DISCLAIMER: all information in these module reviews is taken from our own notes and research so please do not cite this in your work.
Welcome to the fifth instalment of our Module Reviews!
Our current focus now turns to Criminal law, with this Review covering the topics of consent in relation to non-fatal offences and self-defence. This is a brief summary intended to give a basic overview of the topic for those beginning their journey into Criminal law. Throughout this Review, I have cited criminal cases as authority for much of the information given, which you can find italicised throughout.
Introduction
This week’s Module Review will look at two defences in criminal law – consent and self-defence. Whilst we will look at self-defence generally in relation to any offence, our consideration of consent will be in the context of non-fatal offences, focussing on the public interest exceptions under which consent can be used as a defence to ABH and more serious offences.
Consent
In Attorney-General’s Reference (No. 6 of 1980), it was recognised that consent is a generally valid defence to assault or battery (covered in last week’s Review). However, consent to acts intended and/or likely to cause ABH or more serious levels of harm is not legally recognised as a valid defence unless the activity falls within one of the public interest exceptions we will discuss below.
1. Sport – it is generally recognised that players of sport consent to force of a kind which can be reasonably expected during a game (Billinghurst), but this must be ‘on ball’ as intentional infliction of injury enjoys no immunity (Barnes).
2. Rough horseplay – in Jones, it was found that school children could validly consent to ‘rough and undisciplined play’, so long as there was no intention to cause injury. This was taken one step further in Aitken – some RAF officers got drunk and set fire to one of group, causing him to suffer burns. Whilst their low drunkenness was found to be no defence, it was held that a genuine mistaken belief in rough horseplay could be.
3. Medical treatment – whilst surgical operations can be consented to, if a competent adult refuses consent to medical treatment, a failure to recognise this lack of consent can amount to criminal liability (St George’s Healthcare).
4. Tattooing – tattooing can be consented to, but not by minors (Brown). On a similar note, certain body modification cannot be consented to – in R v BM, the removal of an ear, nipple and forking of the tongue could not be consented to by individuals. However, the Court left to Parliament to make clear which forms of body modification can and cannot be consented to.
Key debate: consent, violence and sex – there is some debate as to whether the infliction of harm for sexual gratification should fall within the public interest exceptions. One of the main authorities on this is Brown – a group of individuals took part in sadomasochistic activities; no permanent injuries were caused and all parties consented willingly. It was held that this did not fall within the public interest.
Conversely, in Wilson, the defendant branded his initials onto his wife consensually; this was distinguished from Brown on the basis that the branding was analogous to a tattoo and was an act of love taking place in the matrimonial home that could not be interfered with. This is a particularly interesting area of debate in the context of the Domestic Abuse Bill passing through Parliament at the time this article is written, which illegalises non-fatal strangulation, even when consented to.
Self-Defence
Self-defence is typically an umbrella term used to describe two different types of defences which often overlap
There is private defence, a common law offence (Duffy) that covers unjustified attacks or threats to oneself and others (Williams (Gladstone)) or to one’s property (Hussey).
There is also prevention of a crime, covered by s.3 Criminal Law Act 1967: ‘A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.’
As of s.76 Criminal Justice and Immigration Act 2008, there are key requirements for self-defence as a whole:
1. The defendant must believe that the use of force is necessary (subjectively assessed).
2. The amount of force used must be reasonable (objectively assessed).
Ability to retreat – there is no duty to retreat from threats/violence (Julien). Similarly, a failure to demonstrate an unwillingness to fight will not vitiate the defence – in Bird, the defendant had been slapped and pinned against a wall by the victim and subsequently punched the victim with a glass in her hand, this was enough to constitute self-defence.
Imminence of the attack – whilst it is agreed that the circumstances can justify a pre-emptive strike (Beckford), the anticipated attack in which the defendant is acting in defence of must be imminent (Devlin v Armstrong). One can consider this in light of those acting in defence of domestic abuse where an attack might not necessarily be imminent – is the law satisfactory here?
Mistaken belief – the first requirement of self-defence is assessed subjectively, meaning that if the defendant has a mistaken, but genuine, belief that the use of force is necessary, this will be allowed even if it is not necessarily reasonable (Williams (Gladstone)).
In Yaman, the defendant mistakenly believed that three people entering his home were burglars and used a hammer on them in self-defence. Whilst there was no dispute as to the defendant’s mistaken belief, the defence failed on the second requirement of the test in that his use of force had been unreasonable as the intruders were unarmed.
In O’Grady, it was held that if a mistaken belief is induced by voluntary intoxication, the defendant cannot rely on private defence. The defendant had fallen asleep next to a friend who was also intoxicated and awoke to his friend punching him. The defendant retaliated and accidentally killed his friend. It was held that the defendant could not rely on self-defence due to voluntary intoxication.
Non-householder cases – there is significant public support for laws allowing more freedom to householders in the use of self-defence against intruders. Following amendments under the Crime and Courts Act 2013, the degree of force used by the defendant is not to be regarded as having been reasonable in the circumstances as the defendant believed them to be if it was ‘grossly disproportionate’ in those circumstances, a rather broader scope than unreasonableness.
Under s.76 of the Criminal Justice and Immigration Act 2008, a householder case is one where:
The defence concerned is self-defence.
The force is used by the defendant while in or partly in a building that is a dwelling or forced accommodation (or both)/
The defendant is not a trespasser at the time the force is used.
At the time the defendant believed the victim to be in/entering the building as a trespasser.
Key debate: should we have a distinction between householder and non-householder cases?
Thank you for reading this weeks’ Module Review! In part five, we will go on to look at sexual offences.
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