Criminal Law sm 1

Contemporaneity

Actus reus and men's rea must correspond / align, meaning they occur at the same time for conviction.

Fagan

D drives on police officer foot (actus reus) without mens rea, however aftewrwards refuses to move car (with mens rea). D Argued that no contemporaneity thus no assault/battery. Court held:

"There was (1) an act which (2) coincided with the mens rea element of the offence because Fagan's act was taken to be a continuing act"

Thabo Meli

D's roll V down hill (actus reus) with intention to kill (mens rea). D's believe V is dead, V actually dies later from cold exposure. D's Argued that no contemporaneity thus no crime. Court held:

"It is impossible to divide up what was really one series of acts in this way"

acts forming part of a pre-conceived plan are considered a connected sequence. Consequently, the act inflicting the final blow to the victim need not coincide in time with the mens rea.

Miller / Miller Principle

Homeless guy squatting, cigarette, mattress + building on fire, charged with arson. Argues that no actus reus (accidental fire, omission to act) and no mens rea thus no crime. Court held:

Where the defendant creates a source of danger, he has a duty to reasonably take steps to avert the danger created, whether made wittingly or voluntarily.

- omission can constitute crime.

R v White [1910]

attempted murder of mother via cyanide, dies of hear attack instead.

But-for test for causation: But for the defendant's conduct, would the event/crime have occurred as it did?

R v Hughes

factual vs legal cause

Only legal cause bring abouts culpability

(fake example: a woman asking her neighbour to go to the station, the neighbour dying in a car crash. The neighbour would not have died 'but-for' the woman's request; however, she is not guilty for there is no legal cause)

Cato

injecting each other with heroin. D's conduct must be:

- more than de minimis (trivial)/ must be substantial

- D's conduct must be a culpable (deserving blame) cause (Dalloway,)

- D's conduct does not need to be sole cause or direct cause.

Dalloway

- D driving on a highway, reins loose on the horse, rather than in his hands, child ran into road and was killed.

- Jury was directed that if D could not have saved the child by using the reins, they should acquit (declare not guilty) him of manslaughter

Novus actus interveniens

if there is a new intervening act (Novus actus interveniens) between D's conduct and prohibited result, then chain of causation is broken and D not culpable.

Williams (1992)

'V, a hitchhiker, picked up by D. V jumps out of moving car out of fear of threats from D and dies. D convicted of manslaughter and robbery.

subsequent conduct of the victim: chain of causation broken only where the victims reaction was NOT within the range of responses which might be expected from a victim in his situation.

-V's response must be reasonably foreseeable and proportionate to the threat for D to be culpable. (does not actually need to have been foreseen by D) otherwise there is Novus actus.

Blaue

V stabbed by D. V is Jehovah's witness, religiously cannot take blood transfusion. V refuses a blood transfusion and dies. D appeals, saying V's refusal was unreasonable and broke the chain of causation.

Thin Skull Rule: - holds a defendant liable for the full extent of a victim's injuries, even if the injuries were unforeseeable due to the victim's particular characteristics (such as pre-existing medical or physiological conditions)

D must take their victim as they find them, thus causal chain was not broken.

Wallace

D threw sulphuric acid over V. V was left disfigured, paralysed, and in a permanent state of pain. V goes through voluntary euthanasia in Belgium (not permissible in UK).

- D is charged with murder, D appeals arguing that V's free choice (Kennedy (no 2)) to die in Belgium via the doctors broke the chain of causation (twice), and the doctors, if they were in the UK, would have faced murder charges.

- Court argued V made a choice that they would not have made if not for D's conduct. They did not have free and unfettered volition. Thus, chain of causation is not broken.

KEY PRINCIPLE: The requirement of a 'voluntary' act by the victim or a third party for the Novus actus interveniens rule to apply and break the chain of legal causation can be interpreted to require an intervening act committed with 'free and unfettered volition'

Field

V's action must be free, voluntary and informed to break the chain of causation

Pagett

D (armed with a gun) uses V as a human shield against the police and fires at the police. The police fire back causing the Victim to die.

Court decided that where the third-party act in question is:

- A reasonable act of self-defence in response to the acts of D, or

- A reasonable act done in the execution of duty to prevent a crime or arrest of an offender; causal chain will not be broken.

Environmental Agency v Empress Car Company

Empress had a diesel tank on the edge of a river without a bund wall (that is legally required to prevent diesel from polluting the water). A trespasser comes and open the tap of the tank causing the diesel to pollute the water.

- Empress argues they are not guilty as a free deliberate act (opening the tap) by a third party (the trespasser) caused the pollution, thus the chain if causation is broken.

PRINCIPLE: if the human agents' actions are within ordinary occurrence, it will not break the chain of causation, even if it was not foreseeable to the defendant. However, if the human agent's actions are extraordinary, the chain of causation is broken

Kennedy (no 2) (2007):

- D and V lived in a hostel and were both addicted to drugs. D prepared a dose of heroin for V, V injects himself and leaves the room, then dies. D is convicted for manslaughter.

- Court decided that D was not guilty, as there was break in causation (V preformed the free, deliberate act of injecting themselves)

- Went against the decision in Empress.

- "The free, deliberate, and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him, is normally held to relieve the first actor of criminal responsibility."

Causation - Naturally occurring events

Will only break the chain if not foreseeable as likely in the normal course of events by a reasonable person

(and even if not foreseeable in this way, the chain will not break if the defendant had specialized expert or actual knowledge the ordinary reasonable person would not have)

Jordan (1956)

D stabs V. V dies from improper treatment at hospital (terramycin poisoning), NOT stab wound (healed at time of death)

Chain of causation can be broken via medical intervention

!!case is exception, generally medical intervention does not break chain of causation

Smith (1956)

D stabbed V twice, another solider carried V to the medical reception but dropped him twice. V died. D appealed saying the death was due to the soldier dropping V and thus chain of causation was broken.

D convicted, The actus reus does not have to be the sole cause of the harm inflicted, only an 'operating and substantial cause'

An intervening cause must be 'overwhelming' to break the chain of causation

Cheshire

o D shoots V, V dies in hospital. At the time of death the bullet wounds had healed, however V's treatment in hospital was negligent, a poorly preformed tracheotomy caused V asphyxiation.

"Even though the negligence in the treatment of the victim was the immediate cause of death (it is only if) the negligent treatment was so independent of his acts, and in itself so potent in causing death that it will be regarded as supervening the acts of the accused"

- D guilty

Omissions to act

No liability for omission in common law unless a specific legal duty to act exists. In law there is a duty to act where there is:

o Family/Household Obligations (e.g. obligation to feed child)

o Prior agreement to support another

o Duty under contract

o Prior dangerous act (if a person creates danger, they must take reasonable step to counteract it - Miller)

o Duty under a modern welfare/ administrative statue

Morby

- a boy dies of small pox, a father, due to his religious views, does not call a doctor to help (omission). If there was medical attention the boy might've been saved.

o The father's conviction was overturned as there should be proof that the treatment would have saved the child, not might have.

Broughton (2020)

V, the deceased, had taken a controlled class A drug, supplied by her boyfriend. Prosecution argued that having supplied the drugs to V, the boyfriend had a duty to secure medical assistance if her condition deteriorated. D was convicted of manslaughter.

Boyfriend appeals, omission of his behaviour to call parents caused death.

Expert evidence said 90% chance V could be saved if help was called. D was not convicted; same reasoning as Morby.

Strict liability offence

legal standard that holds a person responsible for the consequences of their actions or products, even if they were not at fault or intended to cause harm (lacking mens rea).

Sweet v Parsley (1970)

If parliament has the intention to create an absolute offence (strict liability), then mens rea should not be considered. However, in most cases there is no clear indication of this intention, thus there is a presumption that for an offence, mens rea is required, unless parliament specifies. Supported in B (2000).

Gammon Principle

specifies when the presumption of Mens Rea can be rebutted (comes from gammon case, building collapse):

Parliamentary intention

Stigma

o If the offence is 'truly criminal' in charcaters/highly stigmatized (murder, sexual offences, etc.) then presumption must be kept/ cannot be rebutted (some exceptions).

Social Concern

o If the offence is concerned with an issue with social concern, and public safety is an issue, then presumption can be rebutted (e.g. health and safety)

Effectives of Strict Liability

o If the creation of a strict liability offence would be effective in promoting the objective od the statue by encouraging greater vigilance to prevent the commission of the prohibited act, then presumption can be rebutted

Pharmaceutical Soc of BG v Storkwain Ltd

Storkwain convicted for selling medicine through forged prescriptions (which is a strict liability offence). Storkwain argued there was no way to avoid this offence as they were unaware that the prescriptions were forged, Regardless, the conviction was upheld, with the presumption rebutted under the basis of social concern (Gammon Principle).

Woolin [1999]

in exceptional cases, intention can be defined as the defendant foreseeing death as a virtual certainty, even if their aim or purpose was not the victim's death.

Re A (Children) [2000]:

conjoined twins with fused spine, one stronger twin (Jodie) that was breathing for the other twin (Mary), weaker twin was going to die. Jodie could potentially survive if separated from Mary, although Mary would die.

o Court determined the separation was permissible and would not count as murder as the doctors don't intend to kill Mary, but intend to save Jodie, despite the inevitable side effect of Mary dying.

Cunningham [1957]

Cunningham recklessness:

Malicious in the statutory definition is:

i. An actual intention to do the particular kind of harm that was in fact done, or

i. he is aware of a risk and it is unreasonable to take that risk (Cunningham recklessness)

Stephenson [1979]:

one must advert to a risk and deliberately take it to constitute recklessness. "Knowledge or appreciation of a risk of (relevant harm) must have entered the defendant's mind even though he may have supressed it or drive it out."

Parker [1977]

D breaks phone in anger when call is not working, argues that he cannot be charged for recklessness as he wasn't thinking about the risks, simply behaved in anger.

o Anger - deliberately closing his mind - the obvious being that damage in these circumstances is inevitable.

specific vs basic intent

Specific intent: offences where intention is necessary to satisfy mens rea.

Basic intent: either intention or recklessness will satisfy mens rea

Sheehan [1975]

A drunken intent is still intent (unless involuntary)

Kingston [1994]

D has paedophilic tendencies, but never acted on them. His friend spikes his coffee + intoxicates a 14-year-old, then leads Kingston to the 14-year-old. D has sexual relations with the minor. Kingston was charged because;

o Although the intoxication was involuntary, he still had the mens rea. Thus if D has mens rea, regardless of whether the intoxication was voluntary/involuntary, intoxication is no defence.

Allen [1988]:

D charged with sexual offence, D argued that he was involuntary intoxicated, he was having wine that he did not know the strength of, was stronger than expected and he got drunk by accident. D was still charged because;

It is sufficient if D knew was drinking alcohol (even if he underestimated the amount or effect)

Majewski

Intoxication can provide a defence to crimes that are of specific intent, but not to those that are of basic intent.

Bailey [1983]

o D was a diabetic who took insulin but did not follow prescribed diet. Initially convicted of recklessly inflicting GBH. claimed automatism due to insulin side effects.

still guilty because aggression is well known side effect, self induced automatism not a defense for GBH, D guilty

Hardie [1985]

o D sets fire to V's wardrobe and charged with criminal damage. D argued lack of mens rea due to taking large quantities of Valium to calm himself.

Appeal was allowed as Valium was not classed a dangerous drug. Additionally, Valium is intended as a sedative, thus inhibition is not reasonably foreseeable.

Murder Mens rea

Cunningham 1982:

D attacked V in a pub wrongly believing that the victim had had sexual relations with his fiancé, V dies.

The intention to kill OR to cause grievous bodily harm

R v Woollin [1999]:

indirect intention (oblique intent) can amount to mens rea for murder if death was a virtually certain consequence of the defendant's actions and the defendant appreciated that fact. - objective test (DPP v Smith 1961)

The Defendant must be sane within M'Naghton Rules

Latimer:

doctrine of transferred malice applies to murder

Murder Actus Reus

1. (Unlawfully) causing the death

2. Of a person in being

3. Under the King's peace

(unlawfully means that state execution, self defense etc. cannot constitute murder)

Must be substantial cause of death but need not be the sole/main cause. Any conduct that hastens death (R v Dyson beating skull of son with meningitis)

A-G's Reference No.3 1994

D stabbed pregnant girlfriend, child born prematurely, died at 4 months from wound.

Can't transfer malice for murder from foetus to person, however still guilty of manslaughter

Voluntary Manslaughter

partial defense to murder including:

- loss of self-control

- diminished responsibility

- suicide pact

requires actus reus and mens rea for murder

Loss of self-Control criteria

S54 Coroners and Justice Act 2009:

1) Loss of self-control

2) A qualifying trigger

3) The objective element (would others with D's characteristics have behaved in the same way?)

Gurpinar: all components of test must be fulfilled for LoC defense

what counts as LoC?

Jewell [2014]:

Killed colleague using shotgun then fled with passport + luggage (suggested premeditation)

-premeditation means no LoC defense

The 'loss of the ability to act in accordance with considered judgment or a loss of normal powers of reasoning'

Rejmanski: Psychiatric Conditions/personality disorders not relevant considerations.

Dawes, Hatter and Bowyer [2013]:

stabbed man sleeping with estranged wife with vodka bottle

- unless exceptional circumstances, anger fear, panic or irritation do no cross threshold of LoC

-No requirement for 'sudden and temporary' loss s.54(2) - loss of self-control may result from the cumulative impact of earlier events

Qualifying trigger

S55 Coroners and Justice Act 2009:

- A fear of serious violence from D against V or another person - subjective test (no need for actual violence, only D's fear)

- A sense of being seriously wronged by things said or done (o Partly subjective (D must feel personally wronged)

Partly objective (feeling must be objectively justifiable and circumstances)

(Meanza)

Asmelash: voluntary intoxication not a defense/relevant.

Clinton (2012): sexual infidelity is not a qualifying trigger

in Blackstone's Criminal Practice: suggests jury could find that a wrong done to a child was equally a wrong done to the parent (e.g if discovers sexual abuse).

Diminished Responsibility

defense to murder where mental functioning is impaired.

Requires actus reus and Mens rea for murder

Diminished Responsibility criteria

s 52 Coroners and Justice Act 2009:

(1) A person ("D") who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which—

a) arose from a recognised medical condition,

b) substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and

c) provides an explanation for D's acts and omissions in doing or being a party to the killing.

(1A) Those things are—

(a) to understand the nature of D's conduct;

(b) to form a rational judgment;

(c) to exercise self-control.

'Abnormality of Mental Functioning'

Byrne [1960]:

sexual psychopath raped, mutilated and murdered girl

'Abnormality of Mind' refers to a state of mind, that is so different to that of an ordinary human being, that a reasonable person would label it as abnormal.

Dietschmann: kicked man to death after man broke dead aunts watch.

A defendant's chronic mental illness can be an abnormality of the mind

'Recognized medical condition'

R v Bunch - 2013:

D stabbed V 20 times after break up + voluntary intoxication

medical evidence required for medical condition

Dowds [2018]: just because the DSM, ICD or WHO (medical glossaries) recognizes something as a medical condition does not necessarily mean it will be accepted by the law (voluntary intoxication)

'Substantially impaired D's ability'

Golds [2014]: substantial means significant or important, not just more than trivial

Conroy [2017] EWCA Crim 8: autism may not be considered sufficient in impairing D's ability

Diminished Responsibility - Intoxication

Joyce and Kay: intoxication not relevant consideration, jury should only consider the recognized mental condition

Stewart: where intoxication nis involuntary, alcohol dependency can be used as a medical condition to argued diminished responsibility.

Suicide Pact

Section 4 Homicide Act 1957

Involuntary Manslaughter

D lacks mens rea for murder so not a partial defence. Separate lesser manslaughter offence. 3 types (common law):

1. Constructive/unlawful & dangerous act

2. Gross negligence

3. (Reckless)

Constructive / Unlawful and Dangerous Act Manslaughter (UDAM)

a defendant has set out to commit a lessor criminal offence but in doing so causes the death of another person (no mens rea for murder but mens rea for other, lesser crime)

Actus reus: D commits an Unlawful, criminal act (Base offence) that is Objectively dangerous causing death

Mens rea: mens rea for lesser crime

Unlawful Act (Base Act)

Jennings [1990]: unlawful base offence must be identified and proved

Lamb [1967]: accidently shot V believing gun barrel empty while pointing gun at V. V was playing along with D, thus D had no mens rea for base offence, thus not guilty.

- The mens rea for the base offence must be present to be charged with UDAM

R v Franklin (1883): threw box into ocean, kills V. the act must be a criminal offence (not civil)

R v Lowe - 1973: child killed from neglect. there must be act, not omission

'objectively dangerous'

R v Church - 1966: sexual actives in van, knocks V unconcious, D tosses her in river.

Objective test: 'The unlawful act must be such as all sober and reasonable people would inevitably recognize that it must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm'

R v Dawson - 1985: robbery, 50 y/o heart attack, dies.

- only consider the knowledge D would have in determining whether danger foreseeable.

Watson (1989): includes knowledge D would gain in committing crime.

Newbury and Jones:

pushed stone off bridge which killed a railway guard

- D does not personally have to foresee danger.

Carey [2006]: 15 y/0o punches by D, runs away, has diseased heart, dies of heart attack from running. D not guilty.

- there must be a causal link between the unlawful act and the danger created

- thin skull rule does not apply

Goodfellow (1986): set fire to own house for rehousing, wife + child dies

- no requirement under for UDAM that the unlawful act is aimed at the actual victim or that the unlawful act was directed at a human being.

Act Causes Death (UDAM)

normal causation principle - but-for

Carey 2006 - causal link

R v JM -

fight w nightclub doorman, heart attack

- act does not need to be sole or principal cause

Gross Negligence Manslaughter (GNM)

lack of care while acting / omission causes death

mens rea: negligence

actus reus: breach of duty of care resulting in death

GNM criteria

Adomako:

Anaesthetist failed to notice tube had disconnected from ventilator during operation. Patient had cardiac arrest and died.

Test for GNM:

1) A duty of care

2) A breach of the duty

3) That the breach caused (or significantly contributed to) the death

4) That the breach of the duty was so gross as to justify a criminal conviction

5) Later cases added conduct must create serious and obvious risk of death to V (Kuddus)

6) And reasonably foreseeable that breach of duty gave rise to such a risk (Rose)

A duty of care

no general duty of care but:

Winter 2010: duty of care not to injury anyone whom we could reasonably foresee injuring

Donoghue v Stevenson 1932: snail in ginger beer

- a duty of care will arise from an act of a person where the requirements of foreseeability, proximity, fairness, justice and reasonableness establish such a duty

Wacker [2003]: stowaways in customs lorry suffocate.

- duty of care still exists between people in criminal enterprise/collusion.

R v Pittwood (1902):

railway gate operator forgets to close gate, V dies.

- duty of care can arise from contract of employment (doctor owes patient, teacher to student)

Miller Principle

A breach of duty

those with an established duty of care must act as a "reasonable person would do in their position". (objective test)

Failure to do so = breach of that duty.

Can be act or omission (omission = duty of care + duty to act)

If actions within range of standard practice (even if at the lower end) hard to say it falls far below the standard of a reasonable person in his position.

If D has particular skills / knowledge of a danger, actions should be judged against a reasonable person with that attribute (e.g. would qualified anaesthetist have made mistaken)

No concession for inexperience. An unqualified person is not to be judged at a lower standard than a qualified person. Lack of skill will not be a defence if the conduct is deemed negligent.

Consent of V irrelevant

t does not matter that D did not appreciate the foreseeable risk of death, only that the risk would have been obvious to a reasonable person in D's position. (AG ref No: 2 of 1999)

This is 'supremely a jury question' (Adomako).

Breach causes V's Death

[1977]Normal rules of causation (but-for)

Expansive definition. Evans [2009] - V's half-sister supplied heroin, self-administered. D stayed with her after overdose but did not call ambulance. D need not have directly created danger; contribution to it / creating circumstances for danger to arise suffices. Focus on action post self-injection

Broughton (2020): The prosecution must prove to the criminal standard that the gross negligence was at least a substantial contributary cause of death. That means that the prosecution must prove that the deceased would have lived in the sense that life would have been significantly prolonged

Stone and Dobinson [1977]: A failure to act after an assumption of responsibility can amount to actus reus

Serious and obvious risk of death

Kuddus:

customer informs restaurant peanut allergy. The chef then prepared a meal with peanuts for the customer and the customer dies.

-the breach must be one that has an serious and obvious risk of death

reasonably foreseeable that breach of duty gave rise to such a risk

R v Rose [2017]:

optometrist breaches statutory duty to check back of eye. Child dies of acute hydrocephalus. D acquitted because not reasonably foreseeable that not completing eye test would result i death,

- a risk of death must be reasonably foreseeable from the breach (without considering the information which D should have had available had they not breached their duty.)

Kuddus v Rose

In Kuddus there was a serious and obvious breach (objectively) where it would be reasonably foreseeable to result in death

In Rose there was a serious and obvious breach of statutory duty (objectively) but it was not reasonably foreseeable that such risk would arise.

Was the Negligence Gross? (key element)

"In order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between the subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving of punishment" (Bateman).

Sellu [2016]

the Court held it was not sufficient to merely direct the jury that the breach had to be 'gross or severe' but rather the direction had to make it clear that the breach had to be 'truly exceptionally bad'. That limits the scope of the offence.

Reckless Manslaughter

when someone causes the death of another person by acting recklessly, meaning they foresee a risk of death or serious injury but disregard that risk. (Lidar)

Non-Fatal Offences

Offences Against the Person Act 1861

S.18 OAPA: wounding with intent to cause grievous bodily harm (GBH) /causing GBH with intent

s.20 OAPA: Maliciously wounding /inflicting GBH

s.47 OAPA: Assault occasioning actual bodily harm

common law, battery

common law, common assault

Assault Actus Reus

Collins v Wilcock [1984]: An act which causes another person to apprehend the infliction of immediate, unlawful force on his person (without consent)

- consent may be implied where necessitated by daily life

(no need for physical contact, must be unlawful force (R v Clarence (1889)), the victim specifically must apprehend the violence.)

(Constanza): Immediate future may also be counted

Smith v Chief Superintendent Woking Police Station:

V saw D looking through window at her. She did not know what D was going to do next, was frightened.

- for assault the fear does not have to be for a specific thing/action, the fear of potential violence in general is enough to constitute assault.

indirect threat, verbal threat can constitute assault (potentially omission but no caselaw)

Tuberville v Savage: Can be conditional ("if you don't do X now, I will hit you") but not if threat excludes imminent possibility

Assault Mens Rea

Intention or reckless as to causing apprehension of immediate, unlawful, personal force

Subjective (what did V believe? e.g. did not know gun was fake) PLUS

Objective: based on facts as V saw them, is that an apprehension of imminent violence?

Ireland and Burstow

Silent telephone calls -could be an assault if V apprehend the infliction of immediate force "[The silent caller] intends by his silence to cause fear and he is so understood. The victim is assailed by uncertainty about his intentions. Fear may dominate her emotions, and it may be the fear that the caller's arrival at her door may be imminent.

Battery Actus Reus

"Any conduct by which D, intentionally or recklessly, inflicts unlawful personal violence on V" Rolfe

(physical contact required, does not need to violent, just non-consensual, must be unlawful)

DPP v Santana-Bermudez - Omission Miller principle applies, meaning battery is possible by omission (D told V his pockets were empty, V pricked finger on hypodermic needle when searching D)

Thomas 1985:

rubbing bottom of skirt

Battery requires physical touching but V does not have to be aware of the physical contact. touching clothing same as touching person.

Physical contact Can be indirect: spitting (Misalati ), pushing A into B

or through a medium (Fagan - car)

Battery Mens Rea

(Venna [1975]): Intention to apply unlawful force on another person or recklessness as to application of unlawful force on another person

1. where D has lawful authority to touch V (i.e. arrest) (Collins v Wilcock, 1984)

2. where V consents to D's touching

3. Implied consent to: "all physical conduct which is generally acceptable in the ordinary conduct of daily life." (Collins v Wilcock)

Actual Bodily Harm (ABH)

s.47 OAPA 1861:

an assault that causes some injury to the victim that is more than just a transient or trivial injury

Mens Rea: same as assault or Battery (intention to cause ABH, or reckless) - Savage; Parmenter [1992], no need to foresee that ABH will occur

- constructive offence

Actus Reus: committing an assault or battery that results in ABH

what counts as ABH

ABH not defined in statue, however according to R v Donovan:

beating V in garage

- "any hurt or injury calculated to interfere with the health and comfort of V"

- "Not transient (disappears quickly) or trifling" (minor)

Ireland and Burstow - bodily should be interpreted to encompass not only physical injuries but also recognisable psychiatric illness (e.g. depression). Stress, upset, etc, insufficient

Roberts 1971: does not require D to foresee risk that action will cause ABH

ABH vs Battery/Assault

ABH:

- Minor fractures/damaged teeth and bones

- Extensive or severe bruising

- Cuts requiring suturing

- Loss of consciousness

- Loss of sensory function

- Psychological harm (more than fear/panic)

NOT ABH (assault/battery):

- Grazes / Scratches/ Abrasions

- Minor Bruising

- Swelling

- Reddening of the skin

- Superficial Cuts

- Black Eye

Some ambiguity as to the scope of offence. For example, DPP v Smith D cut off V's ponytail, court stated ABH committed but could have been prosecuted common assault.

s.20 Grievous Bodily Harm

S. 20 OAPA 1861:

"Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of GBH"

Cunningham 1957: test for malice was whether the defendant had either actual intent to cause harm or was reckless as to the possibility of causing foreseeable harm

s.20 GBH Actus Reus

Either a wounding or an infliction of GBH, done unlawfully

Wound: Any break in the skin, whether or not the injury is otherwise a serious one. The break must go right through the skin (all layers), and a scratch is not sufficient." (Morris)

Cannot be purely internal (Wood - broken collarbone, skin remained intact)

"Grievous" simply means "really serious" (DPP v Smith)

Bollom: jury should consider V's age and health when considering the extent of the injuries

Cartledge v Allen: ran hand into glass door while being chased - does not need to be direct infliction of force, is enough that force is the natural or foreseeable consequence of what the defendant did.

s.20 GBH Mens Rea

D must either intend to do some harm to another or be reckless as to whether that some harm would be done (does not need to intend GBH, just harm in general - constructive offence)

Mowatt [1968]:

D may be liable for inflicting GBH even though where he does not foresee GBH

s.20 GBH examples

- May include recognised psychiatric illness (such as PTSD) (Ireland and Burstow)More than ABH but does not have to be permanent / life-threatening:

- broken or displaced limbs or bones

- injuries requiring significant or sustained medical treatment (such as blood transfusion) even if full or relatively full recovery follows.

- injuries resulting in lengthy incapacity or permanent disability (life changing injuries)

- Passing on a serious disease (Dica)

- May include recognized psychiatric illness (such as PTSD) (Ireland and Burstow)

s.18 GBH

s. 18 OAPA 1861:

Actus Reus: an unlawful wounding or a causing of GBH

Mens Rea: Intention to do some grievous bodily harm maliciously to any person or to resist or prevent the lawful apprehension of any person

(Malice is intent or foresight of some harm)

Taylor [2009]: MUST be an intent to cause GBH

Where D intends to cause GBH, malice adds nothing. However, where no intention to cause GBH but to resist lawful arrest, malicious should be interpreted as requiring D to also foresee possibility of GBH.

Defense to OAPA

(Belief in) Consent:

- Acquiescence or willingness (necessary but not always sufficient)

-Informed consent by someone with knowledge, freedom and capacity to consent

Informed Consent

Konzani:

knew he was HIV positive, had sex with 3 women who did not know his status who contracted virus

- the defendants silence about his circumstances thus meant he could not have a genuine belief that there is an informed consent

Dica - 2004:

Victims knew about HIV, thus consent was informed and they consented to the risk of contracting

Fraud as to the identity of D

Consent vitiated by active fraud. Distinction between:

- D's identity (vitiates consent)

- D's attributes or qualifications (depends on the circumstance)

Fraud as to Attributes of D

Richardson [1999] - Fraud about attributes only vitiates consent if the defendants' attributes/qualifications are integral to the victims consent to D's actions.

In Richardson, the fraud committed about her attributes was not relevant to her skills as a dentist, thus informed consent was still given and conviction was quashed. Supported by;

R v Melin - Administration of Botox for cosmetic purposes by beautician, V suffered severe reactions. Fraud as to medical qualifications.

D's qualification as a beatification was integral to V consent, thus fraud of attribute here vitiated consent.

Consent as to Quality of Act

Tabassum [2000]:

D examined three women's breasts under the pretense that he is conducting a study on breast cancer, this was not true.

- no consent as to the quality of the act (the act being the groping, the quality being for the doctors' sexual purposes rather than for research as suggested), thus consent vitiated by fraud. Charged with indecent assault.

where can consent be used as a defense ?

Brown [1993]:

- assault, battery

- no defense for ABH or GBH unless the defendant could show that policy and public interest required the activity to be classified as lawful (sport, medical intervention etc.)

Unlawful Activities (no consent defense)

Fights

- where ABH was caused or intended are unlawful regardless of consent. AG's Reference (No 6 of 1980)

Sexual gratification,

- Beating V with such force that infliction of bodily harm is a probable consequence is an unlawful activity irrespective of consent (Donovan [1934] - sexual beating with cane)

Extreme Body Modification

- such split tongue is unlawful as according to the courts it is akin to unlicensed surgery rather than piercing. (BM [2018])

- However, this is somewhat of a grey area, for example in Wilson [1996] branding with hot metal was said to be akin to a tattoo, no clear distinction between extreme and regular body modification

- D tattooed 12 + 15 y/o. consensually. Children do not have the legal capacity to consent Burrell v Harmer [1967]

Lawful Activities (consent defense)

- Surgery

- Organised sports

- Tattooing/piercing

- Religious flagellation (self-harm)

- Ritual (male) circumcision

- Parental chastisement

- Horseplay

Parental Chastisement

Can used as a defense, is lawful (only in England) unless administered for:

- the gratification of a passion or rage,

- immoderate or excessive in its nature or degree,

- beyond the child's power of endurance

- with an instrument unfitted for the purpose and calculated to produce danger to life or limb ..." Hapley (1860)

Only applies to assault/battery from parents but force must be reasonable, proportionate and involve no cruelty)

Sexual Activity (lawful)

Wilson [1996]: D consensually brands wife's bottom with hot metal. no aggressive intent, occurred in the privacy of the matrimonial home

- Distinguished from Brown [1994] and sadomasochism because the intent is not aggressive/violent, but rather to leave a design on the skin (akin to tatooing) , thus considered lawful. In sadomasochism the intent is to cause pain/violence thus unlawful.

Slingsby: During sex, D inserted his fingers into V's rectum while wearing a ring. D unintentionally caused injuries with the ring, and V later died of septicaemia (blood poisoning). Conviction for UDAM quashed as consent to battery.

Sexual Activity Unlawful

R v Brown [1994]:

D caused V ABH and GBH during private, consensual sado-masochistic sexual activities.

- Sado-masochism is NOT a lawful activity, because you cannot consent to serious levels of injury (ABH, GBH)

Emmett [1999]:

D and his fiancée engaged in consensual sexual activity involving partial asphyxiation and setting light to lighter fuel on her breast.

- No distinction this act and sado-masochistic activity thus Brown [1994] applied, D convicted. Distinguished Wilson as V was subjected to far greater potential harm

Hobday [2025]: (UPDATED RECENT CASE)

V begins to carve initials into her butt, asks D (speed dealer) to complete it. D charged under OAPA.

- Appeal based on Wilson, however court rejected this, saying that in this instance the harm was more comparable to Brown, and in Wilson the couple was happily married whereas Hobday does not have a similar type of relationship.

-Does not overturn Wilson but narrows it applicability.

Horseplay

rough, boisterous play.

Jones (Terence) [1987]:

Schoolboys threw other pupils into the air - one suffered a ruptured spleen, another a broken arm (horseplay). No conviction because;

- rough and undisciplined play (horseplay) is a lawful activity as the defendants could rely on consent of the victim as a defence in, where there is no intention to cause injury

Aitken [1992]:

D set fire to victim's flying suit (which he assumed to be fire retardant). V suffered life-threatening burns.

- Held: rough and undisciplined pranks/mess games are a lawful activity as long as there is no intention to cause any injury. D could rely on consent as a defense if they genuinely believed the victim was consenting.

Richardson & Irwin [1999]:

Two students held friend over a balcony, 10-12 feet high - and dropped him, D's realised that V did not consent. D realized that V might slip or be dropped and thus sustain some degree of bodily harm, albeit of a minor character, or

Defendants were convicted due to lack or consent, and foreseeing harm.

Sport

The sport must be recognized by law for it to be used as a defense

presumed consent to force which could reasonably be expected to happen during a game

Billingshurst:

- Presumed consent does NOT apply where D injures V outside the "course of play"

Barnes [2004]: conduct outside course of play will depend upon nature of act, degree of force used, extent of the risk of injury and defendant's state of mind

Sexual Offences

Sexual Offences Act (SOA) 2003:

- s.1 Rape

- s.2 Assault by Penetration

- s.3 Causing a person to engage in sexual activity without consent

- s.4 Sexual Assault

Consent - Sexual Offences

Sexual Offences Act (SOA) 2003 s. 74 - general definition of consent:

a person consents if he agrees by choice, and has the freedom and capacity to make that choice.

Kirk 2008: homeless teenager abused by defendant for years, agreed to sex for money to buy food.

- No consent if the complaint submitted to sex because her will had been overborne/she thinks she has no choice. distinction between consent and submission.

Doyle:

Following violence, B stopped resisting once penetration occurred.

- Unwilling submission is not consent.

Ali (Yasir):

Grooming does not necessarily vitiate consent but can undermine B's capacity to make free decisions and can mask a lack of true consent.

Capacity to Consent (Sexual offences)

- Under 16 cannot consent

- V must have sufficient capacity to understand the choice to be able consent

a) A person must be able to understand the information relevant to making the choice to engage in sexual activity, and

b) Must be able to weigh that information in the balance to arrive at a choice

C (2009):

complainant understood nature of the act, but mental illness undermined her capacity to consent (manic episodes and irrational delusions)

R v G [2008]:

There is no defence of mistaken reasonable belief in the age of the complainant.

Deception as to Sex/Gender

R v McNally:

Defendant deliberately deceives complainant regarding their sex rather than failure to disclose. Court said;

"Depending on the circumstances, deception as to gender can vitiate consent"

1) Has there been active or deliberate deception by the suspect? if so;

2) Was the complainant deceived and therefore did not consent? If so;

3) Did the suspect reasonably believe the complainant consented?

Deception about Physical Sexual Activity:

Vitiates consent.

R (F) v DPP [2013]: complainant consents to sex on the condition that the defendant withdraw before ejaculation. Defendant failed to do so, Consent vitiated.

Assange:

complainant consents to sex on the condition that the defendant wears a condom. Defendant removes condom, Consent vitiated.

- both cases empathise that if the complainant makes clear that she would only consent to sexual intercourse a specific condition of the physical act (such as wearing a condom), then there would be no consent if the defendant fails to comply.

Lawrance (2020): defendant falsely told complainant he had had a vasectomy. complainant not deceived as to the sexual intercourse, only the 'broad circumstances' around it. Thus, consent not vitiated.

- What's key is the physical aspect of the deception. There were no physical restrictions imposed on the defendant.