Crime CXXVIII – Intoxication IV

In order to decide whether intoxication should avail itself to the defendant on otherwise the court or the jury should take into account all the evidence that is made available to them as per s.8 of the Criminal Justice Act 1967 which reads as follows: –

Proof of Criminal Intent

A court or jury, in determining whether a person has committed an offence –

(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but

(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

In R v Lipman (1969) the accused was high on LSD and was hallucinating at the time. He was, as far as he was concerned, battling serpents somewhere and unwittingly stuffed bed sheets into the mouth of a little girl who died as a result. The accused was charged with murder.

The court decided that the accused was not guilty of murder because he neither had the intention to kill prior to committing the act or at the time of committing the act. However, he had still taken the life of another and he was convicted of the offense of manslaughter.

It is worth comparing the decision in Attorney-General of Northern Ireland v Gallagher (1961) with the decision in R v Lipman (1969) and we can come to the conclusion that whether a defendant is adjudged guilty of murder or manslaughter depends on whether there is criminal intent or otherwise and when that criminal intent is formed. If the intention to kill was formed prior to the defendant becoming intoxicated than the chances are high that the defendant would be convicted of murder and it is possible to say with some degree of certainty that the act was done with malice aforethought.

Copyright © 2018 by Dyarne Ward

Crime CXXVII – Intoxication III

If the defendant either drinks (alcohol) or takes drugs to fortify his courage or to give him “dutch courage” then regardless of whether the crime that is committed is a basic intent crime or a specific intent crime he would not be able to rely on the fact that he was intoxicated at the time and did not have the mens rea to commit the crime as a mitigating factor to reduce the severity of the act.

In Attorney-General of Northern Ireland v Gallagher (1961) the accused had a violent twist to his personality and often acted in a deranged manner, especially after he had consumed alcohol and was particularly violent towards his wife.

The accused spent some time in a mental institution, for which he blamed his wife and upon release he made up his mind to kill her. However, in order to work himself into a fit or to have the courage to kill his wife, he drank down a bottle of whisky, and once he had reached the level of intoxication where he was deprived of his senses, he killed his wife with a knife and a hammer. The accused was charged and convicted of murder. He appealed on the grounds that at the time he committed the act he was deprived of his senses and sought to raise the defense of insanity.

The House of Lords upheld the conviction, in that, at the time he formed the intention to kill his wife, he was in full control of his senses and therefore the act of killing his wife was premeditated and it was done with malice aforethought. The fact that he needed to consume alcohol to acquire the courage to kill his wife does not mitigate the act in anyway.

Copyright © 2018 by Dyarne Ward

Crime CXXVI – Intoxication II

In DPP v Beard (1920) the defendant while he was drunk raped a 13-year-old girl and put his hands around her throat to stop her from screaming. The victim suffocated and died as a result. The defendant was charged.

It was held that voluntary intoxication was never an excuse for criminal misconduct. A man who commits a crime by his own acts that destroy his will power or deprive him of the ability to reason is in no better position than a man who is sober.

However, on a charge of murder, the jury cannot convict if they cannot establish the mens rea i.e. the intention to kill or the intention to cause grievous bodily harm or malice afterthought but can nonetheless convict for manslaughter.

Murder is a specific intent crime (in most instances the mens rea for a specific intent crime is codified by statute) and in order to establish murder, the prosecution must prove, beyond reasonable doubt, the elements that are required to obtain a conviction, but that does not mean that the defendant cannot be charged instead with a basic intent crime where the mens rea is usually recklessness or negligence or where the defendant has not given any thought to the consequences of his actions or having given it some thought has dismissed it.

S.2 (1) of the Homicide Act 1957, while it is more relevant to diminished responsibility gives a better understanding of the subject. The section reads as follows: –

Persons suffering from diminished responsibility.

  1. (1) A person (“D”) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which—

(a) arose from a recognised medical condition,

(b) substantially impaired D’s ability to do one or more of the things mentioned in subsection (1A), and

(c) provides an explanation for D’s acts and omissions in doing or being a party to the killing.

Copyright © 2018 by Dyarne Ward

Crime CXXV – Intoxication I

Intoxication per se in not a defense in criminal law. It comes into play when the defendant commits an act under the influence of: –

  1. Alcohol
  2. Drugs

However, without doubt, depending on the level of intoxication, it can deprive the defendant of the ability to reason. A man who is intoxicated is in no position to make sound or reasonable judgement and hence it can deprive the defendant of the mens rea (mental element) necessary for a conviction.

It can be said with some degree of certainty that when the defendant commits an act, under the influence, while the actus reus may be there (physical element), the mens rea (mental element) may not be present.

The law has to strike a balance between convicting a defendant who does not have the mens rea or intention to commit a crime and protecting the general public from criminal acts.

If intoxication were a valid defense than anyone who wanted to commit a crime, would simply do so under the influence and when arrested would plead intoxication.

The are two types of intoxication: –

  1. Voluntary Intoxication (which is generally not recognized as a defense. The courts are reluctant to make allowances for a defendant who commits a crime after he or she has managed to get himself or herself intoxicated)
  2. Involuntary Intoxication (which may be a defense, especially if the defendant was a victim of a crime, for example in instances where the defendant’s drink was spiked as a result of which the defendant lost his or her ability to reason).

Copyright © 2018 by Dyarne Ward

Crime CXXIV – Self Defense XIV

S.76 of the Criminal Justice and Immigration Act of 2008, does not change the law on self-defense or its application and merely codifies the principles that have been established at common law.

In R v McGrath (2010) the defendant and the victim were out drinking celebrating their “A” levels results and later they moved on to the defendant’s flat. The celebrations turned sour and an argument ensued. The argument got heated and according to the defendant the victim attacked her physically, spit at her and bit her and the defendant grabbed a kitchen knife and stabbed the victim. The knife went through the victim’s heart and he died. The defendant was arrested and tried and at her trial, she claimed, self-defense or that she was merely reacting, instinctively, to the attack.

The trial judge directed the jury on mistaken belief and on s.76 of the Criminal Justice and Immigration Act of 2008 and the jury found the defendant not guilty on the count of murder but guilty instead on the count of manslaughter. The defendant appealed on the grounds that mistaken belief was a misdirection when it fact there was no mistake and the defendant was indeed being attacked.

The appeal was dismissed. While the direction on mistaken belief should be avoided when the victim claims that he or she was being attacked, that in itself was not sufficient to make the conviction unsound. On s.76 of the Criminal Justice and Immigration Act of 2008, it does not alter the law and the law remains as it is. S.76 of the Criminal Justice and Immigration Act is not exhaustive and whether the defendant acted in self-defense or otherwise depends on the facts.

Copyright © 2018 by Dyarne Ward

Crime CXXIII – Self Defense XIII

The defense of self-defense will not avail itself to the defendant if the defendant is the aggressor or has provoked the response or the attack. In R v Keene (2010) the defendant was out drinking.

At his last stop, he met the victim who offered to give him a lift. On their way home the victim pulled over to get some petrol and the defendant got into an argument with another passenger in the car, who was smoking, telling her not to smoke.

The argument got heated and the victim intervened. The defendant thought that the victim was about to attack and preemptively struck the victim, hitting him with a closed fist.

The victim fell to the ground and his head hit the pavement resulting in serious head injuries. The defendant was charged and he contended that his actions were in self-defense.

The trial judge directed the jury to the effect that the defense of self-defense will not avail itself to the defendant if the defendant was the aggressor or he provoked the attack and the jury accordingly convicted the defendant for inflicting grievous bodily harm. The defendant appealed.

The appeal was dismissed and it was held that when the defendant is the aggressor or perpetrator, or has provoked the attack, the defense of self-defense will not avail itself to the defendant unless the victim reacted in a manner that was so out of the ordinary or so out of proportion that it put the defendant in immediate fear of his or her life.

Copyright © 2018 by Dyarne Ward

Crime CXXII – Self Defense XII

If the defendant suffered from an abnormality of the mind, and reacted to a situation in the way and manner a normal person would not have or had used excessive force in defending himself or his property, keeping in mind that the defendant’s actions when acting in self-defense is normally instinctive, and all that the defendant needs to establish is that he or she felt that at the time his or her actions were honestly and instinctively necessary to defend himself or herself, the defense of self-defense may not avail itself to the victim, if the prosecution can prove beyond reasonable doubt that the defendant was not acting in self-defense.

In R v Martin (2002) the defendant lived by himself in an isolated farmhouse which for all purposes looked rundown and to some extent dilapidated and had in the past been subjected to numerous break-ins. On the night in question the victim and his friend tried to break into the farmhouse and the defendant went downstairs armed with a shotgun and shot at both the intruders hitting the victim in the back and thereby killing him. At his trial the defendant raised the defense of self-defense. The jury rejected the defense and convicted the defendant for murder. The defendant appealed on the grounds that he suffered from a personality disorder and that should have been taken into account.

On appeal the conviction for murder was quashed. While a personality disorder will not be considered for the purposes of self-defense, the jury ought to have taken into account psychiatric reports that suggested that the defendant suffered from an abnormality of the mind.

Copyright © 2018 by Dyarne Ward

Crime CXXI – Self Defense XI

By virtue of S.76 of the Criminal Justice and Immigration Act 2008 the common law defense of self-defense was given statutory effect (an act of parliament is higher than common law and in case of conflict between the two, an act of parliament or statutory law will prevail).

S.76 of the Criminal Justice and Immigration Act 2008 reads as follows: –

Reasonable force for purposes of self-defence etc.

(1) This section applies where in proceedings for an offence—

(a) an issue arises as to whether a person charged with the offence (“D”) is entitled to rely on a defence within subsection (2), and

(b)the question arises whether the degree of force used by D against a person (“V”) was reasonable in the circumstances.

(2) The defenses are—

(a) the common law defence of self-defence; and

((aa) the common law defence of defence of property; and)

(b) the defences provided by section 3(1) of the Criminal Law Act 1967 (c. 58) or section 3(1) of the Criminal Law Act (Northern Ireland) 1967 (c. 18 (N.I.)) (use of force in prevention of crime or making arrest).

(3) The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and subsections (4) to (8) also apply in connection with deciding that question.

(4) If D claims to have held a particular belief as regards the existence of any circumstances—

(a)the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but

(b)if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not—

(i)it was mistaken, or

(ii) (if it was mistaken) the mistake was a reasonable one to have made.

(5) But subsection (4)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced.

((5A) In a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances.)

(6) (In a case other than a householder case,) the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances.

((6A) In deciding the question mentioned in subsection (3), a possibility that D could have retreated is to be considered (so far as relevant) as a factor to be taken into account, rather than as giving rise to a duty to retreat.)

(7) In deciding the question mentioned in subsection (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case)—

(a)that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and

(b)that evidence of a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.

(8) (Subsection (7) is) (Subsections (6A) and (7) are) not to be read as preventing other matters from being taken into account where they are relevant to deciding the question mentioned in subsection (3).

((8A) For the purposes of this section “a householder case” is a case where—

(a)the defence concerned is the common law defence of self-defence,

(b)the force concerned is force used by D while in or partly in a building, or part of a building, that is a dwelling or is forces accommodation (or is both),

(c)D is not a trespasser at the time the force is used, and

(d)at that time D believed V to be in, or entering, the building or part as a trespasser.

(8B) Where—

(a)a part of a building is a dwelling where D dwells,

(b)another part of the building is a place of work for D or another person who dwells in the first part, and

(c)that other part is internally accessible from the first part,

that other part, and any internal means of access between the two parts, are each treated for the purposes of subsection (8A) as a part of a building that is a dwelling.

(8C) Where—

(a)a part of a building is forces accommodation that is living or sleeping accommodation for D,

(b)another part of the building is a place of work for D or another person for whom the first part is living or sleeping accommodation, and

(c)that other part is internally accessible from the first part,

that other part, and any internal means of access between the two parts, are each treated for the purposes of subsection (8A) as a part of a building that is forces accommodation.

(8D) Subsections (4) and (5) apply for the purposes of subsection (8A)(d) as they apply for the purposes of subsection (3).

(8E) The fact that a person derives title from a trespasser, or has the permission of a trespasser, does not prevent the person from being a trespasser for the purposes of subsection (8A).

(8F) In subsections (8A) to (8C)—

“building” includes a vehicle or vessel, and

“forces accommodation” means service living accommodation for the purposes of Part 3 of the Armed Forces Act 2006 by virtue of section 96(1)(a) or (b) of that Act.)

(9) This section(, except so far as making different provision for householder cases,) is intended to clarify the operation of the existing defences mentioned in subsection (2).

(10) In this section—

(a) “legitimate purpose” means—

(i)the purpose of self-defence under the common law, (or)

((ia)the purpose of defence of property under the common law, or)

(ii)the prevention of crime or effecting or assisting in the lawful arrest of persons mentioned in the provisions referred to in subsection (2)(b);

(b)references to self-defence include acting in defence of another person; and

(c)references to the degree of force used are to the type and amount of force used.

Crime CXX – Self Defense X

When the jury is convinced excessive force was used and the jury returns a verdict of guilty of murder, should the verdict be substituted for a verdict of guilty of manslaughter if the appellant was acting in self-defense?

In R v Palmer (1971) the appellant and two others were chased by some men after they’d stolen some drugs. During the chase the appellant fired some shots and one of the men that was chasing them was killed by a gunshot. The appellant was arrested and tried and according to the appellant he did not fire the shot. The judge however directed the jury on self-defense and the jury returned a verdict of guilty of murder. The appellant appealed on the grounds that the judge having directed the jury on self-defense, the jury should have returned a verdict of manslaughter.

The appeal was dismissed. If a verdict of murder is returned, when the appellant has pleaded self-defense there is no option to substitute a murder conviction with that of manslaughter.

“If there has been an attack so that defense is reasonably necessary it will be recognized that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary, that would be most potent evidence that only reasonable defensive action had been taken.” – Lord Morris.

There are three salient points to be observed here: –

  1. It is up to the prosecution to prove, beyond reasonable doubt that the defendant was not acting in self-defense and if the prosecution has successfully done that than the defense of self-defense will not avail itself to the defendant/appellant.
  2. Secondly the court appreciates the fact that a person who is being attacked is not in a position or not in the state of mind to weigh the defensive measures he or she takes, and in most instances cannot control the amount of force that is exerted while defending himself or herself.
  3. If the jury decided that at the heat of the moment, at the time of the attack, that the defendant did what he or she thought was honestly and instinctively necessary than that would be strong evidence to suggest that the defendant was acting in self-defense.

Copyright © 2018 by Dyarne Ward

Crime CXIX – Self Defense IX

With reference to the decision in R v Bird (1985), it may seem or look like, to most of us anyway, that the court should impose a duty to back away or a duty to retreat prior to granting or allowing the defendant to raise the defense to self-defense however the decision in R v Bird (1985), is not without its merits.

One of the reasons that the courts are reluctant to impose a duty to back away or a duty to retreat in situations like that in R v Bird (1985) is because it may place the defendant in greater danger and decisions like the decision in R v Bird (1985) become more relevant in the area of psychological profiling.

There is nothing to suggest that the defendant backing away, or retreating, for that matter, will make the attacker relent. If anything, it tends to suggest the opposite, especially in areas of spouse or wife abuse where the wife or spouse’s helplessness or weakness to some extent aggravates the situation as implied by the facts in cases like R v Duffy (1949), R v Ahluwalia (1993) and R v Thornton (1996).

In R v Thornton (1996), the victim was particularly abusive towards his wife and on the day in question he threw his wife out of the house after abusing her together with a suitcase filled with her clothes.

She returned later that day and tried to patch things up and the victim was even more abusive towards her. She then went into the kitchen and grabbed hold of a kitchen knife and she tried to patch things up again, but her husband continued to be abusive and finally she stabbed him in the stomach with the kitchen knife and killed him.

She was charged with murder and at her trial she raised the defense of diminished responsibility, but she did not raise the defense of provocation. The judge however did direct the jury on provocation. The jury convicted the defendant for murder and the defendant appealed.

Her appeal was allowed in line with the decision in R v Ahluwalia (1993). It was found that the defendant suffered from a syndrome called battered women’s syndrome.

Copyright © 2018 by Dyarne Ward