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Analysis of the Common Law and statutory defences to non fatal offences against the person.

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Which are the Common Law and statutory Defences to common assault and battery?

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The main defences, which apply in the case of a charge of assault and battery, are (i) Consent (ii) lawful correction and (iii) Self-defence (private defence).

I. Consent (volenti non fit injuria)

'It is an essential element of an assault that the act is done contrary to the will and without the consent of the victim' Attorney-General's Reference (No 6 of 1980) [1981].

· Strictly speaking, consent is not a 'defence', but a definitional element of the crime. That is why it is for the prosecution to prove the absence of consent beyond reasonable doubt. If D mistakenly believes that the victim consents, this will negative mens rea (Jones [1986] Cr App R 375). It is sufficient that D's belief is honest; it need not be reasonable (Morgan [1976] AC 182).
· In the 19th century it was believed that "everyone has a right to consent to the infliction upon himself of bodily harm not amounting to maim" (Stephen). However, the modern position is that you cannot consent to the infliction of any degree of bodily harm, however slight unless it is positively justified by some public interest. In A-G's Reference it was stated, "it was not in the public interest that people should try to cause or should cause ...

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