The Defences

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  • Created by: _laurenb
  • Created on: 04-10-15 18:12
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  • The Defences
    • Consent
      • Victim consent = no presence of non-fatal offence
        • Slinsby - V agreed to be hit; died from infection formed from cut - NO OFFENCE
      • Victim must give real consent
        • Tabassum - D acted as doctor to inspect breasts; OFFENCE as Vs gave consent believing he was doctor
      • Victim can't give consent to offences over ABH
        • A - Gs reference - two men play fought, serious injury resulted; OFFENE as injury over ABH
        • Victim gives implied consent in everyday situations
          • Established in Wilson V Pringle which referred to 'jostling'
            • Barnes - rugby players tackled; implied consent applied to give no offence
      • Defendant must genuinely believe V gave consent
        • Jones - school boys play fought, genuinly believing each consented. NO OFFENCE.
      • Sexual Offences Act 2003 states girl under 13 cannot consent to sex - how's that fair if she does? (G)
        • Euthanasia - states that no one can consent to death (R V DPP) -but they do...
          • Horseplay -why should harm be permitted when friendly, but not when sexual (AITKEN V EMMETT) - THIS IS INCONSISTENT!
    • Self-Defence
      • D must 'honestly & instinctively think the force is necessary' (Criminal Justice &Immigration Act 2008)
        • Williams - D tackled police officer he believed was attacking young boy. NOT GUILTY as he H&I thought the force was necessary
          • DEFINED UNDER S.76 OF CRIMINL JUSTICE & IMMIGRATION ACT 2008:  - D cannot use self-defence when intoxicated  - D has to be judged on how he truely believed the facts of the case to be   - D has to be judged on whether mistaken force was actually mistaken (WILLIAMS)
        • D does not have to have been attacked to defend himself
          • A - G's Reference - D prepared bombs incase he was burgled; NOT GUILTY
            • Is this fair?
      • Has to be decided whether D honestly believed the force was necessary
        • It does not matter whether excessive force was used, if D thinks it was neccessary - fair?
          • This could result in an innocent person being injured,. but D going free
            • Has to be decided whether D honestly believed the force was necessary
              • It does not matter whether excessive force was used, if D thinks it was neccessary - fair?
                • This could result in an innocent person being injured,. but D going free
        • D cannot use the defence if the force used was excessive
          • Clegg - D shot at man who was driving towards him AFTER he had driven past
          • Martin - D shot burgulars ONCE they were leaving his house
            • But they were still defending themselves... is this fair?
              • Clegg - D shot at man who was driving towards him AFTER he had driven past
          • When force is not necessary, mental disorders cannot be used to aid the defence of self-defence. Is this fair?
      • Intoxication
        • Voluntary
          • Cannot be a defence for basic intent crimes - recklessness already occurred when taking the substance!
            • Gallagher - D got drunk to kill wife. GUILTY
        • Involuntary
          • D must unknowlingly take the substance
            • D must not form the mens rea of the offence
            • Lipman - D took LSD; killed GF who he thought was snake; NOT GUILTY as he did not form the mens rea
        • By drugs, alcohol or any other substance
        • If D forms the necessary mens rea whhilst involuntarily intoxicated, he is found guilty - fair?
        • Cases of intoxication state that MR can occur after AR; defies the rules of coincedence
        • Fall back offences are often used where intoxication ia ccepted - but these are not always avaulable!
      • Insanity
        • Defect of reason
          • Clarke - D took items from shop; stated he was absent-minded; GUILTY as defence did not apply
        • Disease of the mind
          • Kemp - D had illness which resulted in unconciousness; hit wife with hammer whilst unconcious; GUILTY as the physical illness did not affect his mind
          • Can be caused by a mental illness or a physical; illness that affects the mind
          • Hennessy - D did not take insulin and stoke car; NOT GUILTY as the diabetes had affected his mind
            • But in the case of Quick, D had taken insulin and not eaten enough. Insulin was decided to be an external factor, meaning insanity did not apply. Is this fair?
        • Unknowingly doing wrong
        • M'Naghten Rules are restricted; people with certain mental disorders are not included e.g. psychopathy. They lack unknowingness
        • A sleepwalker has come under the definitionof insane (BURGESS)! Is this fair?
          • M'Naghten Rules are restricted; people with certain mental disorders are not included e.g. psychopathy. They lack unknowingness
        • Overlaps with automatism, meaning it is hard to decide whether D was in an automatic state or is insane
        • D holds the burden of proof. What happened to innocent until proven guilty?
        • If D has a mental illness that means he knows his acts are legally wrong but not morally wrong, the defence does not apply - is this fair? (WINDLE)
        • People with diabetes or epilepsy are insane?
      • Automatism
        • Insane
        • Non-insane
          • caused by external factor;
            • A - G'S REFERENCE: 'A total destruction of voluntary control;
            • R v T:     stress can be a cause
          • Self-Induced Automatism
            • To be used as a defence for basic intent crimes: - D must not have known his act would lead to automatism - D must not have taken illegal substance - D must be reckless
              • Hardie - D took Valium
              • Bailey - diabetic D became angry
        • Act done by the muscles, done without the control or consciousness of the D
        • HARD TO ESTABLISH INSANE V NON-INSANE
          • REFORM STATED IN CRIMINAL CODE: not guilty if acting in automatic state; not guilty if D played no role in state

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