The general defences: insanity and automatism, intoxication, self-defence and the prevention of crime, consent, and duress by threats and of circumstances.

What this dot point is asking

OCR Component 1 Section B requires you to know the general defences: the capacity defences of insanity, automatism and intoxication; self-defence and the prevention of crime; consent; and duress (by threats and of circumstances). The skill is to identify which defence fits the facts and apply its elements for AO2.

The answer

Insanity and automatism

Automatism is an act done by the muscles without control by the mind (Bratty). The decisive question is the cause: an external cause (a blow, a drug) gives non-insane automatism, a complete defence; an internal cause is treated as insanity (in Quick insulin was external and so automatism, but in Hennessy the untreated diabetes was internal and so insanity). Self-induced automatism is restricted for basic-intent crimes.

Intoxication

Intoxication is rarely a defence:

• Involuntary intoxication (a spiked drink) is a defence if it prevents the defendant forming the mens rea (though R v Kingston shows a drunken intent is still an intent).
• Voluntary intoxication is a defence only to crimes of specific intent (murder, s18) where it prevents the mens rea, reducing the charge to a basic-intent fallback. It is no defence to basic-intent crimes (assault, battery, s20), because becoming voluntarily intoxicated is itself reckless (DPP v Majewski).

Self-defence and the prevention of crime

A person may use force to defend themselves or another, defend property or prevent crime (s3 Criminal Law Act 1967), clarified by s76 Criminal Justice and Immigration Act 2008. Two questions:

1. Was force necessary? Judged on the facts as the defendant honestly believed them, even if mistaken (R v Williams), unless the mistake is due to voluntary intoxication (R v O'Grady). A defendant need not wait to be struck (Beckford).
2. Was the force reasonable and proportionate? A householder facing an intruder may use force that is disproportionate but not grossly disproportionate (s76(5A)).

Consent and duress

Consent is a defence to assault and battery, but generally not to ABH or worse, except in recognised categories: sport, surgery, tattooing and horseplay (R v Jones). It is not a defence to sado-masochistic injury (R v Brown).

Duress excuses a crime done because of a threat:

• Duress by threats requires a threat of death or serious injury to the defendant or someone they are responsible for, on the two-part Graham test: did the defendant reasonably believe there was good cause to fear death or serious injury, and would a sober person of reasonable firmness sharing the defendant's characteristics have given in? There must be no safe avenue of escape and no voluntary association with violent criminals (R v Hasan).
• Duress of circumstances applies the same test where the threat comes from the situation rather than a demand (R v Pommell).
• Duress is never available to murder or attempted murder (R v Howe; R v Gotts).

Examples in context

Try this

Q1. Explain the defence of intoxication, distinguishing voluntary from involuntary intoxication and specific from basic intent. [12 marks]

• What the marker wants. Precise AO1: involuntary intoxication is a defence if it negates mens rea (Kingston); voluntary intoxication is a defence only to specific-intent crimes where it prevents the mens rea, and is no defence to basic-intent crimes (Majewski).

Q2. Believing he is about to be attacked, Pavel punches a stranger who had in fact only raised a hand to wave. Discuss whether Pavel can rely on self-defence. [20 marks]

• Cue. An AO2 application: force is judged on the facts as Pavel honestly believed them, even if mistaken (Williams), so a genuine belief in an attack can found self-defence, provided the force was reasonable and proportionate (s76 CJIA 2008).