Defences Essay

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  • Defences Essay
    • Consent
      • Introduction
        • No liability is incurred if someone inflicts minor harm with consent of the victim. Consent exists because the courts recognise that individuals have personal autonomy over their lives. There are limits to what people can consent to - you cannot consent to murder or manslaughter - Rv Pretty. A balance between personal autonomy and public protection must be reached but critics state this has not been done yet.
      • General Issues
        • The basis for allowing or denying consent is unclear. This is due to the negative definition of the defence. The general rule is that anything more than a battery must be on a list of exceptions for the defence to be allowed - this means that in Rv Brown it is unclear at the time of the offence if the defence is available. This is at odds of the notion of fair and transparent law. This was seen in Rv Leach where the availability of the defence was based on the level of harm caused. This does not always seem to be case - the defence can be used in boxing where serious injury and death are common and horseplay in Rv Aitken.
        • It deprives people of basic freedoms. In Rv Brown, Lord Mustill stated that "the state should interfere with the rights of the individual no more than necessary." It causes unnecessary interference. Some query whether it is up to the law to determine limits of  personal autonomy, especially when the decision is being made by unelected judges who come from restricted social backgrounds.
      • Specific Issues
        • It's illogical that consent is acceptable for boxing. Barnes points out that only behaviour that is "sufficiently grave to be categorised as criminal" should give rise to an action, eg. where serious injury is intended - but that is the aim of boxing. The reasons that justify other sporting activities is illogical when applied to boxing as their primary intention is not to cause injury.  Consent is not a defence to ordinary fighting seen in Rv Coney. The aim is the same but it's different cause the Queensbury Rules are followed.
      • Reforms
        • In the Law Commission's 1995 Paper "Consent in the Criminal Law" they suggested extending the range of situations in which consent may be effective and removing some of the anomalies. the defendant should be able to rely on consent to an act intended to cause injury or likely to. Surgical treatment, circumcision, tattooing and ear-piercing were to be kept as special cases but no special consideration was given to horseplay or sexual activities. They also suggesting adopting special rules in relation to boxing and other organised sports.
        • These proposals are  likely to address some of the issues outlined above by making it clearer as to when the defence can be applied. As a result, reform is likely to make the law in relation to consent fairer as it those who seek to rely on it will be able to understand much better when it will be  available.
    • Intoxication
      • Introduction
        • Regarding 'Intoxication and Criminal Liability' from The Commission's Report  in 2009, it was claimed that the defence "may have a far-reaching effect on the perception - particularly the perception of a victim and his or her family - of whether justice has been done." As such, the availability of intoxication-based defences to crime is, in their words "an extremely important social and political, as well as legal issue." Clearly, it is important to ensure  that the law in this are is fit for purpose; however, critics have found problems in its current form.
      • Criticisms
        • The term 'defence' is potentially misleading in context, as there is no defence of intoxication as such, but intoxication as may be relevant to proving the absence of Mens Rea.  When intoxication is voluntary, the law distinguishes between  2 types of offence: crimes of specific and basic intent . Voluntary intoxication may be used tom show absence of Mens Rea in specific intent as seen in Sheehan and Moore but not for the absence of Mens Rea in basic intent crimes as held in Majewski.
        • The Commission criticises the terms 'basic' and 'specific intent', saying they are 'confusing' 'misleading' and 'should be abandoned.' It is worth noting that in Majewski the Lords agreed there was such a distinction, but failed to agree on a definition of them.. Additionally, 'specific' and 'basic' intent aren't particularly enlightening because they have been interpreted by different judges to mean different things. Clearly this leave the law in a confused state if a fundamental part of the defence unclear.
      • Reforms
        • Although the Law Commission agrees with the current balance, they propose abolishing misleading terms 'basic' and 'specific' intent. In terms of reform, therefore, they would list the states of mind that always have to be proved  by the prosecution. These being: intention as to a consequence, knowledge as to something, belief as to something, fraud and dishonesty. This strikes good behaviour because becoming voluntarily intoxicated is culpable behaviour and so deserves to result in some criminal liability. But, there needs to be a link between the defendant's state of mind and the Mens Rea required for the required for the crime.
        • These states of mind would be called 'integral fault elements.' For offences with integral fault elements, evidence of voluntary intoxication could  be used to establish lack of Mens Rea. Other offences would be classed as those where the fault element is not integral and here the Majewski rule would apply. In deciding whether the defendant is liable, he should be treated as having been aware of anything which he would have been sober. In terms of involuntary intoxication, they suggest no change.
      • Conclusion
        • Intoxication is a contentious area, not least because of the large number of crimes committed by those who are under the influence of drug, alcohol or both. Victim's must believe that justice is being done but the defendant's state of mind at the time of the offence must be considered. The Law Commission has put forward proposals to address this issue and to make the  effect of the defence much clearer. Unfortunately, these proposals have not been implemented by parliament and until they are, the current problems are likely to remain.
    • Cases Intoxication
      • Majewski - Law Lords failed to agree on a definition of specific and basic intent.
      • Rv Sheehan and Moore - crime of specific intent which can rely on the defence of voluntary intoxication.
      • Majewski - Cannot rely on the defence of voluntary intoxication for the absence of Mens Rea as it is a basic intent crime.
    • Cases Consent
      • Rv Brown - unclear at the time of the offence whether the defence was available. Lord Mustill - "the state should interfere with the rights of the individual no ore than necessary."
      • Rv Aitken - serious injuries in horseplay are considered acceptable.
      • Rv Coney - regular fighting cannot rely on the defence.
      • Rv Pretty - no one can consent to their death.
      • Rv Leach - the availability of consent was based upon the level of harm caused.
      • Barnes - only behaviour that is "sufficently grave to be criminal" should give rise to an action.


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