Criminal Law for Forensic Scientists ( )

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1 Criminal Law for Forensic Scientists ( ) View Online 29 items Suggested for student purchase: (1 items) Criminal law - Catherine Elliott, Frances Quinn, 2016 Book Suggested for student purchase Recommended text: (2 items) Criminal law: text, cases, and materials - Jonathan Herring, 2016 Book Recommended (Should Read) Criminal law - William Wilson, 2014 Book Recommended (Should Read) Background (1 items) Unlocking criminal law - Jacqueline Martin, Tony Storey, 2015 Book Background (Could Read) Week 1 - Introduction (2 items) Required reading:- (2 items) How to find case law - Lawlinks - University of Kent Webpage Recommended (Should Read) Guidance on finding cases can be found here Woolmington v DPP [1935] AC 462 R v Donovan [1934] 2 K.B. 498 Week 2 - court structure, the doctrine of precedent and the importance of cases in presenting legal argument (2 items) Required reading:- (2 items) 1/18

2 Criminal law - Catherine Elliott, Frances Quinn, 2014 Book Core (Must Read) Introduction Please read the 'case analysis' documents on Westlaw for R v Shivpuri [1986] 2 All E.R 334 and R v Jogee [2016] UKSC 8 so that you can answer question 3 (below). Week 3 - Donovan and Brown cases, autonomy and the harm principle (4 items) Required reading:- (2 items) Criminal law - Catherine Elliott, Frances Quinn, 2014 Book Core (Must Read) pp R v Brown [1993] 2 All ER 75 (compare the speeches of Lord Templeman and Lord Mustill). Background reading:- (2 items) From the lecture:- R v Donovan (above): the case more or less establishing the 'no consent to abh' rule ADT v United Kingdom [2000] ECHR 402 Kennedy (No. 2) [2007] UKHL 38: see next week for detail. From the lecture and text-book:- R v Brady [2006] EWCA Crim 2780: confirms the definition of recklessness in R v G and Another Cr App R 21 and addresses issues of blameworthiness. Laskey Jaggard Brown v UK (1997) 24 EHRR 39: the Court of Human Rights agree with the HL in R v Brown & Others) R v Wilson [1996] 3 WLR 125: fitting a case amongst the exceptions to the general rule or moving with the times? R v Emmett (1999) The Times 15th October 1999: the issue is the level of harm, not sexual orientation 2/18

3 Week 4 - actus reus including causation questions and scenarios (3 items) Required reading (2 items) Criminal law - Catherine Elliott, Frances Quinn, 2014 Book Core (Must Read) pp R v White [1910] 2 K.B. 124: addresses issues of factual causation (including the importance of having watertight forensic evidence). R v Cheshire [1991] 3 All ER a case of fundamental importance so please read the report in full. Provides a useful definition of legal causation as well as firming up impact of medical mistreatment following the defendant's actions. R v Miller (1983) 2 AC 161: liability for an omission via creation of a dangerous situation Background reading:- (1 items) From the lecture:- Attorney General's Reference (No 3 of 1994) 2 All ER 10: if a component part of the crime is not proved (here, there was no 'person in being' at the time needed for the crime of murder to exist) then that crime has not been committed R v Jordan (1956) 40 Cr App R 152: a case - a rare case - which shows a medical novus actus interveniens. R v Blaue [1975] 3 All ER a key case on breaking the chain of causation linking the accused to the prohibited result R v Kennedy (No. 2) [2007] UKHL 38: drawing the threads together. Apparently drug addicts voluntarily choose to self-administer drugs supplied to them by a drug dealer. There is no distinction to be drawn between 'administering' and 'causing to be administered' for the purposes of sections 23 or 24 of the Offences Against the Person Act Judges do live in the same world as real people. From the lecture and text-book:- 1. Fagan v Metropolitan Police Commissioner [1969] 1 QB 439: on the occurrence of mens rea at some point in a continuing act. 3. R v Evans (Gemma) [2009] EWCA Crim 650:This case provides a useful synthesis of several issues arising in the area of liability via an omission to act. 4. Airedale NHS Trust v Bland: general rule: no liability in criminal law for omissions. Application of general rule: withdrawing nourishment from a patient in a PVS = an omission to act. No duty to act in a way which is not in the best interests of a patient 3/18

4 5. R v Lowe (1973) 1 All E.R 805: liability imposed by statute. 6. R v Stone R v Dobinson [1977] 2 All ER 341: liability imposed by assumption of responsibility followed by failure to discharge that responsibility. 7. R v Pittwood (1902) 19 TLR 37: liability imposed by contract. Background cases:- Dear [1996] Crim LR 595 (CA) Cato [1976] 1All ER 260 Malcherek (1981) 2 All E.R 422 Roberts (1972) Crim.L.R.27 Dytham [1979] QB 722 Sheppard (1862) Le & Ca 147 Hood [2003] EWCA Crim 2727 Roberts (1972) Crim LR 27 Week 5 is READING WEEK (1 items) you could usefully be giving consideration to the first assessment (case-note on the R v G & R case). Week 6 - mens rea questions (3 items) Required reading (3 items) Criminal law - Catherine Elliott, Frances Quinn, 2014 Book Core (Must Read) pp22-39 (including the material on pp25-30 on Caldwell recklessness, which is of historical interest, but also sets the context for R v G and Another) and the following cases:- R v Brady [2006] EWCA Crim 2780: confirms the definition of recklessness in R v G and Another Cr App R 21 and addresses issues of blameworthiness From the lecture:- 4/18

5 R v Mohan [1975] 2 All ER 193: contains a succinct definition of the concept of intention R v Moloney [1985] AC 905: reminds us that if a crime specifies that it must be committed intentionally, then nothing short of proof of an intention will suffice. R v JF [2015] EWCA Crim 351 From the lecture and textbook:- R v Woollin [1998] UKHL 28: virtual certainty that death or gbh will result from the defendant's action + the defendant realizing that = evidence of intention for the jury to consider NOT a different type of intention R v G and Another [2003] UKHL 50: on need for recognition of risk R v Brady [2006] EWCA Crim 2780: on 'how much risk' Booth v CPS [2006] EWHC 192 (Admin): on knowing risk but then closing mind to it AG's Reference (No 3 of 2003) [2004] EWCA Crim 868: on the offences to which R v G and Another applies. R v Adomako [1994][ 3 All ER 79 (introducing negligence) A-G's Ref (No.3 of 1994) [1998] AC 245 (on transferred malice) R v Gnango [2011] UKSC 59 (the application of transferred malice to accomplices) Thabo Meli v R [1954] 1 All ER 373 (on the need for actus reus and mens rea to be linked) R v Le Brun [1991] 4 All ER 673 (on the need for actus reus and mens rea to be linked) Background material:- Mitchell [1983] 2 All ER 427 (CA) The Woollin Article Week 7:Absent and diminished responsibility (2 items) Required reading (2 items) Criminal law - Catherine Elliott, Frances Quinn, 2014 Book Core (Must Read) Chapter 4 pp and Chapter 13 pp From the lecture:- 5/18

6 R v Vinagre (1979) 69 Cr App R 104: the appellant at the material time was suffering from a mental condition which was described as the "Othello syndrome" defined as being "morbid jealousy for which there was no cause". On the margin of recognition for the purposes of the defence. R v Ramchurn [2010] EWCA Crim 194: a case examining the concept of substantial impairment in the diminished responsibility defence, which demonstrates, broadly speaking, that there is no change from the previous position i.e. the jury need to hear expert evidence on the issue, but it is up to them to decide whether as a matter of fact the defendant's responsibility was substantially impaired. R v R [2010] EWCA Crim 194: on the meaning of substantial impairment. Khan [2009] EWCA Crim 1569: for the appellant to be able to rely on the defence of diminished responsibility, it was for him to satisfy the jury, on a balance of probabilities, of the matters set out in section 2(1) of the 1957 Act (as amended). In reaching a decision on that point, they were entitled to look at all the facts, including those which suggested that there was no substantial impairment of responsibility. From the lecture and text-book:- A. Insanity The M'Naghten Case [1843] UKHL J16: confirms that the presumption of sanity requires a defendant to prove that s/he was insane; and sets out the test for insanity so far as the criminal law is concerned. Bratty v Attorney General for Northern Ireland [1961] 3 All ER 523: the source of confusing statements on the nature of 'disease of the mind'. R v Hennessy [1989] 2 All ER 9: diabetes will be treated as a disease of the mind for the purposes of the M'Naghten Rules where the condition, untreated, causes a hyperglycemic episode. R v Quick [1973] 3 All ER 347: diabetes will not be treated as a disease of the mind for the purposes of the M'Naghten Rules where medication for the condition causes a hypoglycemic episode. R v Burgess [1991] 2 QB 92: sleep-walking can be a disease of the mind for the purposes of the M'Naghten Rules. R v Sullivan (1983) 2 All.E.R 673: epilepsy is a disease of the mind for the purposes of the M'Naghten Rules. 6/18

7 R v Coley [2013] EWCA Crim 223: distinguishing between the effects of voluntary intoxication and insanity etc B. Diminished Responsibility R v Dietschmann [2003] UKHL 10: the decision of the House of Lords showing that mere voluntary intoxication is to be disregarded when deciding whether the accused was suffering from diminished responsibility. R v Dowds (2012) EWCA Crim 281: the case confirming 'no change' in the approach taken to voluntary intoxication and diminished responsibility in the Dietschmann case. R v Wood [2008] EWCA Crim 1305: intoxication can be at the root of a recognized medical condition if it has actually caused brain damage. Martin (Anthony) [2001] EWCA Crim 2245: paranoid personality disorder will probably be a recognized medical condition giving rise to an abnormality of mental functioning, given that it was capable of giving rise to diminished responsibility under the original s2 HA Mark Golds[2014] EWCA Crim 2760 the Supreme Court sitting with 7 Justices heard the appeal in this case on 14th June Judgment imminent at time of writing (July 2016). Week 8 - : loss of control and diminished responsibility (2 items) Required reading:- (2 items) Criminal law - Catherine Elliott, Frances Quinn, 2014 Book Core (Must Read) pp82-95 (loss of control); (on diminished responsibility you have done this for last week) A. Loss of control cases From the lecture and text-book:- R v Clinton and Others [2012] EWCA Crim 2: a breath-taking case on the undermining of 7/18

8 Parliament's wish to rid the new LoC defence of the stench of homicidal (usually) male violence as a response to sexual infidelity. R v Asmelash [2013] EWCA Crim 157: this case is authority for the proposition that the defendant's voluntary intoxication at the time of the killing was not one of his "circumstances" relevant to whether the partial defence of loss of control under s54 Coroners and Justice Act 2009 was made out. However, if a sober individual in the defendant's circumstances, with normal levels of tolerance and self-restraint, might have behaved in the same way as the defendant when confronted by the relevant qualifying trigger, a defendant who had been drinking would not be deprived of the loss of control defence just because he was not sober. So the court is able to disregard voluntary intoxication (Asmelash) but not sexual infidelity (Clinton) in spite of a clear instruction from Parliament that it should do so. R v Dawes, Hatter and Bowyer [2013] EWCA Crim 322: a burglar can have no justification for feeling seriously wronged in respect of something said during the burglary (Bowyer); but the defence may work where the defendant has not incited violence for the specific purpose of creating a 'loss of control' defence (Dawes). Sexual infidelity alone is still excluded (Hatter, where the only issue was the victim's sexual infidelity). The Clinton case - a critique This is an article penned by Lauren Foulstone and David Radlett on the Clinton case for a professional journal so it is practical rather than theoretical in nature. Available on the Moodle page. B. Diminished responsibility cases See above C. Self-defence and the prevention of crime These cases do not feature in the seminar for this week, but make sure you understand the cases that have been emboldened. From the lecture 8/18

9 A.G.'s Ref. No.2 of 1983 (1984) QB 456: the defence is available in respect of the defence of property, applying the principle from cases like R v Hussey (1924) 18 Cr App R 160. R v Bird [1985] 1 WLR 816: my preferred case on the relevance of a failure to retreat (Elliott & Quinn prefer McInnes (1971) but it is my module, not theirs). R v Hatton [2005] EWCA Crim 2951: a mistaken belief caused by self-induced intoxication could not be relied upon to establish that the defendant was acting in self defence R v Owino [1995] Crim L R 743: the case which tells us that the question whether the defendant's use of force was reasonable is decided according to the standard of the reasonable person acting on the facts as the defendant believed them to be. From the lecture and text-book:- R v O'Grady [1987] QB 995: see Hatton (above). R v Attwater [2010] EWCA Crim 2399: there must be a crime still to be prevented for the s3 CLA 1967 defence to work. R v Jones [2006] UKHL 16 makes the same point regarding something which is 'only' an offence known to international law. Re A (Conjoined Twins) [2000] 4 All ER 961: a case argued to impact on the generality of the principle subsequently recognized in Attwater and Jones, but probably best treated as a case decided upon, and relevant only to, its own particular facts. DPP v Bayer [2003] EWHC 2567 (Admin): self-defence only works if it is exercised in respect of something which is itself criminal. Malnik v DPP [1989] Crim LR 451: self defence will not be available where the defendant has created the situation where the use of force may be necessary (best looked at as a 'going equipped' case). R v Keane; R v McGrath [2010] EWCA Crim 2514: the component parts of the 'self-defence' defence remain unchanged following the statutory intervention in s76 CJ&I Act 2008, so the defence may arise where the defendant has started a fight, but only if the response to which s/he then reacts is disproportionate. R v Hichens [2011] EWCA Crim 1626: force may be exercised in self defence against innocent party provided the creiteria of necessity and reasonableness are made out. Williams (Gladstone) [1987] 3 All ER 411: the need for force is to be judged on the facts as the defendant believed them to be. R v Yaman [2012] EWCA Crim 1305: see Owino (above). R v McInnes [1971] 3 All ER 1600: see Bird (above). Palmer -v- R [1971] AC 814: if death results from the use of an unreasonable degree of 9/18

10 force in self-defence, the offence will be murder provided the accused meant to cause death or grievous bodily harm unless the jury thought that, in a moment of unexpected anguish, a person attacked had only done what he honestly and instinctively thought was necessary. A-G for NI Ref (No 1 of 1975) [1977] AC 105: "reasonable force" is always a matter for the jury, but the reasonable person will weigh in the balance the consequences of acting or not acting "in the brief second or two which the accused had to decide whether to shoot or not", and under all the stresses to which D was exposed. Oye [2013] EWCA Crim 1725 Week 9. Involuntary manslaughter(2 items) Required reading:- (2 items) Criminal law - Catherine Elliott, Frances Quinn, 2014 Book Core (Must Read) pp A. Unlawful Act Manslaughter aka Constructive Manslaughter From the lecture and text-book:- R v Lowe (above, week 2): on the need for there to be an act rather than an omission for UAM to exist. R v Dhaliwal [2006] EWCA Crim 1139: on the need to prove the link between the unlawful act(s) and the death of the victim. R v Church [1965] 2 WLR 1220: on the need for the unlawful act(s) to be dangerous in the sense of creating the risk of some physical harm, albeit not necessarily serious physical harm. R v JM & SM [2012] EWCA Crim 2293: the defendant does not need to foresee the risk of a particular type of physical harm or indeed any physical harm: it is sufficient if the reasonable person would have foreseen the risk of some physical harm, whether or not of the type which actually occurred. Calls into question R v Carey [2006] EWCA Crim17 (on the ground that an affray exists where a person uses or threatens unlawful violence towards another and that conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety, so even a minor affray must create the risk of some physical harm, even if not serious physical harm); 10/18

11 R v Dawson (1985) 81 Cr App R 150 (also affected by R v JM & SM on the ground that provided the reasonable person can foresee the risk of some physical harm, it does not matter whether the accused does or not). R v Watson [1989] 2 All ER 865 (also affected by R v JM & SM on the same argument as Dawson (but still necessary to prove the link between the unlawful act and the death). R v Ball [1989] Crim LR 730: see R v Lamb (below) R v Kennedy (No 2) [2007] UKHL 38: drug addicts voluntarily choose to self-administer drugs supplied to them by a drug dealer. There is no distinction to be drawn between 'administering' and 'causing to be administered' for the purposes of sections 23 or 24 of the Offences Against the Person Act R v Lamb [1967] 2 All ER 1282: (a) unlawful = criminally unlawful; (b) the mens rea for unlawful act manslaughter is the mens rea for the criminally unlawful act. R v Meeking [2012] EWCA Crim 641: allegedly controversiol because s22a RTA 1988 'is, in essence, an offence of negligence'. Not really. The relevant parts say: "(1) A person is guilty of an offence if he intentionally and without lawful authority or reasonable cause - (b) interferes with a motor vehicle, trailer or cycle in such circumstances that it would be obvious to a reasonable person that to do so would be dangerous". So, a criminally unlawful act is required (not an omission) which is dangerous in the sense of causing "(2) danger either of injury to any person while on or near a road, or of serious damage to property on or near a road" (an extension to risk of some physical harm etc, but Parliament can do that sort of thing) which causes death. Bog standard UAM if you ask me R v JF [2015] EWCA Crim 351 B. Gross Negligence Manslaughter From the lecture and text-book:- R v Adomako [1994] 3 All ER 79: a person is guilty of gross negligence manslaughter if (a) they are under a duty of care to the victim; (b) they are in breach of that duty causing the victim's death; and (c) the circumstances are gross enough to justify a crimninal conviction. R v Watts [1998] Crim LR 833: if conviction for gross negligence manslaughter is a possibility, an Adomako-style direction must be given. A direction on UAM manslaughter alone is clearly not enough. R v Wacker [2002] EWCA Crim 1944: a duty of care can be owed even in the performance of a criminal act. 11/18

12 R v Evans (Gemma) [2009] EWCA Crim 650: the judge's role includes advising on the criteria for the existence of a duty of care; a parent owes a dependent child a duty of care. Singh (Gurphal) (1999) Crim.L.R 582 R v Lidar (unreported): a case which illustrates how, if there is one thing worse than a court letting a person off on spurious grounds (e.g. Geddes) it is a court looking for a reason to maintain a conviction in the face of obvious error. Here, the trial judge gave a 'reckless manslaughter' direction in a case occurring after the decision in Adomako (which over-ruled key reckless manslaughter cases) when the defendant was under an obvious duty of care to the victim (a person dangling into the window of the car that the defendant was driving). In seeking to uphold the conviction, a rather weak Court of Appeal give a decision which is bordering on the legally illiterate. R v Misra & Srivatava [2004] EWCA Crim 2375: on the need for there to be a risk of death for GNM to arise and the nature of' gross' for the purpose of GNM. Week 10. Non-fatal offences against the person(2 items) Required reading:- (2 items) Criminal law - Catherine Elliott, Frances Quinn, 2014 Book Core (Must Read) Chapter 6 Be aware of the following cases:- From the lecture:- 14th Report of the Criminal Law Revision Committee on Offences against the Person (1980): provides a working definition of assault and battery and is evidence of the uncertainty in usage of the two terms. Collins v Wilcock [1984] 3 All ER 374: if a police officer touches a person with a view to restraining them for the purpose of speaking to, but not arresting them, that amounts to an unlawful battery. R v Venna [1975] 3 All ER 788: the mens rea of assault is to create the fear of the use of immediate unlawful violence or to be reckless as to wjhether such fear is created: the mens rea of battery is to apply unlawful force either intentionally or being reckless as to whether such force is applied. R v Williams; Davis [1992] 1 WLR 380: "in fatal cases there are two requirements. The 12/18

13 first, as in non-fatal cases, relates to the deceased's conduct which would be something that a reasonable and responsible man in the assailant's shoes would have foreseen. The second, which applies only in fatal cases, relates to the quality of the unlawful act which must be such that all sober and reasonable people would inevitably recognise must subject the other person to some harm resulting therefrom, albeit not serious harm" per Stuart-Smith LJ (see R v Roberts (below). JCC (A Minor) -v- Eisenhower (1984) 78 Cr App R 48: A "wound" for the purposes of s20 meant a break in the continuity of the whole skin. An internal rupturing of blood vessels did not therefore amount to a "wound". DPP v K (a minor) [1990] 1 WLR 1067: the application of force need not be direct. Ignore what the court say about Caldwell recklessness (it has been abolished - the defendant must now appreciate the risk of harm and proceed anyway as per Venna). Mandair [1994] 2 WLR 700: "cause" is wider or at least as wide as "inflict", and so "causing" gbh was wide enough to include "inflicting" gbh (Lord Mustill). R -v- Belfron [1976] 1 WLR 741: one or another of the required intentions ("to do some grievous bodily harm to any person or to resist or prevent the lawful apprehension or detainer of any person") in s18 has to be proved. Mere foresight of, or recklessness as to the existence of one or another of them is not enough. From the lecture and text-book A. Assault R v Constanza [1997] 2 Cr App R 492: words can constitute a common assault. R v Meade and Belt (1823) 1 Lew CC 151: see Constanza (above). Tuberville -v- Savage (1669) 86 ER 684 KBD: an assault must cause apprehension (fear) of the immediate application of unlawful force. Words can negative an assault. Smith v Chief Superintendent, Woking Police Station (1983) 76 Cr App R 234: creating fear that something will be done of a violent nature is enough to support an assault charge. R v Ireland; R v Burstow [1998] AC 147: it is not enough that the victim be put in fear; the fear must be of immediate violence. B. Battery 13/18

14 DPP v K (a minor) [1990] 1 WLR 1067: see above. C. Assault occasioning actual bodily harm R v Donovan [1934] 2 KB 498: "... 'bodily harm' has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling... " T v DPP [2003] Crim LR 622: (not R v DPP as stated in Elliott & Quinn): an injury which is transient but not trifling can amount to actual bodily harm. R v Chan-Fook [1994] 2 All ER 552: "actual bodily harm' is capable of including psychiatric injury. Hobhouse LJ emphasised, at p. 696: 'it does not include mere emotions such as fear or distress nor panic nor does it include, as such, states of mind that are not themselves evidence of some identifiable clinical condition." R v Ireland; R v Burstow [1998] AC 147: Lord Steyn (with whom Lords Goff and Slynn agreed) noted that, as harassment of women by malicious calls was a significant social problem against which the law should be able to provide protection, the Act should be construed in the light of the scientific knowledge current at the time of the offence, notwithstanding the fact that psychiatric illness was not considered to be bodily harm during the original drafting of the Act. An assault was committed under s47 if the victim was caused to apprehend imminent personal violence and the question whether a malicious telephone caller was guilty of assault would thus be a question of fact in each case. DPP v Smith [2006] 2 All ER 16: abh = injury, harm or damage to any part of the body. R v Savage; R v Parmenter [1992] 1 AC 699: (Parmenter): "The verdict of assault occasioning actual bodily harm may be returned upon proof of an assault together with proof of the fact that actual bodily harm was occasioned by the assault. The prosecution are not obliged to prove that the defendant intended to cause some abh or was reckless as to whether such harm would be caused" per Lord Ackner. R v Roberts [1978] Crim LR 44: the original statement of the rule now in Parmenter (above). On causation, held that a defendant causes those consequences which are the natural result of what s/he said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what s/he was saying or doing. R v Williams; Davis [1992] 1 WLR 380 (see above). D. Recklessly Wounding OR Inflicting Grievous Bodily Harm 14/18

15 Bollom [2003] EWCA Crim 2846: "grievous bodily harm" should be given its ordinary and natural meaning, that of really serious bodily harm, and other definitions should be resisted: Director of Public Prosecutions v Smith [1961] A.C The ambit of grievous bodily harm is therefore potentially wide, as is demonstrated by the inclusion, for instance, of psychiatric injury: Ireland; Burstow [1998] AC 147 H/L. In deciding whether injuries were grievous, an assessment had to be made of, amongst other things, the effect of the harm on the particular individual" (per Fulford J). R v Saunders [1985] Crim LR 230: no meaningful distinction between that which is 'really serious' and that which is 'serious'. JCC (A Minor) -v- Eisenhower (1984) 78 Cr App R 48: on the meaning of 'wound' (see above). R v Savage; R v Parmenter [1992] 1 AC 699: (Savage): in order to establish an offence under s20 the prosecution had to prove "either that the defendant intended or that he actually foresaw that his act would cause harm" per Lord Ackner. The "harm" implied simply harm to the person as opposed to harm to property i.e. it was not concerned with the amount of harm caused. E. Wounding OR Causing gbh with intent Mandair [1994] 2 WLR 700: on the meaning of "cause" (above). Background cases R v Brown & Stratton [1998] Crim LR 485:more on the meaning of gbh. Week 11 sexual offences and consent (2 items) Required reading (2 items) Criminal law - Catherine Elliott, Frances Quinn, 2014 Book Core (Must Read) Chapter 7 Be aware of the following cases:- From the lecture:- 15/18

16 R v McNally [2013] EWCA Crim 1051: deception as to gender could vitiate consent to sexual activity, and where a girl had engaged in sexual activity with another girl while claiming to be a boy, the consent obtained was vitiated and she was guilty of assault by penetration. R v Dica [2004] EWCA Crim 1103: the crucial question regarding consent was whether the victims had consented to the risk of HIV infection, not to sexual intercourse. Brown did not determine this issue. The defendant did not become a rapist by concealing his HIV+ status, but applying the logic of Tabassum [2000] Crim LR 686 regarding indecent assault to the offence under s20, concealing his health status could negate any consent to the risk of infection. Konzani (Feston) [2005] EWCA Crim 706: there is a crucial distinction to be drawn between taking a risk as to the various potentially adverse and possibly problematic consequences of unprotected consensual sexual intercourse, and the giving of informed consent to the risk of infection with a fatal disease. For consent to the risk of contracting HIV to provide a defence, the consent had to be an informed consent. R v Adaye (2004, Liverpool Crown Court, Unreported): knowledge of a higher level of risk of HIV infection was sufficient evidence that the defendant had acted recklessly by not informing a new partner of the risk of HIV infection. From the lecture and text-book:- DPP v K & C [1997] 1 Cr App R 36: whilst only a man can be a rapist, a woman can be liable as, for example, a procurer of a rape. R v Olugboja [1982] QB 320: rape is not limited to cases where sexual intercourse had taken place as a result of force, fear or fraud. 'Consent' obtained by duress amounted to submission, not true consent. A fortiori, after s74 SOA 2003 was put on the statute book... a proposition confirmed in R v Kirk [2008] EWCA Crim 622 and s75(2)(a)(c) SOA R v Lartner & Castleton [1995] [1995] Crim LR 75: now s75(2)(d) SOA R v C(A) [2012] EWCA Crim 2034: evidence of under-age grooming can negative evidence of consent when older. R v C [2009] UKHL 42: a case on s30 SOA 2003 which does not, prima facie, have the meaning that Elliott & Quinn place upon it (they have taken the view of one law lord (Lord Rodger), with whom one other agreed (Lord Hope), and ignored the silence of the other three). R v Dougal (Swansea Crown Court, Unreported, 2005): trial judge stopped rape prosecution when victim admitted to being less than 100% sure that she had not consented when thoroughly drunk. 16/18

17 R v Hysa [2007] EWCA Crim 1791: failure of memory in the Dougal sense does not automatically mean that a case fails. All the evidence needs to be considered. R v Bree [2007] EWCA Crim 804: section 74 of the Sexual Offences Act 2003, properly understood, means that if, through drink, the complainant had temporarily lost her/his capacity to choose whether to have intercourse on the relevant occasion, s/he was not consenting. However, where the complainant had voluntarily consumed even substantial quantities of alcohol, but nevertheless remained capable of choosing whether or not to have intercourse, and in drink agreed to do so, s/he was consenting. R v EB [2006] EWCA Crim 2945: the fact that the appellant may not have disclosed his HIV status is not a matter which could in any way be relevant to the issue of consent under section 74 in relation to the sexual activity. Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin): the question of consent is to be determined by reference to s.74. It would plainly be open to a jury to hold that, if the victim had made clear that she would only consent to sexual intercourse if Assange used a condom, then there would be no consent if, without her consent, he did not use a condom. R v Jheeta [2007] EWCA Crim 1699: the complainant had been deceived about the situation in which she found herself, not about the nature or purpose of the act of sexual intercourse with the defendant. This meant that the conclusive presumption in section 76(2)(a) Sexual Offences Act 2003 had no application. However, the defendant's admissions that there were occasions on which the victim was not consenting rendered his conviction for rape safe. R v Tabassum [2000] 2 Cr. App R. 328: consent given in the mistaken belief that a person was medically qualified or had relevant training and that in consequence the touching was for a medical purpose was not true consent since it was given to touching for medical purposes, not to indecent behaviour. Consent to the nature of the act but not to its quality was not true consent. R v Devonald [2008] EWCA Crim 527: the phrase "nature of the act" was important to the engagement of s76 SOA 2003, but so was its "purpose", which encompasses rather more than the specific purpose of sexual gratification by the defendant. R v Bingham [2013] EWCA Crim 823: s76 SOA 2003 was to be interpreted narrowly, and if there was a conflict between Jheeta and Devonald, then Jheeta is to be preferred. Background cases R v O'Brien [2006] EWCA Crim 1419: consent to one type of activity covered by s1 SOA does not = consent to all of them. R (F) v DPP [2013] EWHC 945 (Admin): if a person's consent to sexual activity is conditional (here, on withdrawal before ejaculation) then deli=berate breach of that condition goes to consent under s74. 17/18

18 R v B [2013] EWCA Crim 3: belief in consent for the purposes of s1(1) of the Sexual Offences Act 2003 had not only to be genuinely held, it also had to be reasonable in the circumstances. A delusional belief short of insanity was by definition irrational and therefore unreasonable. R v Mark Anthony C [2007] EWCA Crim 378: the presumptions in s75 SOA 2003 address certain imbalances of power between the parties which reflect the vulnerability of the victim. s75(2)(c) SOA 2003 covers any situation in which the victim is rendered unable to go where they wish, even temporarily, such as being driven to an unwanted destination in a car (Judge LJ). Week 12 In-class assessment This exercise takes place in the Thursday lecture slot but is located in the Sports Hall 18/18