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This lesson covers three further general defences: consent, self-defence, and duress. Consent and self-defence operate as complete defences leading to acquittal, while duress — although a complete defence — has significant limitations (most notably, it is not available as a defence to murder).
| Term | Definition |
|---|---|
| Consent | Where the victim agrees to the defendant's conduct, negating the unlawfulness of the act |
| Self-defence | D used reasonable force to defend themselves, another person, or to prevent crime |
| Duress by threats | D was compelled to commit an offence because of a threat of death or serious physical harm from another person |
| Duress of circumstances | D was compelled to commit an offence by the surrounding circumstances (e.g., a threat from the situation rather than a specific person) |
| Reasonable force | The degree of force that is proportionate to the threat faced — an objective test with a subjective element |
| Householder cases | Cases where D uses force against a trespasser in their dwelling — a more generous test of reasonable force applies |
Consent is a defence to offences against the person. If the victim genuinely consented to the defendant's conduct, the defendant is not guilty. However, the law places significant limits on what can be consented to.
The landmark case on consent is R v Brown [1994], in which the House of Lords held (by a 3–2 majority) that:
Consent is not a defence to offences involving the infliction of actual bodily harm (ABH) or above, unless the activity falls within one of the recognised exceptions.
In Brown, a group of men engaged in consensual sadomasochistic activities causing injuries amounting to ABH and GBH. Despite all participants being consenting adults, the House of Lords held that consent was no defence because the injuries exceeded the level of common assault/battery.
Principle (the Brown rule): Consent is a valid defence to assault and battery but not to ABH or above, unless a recognised exception applies.
The law recognises certain categories of activity where consent is a valid defence even to ABH or above:
| Exception | Explanation | Key Authority |
|---|---|---|
| Properly conducted sporting activities | Consent to the risk of injury inherent in the sport, provided the conduct is within the rules or accepted norms | R v Barnes [2005] |
| Reasonable surgical procedures | Medical treatment carried out with proper consent | General principle |
| Tattooing, body piercing, branding | Socially accepted body modification | R v Wilson [1997] — a husband branded his initials on his wife's buttocks with her consent; the Court of Appeal held consent was valid |
| Horseplay | Rough and undisciplined play, provided genuine consent | R v Jones [1986] — schoolboys thrown into the air by classmates |
| Religious mortification | Certain religious practices involving physical pain | General principle |
Wilson branded his wife's buttocks with his initials using a hot knife, at her request. She was proud of the branding and showed it to her doctor, who reported it to the police. The Court of Appeal quashed the ABH conviction, holding that the activity was comparable to tattooing and fell within a recognised exception. Consent was valid.
Principle: Consensual branding between adults in private is analogous to tattooing and falls within the recognised exceptions.
Consent may be implied in certain everyday situations. As Robert Goff LJ stated in Collins v Wilcock [1984]:
"Generally speaking, consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact."
Implied consent covers jostling in crowds, tapping someone on the shoulder to attract attention, and other everyday physical contacts.
Consent is only valid if it is genuinely given and informed. Consent obtained by fraud as to the nature of the act or the identity of the person is not true consent:
| Level of Harm | Can V Consent? | Authority |
|---|---|---|
| Assault (apprehension of force) | Yes | General principle |
| Battery (application of force) | Yes | Collins v Wilcock |
| ABH (s.47) | Not generally — unless a recognised exception applies | R v Brown |
| GBH (s.20/s.18) | Not generally — unless a recognised exception applies | R v Brown |
Self-defence has both common law and statutory foundations:
There are two key questions:
| Question | Test |
|---|---|
| 1. Was force necessary? | D must have honestly believed that force was necessary. This is a subjective test — assessed from D's perspective (s.76(3) CJIA 2008) |
| 2. Was the force reasonable? | The degree of force must be reasonable in the circumstances as D honestly believed them to be. This is an objective test applied to the subjective facts (s.76(6) CJIA 2008) |
Martin, a farmer living alone, shot two intruders who had broken into his farmhouse, killing one and injuring the other. He was convicted of murder (reduced to manslaughter on appeal due to diminished responsibility). The Court of Appeal held that the force used (shooting the intruders as they fled) was disproportionate — the threat had passed when the intruders were retreating.
Principle: Force used in self-defence must be proportionate to the threat. Force used after the threat has passed is not reasonable.
Clegg, a soldier at a checkpoint in Northern Ireland, fired at a car that sped through the checkpoint. The last shot hit the car after it had passed the checkpoint. The fourth bullet killed a passenger. The House of Lords held that the final shot was fired after the danger had passed and therefore could not be justified as self-defence. Clegg was convicted of murder.
Principle: Force used after the threat has ended is excessive and cannot be justified as self-defence. There is no qualified defence of excessive self-defence that reduces murder to manslaughter (though the loss of control defence may apply in some circumstances).
s.76(5A) CJIA 2008 (inserted by the Crime and Courts Act 2013) provides a more generous test for self-defence by householders against trespassers in their dwelling:
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