21st November 2019
Criminal Law - Lecture 11: Defences
Defences to non-fatal offences against the person:
1. Reasonable chastisement:
- The Children Act 2008 s 58 allows ‘reasonable chastisement’
- Only in England and Northern Ireland, banned in Scotland and shortly in Wales
- Does not apply to wounding, ABH, GBH or child cruelty, only applies to battery
- Must be for the purposes of chastising
- The moment it leaves a mark then it is ABH
- Physical chastisement of children in school has been against the law since 1998
2. Consent:
- You can consent to assault and battery but not to ABH, wounding or GBH
- EG consent does not provide a defence under s 47, 20 and 18 of the OAPA
- There are certain public policy exceptions to this rule such as: medical interventions,
sports, tattooing, horseplay, religious flagellaton
o Surgery and medical intervention:
Impossible to undertake surgery without wounding
Even if the outcome isn’t clear, you can consent
This applied to both essential and non-essential cosmetic treatment
People under the age of 16 have to assess the capacity of the child –
do they understand the medical procedure and the consequences
before the child can make decisions about their own medical
treatment
o Sports and entertainment:
Contact sports EG football and rugby
You’re not consenting to harm but you’re running the risk of being
harmed
Injuries during sports are not criminalised as long as they come within
the rules of the game (R v Barnes (2004))
o Horseplay:
Focuses on children so as not to criminalise injuries within
undisciplined play
‘Boys will be boys’ (Aitken [1992])
Street fights are banned
Not in the public interest to be able to consent to street fights beyond
a “minor struggle”
o Body and aesthetics:
Tattoo
Piercing
Haircut (Smith (2006))
EG R v BM [2018] WLR 883
BM tattooist, piercer, and did body modification such as
tongue splitting, removal of the ear and a nipple removal
Criminal Law - Lecture 11: Defences
Defences to non-fatal offences against the person:
1. Reasonable chastisement:
- The Children Act 2008 s 58 allows ‘reasonable chastisement’
- Only in England and Northern Ireland, banned in Scotland and shortly in Wales
- Does not apply to wounding, ABH, GBH or child cruelty, only applies to battery
- Must be for the purposes of chastising
- The moment it leaves a mark then it is ABH
- Physical chastisement of children in school has been against the law since 1998
2. Consent:
- You can consent to assault and battery but not to ABH, wounding or GBH
- EG consent does not provide a defence under s 47, 20 and 18 of the OAPA
- There are certain public policy exceptions to this rule such as: medical interventions,
sports, tattooing, horseplay, religious flagellaton
o Surgery and medical intervention:
Impossible to undertake surgery without wounding
Even if the outcome isn’t clear, you can consent
This applied to both essential and non-essential cosmetic treatment
People under the age of 16 have to assess the capacity of the child –
do they understand the medical procedure and the consequences
before the child can make decisions about their own medical
treatment
o Sports and entertainment:
Contact sports EG football and rugby
You’re not consenting to harm but you’re running the risk of being
harmed
Injuries during sports are not criminalised as long as they come within
the rules of the game (R v Barnes (2004))
o Horseplay:
Focuses on children so as not to criminalise injuries within
undisciplined play
‘Boys will be boys’ (Aitken [1992])
Street fights are banned
Not in the public interest to be able to consent to street fights beyond
a “minor struggle”
o Body and aesthetics:
Tattoo
Piercing
Haircut (Smith (2006))
EG R v BM [2018] WLR 883
BM tattooist, piercer, and did body modification such as
tongue splitting, removal of the ear and a nipple removal
