Defences 2

1. Defences 2 • In this lecture we will consider: • Mistakes which negative the mens rea. • Mistakes which provide an excuse. • Mistake and transferred malice. • The availability of intoxication as a defence – the rule in Majewski. • The effect of successfully pleading the defence. • Limitations on the intoxication rules.

2. The defence of mistake • A defendant charged with a criminal offence may assert that he committed the act under a mistaken belief, e.g. he may have believed the property he intentionally damaged was his own or that he was acting in self defence when he injured V. • To what extent, if at all, should the law allow a mistake on D’s part to negative his criminal liability?

3. Mistakes negativing mens rea • A mistake of fact/civil law which results in D not having mens rea for the crime will mean that one of the essential elements of that crime is lacking and D will not be liable. Such a mistake need only be honest (as opposed to also being reasonable) (D.P.P. v Morgan (1976)).

4. Sometimes what appears to be a mistaken belief in the existence of facts which, if true, would have provided a defence on the basis that D acted lawfully in self defence / prevention of crime is, on further analysis, a denial of mens rea.

5. Examples • The offence of battery is defined in terms of “unlawful" application of force. • S.20 OAPA 1861- "unlawful" and malicious wounding/inflicting gbh.

6. A mistaken belief on D’s part that he was acting in self defence/to prevent crime is a denial that he intended/was reckless as to applying "unlawful" force/as to "unlawfully” doing some physical harm. • i.e. a denial of mens rea because “unlawfulness" is a definitional element of such crimes (to which the mens rea extends) (Beckford (1988)). • Thus, only an honest belief acting in self defence etc needed.

7. A reasonable mistake which provides an excuse • Prior to Morgan, it was asserted in some cases that, where D acted under a mistaken belief in the existence of facts which, if they were true, would have meant an element of the actus reus could not be proven, the offence would be treated as one where an honest and reasonable mistake as to this element of the actus reus will excuse D.

8. Most of these cases have arisen in the context of bigamy, see eg Tolson(1889), where the only intention required is that to go through a ceremony of marriage. Mens rea is not required as to the actus reus requirement of “being married.” Negligence only is needed. (So a D who mistakenly believes her spouse is dead and remarries would only have a defence to a bigamy charge if the spouse later turns up if her belief was a reasonable one. • Morgan did not overrule Tolson.

9. However, note the possible effect of B v DPP (2000) (which involved mistaken belief as to the age of V in age-based sexual offences). It is now likely that an honest belief is a good defence, even if unreasonable, except possibly in bigamy cases.

10. Lord Nicholls stated in B v DPP that the requirement that the belief had to based on reasonable grounds was a: • relic from the days before D could give evidence in his own defence [which explained why a jury would determine D’s state of mind] by the conduct to be expected of a reasonable person.”

11. and that • “there has been renewed emphasis on the subjective nature of the mental element in criminal offences. The courts have rejected the reasonable belief approach and preferred the honest belief approach. When mens rea is ousted by a mistaken belief, it is as well ousted by an unreasonable belief as by a reasonable belief. …It is D’s belief, not the grounds on which it is based, which goes to negative the intent.”

12. Irrelevant mistakes

13. Mistake and transferred malice • Where D, with the mens rea of a crime, brings about the actus reus of that crime on an unintended V or object, the doctrine of transferred malice can be used to find him guilty - any alleged mistake on his part as to the person/object he intended to harm is irrelevant, see Latimer (1886).

14. The defence of Intoxication • "I was drunk", is an excuse/ justification/ explanation put forward on occasions by persons for things they have done which, ordinarily, they would not have. As we shall see, however, it will only afford a defence in limited circumstances.

15. Intoxication negativing mens rea • Evidence that D was intoxicated when he committed the actus reus may result in a finding that he lacked the mens rea required for that offence = not guilty. • There are, however, policy considerations.

16. The rule in Majewski (1976) • Self-induced intoxication which results in D having no mens rea for the offence charged is a "defence" to a crime of "specific intent" but not to any other crime (a crime of basic intent). • D is presumed to be reckless in voluntarily becoming intoxicated and this recklessness is sufficient mens rea for an offence of basic intent (see dicta of Lord Elwyn-Jones).

17. Problems with Majewski Rule • It conflicts with s.8 CJA 1967. • Ld Elwyn-Jones in Majewski stated that the reference to “all the evidence” in s.8 meant all the “relevant evidence” and, as there is a substantive rule of law that in crimes of basic intent evidence of intoxication is irrelevant, it cannot be considered.

18. The recklessness in getting drunk does not coincide in point of time with the actus reus of the offence - it precedes it. • D’s recklessness is in relation to the effects of the intoxicant e.g. inability to control his actions, whereas the mens rea required for an offence is recklessness as to a consequence of his actions e.g recklessness as to causing some physical harm.

19. Scope of the Rule • Applies to self-induced or voluntary intoxication i.e the intentional taking of alcohol or drugs, being aware that one is taking such substances. • Where D knows he is drinking alcohol it is irrelevant whether he knows the precise nature or strength of the alcohol (Allen (1988)).

20. The rule applies to intoxication by alcohol or "dangerous" drugs. • Lipman (1970)- all types of drugs were equated with alcohol. However, seeBailey (1983)and Hardie (1985) which suggest that a drug can only render D a voluntary intoxicant where it is generally known in the community at large that the drug can render the user aggressive/unpredictable.

21. Rule applies only where D actually lacks mens rea because of the intoxication as a drunken intent is still an intent. • Burden of proof remains on prosecution to establish that, despite D’s intoxication, he still formed the intent, see Sheehan (1975).

22. Voluntary intoxication is only a defence to crimes of specific intent. • What exactly is a crime of specific intent?

23. What if D pleads intoxication on a crime of basic intent? Consider the possible effect of Richardson (1999).

24. How the Majewski rule operates • Where D successfully pleads no mens rea in relation to a crime of specific intent he will only be acquitted if there is no lesser related basic intent offence as if there is he will be convicted of that offence instead.

25. A few examples illustrate the point: • murder -> manslaughter • s.18-> s.20 • theft -> an acquittal

26. Limitations / qualifications on the intoxication rules • The distinction between dangerous and soporific drugs • In Hardie (1985), the CA stated that if D was intoxicated at the time of the actus reus through taking a soporific drug e.g. valium, so that he lacked the mens rea for the offence, he ought to be acquitted provided he was not reckless in taking the drug.

27. Intoxication induced to give “Dutch courage” • Even in crimes of specific intent, D cannot use evidence of intoxication to plead lack of mens rea at the time of committing the actus reus if he deliberately got himself into that state after forming the mens rea (Att Gen for N. Ireland v Gallagher(1963)).

28. Involuntary Intoxication – this follows the rule in Kingston (1994): • (i) If D was an involuntary intoxicant but was still capable of forming the mens rea for the offence in question and actually did form the mens rea, he is still liable - a drugged intent is still intent. • (ii) Involuntary intoxication is a defence to any crime, be it of specific or basic intent, provided it had the effect that D lacked the mens rea for the offence.

29. Intoxication giving rise to a belief in a defence • In certain statutory offences, the statute expressly states that D will not be liable if he held a certain specified belief and that such belief need not be reasonable. • Thus, the belief need not be a sober one. See e.g. Jaggard and Dickinson (1980).

30. Although a mistaken belief that one is being attacked or as to the severity of an attack will entitle D to respond with reasonable force to defend himself against an attack of the severity he believed it to have, a mistaken belief of this sort which was induced by drink would not, see O’Grady (1987) which was followed inO’Connor (1991).

31. The effect is that if D is so intoxicated that he lacks the mens rea he is not liable for murder but if he was drunk and believed that he was defending himself when he killed, he cannot rely on his mistaken belief in self defence.

32. Mistaken belief in consent • In Richardson, the court held that evidence of intoxication can be taken into account on the issue of D’s mistaken belief in the victim’s consent.

33. Intoxication and excusatory defences • D’s unreasonable belief that acted under duress will afford a defence (Martin (David Paul (1989)) However, the decision is probably incorrect as it is inconsistent with an earlier decision of the HL. Thus, it is unclear whether D could rely on a drunken mistaken belief in duress.

34. Intoxication giving rise to insanity • Where intoxication brings on a "disease of the mind" so that D is (temporarily) insane, he will be found not guilty by reason of insanity (DPP v Beard 1920)) but would obviously face the consequences of such a finding.