Problem Question

Defences: Intoxication
Defences: Insanity and Automatism
Homicide: Murder
Homicide: Voluntary Manslaughter
Homicide Defence: Provocation
Barry who is suffering from depression and paranoia and is prescribed medication,
attends a party with his partner Clare. At the party, he thinks he is drinking orange juice
but someone has laced it with vodka. Barry drinks progressively more of the drink and it
reacts with his medication to leave him feeling disorientated.
He goes upstairs to sit on a bed but finds Clare lying on the bed with Andrew. Barry
loses all sense of control, takes a nearby vase, and smashes it over Andrews head. Andrew
later dies.
Barry meanwhile runs from the house and sits under a nearby tree. While sitting
there, Sharon approaches to offer some comfort to Barry. He is, however, in a disturbed
state and thinks that Sharon is going to attack him in retribution for his earlier actions. He
therefore reacts by jumping from his slumber and strangling Sharon until she dies.
Consider the criminal liability of Barry
Harm Occurred: A is killed by B
Did B intend to kill A? Mens Rea
Did B have the mens rea?
Mens rea used to describe defendants state of mind.
Act isnt guilty unless mind is
No statutory definition of intention judges usually direct jury to give intention its
ordinary meaning. The widely accepted view is that the defendant intends a
consequence of his action if he acts with the aim or purpose of producing that
consequence.
A result which is foreseen as virtually certain simply is intended.
Woolin Lord Steyn changed Nedrick Lord Lane quote from, jury should be directed
that they are not entitled to infer the necessary intention with jury should be
directed that they are not entitled to find the necessary intention. Thus he changed
the word infer to find.
Definitional approach this change from infer to find makes a difference. If you find
intention, then it amounts to intention itself. Under this definition they have no choice
but to find someone liable if there is intention. The change takes away the jurys
discretion, if they can find virtual certainty it amounts to intention
Evidential interpretation this approach is for people who say that the change has not
made much of a difference, as this definition puts weight on the word entitled.
Therefore, the jury are entitled but not required to find the intention, hence leaving the
discretion that even if there is virtual certainty, they can find intention or not.
Recklessness?
Murder?
Difference between murder and manslaughter is intention.
The mens rea of murder is an intention to kill or cause GBH. Cunningham

 Coke: Murder is when a person unlawfully killeth with malice aforethought

Intention is required wanting something to happen or foreseeing it as a virtual
certainty of your actions and still acting upon it.
Need intention to kill or cause GBH
Cunningham it is only necessary to show that the accused foresaw that there was a
risk. It does not have to be foreseen as highly likely to occur. The question is whether the
accused foresaw the risk, not whether the risk was obvious or would have been foreseen
by a reasonable person.
Provocation?
Was B provoked by seeing Clare lying down with Andrew?
Provocation is a defence only to murder, and if successful the defendant will still be
guilty of manslaughter
The defendant must show that he was provoked by something said or done to lose his
self control, and a reasonable person would have done the same thing. This is decided by
the jury Homicide Act 1957
Normally anger is not an excuse for provocation. B was angry at A for lying down with C
Celia Wells: Provocation was less a generic class and more a series of recognized types of
anger-based killings which attracted the excusing eye of the law. A grossly insulting
assault; an attack on a kinsman or friend; the sight of an Englishman unlawfully
deprived of his liberty; and seeing a man in the act of adultery with ones wife: all came
to be recognized as excused killings. It does not require a rabid feminist to spot the
gendered tenor of these examples
Subjective Condition: The defendant was provoked to lose his self-control and kill
subjective as looks at mind of defendant and asks whether the defendant actually lose
his self-control.
Something said or done
Contexts, statements acts and circumstances Circumstances on their own cannot
amount to provocation. It is not enough for the defendant just to show he lost his selfcontrol. He must show that he was provoked by something into losing his self-control.
Was B provoked by A or C or both? Provocation is available even if the provocative act is
not done by the victim. That said, it will be hard to show that a reasonable person would
have killed X in the face of provocation from Y. Further, the defense is available even if
the provocation is aimed at someone else and the defendant loses his self-control. So if
Jack shouted a racial insult at George, as a result of which Georges wife, Nina, lose her
self control and killed Jack, Nina could rely on provocation.
Blameworthiness There is no requirement that the provocative conduct has to be
blameworthy. R v Doughty babys crying was provocative
Retaining control - The provocation must lead someone to actually lose control. In
understanding the meaning of loss of self-control it is important to recall that to be
guilty of murder the defendant must have intended to kill or cause GBH. This means
that loss of self-control cannot require the defendant has completely lost control of his
or her actions or was so angry that he or she was not aware of what they were doing,
because if either of these were true then the defendant would not have the mens rea or
actus reus of murder.
Objective condition Would the reasonable person have lost control? Would the
reasonable person have reacted as the defendant did?

 The objective part of the test requires a level of control; it is an external standard so
people cant rely on their personal differences that they are particularly angry.
Barry loses all sense of control Automatism
Automatism is a fully automatic state, where a person has no control over their actions
and no deliberate control over their mind.
To plead automatism a defendant needs to show: he had suffered a complete loss of
voluntary control, this was caused by an external factor, he was not at fault is losing
capacity
Automatism is a lack of mens rea and actus reus. It is a claim that he is not acting.
Bratty Defendant charged with murder, but he claimed he felt really strange when he
committed the murder and pleaded insanity and automatism
A-G no 2 to rely on automatism there must be a complete loss of voluntary control
Self induced automatism self induced automatism will not be accepted if the person
should or could have reasonably have foreseen that automatism would be the result of
their actions.
The defendant cannot plead automatism if he is responsible for causing his conditions.
So if the defendants mental state is caused by taking alcohol or an illegal drug he cannot
plead automatism. B unwillingly took alcohol though.
B is involuntarily intoxicated
The defence of intoxication often concerns someone who is so intoxicate that they did
not form the relevant mens rea for the offence.
The question is a question of fact Did they form a mens rea?
DPP v Beard Lord Birkenhead LC said, ... where a specific intent is an essential
element in the offence, evidence of state of drunkenness rendering the accused
incapable of forming such an intent should be taken into consideration in order to
determine whether he had in fact formed the intent necessary to constitute the
particular crime. If he was so drunk that he was incapable of forming the intent required
he could not be convicted....
Sheehan CA said that the intoxication was only relevant if the fact that they were so
drunk meant they didnt form the mens rea
A-G v Gallagher person could just get drunk to do an offence and blame it on being
drunk, so he cannot rely on self-induced drunkenness as a defence to a charge of murder
Lipman intoxication is not a defence to manslaughter. So B could not rely on it.
Barry was involuntarily intoxicated if the defendant is involuntarily intoxicated they
may raise evidence that they didnt form the mens rea according to the intoxication.
Kingston if a defendant has the necessary mens rea for the offence the fact that he
only committed it because he was involuntarily intoxicated provides no defence.
Murder is a specific intent
Manslaughter is a basic intent Beard
Diminished Responsibility
Diminished responsibility only a defence to murder, if successful reduces charge to
manslaughter
R v Dietschemann - As Lord Hutton noted, there are only two circumstances in which
the effects of alcohol can themselves be regarded as an abnormality of the mind:
1) Where the taking of alcohol has actually damaged the brain;

2) The defendants taking of alcohol was involuntary. So if the defendant is an

alcoholic and suffers irresistible cravings such that every drink of the drinking
session was involuntarily taken then it may be possible to claim that the effects of
the drink are an abnormality of the mind.

Harm occurred: Sharon is killed by B

A was involuntarily intoxicated
OGrady [1987] - OGrady and his friends went out and got exceptionally drunk. They
had an argument and killed the victim. He claimed honestly but mistakenly believing
that the victim was going to attack him. The CA said that there is no case to decide this
one on, so they held that there is no defence when there is voluntary intoxication.where
the jury are satisfied that D was mistaken in his belief that any force or the force which
he in fact used was necessary to defend himself and are further satisfied that the mistake
was caused by voluntary intoxication then the defence must fail. We do not consider that
any distinction should be drawn on this aspect of the matter between offences involving
what is called specific intent, such as murder, and offences of so called basic intent, such
as manslaughter. Quite apart from the problem of directing a jury in a case such as the
present where manslaughter is an alternative to be considered separately from the
question of intent. A sober man who mistakenly believes he is in danger of immediate
death at the hands of an attacker is entitled to be acquitted of both murder and
manslaughter if his reaction in killing his supposed assailant was a reasonable one.
What his intent may have been seems to us to be irrelevant to the problem of
self-defence or no. (Per Lane L.C.J. at p. 423.)
OConnor [1991] - The defendant had been drinking and argued with the victim in a bar.
He headbutted the victim until he died. He claimed he was acting in self defence as he
mistakenly believed he needed to defend himself. His mistaken belief shows he was
voluntarily intoxicated, and thus the defence argument failed.
Hatton [2005] - This case accepted the OGrady judgement. The defendant had drunk
over 20 pints. He thought he was being attacked by the victim, and so killed him with a
sledgehammer. He was convicted of murder. He could not rely on self defence because it
was voluntary intoxication
The jury should consider how the reasonable person would react to the provocation as it
was understood by the defendant. If a defendant mishears what was said or
misinterprets what was done and believes he has been insulted, he is to be judged on the
insult he believed was made, not the words actually used or deeds actually done. There
is little case law on this, but the little there is suggests that even if a defendant is
unreasonable in his misinterpretation he is still to be judged on the facts as he believed
them to be.
R v Morhall - M was a glue sniffer. The deceased along with Ms girlfriend had criticised him for
this. The deceased left to get some food and came back and criticised him again and head butted
him. M hit him on the head with a hammer. Deceased criticised him again. As a result M stabbed
him. HL asked whether the fact that M was a glue sniffer could be relevant to question of
provocation. If his friends had called him a glue sniffer, but he wasnt one, it wouldnt have
affected him. Therefore the fact that he was a glue sniffer did matter.