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Defences
Year 1 / ASYear 2 / A-LevelAQA, OCR, WJEC/Eduqas
Full and partial defences: M'Naghten insanity, automatism, Majewski intoxication, mistake, duress (R v Howe, R v Hasan), self-defence and prevention of crime (Criminal Law Act 1967 s.3; s.76 CJI Act 2008), consent, loss of control and diminished responsibility (Coroners and Justice Act 2009) — for AQA 3.2.5, OCR H418 Component 3 and WJEC/Eduqas Components 2-3 (criminal law option).
🎯 Learning Objectives
State and apply the M'Naghten rules (defect of reason, disease of the mind, not knowing the nature and quality of the act or that it was wrong) and the special verdict disposal options (AQA 3.2.5; OCR H418 Component 3)
Distinguish sane from insane automatism using the internal/external cause test (R v Quick; R v Hennessy; R v Burgess) and apply the rules on self-induced automatism (R v Bailey; R v Hardie)
Apply the Majewski distinction — why voluntary intoxication is no defence to crimes of basic intent but may negative intention for specific intent crimes (R v Sheehan & Moore; R v O'Grady; R v Heard) — and the rules on involuntary intoxication (R v Kingston)
State and apply the mistake rules — honest belief negating mens rea (DPP v Morgan; R v Williams) and the honest AND reasonable requirement under the Criminal Damage Act 1971, s.5(2)(a)
Apply the two-stage duress test (R v Graham), the relevant-characteristics limits (R v Bowen) and R v Hasan's foreseeability restrictions, and explain why duress is never available for murder (R v Howe; R v Gotts)
Apply self-defence and prevention of crime under the common law and Criminal Law Act 1967, s.3 as codified by the CJI Act 2008, s.76 — necessity, reasonableness (R v Owino) and householder force (Crime and Courts Act 2013)
Apply the loss of control qualifying triggers (CJA 2009, s.55; R v Clinton; R v Dawes; R v Asmelash) and diminished responsibility elements (Homicide Act 1957, s.2 as amended; R v Golds; R v Dowds; R v Dietschmann) as partial defences to murder (AQA 3.2.2)
📋 Key Definitions and Core Concepts
Insanity (M'Naghten rules): At the time of the offence D laboured under a defect of reason from a disease of the mind such that he did not know the nature and quality of his act, or did not know it was legally wrong; the verdict is 'not guilty by reason of insanity'.
Automatism: An involuntary act — total destruction of voluntary muscular control caused by an external factor (e.g. a blow to the head, hypoglycaemia from insulin, reflex action); a complete defence to all offences.
Self-induced automatism: Automatism brought on by the defendant's own fault, such as taking substances knowing of the risk: no defence to crimes of basic intent, but potentially available for specific intent crimes (R v Bailey; R v Hardie).
Crime of basic intent: An offence satisfied by recklessness (or intention) — the defendant is taken to have been reckless in getting drunk, so voluntary intoxication is no defence (R v Majewski); e.g. assault, s.47, s.20, manslaughter.
Crime of specific intent: An offence requiring a purpose beyond the act — recklessness insufficient (e.g. murder, s.18, theft, burglary with intent to GBH); evidence of intoxication may negative the required intention (R v Sheehan & Moore).
Mistake: Not a separate defence but a denial of mens rea: an honest (even unreasonable) mistaken belief in a fact negates the mental element for common-law offences (DPP v Morgan; R v Williams); under the Criminal Damage Act 1971, s.5(2)(a) the belief must be honest AND reasonable.
Duress: A defence where D commits an offence because of threats of death or serious physical injury which a sober person of reasonable firmness, sharing D's characteristics, would have been unable to resist (R v Graham; R v Hasan).
Duress of circumstances: Where circumstances (rather than threats from a person) objectively compel D to offend to avoid death or serious injury — e.g. fleeing violence while driving (R v Willer; R v Conway; R v Pommell); the Graham test applies.
Self-defence (s.76 CJI Act 2008): D may use such force as is (or as he honestly and instinctively believes is) reasonable in the circumstances as he believes them to be — under the common law and Criminal Law Act 1967, s.3; mistaken beliefs due to intoxication are disregarded.
Consent: Where V freely consents to the actus reus; generally no defence to actual bodily harm or worse (R v Donovan; A-G's Reference (No 6 of 1980)), subject to public-policy exceptions such as surgery, tattooing, properly conducted sports and accidental injury during lawful activity.
Loss of control (CJA 2009, s.54): A partial defence to murder: D's act resulted from a loss of self-control with a qualifying trigger under s.55 (fear of serious violence; things said or done of extremely grave character giving a justifiable sense of being seriously wronged), and a person of D's sex and age with normal tolerance might have reacted the same way; reduces murder to manslaughter.
Diminished responsibility (Homicide Act 1957, s.2 as amended by CJA 2009, s.52): A partial defence to murder: an abnormality of mental functioning arising from a recognised medical condition which substantially impairs D's ability to understand his conduct, form rational judgment or exercise self-control, and provides an explanation for the killing; reduces murder to manslaughter.
Insanity and automatism (AQA 3.2.5; OCR H418 Component 3)
Insanity — the M'Naghten rules (1843). D is insane if, at the time of the offence, he was labouring under a defect of reason from a disease of the mind, such that he did not know the nature and quality of his act, or did not know that it was wrong.
Defect of reason — D must be deprived of the power of reasoning, not merely have a momentary lapse: R v Clarke (1972) (brief absent-mindedness; confusion and depression can amount to a defect).
Disease of the mind — a legal, not medical, test: any internal condition producing a malfunction of the mind (reason, memory or understanding) with a lasting or recurring source: R v Kemp (1957) (arteriosclerosis); R v Sullivan (1984) (epilepsy); R v Burgess (1991) (sleepwalking); R v Hennessy (1989) (hyperglycaemia from untreated diabetes).
Wrong means legally wrong: R v Windle (1952) (D said he supposed they would hang him — knew it was wrong; conviction upheld).
The special verdict is not guilty by reason of insanity; disposal (hospital order, supervision order, absolute discharge) is governed by the Criminal Procedure (Insanity) Act 1964 as amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. Criticisms: the internal/external line is arbitrary; diabetes, epilepsy and sleepwalking all yield an 'insane' label; D bears the burden of proof on the balance of probabilities.
Automatism. An involuntary act — total destruction of voluntary control — negatives the actus reus. It is defined in Bratty v A-G for Northern Ireland (1963) as an act done without the exercise of the mind; where the cause is external (a blow to the head, hypoglycaemia from insulin — R v Quick (1973); a hypnotic drug taken without knowledge of any criminal tendency — R v Hardie (1985); rape trauma — R v T (1990)), it is sane automatism and leads to a full acquittal. Where the cause is internal, the M'Naghten rules apply instead (insane automatism). Self-induced automatism: R v Bailey (1983) (diabetic failed to eat after taking insulin and attacked his ex-lover): if D knew of a risk of automatism, that fault is treated as recklessness and the defence fails for crimes of basic intent; if the state was truly involuntary, the defence succeeds. Critics argue the internal/external distinction is unprincipled and the Law Commission has recommended abolition; examiners reward a clear internal/external table.
External → sane automatism: blow to the head; hypoglycaemia after insulin (Quick); Valium without criminal tendency (Hardie); rape trauma (R v T).
Insanity elements: defect of reason, disease of the mind, not knowing nature/quality or wrongfulness (M'Naghten; Clarke; Windle).
Intoxication (R v Majewski; R v O'Grady; AQA 3.2.5)
Voluntary intoxication interacts with the basic/specific intent distinction:
Crimes of basic intent — recklessness suffices (assault, s.47, s.20, manslaughter): DPP v Majewski (1977): voluntary intoxication is no defence; the jury simply disregards it — becoming voluntarily drunk is itself treated as recklessness. R v O'Grady (1987): an intoxicated mistaken belief in self-defence is no defence to a crime of basic intent ( manslaughter conviction); R v Hatton (2005): the same bar applies where D claims a drunken mistake that he was being attacked (conviction for s.18 upheld).
Crimes of specific intent — a purpose is required (murder, s.18, theft, burglary s.9(1)(a) with intent to GBH): evidence of intoxication may negative the required intention: R v Sheehan & Moore (1975) (drunken petrol-bomb throwers; if so drunk as to be only reckless, murder falls to manslaughter); R v Heard (2007) (drinking for 'Dutch courage' before using a sword — intoxication relevant where the intent was formed before drinking); R v Allen (1988) (intent formed before getting drunk — still liable).
Involuntary intoxication — no defence once the mens rea is established: R v Kingston (1995) (drugged and molested a boy; intent formed despite the drug); but evidence of automatism may be admissible where a non-dangerous drug was taken as prescribed: R v Hardie (1985).
Justifications for Majewski: getting voluntarily drunk is culpable (a 'mens rea equivalent'); the rule protects the public and simplifies trials. Criticisms: it is illogical to treat the same mental state differently depending on the offence; alcohol dependency raises disease questions (R v Tandy (1989) — chronic alcoholism can be a disease, but the automatic default must be excluded); the Law Commission (2009) recommended reform, including a possible new offence of 'intoxicated wrongdoing'; examiners reward the link between Majewski and O'Grady, and the point that R v G's fault-based approach sits uneasily with objective disregard of intoxication for basic intent crimes.
Quick recall — the intoxication ladder
Basic intent: Majewski — no defence; O'Grady/Hatton — intoxicated mistake in self-defence ignored.
Specific intent: Sheehan & Moore — may negative intent; Heard — Dutch courage; Allen — intent before drinking.
Involuntary: Kingston — no defence once intent formed; Hardie — non-dangerous drug, automatism evidence admissible.
Mistake and duress (R v Graham, R v Howe, R v Hasan)
Mistake is not a separate defence but a denial of mens rea. The rules:
Common-law offences: an honest (even unreasonable) mistaken belief in a fact negates the mental element: DPP v Morgan (1976) (rape; jury must be told an honest belief in consent is a defence even if unreasonable); R v Williams (1987) (self-defence; honest belief suffices).
Criminal Damage Act 1971, s.5(2)(a): the belief must be honest AND reasonable to negative recklessness.
Intoxicated mistake: R v O'Grady (1987) and R v Hatton (2005) — a drunken mistaken belief is no defence to a crime of basic intent, and is disregarded for self-defence (s.76(5) CJI Act 2008).
Duress — threats of death or serious physical injury which compel D to offend. The two-stage test is R v Graham (1982), restated in R v Hasan (2005): (1) was D compelled to act as he did because he reasonably believed he had good cause to fear death or serious injury? (2) if so, would a sober person of reasonable firmness, sharing D's characteristics, have responded to the threats by acting as D did?
Characteristics must be non-self-induced: age, sex, pregnancy, serious physical disability, recognised mental illness (R v Bowen (1996)); not low IQ, alcoholism or emotional instability.
Multiple threats: R v Valderrama-Vega (1985) (threats of death and exposure of homosexuality; monetary threats irrelevant but death/injury threats dominant — duress succeeded).
Limits (R v Hasan): duress fails where the threats were reasonably foreseeable, where D voluntarily associated with others he knew or ought to have known might put pressure on him, or where D was voluntarily intoxicated.
Never available for murder or attempted murder: R v Howe (1987) (House of Lords; also for accessories) and R v Gotts (1992) (attempted murder) — the sanctity of life outweighs the defendant's coercion.
Duress of circumstances — circumstances, not threats from a person, objectively compel D: R v Willer (1986) (drove off to escape a gang); R v Conway (1988) (taxi driver fled pursuing men); R v Pommell (1995) (took a gun from his brother intending to dispose of it). The Graham/Hasan test applies. Contrast necessity: R v Dudley & Stephens (1884) — necessity is no defence to murder.
Quick recall — duress checkpoints
Test: Graham (1982)/Hasan (2005) — reasonable belief in death/serious injury + sober person of reasonable firmness sharing characteristics.
Limits: Hasan — foreseeable threats, criminal association, voluntary intoxication.
No duress: murder and attempted murder (Howe; Gotts); duress of circumstances — Willer, Conway, Pommell.
Self-defence, prevention of crime and consent (Criminal Law Act 1967 s.3; s.76 CJI Act 2008)
Self-defence arises at common law and under the Criminal Law Act 1967, s.3 (prevention of crime: 'such force as is reasonable in the circumstances as he believes them to be'), now framed by the Criminal Justice and Immigration Act 2008, s.76. Two questions:
1. Was the force necessary? Turned on D's honest and genuine belief in the need to use force — even if the belief was unreasonable: R v Gladstone Williams (1987); R v Oatbridge (1994). A pre-emptive strike is lawful where an attack is imminent (A-G's Reference (No 2 of 1983) (1984)). A mistaken belief due to intoxication is disregarded: R v O'Grady (1987); R v Hatton (2005).
2. Was the force reasonable? Measured against the circumstances as D believed them to be — the force must be proportionate to the threat perceived, but need not match it exactly: Palmer v R (1971) (force is 'not measured on golden scales'); R v Owino (1996) (proportionate to the attack believed, not the attack made).
Householder cases — s.76(5A), inserted by the Crime and Courts Act 2013: a person defending his dwelling may use force that is disproportionate (but not grossly disproportionate) and still rely on the defence; the provision was held compatible with the ECHR in R (Collins) v Secretary of State for Justice (2016). R v Martin (2001) (Norfolk farmer) prompted the fresh consideration of force used in the home.
The burden is on the prosecution to disprove self-defence beyond reasonable doubt once sufficient evidence of it is raised.
Consent. Consent can negate the actus reus for the lowest offences, but there is no consent to actual bodily harm or worse: R v Donovan (1934); A-G's Reference (No 6 of 1980) (1981) (consensual fist-fight in the street — unlawful). Public-policy exceptions where consent is effective:
Surgery; tattooing and body piercing; R v Wilson (1996) (branding his wife's initials — analogy with tattooing; conviction quashed) — contrast R v BM (2018) (extreme body modification for sexual gratification fell outside the exceptions).
Properly conducted games and sports: R v Barnes (2004) (football tackle; mere negligence in sport is not criminal unless beyond what players can reasonably be expected to accept).
Injury accidentally caused during lawful consensual activity: R v Slingsby (1995) (wedding ring cut during rough consensual sex); rough horseplay: R v Aitken (1992) (setting fire to a fireproof flying suit).
Consent to the risk of transmission: R v Dica (2004) (informed consent can negate grievous bodily harm from HIV) — but the consent must be informed: R v Konzani (2005).
Limits: R v Brown (1993) (consensual sado-masochistic acts — no consent to actual bodily harm; the majority privileged the public interest in protecting people over individual autonomy; upheld by the European Court of Human Rights in Laskey v UK (1997)); R v Emmett (1999) (serious-injury acts fell outside the exceptions). Examiners reward the Wilson/Barnes/Slingsby exception list against the Brown limit, and the autonomy v public-interest evaluation.
Partial defences to murder — loss of control and diminished responsibility (Coroners and Justice Act 2009; AQA 3.2.2)
Both partial defences apply only to murder and reduce it to voluntary manslaughter, giving the judge full sentencing discretion instead of the mandatory life sentence.
Loss of control — Coroners and Justice Act 2009, s.54 (replacing the common-law defence of provocation). Three elements:
(1) Loss of self-control — expressly need not be sudden (s.54(2)); R v Jewell (2014): it is a matter for the jury whether there was a loss of self-control.
(2) A qualifying trigger (s.55): (a) fear of serious violence from V against D or another identified person (s.55(3)); (b) things said or done which constituted circumstances of an extremely grave character and gave D a justifiable sense of being seriously wronged (s.55(4)); or a combination. Sexual infidelity is expressly excluded (s.55(6)(c)) — R v Clinton (2012) (infidelity can form part of the background context to other things said or done, but is not itself a trigger); a self-induced trigger is disregarded (s.55(6)(a)-(b)) — R v Dawes (2013) (D who incited or participated in the violence loses the trigger); voluntary intoxication is disregarded — R v Asmelash (2013).
(3) The objective test: a person of D's sex and age with a normal degree of tolerance and self-restraint, in the same circumstances, might have reacted in the same way (s.54(1)(c)); R v Jewell: 'normal' tolerance — it need not be high.
Once the defence is raised, the burden is on the prosecution to disprove it beyond reasonable doubt. Revenge is excluded (s.54(4)); a considered desire for revenge defeats the defence.
Diminished responsibility — Homicide Act 1957, s.2 as amended by the CJA 2009, s.52. Three elements:
(1) An abnormality of mental functioning arising from a recognised medical condition — R v Dowds (2013): acute voluntary intoxication alone is not a recognised medical condition (though chronic alcoholism with associated brain damage can be: R v Tandy (1989)); R v Martin (2001): organic brain damage and depressive illness qualified.
(2) Substantial impairment of D's ability to (a) understand the nature of his conduct, (b) form a rational judgment, or (c) exercise self-control — one suffices; 'substantially' means more than trivially (R v Golds (2016)).
(3) The abnormality provides an explanation for D's acts or omissions. Intoxication does not defeat the defence where the abnormality remains a substantial cause: R v Dietschmann (2003) (grief plus alcohol; the jury asks whether the abnormality substantially impaired).
The burden is on D on the balance of probabilities (s.2(2)). Evaluation: loss of control removed the 'sudden and temporary' requirement, excluded sexual infidelity and narrowed the triggers, so fewer pleas succeed and gender criticism of the old provocation law (e.g. R v Ahluwalia (1992), decided under the old law) is partly met; diminished responsibility is broad and depends on psychiatric evidence, and Dowds shows the courts resisting pleas built on voluntary intoxication alone.
Quick recall — the two partial defences
Loss of control: s.54 — loss of self-control (need not be sudden); trigger s.55 — fear of serious violence OR grave things said/done with justifiable sense of being seriously wronged; sexual infidelity excluded (s.55(6)(c) — Clinton); self-induced trigger (Dawes); intoxication disregarded (Asmelash); objective — sex and age, normal tolerance (Jewell); revenge excluded (s.54(4)).
Diminished responsibility: s.2 (as amended by s.52 CJA 2009) — abnormality of mental functioning from a recognised medical condition; substantially impairs understanding/rational judgment/self-control (Golds); provides an explanation; intoxication alone insufficient (Dowds; Tandy); Dietschmann — drink does not defeat it.
Both reduce murder to voluntary manslaughter; burden on D for DR, on prosecution for loss of control.
💡 Worked Example
Exam-style: Dev, 34, suffers a recognised depressive disorder. His wife tells him she has been sleeping with his brother and is leaving with the children. Dev, who has been drinking heavily all evening, strangles her to death. Advise Dev on any defences to a charge of murder. [AQA 7162 Paper 1 style problem question, 25 marks]
Mark-scheme logic: The answer must hit: <strong>Murder made out</strong> — AR (unlawful killing) and MR (intention to kill or cause GBH) are present, so move to full and partial defences. <strong>Loss of control (CJA 2009, s.54)</strong>: loss of self-control is arguable (strangling after the revelation); qualifying trigger — the wife's words: were they of an extremely grave character and did they give Dev a justifiable sense of being seriously wronged (s.55(4))? Note sexual infidelity is expressly excluded (s.55(6)(c)) but per R v Clinton infidelity can be background context to other grave words; the revelation that she is leaving with the children may supply the grave element. Voluntary intoxication is disregarded when deciding trigger and loss of control (R v Asmelash). Objective test (s.54(1)(c)): a person of Dev's sex and age with normal tolerance in the same circumstances — argue both ways (R v Jewell). <strong>Diminished responsibility (Homicide Act 1957, s.2 as amended by CJA 2009, s.52)</strong>: depressive disorder is a recognised medical condition; it must substantially impair his ability to form a rational judgment (most apt here) — 'substantially' means more than trivially (R v Golds); the drink alone cannot found the plea (R v Dowds) but does not defeat it where the condition remains a substantial cause (R v Dietschmann). <strong>Conclusion</strong>: if the trigger is made out and the objective test satisfied, or the depressive disorder substantially impaired him, murder reduces to voluntary manslaughter; otherwise murder stands. A* answers sequence the defences (full defences first — insanity/automatism are implausible on the facts), apply s.54/s.52 element by element, and weigh the Clinton/Asmelash/Golds authorities before concluding.
❓ Practice Questions & Mark Schemes
Explain the distinction between insanity and automatism, referring to the internal/external cause approach. Refer to R v Quick, R v Hennessy and R v Burgess. [AQA Paper 1, 10 marks]
Answer: AO1: Insanity — the M'Naghten rules: a defect of reason from a disease of the mind such that D did not know the nature and quality of his act or that it was legally wrong; the verdict is not guilty by reason of insanity. Automatism — an involuntary act caused by an external factor, negating the actus reus and leading to a full acquittal. AO2: The dividing line is the cause of the involuntary state: an <strong>internal</strong> cause is treated as insanity — R v Hennessy (1989): hyperglycaemia from untreated diabetes; R v Burgess (1991): sleepwalking. An <strong>external</strong> cause is sane automatism — R v Quick (1973): hypoglycaemia caused by taking insulin; a blow to the head. AO3/conclusion: the distinction is legally decisive (acquittal v special verdict and its consequences) but arbitrary — the same diabetic condition yields different labels depending on whether insulin was taken; critics and the Law Commission have urged reform.
Terri becomes paranoid after smoking cannabis, believing her flatmate Ivan is stealing from her, and hits him with a lamp, breaking his arm. She later takes a Valium tablet prescribed for a friend before driving and crashes into a wall, damaging it. Advise Terri on her liability for s.20 and on any defences. [AQA 7162 Paper 1 style problem question, 25 marks]
Answer: AO1: s.20 OAPA 1861 requires unlawful infliction of GBH with intention or subjective recklessness. AO2: <strong>Voluntary intoxication</strong> — s.20 is a crime of basic intent, so under DPP v Majewski (1977) Terri's intoxication is no defence; the jury disregards it. If Terri claims she mistakenly believed Ivan was consenting or that she acted in self-defence, an intoxicated mistaken belief is no defence (R v O'Grady (1987); R v Hatton (2005)). <strong>Automatism</strong> — the cannabis-induced paranoia is self-induced automatism (R v Bailey (1983)): no defence to basic intent crimes. <strong>The Valium</strong> — a non-dangerous drug taken as prescribed is treated as involuntary: evidence of automatism is admissible (R v Hardie (1985)), so the s.1 criminal damage may fail if she was in an automatic state (causation of the crash is arguable). <strong>Conclusion</strong>: Terri is likely liable for s.20 (basic intent; intoxicated mistake no defence; self-induced automatism no defence); the criminal damage is arguable via R v Hardie. AO3: the answer rewards the Majewski/O'Grady/Hardie ladder and the point that self-induced automatism tracks the basic/specific intent distinction.
'Duress should be a full defence to murder.' Evaluate this statement. Refer to R v Howe, R v Gotts and R v Hasan. [AQA Paper 1, 25 marks]
Answer: AO1: Duress requires threats of death or serious physical injury; the two-stage test (R v Graham (1982); R v Hasan (2005)) — reasonable belief in death or serious injury, and a sober person of reasonable firmness sharing D's characteristics would have responded the same; duress fails where the threats were foreseeable, D associated with criminals or was voluntarily intoxicated (R v Hasan); it is <strong>never available for murder or attempted murder</strong> (R v Howe (1987); R v Gotts (1992)). AO3 (for the statement): a defendant facing death or serious injury is morally coerced — punishing him conflates the genuinely compelled with the voluntary offender; a person of reasonable firmness may still succumb; the law already excludes the blameworthy via Hasan's limits, so extending duress to murder would not open the floodgates; other jurisdictions allow it. AO3 (against): R v Howe reasons — the law places the highest value on human life; the person threatened can protect himself by submission rather than killing an innocent third party; opening duress to murder would invite fabricated threats and undermine certainty; the House of Lords in Howe deliberately closed the door and Gotts extended it to attempted murder. <strong>Judgement</strong>: the statement is understandable but unconvincing — the sanctity-of-life policy in Howe, plus Hasan's foreseeability limits, strike the balance; a defendant who kills under threat may still rely on diminished responsibility or the jury's sentencing discretion in manslaughter.
Perry, an elderly householder, hears a window break at night and, believing an intruder is entering, hits him with a cricket bat, breaking his arm. The intruder was a drunk neighbour who had mistaken the house. Advise Perry on self-defence. [AQA 7162 Paper 1 style problem question, 25 marks]
Answer: AO1: Self-defence arises at common law and under the Criminal Law Act 1967, s.3, framed by the CJI Act 2008, s.76: force must be necessary (honest belief) and reasonable (proportionate to the perceived threat). AO2: <strong>Necessity</strong> — Perry's belief that an intruder was entering was honest and genuine, even if unreasonable (R v Gladstone Williams (1987); R v Oatbridge (1994)); the strike was pre-emptive but the attack was imminent. No intoxication point arises. <strong>Reasonableness</strong> — a cricket bat against an unarmed drunk neighbour is proportionate to the perceived threat; force need not match the threat exactly (Palmer v R (1971) — 'not measured on golden scales'; R v Owino (1996)). <strong>Householder</strong> — as the occupier defending his dwelling, Perry may use force that is disproportionate (though not grossly disproportionate) under s.76(5A), inserted by the Crime and Courts Act 2013 (R (Collins) v Secretary of State for Justice (2016) — compatible with the ECHR); the defence was reconsidered in R v Martin (2001) after the Norfolk farmer case. <strong>Burden</strong> — the prosecution must disprove the defence beyond reasonable doubt. <strong>Conclusion</strong>: Perry is likely to succeed on self-defence; a break of an arm against an intruder at night is not grossly disproportionate.
Callum's girlfriend taunts him about his sexual dysfunction in front of his friends, saying he is 'less than a man'; Callum, devastated, punches her, causing grievous bodily harm. Advise Callum on loss of control. [AQA 7162 Paper 1 style problem question, 25 marks]
Answer: AO1: Loss of control — CJA 2009, s.54: (1) D's act resulted from a loss of self-control; (2) a qualifying trigger under s.55; (3) a person of D's sex and age with a normal degree of tolerance and self-restraint in the same circumstances might have reacted the same way. AO2: <strong>Loss of self-control</strong> — 'devastated' and the immediate punch support it; it need not be sudden (s.54(2); R v Jewell (2014)). <strong>Trigger</strong> — things said or done: the taunts must be of an extremely grave character and give Callum a justifiable sense of being seriously wronged (s.55(4)); argue both ways — public humiliation before his friends is grave, but mere taunts about personal failings may fall short; sexual infidelity is excluded (s.55(6)(c)) but is not engaged here; revenge is excluded (s.54(4)). <strong>Objective test</strong> — a 19-year-old male of normal tolerance, publicly humiliated — argue that some might react as he did (R v Jewell: 'normal' tolerance; the jury decides). <strong>Conclusion</strong>: if the trigger is made out and the objective test satisfied, murder (if charged as murder after a death) reduces to voluntary manslaughter; here the GBH charge is unaffected — loss of control applies only to murder, so note this expressly. AO3: examiners reward applying s.55 element by element, the Jewell gloss on 'normal', and the point that the defence is murder-only.
Explain the exceptions to the rule that consent is no defence to a charge of actual bodily harm, and evaluate the decision in R v Brown. [AQA Paper 1, 25 marks]
Answer: AO1: Consent can negate the actus reus for the lowest offences, but there is no consent to actual bodily harm or worse (R v Donovan (1934); A-G's Reference (No 6 of 1980) (1981) — consensual street fighting). Exceptions where consent is effective: properly conducted games and sports (R v Barnes (2004) — negligence in sport is not criminal unless beyond what players can reasonably accept); surgery; tattooing and body piercing (R v Wilson (1996) — branding by analogy with tattooing; contrast R v BM (2018) — extreme modification fell outside the exceptions); injury accidentally caused during lawful consensual activity (R v Slingsby (1995)); rough horseplay (R v Aitken (1992)); informed consent to the risk of transmission (R v Dica (2004); consent must be informed — R v Konzani (2005)). AO3 (R v Brown, 1993): the majority held there is no consent to actual bodily harm inflicted for sexual gratification, privileging the public interest in protecting people and public order over individual autonomy; upheld by the European Court in Laskey v UK (1997). Criticisms: inconsistent — tattooing and sports cause equal or worse harm; paternalistic — informed adults consenting in private; the Law Commission has questioned the policy exceptions. Defences: the line must be drawn somewhere; consent cannot legitimise serious violence; slippery-slope concerns. <strong>Judgement</strong>: Brown is defensible as a bright-line rule, but the exceptions are internally inconsistent and the autonomy critique is strong.
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