STANSFIELD COLLEGE CRIMINAL LAW Non-Fatal Offences & Consent

Transcription

1 STANSFIELD COLLEGE CRIMINAL LAW Non-Fatal Offences & Consent

2 CRIMINAL LAW LECTURE 1

3 Definition of Assault: D intentionally or recklessly CRIMINAL LAW LECTURE 2 Causes another to apprehend the application of immediate unlawful force. Definition of Battery: D intentionally or reckless inflicts immediate unlawful force on another person. - To mention in your answer that the definition is provided in common law as they are not defined in the relevant statutory provision (s39 of Criminal Justice Act 1988) which only mentions that they are summary offences and a person guilty of either of them shall be liable to imprisonment for a term not exceeding six months. As such, they are common law offences (Laws J in Haystead v Chief Constable of Derbyshire [2000])

4 CRIMINAL LAW LECTURE 3 Assault Assault is a result crime - V must apprehend/anticipate an immediate application of force: - No assault where V is not aware of the threat - no requirement that V must be afraid - Logdon v DPP replica gun; R v Lamb (pointing a gun) - Words amounting to assault R v Meade & Belt words or singing cannot amount to assault Lord Steyn in R v Ireland (1997) gesture may amount to assault but not words is unrealistic.

5 - Immediate CRIMINAL LAW LECTURE 4 Assault Smith v Chief Superintendent, Woking Police looking through window R V Constanza, the court reasoned that D lived near V s home, and V reasonably feared something might happen at any time. It was enough for the prosecution to show a fear of violence at some time not excluding the immediate future. R v Horseferry Road Metropolitan Stipendary Magistrate ex parte Siadatan (1991) Watkin LJ: immediate does not mean instantaneous. Immediacy connotes proximity in time and causation; that it is likely that force will be applied within a short period of time and without any other intervening occurrence. MR of Assault: there must be an intention (direct/purposive intent only) to cause the apprehension or recklessness (Cunningham recklessness) that such apprehension will be caused (London v DPP [1976])

6 CRIMINAL LAW LECTURE 5 Battery - The definition given under common law states infliction of unlawful and personal violence Wilson v Pringle must show hostile touching Collins v Wilcock (1984): violence is misleading. slightest touching without consent suffice Refer to Course Note: F v West Berkshire Health Authority (1989) - Battery is a conduct / act crime that does not require any consequence to arise from the unlawful application of force. There must be physical contact (slap, spit, hit with umbrella, push, unwarranted touches, punch, etc.). - Physical contact to the clothes (victim must be wearing it) suffice (R v Day; R v Thomas [1985])

7 CRIMINAL LAW LECTURE 6 Battery - Inflict direct application of force? R v Wilson (H/L) Haystead v DPP: He had been accused of beating a child by punching the child's mother causing the child to fall and hit his head. He argued that battery required the direct application of force which involved direct physical contact with the victim either with the body or with a medium such as a weapon. Held, dismissing the appeal, that the correct approach to the actus reus of battery was set out in Smith and Hogan, Criminal Law (9th edition (1999) p.406) which revealed that battery did not require the direct infliction of violence. Furthermore, even if the definition of battery argued for by H was correct, H had committed battery. The child's fall to the floor had resulted directly from H's assault on his mother. No distinction could be drawn between using the mother or a weapon as the relevant medium save that the latter involved intention and the former recklessness. Martin; DPP v K other cases of in direct application of force where battery was established.

8 CRIMINAL LAW LECTURE 7 Battery - Battery by omission Fagan v MPC (1969) cannot be committed by omission DPP v Santana-Bermudez (2003) can be committed by omission. MR of Battery intention to inflict unlawful personal violence (application of force that is not consented to) or reckless as to such violence is inflicted (Venna [1976])

9 CRIMINAL LAW LECTURE 8 We have looked at non-fatal offence(s) that: 1. Do not require a bodily harm (assault & battery) 2. Require actual bodily (s47) 3. Require unlawful wounding or inflict/causing gbh (S18 & s20)

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11 CRIMINAL LAW LECTURE B Q7 10 Jim enjoyed playing practical jokes and decided to play a joke on Ann. He hid behind a bush late one night wearing nothing but a very frightening mask on his face and carrying a water pistol. He waited until she walked by and jumped out with a yell, shouted bang bang you are dead and squirted water at her from the pistol. Ann had a heart attack and died. Discuss Jim s criminal liability, if any. To what extent would you answer differ if the facts were as follows. Jim knew Ann had a weak heart and had intended to cause her to have a heart attack. Ann did not die immediately but was taken to hospital where she remained for some weeks in a coma until she died of septicaemia following a serious infection she contracted whilst in hospital.

12 CRIMINAL LAW LECTURE 11 Consent Element of Consents R V Brown Lord Templeman Consent to inv manslaughter and the above offences (assault, battery, s47, 18 & 20) is found in common law. This consent is different from the consent available to sexual offences which is a statutory defence. Assault & Battery 1. Full & Free Consent Other Offences i.e. s47, 18, Full & Free Consent 2. Activity consented to must be lawful

13 CRIMINAL LAW LECTURE 12 Consent Full & Free Consent the victim must be aware of the nature of the act consented to - Capacity - Burrell v Harmer (1967) D tattooed boys aged 12 & 13. Held: the boys were too young to understand the nature of the act - There is no consent if it is obtained by Duress (R v Nichol) - There is no consent if it is obtained by Fraud as to the nature of the act or identity of the person R v Elbekkay - woman s consent was given under a mistaken belief that the D was her boyfriend (she was under the effect of sleepiness and drinks) No Consent R v Clarence Husband did not tell his wife that he had a STD. She was infected. She argued that she would not have consented to the intercourse had she known that he had the condition. Held: no deception/fraud as to the nature of the act and the identity of the person R v Linekar D failed to pay a prostitute after having sexual intercourse. Her claim for rape i.e. she would not have consented had she known that he would not pay was not entertained. D was not liable for rape (no fraud as to the nature) R v William (1923) Consent was obtained by fraud (to the nature of the act). D obtained V s consent to sexual intercourse by falsely representing that it was a breathing exercise which would improve her singing voice.

14 CRIMINAL LAW LECTURE 13 Consent Full & Free Consent the victim must be aware of the nature of the act consented to - There is no consent if it is obtained by Fraud as to the nature of the act or identity of the person R v Richardson (1998) D was a registered dental practitioner and was suspended from practice by the council. She was charged with ABH arising out of her continued treatment of patients after disqualification. Held: 1. The concept of identity of the person could not be extended to cover qualification or attributes 2. There was no fraud as to the nature of the act. The V consented to dental treatment and that is what she underwent.

15 CRIMINAL LAW LECTURE 14 Consent Full & Free Consent the victim must be aware of the nature of the act consented to - There is no consent if it is obtained by Fraud as to the nature of the act or identity of the person R v Tabassum (2000) V knew the D. D told her that he was doing a study on breast cancer and she agreed to take part. When he examined her breast, he did not show any sign of sexual excitement. He did the same to second victim who thought that he was working at the hospital. 1 st victim gave evidence that she would not have consented had she known that he was not a doctor. The second one said that she would not have consented had she known that he did not work at the hospital where she thought he was trained. Held: 1. Victims consented to the nature of the act. 2. Victims did not consent to the quality of the act since they believed that he was medically qualified and the touching was for medical purpose.

16 CRIMINAL LAW LECTURE 15 Consent Full & Free Consent the victim must be aware of the nature of the act consented to - There is no consent if it is obtained by Fraud as to the nature of the act or identity of the person R v Tabassum (2000) Commentary 1. Before the present case, the law was that if the V understood the nature of the act, he consented to it. 2. The court seem to distinguish between the nature and quality. The phrase nature and quality in law has been understood to refer to (only) the nature of the act defence of insanity 3. If this decision is correct, then cases like Clarence and Richardson appears to be wrongly decided. 4. Since 2000, no other case has applied this decision i.e. not followed. 5. Decision of R v B (2006) appears to suggest that this decision will not be followed (No liability for rape where D failed to inform the V that he is HIV positive).

17 CRIMINAL LAW LECTURE 16 Consent Activity consented to must be lawful Activity is lawful or not is decided in on grounds of public policy. Lord Lane CJ in AG s Ref No.6 of 1980 : it is not in the public interest that persons should cause bodily harm for no good reason. This means that street fights will be unlawful regardless of consent. Brown (1993) Above statement was approved by the House of Lords and doctrine of social utility was utilised i.e. balancing the good and bad of a particular activity. - Valid social purpose (may negate criminal liability even where the act is dangerous and creates a risk medical treatments, sports etc.) Brown (1993) Defendants belong to a group of sado-masochistic homosexuals who for sexual pleasure perpetrated acts of violence against each other. This conduct took place at a private gathering. No one complained about them and there was no evidence that any of them sought medical treatment. Ds were charged with s47

18 CRIMINAL LAW LECTURE 17 Consent Activity consented to must be lawful Brown (1993) Held Ds liable: 1. Prosecution need not prove lack of consent i.e. there was factual consent. The issue was whether that consent was valid in law i.e. activity consented to was lawful. 2. Young man might be lured into these activity 3. Concern that things might get out of hand there was no guarantee that participants would not get carried away and inflict pain and injury beyond the level to which the victim had consented. 4. No social utility

19 CRIMINAL LAW LECTURE 18 Consent Activity consented to must be lawful Brown widely criticized as infringing human rights and right to private life Wilson (1996) - branding; R v Slingsby (1996) insertion of hand in rectum You may say that Brown was a case of deliberate causing of harm whereas in Wilson & Slingsby there was no question of the victim consenting to the injury because neither the victim nor the defendant had anticipated any harm resulting from their activity. Does Wilson and Slingsby contradicts the dictum of Lord Lane CJ in AG Ref No. 6 of 1980?

20 CRIMINAL LAW LECTURE 19 Consent Activity consented to must be lawful Emmett (1999) Consent given to Sado-masochistic acts may be lawful where there is no risk of permanent injury. Read Regina v Barnes (Given in class)

21 CRIMINAL LAW LECTURE 2009B Q1 20 Fred and Marcus had fought because Marcus was angry with Fred for having carved the letter F on to Livia s arm using a penknife. Livia is a Marcus s 14-year-old daughter, who begged Fred to do this as she was in love with him. Fred had reluctantly agreed. The wound was not serious, although it did require one stitch. Fred and Marcus decided to settle their differences by having a fight. Fred had punched Marcus, knocking him over and causing him to fracture his skull. Fred ran away when the police were called. As Fred was making his way home, a beggar, Beryl, who was carrying a baby in her arms, approached him and asked him for money to feed the baby. This incensed Fred who hated beggars. He sprayed after-shave cologne in Beryl s face causing her to drop the baby which bruised it slightly. The police then caught up with Fred. PC Bill tried to arrest him. Fed punched PC Bill out of the way in an attempt to get away, causing PC Bill to stagger. In an effort to save himself from falling, PC Bill put his arm out and pushed it through a shop window, sustaining severe cuts to his arm. Discuss the possible criminal liability of Fred.

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23 CRIMINAL LAW LECTURE HIV Cases 21 Brown: A man cannot consent to causing bodily harm for no good reason i.e. the focus is consent to bodily harm HIV Cases: the focus is not consent to bodily harm but consent to running the risk of transmission of HIV. R v DICA (Mohammed)[2004] Knowing that he was HIV positive, the D had engaged in consensual unprotected sexual intercourse with the complainant thereby infecting each of them with the disease. He was charged with s20 or OAPA 1861 for maliciously inflicting GBH. The Crown case was that had the complainant known of his condition, they would not have consented to the sexual intercourse.

24 CRIMINAL LAW LECTURE HIV Cases 22 R v DICA (Mohammed)[2004] Held: Inflict - Since psychiatric injury might be inflicted without direct violence, physical injury (transmission of HIV) might similarly be inflicted (reasoning in Clarence [1889] had no continuing application) Rape - Since there was no fraud as to the nature of the act, D cannot possibly be guilty of rape. Factual Consent - She was not informed. Given the long-term relationship, there had been no reason for the complainant to think that they were running the risk of transmission. She was not consenting.

25 CRIMINAL LAW LECTURE HIV Cases 23 R v DICA (Mohammed)[2004] Held: Legality - Consensual acts of sexual intercourse were not unlawful merely because there might be a known risk to the health of one or other participant - This is because the participants were not intending to spread the virus or become infected (reckless infliction) i.e. in line with Brown (no intentional infliction of bodily harm) Roman Catholic couple wishing to respect their religious belief by engaging in unprotected sexual intercourse (one partner is HIV) do not intend to spread the virus. - They were no indulging in any form of serious violence for the purpose of sexual gratification - Rather they were simply prepared, knowingly, to run the risk (not the certainty) of infection, in addition to all other risks inherent in, and the possible consequence of, sexual intercourse - Making it illegal would undermine the general understanding of the community that sexual relationships were pre-eminently private and essentially personal

26 CRIMINAL LAW LECTURE HIV Cases 24 Per Curiam - R v DICA (Mohammed)[2004] 1. Running the risk of transmission i.e. having sexual intercourse with a person knowing that he is HIV positive is a valid consent in law 2. Factual consent is dependent on the complainant s knowledge i.e. D must inform the complainant or the complainant must know that D is HIV positive 3. Deliberate infection, or spreading of HIV with intent to cause GBH, the agreement of participants would provide no defence to the charge of s The issue raised in Dica was not confined to HIV disease. 5. If the complainant is not informed, the complainant is defrauded as to the risk of infection (hence did not consent to bodily harm) but have not been defrauded as to the nature of the act (sexual intercourse) 6. Infection of deadly viruses is GBH

27 CRIMINAL LAW LECTURE HIV Cases 25 R v Konzani (2005) D repeatedly had unprotected sexual intercourse with the complainant without informing them of his HIV status. In consequence, the complainant contracted HIV virus. D was charged with s20 for inflicing GBH. D argued: 1. As infection with HIV virus might be one possible consequence of unprotected sexual intercourse, the complainant had consented to the risk of contracting the HIV virus from him. 2. Alternatively, D submitted that he had an honest, even if unreasonable, belief that the complainant had consented to the risk Held: 1. Before consent of the complainant can provide the D with the defence, it had to be an informed and willing consent to the risk of contracting HIV 2. Concealment inevitably meant that she was deceived and she could not give an informed consent to something of which she was ignorant 3. The fact that she had taken risk of various, potentially adverse and possibly problematic consequences of sexual intercourse, did not mean that she had given an informed consent to the risk of infection with a fatal disease.

28 CRIMINAL LAW LECTURE HIV Cases 26 R v Konzani (2005) 4. A defendant s honest belief in the alleged victim s consent can provide a defence. However, where a defendant deliberately concealed his HIV status, his silence was incongruous with honesty, or with genuine belief that there was an informed consent. Issues: In Dica, the partners were in a long-term relationship. In Konzani, D repeatedly had unprotected sexual intercourse. The argument that the complainant impliedly consented to contracting HIV virus when she had unprotected sex with the D was rejected. The court reasoned that the fact that she had taken risk of various, potentially adverse and possibly problematic consequences of sexual intercourse, did not mean that she had given an informed consent to the risk of infection with a fatal disease. Is that reasonable and fair?

29 CRIMINAL LAW LECTURE HIV Cases 27 In R v DICA & Konzani, Ds knew of his HIV status and knew of the risk of transmission. Issue: What about cases where D suspects that he is HIV positive (i.e. no confirmation from doctor) and foresee the risk of transmission? The issue will be MR and to find D liable would be to expose too wide a range of individuals to prosecution. What about cases where D knew that he was HIV positive and takes precaution by using condom being aware that there is a risk of transmission? Would it be fair to find him liable?

30 CRIMINAL LAW LECTURE 2012 Q8 28 Romeo and Juliet are lovers. Romeo discovers he has Aids (a potentially fatal disease capable of being transmitted by sexual intercourse). He decides to break off the relationship with Juliet out of love for her, not wishing to communicate the disease or admit to his condition. When he tells Juliet, first she becomes very angry and then she despairs. She begs that they have sexual intercourse telling him that it will be a sign that he still loves her. Reluctantly he agrees, convincing himself that this will be the last time and that no harm will come of it. Six months later Juliet is found to have contracted the disease. Discuss Romeo s possible liability under each of the following sections of the Offences Against the Person Act (a) S47 (b) S20 (c) s18

31 CRIMINAL LAW LECTURE 2005A Q6 29 H hears a rumour that I, his partner, has been unfaithful to him. He grabs at her shoulder but she ducks and run out of the house and gets into her car, locking the door. However, the car would not start. H shouts at I saying that he will get an exe to break the window and goes into the garage. Just as he is returning, the car starts. Since it is in reverse gear, it shoots backwards, hitting the garage, and comes to a stop. I suffers a whiplash injury to her neck. J, a policeman, having heard the shouting, seen the axe, and seen I slumped in the driver s seat, yells out, Stop!. J races to get the axe from H. Running off, H throws the axe in the path of J, who trips over it and falls on the blade, causing a gash to his thigh. What offences H committed?

32 CRIMINAL LAW LECTURE 2005A Q6 30 H grabs at her shoulder but she ducks Assault before any physical contact. She apprehended unlawful personal violence and this is why she ducked. Was there physical contact? Battery if there was physical contact Battery if there was touching of clothes If there was no physical contact, there can be no attempted battery s1(4) Criminal Atempt Act 1981 (Battery is summary offence not indictable offence).

33 CRIMINAL LAW LECTURE 2005A Q6 31 H shouts at I saying that he will get an axe to break the window Assault Please address that she will be able to apprehend provided she heard the threat. If she heard the threat would she apprehend unlawful personal violence if she thought that she could escape? Also discuss immediacy i.e. did she apprehend an immediate personal violence where is the garage? H returning with an Axe Assault

34 CRIMINAL LAW LECTURE 2005A Q6 32 Whiplash Injury The charge would depend on the seriousness of this injury. If it seriously interfered with health and comfort (R v Metharam), then liability may arise under s20 and not s18. There would be no liability under s18 because there is not intention to cause GBH (apply apply virtual certainty test on the facts). Under s20, consider the meaning of inflict facts is indirect application of force resulting in whiplash injury. Also Consider MR of s20 and apply it on the facts. On the other hand if the whiplash injury is minor (no serious interference), then liability may arise under s47. Assault as above ABH (Miller) Causation consider escape cases see Roberts 1971 and William & Davis

35 CRIMINAL LAW LECTURE 2005A Q6 33 H threw the axe in the path of J Assault J suffered Gash GASH is a wound. However it can also amount to a GBH see definition of GBH S18 H has intention to do gbh i.e. purposive or oblique intent? He clearly has intention to resist arrest (Morrison[1989]). In which case malicious has part to play i.e. it must be established.