Defences (criminal)
- Created by: Nikki
- Created on: 01-05-15 20:14
Consent (1)
In sexual offences, lack of consent is an element of the offence
In OAP, consent is a defence in some cases
AG's reference 6/1980 -->
- defence to common assault or battery
- threshold = ABH --> past this consent is not a defence
- EXCEPTIONS
- sports
- dangerous exhibitions
- surgery
- tattooing
- rought and undisciplined horseplay
- public interest
Brown (1993) --> consensual sadomasochism --> consent is NOT a defence --> not willing to add further exception (matter for Parliament)
Consent (2)
Majority view
- AR of s47 = unlawful touching
- consent is a dfence
- question for court = should consent be allowed to negate liability for violence in Brown?
- conduct in Brown is criminal
- need good reasons to make it lawful
Minority view
- AR of s47 is unlawful if it is not consensual
- lack of consent as element of offence
- question for court = should we criminalise the behaviour in Brown?
- individual autonomy
- conduct in Brown is lawful
- need good reasons to make it unlawful
Consent (3)
Cases after Brown
- Wilson (1996)
- consent as defence
- analogy with tattoing
- law develops on case-by-case basis
- Emmet (1999)
- consent no defence
- degree of risk
Consent and HIV -->
- Dica (2004)
- Konzani (2005)
- s18 OAPA consent cannot be defence
- s20 OAPA iinformed consent can be defence
- choice and autonomy
Consent (4)
Themes
- when should consent be allow as a defence to physical injury? --> depends on guiding values
- individual autonomy
- paternalism
- risk-reduction
- moral outrage
- public interest
- coherent rationale?
- clear boundaries?
- approaches to consent
- good reasons to allow as defence
- good reason to withold as defence (A&H)
Duress (1)
Duress by threats; duress of circumstances --> same legal requirements
Excuse --> D's actions wrongful but D is not blameworthy
D commits crime against an innocent V --> contract with S-D
Courts take restrictive approach to duress
Complete defence --> if established, no liability
Hasan (2005) --> limitations to duress --> for D to rely on duress...must be...
- threats of death or GBH
- threat directed against D, D's immediate family, someone close to D --> someone for who's safety D would reasonably regard himself as responsible
- reasonable belief in threat --> reasonable response
- D's criminal conduct must have been caused by threats
- no evasive action available to D --> threat must be imminent and unavoidable
- no prior fault --> D must not have been cause of threats (D must not be allowed to take advantage of a condition if this arose due to D's own prior fault)
Duress (2)
- Sharp (1987)
- D member of gang of armed robbers --> wanted to stop but another member said keep going or I'll blow your brains out --> couldn't plead duress due to prior fault of association with robbers
- Hasan
- D charged with burgalry --> said forced to commit it by S --> S told D if he didn't S would harm him and family --> D had voluntarily associated with S, so had foreseen or ought to have foreseen risk of being subjected to compulsion by threats of violence --> couldn't rely on duress
- law driven by driven by desire to discourage association with known criminals
Duress (3)
Duress and reasonableness
- Did D have reasonable belief in threat?
- would sober person of reaosnableness, sharing D's characteristics, have reacted as D did?
- Graham (1982)
- reasonableness emphasised in Hasan
- Bowen (1996)
- Characteristics
- sex
- age --> e.g. this may affect D's ability to resist a threat
- pregnancy --> e.g. may affect seriousness of threat due to added threat to unborn child
- physical disability --> e.g. may be relevant to reasonableness of not escaping in face of threat
- recognised mental illness --> limited to recognised because courts want to limit claim based on mental capacity
- Characteristics
Duress (4)
Not a defence to murder or attempted murder --> because never right to take another's life --> even if faced with death ourselves we should not choose to take life of another
Wilson (2007)
- D = 13 year old boy
- duress not available as defence to murder (court reluctantly had to follow precedent of Howe)
- 'There may be grounds for criticising a principle of law taht does not afford a 13 year old boy any defence to a charge of murder on the ground taht he was complying with his father's instructions, which he was too frightened [...] to disobey'
- obvious injustice?
Law Commission 2006 --> extend duress to murder cases --> defence would still be restricted to requirements as stated before --> and still have to be reasonable response to threat
Necessity (1)
Lesser of two evils --> where D faced with situation where whatever he does will cause har, but he chooses the lesser harm
Justification for D's action
Limitations
- no general defence of necessity
- courts generally suspicious of this defence
- can be applied fairly often in medical cases
- Southwark LBS v Williams (1971)
- Denning --> e.g. hunger and stealing; homlessness and trespass (as in case)
Necessity (2)
Necessity and murder --> Dudley v Stephens (1884)
- plea of necessity dismissed
- rejects ultilitarian approach to human life
- ratio of D&S
- no defence of necessity fo rmurder? (cf. Howe)
- or is problem the method of choice? --> youngest and weakest --> actions seem to suggest his life less valuable and therefore death justified -->
- what if they had all drawn lots? perhaps stronger argument of necessity?
- utilitarian view of life that courts rejected and use of human life simply as means to an end --> courts fearful of result of allowing utilitarian approach to life
- more complex evaluation of case premised on method of choice doesn't necessarily rule out necessity as defence to murder
Necessity (3)
Necessity allowed as defence
Re F (1990) --> sterilisaiton case --> courts said doctors shielded by defence of necessity given that F couldn't give consent but it was in her best interests
Re A (2000) --> conjoined twins separation case --> necessity allowed but principle difficult to find
- Brooke LJ (quoting Sir James Stephens)
- 3 necessary reequirements
- act is needed to avoid inevitable and irreparable evil
- no more should be done than is reaonsable necessary for purpose to be achieved
- evil inflicted must not be disproportionate
- 3 necessary reequirements
- Is Re A reconcilable with D&S?
- M 'designated for death' --> method of choice
- D&S distinguished --> but aren't they both designated for death and couldn't cabin boy be too?
- facts of Re A automatically limit defence --> exceptionally rare circusmtances and will always require a court declaration
- M 'designated for death' --> method of choice
Necessity (4)
- Nicklinson (2013) --> man with locked in syndrome sought declaration that if wife ended his life she would have defence of necessity --> courts said no because it was completely limited to facts of Re A --> could not extend law to assisted suicide and facts of Nicklinson not close enough to that of Re A
Self-defence
- M killing J
- couldn't we sya that in D&S boy is killing others by eating food? --> very difficult line of argument to follow
- perhaps shouldn't stretch limits of s-d in this case --> should we just admit that J was the obvious choice?
When is it ever permissible to say that one life is worth more than another
Duress and necessity
- different rationale
- duress = narrower --> only available when threat of death or serious injury
- duress = wider --> covers cases where D reaosnable believes there is a threat when in fact there isn't
- necessity may be a defence to murder (cf Re A)
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