Criminal 8 Consent and Self-Defence

Two Forms of Consent

* The victim consented
* The defendant believed the victim consented

R v Richardson and Irwin

If the defendant wrongly believed that the victim consented the defence is still available

General Rule for Consent

It is only available in cases of assault and/or battery

R v Meachen

Consent available as a defence even where actual bodily harm or worse is caused provided the defendant: 

* Intended only to commit a battery with the consent of the victim; and 


* Did not see the risk of inflicting actual bodily harm. 

Exceptions where Consent will apply

* Medical Treatment
* Sport
* Horseplay
* Tattooing, body piercing and personal adornment
* Sexual gratification/ accidental infliction of harm

Consent in Medical Treatment

* Can be given for surgery and other medical treatment that causes harm. 
* Can be given to a high risk of death. 

Consent in Sport

Consent will be given until the action goes beyond what a player could reasonably regard as being accepted by taking part in the sport

R v Billinghurst

While a rugby player may consent to being punched, being punched off of the ball was not consented to

Horseplay

Consent may be given where defendant and victim are messing around together

R v Aitken

Drunk RAF pilots accidentally set their colleague’s fire resistant suit on fire whilst “horseplaying”, the conviction was quashed

R v Wilson

Using a hot knife to brand initials could be consented to as it fell under the remit of tattooing, body piercing and personal adornment

R v Dica

Consenting to being infected with HIV is not possible as it amounts to GBH

R v Emmett

Sexual gratification which amounts to violent conduct is not capable of being consented to

R v Brown

Question whether the defence of consent should be extended to the consequences of sadomasochistic encounters can only be decided by consideration of policy and public interest

R v Hopley

A parent can raise the defence of consent where reasonably chastising their child

Children Act 2004, s54

Consent cannot be used where chastising a child causes ABH or above

Types of Self-Defence

* Protecting themselves
* Protecting someone else
* Protecting property
* Preventing a crime
* Assisting in the arrest of an offender

Test for Self-Defence

1. Did the defendant honestly believe that the use of force was necessary?
2. Was the level of force used objectively reasonable in the circumstances as the defendant believed them to be?

R v Clegg

Self-Defence is a complete defence, if it fails the whole defence fails except for Murder, where it may reduce the charge to voluntary manslaughter on the basis of loss of control

R v Gladstone Williams

For self-defence, the defendant’s ctions must be judged according to the facts as he honestly believed them to be

Mistake induced by Involuntary Intoxication

Cannot be relied upon as a defence

R v O’Connor

If the mistaken belief is due to the voluntary intoxication of the defendant, then the defender will not be able to rely on their mistake

R v Bird

There is no duty to retreat for self-defence however the defendant should demonstrate that he does not want to fight

Anticipatory Self-Defence

A defendant may make the first blow and still rely on the defence

Beckford v R

man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot

R v Rashford

Self-Defence may be relied upon my an antagonist in response to the victim’s actions

R v Hichens

Self-Defence can be used on an innocent third party to prevent an offence

Householder Cases of Self-Defence

In situations where the defendant is protecting themself or another in a building that is a dwelling, is not a trespasser and believes the victim to be a trespasser

Questions for Householder Self Defence

* Was the force grossly disproportionate in the circumstances as the defendant believed them to be?
* If not, was the level of force reasonable?