General Defences — SQE1 FLK2 Criminal Liability

An unlit car park, late. A woman is walking to her car when a man runs at her from behind, shouting. She thinks she is about to be robbed. She turns and jabs her keys into his face, cutting his cheek. He was running to return the purse she had dropped at the ticket machine. The prosecution says no reasonable person would have thought what she thought. Does her mistake sink her? No.

This is General Defences, the topic where the exam rewards structure over instinct. Self-defence has two limbs that pull in opposite directions. Intoxication is a grid with two axes. Get the shape right and these become quick marks. Keep our woman in the car park in mind. We are coming back for her.

Here is the route. What a general defence is, and the difference between a full one and a partial one. Then self-defence: the two limbs, the limits on each, and what householders get that the rest of us do not. Then defence of another. Then intoxication, which is where the marks are lost. And a word at the end on duress.

Start with what a general defence is. The prosecution has proved every element, and the defendant still walks, or walks down a charge. Full defences acquit completely: self-defence, automatism, duress, necessity. Partial defences only reduce. Diminished responsibility and loss of control take murder down to manslaughter. Still convicted, just of something less.

Self-defence comes from two places. The common law covers reasonable force to defend yourself, another person, or your property. Section 3(1) of the Criminal Law Act 1967 covers reasonable force in the prevention of crime, or in making or assisting a lawful arrest. They overlap, and the same principles apply to both.

Before the limbs, the burden, because it is a free mark. The defendant only has to raise self-defence, and a bare assertion is enough. Then the prosecution must disprove it beyond reasonable doubt. A direction asking him to prove it on the balance of probabilities is simply wrong.

Now the spine of the topic. Two limbs. One: did the defendant honestly believe force was necessary? Purely subjective. Two: was the force reasonable in the circumstances as he believed them to be? Objective, but anchored to his own picture of events. Miss either limb and the defence fails.

Limb one asks only whether the belief was genuine. Not whether it was reasonable. An irrational belief, a mistaken belief, a belief nobody else would have formed, all fine, provided it was honestly held. That is R v Williams (Gladstone). A man saw someone dragging a youth along the street, thought an assault was happening, and struck him. The man was lawfully detaining the youth after a robbery.

It made no difference that the man he struck was acting perfectly lawfully. He was judged on the facts as he honestly believed them to be. So, our woman in the car park. Her belief was wrong, and the prosecution says it was unreasonable. Neither of those defeats limb one.

Limb one has two limits. The first is drink and drugs. A mistake about the need for force caused by voluntary intoxication cannot be relied on. Take a hallucinogen for pleasure, become convinced your friend has turned into a creature about to tear your throat out, and stab him, and the belief will not help you.

The second limit is insane delusion. A defendant in a psychotic episode who attacks police officers believing they are evil spirits cannot use that belief either. The route there is the special verdict of not guilty by reason of insanity.

Limb two. Was the force reasonable in the circumstances as he believed them to be? Not as they actually were. The jury takes his picture of events, mistakes and all, and asks whether the force fitted it. And it allows for the moment. That is R v Beckford. A man about to be attacked does not have to weigh to a nicety the exact measure of his necessary defensive action.

Nor must he wait for the first blow. A pre-emptive response to an honestly anticipated attack can be lawful, and so can preparing for one. During three nights of rioting a shopkeeper filled milk bottles with petrol and kept them behind the counter to drive off looters. Lawful.

What makes force reasonable? The nature of the threat, the degree of force, whether he escalated, whether there was a weapon, and what alternatives there were. Including retreat. There is no duty to retreat. You may stand your ground. But the fact that you could safely have walked away bears on reasonableness.

What if the defendant started it? Not a bar. A man who went looking for trouble can still rely on self-defence, though his own part in it is powerful evidence on both limbs. Shove a rival wanting a fist fight, get a knife slashed at your throat with the exit blocked, and the tables have turned.

Now excessive force. If the force was more than was reasonable, self-defence fails for the offence charged. It is not a partial defence. It does not knock the charge down a rung. That is R v Clegg. A soldier at a checkpoint fired three shots at a car. The third killed the driver as the car was already passing. No self-defence, because the threat had gone.

Force is defensive only while there is something to defend against. Take a doorman whose attacker is already disarmed and pinned face down. He then hits him twice on the head with a torch, because he is furious about his face. That is not defending. That is retaliating.

Householders get something extra. Section 76 of the Criminal Justice and Immigration Act 2008, amended in 2013 by the Crime and Courts Act, creates the householder case. There, force is not reasonable if it was grossly disproportionate. A higher bar. Note the Act's name: it is often miscited as the Criminal Justice Act 2008.

Three conditions, from s.76(8A). The force is used while the defendant is in, or partly in, a dwelling. The defendant is not a trespasser there. And he believed the other person was in, or entering, as a trespasser. So try one. Your client's ex-partner is on the tenancy and has a key, and lets himself in at midnight. Householder protection? No. A joint tenant is not a trespasser.

And the trap the papers love. The provision works in one direction only. Grossly disproportionate force can never be reasonable. But force falling short of that is not thereby deemed reasonable. The jury still asks the ordinary question. Kicking a dazed, unresisting burglar to teach him a lesson is retaliation.

Defence of another runs on the same two limbs, and you can protect anybody. A stranger, a friend, a child in the street. And the same honest-mistake rule applies. See a large man pull a teenage boy off a bicycle and pin him down, and strike the man. Then learn he owned the bicycle and was holding a thief for the police. Your honest mistake still governs.

Force against a police officer is narrower. You can defend yourself only against an officer acting unlawfully, and the commonest route to that is procedural. Under s.28 of the Police and Criminal Evidence Act 1984 the person arrested must be told he is under arrest, and told the ground for it. Officers in plain clothes who say nothing are arresting unlawfully.

One more on limb one. Where a defendant has been beaten for years, expert evidence about prolonged abuse is admissible, because it explains why she perceived a continuing threat between the beatings. But note what it does. It goes to what she believed. It cannot soften limb two.

Intoxication now, and it is a grid, not a rule. One axis: voluntary or involuntary? Voluntary means he chose to take alcohol or drugs. Involuntary means he did not know he was taking an intoxicant, or did not know what it would do. The other axis: specific intent or basic intent?

A specific intent offence needs an intention going beyond the act itself. Murder needs an intention to kill or cause grievous bodily harm. Theft needs an intention permanently to deprive. A basic intent offence needs nothing beyond the act. So, s.18 or s.20? Section 18 is specific. Section 20 is basic.

Learn the two lists. Specific: murder, s.18, theft, attempt, and the ulterior intent in burglary. Basic: s.47, s.20, rape, criminal damage, involuntary manslaughter, affray. Now put the axes together. The leading authority is DPP v Majewski.

Majewski holds that voluntary intoxication is no defence to a basic intent offence at all. Drink a bottle of whisky, punch a stranger, break his jaw, and however genuinely you foresaw nothing, you are convicted. Getting into that state is itself the recklessness. For specific intent, intoxication can be a defence, but only if it actually stopped you forming the intent.

And then what? You drop to the basic intent offence underneath. Too drunk to form the intent to kill or cause really serious harm, and murder fails, but manslaughter does not. Too drunk for s.18, and you still face s.20 or s.47. Intoxication moves you down the ladder. It rarely gets you off it.

Which brings the sentence you should be able to recite, from R v Sheehan and Moore. A drunken intent is nevertheless an intent. It is evidence for the jury to weigh, never an automatic route to the lesser offence. A man who announces he will put a hammer through someone's skull, crosses the road, strikes twice, hides the hammer and lies to the police, formed an intent.

Dutch courage is no answer either. Decide to kill your wife, drink most of a bottle of whisky to get your nerve up, then do it, and the drink will not help you. The intent was formed sober. Carrying it out drunk is still murder.

Back to basic intent, and the direction. The judge must not tell the jury to put the drink out of their minds entirely. That is a misdirection. The question is what this defendant would have foreseen had he been sober. Not what a reasonable sober person would have foreseen. The comparator is the defendant himself.

Involuntary intoxication now. Spiked drinks. Medication with an unexpected reaction. A substance taken thinking it was harmless. But watch the boundary. A man drinks home-made wine believing home-brew is weak, and it is nearly three times the strength of commercial wine. Voluntary or involuntary? Voluntary. He knew he was drinking alcohol.

And genuine involuntary intoxication is not a free pass either. It works only if it negated the mens rea. That is R v Kingston. A man's coffee was secretly drugged and a boy was brought to him. He was disinhibited, but he still formed the intent, and the defence failed. Disinhibition is not incapacity.

The one place it is more generous: unlike voluntary intoxication, involuntary intoxication can answer a basic intent charge. A woman whose wine is spiked with a sedative, who pushes a friend down a staircase without appreciating she is pushing anyone, has not formed even recklessness. Acquitted.

Last, briefly, duress. Duress by threats is somebody saying commit this offence or else. It is excluded where the defendant voluntarily associated with criminals, in circumstances where he foresaw, or ought to have foreseen, the risk of being pressured into crime. Six months driving for a gang he knew did armed robberies, and the gun to his head comes too late.

And its sister, duress of circumstances, needs no threatener. A disqualified driver is woken at three in the morning by a neighbour whose toddler has stopped breathing, with no ambulance for forty minutes and nobody else who can drive. He drives eight miles to hospital and hands himself in. He reasonably believed it necessary to avoid death or serious injury.

A word on how SQE1 tests this. You will not be asked for a case name. You get a scenario, five answers, and one instruction: pick the best. There are a great many names in this topic and almost none of them will be worth a mark. The rules will.

If you keep only three, start with R v Williams (Gladstone). An honest mistake is judged as the defendant saw it, however unreasonable it was. Then DPP v Majewski. Voluntary intoxication is no defence to basic intent, and answers a specific intent charge only if it stopped the intent forming. And R v Clegg: once the threat has gone there is nothing left to defend.

Four traps. One: excessive force is not a partial defence. It does not knock the charge down a rung. It means self-defence fails altogether for the offence charged. Candidates lose marks by treating unreasonable force as a route from murder to manslaughter.

Two: the householder provision is not a licence. Grossly disproportionate force can never be reasonable, but anything short of it is not automatically reasonable either. And it bites only against someone the defendant believed to be a trespasser. Against a lawful visitor, or a co-occupier, there is no enhanced threshold at all.

Three: on a basic intent charge, never tell the jury to ignore the drink. The direction is what this defendant would have foreseen sober, not what a reasonable sober person would have foreseen. The comparator is him.

Four: involuntary intoxication is not a defence by itself. It has to have negated the mens rea. A defendant who was drugged without his knowledge but still formed the intent is convicted. Disinhibition is not incapacity.

Quick check. A man walking home at night is approached by a stranger who shouts threats and raises a dark object in his fist. He believes he is about to be stabbed. He pulls a metal bar from a skip and strikes the stranger twice across the head, fracturing his skull. The object was a folded umbrella, and the stranger, who was drunk, had no intention of touching him. He is charged with causing grievous bodily harm with intent.

On what basis will the jury decide whether the force he used was reasonable? Three candidate answers. One: whether striking a man armed only with an umbrella twice across the head was proportionate. Two: whether his belief that he was about to be stabbed was itself a reasonable one to hold. Three: whether the force was reasonable on the facts as he believed them, namely an imminent stabbing. Pause here if you want a moment.

The answer is three. Limb two is objective, but it is measured against the circumstances as the defendant believed them to be, not as they turned out. He believed he was facing a stabbing. So the jury asks whether a metal bar, twice, was reasonable against that.

Why the others fail. Option one judges him on the true facts, an umbrella and a harmless drunk, which is the one thing limb two does not do. Option two applies a reasonableness test to the belief, and limb one never asks that. A genuine belief counts however unreasonable it was.

Five things to take away. One: the defendant only raises self-defence, and the prosecution must disprove it beyond reasonable doubt. Two: limb one is purely subjective, so an honest mistake counts however unreasonable, unless it came from voluntary intoxication or an insane delusion.

Three: limb two is objective but measured on the facts as he believed them, and excessive force means the defence fails outright. Four: in a householder case the bar is grossly disproportionate, but only against someone he believed to be a trespasser. And falling short of that bar does not make the force reasonable.

Five: voluntary intoxication is no defence to basic intent, and answers a specific intent charge only if it actually stopped the intent forming. A drunken intent is nevertheless an intent. And our woman in the car park? Her belief was mistaken and, says the prosecution, unreasonable. Neither matters. The question is whether she meant it. Next time, Parties to Crime and Inchoate Offences.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.