Defences Question For A Level Paper 03

Defences Question For A Level Paper 03

1. Insanity

2. Automatism

3. Intoxication

   • Covers alcohol drugs and other substances - does .not provide a defence as such but is relevant as to whether or not D has required Mens Rea
   • Depends on whether intoxication was voluntary or involuntary
     • Depends whether offence was SPECIFIC or BASIC INTENT
       • Specific are those that require specific intention murder and s18 OAPA. Basic intent are those for which recklessness is sufficient.  Manslaughter, s 20 and s47 OAPA and assault and battery.
       • Voluntary intoxication can negate the mens rea
         • Sheehan and Moore (1975) so intoxicated had not formed the mens rea.  Threw petrol over tramp. If has mens rea then guilty.  Drunken intent is still intent AG for Northern ireland v Gallagher (1963)
         • Voluntary and basic intent - if offence is basic intent then intoxication is no defence
           • Majweski (1976) Richardson and Irwin (1999) should harsh line that getting into intoxicated state "It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea in assault cases.
           • Involuntary Intoxication
             • Kingston (1994) Did the defendant have the necessary mens rea when he commited offence. 
   • Problems with intoxication defence
     • In some areas law on intoxication contrary to normal mens rea and actus reus. Especially that the two must coincide
       • When getting intoxicated has no idea they will commit offence - reckless normally has to prove D knew there was a risk of offence being commited

4. Self Defence

   • 3 (1) Criminal Law Act  1967   "a person may use such force as is reasonable in the circumstances in the prevention of a crime"
   • Was use of force necessary? Was the force used reasonable in circumstances?
     • Section 6 A Criminal Justice and Immigration Act 2008 makes it clear there is not duty to retreat when acting for legitimate purpose>  But possibility could have retreated needs to be considered - if attacker is running away then not necessary. Hussain and another (2010)
     • Necessity is a matter for jury to decide
       • Mistaken use of force in self defence
         • Genuine mistake jury have to decide if force necessary and D honestly believed it was in circumstances Williams (1987)
         • Drunken mistake
           • Section 76 (5) of Criminal Justice and Immigration Act 2009 makes it clear self defence and mistaken belief not allowed for voluntary intoxication. 
           • Degree of force
             • Clarified in 76 (7) of Criminal Justice and Immigration Act 2008 "(a) that a person acting for a legitimate purpose may not be able to weigh 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 thought was necessary for a legitimate purpose constitutes strong evidence that the only reasonable action was taken by that person for that purpose. 
     • Householder Cases
       • Crime and Courts Act 2013 has given wider scope for when intruder enters property
         • Will be considered was force "grossly disproprtionate"
           • To be a householder case 1/ the force concerned is the force used by D while in or partly in a building that is a dwelling. 2/  D must not be a trespasser 3/  D must have believed V to be a trespasser
     • Problems
       • Is force necessary? Question for jury
         • Prmr-tive Strike
           • Does a person wait to be attacked.  Can act to prevent - appears sensible.  Can make preparations to defend even if these involve breaches of the law. Attorney-General's Reference (No2 of 1983) (1984)
           • Excessive Force
             • Clegg (1995) Martin (Anthony) (2002) If murder takes place partial defence of "loss of control" available.  Reduces charge to manslaughter.
             • Relevance of D's Characteristics
               • Difficult to know how far psychiatric condition can be taken into consideration.

5. Consent

   • Available For assaults with no injury or minor injury only
     • Never for murder or ss 18 and 20 OAPA - Sometimes not for s47 OAPA
       • Common assault and battery no injury caused
         • Injury caused consent not a defence unless exception is recognised
           • Exceptions - Properly conducted games - reasonable surgical interference - tattooing - body piercing - horseplay - dangerous exhibitions.
           • Slingsby 1995
             • Taken part is sexual activity that was "vigorous" but had taken place with consent.
           • Tabassum (2000)
             • Not true consent - since the action performed was not as explained to women.  Breast measurement.
           • Olugboja
             • Submission through fear is not consent
           • Informed Consent
             • Clarence (1888)
               • Unknown to wife - infected by husband suffering from venereal disease.  
             • Dica (2004)
               • Known HIV Positive Status - infliction of biological GBH - also Konzani (2005)
           • Implied Consent
             • Crowds and jostling of everyday life not a battery Wilson V Pringle (1987) - contact sport also implies consent within permissible rules.  
             • Consent to minor injuries
               • Attorney _general Reference (No 6 of 1980) (1981) - fight in street - consent not a defence as not in the public interest.  Brown (1993) consenting adult S&M - convictions upheld
   • Contact Sports
     • Barnes (2004) - late tackle amateur football match.  V suffered serious leg injury.  D's conviction under s20 OAPA 1961 was quashed. Intentional infliction of injury will always be criminal. Reckless infliction  - did injury occur during actual play or in moment of temper or over excitement when play ceased. Off the ball injuries more likely to be criminal. If play is within rules will not be criminal.
     • Body Adornment
       • Wilson (1996)  branding initials on wife's buttocks with hot knife at her request.  CoA held branding not unlawful. No aggressive intent - same as with piercing and adornment.
       • Horseplay
         • Jones (1986)  schoolboys 14 and 15 thrown in air by older boys -  broken arm and ruptured spleen sustained .Genuine mistaken belief in consent to rough and undisciplined horseplay 
         • Mistaken belief in consent
           • Aitken (1992) - RAF officers pour white spirit over colleague with fire resistant suit.  Suffer 35% burns. Richardson and Irwin (1999) - D's students drop V from balcolny.
   • Need for consent
     • Sports could not take place
       • Medical proceedures could not take place
         • Difficult to reconcile decisions of courts and there are inconsistencies
     • Specific problems with consent and sexual offences: Section 5 a girl under 13 can never consent . G (2008) mistaken as to age and consent was given but still liable. Also problems with consent and Euthenasia
       • R (on the application of Pretty) v DPP R (on the application or Purdy) v DPP (200)