The Defences
- 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
- Established in Wilson V Pringle which referred to 'jostling'
- 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!
- Euthanasia - states that no one can consent to death (R V DPP) -but they do...
- Victim consent = no presence of non-fatal offence
- 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?
- A - G's Reference - D prepared bombs incase he was burgled; NOT GUILTY
- Williams - D tackled police officer he believed was attacking young boy. NOT GUILTY as he H&I thought the force was necessary
- 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
- This could result in an innocent person being injured,. but D going free
- It does not matter whether excessive force was used, if D thinks it was neccessary - fair?
- Has to be decided whether D honestly believed the force was necessary
- This could result in an innocent person being injured,. but D going free
- It does not matter whether excessive force was used, if D thinks it was neccessary - fair?
- 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
- But they were still defending themselves... is this fair?
- When force is not necessary, mental disorders cannot be used to aid the defence of self-defence. Is this fair?
- D must 'honestly & instinctively think the force is necessary' (Criminal Justice &Immigration Act 2008)
- 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
- Cannot be a defence for basic intent crimes - recklessness already occurred when taking the substance!
- 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
- D must unknowlingly take the substance
- 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!
- Voluntary
- 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?
- Defect of reason
- 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
- 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
- caused by external factor;
- 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
- Consent
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