Criminal law lectures: Offenses against the person

General Structures of Offences against the person.
Actions against your person autonomy.
-Minor offences are a mix of common law and statutory. Most serious offences are statutory.
-Offences which do not need a sexual element are largely in Offences Against the Person Act 1861 à codified criminal offences (exclusively against people).

Offences which do not a sexual element are largely in Sexual Offences Act 2003.
-But SOA covers offences which are no so obviously against the person- e.g. offences against morality, such as incest and necrophilia; offences to protect the young, such as grooming; cruelty to animals, such as bestiality.

Assault
1) Assault proper
2) Assault encompassing assault and battery.
Assault Actus Reus = causing Victim to apprehend immediate unlawful personal violence (making the person fear violence i.e. they see your fist coming toward them).
Stephen v Myers, Tuberville v Savage, Ansell v Thomas
Assault Mens Rea = intention or Cunningham recklessness. Spratt, Jones.
à If victim does not realise they are about to be hit, they are not assaulted.

Battery
Personal violence implied in battery.
Battery AR= application of unlawful personal force. Pursell v Horn,
Walkden
Country wedding, aphrodisiac put into the wedding drink
Court said it was not battery.
-No force involved involved/ guests drank the poison.
Battery can be committed by omission. Fagan,
DPP v K
Boy put acid in blow-dryer. Another boy turned it on and had acid sprayed in his face.
Battery can be created by omission.
Battery MR= as assault/ Mens rea intended as the application of unlawful personal force.

Sexual Assaults
Old law of indecent assault- assault or battery in circumstances of indecency.
Indecent means sexual. Aggravated offence – you need to find assault or battery first.
-Required an assault or battery. Fairclough v Whipp.
-Either indecent of itself, or in circumstances of indecency.
-Beal v Kelly
Defendant had invited victim to touch his exposed genitals. When he refused, defendant pulled him forward.
-MR = as assault, plus knowledge of circumstances making it indecent.
Court
Defendant is a shop assistant. Pulled a 12 year old girl on his knee and smacked her buttocks. When asked why, he replied “buttock fettish”

Mens rea à assault and knowledge of circumstances makes it indecency.

Sexual Assault: the 2003 act
Assault by penetration (s.2).
Intentional vaginal or anal penetration with body or any other object;
Penetration is sexual (see s.78);
Victim does not consent, and Defendant does not reasonably believe that Victim was consenting.
-Consent, reasonableness, as per rape
à Lesser offence, assault by touching without penetration (s.3). Defendant used stick to lift victim’s shirt.

s.78 (1) some actions are intrinsically sexual regardless of the actions of the defendant.
s.78 (2) something that is non-sexual can be sexual depending on the circumstances.
-An excuse must be reasonable to serve as a defence.

Assault concerning Actual Bodily Harm
Simple offence, plus causing of actual bodily harm OAPA 1861 s.47.
“Bodily” harm can include psychiatric injury, so long as it went beyond simple distress.
Miller
Defendant had been charged with ABH (any hurt or injury calculated to interfere with health or comfort) afterwards, victim had mental breakdown.
Chan-Fook
-Wedding ring stolen. Defendant suspects victim and interrogated him/ locked him upstairs/ in escaping the victim fell out of a window and injured themselves.
Injuries included distress/ humiliation.
à Bodily injury can include mental injury, but being forced into an emotional state is not an injury.

Wounding and GBH under Section 20
Section 20 is the lesser of the two.
“Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm”. OAPA 1861 s.20
AR =wounding (Mcloughlin), or really serious harm (Saunders).
Does the AR require an assault? (Bairstow)
MR = intention or Cunningham recklessness as to some harm. Savage & Parmenter.

Mcloughlin
Fight on a railway, victim had serious graze.
Bairstow
Stalker/ woman left with emotional traumas. Inflict therefore covered under s.20.

Section 18
Much more serious à up to life imprisonment.
“by any means…wound or cause any grievous bodily harm…with intent to do some grievous bodily harm…” OAPA 1861 s. 18
AR= may be broader than s.20, including poisoning?
MR=intent.
You have to intend to wound to cause GBH. If they die you would have the Mens rea for murder.


Removal of former limits on liability in 20th-21 c. originally narrowed defined as nuns or virgins.
-vaginal only (therefore female victims only);
-age limits on offenders;
-marital rape exemption.
2003 Act extends liability to
penetration of the mouth;
unreasonable belief in consent alters the mens rea.
Some limits remain due to emphasis no penis.

Definition under 2003 Act
Intentionally penetrates
Vagina, anus, or mouth;
of another person,
with Defendant’s penis.
Victim does not consent.
D did not reasonably believe that B consented.

Rape: Actus Reus
Penetration by the penis or continuing penetration after consent is withdrawn.
Kaitamaki
Claimed woman had consented/ he was a burglar, she was a householder.
-Consent is where the victim “agrees by choice, and has the freedom and capacity to make that choice” (s.74).
-Absence of consent is presumed under s.75 if Defendant did relevant act knowingly and particular circumstances existed
e.g. use of violence, imprisonment, Victim was asleep or unconsciousness)
If prosecution prove that these circumstances existed…
à however, defence can rebut these presumptions.

Absence of consent is definitely presumed under s.76 if:
-D intentionally deceived the complainant as to the nature or purpose of the relevant act; or
-D intentionally induced the complainant to consent by impersonating a person known personally to the complainant (pretending to be someone famous will not covered by the provisions).

Mens Rea
D must intend to carry out the sexual act (no change).
Must not believe that victim consented, or if they had such belief, the belief was unreasonable.
Cf knowing or Cunningham reckless as to lack of consent Satnam
-Absence of reasonable consent presumed in particular circumstances (see earlier) if defendant knew about them.

Consent in Offences against the person
Generally, we can refuse to consent to physical contact even against our best interests
Re T
34 year old pregnant woman – Jehovah’s witness told she needed blood transfusion or she would die. She consulted with her Mother and chose not to have the transfusion. She had been co-erced by her Mother.
-Just the fact that we go into a tube station is part of consenting to normal incidents.
-Sometimes, we are assumed to consent to normal incidents of contemporary life.
Collins v Wilcock
-But sometimes even if we do consent, this will not prevent liability. Leach

Harms which cannot be consented to
-Cannot consent to death. Cuddy; R v DPP (Pretty)
Cuddy
Defendant and victim fought a dual in London. Victim died/ victim’s consent was no defence.
-Probably can always consent to harms below actual bodily harm or above (Ags Reference 6/1980); or trifling and transient harms accepted by society. Boyea

-Other harms can be restricted by reference to public policy.
Brown
Consensual gay sadomasochism/ no one ever required medical attention à police broke up the ring. Reached the House of Lords.
à Not about the sexual orientation of the defendants, about their sadomasochism.
In determining consent we have to use the same test for minor and major actions.
à Unpredictably dangerous/ activities getting more and more severe/ corrupting younger and younger men.
à Risk of Aids increased.
à This was more than indulgent sex.
à Injurious to participants and unpredictably dangerous.

According public policy would negate consent.

Contrast case can be found in Wilson
-Defendant had branded his initials into his wife’s buttocksà it was a consensual action, but GP reported it to the police.
à sexual activity between husband and wife is no matter for police investigation.

Consent to risk of harm as opposed to harm itself
Can consent to horseplay. Jones
Can consent to risky sexual activity
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Sligsby
Victim had consensual sex involving anal and vaginal penetration.
Afterwards he fisted her, but was wearing rings. She got an infection + died of septicaemia.
Did not batter her, so he could not be found guilty of manslaughter in this context.
So, the better informed you are, the less you can consent to, as you are consenting to the harm rather than the risk of harm. (Totally contrary to medical law à ‘the more you know, the more you can consent to’)

Offences against the person include sexual and non-sexual offences.
The least severe offences are assault (putting someone in fear of battery), and battery (unwanted physical contact). These can include both sexual and mental harms, as well as non-sexual physical contact.

Aggravated forms of assault include both more culpable mens rea elements and more severe harms. Rape is not treated as indecent grievous bodily harm, but as a specific offence with particular rules as to mens rea and actus reus.
Consent to physical contact will sometimes be limited to reference to public policy.