Defences: Consent, Duress and Necessity

Question 1

what burden must the defence meet?

'’prosecution?

Answer 1

defence need to meet evidential burden

prosecution need to meet the legal burden

Question 2

what offences can consent NOT be a defence for?

Answer 2

fatal offences - homicide 
rape 
fraud 
generally - theft
s.47,20,18 of OAPA

Question 3

what can consent be used as a defence for?

Answer 3

common assault/ battery

Question 4

when can consent be used as a defence under s47, s20, s18?

Answer 4

surgery
contact sports
ritual male circumcision 
religious mortification
dangerous exhibitions 
tattooing and piercings 
'rough and disciplined horseplay'

Question 5

what did R v Brown 1994 concern?

why was the defence of consent not available?

Answer 5

D convicted for offences under s.47 after engaging in sadomasochistic sex
all parties involved had consented and no on committed to hospital

court argued it was a question for Parliament
did not fall within existing list of exemptions

Question 6

what did Wilson 1996 concern?

why was the defence of consent available?
issues

Answer 6

husband branded wife with his initials
wife had consented to being branded during their sexual engagements

consensual and private act that took place in the ‘privacy of a marital relationship’
hard to reconcile with reasoning given in Brown 1994

Question 7

how was R v Brown 1994 reconciled with Wilson 1996 in Emmett 1999?

Answer 7

in Emmet 1999 heterosexual couple who engaged in sadomasochistic sex also prevented from using consent as a defence

held that the consent in Wilson 1996 was attributed to tattooing
whereas Brown 1994 was only in reference to sadomasochism

Question 8

what case established that body modification could not be consented to?

why?

Answer 8

R v M (B) 2018

not analogous to piercing/tattooing
it is the removal of body parts
‘medical procedures performed for no medical reason’

Question 9

what do Dica 2004 and Konzani 2005 establish in relation to consenting the the transmission of an STD (HIV)?

Answer 9

Dica
cannot use consent to sex as equating to risk of transmission as a defence for GBH

Konzani
can only be used as a defence if D has informed C of the risk and they still consent to sex

Question 10

how was the inability to consent to homicide referenced in Airedale NHS Trust v Bland 1993?

Answer 10

‘the sanctity of life entails its inviolability by an outsider’
‘subject to exceptions like self-defence’

Question 11

what did Lord Mustill hold as the minority in Brown 1994?

whose argument does this support?

Answer 11

should not interfere with the rights of the individual to live his/her life as he/she may chose
ONLY interfere as is ‘necessary to ensure a proper balance between the special interest of the individual and the general interest of the populace at large’

J.S.Mill argument for the harm principle

Question 12

what can the extent of consent as a defence be seen as driven by?

Answer 12

driven by public interest/public policy and NOT by personal autonomy

Question 13

what are the two types of duress?

Answer 13

duress of threats

duress of circumstances

Question 14

what are the requirements for duress as a defence?

Hasan 2005

Answer 14

threat of death/gbh
threat directed at D or some immediate family/someone they’re responsible for
reasonable belief in the execution of the threat
no reasonable opportunity to escape threat
threat was not reasonably foreseeable

Question 15

what key principle and focus was established in Graham 1982?

Answer 15

the relative reasonableness of response to the threat

Question 16

how did Bowen 1996 describe the considerations for the ‘reasonable’ person in relation to the defence of duress?

Answer 16

sex
age
pregnancy
physical disability 
recognised mental illness 
CANNOT SIMPLY BE 'HELPLESS'

Question 17

what is meant by duress of circumstances?

Answer 17

where D is left with no other option but to act as to avoid a harm

Question 18

what was seen as a reasonable response, as a result of duress of circumstances, in Willer 1986?

Answer 18

D drove on pavement to avoid gang who were chasing and threatening driver and passengers
reasonable response to avoid the immediate threat of GBH

Question 19

what case established that there must be an imminent danger of physical injury in order to rely on the the defence of duress of circumstances?

Answer 19

Quayle 2005

MS could not be used as an excuse for the production and possession of cannabis

Question 20

what can duress not be used as a defence for?

Answer 20

murder - Howe

attempted murder - Gotts

Question 21

how are the defences of self-defence and duress different?

Answer 21

self-defence
the threat created stems from V

duress
the threat stems from a 3rd party, not V

Question 22

how does Fitzjames Stephen criticise the defence of duress (1883)?

Answer 22

‘surely it is at the moment when the temptation to crime is the strongest that the law should speak most clearly and emphatically to the contrary?’

Question 23

what does Sir James Stephen describe as the 3 necessary requirements for the application of the defence of necessity?

Answer 23

1. act is needed to avoid inevitable and irreparable evil
2. no more should be done than reasonably necessary for purpose to be achieved
3. evil inflicted should not be disptoportionate

Question 24

how can public interest allow a defence of necessity?

Answer 24

Criminal Damage Act 1971 s5

damaging property of another because other property was in immediate need for protection

Question 25

how could Vs interests allow for the defence of necessity?

what case?

Answer 25

Re F

doctors having to sterilise a young woman without her consent
V couldn’t consent de to low mental age
becoming pregnant would be a greater harm that the sterilisation (GBH)

Question 26

how were Ds interests not seen as a necessity to avoid greater harm?

case?

Answer 26

Dudley v Stephens 1884

necessity of the 2 men was not sufficient to justify the killing and eating of V

Question 27

what other case raised the complex question of necessity in reference to preserving a life?

Answer 27

Re A

conjoined twins case
justification of killing of one to preserve the life of the other
otherwise both would die

Question 28

how did Lord Bingham express the problem of necessity as a defence in Southwark LBS v Williams 1971?

Answer 28

if used for Ds interests then it ‘would open a door which no man could shut’

Question 29

in what case did the court refuse to consider assisted suicide as a necessity?

Answer 29

R (Nicklinson) v Ministry of Justice 2014

Question 30

what did Lord Goff establish that necessity is not in Re F 1990?

Answer 30

it is not to be confused with emergency

necessity seeks to avoid harm, not an existing pressure