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Defences (Consent (Valid Consent (Fraud (If a person is lied to about the…
Defences
Consent
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Rough Horseplay
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Public policy justifies this as it encourages socialism, interaction and entertainment
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No harm must be intended and the victim consented or the defendant must have genuinley and honestly believed the victim would consent
Jones (1986) - Threw V's up in the air then allowed them to fall. Suffered a ruptured spleen and a broken arm. D realised the risk of minor injury but not that of a major injury
Bodily Adornment
Covers tattooing, ritual circumcision, ear-piercing and branding
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Cases
Adesanya - Incised the cheeks of her two sons aged 14 and 9 in the traditional Nigerian custom. Not valid as the boys were too young
Wilson (1996) - Branded his initials on his wife's skin with her consent. Convicted of ABH but the CA quashed the conviction
Fisher (2009) - Carved name into lover's arm with a knife while he was sleeping. Convicted under S.20 Wounding. She said she believed he would have consented but this could not be proven as she had only known him two days
Medical Treatment
'Surgery involves intentional violence resulting in actual bodily harm or sometimes serious bodily harm but surgery is a lawful activity' Lord Templeman
A person consents to medical treatment which can be expressed when they sign a form or implied when they visit the doctor
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Valid Consent
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Informed consent - The victim must know all the details of the risks of the act. Shown in Dica as the women did not know of the risk of contracting HIV
Fraud
If a person is lied to about the nature (what is going to happen) or the quality (purpose behind) or the identity of the person, it will be invalid consent
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Youth
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Burrell v Harmer - Tattooed 2 boys on the arms which later became painful. Convicted of ABH as the boys did not understand what they were doing
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Mental Incapacity
If the victim has mental health issues, they may not understand the nature of the act
Mrs B v An NHS Trust Hospital - Life-threatening illness, told doctors not to treat her. Hospital claimed she did not have the mental capacity to make such decisions. Court ruled she had the right to refuse treatment after 2 psychologists cleared her then changed their minds
Automatism
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AR must be a voluntary act and the defendant must be in control the entire time for an offence to be comitted
Automatism is a plea that the D's actions were involuntary and therefore does not have the AR and is not responsible for their conduct
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'An act which is done by the muscles without any control by the mind such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from a concussion' Lord Denning in Bratty (1963)
The defence must prove beyond reasonable doubt that the actions of the defendant were involuntary and medical evidence will prove so
In Watmore v Jenkins, it was stated that automatism is 'a complete destruction of voluntary control'
Cases
Hill v Baxter (1958) - Attacked by a swarm of bees, hit on the head by a stone, heart attack or a seizure
Whooley (1997) - Lorry driver stuck in a queue of slow-moving traffic. Suffered a sneezing fit, loosing control of his vehicle, he created a domino effect
AG's Reference (No.2 of 1992) - Lorry driver crashed into some parked cars and killed 2 people. Raised the defence of automatism based on 'driving without awareness' induced by 'repetitive visual stimulus experienced on long journeys on straight flat roads'. Defence should not have been left to the jury and it should not have been available as there was no complete loss of control
R v T (1990) - Took part in a robbery and raised the defence as at the time she was in a dissociative state, suffering from PTSD caused by the external factor of rape. There was medical evidence of her condition and the robbery took place days after. The defence was allowed but it has caused criticism as a mental disorder is internal but something extraordinary may constitute as external
Diabetes
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Quick (1973) - Diabetic nurse assaulted a patient. He had taken insulin but not eaten, had drank whiskey an rum. He could not remember the assault. Automatism plead as insulin (external factor) had caused the state not the diabetes
Hennessy (1989) - Took a car without consent whilst disqualified. Argued hyperglycaemia caused by a failure to take insulin, which in turn was caused by stress and depression. Judge wouldn't allow automatism so he had to plead insanity. Condition was due to internal diabetes
Self Induced?
When the D enters a state of automatism, aware of the risks
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CA ruled in Bailey (1983) that self-induced automatism is not a defence. A person who is aware of the risks of consuming alcohol or drugs cannot rely on the defence and could apply to someone suffering hypoglycaemia
However, in the case of diabetics, it is not commonly known the effects of hypoglycaemia and how it could be caused
Voluntary Intoxication
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For public policy reasons, this will not normally suffice as a defence as it is not in the public interest to provide an excuse
It is not a defence to crimes of basic intent (Majewski; Beard; Lipman). In these cases recklessness is used as the MR as it is reckless to become intoxicated
There is an exception to this rule; if the D would not have realised the risk had he been sober, then he would definitely not have realised the risk while drunk (Richardson and Irwin) this is a jury question
Cases
Majewski (1977) - D had been drinking and taking drugs. Assaulted 3 in a fight, then a PC, then another 2 PC's at the station
Beard (1920) - Drunkenly raped a 13yo girl then held his hand over her mouth and accidentally suffocated her
Lipman - After taking LSD, he hallucinated that his girlfriend had turned into a giant snake and killed her. His intoxicated state meant he did not have the mens rea for murder and was instead charged with manslaughter as he was reckless in takin the LSD
O'Grady/Hatton - If the D is mistaken about a situation as a result of intoxication, the defence will not be available
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Defence to crimes of specific intent. Only works if the D does not form the MR for the crime. HL ruled in Si crimes, the mens rea may not exist
If this works, they are usually convicted of a lesser, basic intent crime e.g. murder to manslaughter
if the D is mistaken about the situation as a result of intoxication, the defence will not be available, even to SI crimes (O'Grady;Hatton)
If the D decides to commit a crime and then gets drunk in order to offend, the defence will fail (Gallagher)
Involuntary Intoxication
Where the D does not knowingly or willingly become intoxicated or where they have an adverse reaction to a substance
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It must be established that D did not have the necessary mens rea for the crime. Didn't intend the consequences or wasn't reckless in regards to them
Eaton (1980) shows us that the jury must decide what caused D's condition (voluntary/involuntary) where both are involved. The question as the whether the intoxication is sufficient is for the judge to decide
Cases
Allen - Drank some homemade wine which he did not know was very strong. CA ruled he was still freely drinking and therefore it was volunatary
Kingston - D's drink laced with drugs, assaulted a boy indecently. Admitted at the time he had the necessary intent but would not have acted this way sober. Still had intent
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Insanity
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The M'Naughten Rules
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Secondly - to establish insanity it must be proven that at the time the D was 'labouring under such a defect of reason, from a disease of the mind, as not to know the nature and quality of the act he was doing; of if he did know it, that he did not know what he was doing was wrong
The issue of insanity can be raised in two ways; that the defendant was insane at the time of the offence or at the time of the trial the defendant does not understand the proceedings and is unfit to plead
Defect of Reason - A loss of the powers of reasoning, not simply a partial loss or failure to use them (Clarke)
Disease of the Mind - Any condition (physical or mental) which affects the mind in terms of memory, reasoning or understanding (Kemp). Can be temporary or permanent, curable or incurable (Sullivan; Burgess; Hennessey)
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Cases
Clarke - Defect of reason is a complete loss of the powers of reason. Forgetfulness or a failure to use reason is not sufficient. Old woman steals from a shop whilst suffering from depression and diabetes. Her husband is also very ill. CA ruled she did not lose the powers of reason
Kemp - Man attacks wife with a hammer. No history of violence. Ill with heart disease which was treated as a disease of the mind for the purpose of the case. CA ruled the 'mind' did not simply mean the brain, any condition which affects the functioning of the mind. 'Hardening of the arteries is a disease which is capable of affecting the mind in such a way as to cause a defect, temporarily or permenantly, of its reasoning, understanding and so on'. CA stressed that the most important thing was that there was a defect of reason and that it didn't matter whether the cause was because of a physical or men disorder
Sullivan - Epileptic suffered a seizure while visiting his elderly neighbour. Neighbour went to help but was attacked and needed hospital treatment
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Hennessy (1989) - Took a car without consent whilst disqualified. Argued hyperglycaemia caused by a failure to take insulin, which in turn was caused by stress and depression. Judge wouldn't allow automatism so he had to plead insanity. Condition was due to internal diabetes
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Windle - 'Wrong' means illegal. Narrows defence. Wife wanted to kill herself and was mentally ill. D suffering from 'Folie a deux'. Poisons her food with 100 aspirins. 'I suppose I will hang for this' shows he knew what he was doing at that it was illegal. Confirmed in Johnson 2007
Self Defence
Mostly found in common law but it was put in to statute in S.76 of the Criminal Justice and Immigration Act 2008
At common law, the defendant can use reasonable force to defend himself, another or his property
Reasonable force can also be used to prevent a crime or assist in lawful arrest under S.3 of the Criminal Law Act 1967
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