FAILURE OF PROOF DEFENCES

FAILURE OF PROOF DEFENCES

MISTAKE

Where the defendant makes a mistake this may give rise to defence in a number of way. A mistake as to fact may negate actus reus.

Mistake to to law (fact)
Mistake about consequences and not recklessness
Mistake as to surrounding circumstances, duress, self defence.
Mistake as to law is no defence. Exception in s.2(1) of the Theft Act 1968. It is statutory defence in law to claim that D mistakenly thought that the property belong to him Smith (David) (1974)

Factual Mistake - Tolson (1889) D was charged with biggamy when her husband went missing for 5 years and thinking he was dead she remarried. Court requires that the mistake must be reasonable as well as honestly held.

In B v DPP (2002)L HL state that factual mistake which negative mens rea need only be honestly held by D.

Mistake as to surrounding circumstance; Williams (Gladstone ) 1984 mistaken belief in surrounding circumstances need only to be honestly held and does not have to be reasonable.

Drunken Mistake: Honest belief in circumstances doest not apply to where D is intoxicated and where the mistake was induced by voluntary intoxication - O'Gardy (1987)

Mistake relating to mens rea: a failure to appreciate the consequences which flowed from an act can be a 'defence' as it can render prosection unable to prove subjective mens reas under the subjective test of recklessness which now appears universally (after R v G (2003)) that honest but mistaken belief would negative mens rea. The same is also true of intent whether direct of oblique Woolin (1998) since those state of mind are also assessed subjectively. One exception is mens rea sfor rape and sexual offence which requires reasonable as well honest belief.

INTOXICATION

Majewski (1971) attempted to find legal solution to the problem of intoxication and lack of mens

Level of intoxication:

The more intoxicated you are (possibly involuntary) the more likely you are to have a defence of intoxication. However in Sheehan and More (1975 a drunken intent is nevertheless an intent.

Voluntary Intoxication:

Intoxication will only afford a defence it D has commited a crime of specif intent and would not be available for basic intent offence Majewski (1976) House of Lord adotped the rule outlined in DPP v Beard (1920). Basic intent offence can be committed recklessly, only intent will suffice as mens rea for specific intent offences. It was worth nothing that Majewski breached the rule of contemporaneity as actus reus and mens rea occur at different time. Continuing Act Thabo Neli (1954) or Fagan (1969. Cunnigham (1959) recklessness must involve actual foresight. Majewski remains the current law on voluntary intoxication.

Involuntary Intoxication

The defence is one of lack of mens rea but for strict liability offence involuntary intoxication would not apply. Read Kingston (1994) for involuntary intoxication.

Soporific Drugs:

Soporific drugs may afford defence under Majewski where D to drugs and become intoxicated. Hardie (1985) D took valium and uner the influence of intoxication set his girlfriends house on fire.

Generally, failure of proof defences are not defences at all but a failure to prove either mens rea or actus reus of offence for which D was charged.