#17256 - General Defences - GDL Criminal Law

Two broad types

• Justificatory defences – justification for the action.

• Excuse Defences – some excuse given to the actor.

Balance of two policies: Personal autonomy vs Paternalism.

Two requirements:

• 1) V must consent

• 2) D must honestly believe that V consents.

A-G’s Ref. No.6 of 1980 [1981] – 17 and 18 yo decided to settle dispute with a fight. Both consented.

• Lord Lane: “Most fights will be unlawful regardless of consent.”

• Unless it comes within established exceptions:

  • Properly conducted games and sports

  • Lawful chastisement of children

  • Reasonable surgical interference

  • Dangerous exhibitions

  • Cosmetic enhancements

  • Horseplay

  • Where it’s justified in the exercising of a legal right or it is in the public interest.

Invalid Consent:

• R v Brown [1994] – Group of Ds took part in sadomasochistic sexual rituals (molten candle wax on nipples of one party, nailing scrotum to wall, use of a cheese grater), in privacy of homes. Article 8 challenge failed in ECtHR.

  • Held that this was unlawful violence and therefore consent was irrelevant to the s.47 and s.20 harm.

  • Lord Templeman: “Society is entitled and bound to protect itself against a cult of violence.”

  • Lord Mustill (dissenting): criminal law is not for this. No public interest.

• R v Emmett [1999] - Sadomasochistic burning of the wife’s breast with lighter fluid. Level of harm meant that it was not possible to consent.

• R v BM[2018] – consensual body modifications (bifurcation of tongue, removal of nipple etc). Burnett LJ was not willing to create a new public policy expectation for this bodily modification.

  • No social benefit, GBH cannot be permitted without good cause, high risk of further harm (through infection etc.)

Valid Consent:

• R v Wilson [1996] The appellant branded his initials on his wife’s buttocks with a hot knife. She had asked her to.

  • CA, Russell LJ: The wife’s consent was valid. The branding was more akin to tattooing and cosmetic enhancement that had gone wrong.

• R v Slingsby (1995) – man scratched woman’s vagina with signet ring during sex. Suffered internal bleeding and died of septicaemia. As neither party had considered the possibility of ABH the consent was valid.

• R v Meachen [2006] – consented to broom in anus. Where consent given to battery and develops into more serious injury consent still operates.

• R v Dica [2004] – reckless transmission of HIV was not criminal provided there is informed consent as to the risk taken.

• R v Konzani [2005] – D had HIV. Concealed from V. V discovered D had HIV from another source. Held that this was valid consent.

  • Alan Reed& Cooper disagrees – this is creating a defence for a wilfully committed crime.

Sport and Consent:

• R v Barnes [2005] – D lunged at V late and from behind in penalty area. Convicted under s.20. Jury asked to consider the event in context (type of sport, level of play, force used, Ds state of mind, heat of the moment etc.).

Consent must be informed, deception will negate consent:

• Deception as to the identity of D:

  • R v Richardson [1998] – Dentist who had been suspended operated on various patients. They consented to procedures but claimed they wouldn’t if they knew he had been suspended. Held that the deception was not as to his identity therefore consent was valid.

• Deception as to the nature and quality of the act:

  • R v Tabessum [2000] – D pretended to be a medical examiner carrying out breast exams. In fact doing it for sexual gratification. This negated consent.

  • R v Williams [1923] – choir master persuaded girl that sexual acts were in fact medical operations that would improve her singing.

• Consent is given its ordinary meaning

  • R v Olugboja [1982] – V took of her own trousers after V said he was going to rape her. Clearly not consent but fear of violence. Jury should apply their good sense, experience, and knowledge of human nature and modern behavior to the question of consent.

Homophobia in Consent:

• Clarkson and Keating: we do not allow much in the way of homosexual sadomasochistic activity but we do allow it elsewhere.

  • R v Jones [1987] – schoolboy birthday celebration, throwing birthday boy in the air, victim suffered severe spinal injuries. Held that provided no intent to injure ‘horseplay’ can be consented to.

  • R v Aitkin (1992) - RAF training and an initiation ceremony, victim was set on fire as part of the initiation. This was viewed as a good manly diversion.

Justificatory defence.

Common law principles codified in S.76 Criminal Justice and Immigration Act 2008

Two elements:

• 1) D genuinely believed the use of force is necessary (the trigger)

• 2) D’s use of force was reasonable (the response)

Burden of proof to disprove the defence is on the prosecution

The Trigger:

• Force can be used to prevent an immanent attack

  • Devlin v Armstrong [1971] – D threw stones at police during a riot, argued she thought police were about to attack. Held pre-emptive strikes are allowed but only if the attack is imminent.

  • AG’s Ref No.2 of 1983 - Individual to made and possessed a petrol bomb in the house to protect his family and property from immanent attack.

    • Held this was justifiable, but must desist once the threat has gone.

• There is not a general duty to retreat in law

  • R v Bird [1985] – D in an argument and punched ex-boyfriend. Held that no duty to retreat.

• Can use reasonable force to prevent a crime (s.3 Criminal Law Act 1967)

  • R v Jones (Margaret) [2006] – D cut wire on US military base to protest the war. Argued they were preventing international crime by UK & US forces. Rejected by HoL as only domestic crime is covered.

• Can use force if honestly and genuinely believes its necessary, even if this belief is mistaken

  • R v Gladstone Williams (1984) – D saw youth being assaulted. V had seen youth mug old lady. Fight ensued.

    • Codified in ss.76(3)-(4).

  • R v Beckford [1988] – Police officer received a report V was terrorising mother. Saw man run with what looked like firearm in hand. Shot and killed V.

• Drunken mistaken belief does not succeed (s.76(5))

  • R v Hatton [2005] – 20 pints of beer. V pretended to be a member of SAS and attacked him with a stick. Believing this to be a sword he killed the man. Self defence failed.

The Response:

• An objective test, but judged according to the facts as D understood them in the heat of the moment.

  • AG’s Ref for NI (No. 1 of 1975) – Soldier in NI shot an unarmed man running away. Reasonableness of the force is a question for jury.

  • R v Owino [1995] – D convicted of assaulting his wife. Argued his wife was about to assault him – this proved to be mistaken but D was still entitled to rely on it.

    • Have the benefit of mistaken belief.

• Recognise that people may act in heat of moment unable to weigh niceties of a measure (s.76(7)(a) CJIA 2008)

  • Palmer v R – D was being chased after stealing cannabis. Shot at pursuers killing one.

• If excessive force is used there is no defence (No halfway house (though there is one in Australia).

  • R v Clegg [1995] – soldier in NI killed a passenger in a car who he believed to be a terrorist, driving at barricade at speed. The final shot however was fired as the car was driving away, this was the fatal one.

    • Excessive force as fired after the threat had passed. HoL held that while they would approve of a halfway house, we do not currently have one, and any such change must come from Parliament.

    • NB Clegg later released due to new ballistic evidence forcing the conviction to be overturned.

  • R v Martin [2002] – lived alone in isolated farm. Two burglars broke in. D fired indiscriminately into the dark killing 16yo. Slef defence failed as excessive force.

    • Eventually released on DR (paranoid personality disorder).

• Householder law changed under S.43 Crime and Courts Act 2013 – householders can use ‘disproportionate’ force against intruders.

  • This is a two part test (Collins v SoS Justice [2017]):

    • i) Was the force grossly disproportionate? If yes, then defence fails. If no, then:

    • ii) Was the force reasonable?

  • Cannot use grossly disproportionate force

    • R v Ray [2017] – if the jury believed the use of force was grossly disproportionate, then the degree of force used was unreasonable and the defence would not be available.

  • Applies to all lawful occupants of the property (not just the owner)

    • R v Day [2015] student who was visiting house as a guest pushed an unwelcome caller out of the room she occupied. Could rely on householder version of defence.

  • Still not available for self-induced intoxication.

Two views:

• Fletcher: concession to human frailty

• Stephen: utilitarian objections, a person under duress ought at the moment of duress not have relief that the law will be on their side.

  • It is at the moment when temptation to crime is strongest that the law should speak most clearly and emphatically to the contrary.

Definition of Duress

• Lord Bingham in Hasan [2005] – D pressed to commit burglary under threat of harm to his family. Seven elements

  • 1) Duress does not provide a defence to murder, attempted murder, and some forms of treason.

  • 2) The threat relied on must be to cause death or serious injury. Nothing less suffices.

  • 3) The threat has to be directed against the defendant themselves or their immediate family or someone close to them or someone for whom the defendant would regard themselves as responsible.

  • 4) D’s perception of the threat is to be judged objectively with reference to the reasonableness of the defendant’s perceptions and their conduct.

  • 5) The...