CHAPTER XIV
GENERAL DEFENCES AND MITIGATING FACTORS
Division C: Defences and Mitigating Factors Relating to Unlawfulness
PART X
AUTHORITY
240 Public authority
(1) Subject to this section, the fact that a person is authorised or permitted by an enactment to do or omit to do any thing shall be a complete defence to a charge alleging the commission of a crime of which that conduct is an essential element.
(2) Subject to this section, the fact that a person did or omitted to do any thing as a duly authorised official, employee or agent of the State and in the proper exercise of that authority shall be a complete defence to a charge alleging the commission of a crime of which that conduct is an essential element.
(3) A person shall not be entitled to rely on the defence referred to in
(a) subsection (1), unless his or her conduct was in all respects authorised or permitted by the enactment concerned;
(b) subsection (2), unless it was lawful for the State to give the authority concerned.
241 Discipline of children
(1) In this section
“guardian” means a person, other than a school teacher in his or her capacity as such, who has the lawful custody, charge or care of a minor person, whether permanently or temporarily;
“minor”, in relation to a person, means that the person is under the age of eighteen years;
“school” includes an educational institution of any kind;
“school-teacher” means the head or deputy head of a school.
(2) Subject to this section
(a) a parent or guardian shall have authority to administer moderate corporal punishment for disciplinary purposes upon his or her minor child or ward;
(b) a school-teacher shall have authority to administer moderate corporal punishment for disciplinary purposes upon any minor male pupil or student;
and, where moderate corporal punishment is administered upon a minor person by a parent, guardian or school¬teacher within the scope of that authority, the authority shall be a complete defence to a criminal charge alleging the commission of a crime of which the administration of the punishment is an essential element.
(3) Subject to this section, any person who administers moderate corporal punishment upon a minor person under authority delegated to him or her by a parent, guardian or school-teacher shall have a complete defence to a criminal charge alleging the commission of a crime of which the administration of such punishment is an essential element, if it would have been lawful for the parent, guardian or school-teacher to have administered such punishment himself or herself.
(4) No school-teacher or person acting under authority delegated to him or her by a school-teacher shall administer corporal punishment upon a female pupil or student.
(5) When administering corporal punishment upon a minor male pupil or student at his or her school, a school-teacher shall comply with any lawful rules, regulations or administrative instructions which apply to the administration of corporal punishment at his or her school.
(6) In deciding whether or not any corporal punishment administered upon a minor person is moderate for the purposes of this section, a court shall take into account the following factors, in addition to any others that are relevant in the particular case
(a) the nature of the punishment and any instrument used to administer it; and
(b) the degree of force with which the punishment was administered; and
(c) the reason for the administration of the punishment; and
(d) the age, physical condition and sex of the minor person upon whom it was administered; and
(e) any social attitudes towards the discipline of children which are prevalent in the community among whom the minor person was living when the punishment was administered upon the minor person.
242 Purported corporal punishment of spouses unlawful
It shall not be lawful for a person to purport to administer corporal punishment upon his or her spouse, whatever the nature of their marriage and wherever their marriage may have been contracted.
PART XI
COMPULSION
243 Requirements for compulsion to be complete defence
(1) Subject to this Part, the fact that a person accused of a crime was subjected to compulsion when the person did or omitted to do anything that is an essential element of the crime shall be a complete defence to the charge if
(a) the compulsion consisted of a threat
(i) unlawfully to kill him or her or cause him or her serious bodily injury or to kill or cause serious bodily injury to some other person; or
(ii) unlawfully to cause him or her financial or proprietary loss;
and
(b) he or she believed on reasonable grounds that implementation of the threat referred to in paragraph (a) had begun or was imminent; and
(c) the threat referred to in paragraph (a) was not brought about through his or her own fault; and
(d) he or she believed on reasonable grounds that he or she could not escape from or resist the threat referred to in paragraph (a) and that his or her conduct was necessary to avert the implementation of the threat; and
(e) by his or her conduct he or she did no more harm than was reasonably necessary to avert the implementation of the threat referred to in paragraph (a), and no more harm than was unlawfully threatened.
(2) Where a person voluntarily associates himself or herself with one or more other persons knowing or realising that there is a real risk or possibility that they will involve him or her in the commission of a crime, any threat made against him or her by one or more of those other persons for the purpose of inducing him or her to commit a crime shall be deemed, for the purpose of paragraph (c) of subsection (1), to have been brought about through his or her own fault.
244 Additional requirements for compulsion to be complete defence to murder
(1) Subject to subsection (3), the fact that a person accused of murder was subjected to compulsion when he or she did or omitted to do anything that is an essential element of the crime shall not be a complete defence to the charge unless the following requirements are satisfied in addition to those specified in paragraphs (b), (c) and (d) of subsection (1) of section two hundred andforty-three
(a) the compulsion took the form of a threat unlawfully to kill the accused or some other person immediately if the accused did not kill or assist in killing the deceased; and
(b) the accused could not escape from or resist the threat referred to in paragraph (a); and
(c) the accused had no warning of the threat referred to in paragraph (a) to enable him or her to forestall it, whether by reporting the matter to the police or by other means.
(2) If the requirements referred to or specified in subsection (1) are satisfied, the defence of compulsion shall be a complete defence to a charge of murder, whether the accused is charged as an actual perpetrator or as an accomplice.
PART XII
CONSENT
245 Requirements for consent to be complete defence
(1) Subject to this Part, where a person consents to any conduct which is likely to cause harm to his or her person, proprietary rights or other interests, his or her consent shall be a complete defence to a charge against any other person alleging the commission of a crime of which that conduct forms an essential element, if
(a) the interests of the community as a whole are not adversely affected by the conduct to any substantial degree; and
(b) the consent is given prior to the conduct, not as ratification afterwards; and
(c) the person who gives the consent is
(i) capable in law of giving such consent; and
(ii) able to understand the nature and possible consequences of the conduct and to give informed consent thereto;
and
(d) the consent is real and is not induced by threat, force, fraud or mistake intentionally or knowingly induced by the person charged with the crime; and
(e) the giving of the consent is not contrary to any law or to public policy.
(2) Where a person is charged with rape, aggravated indecent assault, indecent assault or any other crime constituted by the absence of consent by another person to any conduct, the fact that the other person consented to the conduct shall be a complete defence to a charge alleging the commission of that crime if—
(a) the consent is given prior to the conduct, not as ratification afterwards; and
(b) the person who gives the consent is—
(i) capable in law of giving such consent; and
(ii) able to understand the nature and possible consequences of the conduct and to give informed consent thereto;
and
(c) the consent is real and is not induced by threats, force, fraud or mistake intentionally or knowingly induced by the person charged with the crime.
246 When consent no defence
It shall not be lawful for any person to consent to—
(a) being killed; or
(b) subject to this Part, the infliction of serious bodily injury upon himself or herself;
and such consent shall not be a defence to any criminal charge arising out of such killing or the infliction of such injury.
247 Consent to medical treatment for therapeutic purposes
(1) In this section—
“patient” means a person to whom medical treatment is given or upon whom a medical operation is performed;
“qualified person”, in relation to any medical treatment or operation, means a person who, by virtue of his or her qualifications or training, is in all the circumstances qualified to give the medical treatment or perform the medical operation.
(2) Where, in order to cure or alleviate any disease or disability from which a patient suffers or is likely to suffer, a qualified person gives any medical treatment to or performs any medical operation upon a patient—
(a) with the consent of the patient; or
(b) if the patient is incapable of giving consent, with the consent of the patient’s parent, guardian, spouse or any other person capable in law of giving consent on behalf of the patient; or
(c) in the case of a minor to whom section 76 of the Children’s Act [Chapter 5:06] applies, with authority given in terms of that section;
such consent or authority shall be a complete defence to a charge of murder or assault arising out of that treatment or operation if—
(i) the consent complies with paragraphs (b), (c) and (d) of subsection (1) of section two hundred andforty-five; and
(ii) the treatment or operation is carried out competently in accordance with recognised medical procedures.
(3) If a qualified person believes on reasonable grounds that—
(a) a patient urgently requires medical treatment or a medical operation to cure or alleviate any disease or disability from which the patient is suffering or is reasonably suspected of suffering; and
(b) it is not practicable in the circumstances to obtain the consent or authority required by or referred to in subsection (2);
he or she may give the treatment or perform the operation, as the case may be, without having obtained such consent or authority.
(4) The fact that a qualified person gave treatment or performed an operation in terms of subsection (3) shall be a complete defence to a charge of murder or assault arising out of that treatment or operation if the treatment or operation is carried out competently in accordance with recognised medical procedures.
248 Consent to medical treatment for non-therapeutic purposes
(1) In this section—
“patient” means a person to whom medical treatment is given or upon whom a medical operation is performed;
“qualified person”, in relation to any medical treatment or operation, means a person who, by virtue of his or her qualifications or training, is in all the circumstances qualified to give the medical treatment or perform the medical operation.
(2) Where a qualified person, with the consent of the patient concerned, gives any medical treatment to or performs any medical operation upon a patient—
(a) otherwise than to cure or alleviate any disease or disability; or
(b) in order to sterilise the patient;
such consent or authority shall be a complete defence to a charge of murder or assault arising out of that treatment or operation if—
(i) the consent complies with paragraphs (b), (c) and (d) of subsection (1) of section two hundred andforty-five; and
(ii) the treatment or operation is carried out competently in accordance with recognised medical procedures; and
(iii) in a case where the treatment consists of the administration of any new, untried or experimental drug, medicine or allied substance, such treatment is conducted pursuant to and in accordance with the procedures prescribed for the clinical trial of a medicine under the Part III of the Medicines and Allied Substances Control Act [Chapter 15:03].”.
249 Consent to sporting injuries
(1) A person who takes part in any lawful sporting activity shall be deemed to have consented to undergo the risk of sustaining any injury or destruction or loss of property which is normally inherent in participation in such sporting activity.
(2) Consent referred to in subsection (1) shall not be a defence to any crime where—
(a) the accused inflicted the injury, destruction or loss which forms the subject of the charge deliberately and in contravention of the rules of the sporting activity concerned; and
(b) the injury, destruction or loss which forms the subject of the charge does not fall within the risks normally inherent in participation in the sporting activity concerned.
250 Consent to injuries from customary or religious practices
(1) In this section—
“slight bodily injury” includes the circumcision of a male person but does not include the practice of genital mutilation of a female person commonly known as “female circumcision”.
(2) Consent by a person to slight bodily injury inflicted—
(a) in accordance with the customs or traditional practices of the community to which the person belongs; and
(b) for the purposes of or in accordance with the practice of his or her religion or custom;
shall be a complete defence to a charge alleging the commission of a crime constituted by the infliction of such injury.
251 Consent given on behalf of other persons
Subject to this Part, where a person is incapable in law of giving consent to anything, whether because of minority, unconsciousness, insanity or otherwise, consent given by the person’s parent, guardian, spouse or any other person capable in law of giving consent on his or her behalf shall be as effective as if the consent had been given by the person himself or herself.
Other defences - national proceedings
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