GDL - Consent and Self-Defence

Question 1

Burden of proof for consent

Answer 1

for the prosecution to prove both that the victim did not consent and that the defendant did not believe in the victim’s consent

Question 2

if the defendant wrongly believed the victim consented, can they successfully argue consent?

Answer 2

Yes the defence could be available (R v Richardson and Irwin)

Question 3

General rule is that consent is only available for

Answer 3

assault and battery

Question 4

Consent is available as a defence, even where ABH or worse is caused, provided the defendant:

Answer 4

intended only to commit a battery with the consent of the victim; and
did not see the risk of inflicting ABH

Question 5

If the defendant intended to cause ABH, can they raise consent?

Answer 5

No, even if the victim consented (other than the exceptions)

Question 6

Public interest exceptions for consent include

Answer 6

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

Question 7

in organised sport, criminal prosecution should be reserved for those situations where the conduct was

Answer 7

‘sufficiently grave’

Question 8

Can you argue consent for branding someone else?

Answer 8

Yes, there is no logical difference between this type of branding, tattooing, body piercing, and similar personal adornments, which is a lawful activity.

Question 9

What is discluded from body piercing/adornment exception for consent?

Answer 9

body modification eg removal of parts

Question 10

What are rules on consent for harm sustained during sexual acts?

Answer 10

a person cannot consent to the infliction of harm that results in ABH or more for the purposes of obtaining sexual gratification

Question 11

Can you consent to deliberate HIV infection?

Answer 11

No

Question 12

Self-defence can be used to

Answer 12

protect yourself, another or property

Question 13

Self-defence cannot be relied on to protect against

Answer 13

psychological harm

Question 14

Self-defence can be argued under

Answer 14

common law or statute (CLA 1967)

Question 15

Outcome of arguing self-defence

Answer 15

Total defence so D will either be acquitted by self-defence or the defence will fail

Question 16

trigger for self-defence

Answer 16

D honestly believed that the use of force was necessary

Question 17

To satisfy the trigger for self-defence, the jury must believe that

Answer 17

the D believed that he was being attacked or that a crime was being committed, and that force was necessary to protect himself or to prevent the crime

Question 18

How does voluntary intoxication impact self-defence?

Answer 18

Self-defence cannot be relied on if a mistake is induced by voluntary intoxication

Question 19

Is there a duty to retreat rather than defend oneself?

Answer 19

No, there is no duty to retreat in English law. However, if the defendant had an opportunity to retreat, this may be regarded as a relevant factor.

Question 20

Can you strike the first blow and rely on self-defence?

Answer 20

Yes, the accused is still entitled to self-defence if: - object was to protect himself or his family or his property
- apprehended attack must be imminent
- the D’s actions must be such as he believed were no more than reasonably necessary to meet the force used by the attackers’

Question 21

When would an antagonist (eg burglar) be entitled to rely on self-defence?

Answer 21

if the D used excessive force in attempting to remove him, and that was what they were trying to do

Question 22

self-defence is available to the person who started the fight if the victim

Answer 22

responds with force that is wholly disproportionate to the attack (ie offensive, rather than defensive)

Question 23

Can you use force against an innocent third party to protect yourself?

Answer 23

Yes (eg knocking car keys out of hand of a drunk driver)

Question 24

Non-householder - the response

Answer 24

The jury must decide if the force used was objectively reasonable, given the facts as the defendant subjectively believed them to be

Question 25

whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as

Answer 25

D believed them to be (subjective test)

Question 26

In a non-householder case, if degree of force used by D was disproportionate in those circumstances...

Answer 26

it cannot be deemed reasonable

Question 27

Objective test in non-householder cases

Answer 27

whether the force used was reasonable in the circumstances and danger as D believed it to be

Question 28

How do householder and non-householder cases differ?

Answer 28

For householder, force will not be reasonable if it was grossly disproportionate (only disproportionate for non-householder)

Question 29

In householder cases, D's force will be reasonable unless

Answer 29

grossly disproportionate

Question 30

"grossly disproportionate"

Answer 30

a degree of force that "went completely over the top prima facie"

Question 31

2-stage test to the jury for response in householder cases

Answer 31

1) Was the force grossly disproportionate in the circumstances as the defendant believed them to be? 2) Was the level of force reasonable?

Question 32

Factors for jury to consider

Answer 32

shock of encountering an intruder; time of day; presence of other help; desire to protect the home and its occupants; vulnerability of the occupants, particularly children; picking up of an object (such as a knife or stick that would be lawfully to hand in the home); the conduct of the intruder at the time or previously, if known to defendant (eg violent ex-partner)

Question 33

In a householder case, you must be acting to protect

Answer 33

yourself or another (not property)

Question 34

Does the use of force in householder cases need to be reasonable?

Answer 34

Yes