Defences 1

1. Defences 1 • In this lecture, we will: • Consider the defences of: Consent Self defence Prevention of crime • Explore the concept of reasonable force.

2. 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.

3. 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.

4. Relevant caselaw: • Clarence (1888) – involved fraud as to the nature of the act. • Would the case be decided differently today? Yes, see Dica (2004)

5. Richardson (1999) – involved fraud as to ID

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

7. 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.

8. When may consent operate as a defence? • In the Attorney-General’s Reference (No 6 of 1980), it was stated thatV’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.”

9. 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.

10. 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?

11. In Slingsby ((1995),theCrown 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.

12. 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.

13. 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, seeEmmett (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.

14. 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).

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

16. 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).

17. 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).

18. 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.

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

20. 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.

21. 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.

22. 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, seeDuffy.

23. 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).

24. 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).

25. 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.

26. 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.