Defences 1

• In this lecture, we will:

• Consider the defences of:

Consent

Self defence

Prevention of crime

• Explore the concept of reasonable force.

The nature of consent

• Consent will only negative liability if it is a valid consent i.e.

• 1. V was able to give a true consent which has not been vitiated (rendered invalid) by, for example, fraud and

• 2. The application of force can be consented to in the circumstances.

When will fraud vitiate consent?

• Fraud will vitiate consent only if it relates to the nature or quality of the act involved or the ID of the person performing the act.

• Relevant caselaw:

• Clarence (1888) – involved fraud as to the nature of the act.

• Would the case be decided differently today? Yes, see Dica (2004)

• Richardson (1999) – involved fraud as to ID

• Tabassum (2000) – involved fraud as to the quality of the act

• The courts have recognised that everyday life involves many incidents where there is physical contact with others which should not be treated as criminal. See Wilson v Pringle (1986) in which the court stated that to be criminal, the touching must be hostile touching.

When may consent operate as a defence?

• In the Attorney-General’s Reference (No 6 of 1980), it was stated that V’s consent will not prevent D being criminally liable “if actual bodily harm is intended and/ or caused.”

• Reason?• “it’s not in the public interest that people

should try to cause or should cause each other actual bodily harm for no good reason.”

• Brown (1994)• HL, following the Att Gen’s Ref, held that

consent was a defence to assault or battery but not to an offence where more serious harm occurred such as s.47/20/18 unless the public interest required that the activity in question fell within an exception.

• ECHR held that the convictions did not contravene Article 8 – the right to respect for private life.

Bodily harm intended and/or caused

• The usage of the term “and or caused” which has been approved by HL suggests that an act done with consent, but which causes harm, constitutes an offence even where D does not intend to cause harm, does not foresee harm or even where harm was not foreseeable. Unfair?

• In Slingsby ((1995), the Crown Court chose the path of fairness and did not follow The Reference and Brown and refused to hold D liable where there was no assault even though harm was caused.

When does the public interest require that a person may

validly consent to at least abh?

• Reasonable surgical interference i.e. an operation performed for therapeutic reasons.

• In Brown, some of their Lordships suggested that V can validly consent to tattooing (provided V is over 18) and ear-piercing.

• In Wilson (1996), where there had been no “aggressive intent” and the branding was akin to tattooing/body piercing (the wife treated it as a physical adornment), D was niot liable for s.47 assault.

• But, see Emmett (1999) in which the court stated that the actual or potential harm to which V was exposed had gone well beyond that in Wilson and, further, there was no reason to draw a distinction between sado-masochistic activity between heterosexuals and that between homosexuals.

• V may give valid consent to the risk of harm harm in the sporting context where the sport is a properly conducted sport.

• E.g. rugby, boxing or wrestling, and the injury occurs whilst playing within the rules of the game.

• However, where D injures a fellow sportsman outside the rules of the game, consent is no defence, see Billinghurst (1978).

• Consent to participation in rough and undisciplined horseplay negatives liability for an assault offence, see Aitken (1992) and Jones (1986).

When is consent to harm not in the public interest?

• In Brown, their Lordships held that consent to sado-masochistic acts of violence was no defence to charges of assault occasioning actual bodily harm and wounding contrary to s.47 and s.20 OAPA 1861.

• An agreed fight to settle differences between the parties, see Att Gen’s Ref (No 6 of 1980).

Self defence & Prevention of crime

• D may have a successful defence at common law if he uses "reasonable force" against another in defence of himself or another (or to protect property), see Duffy (1967).

• Where there is fear of imminent violence, the act of self-defence need not be spontaneous, see Attorney General’s Reference (No 2 of 1983). Thus, D can strike first to repel an expected attack.

• Prevention of crime is a defence under s.3 Criminal Law Act 1967.

• Considerable overlap between self-defence and prevention of crime so that in many instances, D could plead either defence. However, if D was attacked by someone who was not committing a crime as, e.g. he was doli incapax, D could not rely upon prevention of crime but could rely on self-defence.

The similarities and relationship between self defence and prevention of

crime• Both defences are subject to the test of reasonableness.

• Both defences provide a justification for D's conduct which renders the force lawful.

• Both are available as defences to the same offences.

• D, who acted in self-defence or in defence of others, can argue that he acted in the prevention of a crime and can, therefore, raise either self defence or prevention of crime as a defence, see Duffy.

• What is reasonable force is a question of fact for the jury. The test is objective - whether, in the view of the jury, a reasonable person would have used such force in the circumstances as D perceived them to be, see Williams (1983).

• No need for exact proportionality between the threat posed and the force used, see Palmer v The Queen (1971).

• No duty to retreat (Bird (1985)) but unwillingness to fight is a factor to be taken into account as it is evidence of reasonableness (Reference No 1 of 1975).

What is the effect of mistake as to the degree

of force required?• In Owino (1995), the CA stated that D

was not entitled to use any degree of force he believed to be reasonable, however ill founded that belief. Rather, D may use such force as is objectively reasonable in the circumstances as he subjectively believes them to be.

• Also see Martin (Anthony) (2002).• Psychiatric evidence that D would have

perceived the circumstances as being a greater threat than a normal person would have is not admissible on policy grounds.

• Unfair?• Evidence of D’s physical characteristics may,

however, be admissible.