps, struck his head and died. The
jury were directed that if they were satisfied that the defendant had used more force than was
necessary in the bar and that had caused the deceased to fall and strike his head he was guilty
of manslaughter. The defendant was convicted and appealed on the ground that he honestly
(albeit unreasonably) believed the amount of force he had used to evict the drunken man from
his premises was necessary. In allowing the appeal, Beldam LJ gave the following direction for
juries:

"They ought not to convict him unless they are satisfied that the degree of force used was
plainly more than was called for by the circumstances as he believed them to be and, provided
he believed the circumstances called for the degree of force used, he was not to be convicted
even if his belief was unreasonable."

Note that in R v Owino, the Court of Appeal firmly denied that Scarlett is to be interpreted as
permitting a subjective test in examining whether force used in self-defence is reasonably
proportionate. The true rule is that a person may use such force as is (objectively) reasonable in
the circumstances as he (subjectively) believes them to be.

2. A DUTY TO RETREAT?

There is no rule of law that a person attacked is bound to run away if he can. A demonstration
by the defendant that at the time he did not want to fight is no doubt, the best evidence that
he was acting reasonably and in good faith in self-defence; but it is no more than that. A person
may in some circumstances act without temporising, disengaging or withdrawing; and he
should have a good defence (Smith and Hogan, Criminal Law, 1996, p264). This statement was
approved in:

R v Bird- The defendant had been slapped and pushed by a man. She was holding a glass in her
hand at the time and she had hit out at the man in self-defence without realising that she still
held the glass. The trial judge directed the jury that self-defence was only available as a defence
if the defendant had first shown an unwillingness to fight. The Court of Appeal quashed the
defendant's conviction saying that it was unnecessary to show an unwillingness to fight and
there were circumstances where a defendant might reasonably react immediately and without
first retreating. It was up to a jury to decide on the facts of the case.

It is therefore, a matter for the jury to decide as to whether the defendant acted reasonably in
standing his ground to defend himself, or whether the reasonable man would have taken the
opportunity to run away.

3. IMMINENCE OF THE THREATENED ATTACK

It is not absolutely necessary that the defendant be attacked first. As Lord Griffith said
in Beckford v R [1988] AC 130: "A man about to be attacked does not have to wait for his
assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive
strike."

In Attorney-General's Reference (No 2 of 1983) [1984] 2 WLR 465, the defendant made ten
petrol bombs, during the Toxteth riots after his shop was damaged and looted, "to use purely
as a last resort to keep them away from my shop". The expected attack never occurred. He was
then charged with an offence under s4(1) of the Explosive Substances Act 1883 of possessing an
explosive substance in such circumstances as to give rise to a reasonable suspicion that he did
not have it for a lawful object. It was a defence under the terms of the section for the
defendant to prove that he had it for a lawful object. The Court of Appeal held that there was
evidence on which a jury might have decided that the use of the petrol bombs would have been
reasonable force in self-defence against an apprehended attack. If so, the defendant had the
bombs for a "lawful object" and was not guilty of the offence charged. However, it was
assumed that he was committing offences of manufacturing and storing explosives contrary to
the Explosives Act 1875. The court agreed with the Court of Appeal in N. Ireland in Fegan, that
possession of a firearm for the purpose of protecting the possessor may be possession for a
lawful reason, even though the possession was unlawful, being without a licence. Lord Lane CJ
said:
'There is no question of a person in danger of attack "writing his own immunity" for violent
future acts of his. He is not confined for his remedy to calling in the police or boarding up his
premises. He may still arm himself for his own protection, if the exigency arises, although in so
doing he may commit other offences. That he may be guilty of other offences will avoid the risk
of anarchy contemplated by the Reference.'

4. DEFENCE OF PROPERTY

It can rarely, if ever, be reasonable to use deadly force for the protection of property. Even
assuming that no means short of killing could prevent the commission of the crime (Smith and
Hogan, Criminal Law, 1996, p266).

In R v Hussey, the defendant was barricaded in his room while his landlady and some
accomplices were trying to break down his door to evict him unlawfully. The defendant had
fired a gun through the door, and wounded one of them. He was acquitted of the wounding
charge on the grounds of self-defence. It was stated that it would be lawful for a man to kill one
who would unlawfully disposes him of his home.

Note: today it would seem difficult to contend that such conduct would be reasonable because
legal redress would be available if the householder were wrongly evicted.

Thus, only reasonable force may be used. It would seem clear, for instance, that despite a
common belief to the contrary, one is not at liberty to shoot dead a burglar wandering around
one's house if one does not fear for one's own life (Clarckson and Keating, Criminal Law, 1994,
p301). In Forrester [1992], it was held that a trespasser can plead self-defence if the occupier of
the house uses excessive force to try to remove him.

5. MISTAKE AS TO SELF-DEFENCE

It is possible that a defendant might mistakenly believe himself to be threatened or might

mistakenly believe that an offence is being committed by another person. On the basis of R v
Williams (Gladstone) (1984) and Beckford v R [1988], it would appear that such a defendant
would be entitled to be judged on the facts as he honestly believed them to be, and hence
would be permitted to use a degree of force that was reasonable in the context of what he
perceived to be happening:

In R v Williams (Gladstone) (1984), a man named Mason had seen a youth trying to rob a
woman in the street, and had chased him, knocking him to the ground. Williams, who had not
witnessed the robbery, then came onto the scene and was told by Mason that he was a police
officer (which was untrue). W asked M to produce his warrant card, which he was of course
unable to do, and a struggle ensued. W was charged with assault occasioning actual bodily
harm, and at his trial raised the defence that he had mistakenly believed that M was unlawfully
assaulting the youth and had intervened to prevent any further harm. The trial judge directed
the jury that his mistake would only be a defence if it was both honest and
reasonable(objective test). The Court of Appeal quashed the conviction and held that the
defendant's mistaken but honest belief that he was using reasonable (subjective test)force to
prevent the commission of an offence, was sufficient to afford him a defence. Lord Lane CJ said:

the jury should be directed first of all that the prosecution have the burden or duty of proving

i) the unlawfulness of the defendant's actions;

ii) secondly, if the defendant may have been labouring under a mistake as to the facts,
he must be judged according to his mistaken view of the facts;

iii) thirdly, that is so whether the mistake was, on an objective view, a reasonable
mistake or not.

* In a case of self-defence, where self-defence or the prevention of crime is concerned, if the

jury came to the conclusion that the defendant believed, or may have believed, that he was
being attacked or that a crime was being committed, and that force was necessary to protect
himself or to prevent the crime, then the prosecution have not proved their case.
* If however the defendant's alleged belief was mistaken and if the mistake was an
unreasonable one, that may be a powerful reason for coming to the conclusion that the belief
was not honestly held and should be rejected.
* Even if the jury came to the conclusion that the mistake was an unreasonable one, if the
defendant may genuinely have been labouring under it, he is entitled to rely upon it.

NB. Reasonableness is not the determinative factor, however, the more unreasonable your
mistake the less likely it is for your mistake to have been an honest one. Also, honesty is the
determinative factor, which is a question of fact for the jury to decide.

In Beckford v R (1988), the defendant police officer shot dead a suspect, having been told that
he was armed and dangerous, because he feared for his own life. The prosecution case was that
the victim had been unarmed and thus presented no threat to the defendant. The trial judge
directed the jury that the defendant's belief in the need to shoot in self-defence had to be both
honest and reasonable. In rejecting this direction, the Privy Council approved the approach
in Williams. Lord Griffiths commented that juries should be given the following guidance:

"Whether the plea is self-defence or defence of another, if the defendant may have been
labouring under a mistake as to facts, he must be judged according to his mistaken belief of the
facts: that is so whether the mistake was, on an objective view, a reasonable mistake or not."

The defendant therefore, had a defence of self-defence because the killing was not unlawful if,
in the circumstances as he perceived them to be, he had used reasonable force to defend
himself.

6. INTOXICATION AND SELF-DEFENCE

One effect of alcohol can be to lead the drinker to interpret the words and actions of others as
threatening, thereby increasing "defensive activity" (Clarkson and Keating, Criminal Law, 1994,
p402). In other words, a drunken person may act violently, mistakenly believing himself to be
under attack. What is the position where such a person makes a mistake as to a "defence"?

The view now taken by the courts is that such a drunken mistake, however genuinely believed,
is no defence to a criminal charge - not even to crimes of specific intent. The two leading cases
are:
R v O'Grady [1987] 3 WLR 321 - The defendant woke from a drunken stupor to find his equally
drunk friend hitting him. In order to defend himself he retaliated with several blows and then
returned to sleep. He awoke to find his friend dead. The defendant was convicted of
manslaughter and appealed against conviction, relying on the defence of self-defence in the
circumstances as he mistakenly believed them to be. The Court of Appeal dismissed the appeal
and said that a mistake arising from voluntary intoxication could never be relied on in putting
forward a defence, whatever the crime. Lord Lane CJ also rejected the relevance of the
distinction between crimes of basic and specific intent on this aspect of the matter.

R v O'Connor [1991] Crim LR 135 - The defendant while drunk head-butted his victim, who died.
He claimed he thought he was acting in self-defence. He was convicted of murder and appealed
on the grounds that his mistaken belief was relevant. The Court of Appeal held that,
following O'Grady, a drunken mistake as to the need for self-defensive action was to be ignored
by the jury. However, in murder cases the drunkenness of the defendant could be taken into
consideration in determining whether the defendant had the necessary specific intent (and on
this basis a verdict of manslaughter was substituted).