Defences

Defences

1. Automatism

   • External Factors
   • A/R is not voluntary e.g. Whoolley
   • Lord Denning in Bratty "Defence limited to reflex action as a result of spasms or acts committed under a state of being unconscious or having convulsions"
   • **Diabetes** - Quick = Could Plead Automatism as due to external factors taking too much Insulin, Hennessy = Could plead Insanity due to internal factors not taking enough insulin

2. Consent

   • Attorney General Reference (No 6 of 1980) Consent always a defence to assault & battery not s.47, s.20 & s.18 unless a public policy consideration applies
     • Body Adjornment - Now accepted by the courts (R v Wilson)
     • Rough or Undisciplined Horseplay - Where D genuinely mistakenly believed V was consenting (Jones)
     • Sports or Games - If injury happens within general rules of the game, consent allowed. Not allowed if Breach a serious one (Barnes)
   • From Olugboja there is difference between Mere Submission & Implied Consent ultimately for the jury to decide
   • From Wilson v Pringle there is implied consent to everyday jostlings which would either be a battery, everyday Jostlings not a battery

3. Insanity

   • Established in the McNaughton Rules, "it must be established at the time of the act the defendant was labouring under such a defect of reason as to not know - 1) Nature & Quality of the act 2) If they did know nature & quality they didn't know it was legally wrong"
   • There are three key elements
     • 1) Defect of Reason - Complete loss of the power of reasoning, From Clarke this must be more than absentmindedness or confusion
     • 2) Disease of The Mind - Mental or Physical Disease (Kemp) From Sullivan the meaning of Insanity in law is not the same as the medical meaning
     • 3) Must not know the Nature & Quality or know that it was wrong (Kemp & Hennessy) Wrong in the sense that they didn't know it was legally wrong (Windle)

4. Intoxication

   • Intoxication covers excessive drinking & drug taking
   • 1) Voluntary Intoxication (Basic Intent Crimes) - No Defences (DPP v Majewski)
     • EXCEPTION: (Richardson v Irwin) Being intoxicated does not automatically make D guilty, if there wouldn't have been a risk when sober, no risk when intoxicated. Jury decide if D would have realised the risk had he not been intoxicated
   • 2) Voluntary Intoxication (Specific Intent Crimes) - Defence allowed, intoxication negates the Mens Rea
     • EXCEPTION: If D does have the MR for specific intent even though he intoxicated (Gallagher)
   • 3) Involuntary Intoxication (Basic & Specific Intent Crimes) - Defence allowed, D was not reckless when becoming intoxicated as he did not know (Pearson)
     • EXCEPTION: D has the MR even if involuntary intoxicated, will be guilty (Kingston)

5. Self Defence

   • Tested subjectively
   • S.3 Criminal Law Act outlines 3 criteria: 1) Amount of force used to defend oneself must be reasonable 2) Danger must be present & immediate 3) If force used as revenge or retaliation, no defence
   • It is for the jury to decide whether they acted 'Honestly' & 'Instinctively'
   • Where D makes a genuine mistake, the jury have to decide whether the force was necessary, Did D honestly believe he was under threat. Even if he made a poor decision, defence can still be used. Jury will take into account circumstances when deciding whether mistake was genuine (Williams (Gladstone))