Law-Defences

Question 1

What are the defences?

Answer 1

Insanity, automatism, intoxication, self-defence and consent

Question 2

What are the rules on insanity based on?

Answer 2

The case of M’Naghten who suffered from extreme paranoia and killed his secretary but due to mental state he was found not guilty. He was sent to a mental hospital but not due to the verdict. Because he was not guilty and not automatically sent to a hospital, he house of lords created the M’Naghten rules on insanity to answer the publics questions

Question 3

What is the main rule on insanity?

Answer 3

“in all cases every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes”

Question 4

How is the defence of insanity established?

Answer 4

The defendant must prove that at the time of committing the act he had a defect of reason which is the result of a disease of the mind which causes the defendant not to know the nature and quality of his act, or not to know he was doing wrong

Question 5

For insanity, what is the burden and standard of proof?

Answer 5

The burden of proving insanity is on the defence, who must prove it on the balance of probabilities

Question 6

When a defendant is found to be insane, what verdict is given?

Answer 6

Not guilty by reason of insanity

Question 7

What did the case of DPP v H decide?

Answer 7

Defendant was charged with driving with excess alcohol and it was held that insanity is not a defence to offences of strict liability where no mental element is required

Question 8

What is defect of reason?

Answer 8

It means that the defendant’s powers of reasoning must be impaired. If the defendant is capable of reasoning but has failed to use those powers then this is not a defect of reason (Clarke)

Question 9

What happened in the case of Clarke?

Answer 9

It was decided that the defect of reason must be more than absent-mindedness or confusion

Question 10

What is disease of the mind?

Answer 10

The defect of reason must be due to a disease of the mind, which is a legal term, not a medical one. The disease can be a mental disease or physical disease which affects the mind eg Kemp, Sullivan, Hennesy, Burgess

Question 11

What happened in the case of Kemp?

Answer 11

Defendant was found not guilty by reason of insanity due to a hardening of the arteries which caused a problem with supply of blood to the brain causing moments of temporary loss of consciousness. Court ruled it was insanity because they are interested in illnesses that affect the mind, not the brain, which is why it counted

Question 12

What happened in the case of Sullivan?

Answer 12

Defendant had epilepsy, known to have fits and aggression to those trying to help during these times, and in this case injured an 80 year old man

Question 13

What did the House of Lords rule in the case of Sullivan?

Answer 13

They ruled that the source of the disease was irrelevant. It could be ‘organic, as in epilepsy, or functional’, and it did not matter whether the impairment was ‘permanent, or transient and intermittent’, provided that it existed at the time that the defendant did the act. This means that for the purpose of the M’Naghten Rules the disease can be of any part of the body provided it has an effect on the mind. This extended the legal meaning of insanity far beyond the medical meaning

Question 14

What happened in the case of Hennessy?

Answer 14

High blood sugar levels because of diabetes were classed as insanity because the levels affected the mind. Therefore the source of the disease can also be ‘organic’, meaning a disease of the organs of the body, including diseases such as epilepsy, arteriosclerosis (Kemp), brain tumours and diabetes

Question 15

What happened in the case of Burgess?

Answer 15

It was decided that in some instances sleep-walking was also within the legal definition of insanity. It was found that the defendant was sleep walking due to a sleep disorder (an internal cause) and so was found not guilty by reason of insanity. However if the sleep walking is due to an external cause, such as a blow to the head then it is not insanity but will allow the defendant the defence of automatism

Question 16

What happens if the defect of reasoning in caused by an external factor?

Answer 16

This is not insanity, as shown by Quirk who was diabetic which may be insane if insulin hasn’t been taken (Sullivan), but may not be insane if they have taken insulin but haven’t eaten as this counts as an external factor. If a drug hasn’t been taken and the disease causes the problem, then it is internal (disease of the mind). But if a drug has been taken and this causes the automatic state, then it is external and not insanity

Question 17

What is ‘not knowing the nature and quality of the act or not knowing that it is wrong’?

Answer 17

Nature and quality refers to the physical character of the act. The two ways that the defendant may not know the nature of quality of the act are because they are in a state of unconsciousness or impaired consciousness, or where they are conscious but due to their mental condition they don’t understand or know what they are doing. If either of these ways can be proven to apply at the time of the act, then this part of the M’Naghten rules is satisfied

Question 18

What was the case for Kemp, Sullivan, Hennessy and Burgess relating to whether they knew the nature and quality of their act, or whether it was wrong?

Answer 18

The defendant may not know the nature and quality of the act because they are in an automatic state and they don’t know what they are doing, which was the case in Kemp, Sullivan, Hennessy and Burgess

Question 19

What is a reason, apart from being in an automatic state, that someone may not know the nature or quality of their act?

Answer 19

If they suffer from delusions. If a person believes eg that the devil is standing next to them and hits out at them with a knife but in actual fact kills a person, they don’t know the nature or quality of the act. The same is true if an insane person believes they are squeezing an orange but in fact they are squeezing someone’s throat

Question 20

How is it possible for someone who knows the nature and quality of their act to use the defence of insanity?

Answer 20

I they did not know that what they did was wrong (meaning legally wrong, not morally wrong). Even if the defendant is suffering from a mental illness but knows what they did was legally wrong, they cannot use the defence of insanity, as shown by Windle

Question 21

What happened in the case of Windle?

Answer 21

Defendant killed his suicidal wife and gave himself up to the police then said “I suppose they will hang me for this”. He had a mental illness but his words showed that knew he had done something legally wrong and so could not use the defence of insanity

Question 22

What case followed Windle more recently?

Answer 22

Johnson, where the defendant was schizophrenic and stabbed a neighbour in their flat. Two psychiatrists said he was paranoid schizophrenic with hallucinations but both agreed that despite this, he still knew the nature and quality of his acts, and that they were legally wrong so could not use insanity

Question 23

What is a major problem with the law of inanity?

Answer 23

The definition of insanity was set by the M’Naghten rules in 1842. At that time medical knowledge of mental disorders was very limited. Much more is known today about mental disorders and a more modern definition should be used

Question 24

What are the other problems with the law of insanity?

Answer 24

Other problems with the legal definition of insanity, the overlap with automatism, the position of diabetics, the decision in Windle, social stigma, and proof of insanity

Question 25

What are the other problems with the legal definition of insanity?

Answer 25

The definition has become a legal one rather than a medical problem, creating two problems. 1) people with certain mental disorders do not come under this definition even though they can’t prevent themselves from acting and have a recognised mental disorder. 2) people with physical illnesses such as diabetes, brain tumours and even sleep walking can be considered legally insane

Question 26

How is the overlap with automatism a problem with the law of insanity?

Answer 26

It is necessary to decide whether the defendant’s automatic state is due to mental illness or external factors. The courts have to decide that those suffering from an illness that affects their mind/puts then in an automatic state amounts to insanity. This means the defence of non-insane automatism has been removed from such people as epileptics and diabetics.Serious consequences are that those successfully using the defence of automatism are entitled to a complete acquittal however insanity requires the judge to impose some order on the defendant

Question 27

How is the position of diabetics a problem with the law of insanity?

Answer 27

The legal definition of insanity means diabetics are sometimes classed as insane, and other times not. In Sullivan it was held he came within the M’Naghten rules and so used insanity, however in Quirk, he did not come within these rules and so couldn’t use insanity, but could use automatism where he was entitled to a full acquittal

Question 28

How is the decision in Windle a problem with the law of insanity?

Answer 28

Following the decision in Windle, a defendant who is suffering from a serious recognised mental illness and who does not know that his act is morally wrong cannot have a defence of insanity when he knows his act is legally wrong. An Australian case refused to follow this decision. In Johnson the Court of Appeal clearly thought that the Australian case had some merit but were obliged to follow Windle

Question 29

How is social stigma a problem with the law of insanity?

Answer 29

Even the use of the word ‘insanity’ is unfortunate. It carries a social stigma. It is bad enough to apply it to people who are suffering from mental disorders, but it is entirely inappropriate to apply it to those suffering from such diseases as epilepsy or diabetes

Question 30

How is proof of insanity a problem with the law of insanity?

Answer 30

Defendant has to prove he is insane, placing burden of proof on him. It is possible that it is in breach of Art 6 of European Convention on Human Rights that states defendant is innocent until proven guilty. Also the point that the jury are required if the defendant is insane or not which is not an appropriate function for the jury

Question 31

What proposal for reform of the law on insanity was made in 1953?

Answer 31

The Royal Commission on Capital Punishment suggested that the M’Naghten rules should be extended for when a defendant is incapable of preventing himself from committing the offence, however instead of this the Government introduced the defence of diminished responsibility for murder and gives judges discretion on sentencing for other offences

Question 32

What proposal for reform of the law on insanity was made in 1975?

Answer 32

The Butler Committee suggested that the verdict of not guilty by reason of insanity should be replaced with not guilty on evidence of mental disorder. In 1989 the Law Commission’s Draft Criminal Code proposed that the verdict should be not guilty on evidence of severe mental disorder or severe mental handicap, but none of these proposals were made law

Question 33

What change did the Government make in 1991?

Answer 33

The way in which judges can deal with a defendant found guilty by reason of insanity have improved. A judge can now make: a hospital order with or without restriction; a supervision order; or an absolute discharge. These allow for a mentally ill defendant who is a danger o the community to be sent to a secure hospital, while a defendant with diabetes can be given an absolute discharge

Question 34

What are recent proposals for the law on insanity?

Answer 34

In 2012, the Law Commission published a ‘Scoping Paper’ on insanity and automatism. The intention of the paper is to discover how these defences are working and what problems lawyers and judges find in them. The paper outlines the current law and poses a series of questions. It also offers possible alternatives, but it doesn’t make any definite proposals. The Law Commission will look at the responses and publish further papers on the issues

Question 35

What case defines automatism?

Answer 35

Bratty v Attorney-General for Northern Ireland, which defines automatism as “an act done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from concussion or whilst sleep walking”

Question 36

What types of automatism are covered in the definition of automatism?

Answer 36

Insane automatism and non-insane automatism

Question 37

What is insane automatism?

Answer 37

Whee the cause of the automatism is a disease of the mind within the M’Naghten Rules. In such a case the defence is insanity and the verdict is not guilty by reason of insanity

Question 38

What is non-insane automatism?

Answer 38

Where the cause is an external one. Where such a defence succeeds, it is a complete defence and the defendant is not guilty

Question 39

Why is non-insane automatism a defence?

Answer 39

Because the actus reus done by the defendant is not voluntary, and the defendant does not have the required mens rea for the offence

Question 40

What is the cause of automatism for non-insane automatism?

Answer 40

It must be external eg a blow to the head, an attack by a swarm of bees, sneezing, hypnotism and the effect of a drug

Question 41

What happened in the case of R v T?

Answer 41

It was accepted that exceptional stress can be an external factor which may cause automatism (defendant suffered PTSD after sexual assault)

Question 42

What happened in A-G’s reference no2 of 1992?

Answer 42

The court of appeal held there must be ‘total destruction of voluntary control’. Reduced or partial control of one’s actions is not sufficient for non-insane automatism (case about driving without awareness)

Question 43

What is self induced automatism?

Answer 43

Where the defendant knows that his conduct is likely to bring on an automatic state, eg a diabetic failing to eat after taking insulin

Question 44

Where does the law on self induced automatism come from?

Answer 44

The case of Bailey where the defendant was a diabetic that did not eat enough after taking insulin to control the diabetes. He then became aggressive and hit someone over the head with an iron bar

Question 45

What was decided by the Court of Appeal in the case of Bailey?

Answer 45

If the offence charged is one of specific intent, then self-induced automatism can be a defence, because the defendant lacks the required mens rea

Question 46

What happens if the offence charged is one of basic intent?

Answer 46

1) the prosecution has to prove the necessary element of recklessness for the offence. 2) where the self-induced automatic state is caused through drink or illegal drugs or other intoxicating substances the defendant cannot use this defence (due to DPP v Majewski as voluntary intoxication is reckless). 3) where defendant doesn’t know his actions are likely to lead to a self-induced automatic state in which he may commit an offence, he has not been reckless and can use the offence

Question 47

What happened in the case of Hardie?

Answer 47

Due to depression, the defendant took valium tablets that were prescribed for his ex girlfriend. He then set fire to a wardrobe in the flat and said he didn’t know what he was doing due to the valium. Trial judge told the jury to ignore the tablets and so he was convicted of arson but the court of appeal quashed the conviction as he took the drug to calm down (an effect of the drug) so hadn’t been reckless and the defence of automatism should have been used

Question 48

What is the main problem with the law on automatism

Answer 48

In each case it has to be decided whether the situation is one of insane automatism or non-insane automatism. This is very important as the effect of these two types of automatism as a defence is so different. Situations which would seem to the non-lawyer to be ones of non insane automatism, such as a diabetic being in a high blood sugar state, or someone sleep walking may at law be considered to be insane automatism

Question 49

What was a proposal for reform of the law on automatism?

Answer 49

In the Draft Criminal Code a new definition was suggested: “A person is not guilty of an offence if- (a) he acts in a state of automatism, that in his act (i) is a reflex, spasm or convulsion; or (ii) occurs while he is in a condition (whether of sleep, unconsciousness, impaired consciousness or otherwise) depriving him of effective control of his act; and (b) the act or condition is the result neither of anything done or omitted with the fault required for the offence nor of voluntary intoxication

Question 50

Why would the reform proposed by the Draft Criminal Code be good?

Answer 50

It would include those who act during an epileptic convulsion eg Sullivan could then use the defence instead of insanity. Also sleep walking could come under this so eg in Burgess who could use this defence instead of insanity

Question 51

What is a negative point of the reform proposed by the Draft Criminal Code?

Answer 51

The present system allows a judge to order medical treatment for those who are found not guilty by reason of insanity. Should there be some way of making sure that those who commit dangerous offences whilst in an automatic stat, and who would benefit from treatment, do in fact receive treatment?

Question 52

What are recent proposals for the law of automatism?

Answer 52

In July 2012 the Law Commission published a ‘Scoping Paper’ on the defences of insanity and automatism. They point out that the two defences are so closely related that if there is to be reform of insanity, then automatism must be reformed at the same time. The Scoping Paper is a preliminary stage of considering what the problems of the defences are and what possible reforms might be made. The Law Commission will be issuing further papers on the matter

Question 53

What does the defence of intoxication cover?

Answer 53

Intoxication by alcohol, drugs or other substances, such as glue sniffing

Question 54

What does the defence of intoxication allow?

Answer 54

It does not provide a defence as such, but is relevant as to whether or not the defendant has the required mens rea for the offence. If he does not have the required mens rea because of the intoxicated state, then he may not be guilty

Question 55

What does whether the defendant is found guilty or not, if they have been in an intoxicated state when committing the act, depend on?

Answer 55

1) whether the intoxication was voluntary or involuntary; and 2) whether the offence charged is one of specific or basic intent

Question 56

What are specific intent offences?

Answer 56

Generally those which require specific intention for their mens rea- murder and s18 OAPA

Question 57

What are basic intent offences?

Answer 57

Generally those for which recklessness is sufficient for the mens rea- manslaughter, s20 and s47 OAPA and assault and battery

Question 58

What is voluntary intoxication?

Answer 58

Where the defendant has chosen to take an intoxicating substance. This can be doe by taking alcohol, illegal drugs or other intoxicants such as through sniffing glue. It can also occur where the defendant knows that the effect of a prescribed drug will be to make him intoxicated

Question 59

What happens when there is voluntary intoxication and specific intent offences?

Answer 59

Voluntary intoxication can negate the mens rea for a specific intent offence. If the defendant is so intoxicated that he has not formed the mens rea for the offence, then he is not guilty

Question 60

What is a case for voluntary intoxication and specific intent offences?

Answer 60

Sheehan and Moore where the defendants were very drunk when they threw petrol over a tramp and set fire to him. They were too drunk to have formed any intent to kill or cause grievous bodily harm. It was held that as they didn’t have the mens rea for murder heir intoxication was a defence to that offence, but they were found guilty of manslaughter (basic intent)

Question 61

What happens where the defendant has the necessary mens rea despite his intoxicated state?

Answer 61

The defendant will be guilty of the offence as intoxication will not provide a defence. It has been held that a drunken intent is still intent (AG for Northern Ireland v Gallagher- defendant tried to kill wife so bought a knife and a bottle of whisky, then drank it and killed his wife- conviction of murder upheld)

Question 62

What happens where there is voluntary intoxication and basic intent?

Answer 62

Where the offence charged is one of basic intent, then intoxication is not a defence. This is because voluntarily becoming intoxicated is considered a reckless course of conduct, and recklessness is sufficient for the mens rea of basic intent. This was decided in Majewski

Question 63

What happened in the case of Majewski?

Answer 63

The defendant had taken alcohol and drugs. In a very intoxicated state he attacked people in a pub and the police when they tried to arrest him. He was convicted of three offences of ABH (s47 OAPA) and three of assaulting a police officer in the execution of his duty. The House of Lords upheld all the convictions as his intoxication was not a defence

Question 64

Why has the decision in Majewski caused problems?

Answer 64

Because it appears to have the effect that voluntary intoxication can never be a defence to a basic intent offence

Question 65

What did Lord Elwyn-Jones say about voluntary intoxication and basic intent offences?

Answer 65

A defendant who voluntarily gets into an intoxicated state: “supplies the evidence of mens rea, of guilty mind certainly sufficient for crimes of basic intent. It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea in assault cases”

Question 66

What has been said about Lord Elwyn-Jones’ statement?

Answer 66

It seems a very harsh line to take and the courts have adopted a different approach in some other cases. They have taken the view that the jury should consider whether the defendant would have realised the risk if he had not been intoxicated (Richardson and Irwin)

Question 67

What happened in the case of Richardson and Irwin?

Answer 67

Defendants and victim were university students. Drank about 5 pints of larger. Started ‘horesplaying’. During this the victim was lifted over the edge of the balcony, dropped ten feet and then suffered serious injury. Defendant’s convictions under s20 of the OAPA 1861 were quashed as the court of appeal said the jury should have been directed to consider if the defendants would realise the risk if sober

Question 68

As a result of Richardson and Irwin, what can the jury decide in a case with basic intent offences and voluntary intoxication?

Answer 68

If they decide the defendants would not have realised the risk of some injury to the victim even if they had been sober, then the jury should find the defendants not guilty. The mere fact of being intoxicated does not automatically make the defendants guilty

Question 69

What does involuntary intoxication cover?

Answer 69

Situations where the defendant did not know he was taking an intoxicating substance. This may be where, for example, a soft drink has been ‘laced’ with alcohol or drugs. Also covers situations where prescribed drugs have an unexpected effect of making the defendant intoxicated

Question 70

What is the test for involuntary intoxication?

Answer 70

Did the defendant have the necessary mens rea when he committed offence? If so, it was decided in Kingston that he will be guilty and involuntary intoxication will not provide a defence. This is so even though, the defendant would not have committed the offence without the intoxication lowering his resistance to committing the offence

Question 71

What happened in the case of Kingston?

Answer 71

Defendant’s coffee was drugged by someone who wanted to blackmail him. He was then shown a 15 year old boy who was asleep and invited to abuse him. The defendant did so and was photographed by the blackmailer. The House of Lords upheld his conviction for indecent assault. They held that is a defendant had formed the mens rea for an offence then the involuntary intoxication was not a defence

Question 72

What happens when there is involuntary intoxication and the defendant did not have the necessary intent?

Answer 72

He will not be guilty. He has no mens rea so cannot be guilty of a specific intent offence. Neither can he be guilty of a basic intent offence. This is because the defendant has not been reckless in getting intoxicated, eg in Hardie where defendant took valium tablets not knowing they could make his behaviour unpredictable

Question 73

What are the problems with the law on intoxication?

Answer 73

Some areas of the law on intoxication appear to be contrary to the normal rules on mens rea and actus reus, specific intent/basic intent, involuntary intoxication, and public policy issues

Question 74

How do some areas of the law on intoxication appear to be contrary to the normal rules on mens rea and actus reus?

Answer 74

Eg decision in DPP v Majewski where defendant is guilty of basic intent offence as getting drunk was a ‘reckless course of conduct’, ignoring actus reus and mens rea must coincide. Also when being reckless in getting intoxicated you know there is a general risk of doing something stupid but you don’t know you will actually commit an offence however normally with recklessness it has to be proved that defendant knew there was a risk of the specific offence being committed. The law commission looked over the Majewski rule and said it was arbitrary and unfair but their proposals for change were criticised. The alternative is to follow Richardson and Irwin which is fairer but there are problems as it’s difficult to know what a particular defendant would have realised if sober

Question 75

How is specific intent/basic intent a problem with the law on intoxication?

Answer 75

Where a defendant is charged with murder or s18 assault, intoxication can be used as a defence, but as it isn’t a defence to basic intent offences, it can’t be used if charged with lower level offences. Some crimes have fall back offences eg murder to manslaughter, but others don’t and so eg if intoxication is successful for theft, they are not guilty of anything

Question 76

How is intoxication a problem with the law on intoxication?

Answer 76

The decision in Kingston makes a defendant guilty if he formed the necessary mens rea. This ignores the fact that the defendant was not to blame for the intoxication. Such a defendant would be not guilty of a basic intent offence where the prosecution on recklessness (as in Hardie). This appears to be unfair to defendants in Kingston’s situation

Question 77

What are public policy issues?

Answer 77

Many contradictions in the law on intoxication have arisen because the law in this area is largely policy based. This is because of two main reasons 1) intoxication is a major factor in commission of many crimes, and 2) there is a need to balance rights of the defendant and rights of the victim. Public policy can be clearly seen in the law on self defence, defence of another and prevention of crime. Parliament has enacted Criminal Justice and Immigration Act that the defendant cannot rely on ‘any mistaken belief attributable to intoxication that was voluntarily induced’ when claiming any of these defences

Question 78

What does self-defence/defence of another cover?

Answer 78

It covers not only actions needed to defend oneself from an attack, but also actions taken to defend another

Question 79

What type of law is self defence/defence of another?

Answer 79

They are common law defences which justify the defendant’s actions. In addition there is a statutory defence of prevention of crime under s3(1) Criminal Law Act 1967

Question 80

What does s3(1) Criminal Law Act 1967 state?

Answer 80

“A person may use such force as is reasonable in the circumstances in the prevention of crime”

Question 81

What are the two main points to be decided for self defence/defence of another?

Answer 81

Was the force necessary? If it was, then was the force used reasonable in the circumstances?

Question 82

What does section 6A of the Criminal Justice and Immigration Act 2008 state?

Answer 82

An amendment added by s148 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 makes it clear that a person is not under a duty to retreat when acting for a legitimate purpose. But the possibility that the person could have retreated is to be considered as a relevant factor in deciding whether the degree of force was necessary

Question 83

What does the Case of Hussain and another show?

Answer 83

If the attacker is running away, then it is highly unlikely that force will be considered necessary (Defendants chased and beat up (GBH) someone who had broken into the house and couldn’t use self defence as all danger from the victims original attack was clearly over)

Question 84

How is the first point-was the force necessary-decided?

Answer 84

It is a question for the jury and in many cases it is straightforward/obvious. It depends on the circumstances in each case

Question 85

What happens where the defendant has made a mistake about what is happening and used force in self defence?

Answer 85

It is more difficult to decide if the force was necessary. Where the defendant makes a genuine mistake the jury have to decide whether forces was necessary in the circumstances that the defendant honestly believed existed. If they decide that the belief was genuine, then the defence may be allowed even if there was no actual threat in real life

Question 86

What was decided in the case of Williams?

Answer 86

It was ruled that the defendant should be judged according to his genuine mistaken view of the facts, regardless of whether this mistake was reasonable or unreasonable. This allows Williams to use the defence of protection of others

Question 87

What does section 76 of the Criminal Justice and Immigration Act 2008 say?

Answer 87

It puts the decision in Williams onto a statutory footing. It states: “The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be…If D claims to have held a particular belief as regards the existence of any circumstances-(a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it: but (b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection 3, whether or not-(i) it was mistaken, or (ii) (if it was mistaken) the mistake was a reasonable one to have made”

Question 88

What does section 76 (5) of the Criminal Justice and Immigration Act 2008 say?

Answer 88

It makes it clear that a defendant cannot rely on any mistaken belief if that mistake is made due to the defendant being voluntarily intoxicated

Question 89

Where is the degree of force that can be used in self defence/defence of another stated?

Answer 89

S76 (7) of the Criminal Justice and Immigration Act 2008: “(a) that a person acting for a legitimate purpose may not be able to weight to a nicety the exact measure of any necessary action; and (b) that evidence of a person’s having only done what the person honestly, and instinctively though was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that purpose for that purpose”

Question 90

What does s76 (7) of the Criminal Justice and Immigration Act 2008 allow for?

Answer 90

It allows for the fact that a person who is facing an attack by another is under stress and cannot be expected to calculate the exact amount of force which needs to be used in the circumstances. Just has to be evidence that the person ‘honestly and instinctively’ believed the level of force used was necessary, however if force is used after all danger is over then the defence is not available

Question 91

Which law/act relates to self defence and householder cases?

Answer 91

The Crime and Courts Act 2013 has amended s 76 of the Criminal Justice and Immigration Act 2009 to give a wider defence to householders where an intruder enters their property

Question 92

How does self defence differ in householder cases?

Answer 92

The normal rule for other cases is that the degree of force will not be regarded as reasonable if it was ‘disproportionate’. In a householder case, the law is that the degree of force will not be regarded as reasonable where it was ‘grossly disproportionate’

Question 93

What are the criteria to be a householder case?

Answer 93

The force concerned is force used by householder (D) while in or partly in a building that is a swelling; the householder (D) must not be a trespasser; the householder (D) must have believed that the other person (V) was a trespasser

Question 94

What is the law on householder cases intended to cover?

Answer 94

Situations where a burglar or other intruder enters the defendant’s dwelling. It also applies were a building has a dual purpose as a place of residence and of work, and there is an internal means of access between two parts eg a shop with an adjoining residential area

Question 95

What are the similarities between self defence in usual cases and householder cases?

Answer 95

The degree of force is measured against the circumstances as the defendant genuinely believed them to be, however drunken mistakes while voluntarily intoxicated do not allow the defence to be used

Question 96

What are the critiques of the law on self defence?

Answer 96

Is force necessary, pre-emptive strike, excessive force, relevance of defendant’s characteristics

Question 97

Why is, ‘is force necessary?’ a critique of the law on self defence?

Answer 97

It is for the jury to decide, and it is usually straightforward, but it can get difficult

Question 98

Why is ‘pre-emptive strike’ a critique of the law on self defence?

Answer 98

A point is whether a person has to wait until they are attacked before they can use force. The law appears to be clear that they can act to prevent force-it is not necessary for an attack to have started (Attorney-General’s Reference No2 of 1983 states that someone who fears an attack can make preparations to defend himself, even if the preparations involve breaches of the law

Question 99

Why is excessive force a critique of the law on self defence?

Answer 99

A major problem has been where a defendant used excessive force in self defence. If D is charged with any assault charge, then D cannot use self defence as a defence. However if D is found guilty, then the judge can take any issues of self defence into consideration when passing sentence. The real problem is when the D has been charged with murder (if D was found guilty then the judge has to impose a life sentence eg in Clegg and Martin)

Question 100

How have problems of excessive force been partly solved?

Answer 100

By changes in the law made by the Coroners and Justice Act 2009. This Act created a partial defence to murder of ‘loss of control’ which can reduce the charge to manslaughter, allowing the judge discretion is sentencing For loss of control, a qualifying trigger is that the loss was ‘attributable to D’s fear of serious violence from V against D or another person’, meaning Clegg and Martin may have been able to use this partial defence

Question 101

Why is relevance of defendant’s characteristics a critique of the law on self defence?

Answer 101

A point is whether the defendant’s characteristics can be taken into account in deciding if defendant thought that he needed to defend himself. In Martin the court of appeal held the psychiatric evidence that defendant had a condition meant that he perceived greater danger than the average person was not relevant to whether they had used reasonable force, although if it had been taken into account, the decision may have been different, however it is difficult to know whether these decisions are still effective following the passing of the Criminal Justice and Immigration Act 2008 which talks about reasonable in the circumstances, so defendant’s characteristics may be taken into account?

Question 102

What is consent?

Answer 102

It is always a defence to a common assault or battery. This is because there is no injury caused. In these circumstances the law will not interfere with people’s rights to do what they wish. However, were an injury is caused, then consent is not a defence unless the situation is one recognised as an exception to this rule on the basis of public policy

Question 103

Why, strictly speaking, is consent not a defence?

Answer 103

Since where the other person consents this means there is no offence, eg in Slingsby where the victim had consented so there was no battery or other form of assault and so the defendant was held not to be guilty of manslaughter as there had been no unlawful act

Question 104

What does the case of Tabassum demonstrate?

Answer 104

The consent must be true consent. In the case the defendant used persuasion and deception to gain consent, so the victims were not fully aware of what they were actually consenting to. The act consented to was not the act donw

Question 105

What was shown by the case of Olugboja?

Answer 105

The fact that the victim submits to the defendant’s conduct through fear does not mean the consent is real

Question 106

What is informed consent?

Answer 106

In the old case of Clarence, the courts had ruled that if a person consented to sexual intercourse there was no assault. It did not matter that V was unaware that the defendant was suffering from a sexually transmitted disease. This remained law until the case of Dica which was the first case for biological GBH, and the ruling was followed in Konzani

Question 107

What is implied consent?

Answer 107

There are situations in which the courts imply consent to minor touchings, which would otherwise be a battery. There are everyday situations in which there is a crowd of people and it is impossible not to have some contact

Question 108

What was held in the case of Wilson v Pringle?

Answer 108

It was held that the ordinary ‘jostlings’ of everyday life were not battery. Nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, a train station, a busy street; not can a person who attends a a party complain if his hand is seized in friendship etc

Question 109

How does consent play a role in contact sports?

Answer 109

When a person takes part in sport such as rugby or judo he is agreeing to the contact which is part of that sport. However, if the contact goes beyond what is allowed within the rules then it is possible for an offence to be committed, eg a rugby player consents to a tackle within the tules of the game but doesn’t consent to an opposition player stamping on his head

Question 110

What is the law on consent to minor injuries?

Answer 110

There have been arguments as to whether consent could be a defence to an offence under s47 of the OAPA. It used to be thought that consent could always be a defence where the injuries were not serious. However in Attorney General’s Reference No6 of 1980, the court of appeal held otherwise

Question 111

What was held in the Attorney Genera’s Reference No6 of 1980?

Answer 111

It is not in the public interest that people should try to cause, or should cause, each other bodily harm for no good reason. Minor struggles are another matter. So, in our judgement, it is immaterial whether the act occurs in public or private; it is an assault if ABH is intended/caused, meaning most fights will be unlawful regardless of consent

Question 112

What happened in the case of Brown?

Answer 112

The House of Lords had to decide whether consent could be a defence to offences under s47 and s20 Offences Against the Person Act 1861. All victims had consented and none had needed medical attention, but their convictions were upheld by the House of Lords

Question 113

What did the defence argue in the case of Brown?

Answer 113

They argued that the defence of consent should be allowed for s47 offences, even if it was not allowed for s20 offences. This was rejected, and Lord Templeman said “I do not consider this solution is practicable. Sado-masochistic participants have no way of foretelling the degree of bodily harm which will result from their encounters

Question 114

What has now been accepted as a result of the case of Brown?

Answer 114

It is now accepted that consent is not a defence to a s47 offence, unless the situation is one of the exceptions which have been recognised by the courts

Question 115

What exceptions have been recognised by the courts for where consent can be a defence to a s47 offence?

Answer 115

Public policy exceptions where consent is a defence to an assault charge even if injury is caused include: properly conducted games or sports, reasonable surgical interference, tattooing, body piercing, horseplay, dangerous exhibitions

Question 116

Why have these exceptions, for where consent can be used for s47 offences, been recognised by the courts?

Answer 116

Because it is seen as being in the public interest to allow consent as a defence in these situations, eg many sports could not be played if consent was not a defence. Also in surgical operations it is usually necessary to cut the patient’s skin in order to deal with their health problem

Question 117

What are the rules for contact sports, and the use of consent as a defence for s47 offences?

Answer 117

When a person takes part in a sport such as rugby or judo, he is agreeing to the contact which is part of that sport. However, if the contact goes beyond what is allowed within the rules then it is possible for an offence to be committed. As already state, a rugby player consents to a tackle within the game, but he does not consent to an opposition player stamping on his head

Question 118

What was said in the case of Barnes?

Answer 118

The breach of the rules of the sport must be a serious one. The Court of Appeal said in the case that where an injury is caused during a match, then a criminal prosecution should be reserved for those situations where the conduct was sufficiently grave to be properly categorised as criminal

Question 119

What actually happened in the case of Barnes?

Answer 119

Defendant made a late tackle on victim during an amateur football match. Victim suffered a serious leg injury. Defendant’s conviction under s20 of the OAPA 1861 was quashed

Question 120

What did the court of appeal say the starting point was for possible offences in contact sport?

Answer 120

The starting point was the fact that most organised sports had their particular standards of conduct

Question 121

What did the court of appeal note about contact sports and criminal prosecution?

Answer 121

They pointed out that there was the possibility of an injured player obtaining damages in a civil action. A criminal prosecution should be reserved for situations where the conduct was sufficiently grave to be properly categorised as criminal. In all contact sports, the participants impliedly consent to the risk of certain levels of harm

Question 122

What points did the court of appeal set out in regards to consent and contact sports?

Answer 122

Consent is not normally available as a defence where there is bodily harm but sporting activities are one of the exceptions. The exceptions are based on public policy. In contact sports, conduct that goes beyond what a player can reasonably be regarded as having accepted by taking part is not covered by the defence of consent. However in a sport in which bodily contact is a commonplace part of the game, the players consent to such contact, even if through an unfortunate accident serious injury may result

Question 123

In deciding whether conduct in the course of sport is criminal or not, what factors should be considered?

Answer 123

Intentional infliction of injury will always be criminal. For reckless infliction of injury the question is did the injury occur during actual play or in a moment of temper r over excitement when play has ceased. ‘Off the ball’ injuries are more likely to be criminal. The fact that the play is within the rules and practice of the game and does not go beyond it will be a firm indication that what happened is not criminal

Question 124

What other things are relevant in determining whether the defendant’s actions went beyond a breach of the rules and became a criminal offence?

Answer 124

The type of sport, the level at which it is played, the nature of the act, the degree of force used, the extent of the risk of injury and the defendant’s state of mind

Question 125

How does tattooing come into the law on consent?

Answer 125

Tattooing is accepted body adornment. It is accepted that people can consent to it

Question 126

What happened in the case of Wilson?

Answer 126

Defendant branded his initials on is wife with a hot knife at her request, but had to seek medical attention for the burns caused by her husband. He was charged under s47 OAPA 1861

Question 127

What was the decision made in the case of Wilson?

Answer 127

The court of appeal held that the branding was not an unlawful act, even though it had caused injury. It was not in the public interest that such consensual behaviour should be criminalised. This was a situation of ‘personal adornment’, like having a tattoo

Question 128

What was the important point made in the case of Wilson?

Answer 128

That the act was for body adornment. The court compared it to piercing of nose or tongues for the purposes of inserting decorative jewellery. They also pointed out that the husband did not have any aggressive intent. It was for these reasons that consent was allowed as a defence

Question 129

What was held by the court of appeal in the case of Jones?

Answer 129

Held that consent could be a defence to an assault charge where the activity the defendant’s and victim had engaged in was ‘rough and undisciplined horseplay’

Question 130

What happened in the case of Jones?

Answer 130

Two schoolboys aged 14 and 15 were tossed into the air by older youths. One suffered a broken arm and the other a ruptured spleen. Defendants claimed they believed the victims consented to the activity. Court of appeal quashed their convictions for offences under s20 OAPA 1861 because the judge had not allowed the issue of mistaken belief in consent to go to the jury. The court held that a genuine mistaken belief in consent to ‘rough and undisciplined horseplay’ could be a defence, even if that belief was unreasonable

Question 131

Why is the exception of horseplay harder to understand in the context of public interest?

Answer 131

It doesn’t seem that different from the youths agreeing to a fight in the case of Attorney-General’s Reference No 6 of 1980. However a distinguishing feature is that those engaging in such behaviour do not usually intend to cause injury, whereas when two people agree to fight they intent to cause each other injury

Question 132

What happens when there is mistaken belief in consent?

Answer 132

Where the defendant genuinely, but mistakenly, believes that the victim is consenting, then there is a defence to an assault. In this are the decisions of the courts are even more difficult to reconcile with the general public as it isn’t in public interest that people should try to, or should cause, bodily harm for no good reason-seen in the case of Jones

Question 133

What happened in the case of Aitken?

Answer 133

RAF officers lured white spirit over a colleague who was wearing a fire resistant flying suit, but who was asleep and drink at the time this was done. They then set the suit in fire, and he suffered 35% burns. Their convictions under s20 were quashed as the mistaken belief in the victims consent should have been left to the jury

Question 134

What was held in Richardson and Irwin?

Answer 134

Held that a drunken mistake that the victim was consenting to horseplay could be a defence to a charge under s 20

Question 135

What happened in the case of Richardson and Irwin?

Answer 135

The defendants, who were students, had often indulged in horseplay. On this occasion they had drink about five pints of larger. They dropped victim from balcony causing serious injury. Court is appeal allowed their appeals as their belief in victims consent should have been considered

Question 136

Why is there a need for a defence of consent?

Answer 136

To allow contact sports-“properly conducted games and sports”. Exceptions to when consent can be used are based on public policy. Also it needs to be allowed to allow medical procedures (“reasonable surgical interference”) it would be criminal to do surgery on someone who refused to give consent however when unconscious and unable to ask anyone else, surgeries can go ahead without actual consent

Question 137

What are the problems in the law on consent?

Answer 137

Difficult to reconcile the decisions by the courts in cases of consent (Brown and Wilson are similar cases but one allowed consent and one didn’t)maybe to do with moral values on heterosexuality and homosexuality? Also contradictory decisions in heterosexual cases such as Emmett and Wilson-inconsistencies in the law. Horseplay exceptions=further inconsistencies when contrasted with cases such as Brown.

Question 138

What is a specific problem with consent and sexual offences?

Answer 138

There specific problems for offences under the Sexual Offences Act 2003 as the defence of consent is not always available. One such offence of section 5 of the Act covers rape of a minor under age 13 (who are never presumed to be able to consent, and the offence is of strict liability). This means if a 15 year old boy consensually slept with a girl he thought was the same age but was actually 12, he would be guilty of this offence. This situation occurred in G, who appealed saying his human rights had been breached, but this was rejected by a majority of three to two judges-though two judges disagreed shows how difficult this area of law is

Question 139

What is the problem with consent and euthanasia?

Answer 139

No one can consent to their own death, meaning if a terminally ill patient wishes to die, they must take their own life. If anyone else does this, it is murder. Even if anyone assists them to take their own life, that person is guilty of assisting suicide, which was decided in the case of R (on the application of Pretty) v DPP, and covered again in R (on the application of Purdy) v DPP

Question 140

What happened in the case of R (on the application of Pretty v DPP)?

Answer 140

Mrs Pretty suffered with motor neurone disease. As a result she was becoming more and more incapable of movement. She knew she would eventually suffocate to death and wanted her husband to be able assist her to take her own life when she felt her life had become intolerable. She applied to the courts for a judicial declaration that, if her husband assisted her to commit suicide, that he would not be prosecuted. The House of Lords refused he declaration on the basis that any assistance of the husband would be a criminal act

Question 141

What happened in the case of R (on the application of Purdy) v DPP?

Answer 141

Mrs Purdy suffered from multiple sclerosis which has no known cure, and she knew she would gradually become severely disabled. She wanted to go to a country where assisted suicide was lawful for when she felt her life had become unbearable but would need help to travel and her husband was willing to help. The DPP issued a code which gave almost no guidance on her situation so she asked the DPP to issue guidance on the point but they refused. She applied for judicial review to make the DPP set out guidance on when prosecution for aiding and abetting suicide may happen, and the House of Lords held that the DPP had to issue guidance on this point

Question 142

What have the decisions in R v DPP (Pretty) and R v DPP (Purdy) led to?

Answer 142

These decisions lead to the situation where the law recognises people are entitled to take their own life and do not commit any crime by doing so. But in cases where the person who wishes to commit suicide is physically incapable of doing it, they may be denied their wishes as anyone who helps them could be prosecuted for the offence of aiding and abetting suicide

Question 143

What guidelines did the DPP give on aiding and abetting suicide?

Answer 143

The guidelines issued by the DPP as to when a prosecution is likely to be brought are still not that clear. This leaves anyone who helps another person to travel abroad in order to commit suicide at risk of prosecution. Prior to 1961 it was also a criminal offence to commit suicide, so that if the person was not successful, they would be prosecuted for attempting to commit suicide