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General Defences

Law 03

+Consent

Is the consent genuine? What offence can a person consent (and not consent)

to?

+Genuine Consent

In giving consent a person must be deemed ‘Gillick’ competent, that is they must have an understanding of what they are consenting to. Failure to appreciate the nature of the act forms the basis of lack of consent not the defendant’s age.

http://www.e-lawresources.co.uk/cases/Gillick-v-West-Norfolk.php

Consent obtained by fraud will not be valid consent . The fraud must be to the nature of the act.

( R v Tabassum)

+Consent

Consent cannot be given to being killed. Pretty (2002) Nicholson (2012) http://www.guardian.co.uk/uk/2012/aug/22/tony-nicklins

on-right-to-die-case

+Consent

Consent is allowed as a defence to battery but not for more serious injuries unless they fall into a ‘recognised exception’

R v Brown – it is not in the public interest for people to harm each other for no good reason. Sado masochistic sex was not deemed sufficiently good reason.

http://www.e-lawresources.co.uk/cases/R-v-Brown-1993.php

See also the case of R v Dica

+Consent (recognised exceptions) 1. Properly conducted games & sport Consent may be available as a defence to injuries more

serious than common assault if The injury must be sustained within the rules of the

sport otherwise the defence will not apply. R v Billinghurst http://www.e-lawresources.co.uk/cases/R-v-

Billinghurst.php

+Consent (recognised exceptions) 2. Rough Horseplay and sexual activities The courts do not concern themselves with these

activities provided they do not go to far. Rough horseplay is permitted so long as it is not

bullying. R v Jones http://www.e-lawresources.co.uk/cases/R-v-Jones.php

+Consent (recognised exceptions) 3. Cosmetic enhancements With respect to piercing and tattoos, these activities may be

consented to. R v Wilson http://www.e-lawresources.co.uk/cases/R-v-Wilson.php Tattooing is regulated however under the tattooing of minors act 1969 Finally consent to medical procedures can be express or implied in the

case of emergencies.

If proven , consent is a complete defence and there will be an exclusion of liability!

+Insanity

Insanity as a defence is relevant only at the time the defence was committed. The defendant must prove, on balance of probability, he was insane at the time of the offence.

If insanity is proven to exist then the defendant is found not guilty by reason of insanity.

Under the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 the court may hospitalise or place the defendant under supervision.

+Insanity

M’Naghten case sets out the three key issues that must be established for the defence to succeed.

1. Defect of reason

2. Caused by disease of the mind

3. The defendant doesn’t know the nature and quality of the act ( D doesn’t know what he was doing wrong).

+Insanity1. Defect of reason This is based on the inability of the defendant to use

powers of reason rather than failing to use powers of reason.

R V Clarke http://www.e-lawresources.co.uk/R-v-Clarke.php Absent-mindedness is not defect of reason.

+InsanityCaused by disease of the mind This is a legal term, not medical. Disease must be an internal physical disease not one

brought about by external factors ( such as drugs). It can be permanent or temporary.

R v Kemp http://www.e-lawresources.co.uk/R-v-Kemp.php R v Sullivan http://www.e-lawresources.co.uk/R-v-Sullivan.php

+InsanitySo the defendant doesn’t know the nature and quality of the act.

This means that the defendant Didn’t know what he was doing Didn’t appreciate the consequences of the act Didn’t appreciate the circumstances in which he was acting. If the defendant knew that what he was doing was unlawful

no finding of insanity can be made even if they did not believe it was morally wrong:

R V Windle

http://www.e-lawresources.co.uk/R-v-Windle.php

+Non Insane automatism

The defendant needs to prove on balance of probability that his act was

1.an involuntary action arising from external source or reflex action

2. The action must be completely involuntary

3. The automatism must not be self-induced  If proven it is a complete defence therefore excludes

liability.

+Non Insane automatism

An involuntary action arising from external source or reflex action.

R v Quick http://www.e-lawresources.co.uk/cases/R-v-Quick.php If the action arises as a result of an internal factor then

defendant must plead insanity. R v Burgess http://www.e-lawresources.co.uk/R-v-Hennessy.php

+Non Insane automatism

2. The action must be completely involuntary There must be a complete loss of control, if the

defendant retains any degree of control he is not acting as an automaton.

AG Ref no.2 (1992) http://www.e-lawresources.co.uk/cases/A-G-Ref-%28No-

2-of-1992%29.php

+Non Insane automatism

3. The automatism must not be self-induced Self induced automatism due to alcohol or drugs will

cause non insane automatism to fail, however, the defence of intoxication may then apply.

R v Bailey

+Intoxication

The law distinguishes between voluntary and involuntary intoxication and the effect that has on different offences according to whether they are specific or basic intent.

Where the defendant is involuntarily intoxicated and the defendant does not form the MR of the crime or a particular drug has an unexpected result.

Where the defendant has voluntarily put themselves in the position of being intoxicated to the extent that they are not capable of forming the mental element of the crime the law is less forgiving. The law draws a distinction between crimes of basic intent and crimes of specific intent.

+Intoxication (Involuntary)

This can occur as a result of drinks being spiked without defendants knowledge

The defendant takes prescribed drugs but they have an unexpected result

The defendant takes a non dangerous drug (although not prescribed to them) & they are taken in a non reckless way. R v Hardie

http://www.e-lawresources.co.uk/R-v-Allen-%5B1988%5D.php It is important to remember that involuntary intoxication can

only be used as a defence if the defendant fails to form the MR of the crime. R v Kingston.

+Intoxication (Voluntary)

Voluntary intoxication is only a defence to crimes of specific intent (S18 & Murder)

R v Majewski http://www.e-lawresources.co.uk/DPP-v-Majewski.php If the defendant commits a crime of specific intent

whilst voluntarily intoxicated then he will be liable for the lesser basic intent offence. So S18 would be reduced to S20.

Voluntary intoxication CANNOT be applied to basic intent offences (S20, S47, S39)

+Intoxication (Voluntary)

Intoxication and Dutch Courage Where a person forms the intention to commit a crime

and then drinks in order to enable them to carryout the crime, they can not then claim the intoxication prevented them from forming the mens rea:

Attorney General for NI v Gallagher [1963] AC 349   http://www.e-lawresources.co.uk/cases/A-G-for-N--Irelan

d-v--Gallagher.php

+Intoxication (Voluntary)

Self -defence  Where a defendant is labouring under a mistaken belief

that they are under attack and acting in self-defence, they can not rely on such mistaken belief where it was induced by voluntary intoxication. This applies to crimes of both basic intent and specific intent. 

R v O'Grady [1987] QB 995   http://www.e-lawresources.co.uk/cases/R-v-O-Grady.php

+Self defence/prevention of crime Sometimes referred to as private and public defence. Self defence , defend yourself or another ( Criminal Justice &

Immigration Act 2008) Prevention of crime under s.3 Criminal Law Act 1967

 Protection of property under s.5 Criminal Damage Act 1971 

The requirements are the same. That is that the force used must be reasonable in the circumstances.

The burden of proof lies on the prosecution to establish that the level of force was unlawful, that is excessive, in the circumstances.

+MUST USE REASONABLE FORCE Jury must look at whether the force used was reasonable in the

circumstances as the defendant believed them to be.

In Palmer v R [1971], Lord Morris said that the jury should look at the particular facts and circumstances of the case, and that:

D should not be expected to weigh up the exact measure of his defensive action

If the Jury thought that D did what he honestly and instinctively thought necessary, this would be evidence that he acted reasonably

http://www.e-lawresources.co.uk/R-v-Clegg.php example of excessive force

R v Scarlett[1994]: pub landlord case. Jury should not convict unless they feel the degree of force used was plainly more than was called for by the circumstances as D believed them to be. D's belief in the circumstances must be honest but not necessarily reasonable.

+IS THERE A DUTY TO RETREAT?

R v Bird [1985] : D doesn't have to show an unwillingness to fight for the defence to succeed

Attorney-General's Ref. (no 2 of 1983) : Even a pre-emptive strike may be justified

+MISTAKE AS TO SELF-DEFENCE (i.e. mistake as to amount of force needed)(see Scarlett) Jury must look at what D honestly believed was happening

+INTOXICATION AND SELF-DEFENCER v O'Grady [1987]: A mistake arising from voluntary intoxication can not be relied on when D is putting forward a defence