Defences (OCR A-Level Law): Revision Notes
Defences
This revision note examines the evaluation of three key defences in criminal law: intoxication, self-defence, and consent. Understanding the strengths, weaknesses, and reform proposals for each defence is essential for analysis and evaluation questions.
Evaluation questions on defences require you to present balanced arguments, considering both the strengths and weaknesses of current law. Always support your analysis with case law, statutory provisions, and reform proposals.
Intoxication
The defence of intoxication operates differently depending on whether the defendant was voluntarily or involuntarily intoxicated, and whether the crime charged is one of specific intent or basic intent.
Evaluation of intoxication
The law on intoxication has been subject to significant criticism, particularly regarding its fundamental principles and operation.
Definition and classification of crimes
A major criticism concerns the distinction between crimes of specific intent and basic intent. This classification determines whether intoxication can be used as a defence.
Arguments justifying the current approach:
- It appears logical to argue that voluntarily becoming intoxicated is itself a reckless course of action
- By choosing to get drunk, the defendant is demonstrating recklessness, and therefore the mens rea for basic intent crimes is established
- This approach protects public safety by preventing intoxicated defendants from avoiding liability
Arguments against the current approach:
- The mens rea for the offence is formed potentially hours before the criminal conduct that satisfies the actus reus
- This creates a significant time gap between the mental element (getting drunk) and the physical act (committing the crime)
- This seems inconsistent with general principles requiring contemporaneity between mens rea and actus reus
The Contemporaneity Problem
The current law allows mens rea to be established when the defendant chooses to become intoxicated, which may be hours before the actus reus occurs. This creates a significant departure from the normal requirement that mens rea and actus reus must coincide in time.
Operation of the defence
The way intoxication operates in practice, particularly regarding foresight of risk, has also been criticised.
Arguments justifying the current law:
- Majewski recklessness (which applies to intoxicated defendants) does not require foresight of a particular risk
- This is justified on public policy grounds - otherwise, any intoxicated defendant could successfully plead the defence by arguing they did not foresee the risk while intoxicated
- This would create an unacceptable loophole allowing dangerous individuals to escape liability
Arguments against the current law:
- Majewski recklessness does not require foresight of a particular risk, which directly contradicts the principle established in the case of Cunningham
- Cunningham recklessness normally requires the defendant to have foreseen the specific risk of harm
- This inconsistency creates two different standards of recklessness depending on whether the defendant was intoxicated, which seems unprincipled
Two Standards of Recklessness
The law effectively operates with two different definitions of recklessness:
- Cunningham recklessness for sober defendants - requires foresight of the specific risk
- Majewski recklessness for intoxicated defendants - does not require foresight of any particular risk
This inconsistency is difficult to justify on principled grounds, though it may be justified by public policy considerations.
Ideas for reform
In 2009, the Law Commission published an important report titled Intoxication and Criminal Liability, which proposed several significant reforms to address the problems identified with the current law.
Key recommendations included:
The Law Commission suggested abolishing the references to basic and specific intent, which would remove the confusing and arbitrary distinction between different types of crimes.
However, the Commission recommended retaining the distinction between voluntary and involuntary intoxication, recognising that there is a moral difference between choosing to become intoxicated and being intoxicated against one's will.
Changes to burden of proof:
The reforms would introduce a primary presumption that the defendant was not intoxicated. This means the prosecution could assume sobriety unless evidence suggests otherwise. The defendant would bear the burden of proving they were intoxicated.
A secondary presumption would be that any intoxication was voluntary rather than involuntary. This reflects the fact that voluntary intoxication is far more common.
If a defendant claimed to be involuntarily intoxicated (for example, where their drink was spiked), they would have to prove this on the balance of probabilities.
These reforms have not yet been implemented but represent the Law Commission's view on how the law should be modernised.
Self-defence
The defence of self-defence allows a defendant to use reasonable force to protect themselves, others, or property. It is governed by both common law and statute, particularly s 76 of the Criminal Justice and Immigration Act 2008.
Evaluation of self-defence
The law on self-defence balances the right of individuals to protect themselves against the need to prevent excessive violence.
Definition and scope of the defence
A fundamental criticism is that the defence is restrictive regarding the level of force permitted.
Arguments justifying the restrictive approach:
- A restrictive defence helps prevent unwarranted violence in society
- By requiring force to be "reasonable," the law ensures defendants cannot use self-defence as an excuse for revenge or disproportionate violence
- This protects potential victims from excessive harm
Arguments against the restrictive approach:
- Juries must place themselves in the defendant's position to assess reasonableness
- This requires them to be empathetic about an imaginary situation that the defendant actually experienced in real time
- It is difficult for a jury, deciding in calm conditions, to fairly judge split-second decisions made under extreme pressure
- This may lead to unfair convictions where defendants made honest mistakes in the heat of the moment
The Jury's Dilemma
Juries face the difficult task of assessing whether force was "reasonable" from the comfort of a courtroom, often weeks or months after the incident. They must try to imagine the fear, confusion, and time pressure that the defendant experienced in a split-second decision, which raises questions about whether this standard can ever be fairly applied.
Mistaken use of self-defence
The law permits defendants to rely on self-defence even where they were mistaken about the need to use force, provided the mistake was honest.
Arguments justifying allowing mistaken self-defence:
- When placed in a unique and potentially dangerous situation, a defendant can make an honest mistake about whether self-defence is necessary
- It would be unfair to convict someone who genuinely believed they needed to defend themselves, even if they were wrong
- The law recognises that people must make quick decisions under pressure
Arguments against allowing mistaken self-defence:
- An unscrupulous defendant could argue that their extreme reaction and use of excessive force was based on an honest belief
- This could provide a convenient excuse for violent individuals to claim they "thought" they were in danger
- It may be difficult for the prosecution to disprove a defendant's claimed honest belief
The Honest Belief Problem
The law's acceptance of honest but mistaken beliefs creates a potential loophole. A defendant who uses excessive force could claim they honestly believed they were in danger, and the prosecution must prove this belief was not genuinely held - a difficult task that requires proving what was in someone's mind at the time.
Defendant's characteristics
Current law states that a defendant's personal characteristics are not relevant when determining whether they used reasonable force.
Arguments justifying the exclusion of characteristics:
- Taking characteristics into account would require extensive evidence and complex medical opinion
- Even among similar defendants in different cases, there would be nuanced differences requiring detailed examination
- This would make trials longer, more expensive, and more unpredictable
Arguments against the exclusion of characteristics:
- Personal characteristics are arguably relevant under s 76 of the Criminal Justice and Immigration Act 2008 and the Criminal Justice Act 2009
- These statutes refer to the defendant's self-control and ability to react
- Characteristics such as age, disability, or psychiatric conditions may genuinely affect how a person perceives and responds to threats
Ideas for reform
Parliament has already implemented one significant reform in this area.
The Householder Defence - Section 43 of the Crime and Courts Act 2013
Section 43 of the Crime and Courts Act 2013 amended s 76 of the Criminal Justice and Immigration Act 2008 to provide special protection for householders facing intruders.
Under this reform, a "householder" is permitted to use "disproportionate" force against an intruder and still successfully raise self-defence. This means that homeowners have a wider margin of appreciation when defending their homes.
The force must still not be "grossly disproportionate", but this reform recognises the special vulnerability people face when their homes are invaded and gives them greater protection when defending themselves and their families.
Consent
The defence of consent operates as a defence to assaults where the victim has agreed to the defendant's actions. However, the law places significant restrictions on what level of harm can be consented to.
Evaluation of consent
The boundaries of consent raise difficult questions about personal autonomy versus public interest in preventing harm.
Boundaries of the defence
A key criticism is that personal autonomy allows serious injury to be caused in some contexts, such as tattooing, boxing, and martial arts.
Arguments justifying the current approach:
- The public should be able to consent to a degree of injury, even in non-therapeutic situations (situations not involving medical treatment)
- People should have autonomy over their own bodies
- Activities like boxing and tattooing serve legitimate social purposes (sport, entertainment, self-expression)
- A blanket prohibition would interfere with personal freedom
Arguments against the current approach:
- It is difficult to reconcile why the law criminalises serious and deliberate sports injuries in football but not those in boxing and martial arts
- This appears inconsistent and arbitrary
- If causing serious injury is wrong in one context, it should be wrong in all contexts
- The distinction seems to be based on tradition rather than principle
The Inconsistency Problem
The law permits serious injuries in boxing and martial arts but criminalises them in football. This distinction is difficult to justify on principled grounds - it appears to be based on historical tradition and social acceptance rather than any coherent legal principle about when harm should be permitted.
Sexual activities and consent
The law on consent in sexual contexts has evolved significantly and remains controversial.
Arguments justifying the current law:
- Personal autonomy should extend to sexual activity
- Provided harm falls short of intentional serious injury, adults should be free to consent to activities that provide pleasure
- This is true even where those activities might be considered extreme by some members of society
- The law should not interfere in private consensual sexual behaviour between adults
Arguments against the current law:
- Current legal opinion seems to allow a level of violence that was previously outlawed
- The case of Brown (1993) established that actual bodily harm or worse could not be consented to in sexual contexts
- However, more recent cases suggest the courts are more tolerant of sadomasochistic (SM) activities
- This shift may be going too far in permitting violence, even between consenting adults
The Evolution from Brown (1993)
The law has shifted since the House of Lords decision in Brown (1993), which took a strict approach to consent in sexual activities. More recent cases have shown greater tolerance for consensual sadomasochistic activities, reflecting changing social attitudes. However, this creates uncertainty about where the current legal boundaries lie.
Consent and euthanasia
The law is clear that consent is no defence to an intentional killing, even in cases of euthanasia.
Arguments justifying the prohibition:
- No one should be allowed to consent to their own murder
- Permitting this would undermine the sanctity of life
- There are serious risks of abuse and pressure on vulnerable people
- Once allowed, the scope might expand beyond the original intentions
Arguments against the prohibition:
- If life is so unbearable due to terminal illness or extreme suffering, a person who is unable to take their own life should be allowed to authorise another person to help them
- This respects personal autonomy and human dignity
- Keeping people alive against their wishes when suffering seems cruel
- Other jurisdictions permit assisted dying with safeguards
The Euthanasia Debate
This represents one of the most difficult ethical and legal questions: does respect for personal autonomy extend to the right to choose death? The law currently prioritises the sanctity of life and protection of vulnerable people over individual autonomy, but this remains highly controversial and is subject to ongoing debate.
Reform of consent
Reform of consent law has been slow and has struggled to keep pace with changing public opinion.
The Law Commission's draft Criminal Law Bill (1993) initially suggested that the law should develop through the common law (judge-made law) rather than through criminal legislation. This would allow judges to adapt the law gradually in response to individual cases.
However, the Law Commission changed its position in the subsequent Consultation Paper, Consent in the Criminal Law (1995). The Commission recommended:
we recommend that the intentional (and reckless) causing of serious disabling injury to another person should continue to be criminal even if the injured person consents to such injury or to the risk of such injury.
This remains the current legal standpoint - you cannot consent to serious disabling injury.
However, the Commission clarified that anything falling short of "seriously disabling" injury would not be criminal if the other party had consented. This would create a clearer threshold.
Comparison with Brown (1993):
This approach differs from the House of Lords decision in Brown (1993). In that case, the court ruled that any injury amounting to actual bodily harm or worse could only be consented to if "there was good reason for it."
The Law Commission's approach is more permissive - it would allow consent to actual bodily harm and less serious injuries, reserving criminal sanctions only for seriously disabling injuries.
Implications for reform:
If the proposed offence of causing injury is ever to replace the current offence of actual bodily harm, the law would need to be relaxed in line with the Law Commission's recommendations. This would give effect to greater personal autonomy while still protecting people from serious harm.
Exam technique for evaluation questions
How to Approach Evaluation Questions
When answering evaluation questions on defences:
Structure your answer:
- Identify the key criticisms of the defence
- Present arguments on both sides (justified and unjustified)
- Use cases and statutes to support your points
- Consider reform proposals and whether they address the criticisms
- Reach a reasoned conclusion
Command words:
- Analyse - break down the defence into components and examine how each operates
- Evaluate - assess strengths and weaknesses, considering different viewpoints
- Discuss - explore different perspectives, using evidence to support arguments
- Examine - investigate the defence in detail, considering its principles and application
Key points to cover:
- Clearly explain the current legal position
- Identify specific criticisms (definition, operation, fairness, consistency)
- Present balanced arguments for and against the current law
- Reference relevant cases and statutes
- Consider Law Commission proposals and other reforms
- Make connections between different defences where relevant
- Conclude by evaluating whether reform is needed and what form it should take
Summary
Key Takeaways for Defences
Intoxication:
- The distinction between specific and basic intent crimes is criticised as arbitrary and confusing
- Majewski recklessness conflicts with Cunningham recklessness, creating two different standards
- The Law Commission (2009) recommends abolishing the specific/basic intent distinction and introducing presumptions about intoxication
- Key reform: shift burden of proof onto defendants to prove intoxication
Self-defence:
- The requirement for "reasonable force" is both praised for preventing unwarranted violence and criticised for being difficult for juries to assess
- The Crime and Courts Act 2013 allows householders to use disproportionate (but not grossly disproportionate) force against intruders
- Debate continues over whether the defendant's personal characteristics should be considered
- The "honest belief" provision creates potential for abuse
Consent:
- The law is inconsistent - serious injury can be consented to in boxing and tattooing but not in other contexts
- Brown (1993) established that ABH or worse requires "good reason"
- The Law Commission (1995) proposes that only "seriously disabling" injury should remain criminal even with consent
- This would be more permissive than the Brown approach
Reform:
- All three defences have been subject to Law Commission review, but most recommendations remain unimplemented
- This suggests parliamentary reluctance to reform these complex areas of law
- The only major implemented reform is the householder defence (2013)
Evaluation technique:
- Always present both sides of the argument (justified and unjustified criticisms)
- Use cases and statutes to support points
- Reach a reasoned conclusion about whether the current law is satisfactory
- Consider whether reform proposals adequately address identified problems