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Specific intent: intention is the mens rea
Basic intent: recklessness is the mens rea

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If rape was specific then they wouldn't be able to reduce it for intoxication.

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If rape was specific then they wouldn't be able to reduce it for intoxication.

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Key things on intoxication. 1. Does the defendant have the men's rea? What is they say the don't have the men's rea? Was the intoxication v or inv? If no men's rea then acquittal. Kingston still had the men's rea even though he was spiked. Voluntary: basic intent and specific intent crimes. The general rule is that specific requires an intention. So murder, GBH, theft etc. Recklessness for basic intent, manslaughter, s 20, sexual intent (which is controversial) for public policy reasons. Men's rea for basic intent of recklessness substituted for intoxication. Majewski-would you have done it if you were drunk OR use intoxication for men's rea of basic crime. This prevents people getting off with nothing. Should there be a new rule? So Actua Reus for murder with intoxication? Could alter label and sentence for fair labelling.

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Key things on intoxication. 1. Does the defendant have the men's rea? What is they say the don't have the men's rea? Was the intoxication v or inv? If no men's rea then acquittal. Kingston still had the men's rea even though he was spiked. Voluntary: basic intent and specific intent crimes. The general rule is that specific requires an intention. So murder, GBH, theft etc. Recklessness for basic intent, manslaughter, s 20, sexual intent (which is controversial) for public policy reasons. Men's rea for basic intent of recklessness substituted for intoxication. Majewski-would you have done it if you were drunk OR use intoxication for men's rea of basic crime. This prevents people getting off with nothing. Should there be a new rule? So Actua Reus for murder with intoxication? Could alter label and sentence for fair labelling.

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W

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How does it differ from the law of self defence?
Double offence you would be justified in thinking that they could be violent or dangerous. and psychological element not present in other attacks.

Suggests a deeper level of premeditated offence.

The opportunity to phone the police is probably limited. How does someone escape or retreat when they are in their own home.

You can think rationally under attack.

Nuanced approach because of th subjectivity.

Protects the innocent party.

Sanctity of the home

More isolated.

More risk in the home, so many things can be stolen which can't on the street. Going outside of the home you are taking a risk. In the home you have a reasonable expectation that you are safe.

No
You can use self defence pre-emptively. You don't know how far a burglar will go so should you be able to be more preemptive.

Doe we need gross if the test for necessity is subjective?

Other conditions like Tony Martin (depression). Should more attributes be taken into account rather than raising the bar?

Inconsisten results

Is it just an excuse? Is grossly disproportionate just disproportionate.

Battered women? Not safe for everyone.

Set out law and why it's. Contentious issue. Then pick a side. Ground your opinion in what you've read. Must rely on sources.

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Criminal law 20 credit Grads seminar 7 2016-17

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The old duty to retreat did no apply to householders.
Property was arguably valued above personal rights: a home owner could inflict violence where a thief only meant to steal personal property.

s 43 Crime and Courts Act 2013 permits a higher level of force.

This arguably violates the deceased's right to life. A trespasser could be killed when they only meant to steal property, and the homeowner could be acquitted.

Mead & Belt (1823): the home was seen as part of the person.

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Imminence
No statutory details.
AG's Reference No. 2 (1983) suggests, rather leniently, that armaments can be kept for an anticipated attack.
Partners in abusive relationships could be disadvantaged - what if they kill their partner in their sleep where a 'reasonable person' would not fear someone asleep.
Carrying a gun or offensive weapon is unlawful but using it in an attack may be permissible.

Duty to Avoid Conflict
Historically there was a duty to retreat (except within the home).
In Julien [1969] there was a duty to demonstrate unwillingness to fight.
In Bird [1985] the Court of Appeal said that 'duty' was too strong a word.
Liberty to make a preemptive strike is still permissible as an exception.

Freedom of Movement
In Field [1972] the defendant was warned of an attack, but there was no duty to avoid the conflict until the attackers were present  and threatening him. He was acquitted.
In Redmond Bate v DPP [1999] the defendant had the right to preach under Art 10, so long as words were not violent or provocative of violence.
Is it right that freedom of expression takes precedence over minimization of violence?

Pre-Emptive Strike
This could encourage self-assertion through violence, but it protects victims as it means they do not have to wait to be struck to fight back. Therefore it is not inconsistent with the duty to avoid conflict.

Necessity, Proportionality, and Law Enforcement
Proportionality restrains proactive law enforcement.
Art 2 means that there must be permission sand the force must be absolutely necessary or strictly proportionate.
McCann and others v UK (1996) meant that the UK had violated Art 2.

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Proactive v reactive: the purpose of the reaction deciphers whether there was a lawful purpose.

Dadson (1850) - officer could have lawfully shot V, but did not know that his shooting was lawful so was convicted.

Thain (1985) - soldier could have been acquitted of shooting if it was to apprehend, but he only saw a sudden movement so was convicted.

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The proportionality necessity upholds the attackers right to life.

C19th Royal Commission: 'a law whose only requirement was necessity "would justify every weak lad who hair was about to be pulled by a stronger one."' The attacker is given some leeway. The value of rights are weighed up so that property rights do not have too much sway. It also means that a victim cannot retaliate too strongly.

But does the 'householder' rule violate the trespasser's right to life, where a home owner may kill the intruder?

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Does the aggressor forfeit rights when attacking? Does the innocent party gain preferential liberty? THis could be problematic as self-assertaion/honour are prioritised over life, so trivial attacks could enable the victim to disproportionately assert themselves.
Ashworth - 'the tendency of the English courts to reach for the concept of reasonableness, without setting out the relevant rights first, is an unfortunate aspect of legal culture.' Should rights trump reasonableness?

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There are some irregularities. The law of England and Wales would appear more lenient. However, the Strasbourg provisions are not precise.

Level of Force
ECHR - killing must be strictly necessary.
E and W - killing must be reasonable.

Defence of Mistaken Belief
ECHR - the mistake must be based on a good reason (objective?)
E and W - the mistake must be genuine (subjective).

Leverick says that the two could be incompatible. English law does not impose sanctions on anyone who kills a mistakened attacked, even where it was unreasonable for them to believe they were in danger. The law does not permit this sort of killing, it just assesses degree of blameworthiness.

Art 2 does not make provisions for defences against non-violent crimes.

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+ case sheet
The defendant injured police and claimed that he was pursued by evil spirits. This was not permitted because of the implications it could have had. There was no evidence that the response was unjustifiable, and how could you have a 'reasonable lunatic'?

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Does the current law allow for racist attacks? The defendant's belief in being attacked is judged subjectively.

Self defence cannot be combined with intoxication!

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1. The victim must pose a threat.

Cannot injure someone who is not posing a threat to help another.

R v Hitchens [2011], can't injure an innocent person to avoid the threat of a third party.

2. The threat must be unjustifiable.

In R v Jones [2006], an attack in protest against the Iraq war. The war was not offence under English law, and offence under international law was irrelevant.

3. The use of force must be reasonable.

s 76(6A): no duty to retreat.

D can take a pre-emptive strike if it is reasonable. Beckford [1988]

Attack does not need to be immininet or immediate, depending on circumstances - AG for Northern Ireland's Reference [1977]

4. The amount of force must be reasonable.

Householder cases are distinguished. They must not act in a way that was 'grossly disproportionate'.

Reasonable and proportional are best interpreted as being synonymous.

Whether the force was reasonable or not is determined objectively.

If the defendant instigated a situation, whether he can use the defence will depend on reasonableness. Child and Sullivan (2014), R v Keane [2010], The Rashford (2006)

5. The defendant must be acting to defend themself, another, or property.

Retaliation or revenge is not permitted.

Dadson (1850) principle: actions cannot be justified if the defendant was unaware at the time i.e. injuring someone who would have attacked the defendant, if they did not know that they were going to be attacked.

Ayliffe v DPP [2005]: protesting about the Iraq war was not a defence to criminal damage because people nor property were defended.

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Gives key elements of defence: that the defendant must honest believe they were in a situation that called for self defence (subjective) and that the force used what reasonable, as decided by the jury (objective).

+ fact sheet

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Section 76 Criminal Justice and Immigration Act 2008

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Section 76 Criminal Justice and Immigration Act 2008

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More clarification on the defence. It upholds s 3 Criminal Law Act 1967.

R v Keane: This law clarified pre-existing common law.

It is not sufficiently detailed.

Test for self-defence is necessity and reason ability. Anything that is proportionate force. Measure by things like duty to retreat and imminence of the threat. Applies to defence of PROPERTY not life or other lies. What's so special about the home.

Measured in negatives so we know what can't be done, not what can't be done.

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(Also referred to as private defence or lawful defence).

It can be used for defending oneself or another.

Requires NECESSITY and PROPORTIONALITY

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(same as statutory law)