General Defences

• Two broad types

  • Justificatory defences – justification for the action.

  • Excuse Defences – some excuse given to the actor.

Consent

• Balance of two policies: Personal autonomy vs Paternalism.

• Two requirements:

  • 1) V must consent

  • 2) D must honestly believe that V consents.

• A-G’s Ref. No.6 of 1980 [1981] – 17 and 18 yo decided to settle dispute with a fight. Both consented.

  • Lord Lane: “Most fights will be unlawful regardless of consent.”

  • Unless it comes within established exceptions:

    • Properly conducted games and sports

    • Lawful chastisement of children

    • Reasonable surgical interference

    • Dangerous exhibitions

    • Cosmetic enhancements

    • Horseplay

    • Where it’s justified in the exercising of a legal right or it is in the public interest.

• Invalid Consent:

  • R v Brown [1994] – Group of Ds took part in sadomasochistic sexual rituals (molten candle wax on nipples of one party, nailing scrotum to wall, use of a cheese grater), in privacy of homes. Article 8 challenge failed in ECtHR.

    • Held that this was unlawful violence and therefore consent was irrelevant to the s.47 and s.20 harm.

    • Lord Templeman: “Society is entitled and bound to protect itself against a cult of violence.”

    • Lord Mustill (dissenting): criminal law is not for this. No public interest.

  • R v Emmett [1999] - Sadomasochistic burning of the wife’s breast with lighter fluid. Level of harm meant that it was not possible to consent.

  • R v BM[2018] – consensual body modifications (bifurcation of tongue, removal of nipple etc). Burnett LJ was not willing to create a new public policy expectation for this bodily modification.

    • No social benefit, GBH cannot be permitted without good cause, high risk of further harm (through infection etc.)

• Valid Consent:

  • R v Wilson [1996] The appellant branded his initials on his wife’s buttocks with a hot knife. She had asked her to.

    • CA, Russell LJ: The wife’s consent was valid. The branding was more akin to tattooing and cosmetic enhancement that had gone wrong.

  • R v Slingsby (1995) – man scratched woman’s vagina with signet ring during sex. Suffered internal bleeding and died of septicaemia. As neither party had considered the possibility of ABH the consent was valid.

  • R v Meachen [2006] – consented to broom in anus. Where consent given to battery and develops into more serious injury consent still operates.

  • R v Dica [2004] – reckless transmission of HIV was not criminal provided there is informed consent as to the risk taken.

  • R v Konzani [2005] – D had HIV. Concealed from V. V discovered D had HIV from another source. Held that this was valid consent.

    • Alan Reed& Cooper disagrees – this is creating a defence for a wilfully committed crime.

• Sport and Consent:

  • R v Barnes [2005] – D lunged at V late and from behind in penalty area. Convicted under s.20. Jury asked to consider the event in context (type of sport, level of play, force used, Ds state of mind, heat of the moment etc.).

• Consent must be informed, deception will negate consent:

  • Deception as to the identity of D:

    • R v Richardson [1998] – Dentist who had been suspended operated on various patients. They consented to procedures but claimed they wouldn’t if they knew he had been suspended. Held that the deception was not as to his identity therefore consent was valid.

  • Deception as to the nature and quality of the act:

    • R v Tabessum [2000] – D pretended to be a medical examiner carrying out breast exams. In fact doing it for sexual gratification. This negated consent.

    • R v Williams [1923] – choir master persuaded girl that sexual acts were in fact medical operations that would improve her singing.

  • Consent is given its ordinary meaning

    • R v Olugboja [1982] – V took of her own trousers after V said he was going to rape her. Clearly not consent but fear of violence. Jury should apply their good sense, experience, and knowledge of human nature and modern behavior to the question of consent.

• Homophobia in Consent:

  • Clarkson and Keating: we do not allow much in the way of homosexual sadomasochistic activity but we do allow it elsewhere.

    • R v Jones [1987] – schoolboy birthday celebration, throwing birthday boy in the air, victim suffered severe spinal injuries. Held that provided no intent to injure ‘horseplay’ can be consented to.

    • R v Aitkin (1992) - RAF training and an initiation ceremony, victim was set on fire as part of the initiation. This was viewed as a good manly diversion.

Self-Defence

• Justificatory defence.

• Common law principles codified in S.76 Criminal Justice and Immigration Act 2008

• Two elements:

  • 1) D genuinely believed the use of force is necessary (the trigger)

  • 2) D’s use of force was reasonable (the response)

• Burden of proof to disprove the defence is on the prosecution

• The Trigger:

  • Force can be used to prevent an immanent attack

    • Devlin v Armstrong [1971] – D threw stones at police during a riot, argued she thought police were about to attack. Held pre-emptive strikes are allowed but only if the attack is imminent.

    • AG’s Ref No.2 of 1983 - Individual to made and possessed a petrol bomb in the house to protect his family and property from immanent attack.

      • Held this was justifiable, but must desist once the threat has gone.

  • There is not a general duty to retreat in law

    • R v Bird [1985] – D in an argument and punched ex-boyfriend. Held that no duty to retreat.

  • Can use reasonable force to prevent a crime (s.3 Criminal Law Act 1967)

    • R v Jones (Margaret) [2006] – D cut wire on US military base to protest the war. Argued they were preventing international crime by UK & US forces. Rejected by HoL as only domestic crime is covered.

  • Can use force if honestly and genuinely believes its necessary, even if this belief is mistaken

    • R v Gladstone Williams (1984) – D saw youth being assaulted. V had seen youth mug old lady. Fight ensued.

      • Codified in ss.76(3)-(4).

    • R v Beckford [1988] – Police officer received a report V was terrorising mother. Saw man run with what...

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