Consent in relation to sexual intercourse and infections -
- CLARENCE - was authority on this point stating if you consented to sexual intercourse there was no assault, it didn't matter that D was suffering from STD
- DICA 2004 - changed this
- Following DICA, the case of KONZANI '05 used the ruling, the judge said to the jury.. "Would you be doing this if you knew he was HIV infected? Would she reply 'No I wouldn't!' or 'I'll be allright!'"
- Situations where the courts imply consent to minor touching
- Everyday jostlings are not a battery - WILSON v PRINGLE
- Only available for assaults where there is no injury or minor injury, also sometimes available for s47 OAPA
- Consent is always available for common assault and battery
- Where injury is not caused this is not a defence unless the situation is from a recognised one as an exception to the rule
- Aims to balance freedoms of the individual with considerations of public policy
- Consent is not a defence in the true sense as the person has consented there is no offence - SLINGSBY
- There must be a true consent for this to apply - TABASSUM
- Consent through fear foes not mean it is real - OLUGBOJA
- MALNIK v DPP - Cannot use the defence if you go seeking the problem when would've gone to appropriate authorities
Mistake as to circumstances
- CRIMINAL JUSTICE AND IMMIGRATION ACT '08 - Degree of force used has to be measured against the circumstances in the D's belief.
- If the mistake is made due to involuntary intoxication then he cannot rely on the mistake S76 (5)
Consent to minor injuries
- There have been arguments that consent should be allowed for s47 OAPA injuries, providing they were not serious
- A-G's REFERENCE [No6 of 1980] 1981 - "It's not in the public interest that people should try to cause, or should cause, each other bodily harm for no good reason ... most fights will be unlawful regardless of consent."
- BROWN - Unless the situation is one of the exceptions recognised by the court consent is not allowed for a s47 offence
Public policy exceptions
- It is seen as being in the public's interest to allow consent as a defence in these sitations ...
- Properly conducted games/sports
- Reasonable surgical interference
- Body piercing
- Dangerous exhibitions
- You cannot consent to anything when ABH is intended or likely to happen
- 'Mutual and manly contests' and 'rough and undisciplined sport or play where there is no anger and no intention to cause GBH'
- Includes... Boxing, karate and rugby
- If the contact goes beyond what is allowed in the rules then an offence has been committed
- BARNES - sets out the points which should be considered before looking at the criminal action - Most organised sports have their own disciplinary procedures to enforce their own rules and standards of conduct, - There is also a possibility that a civil claim being pursued, - you must consider if the conduct was sufficiently grave in nature.
- When deciding if the condict is criminal or not the following should be considered -
- Intentional infiction of injury will always be criminal
- For reckless infliction of injury - did the injury occur during play or a heated moment when play has stopped
- 'Off the ball' injuries are always criminal
- The fact that the play is within the rules and practice of the game and does not go beyond it will be a firm indication that it is not criminal
Mistaken belief in consent
- Where the D genuinely, but mistakenly, believes that the victim is consenting then there is a defence to an assault charge
- It is not in the public interest that people should try and cause, or should cause, each other bodily harm for no good reason as in - JONES
- A similar decision was reached in AITKEN
- Even a drunken mistake that the victim was consenting to horseplay could be a defence to a s20 offence - RICHARDSON AND IRWIN
Other factors that will be considered are ...
- The level of play
- The nature of the act
- The degree of force
- The extent of the risk of injury
- The D's state of mind
- Tattooing, piercing and decorative jewellery is accepted as a body adornment that people can consent to - WILSON
- CofA held that consent can be a defence to an assault charge where the activity engaged in was 'rough and undisciplined horseplay' - JONES
- CRIME AND COURTS ACT 2013 has amended S76 CRIMINAL JUSTICE AND IMMIGRATION ACT '09 to give a wider defence to householders
- The law is that the degree of roce will not be regarded as reasonable if it was 'grossly disproportionate'
- To be a householder case...
- The force concerned is force used by D while in or partly a bulding that is a dwelling;
- D must not be a trespasser;
- D must have believed V to be a trespasser.
- Covers situations where a burgular or other intruder enters D's dwelling place
- Applies to buildings with a dual purpose of being a business and a home
- Protect your family but cannot use this to protect customers in a business or shop
- BECKFORD - "A man does not need to wait to be attacked... Circumstances may justify a pre-emtive strike"
- S76 (5) CRIMINAL JUSTICE AND IMMIGRATION ACT '08 makes it clear that a D cannot rely on any mistaken belief if that mistake is made due to the D being voluntarily intoxicated
2.Was the force used reasonable in the circumstances?
- S76 (7) CRIMINAL JUSTICE AND IMMIGRATION ACT '08 explains the amount of force that can be used in self-defence
- Elements of stress are accepted
- D cannot be expected to calculate the exact amount of force
- Did the D honestly and instinctively think the level of force used was necessary to protect himself or another or to prevent crime?
- Defensive action taken was reasonable in the circumstances
- If the force is used after the danger from the assailant is over then defence is not available
- The degree of force must be measured against the circumstances as the D believed them to be
Voluntary Intoxication & Basic Intent
- When the D has been charged with an offence of basic intent then intoxication is not a defence. This is because involuntary intoxication is considered a reckless conduct and recklessness is enough to constitute for necessary MR - DPP v MAJEWSKI
- Some courts allow the jury to consider if the D would have realised the risk had he not been intoxicated - RICHARDSON AND IRWIN
- The law generally makes an allowance for honest mistakes - For the jury to decide
- This covers situations where D didn't know he was taking an intoxicating substance
- The test is; Did the D have the necessary mens rea when he committed the offence?
- Decided in KINGSTON
- When the D did not have the necessary intent he will not be guilty
- D was not reckless in getting intoxicated - HARDIE
- The defendant is required to raise the fact of intoxication - for the judge to assess whether or not the intoxication is sufficient for it to amount to a legal defence - GROARK
Was the force necessary?
- Question for the jury to decide
Mistaken use of force in self-defence
- Force by D maybe used when there has been a mistake made about the situation - harder to decide if the force was necessary
- The jury must decide if the force was necessary - Did the D believe he was being threatened?
- If yes, he has the defence of self-defence and he can use force even though there was no actual threat to him
- In looking at all the circumstances, the D must be judged on the facts as he genuinely believed them to be - WILLIAMS
- Put into statute by S76 CRIMINAL JUSTICE AND IMMIGRATION ACT '08
- If the D genuinely made a mistake then he is to be judged on the facts as he believed them
Must be the end result of a disease of mind
- Legal term not a medical one
- Mental/physical diseases
- KEMP - Lord Devlin - the conclusion of the brain is irrelevant and so is the question whether the condition is curable/incurable, transitory or permanent
- SULLIVAN - Can be organic as in epilepsy and it did not matter if the impairment was permanent, transient and intermittent so long as it existed at the time
- HENNESSY - Insanity must have an internal cause
- BURGESS - Some instances of sleep-walking can be insanity
- If the disease of the mind is an external factor, this cannot be insanity - QUICK
Cause the defendant ...
- 2 Ways in which he may not know conduct - 1.He's in a state of unconciousness or impaired unconciousness OR 2. Where he is concious but due to his mental state he does not understand or know what he's doing
- One has to be applicable
- The D may not know the nature of his act - KEMP, SULLIVAN...
- D is aware of nature or wuality but doesn't know it's legally wrong - WINDLE/JOHNSON
- D knows conduct is likely to bring on an automatic state - e.g. A diabetic not taking his insulin
- BAILEY - Specific intent offences can use automatism
Basic intent offences
- P must prove that D had the necessary elements for recklessness
- If self-induced automatic state is caused through drink or illegal drugs, defence is unavailable - MAJEWSKI
- Where the D does not know that his actions are likely to lead to a self-induced automatic state in which he may commit an offence, he has not been reckless and can use this defence - HARDIE
- Available for all offences
- Not just in respect of defending yourself but also when action is taken to defend others
- These are common law defences which justify the D's actions
- Statutory defence of prevention of crime under s31 Criminal Law Act 1967 - "a person may use such force as it reasonable in the circumstances in the prevention of crime"
- 2 Points are to be decided - 1.Was the force necessary? If it was, then... 2.Was the force reasonable in the circumstances?
- S6A CRIMINAL JUSTICE AND IMMIGRATION ACT 08 - A person is not under a duty to retreat when acting for a legitimate purpose. If there was an opportunity to retreat this will be considered as a factor in deciding if the degree of force was necessary - HUSSAIN AND ANOTHER '10
- Available for all offences
- Proved on balance of probabilities
- DPP v H - Insanity is not a defence for strict liability offences
- M'Naghten Rules - 1. Defect of reason. 2. Must be the end result of disease of mind. 3.Causes the defenant not to know the nature and quality of his act, or not to know he was doing wrong
Defent of reason
- If D is capable of reasoning buyt he has just failed to use those powers at the time of the offence, then it's not a defect
- Mere forgetfulness, confusion or absent mindness is not sufficient - CLARKE
- Available for offences of specific intent - Murder & S18 OAPA 1861
- Intoxication by drink, illegal drugs, solvent abuse and overuse of prescribed drugs
- Intoxication does not provide a defence but it may establish if D does have MR
- Verdict depends on - 1.Whether the intoxication was voluntary or involuntary AND 2. Whether the offence charged is one of specific or basic intent
Voluntary Intoxication & Specific Intent
- If D is so intoxicated that he has not formed the mens rea for the offence he is not guilty - SHEEHAN AND MOORE
- If he has the mens rea despite being intoxicated he is guilty
- It has been held that drunken intent is still intent - AG for NORTHERN IRELAND v GALLAGHER
- Where an offence is one of specific intent, and one did not have that intent for any reason, he is entitled to be acquitted - LIPMAN
- If the defendant actually forms the necessary intent, the fact that he wouldn't have done so but for the intoxiaction is irrelevant - R v KINGSTON; **********
- Available for all offences without exceptio
- Defined in BRATTY v A-G's REFERENCE FOR NORTHERN IRELAND as "Automatism means an act which is done by the muscles without any control by the mind such as a spasm, a reflex action or convulsion." - Lord Denning
- Act must be involuntary and due to an external factor
- Insane Automatism - Disease of the mind
- Non-insane Automatism - External cause
- AR is involuntary, no need for MR
- Cause must be external e.g. - Blow to the head, sneezing etc
- R v T - Exceptional stress can be an external factor
- Reduced or partial control of D's actions is not sufficient - A-G's REFERENCE [No2 of 1992] 1993