Defences Flashcards
What are the 3 defences that need evaluating??
Intoxication
Consent
Self Defence
What are three negatives about intoxication??
1) DPP v Majewski ignores the couincidence rule. The desicion to drink is several hours before the AR as in O’Grady. Therefore the law is unfair to defendants who may lack the necassary at the time the AR is committed. This is contary to the principles of natural justice.
2) As D can only be convicted for basic intent offences the law is inconsistent. If D commited murder then it drops to maslaughter. But for some offences there is no fall back conviction so if they sucessfully plead intoxication they will be aquitted for lack of MR.
3) Ascribing recklessness for basic intent offences for D becoming intoxicated isnt fair. When intoxicated D may only forsee a general risk of doing something stupid when drunk but can be convicted of offences like ABH where D must forsee the battery or assault. The law commission declared this unfair in their 1993 paper but changed this. The law in this area prioritises the protection of Vs than the fairness to Ds.
Law commision for Intoxication??
2009 Report No. 314 recommended abolishing the use of specfic and basic intent in favour of classifying the offences by MR so if D intended the consequence or whether the offence requires proof of recklessness.
What are 4 issues with self defence??
1) If the force is necessary or not is a question for the jury. In Bird D did not need to retreat but the jury may take into account that they could have retreated when deciding. This confuses the jury and this is contary to the rule of law.
2) The law on Householders allows them to use force as long as it is not “grossly disproportionate”. This is fair to victims of domestic burgalry but permits aquittals where unreasonable force has been used and this is morally difficult to justify. It also can be hard to draw distinctionbetween householders and normal people in other situations who are equally afraid but are offered less protection.
3) It can be argued that self defence is too generous to defendants as D can use the defence even if they are unreasonablely mistaken ( as long as they are not intoxicated ). It is arguably unfair to aquit D based on theor unreasonable belief of the situation but in the other hand is prosecuting Ds when they thought the use of force was necessary. The law does not protect the victims in such situations Williams (Gladstone).
4) Characteristics are irrelevant in deciding whether D thought the degree of force was necassary as in R v Martin. Although unfair to D this was a practical desicion as it is not appropriate to “encourage medical disputes” in such cases. This prioritises the administration of courts over sustantive justice as confirmed in R v Oye 2013.
Law commision for Self Defence??
Can be argued that in the provisions of the JA 2008 the balance is in favour of the Ds whi can be unreasonably mistaken and in householders and the force they can use. The CJA has also made the law on necasary force unclear and the provisions should be repealed but in practice this is unlikley.
What are the issues and positive with Consent??
1) R v Wilson and R v Brown show inconsistency. In Wilson Ds wife required medical attention yet D was aquitted but in Brown Ds were not seriously hurt but Ds were convicted and the acts done were for sexual gratification and involbed cruelty and degradation. This could be a moral and not a legal descion and critcs argue that it permits the acts between heterosexual but not homosexuals. But in Brown the judge drew a line between the incidental violence and violence which is inflicted for the indulgence of cruelty showing that it is policy not prejudiced.
2) Horseplay is an incident where consent is accepted by the courts even if harm occured as D lacks the MR for assault. This is even in the case if D did not consent as in Jones and Aitken even though serious injury was caused. This seems less fair given that in the cases of Brown and Emmett real consent was given for disapproved sexual acts showing the law is confusing and contary to the rule of law and shows victims are not adequently protected.
3) Defence of consent is needed for sports in some situations such as contact sports and surgery which is why in the court of appeal in Attorney Generals Reference No.6 of 1980 listed exceptions to the rule that consent is not permitted where harm is caused. Without this we couldnt play sports like rugby. The COA reffered to properly conducted sports and this adds the important safeguard that conduct must fall within the scope of the game so “off the ball” incidents are more likley to be criminal acts. R v Barnes. This balances the need to permit contact sports with upholding the crimial law of assault.
Law commision for consent??
Consultation Paper No.139 of 1995 where they discussed if an objective element should be added in reagrd to mistaken consent cases. This would be if (a) it would not have been obvious to a reasonable person in his/her position that the other person did not so consent, or (b) he or she was not capable of appreciating that the person did not consent. This would provide greater protection to victims involving horseplay incidents.
