Flashcards
CONSENT vs INTOXICATION
Cards in this deck (12)
- 1CONSENTGreg Pushed Polly Onto Sandra
- 2GENERAL RULE?- available for battery but not where bodily harm caused (AG REF (No6 1980)(1981))
- however, case also laid down number of exceptions also added to in BROWN e.g...
- unfortunately, little consistency regarding what conduct should be on list of exceptions
- e.g. defence not given in BROWN where harm caused wasn't serious, but was allowed in JONES which involved severe injuries as was regarded 'horseplay' even though doubtful was any real consent at all
- this would appear to conflict with public policy of protecting people from harm - 3PUBLIC POLICY ISSUES?- the defence has to balance conflicting aims of allowing personal autonomy whilst preventing harm
- to do this, courts claim to weigh social benefits of activity against possible degree of harm caused
- this is why consent is defence in relation to contact sports - possible harm is outweighed by health and social benefit - 4POSSIBLE JUDICIAL BIAS?- comparing cases WILSON and BROWN has led to claims of bias against homosexuals
- this is because the hetero defendant in W was allowed defence, but homo defendants in B weren't
- however, conviction of defendant in EMMET for consensual hetero sadomasochism suggests no such bias exists
-it would seem therefore, that courts disapprove of pain for sexual gratification but will accept if there's another purpose, such as 'personal adornment' as in WILSON (branding of skin) - 5OWN DEATH?-also a problem that no-one can consent to own death
-law does allow people to commit suicide, so if term. ill patient wishes to die, can take own life
- but in cases where person wishing to commit suicide is physically incapable of doing it, may be denied their wishes as anyone who helps could be guilty of assisted suicide (PRETTY) - 6SO..?-arguably, Parliament should legislate on availability of the defence of consent
- however, could be argued that judges are in better position to proceed on case by case basis rather than attempting to lay down any general principles - 7INTOXICATION?Mandy Pulled Fred Back
- 8MAIN PRINCIPLE?- fundamental principle of intox defence is that it only applies if intox has negated the MR (KINGSTON)
- this means lowered inhibitions as result of intox is not defence as 'drunken intent is an intent nevertheless'
- this can be justified for VI as D still responsible to some extent for their conduct
- however, can be argued unjust when applied to II such as in KINGSTON (where drink was deliberately spiked), where conviction was upheld by HOL - 9PUBLIC POLICY ISSUES?- it's a basic principle in criminal law that no one should be convicted of crime w/o MR
- yet, some people may commit the AR of offence whilst so intoxicated they can't form MR
- therefore, law has to develop rules that balance this principle against public policy of protecting citizens from drunken violence
- however, defence is wholly common law and its piecemeal development has been at times inconsistent and incoherent - 10FALL BACK OFFENCES?- for some 'SI' offences there is similar fall back offence of 'BI' of which D can be convicted if MR negated
- e.g. those charged w/ murder can be convicted of manslaughter (LIPMAN)
- unfortunately, no coherent system of fall back offences + whether one even exists depends of what Ds charged w/
- e.g. for offences such as theft/robbery, no fall back offence so intox may be complete defence
- this demonstrates adhoc and piecemeal nature of defence and need for rationalisation - 11'BASIC - INTENT'?- intox can be defence to crimes of specific intent but not basic (MAJEWSKI)
- however, reclassfication of crimes of recklessness as crimes of 'basic intent' just for purposes of intox makes no sense
- although aim of rules sensible in that those who are reckless about their actions should usually be responsible, would be alot clearer if Parliament implemented... - 12LAW COMMISSION REFORM 2009?- introduce 'integral fault' elements that must be proved + abolish S + B intent
- if intox negates these, D cannot be convicted <-- courts then wouldn't have to decide if defence applies on case by case basis
- for crimes w/o integral fault elements, MAJEWSKI rules would apply, upholding the principle that law normally considers you responsible for own intoxicated behaviour
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- Flashcards on CONSENT vs INTOXICATION, created by Maisie Carroll on 13/06/2017.
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- Maisie Carroll
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