General Defences

This was a rape case where a husband invited a number of his friends to have sexual intercourse with his wife. The wife did not consent and it was claimed that her protestations were mistakenly believed to be a 'kinky' way of love making. The House of Lords upheld the convictions on the basis that the accused had not actually held any mistaken belief but said that had they indeed been mistaken, then they would have been acquitted. II. Offences not requiring subjective fault A. Inadvertence and mistake 1. Inadvertence

It is clear that inadvertence is a defence to an offence requiring at least subjective recklessness. 2. Mistake The situation is a little confused but it is probable that a genuine mistake is a defence to objective Caldwell recklessness only if the accused has totally ruled out the risk of the relevant consequence occurring. B. Negligence 1. Inadvertence It is clear that inadvertence is no defence in that not thinking or realising a risk of death is negligence when a reasonable man would have thought or realised a risk of death.

2. Mistake Equally clearly, mistake can be a defence to crimes of negligence subject to the important qualification that the mistake must be a reasonable one since an unreasonable mistake is itself negligence. In other words, an 'understandable' (reasonable) mistake can be a defence but a criminally negligent (unreasonable) one would not be. R v LAMB [1967] 2 QB 981 – CA This was a manslaughter case. The accused had 'jokingly' pointed and fired a revolver containing two live bullets at his best friend, thereby killing him.

His reasonable mistake was in believing that, because the bullets were not in the firing position, the gun could not fire when in fact, unknown to him, pulling the trigger caused the cylinder to rotate and, in this case, placed one of the bullets in the firing position. NOTE Even a reasonable mistake is no defence to an offence of strict liability. III. Ignorance of the law For some offences, the requirement of mens rea includes legal concepts and a mistake about that legal concept can mean that the accused lacks mens rea. R v SMITH [1974] QB 354

Here, in ignorance of the civil law of property, the defendant tenant mistakenly believed that he owned certain household fixtures which in law belonged to his landlord. He thus lacked the mens rea of the offence of theft for which he was charged and was therefore acquitted. NOTE The mistake must be one of civil law rather than criminal law. COMMENT So, if you say that you did not know that it was not a defence to actual bodily harm that the victim consented, or that the bird that you shot was a protected species, you would be guilty.

AUTOMATISM I. Definition The defence of automatism, also known as non-insane automatism, arises where the accused's conduct is completely involuntary. Often, the state will be unconsciousness. So, for example, if someone is sleepwalking and commits an offence, then the defence may possibly apply. Where the accused is conscious, automatism will be rare but possible, for example reflex actions when startled by a sudden loud noise or when stung by a swarm of bees while driving have amounted to defences. II. Control and awareness

The accused must be in a position of having no control over his actions and be totally unaware of them. ATTORNEY GENERAL'S REFERENCE (NO. 2 OF 1992) [1994] QB 91 Here, a lorry driver killed two drivers in a road accident. He was suffering from a condition known as 'driving without awareness'. This meant that he was unable to avoid the accident but that he was capable of being aware of something. The fact that his awareness was not total, meant that his defence of automatism did not apply. III. Restriction: must not be self-induced

Automatism must usually not be self-induced, for example by voluntary intoxication. R v QUICK [1973] QB 910 – CA Here, the defendant diabetic had assaulted someone as a result of not using insulin properly. Lawton LJ, 'A self-induced incapacity will not excuse… nor will one which could have been reasonably foreseen as a result of either doing, or omitting to do something, as, for example, taking alcohol against medical advice after using certain prescribed drugs, or failing to have regular meals while taking insulin… '

COMMENT It will also be self-induced, if, for example, you drive knowing that you have a heart condition that might bring on an attack under stress. The fact that you suffer an attack and black out, putting you on automatic pilot, so to speak, will not excuse you. INTOXICATION (VOLUNTARY) I. What is it? Voluntary intoxication is where the accused knowingly takes alcohol or other intoxicating drugs (save under medical supervision or direction) and it is immaterial that the accused may have misjudged the degree to which he would become intoxicated. DPP v MAJEWSKI [1976] 2 AER 142 – HL

Here, the accused was convicted of section 47 ABH, despite not knowing what he was doing – being 'high' on alcohol, 'speed' and barbiturates. Held that voluntary intoxication can only give rise to a defence to crimes of 'specific intent'. II. Specific intent crimes Essentially, a crime of specific intent is an offence for which only intention will suffice as the mental element. These offences permit voluntary intoxication to negate mens rea. BUT if mens rea is formed because of the voluntary intoxication – 'Dutch courage', for example – then the defendant will be guilty.

NOTE There are only two crimes in this 'A' level course where only intention is good enough to secure a conviction: murder and section 18 OAPA assaults. III. Basic intent crimes Crimes that are not specific crimes but require some mens rea are referred to as 'basic intent' crimes. For example, crimes requiring Cunningham recklessness. For these crimes, voluntary intoxication is no defence. COMMENT So, common assault, section 47 & 20 OAPA offences and manslaughter are all basic intent crimes. Obviously where crimes require Caldwell recklessness, voluntary intoxication is not relevant because no thought is required to commit them.