Defences - Intoxication Criminal Defences © The Law Bank Criminal Defences Intoxication 1.
Defences 1
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Transcript of Defences 1
Defences 1
• In this lecture, we will:
• Consider the defences of:
Consent
Self defence
Prevention of crime
• Explore the concept of reasonable force.
The nature of consent
• Consent will only negative liability if it is a valid consent i.e.
• 1. V was able to give a true consent which has not been vitiated (rendered invalid) by, for example, fraud and
• 2. The application of force can be consented to in the circumstances.
When will fraud vitiate consent?
• Fraud will vitiate consent only if it relates to the nature or quality of the act involved or the ID of the person performing the act.
• Relevant caselaw:
• Clarence (1888) – involved fraud as to the nature of the act.
• Would the case be decided differently today? Yes, see Dica (2004)
• Richardson (1999) – involved fraud as to ID
• Tabassum (2000) – involved fraud as to the quality of the act
• The courts have recognised that everyday life involves many incidents where there is physical contact with others which should not be treated as criminal. See Wilson v Pringle (1986) in which the court stated that to be criminal, the touching must be hostile touching.
When may consent operate as a defence?
• In the Attorney-General’s Reference (No 6 of 1980), it was stated that V’s consent will not prevent D being criminally liable “if actual bodily harm is intended and/ or caused.”
• Reason?• “it’s not in the public interest that people
should try to cause or should cause each other actual bodily harm for no good reason.”
• Brown (1994)• HL, following the Att Gen’s Ref, held that
consent was a defence to assault or battery but not to an offence where more serious harm occurred such as s.47/20/18 unless the public interest required that the activity in question fell within an exception.
• ECHR held that the convictions did not contravene Article 8 – the right to respect for private life.
Bodily harm intended and/or caused
• The usage of the term “and or caused” which has been approved by HL suggests that an act done with consent, but which causes harm, constitutes an offence even where D does not intend to cause harm, does not foresee harm or even where harm was not foreseeable. Unfair?
• In Slingsby ((1995), the Crown Court chose the path of fairness and did not follow The Reference and Brown and refused to hold D liable where there was no assault even though harm was caused.
When does the public interest require that a person may
validly consent to at least abh?
• Reasonable surgical interference i.e. an operation performed for therapeutic reasons.
• In Brown, some of their Lordships suggested that V can validly consent to tattooing (provided V is over 18) and ear-piercing.
• In Wilson (1996), where there had been no “aggressive intent” and the branding was akin to tattooing/body piercing (the wife treated it as a physical adornment), D was niot liable for s.47 assault.
• But, see Emmett (1999) in which the court stated that the actual or potential harm to which V was exposed had gone well beyond that in Wilson and, further, there was no reason to draw a distinction between sado-masochistic activity between heterosexuals and that between homosexuals.
• V may give valid consent to the risk of harm harm in the sporting context where the sport is a properly conducted sport.
• E.g. rugby, boxing or wrestling, and the injury occurs whilst playing within the rules of the game.
• However, where D injures a fellow sportsman outside the rules of the game, consent is no defence, see Billinghurst (1978).
• Consent to participation in rough and undisciplined horseplay negatives liability for an assault offence, see Aitken (1992) and Jones (1986).
When is consent to harm not in the public interest?
• In Brown, their Lordships held that consent to sado-masochistic acts of violence was no defence to charges of assault occasioning actual bodily harm and wounding contrary to s.47 and s.20 OAPA 1861.
• An agreed fight to settle differences between the parties, see Att Gen’s Ref (No 6 of 1980).
Self defence & Prevention of crime
• D may have a successful defence at common law if he uses "reasonable force" against another in defence of himself or another (or to protect property), see Duffy (1967).
• Where there is fear of imminent violence, the act of self-defence need not be spontaneous, see Attorney General’s Reference (No 2 of 1983). Thus, D can strike first to repel an expected attack.
• Prevention of crime is a defence under s.3 Criminal Law Act 1967.
• Considerable overlap between self-defence and prevention of crime so that in many instances, D could plead either defence. However, if D was attacked by someone who was not committing a crime as, e.g. he was doli incapax, D could not rely upon prevention of crime but could rely on self-defence.
The similarities and relationship between self defence and prevention of
crime• Both defences are subject to the test of reasonableness.
• Both defences provide a justification for D's conduct which renders the force lawful.
• Both are available as defences to the same offences.
• D, who acted in self-defence or in defence of others, can argue that he acted in the prevention of a crime and can, therefore, raise either self defence or prevention of crime as a defence, see Duffy.
• What is reasonable force is a question of fact for the jury. The test is objective - whether, in the view of the jury, a reasonable person would have used such force in the circumstances as D perceived them to be, see Williams (1983).
• No need for exact proportionality between the threat posed and the force used, see Palmer v The Queen (1971).
• No duty to retreat (Bird (1985)) but unwillingness to fight is a factor to be taken into account as it is evidence of reasonableness (Reference No 1 of 1975).
What is the effect of mistake as to the degree
of force required?• In Owino (1995), the CA stated that D
was not entitled to use any degree of force he believed to be reasonable, however ill founded that belief. Rather, D may use such force as is objectively reasonable in the circumstances as he subjectively believes them to be.
• Also see Martin (Anthony) (2002).• Psychiatric evidence that D would have
perceived the circumstances as being a greater threat than a normal person would have is not admissible on policy grounds.
• Unfair?• Evidence of D’s physical characteristics may,
however, be admissible.