Introduction to General Defences: Duress and Intoxication

Welcome to one of the most interesting parts of criminal law! In our previous chapters, we looked at how a person becomes liable for a crime by having both a "guilty act" (actus reus) and a "guilty mind" (mens rea). But what happens if someone did the act and had the intent, but they only did it because they were forced? Or what if they were so under the influence of a substance that they didn't know what they were doing?

These are called general defences. If a defence is successful, it can lead to the defendant being found "not guilty," even if they technically committed the crime. In this chapter, we focus on two specific types: Duress and Intoxication.

1. Duress

Duress is a defence used when a person is forced to commit a crime. The law recognises that sometimes a person's "will" is overborne by threats or extreme circumstances. There are two types you need to know for your exam:

A. Duress of Threats

This happens when another person tells the defendant: "Commit this specific crime, or I will kill you (or seriously injure you)."

For this defence to work, several conditions usually need to be met:

  • The Threat: The threat must be of death or serious personal injury. Threats to damage property or reveal secrets are not enough for a duress defence.
  • Target of the Threat: The threat can be against the defendant, their immediate family, or someone they feel responsible for.
  • The Connection: There must be a direct link between the threat and the crime. The person making the threat must have told the defendant to commit a specific crime.
  • The "Reasonable Person" Test: The court looks at two things:
    1. Did the defendant honestly believe the threat was real? (Subjective)
    2. Would a sober person of reasonable firmness, sharing the same characteristics as the defendant, have acted the same way? (Objective)

B. Duress of Circumstances

This is very similar to duress of threats, but instead of a person making a specific demand, the situation or environment forces the person to commit a crime to avoid death or serious injury.

Example: Imagine a driver who sees a group of people with weapons running toward their car. To escape, the driver breaks the speed limit or drives through a red light. They weren't "told" to break the law, but the circumstances gave them no other choice to stay safe.

Key Takeaway:

Duress is about having no "safe avenue of escape." If the defendant could have gone to the police or walked away safely, the defence will likely fail.

2. Intoxication

Intoxication involves the use of alcohol, drugs, or other substances (like sniffing glue). It is not a "defence" in the sense that it justifies the crime; rather, it is used to show that the defendant was so intoxicated they could not form the mens rea (the required mental state) for the crime.

The law treats intoxication differently depending on whether it was voluntary or involuntary.

A. Voluntary Intoxication

This is where the defendant chose to take the substance (e.g., going out drinking or taking illegal drugs). The legal effect depends on the type of crime committed:

  • Specific Intent Crimes: These are crimes that require a very specific intent to cause a result (like Theft or Robbery). For these crimes, voluntary intoxication can be a defence if the defendant was so drunk they literally could not form the intent to steal.
  • Basic Intent Crimes: These are crimes that can be committed through subjective recklessness (like Criminal Damage or Assault). For these crimes, voluntary intoxication is not a defence. The law says that getting yourself dangerously intoxicated is a reckless act in itself, which satisfies the "guilty mind" requirement.

B. Involuntary Intoxication

This happens when the defendant did not know they were taking a substance. Common examples include:

  • Having a drink "spiked" without your knowledge.
  • Taking a prescription medicine that has an unexpected, extreme side effect.
  • Taking a non-dangerous drug (like a sedative) that has an unpredictable "wild" effect.

The Rule: If the defendant is involuntarily intoxicated and, because of that, they did not form the mens rea (intent or recklessness) for the crime, they are not guilty. This applies to both specific intent and basic intent crimes.

Common Mistake to Avoid: If someone "spikes" your drink to give you "Dutch courage" to commit a crime you already planned to do, you cannot use the defence of involuntary intoxication. You still had the intent!

Quick Review Table

Defence Type Main Requirement Key Limit
Duress of Threats Threat of death/serious injury from a person. Must be a specific crime demanded.
Duress of Circumstances The situation creates a threat of death/injury. Must be a reasonable reaction to the danger.
Voluntary Intoxication Defendant chose to take the substance. Only works for "Specific Intent" crimes.
Involuntary Intoxication Defendant was spiked or unaware. Works for any crime if mens rea is missing.

Summary Checklist for Students

When you are assessing a legal scenario in Paper 2, ask yourself these questions:

1. Was there a threat? If yes, was it death or serious injury? (This points to Duress).

2. Did the defendant have an escape route? If they could have called the police, the duress defence might fail.

3. Was the defendant under the influence? If yes, did they choose to be? (This points to Intoxication).

4. What is the crime? If it's a crime like Theft (Specific Intent), voluntary intoxication might help. If it's Criminal Damage (Basic Intent), it won't!

Study Tip: Don't worry if the distinction between "Specific" and "Basic" intent seems tricky. Just remember: Specific intent usually means you aimed for a very particular bad result (like taking property permanently), whereas Basic intent includes being reckless or careless.