Defences AO1s - OCR, A-LEVEL

what kind of defence is consent?

a common law and full defence - judge made and results in an acquittal

consent: what did AG Ref say?

it is not in the public interest to cause ABH or GBH to each other unless it is a recognised exception, but you can consent to an assault or a battery

consent: what is an exception where GBH can be consented to?

sports like boxing - the injury must have happened ‘within the rules of the same’ (Billinghurst)

surgery: you can consent to surgery if you are ‘Gillick - competent’, but doctors will act without consent in an emergency

what is implied consent?

consent given to everyday batteries like bumping into someone on the tube (Wilson and Pringle) or tapping someone on the shoulder (Wiffen)

what must consent be?

valid and true (Dica, Tabassum), it mustn’t be obtained through fraud - Richardson did have the defence as there was no fraud

consent through fear is not valid (Olugbogia)

euthanasia is illegal - you cannot consent to death (Pretty)

what is consent a defence to?

horseplay (Aitkin) - this includes where d makes a mistake about consent (Jones)

what is consent not a defence to?

harmful sexual activity (Brown), but it was allowed in Wilson saying that branding was like a tattoo

the Law Commission’s proposed reform was that you can consent to injury, but not serious injury - the Domestic Abuse Act 2021 says there’s no defence for harmful sexual activity

what is the structure for AO1 CONSENT?

1. What type of defence is consent?

2. Ag Ref

3. Exceptions

4. Implied consent

5. What must consent be?

6. What is it a defence to?

7. What isn’t it a defence to?

what type of defence is insanity?

common law defence and it comes from M’Naughten 1843, if successful, you are deemed not guilty by reason of insanity and often sent to a mental hospital

everyone is presumed sane, the d has to prove on the balance of probabilities that they are not sane

insanity: what must d suffer from?

a defect of reasoning - Clarke says this much be a complete loss of the power of reasoning, being forgetful is not enough

the defect must come from a disease of the mind - this includes physical conditions in the body which defect the mind (Kemp), diabetes (Hennessey)

insanity: what must the defect be caused by?

an internal factor E.g sleepwalking (Burgess), epilepsy (Sullivan)

final point of insanity

the d doesn’t know the nature of their conduct E.g. they’re unconscious OR if they do, they don’t know that it’s wrong - Windle says wrong means legally wrong

what is the structure for AO1 INSANITY?

1. What type of defence is it?

2. What must d suffer from?

3. What’s the defect caused by?

4. D doesn’t understand what they did

who is the burden of proof on in automatism?

the prosecution to prove beyond all reasonable doubt that d’s actions were voluntary

automatism: what is it

Bratty sets out the law - automatism is where d’s act is done without any control of the mind, there’s no conscious thought E.g. spasms, reflex actions

what causes the automatism?

an external factor E.g. swarm of bees (Hill v Baxter) or sneezing (Whoolley)

taking too much insulin is considered automatism (Quick)

automatism: what must there be of control?

a total destruction of voluntary control (AG Ref), a partial loss is not enough

self induced automatism:

if automatism is self induced, then the d isn’t allowed the defence as they have been reckless (Bailey)

what’s the structure for automatism AO1?

1. Who is the burden of proof on?

2. What is it?

3. Where does it come from?

4. What must there be of control?

5. Self induced

what is d claiming with intoxication?

that they are so intoxicated through excessive drinking or drugs that they’re unable to form the mens rea of the crime

what is the difference between the two types of intoxication?

voluntary intoxication is where a d chooses to do it, involuntary intoxication is where d is not at fault

what are specific intent crimes?

where the MR has to be intention E.g S18 GBH, whereas basic intent crime are those where the MR can be recklessness E.g. S20 GBH

is there a defence for voluntary intoxication?

Majewski says there is never a defence of voluntary intoxication for basic intent crimes as d is reckless by becoming intoxicated

intoxication: is there a defence for specific intent crimes?

if d commits a specific intent crime and doesn’t have the MR, it’s reduced to the basic intent crime E.g. S18 to S20.

theft has no lesser offence so it results in an acquittal for d

when isn’t intoxication a defence?

for “Dutch courage” (Gallagher), also not a defence if d makes an intoxicated mistake (Lipman), unless it’s criminal damage (Jaggard)

intoxication: when does d have a full defence?

when the intoxication is involuntary

if a drug has the opposite effect E.g. a calming drug makes d aggressive - Hardie, it can become involuntary

HOWEVER

if d has the MR, it’s not involuntary intoxication even if d was spiked - Kingston says drugged intent is still intent

what’s the structure for intoxication AO1?

1. What is d claiming? Two types of intoxication.

2. Specific and basic intent crimes

3. Defence for voluntary intoxication?

4. Specific —> basic intent

5. What isn’t it a defence for?

6. When is it a defence?

7. Mens rea

what is necessity?

a defence where d commits to a crime to prevent a worse evil - they choose the lesser of two evils. the situation forces them to commit a crime

what isn’t necessity a defence to?

murder (Dudley and Stephens)

when has the defence of necessity not been allowed?

in Quayle (cannabis for pain) and in Cichon (dangerous dogs)

when has necessity been used?

in medical cases (Re S - c-section) and (Re F - sterilisation)

Re A allowed necessity as a defence to murder, but said treatment must be proportionate

structure for necessity AO1?

1. What is necessity?

2. What isn’t necessity a defence to?

3. When has it been used?

4. What was the exception?

what type of defence is duress by threats?

a full defence, resulting in an acquittal

AG Whelan says d is forced to commit a crime due to another person threatening them with GBH/death

duress of threats: who must the threat be to?

the d or others

Wright said “others” includes those close to d (not property or animals)

duress if threats: what must the threat be of?

death or serious harm - Valderrama-Vega says the threats to expose secrets are not enough by themselves

duress of threats: what must there be between the threat and the crime?

a NEXUS

duress of threats: what must the threat be (timing)?

it must be immediate, can be imminent - Hasan said if there is time/opportunity to go to the police, d must do so

what test must be satisfied in duress if threats?

the graham test

• the subjective part: did d act due to the fear of death or serious injury?

• the objective part: would a sober person of reasonable firmness with d’s characteristics have acted in the same way?

duress of threats: what characteristics aren’t accepted?

Bowen set out these characteristics. “low IQ” or being timid are not relevant characteristics. age, gender, pregnancy, mental & physical disabilities are not relevant characteristics that make d more susceptible to threats

duress by threats: IF RELEVANT

no defence to murder (Howe)

no defence to attempted murder (Gotts)

no defence if it’s self induced (Hasan) e.g by joining a gang - if d ought to have know it was a violent group, no defence

duress by threats: CHECKLIST

1. who is the threat to?

2. threat of death/gbh?

3. is there a connection?

4. was it immediate?

5. both parts of the Graham Test

6. are there limitations?

what’s the structure for duress by threats AO1?

1. What type of defence is it + definition

2. Who is the threat to?

3. What must the threat be of?

4. Connection between threat and crime

5. Immediate threat

6. Graham test

7. Characteristics

8. IF RELEVANT

what type of defence is duress of circumstances?

a full defence, resulting in an acquittal

what is duress by circumstances?

where d is forced to commit a crime due to the circumstances they find themselves in

duress of circumstances: what cases recognised the defence?

Willer recognised the defence and Conway established it - did the situation force d to act as they did?

what test must be used in duress of circumstances?

the Graham Test:

• subjective part: did d act due to the fear of death or gbh

• objective part: would a sober person of reasonable firmness, with d’s characteristics have acted in the same way?

what crimes can duress of circumstances be used for?

Pommell established that the defence can be used for non-driving offences. it’s not available to murder or attempted murder and d must stop committing the crime ASAP

duress of circumstances: what must the crime be?

reasonable and proportionate to the threat and the fear of harm must be physical, not psychological

duress of circumstances: last two points

Cairns said the threat doesn’t have to be real - if d believes it to be real, they can use the defence

Shayler said the “public” isn’t a close enough threat

what is the structure of duress of circumstances AO1?

1. What type of defence is it and definition?

2. Who recognised and created the defence?

3. Graham test

4. What offences is it available and not available to?

5. Crime = reasonable and proportionate to threat

6. Threat doesn’t have to be real, has to be close

what type of defence is self defence?

a full defence - leads to an acquittal

the burden is on the prosecution to disprove self-defence - the term ‘self’ applies to defending others

what acts does self-defence come from?

Section 3 of the Criminal Law Act 1967 - defendant can use reasonable force to prevent a crime

Section 76 of the Criminal Justice and Immigration Act 2008 - was it necessary to use force? was it proportionate and reasonable force? was it reasonable in the circumstances?

when won’t d have the defence of self-defence?

if the force is excessive (Hussain) or the danger has passed (Martin, Clegg)

can d make preparations in self-defence?

d can pre-empt being attacked and strike first, they don’t need to retreat from the danger (Bird)

d can make preparations to act in self defence e.g AG Ref who had petrol bombs in his shop

self defence: is intoxication relevant?

there’s no defence is d makes an intoxicated mistake about needing to act in self defence (Lipman), but if d makes an honest mistake about acting in self-defence, the defence is available (Gladstone Williams)

self defence: are characteristics relevant?

characteristics e.g paranoia are not taken into account (Martin)

self defence: who can use more force?

householders can use more force, they can use disproportionate force, but not grossly disproportionate force (Section 43 of the Crime and Courts Act 2013) “up to grossly disproportionate”

self defence: last point

d must believe v is a trespasser, it must be a dwelling and d mustn’t be a trespasser themselves

what is the structure of self-defence AO1?

1. What type of defence? Who is the burden on?

2. Two acts that legalise it

3. When doesn’t d get the defence?

4. Can you predict an attack?

5. Intoxicated mistake

6. Characteristics

7. Householders

8. V trespasser, dwelling, d trespasser