Criminal Law - Defences

Question 1

Loss of Control

Answer 1

See the murder chapter for the relevant cases on loss of control

Question 2

Diminished responsibility

Answer 2

See the murder chapter for the relevant cases on diminished responsibility

Question 3

Jaggard v Dickinson

Answer 3

Intoxication defense case

Facts: A drunk woman broke into a house, mistakenly believing it to be her friend’s house. She believed her friend would have consented to the forced entry. It was not her friend’s house.

Principles: Unreasonable mistake due to voluntary intoxication can still be a mistake for the purpose of s. 5(2)(a) Criminal Damage Act 1971 - the test is subjective and does not need to be a reasonable belief (s. 5(3)).

Question 4

R v Hardie

Answer 4

Intoxication defense case

Facts: The defendant took Valium to calm his nerves, and whilst under the influence of the drug set fire to his girlfriend’s wardrobe.

Principles: A “dangerous drug” for the purposes of intoxication will be one that is liable to make you aggressive or unpredictable

Question 5

R v Heard

Answer 5

Intoxication defense case

Facts: The defendant, who was heavily intoxicated, was taken to hospital where he sexually assaulted a police officer. He unsuccessfully argued that intoxication could be relied on as the offence has an element of intention.

Principles: The court held that sexual offences are ones of basic intent. Specific intent means intent to achieve certain consequences, and basic intent means intentor recklessness as to committing the base act.

Question 6

R v Kingston

Answer 6

Intoxication defense case

Facts: The defendant molested a child after another man drugged him. He argued that he would not have done it sober. He was convicted, as despite his involuntary intoxication, he had still formed the MR.

Principles: Drunk intent is still intent. It is not a defence to say that the defendant would not have committed the offence when sober.

Question 7

Rv Majewski

Answer 7

Intoxication defense case

Facts: The defendant was on multi-day drinking binge. He attacked patrons in a pub, a landlord and a number of police officers. He claimed to not recollect any of it due to his intoxication.

Principles: Established the distinction between basic and specific intent crimes and their relation to intoxication. Voluntary intoxication is not a defence to a basic intent crime, and can make it easier to find recklessness. It can be a defence to a specific intent crime, providing the defendant did not form the MR.

Question 8

R v Richardson and Irwin

Answer 8

Intoxication defense case

Facts: Intoxicated students dropped their friend off a balcony as a joke. They believed he had consented and were entitled to rely on their drunken belief in consent.

Principles: The defendant must believe in consent, but the belief can be mistaken and still be relied on nonetheless.

Question 9

AG’s Ref (No. 6 of 1980)

Answer 9

Consent defense case

Facts: Two boys agreed to settle an argument with a fight.

Principles: It is possible to consent to assault or battery, but consent is not usually possible where harm is caused.

COMPARE with Brown

Question 10

Collins v Wilcock

Answer 10

Consent defense case

Facts: A police officer held a woman’s arm, inflicting a battery.

Principles: Although not the case here, “implied consent” exists in everyday contact, such as “jostling” in crowded places.

Question 11

R v Barnes

Answer 11

Consent defense case

Facts: The defendant inflicted a serious injury on another player during a football match. He was convicted of GBH under s. 20 OAPA.

Principles: Where injuries occur in sports, it is possible to consent (as an exception to the general rule) to serious injury, but it will depend on the context of the injury.

Question 12

R v Brown

Answer 12

Consent defense case

Facts: A group of defendants took part in sadomasochism in private where they all inflicted and received (some serious) injury with consent.

Principles: It is not possible to consent to more serious acts of violence, e.g. GBH. COMPARE with AG’s Ref (No. 6 of 1980) and Wilson

Question 13

R v Clarence

Answer 13

Consent defense case

Facts: The defendant knew he had Gonorrhoea and had sex with his wife without telling her.

Principles: Consent must be informed, so consent obtained by deception can be negated. COMPARE with Dica

Question 14

R v Dica

Answer 14

Consent defense case

Facts: The defendant knowingly infected two women with HIV. He claimed they knew about his condition, and consented to unprotected sex.

Principles: Intentionally infecting someone is “biological GBH”, so cannot be consented to.

COMPARE with Clarence

Question 15

R v Donovan

Answer 15

Consent defense case

Facts: The defendant, with the victim’s consent, caned her for his sexual gratification

Principles:
1. The victim must consent, or the defendant must honestly believe that the victim consents.

2. You cannot consent to an act that is unlawful by its nature.

COMPARE with Brown, Clarence and Dica

Question 16

R v Emmett

Answer 16

Consent defense case

Facts: During consensual sexual activity, the defendant placed a bag over his partner’s head and later poured lighter fluid on her, which he lit, causing ABH

Principles: It is not possible to consent to this kind of activity as there was endangerment to life and a realistic chance of harm well beyond a transient or trivial injury. The risk of injury outweighed consent to sadomasochistic practices.

APPLIED Brown COMPARE with Slingsby and Wilson

Question 17

R v Jones

Answer 17

Consent defense case

Facts: The defendant injured another schoolboy during “horseplay”.

Principles: Horseplay can be consented to providing there is no intention to injure.

Question 18

R v Meachen

Answer 18

Consent defense case

Facts: The defendant caused serious harm to the victim through consensual rough penetration.

Principles: Where consent has been given to a battery, which then develops unforeseen into more serious harm, it may still be possible for consent to work as a defence.

Question 19

R v Richardson

Answer 19

Consent defense case

Facts: A dentist, who had previously been suspended, operated on patients. They had consented to the particular procedures, but said they would not have if they had known that he had been suspended. Consent was still valid as he had not been deceptive as to his identity.

Principles: Deception as to the identity of the defendant will negate consent. Here, the deception was to being allowed to practice dentistry, so consent was still valid. COMPARE with Tabessum

Question 20

R v Slingsby

Answer 20

Consent defense case

Facts: A man accidentally scratched a woman with his ring during sex. She subsequently suffered internal wounding and died of septicaemia.

Principles: There was no evidence that either had contemplated the possibility of ABH occurring. Consent was therefore valid.

COMPARE with Brown, Emmett and Wilson

Question 21

Rv Tabessum

Answer 21

Consent defense case

Facts: The defendant claimed to be a medical practitioner carrying out breast examinations. He was actually! a lecturer.

Principles: Deception as to the nature of the act will negate consent.

COMPARE with Richardson

Question 22

R v Wilson

Answer 22

Consent defense case

Facts: The defendant branded his wife with a hot knife. She had asked him to do so, and consented to his actions.

Principles: Consent was possible to ABH here as this was more akin to tattooing which had gone wrong rather than consenting to deliberate harm.

COMPARE with Brown

Question 23

AG for Northern Ireland (No. 1 of 1975)

Answer 23

Self-defense defence case

Facts: A reference about whether the force used by a soldier in Northern Ireland, who had shot and killed an unarmed man running away, was unreasonable based on the circumstances in which he found himself

Principles: The circumstances are as the defendant understands them to be in the heat of the moment. The court will appreciate that decisions are instinctive in certain situations.

Question 24

Devlin v Armstrong

Answer 24

Self-defense defence case

Facts: The defendant threw stones at the police during a riot, and argued that she believed the police were about to act unlawfully toward people and property so was acting in self-defence

Principles:

1. Force can only be used to protect from imminent attack.
2. Pre-emptive strikes are allowed.

Question 25

Palmer v R

Answer 25

Self-defense defence case

Facts: The defendant was being chased after stealing some cannabis. He shot at the pursuers, killing one of them. He pleaded self-defence.

Principles: The Privy Council held that the circumstances understood to the defendant are not likely to be “weighed to a nicety”, i.e. measured precisely.

Question 26

R v Bird

Answer 26

Self-defense defence case

Facts: The defendant got into a fight with her ex-boyfriend and - acting in self-defence - punched him whilst holding a glass, wounding his eye.

Principles: There is no duty to retreat. The court said that showing you did not want to fight may be good evidence that you are acting reasonably, but it is not required.

Question 27

R v Bullerton

Answer 27

Self-defense defence case

Facts: The defendant responded physically to events that only affected his mental state.

Principles: Self-defence is only available in respect of physical attacks, not for peace of mind

Question 28

R (Collins) v Secretary of State for Justice

Answer 28

Self-defense defence case

Facts: A householder came home to find an intruder in his home and in possession of his phone and car keys. He restrained the intruder in a head lock, causing life changing injuries

Principles: There is a two level test for the level of force in householder self-defence:

(1) Was it grossly disproportionate? If so, the defence fails automatically.
(2) If the force used was disproportionate, but not grossly so, then was the level of force reasonable in the circumstances as the defendant believed them to be?

Question 29

R v Clegg

Answer 29

Self-defense defence case

Facts: A soldier in Northern Ireland killed a passenger in a car, whom he believed to be a terrorist. The car had driven through a barricade, and the final shot (fired as the car was driving away) killed the women

Principles: Self-defence is an “all or nothing” defence. If force used is excessive, the entire defence is lost, and a charge of manslaughter cannot be swapped for murder on the basis of excessive force