GENERAL DEFENCES

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  • GENERAL DEFENCES
    • 1) CONSENT
      • Availability - Assaults with minor injury
      • NEVER available for  - Murder or S18 OAPA. Not usually avalaible - S20 and sometimes S47 OAPA
      • Prevents act from being unlawful
        • Slingsby 1995
          • "Vigorous sexual activity" - D's signet ring caused small cuts + she developed blood poisoning + died. NO conviction UAMS as not unlawful act. V's consent meant NO Battery.
      • Offences NOT subject to consent
        • A) Person cannot consent to being killed
          • Airedale NHS Trust V Bland
            • Euthanasia - Bland = Persistent vegetative state 4 years. HOL HELD: lawful for hospital to withdraw his feeding tube as it was form medical treatment which could be stopped if it wasn't helping patient
          • Pretty 2002
            • HOL - Didn't find article 2 (right to life) created right to die + need protect vulnerable justified the prohibition on assisted suicide
        • B) With regard to S47, S20 and S18 OAPA
          • Person cannot generally consent to activity which intended/ likely lead to one of these offences
            • R v Brown
              • Infliction bodily harm without good reason is unlawful + Consent of V = irrelevant
      • EXCEPTIONS because of public policy
        • 1) Properly conducted games/sport
          • Even though players consent to contact within rules of game - can still be CRIMINAL
          • Barnes 2004 (list of factors with make sport more criminal)
            • Intentional infliction of injury always criminal
            • "OFF THE BALL" injuries = criminal
            • Reckless infliction of injury - did injury occur in actual play OR in moment of temper.
        • 2) Body adornment
          • Wilson 1996
            • Branding - like having tattoo because it was personal adornment as consent given
          • Person can lawfully consent having tattoo
        • 3) Horseplay + Sexual activity
    • 2) INSANITY OR INSANE AUTOMATISM
      • Special Verdict
        • Not guilty by reason of insanity
      • M'Naghten Rules (ALL 3 REQUIRED)
        • AS NOT TO KNOW THE NATURE + QUALITY OF THE ACT HE WAS DOING
          • D cuts womens throat thinking he is slicing a loaf.
          • OR IF HE DID, HE DID NOT KNOW HIS ACT WAS WRONG
            • EG:  Because D suffering from delusions
            • R v Johnson 2007
              • CA dismissed appeal - Legal definition of insanity is still the M'Nagten test.
              • D knew what he was doing - had not produced any evidence that he did not know his conduct was legally wrong.
        • CAUSED BY DISEASE OF MIND
          • Kemp
            • GBH - NOT concerned with the brain but with the mind
          • Quick
            • External cause because was automatism + NOT insanity. (Non - Insane automatism)
          • Sullivan
            • D pleaded guilty ABH.Not guilty by reason of insanity.
          • Hennessy
            • Disease of diabetes was effecting his mind, therefore comes within definition of insanity.
        • DEFECT OF REASON
          • Clarke 1972
            • COA - "Defect of Reason" applied only to 'Persons who by reason of a disease of mind are deprived of the power of reasoning'
      • Availability: All offences where MR is required
      • Limitation: Not available for strict liability offences
      • Insanity proved by D on the balance of probabilities
    • 3) AUTOMATISM
      • 1) Insane Automatism
        • Where automatism is a disease of the mind
      • 2) NON - Insane Automatism
        • The crime was committed by an involuntary act caused by external factors.
      • 3) Automatism arises where the accused's conduct is completely involuntary
      • 4) Automatism is an involuntary movement of the body or limbs. (Hill v Baxter)
      • 5) Automatism is a matter of law for the judge to decide
      • 6) Normally there must be medical evidence in support
      • CASES
        • Bratty
        • Quick
        • R v T (1990)
        • R v Hardie
          • Where D does not know his actions are likely to lead to self-induced automatism - Defence available
      • Limits for the defence (CASES)
        • A-G's Ref (No. 2 of 1992)
          • Must be "Total destruction of voluntary control" not just partial control
        • Bailey
          • If offence is one of specific intent, self-induced automatism can be defence because D lacks MR. Basic intent crimes, the prosecution must prove that D knew he was acting recklessly when he took the drug
      • Availability: All Offences
    • 4) INTOXICATION
      • Covers intoxication by alcohol, drugs or other substances
      • 1) Was intoxication voluntary or involuntary?
      • 2) Is offence one of SPECIFIC OR BASIC Intent?
      • Availability: Vol. Intox. - Specific intent offences - Murder + s18 OAPA
      • Vol. Intox. not available basic intent offences - MS, s20, s47, Assault + Battery.
      • VOLUNTARY INTOXICATION
        • D chosen take intoxicating substance/knows effect of prescribed drug.
      • INVOLUNTARY INTOXICATION
        • D didn't know he was taking intoxicating substance
          • Kingston
            • Invol.Tox. + basic intent crime. Court decided that he had formed the MR of the offence.
          • Hardie
            • Invol Tox + basic intent crime. D hadn't been reckless in taking drugs. Therefore Defence
    • 4) SELF - DEFENCE
      • Availability: All OAP Offences
      • "A person may use such force as is reasonable in the circumstances as he genuinely believes them to be in the defence of himself or another"
      • D Must Prove:
        • 1) It was necessary to use force on the facts as D believed them to be.
          • Belief doesn't need to be reasonable
            • Williams
              • If thought of genuine mistake the jury should judge D according to genine mistaken view of the facts, regardless of whether this mistake was reasonable or unreasonable
          • Not Necessary to away, but this will be good evidence that he was acting reasonably + in good faith.
            • Bird
              • If D proved to be retreating or calling off fight - Self defence available
        • 2) The amount of force used was reasonable in the circumstances
          • Excessive force then NO defence
            • Martin 2002
            • Clegg
  • Invol. Tox. - NOT a defence
    • Kingston
      • Invol.Tox. + basic intent crime. Court decided that he had formed the MR of the offence.

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