CONSENT
The defence of CONSENT may apply. The general rule is that consent cannot be a defence to
causing injury (above S39 Battery) as in LEACH, unless a public policy exception applies as set
out in BROWN.
Here the exception is [SAY WHICH EXCEPTION APPLIES:
o Rough horseplay as in JONES
o Piercing and tattooing (body adornment) as in WILSON
o 'vigorous' sexual contact, as in CONEY
o Organised contact sports when acting within the rules of the game (BARNES) but not
streetfighting, as in ATTORNEY GENERAL’S REFERENCE NO.6 OF 1980 and surgery
including ritual circumcision.
V’s CONSENT WAS GENUINE which means informed consent, as there was in RICHARDSON but
not in TABASSUM and DICA, because [e.g. V freely agreed to play in the match and understood
the risk]
D had GENUINE BELIEF that V consented, as in AITKEN, as [e.g. he thought V had consented
when playing].
[IF RELEVANT, for example if the V is very young: V did not have the CAPACITY (ability) to
give consent, as in GILLICK, as he was too young].
TO CONCLUDE, the defence of consent may/may not be successful.
LAWFUL FORCE / SELF DEFENCE
The defence of LAWFUL FORCE may apply, based on the [CHOOSE ONE: PRIVATE DEFENCE of
self-defence of another OR defence of property under common law OR the PUBLIC DEFENCE of
preventing a crime OR assisting arrest under the Criminal Law Act 1967].
Firstly, IT WAS NECESSARY TO USE FORCE. The threat was imminent (A-G’s REF No 2 of 1983),
D did not really have the chance to retreat (McINNES), and he only had a brief moment to
decide what to do (PALMER). This is because [e.g. D thought he was about to be stabbed when
he hit V]
[IF RELEVANT: The D can strike the first blow as in BECKFORD, there is no duty to retreat as
in BIRD, can be genuinely mistaken as to the threat, as set out in WILLIAMS; but the D
cannot rely on a mistaken belief caused by the voluntary intoxication, set out in O’GRADY].
Secondly, THE FORCE WAS REASONABLE WHEN COMPARED TO THE THREAT, an objective
‘reasonable person’ test under the Criminal Justice and Immigration Act 2008 and set out in
MARTIN. This is because [e.g. V was attacking him with a knife and from the reasonable person’s
viewpoint, D was entitled to punch V]
[IF RELEVANT: i.e. a burglary: The Crime and Courts Act 2013 states that the use of force
against an intruder such as a burglar must not be grossly disproportionate, which allows
householders to use disproportionate force in self-defence].
, TO CONCLUDE, the defence of lawful force may/may not be successful.
Self-defence/lawful force is also possible on the basis of mistaken belief in the need for force
following R v Williams 11983) and 5.76 (4) CJIA 2008, where it was held that D only has to
have an honest (as opposed to a reasonable) belief that force 'vas necessary. However, Bob's
drunkenness may prove problematic following R v O'Grady (1987] and 5.76 (5) CIA 2008 as the
jury would have to decide whether the mistaken belief was due to Bob's intoxication or was a
mistake he would have made when sober. Obviously, the evidence of just how drunk Bob was
would be vital in this respect. If Bob did have a sober and honest belief in the need for force,
the force used would not be disproportionate to the perceived threat Martin and 5.76 (6) CJIA
2008. The reasonableness of the force used is judged according to the circumstances as 0
believed them to be. The test is therefore whether Bob's forced was reasonable in the
circumstances that he mistakenly believed existed. In the heat of the moment, Bob cannot be
expected to judge his reaction to a nicety (5.76(7)(a). This means that Bob has a degree of
elbow in terms of the amount of forces he uses when under pressure. Finally, according to
5.76 (7)(b):
evidence of a person's having only done what the person honestly and instinctively thought
was necessary for a legitimate purpose constitutes strong evidence that only reasonable
action was taken by that person for that purpose.
It is likely that a court would hold that Bob's reaction here was honest, instinctive and for a
legitimate purpose. Subject to the intoxication point, above, it is likely that Bob's defence . I
succeeed.
AUTOMATISM (Sane Automatism)
The defence of AUTOMATISM (SANE AUTOMATISM) may apply.
D ACTED INVOLUTARILY as the act was done by the muscles, without the control of the
mind, as explained in BRATTY, when he [e.g. stabbed the man when he was concussed/
reflex/ action/ convulsion/ spasm/ hypnotised/ effect/ effect of anaesthetic/ effect of taking
insulin and not eating (QUICK) etc.]
D’s involuntary act had AN EXTERNAL CAUSE, as in HILL v BAXTER because [e.g. he was hit
on the head in an accident/ anaesthetic/ took insulin and didn’t eat (QUICK) / stung by bees
etc. Note that ‘EXTERNAL’ is treated loosely and includes a tumour (CHARLESON)].
[IF RELEVANT: SELF INDUCED (caused by the D) INVOLUARY ACT : D’s act was self-
induced [e.g. by taking drugs] and he was aware of the risks so the defence will fail
(BAILEY) OR D’s involuntary act was self-induced but he was unaware of the risks (e.g.
taking Valium in HARDIE) so the defence may still succeed (only for specific intent
crimes].
TO CONCLUDE, the defence automatism may/may not be successful.
Voluntary Intoxication (S18 & Murder ONLY)
The defence of CONSENT may apply. The general rule is that consent cannot be a defence to
causing injury (above S39 Battery) as in LEACH, unless a public policy exception applies as set
out in BROWN.
Here the exception is [SAY WHICH EXCEPTION APPLIES:
o Rough horseplay as in JONES
o Piercing and tattooing (body adornment) as in WILSON
o 'vigorous' sexual contact, as in CONEY
o Organised contact sports when acting within the rules of the game (BARNES) but not
streetfighting, as in ATTORNEY GENERAL’S REFERENCE NO.6 OF 1980 and surgery
including ritual circumcision.
V’s CONSENT WAS GENUINE which means informed consent, as there was in RICHARDSON but
not in TABASSUM and DICA, because [e.g. V freely agreed to play in the match and understood
the risk]
D had GENUINE BELIEF that V consented, as in AITKEN, as [e.g. he thought V had consented
when playing].
[IF RELEVANT, for example if the V is very young: V did not have the CAPACITY (ability) to
give consent, as in GILLICK, as he was too young].
TO CONCLUDE, the defence of consent may/may not be successful.
LAWFUL FORCE / SELF DEFENCE
The defence of LAWFUL FORCE may apply, based on the [CHOOSE ONE: PRIVATE DEFENCE of
self-defence of another OR defence of property under common law OR the PUBLIC DEFENCE of
preventing a crime OR assisting arrest under the Criminal Law Act 1967].
Firstly, IT WAS NECESSARY TO USE FORCE. The threat was imminent (A-G’s REF No 2 of 1983),
D did not really have the chance to retreat (McINNES), and he only had a brief moment to
decide what to do (PALMER). This is because [e.g. D thought he was about to be stabbed when
he hit V]
[IF RELEVANT: The D can strike the first blow as in BECKFORD, there is no duty to retreat as
in BIRD, can be genuinely mistaken as to the threat, as set out in WILLIAMS; but the D
cannot rely on a mistaken belief caused by the voluntary intoxication, set out in O’GRADY].
Secondly, THE FORCE WAS REASONABLE WHEN COMPARED TO THE THREAT, an objective
‘reasonable person’ test under the Criminal Justice and Immigration Act 2008 and set out in
MARTIN. This is because [e.g. V was attacking him with a knife and from the reasonable person’s
viewpoint, D was entitled to punch V]
[IF RELEVANT: i.e. a burglary: The Crime and Courts Act 2013 states that the use of force
against an intruder such as a burglar must not be grossly disproportionate, which allows
householders to use disproportionate force in self-defence].
, TO CONCLUDE, the defence of lawful force may/may not be successful.
Self-defence/lawful force is also possible on the basis of mistaken belief in the need for force
following R v Williams 11983) and 5.76 (4) CJIA 2008, where it was held that D only has to
have an honest (as opposed to a reasonable) belief that force 'vas necessary. However, Bob's
drunkenness may prove problematic following R v O'Grady (1987] and 5.76 (5) CIA 2008 as the
jury would have to decide whether the mistaken belief was due to Bob's intoxication or was a
mistake he would have made when sober. Obviously, the evidence of just how drunk Bob was
would be vital in this respect. If Bob did have a sober and honest belief in the need for force,
the force used would not be disproportionate to the perceived threat Martin and 5.76 (6) CJIA
2008. The reasonableness of the force used is judged according to the circumstances as 0
believed them to be. The test is therefore whether Bob's forced was reasonable in the
circumstances that he mistakenly believed existed. In the heat of the moment, Bob cannot be
expected to judge his reaction to a nicety (5.76(7)(a). This means that Bob has a degree of
elbow in terms of the amount of forces he uses when under pressure. Finally, according to
5.76 (7)(b):
evidence of a person's having only done what the person honestly and instinctively thought
was necessary for a legitimate purpose constitutes strong evidence that only reasonable
action was taken by that person for that purpose.
It is likely that a court would hold that Bob's reaction here was honest, instinctive and for a
legitimate purpose. Subject to the intoxication point, above, it is likely that Bob's defence . I
succeeed.
AUTOMATISM (Sane Automatism)
The defence of AUTOMATISM (SANE AUTOMATISM) may apply.
D ACTED INVOLUTARILY as the act was done by the muscles, without the control of the
mind, as explained in BRATTY, when he [e.g. stabbed the man when he was concussed/
reflex/ action/ convulsion/ spasm/ hypnotised/ effect/ effect of anaesthetic/ effect of taking
insulin and not eating (QUICK) etc.]
D’s involuntary act had AN EXTERNAL CAUSE, as in HILL v BAXTER because [e.g. he was hit
on the head in an accident/ anaesthetic/ took insulin and didn’t eat (QUICK) / stung by bees
etc. Note that ‘EXTERNAL’ is treated loosely and includes a tumour (CHARLESON)].
[IF RELEVANT: SELF INDUCED (caused by the D) INVOLUARY ACT : D’s act was self-
induced [e.g. by taking drugs] and he was aware of the risks so the defence will fail
(BAILEY) OR D’s involuntary act was self-induced but he was unaware of the risks (e.g.
taking Valium in HARDIE) so the defence may still succeed (only for specific intent
crimes].
TO CONCLUDE, the defence automatism may/may not be successful.
Voluntary Intoxication (S18 & Murder ONLY)
