General Defences

General Defences

1. Duress

   • Threats (Must be of death or personal Injury (Hudson and Taylor (1971)
     • Threat to damage or destroy property is insuffucent (M'Growther)
     • Threat can be directed at defendants wife and Children (Ortiz (1986)
     • THreat may not need to be immediate but perhaps after an inteval (Hudson & Taylor (1971)
     • Threat must follow immediately or almost immediately ( Hasan (2005)

2. Mistake

   • Two types: Mistakes of Law and of Fact
   • DPP v Morgan(1976) Honest Belief clearly negates intent, reasonableness or otherwise of that belief can only be evidence that the beliefntent was
     • Mistake of fact must be honestly made
     • Reasonableness of the mistake is used only as evidence
     • Williams (1987) honest belief in Unreasonable mistake will be irrelevant so far as belief was held
   • Ignorance of the law is not an excuse
     • Esop (1836) foreign individuals who commit an offence in england thinking that the act is perfectly legal will be prosecuted

3. Self Defence

   • s3(1) of the Criminal Law Act 1967: A person may use such force as is reasonable in the circumstances in the prevention of a crime, or in effecting or
     • assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large
   • Any evidence of self defence must be left to a jury
   • Force
     • The force must be necessary
     • The defendant must believe it is necessary
     • Defendant may be genuinely mistaken as to the force required
     • Rashford (2005) a person only acts in self defence if in all the circumstances he honestly believes that it is necessary for him to defend himself and
       • if the amount of force that he uses is reasonable
     • A Pre emptive strike is acceptable (Beckford (1988)
     • Any force used must be reasonable from the jury's perspective
       • Test is subjective (Shannon (1980) and Whyte (1987)
       • If a person did what he thought was insticntively necessary tht woud be the most potent evidence that only reasonable defensive action had been taken
         • Pallmer (1971)
     • Where the jury is satisfied that the mistake as to force was caused by intoxication, the defence must fail (O'Grady (1987)
     • If force is grossly excessive and disproportionate, then the defence will fail (Clegg (1995)

4. Consent

   • Must be real (full capacity and understanding)
     • Invalid if victim lacks capacity - Howard (1965)
     • Victim must be able to understand the act consented to ( Burrel v Harmer (1967))
   • Victim must not be decieved
     • Mobilio (1991) if a doctor is performing an examination for sexual gratification, the nature and quality of the act remains the same so consent valid
     • Tabassum (2000) women were consenting to breast examination for medical purposes meaning they has been deceived as to the quality of the act
       • when consent is obtained by deception for either element, consent is invalid
   • Consent must be fully informed
     • Dica (2004) Victim no longer consents to infected intercourse unless she is informed of the infeection and consents thereafter.
       • If defendant knows, he has mens rea for recklessness. If not, he will have no mens rea for GBH (Williams (2003)
   • Consent is often implied by law
     • Brown (1994) Line of consent drawn between battery and ABH
     • Sport: criminal prosecutions in sport can onle be for acts whose conduct is sufficiently grave to be categorised as criminal
       • Jury would need to consider whether conduct was obviously late and/or violent
     • Surgery: Patient must consent (Corbett v Corbett (1971) if the surgery is done without just cause or excuse, it is always unlawful even if consented 2
       • bravery v Bravery (1954)
     • Horseplay: other members must genuinely believe that the friend is consenting (Aitken & Others (1992)
     • Sex: assault during sex will be prosecuted - despite consent- if the harm intended is more than transient or trifling injury (Boyea (1992)
     • Consent is a valid defence for tattoing (Brown (1994)
       • Branding is to be considering same as tattooing even if it is tecnhically ABH ( Wilson (1997)
   • Burden of proof for proving lack of rests on prosecution - Donovan (1934)

5. Insanity

   • Available as a defence to any crime (Horseferry Rd Magistrates Court (1996)
   • Whether insnaity can be raised is decided by the judge after reading the evidence
   • s.1 Criminal Procedure Act (1991) Two registered edical practioners must provide evidence that the defendant meets the legal definition of insantiy
   • Judge has discretion as to sentencing (s.5 Crimiinal Procedure Act (1965) Hospital Order, Supervision Order, Order for absolute discharge
   • Murder conviction requires indefinite hospitilisation
   • 'the party accused was laboring under such a defect of reason from disease of the mind, as to not know the nature and quality of the act he was doing
     • or if did know it, that he did not know that he was doing what he was doing' (M'naaghten (1843)
       • Defect of reason
         • A person must be deprived of his powers of reasoning (Clarke (1972)
           • Does not include momentary lapses of judgement, confusion or forgetfulness
       • Disease of the mind refers to mental faculties not brain (Kemp (1957)
         • must come from internal factors so alcohol is external and not insanity (Quick 1957)
         • Henessey (1989) Diabetes is an internal factor thus a disease of the mind
         • Burgess (1991) Sleepwalking is an internal factor
       • Wrong Means illegal (windle (1952) but not morally wrong (2007)
   • Balance of probabilities to prove insanity

6. Automatism

   • Bratty (1963)
     • An act done by the muscles
     • No control of the mind
     • Spasm, reflex, action or convulsion
     • Concussion or sleep walking
     • not conscious
   • If the defendant wishes to raise insanity as a defence, he must provide evidence of it. (Hill v Baxter (1958)
     • if he can operate his body to a degree, the defence is not made out. (Issit (1978)
     • Actions must be 'wholly uncontrolled and uninitiated by any function or will' Watmore v Jenkins (1962)
     • Avoiding danger does not count (Broome v Parkins (1987)
     • If the defendant is aware he is about to suffer automatism and does nothing about it, he is responsible for the outcome (Kay v Butterworth (1945)
     • Reflex action is no defence (Ryan v R (1967)