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Defences - Coggle Diagram

- - - - D honestly believed the use of force was necessary (trigger) and
        
        R v Gladstone Williams- This is based on the facts D subjectively believed them to be
        
        mistake by voluntary intoxication
        
        R v O’Connor- if mistaken belief is due to voluntary intoxication of D, D will not be able to rely on that mistake. This is the case whether specific or basic intent crime
        
        R v Bird- there is no duty to retreat but it will be good evidence if he does or shows he is willing to disengage
        
        anticipatory
        
        RG Ref No.2 of 1983- D can make an anticipatory blow and rely on the defence if there is no doubt the principles set out are still applicable
        
        Beckford v R- confirm they do not have to wait for assailant to strike, they can take pre-emptive strike
        
        Devlin v Armstrong- can use force not to counter an attack, but to ward off or prevent an actual attack which they honestly anticipated
        
        self defence used by an antagonist
        
        R v Forrester- being the initial aggressor does not destroy the right to self defence, as long as the aggressor's response to the victim's offense was reasonable
        
        R v Rashford- this depends on circumstances, D could use self defence if the victim then fights back but also turns into the offensive and becomes the aggressor
        
        R v Keane and McGrath- self defence can only be used by the original aggressor if the response is so out of proportion to the original aggressor’s actions that the roles were effectively reversed
        
        force against an innocent third party
        
        R v Hichens- not successful in this case, but force can be applied to an innocent third party to prevent a crime or protect themselves: e.g. a police constable bundling a passer by out of the way to get at a person they believed was about to shoot a firearm
      - The level of force used in response was objectively reasonable in the circumstances as D believed them to be (response)
        
        S76 CJIA 2008
        
        (3) whether degree of force used by D was reasonable is to be decided by reference to the circumstances as D believed them
        
        (4) if D claims to have held a particular belief as regards the existence of any circumstances
        
        (a) the reasonableness or otherwise of that belief is relevant to the question whether they genuinely held it
        
        (b) if it is determined D genuinely held it, D can rely on it, whether or not (i) it was mistaken (ii) if it was mistaken, the mistake was a reasonable one to have made
        
        (5) but (4)(b) does not enable D to rely on any mistaken belief attributable to voluntary intoxication
        
        R v Harvey- must take into account the danger as D believed to be
        
        R v Press and Thompson- allowed to rely on PTSD substantiating their mistaken beliefs
        
        AG Ref for N Ireland No.1 1975- take into account they were in the heat of the moment and they probably only had a second or two to make the decision
        
        R v Palmer- the person cannot weigh to a nicety the exactv measure of necessary force. Jury must believe it was the instinctive and honest act of defence
        
        S76(7)(a) codifies thw principle a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of necessary action
        
        S76(7)(b) evidence of it being honest and instinctual constitutes strong evidence action was reasonable
        
        S76(8A)-(8F) defines householder cases:
        
        protecting yourself or another, not property, preventing crime or assisting arrest
        
        Uses force while in a building/part of what is a dwelling or forces accommodation:
        
        Includes vessel or vehicle, places of work and internal access routes if D or another person dwells in part of a building, another part of the building is a place of work for D or another person, you can move between the dwelling and place of work through an internal access route
        
        D must not be a trespasser when force is used on them and they believed V to be in or entering part of the building as a trespasser
        
        new two limb test
        
        if force was grossly disproportionate in circumstances D believed them to be, then no defence
        
        If it was not, jury must be asked whether the level of force was reasonable
        
        R v Ray (Steven)- CoA case confirmed R (Denby Collins)- two part test for the second limb- force which is disproportionate, but not grossly disproportionate, may or may not be reasonable
        
        Householder cases should take into account wanting to shock the intruder, time of day, presence of other help, desire to protect occupants, vulnerability of occupants (particularly children), or picking up of an object in the home like a knife, conduct of intruder
        
        force will not be reasonable if disproportionate
- - - - It is for prosecution to prove V did not consent and that D did not believe in V’s consent
      - If D wrongly believes V consented (even if this is due to intoxication), consent could be available- R v Richardson and Irwin
      - If V consented and D did not know this, then the defence could be available
    - - AG Ref No.6 1980- cannot consent to ABH/a full on fight, it is immaterial whether it is in a public space
      - R v Brown- cannot consent to anything greater than battery, unless it falls into a ‘good reason’- sadomasochism was not a good reason. Good reasons include sport, parental chastisement or reasonable surgery
      - R v Meachen- exception for consent for ABH or worse when D: intended only to commit battery with consent of V, and D did not see risk of inflicting ABH
        
        Can’t rely on using that you did not see the risk, if the reason you did not see the risk is that you were intoxicated
      - ABH and above exceptions: public interest:- Medical treatment, sport, horseplay, tattooing, body piercing, personal adornment, sexual gratification/accidental infliction of harm and lawful correction of a child. Medical treatment- consent can be given for surgery and treatment that causes harm, consent can be given to a high risk of death. Sport- if within rules of the game. Participants consent to injuries incidental to the game
      - R v Barnes- criminal prosecution should be reserved for conduct sufficiently grave it should be categorised as criminal. Must go beyond what can reasonably be accepted as taking part in the sport. Take into account type of sport, level sport was played at, risk of injury, state of mind of D. Being sent off or penalised for it in the game does not necessarily make it criminal, especially when playing at a high level with high stakes
      - R v Billinghurst- punching in rugby was convicted as it was ‘off the ball’ play
      - horseplay
        
        R v Richardson and Irwin- holding friend over a balcony and accidentally dropped and breaking multiple bones was quashed as the judge did not direct the jury to consider consent
        
        R v Jones- rough and undisciplined horseplay like throwing their friend in the air and dropping them and they break an arm can consider consent as they did not intend the actual harm
        
        R v Aitken- drunk RAF officers were setting their fire resistant suits on fire and one of them got severely burned, this was quashed on the Jones principle
      - tattooing, piercing and adornment
        
        R v Wilson- branding initials into buttocks with a hot knife was consented as it was not viewed as different to tattooing or other adornment
        
        R v BM- refused to include body modification like removal or an ear/nipple and division of tongue like a reptile in the category of personal adornment and cannot be consented to
      - sexual gratification
        
        Since S71 Domestic Abuse Act 2021 cannot consent to ABH or more for purposes of sexual gratification
        
        Exception: R v Dica- someone can consent to risk of getting an STI. Cannot consent to deliberate HIV infection though as this requires long term health care
      - lawful correction of a child
        
        Children Act 2004 S58 states reasonable punishment defence cannot be relied upon if ABH or above
        
        R v Hopley- defence of reasonable chastisement (subject to article 3- no one shall be subjected to torture or inhuman or degrading treatment)
        
        R v H- must look at nature and context of parent’s behaviour, duration, physical and mental consequences for the child, and reasons for punishment
        
        Limitation on extending categories: R v BM- cannot make entirely new exceptiosn, must be by analogy to another exception already established. Relies on conflicting views of society and better explored politically