Defences (criminal)

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)

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

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 

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 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) 

• 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 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 

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

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 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 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
• 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

• 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

• 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)