evaluative points on consent and self defence Flashcards
(20 cards)
What general rule limits consent as a defence in criminal law?
Consent is not valid for serious harm unless it falls within certain recognised exceptions, such as sports, medical procedures, or horseplay.
Why was the ruling in R v Brown (1993) controversial?
The House of Lords refused consent as a defence for sadomasochistic acts between adults, criticised for prioritising morality over autonomy.
What is the significance of R v Wilson (1996)?
Contrasts with Brown; branding between husband and wife was permitted, showing inconsistency in the law based on context and perceived morality.
How does public policy influence the scope of consent?
The courts use public policy to deny consent in cases involving serious harm, even with genuine agreement, to protect society from unnecessary violence.
Why is the law on consent in sports complex?
It accepts consent to normal risks of the game but not to violence outside the rules, making it hard to draw clear lines during fast-paced play.
What issue arises with consent and fraud or deception?
Consent may be invalid if obtained through deception (e.g., identity or nature of the act), but the law is narrow, causing injustice in some cases.
How does the law treat consent in medical cases?
Full, informed consent is essential; failure can lead to criminal or civil liability, contrasting with the rigid limits in other areas like sexual activity or fights.
What reform could improve clarity in the law of consent?
Introduce a statutory framework to define when consent is valid and what harm can be consented to, reducing moral subjectivity.
What does R v Dica (2004) illustrate about consent and disease transmission?
Consent to sex did not equal consent to risk of HIV if the victim was unaware, highlighting issues of informed consent in sexual health.
Why is the defence of consent sometimes seen as paternalistic?
It can deny adults the freedom to consent to certain risks (e.g., in Brown), limiting individual autonomy supposedly ‘for their own good.’
What are the two key requirements for self-defence to succeed?
The force used must be necessary and proportionate (reasonable) based on the defendant’s honest perception of the threat.
What does the case of R v Gladstone Williams (1984) establish?
A defendant can rely on a mistaken belief in the need for force, even if the belief was unreasonable, if it was honestly held.
What is problematic about the ‘reasonable force’ standard?
It’s vague and subjective, depending on jury interpretation, which can lead to inconsistent outcomes.
How does R v Martin (Anthony) highlight issues in self-defence?
Martin used excessive force on burglars, sparking debate on whether mental health and fear should affect reasonableness of force.
What did the Crime and Courts Act 2013 change about self-defence in the home?
It allowed ‘disproportionate’ force in householder cases, but not ‘grossly disproportionate,’ giving more leeway to home defenders.
Why is the householder defence controversial?
Critics argue it encourages excessive violence and undermines objective standards of reasonableness.
Can pre-emptive strikes be justified in self-defence?
Yes, if the defendant honestly believed an attack was imminent, but it creates uncertainty and can be exploited.
What issue arises with retreat and self-defence?
While there’s no duty to retreat, failing to do so may be considered in assessing necessity, causing confusion in real-time situations.
What reform could clarify self-defence laws?
Create clearer statutory guidance on ‘reasonable force,’ especially in high-stress situations like home invasions or public altercations.
How do psychological factors affect reasonableness in self-defence?
Current law doesn’t consistently consider PTSD or fear when judging reasonableness, raising fairness concerns (e.g., Martin).
