intro to defences

Question 1

consent

Answer 1

Argued by D that the V consented to whatever harm was inflicted upon them

Donovan (1934) – the burden of proving lack of consent lies with the prosecution

Question 2

what criteria must be met for consent to be valid?

Answer 2

The consent must be real

The victim must not have been deceived

The consent must have been fully informed

Question 3

consent must be real

Answer 3

Consent is invalid if the victim lacks capacity (underage, mental capacity) – Howard (1965)

The victim must be able to understand the act they are consenting to (full knowledge) – Burrell v Harmer (1967)

Question 4

victim must not be deceived

Answer 4

A victim cannot be deceived into consenting

If there is deception, the consent for that is invalid

The deception can relate to either the nature of the harm or the quality

Tabassum (2000)

• Facts: D examined breasts of 3 women claiming he was researching for breast cancer software but was not medically trained and was doing for his own benefit
• Law: Indecent assault. The women had not consented to his intention – only for medical purposes. The consent to what he did was not valid.

Question 5

fully informed

Answer 5

To consent fully, the victim must have known all of the facts and the risks before they consent and before the act happens

Dica (2004)

• D slept with two women unaware of his disease, charged w/ recklessly causing GBH.
• Consent to intercourse was valid, but there was no consent to the risk of HIV.
• The defendant must know that they are suffering from the disease and it is possible to consent to the risk – as long as all above apply

Question 6

name 2 things you can consent to

Answer 6

assault

battery

Question 7

name 2 things you cannot consent to

Answer 7

ABH

murder

Question 8

name 5 exceptions/implied consent

Answer 8

sport
surgery
horseplay
sex
adornments/modications

Question 9

intoxication

Answer 9

Known as a denial defence

D is relying on the fact they were incapable of forming the MR of the offence they are charger with – due to the fact they were intoxicated

Question 10

4 key questions to be asked in intoxication

Answer 10

Why was D intoxicated?

Was the intoxicant known to be dangerous?

Was D at fault?

Voluntary or involuntary intoxication?

Question 11

involuntary intoxication

Answer 11

There is no liability if the involuntary intoxication caused the D not to form the MR for the offence

Kingston (1994) – there must be no MR by the D – if there is, then liability remains. A drugged intent is still intent.

Allen (1988) – D made homemade wine and didn’t appreciate strength & committed sexual assault. Intoxication voluntary = liability

Question 12

voluntary intoxication

Answer 12

If the intoxication is voluntary, then liability is dependent on whether the offence is one of specific or basic intent

The distinction was first drawn in DPP v Beard (1920)

Question 13

specific intent

Answer 13

Crimes requiring intent as the MR

Murder, theft etc

Where reckless will not suffice

Intoxication can be a defence to these crimes

Only if they are so intoxicated to be incapable of forming the intent

Question 14

basic intent

Answer 14

Intoxication will never be a defence to basic intent offences

Offences include common assault, criminal damage, arson and sexual assault

Generally, offences which allow for recklessness of the D as an MR

The MR in this case will always just be assumed by the courts

Question 15

dutch courage

Answer 15

A-G v Gallagher made this very clear – if you drink to give yourself ‘Dutch courage’ to be able to commit an offence, you cannot then claim to not have been able to have formed the MR of said offence

Question 16

intoxication and self-defence

Answer 16

If the D is under the belief that they are under attack and therefore acting in self-defence, they cannot rely on this mistake belief when it was induced by voluntary intoxication – this applied to both specific and basic intent

R v O’Grady (1987)