ESSAY - MISTAKE

MISTAKE

The rules relating to mistake are simply an application of the general principles that the prosecution must prove its case, including the mens rea or negligence which the definition of the crime requires and rebuttal of excuses raised. It is only a mistake which can deny mens rea that will have any bearing on D’s liability. The landmark decision in DPP v Morgan (1975) endorsed by the House of Lords in DPP v B holds that D’s mistake of fact will result in acquittal in all crimes where it prevents D from possessing the relevant mens rea which the law requires for the crime for which he is charged. The important element is to prove intention. Where law requires negligence in respect of the actus reus of an offence, only a reasonable mistake can make a defence. For offence of strict liability, a reasonable mistake will not be a defence but in some cases such as rape of under-age, the prosecutor still needs to prove intention to touch a person.

The decisions of the House of Lords in B, K and G appear to have endorsed the subjective approach to mens rea. As Lord Nicholas in B v DPP considered that as a matter of principle, the honest belief approach must be preferable. The mental element in crime is concerned with a subjective state of intent or belief. Morgan left untouched the traditional requirement that mistake as to the element of the defence were to be reasonable if they were to excuse the defendant. Subsequently the courts have adopted the subjective approach principle in some circumstance (self-defence) but not in others (duress, etc). Defence of mistake as to criminal law is no defence.

The Mawjeski rule has been held inapplicable where the statute expressly provides that a particular belief shall be a defence to the charge if self defence is a defence for murder, it must be a defence for manslaughter O’Grady (1987), but court in O’Connor (1991) inexplicably treated it as binding, while quashing the conviction of murder on another ground. The better view is that a mistake arising from voluntary intoxication by alcohol or dangerous drugs may found a defence for crime requiring specific intent but not to one of basic intent if the prosecution prove that but for the intoxication, the defendant would not have made the mistake. DPP v Majewski (1976) The House of Lords confirmed that evidence of self-induced intoxication negativing mens reas is a defence to a charge of crime requiring a specific intent but not to a charge of any other crime. It is therefore fatal for a person charged with a crime not requiring specific intent who claims that he did not have mens rea that and that he had taken drinks and drug. The major issue here is about mistaken belief, provided it was honestly held which allows the defendant to raise a particular defence rather than the mistake being raised as a defence in itself as evidence of lack of mens rea. In R v Hatton (2005) the victim was battered to death by a sledgehammer in the defendant’s flat. The trial judge directed the jury to consider whether he honestly believed he needed to use force to defend himself, and if so, to consider whether they are satisfied that the amount of force use was reasonable. He was convicted and the Court of Appeal upheld his conviction relying on the decision in O’Gardy (1987) where Lord Lane said where the jury are satisfied that the defendant was mistaken in his belief that the force he used in defending himself and further satisfied that the mistake was caused by voluntary intoxication, the defence must fail.

The defence of self-defence developed from the Privy Council case of Palmer (1971) and the decision in Majewski (1976), Williams (Gladstone (1984); O’Gardy (1987); Beckford (1988) and O’Connor (1991). Prof. Smith’ was of the view that that Lord Lane’s observation which related to specific intent, were ‘plainly orbiter’ since O’Gardy’s appeal concerned his conviction for manslaughter which is a basic intent crime. Unfortunately the Court of Appeal in O’Connor considered itself to be bound by Lord Lane’s dictum in O’Gardy inexplicably. In O’Connor the defendant’s conviction for murder was quashed on another ground. It could be argued that the finding by the Court of Appeal on this matter in O’Connor was itself, obiter. The dictum in O’Connor which assumed that if self-defence is a defence to murder it is also a necessary a defence to manslaughter. Although this generally would be the case it would not necessarily be so ‘because as an act done in self-defence arising from a grossly negligent mistake (which a drunken state is certainly is) should be manslaughter by gross negligence. In Hatton, the Lord Chief Justice’s view was that upon proper application of precedent the decision, the general principle in O’ Gardy could not be treated as orbiter.

The issue is that if no distinction is drawn between offences involving specific and basic intent what might be the impact on other defences. A mistaken belief albeit induced by intoxication is enough to establish the defence for the consideration of the jury Latenock (1917) even though the effect of intoxication on the defendant’s ability to exercise constraint will not be taken into account. Do we need to separate mistake from intent, if as result of mistake the defendant claimed that he is incapable of forming intent but his recklessness is enough to make conviction possible.

FAILURE OF PROOF DEFENCES
Mistake may give rise to a defence in a number of ways. Mistake as the facts may negative actus reus providing factual mistake is essential to the actus reus. Mistake as to law is easily dealt with as ignorance is not excuse in law. S.2(1) of the Theft Act 1968 – if D mistakenly thought that the property appropriated belongs to him – honest mistake/mistake of fact. stake as to the fact – stealing Robert’s walled instead of John’s .76(2) – Where consent will be void Using violence against V causing the complainants to fear that immediate violence would be used against him. Causing complainant to fear that violence was being used or would be used against him. The Complaint was unlawfully detained at the time of the relevant act. Complainant was asleep or otherwise unconscious at the time of the relevant. Act. Disable complainant is unable to communicate whether consented or not. Complainant is stupefied of overpowered at the time of the relevant Act. These evidential presumptions are aimed at situation where V was force or lack capacity to consent. Disability, unconsciousness or intoxication. If V is subject to threat of losing job or promiscuity is being revealed, an evidential presumption would not exist

MISTAKES AS TO SORROUNDING CIRCUMSTANCES
D may make factual mistake as to the circumstances surrounding his commission of an offence. If such surrounding circumstance is not relevant to the actus reus or mens rea of the offence, then it may give rise to a substantive defence such as self-defence or duress. Williams (Gladstone) 1984) Crim LR 163 is that a mistaken belief in the circumstances need only to be honestly held and does not need to be reasonable

Drunken Mistakes
An honest mistaken belief in the surrounding circumstances of the commission of an offence does not apply where D is intoxicated – O’Grady (1987) Crime LR 706 D, who was heavily intoxicated, attacked and killed V believing (mistakenly) that V was attacking him with a glass. The Court of Appeal stated that no defence could be pleaded where D relied on a mistake induced by voluntary intoxication

MISTAKES RELATING TO MENS REA
A failure to appreciate the consequences which flowed from an act can be a ‘defence’ as it can render the prosecution unable to proof a subjective mens rea. R v G (2003) that honest mistaken belief would negative mens rea. The same would be true in relation to intent, whether direct of oblique (Woolin (1998) since those state of mind are assessed subjectively. In order to negative mens rea for rape and sexual offences, D’s mistaken belief on V’s consent must be reasonable as well as honestly held.

INTOXICATION
In some circumstances a defendant who is heavily intoxicated through drinking alcohol or taking drugs may be afforded a defence. The defence is very limited. The court will take a dim view of any crime committed under influence of voluntary intoxication as a matter of public policy. Where a defendant is heavily intoxicated, whether voluntary or involuntarily, they may be able to claim that they did not form the mens rea because they were not in control of their mind at the time of committing. Mens rea is an essential constituent part of criminal liability – Majewski (1976).

LEVEL OF INTOXICATION
It is necessary to establish that a defendant was intoxicated enough to consider a defence. The more intoxicated you are the more likely you have a defence. But this as a defence is based on denial of mens rea. Court has been keen to establish that a drunken intent is nevertheless an intent (Sheehan and More (1975) Crim LR 339 per pane LJ)
Voluntary intoxication
D will only be afforded a defence where he is voluntarily intoxicated of he has committed a crime of specific intent. If D is charged of basic intent the defence of intoxication will not be available. Basis intent crime is one which can be committed recklessly. A specific intent crime is one which only intent will suffice as mens rea. The rule that voluntary intoxication can only be a defence to specific intent crime and not basic intent crime is based on the notion of prior fault. The approach to voluntary intoxication in Majewski has been subjected to too many criticisms on number of ground as it lacks legal reasoning and accuracy. Differences in mens rea and actus rues breaches the principle of contemporiety. It is possible to construct liability where an act occurs but mens rea is formed later by imputing that D’s action as continuing Act Thabo Mel (1954) or Fagan 1969. Cunninghan (1957) recklessness must involve actual foresight of a risk. Alternative approach, Cadwell (1981). Cadwell was overturned in R v G (2003) and is no longer a current law.

INVOLUNTARY INTOXICATION
Where a defendant becomes intoxicated involuntarily, he could not be blamed for the act because of lack of mens rea for the crime. The Defendant’s lack of mens rea. If the offence does not require mens rea (strict liability offences) involuntary intoxication would not afford a defence. Read Kingston 1994 ALL ER 352 IOLS Disks

SOPORIFC DRUGS
If D takes drugs that will calm him down, it may not be considered reckless under Majewski in becoming intoxicated Handle (1955) 3 ALL ER CR 848. D take valium and set girlfriends house on fire. These defences are failure of proof defences i.e. failure to proof the offence. Failure to proof mens rea or actus reus there can be no criminal liability at the onset.