GENERAL DEFENCES

Created by: Jack Cohen
Created on: 10-04-14 21:45

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GENERAL DEFENCES
- 1) CONSENT
  - Availability - Assaults with minor injury
  - NEVER available for - Murder or S18 OAPA. Not usually avalaible - S20 and sometimes S47 OAPA
  - Prevents act from being unlawful
    - Slingsby 1995
      - "Vigorous sexual activity" - D's signet ring caused small cuts + she developed blood poisoning + died. NO conviction UAMS as not unlawful act. V's consent meant NO Battery.
  - Offences NOT subject to consent
    - A) Person cannot consent to being killed
      - Airedale NHS Trust V Bland
        Euthanasia - Bland = Persistent vegetative state 4 years. HOL HELD: lawful for hospital to withdraw his feeding tube as it was form medical treatment which could be stopped if it wasn't helping patient
      - Pretty 2002
        HOL - Didn't find article 2 (right to life) created right to die + need protect vulnerable justified the prohibition on assisted suicide
    - B) With regard to S47, S20 and S18 OAPA
      - Person cannot generally consent to activity which intended/ likely lead to one of these offences
        R v Brown
        Infliction bodily harm without good reason is unlawful + Consent of V = irrelevant
  - EXCEPTIONS because of public policy
    - 1) Properly conducted games/sport
      - Even though players consent to contact within rules of game - can still be CRIMINAL
      - Barnes 2004 (list of factors with make sport more criminal)
        Intentional infliction of injury always criminal
        
        "OFF THE BALL" injuries = criminal
        
        Reckless infliction of injury - did injury occur in actual play OR in moment of temper.
    - 2) Body adornment
      - Wilson 1996
        Branding - like having tattoo because it was personal adornment as consent given
      - Person can lawfully consent having tattoo
    - 3) Horseplay + Sexual activity
- 2) INSANITY OR INSANE AUTOMATISM
  - Special Verdict
    - Not guilty by reason of insanity
  - M'Naghten Rules (ALL 3 REQUIRED)
    - AS NOT TO KNOW THE NATURE + QUALITY OF THE ACT HE WAS DOING
      - D cuts womens throat thinking he is slicing a loaf.
      - OR IF HE DID, HE DID NOT KNOW HIS ACT WAS WRONG
        EG: Because D suffering from delusions
        
        R v Johnson 2007
        CA dismissed appeal - Legal definition of insanity is still the M'Nagten test.
        
        D knew what he was doing - had not produced any evidence that he did not know his conduct was legally wrong.
    - CAUSED BY DISEASE OF MIND
      - Kemp
        GBH - NOT concerned with the brain but with the mind
      - Quick
        External cause because was automatism + NOT insanity. (Non - Insane automatism)
      - Sullivan
        D pleaded guilty ABH.Not guilty by reason of insanity.
      - Hennessy
        Disease of diabetes was effecting his mind, therefore comes within definition of insanity.
    - DEFECT OF REASON
      - Clarke 1972
        COA - "Defect of Reason" applied only to 'Persons who by reason of a disease of mind are deprived of the power of reasoning'
  - Availability: All offences where MR is required
  - Limitation: Not available for strict liability offences
  - Insanity proved by D on the balance of probabilities
- 3) AUTOMATISM
  - 1) Insane Automatism
    - Where automatism is a disease of the mind
  - 2) NON - Insane Automatism
    - The crime was committed by an involuntary act caused by external factors.
  - 3) Automatism arises where the accused's conduct is completely involuntary
  - 4) Automatism is an involuntary movement of the body or limbs. (Hill v Baxter)
  - 5) Automatism is a matter of law for the judge to decide
  - 6) Normally there must be medical evidence in support
  - CASES
    - Bratty
    - Quick
    - R v T (1990)
    - R v Hardie
      - Where D does not know his actions are likely to lead to self-induced automatism - Defence available
  - Limits for the defence (CASES)
    - A-G's Ref (No. 2 of 1992)
      - Must be "Total destruction of voluntary control" not just partial control
    - Bailey
      - If offence is one of specific intent, self-induced automatism can be defence because D lacks MR. Basic intent crimes, the prosecution must prove that D knew he was acting recklessly when he took the drug
  - Availability: All Offences
- 4) INTOXICATION
  - Covers intoxication by alcohol, drugs or other substances
  - 1) Was intoxication voluntary or involuntary?
  - 2) Is offence one of SPECIFIC OR BASIC Intent?
  - Availability: Vol. Intox. - Specific intent offences - Murder + s18 OAPA
  - Vol. Intox. not available basic intent offences - MS, s20, s47, Assault + Battery.
  - VOLUNTARY INTOXICATION
    - D chosen take intoxicating substance/knows effect of prescribed drug.
  - INVOLUNTARY INTOXICATION
    - D didn't know he was taking intoxicating substance
      - Kingston
        Invol.Tox. + basic intent crime. Court decided that he had formed the MR of the offence.
      - Hardie
        Invol Tox + basic intent crime. D hadn't been reckless in taking drugs. Therefore Defence
- 4) SELF - DEFENCE
  - Availability: All OAP Offences
  - "A person may use such force as is reasonable in the circumstances as he genuinely believes them to be in the defence of himself or another"
  - D Must Prove:
    - 1) It was necessary to use force on the facts as D believed them to be.
      - Belief doesn't need to be reasonable
        Williams
        If thought of genuine mistake the jury should judge D according to genine mistaken view of the facts, regardless of whether this mistake was reasonable or unreasonable
      - Not Necessary to away, but this will be good evidence that he was acting reasonably + in good faith.
        Bird
        If D proved to be retreating or calling off fight - Self defence available
    - 2) The amount of force used was reasonable in the circumstances
      - Excessive force then NO defence
        Martin 2002
        
        Clegg
Invol. Tox. - NOT a defence
- Kingston
  - Invol.Tox. + basic intent crime. Court decided that he had formed the MR of the offence.

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GENERAL DEFENCES

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