Criminal Law in Practice - Assignment Example

Question One Unlawful wounding can arise from assault and/or battery occasioning actual or grievous bodily harm. On the facts of the case for discussion it is unlikely that the injury to Tiny’s eye amounts to ‘grievous bodily harm’ contrary to Section 20 of the Offences Against the Person Act 1861. It appears that following the match Tiny was chastised by his father who actually assaulted him and this fact alone lends itself to the assumption that Tiny did not suffer grievous bodily harm. The courts tend to align grievous bodily harm with ‘serious bodily harm.’1 In fact it was determined in JCC (A Minor) v Eisenhower (1984) 78 Cr App R 48a that a wound to the eye which causes an internal rupture to the eye’s blood vessels will not constitute grievous bodily harm.2 In the circumstances it is unlikely that Newly faces liability for grievous bodily harm under Section 20 of the Offences Against the Person Act 1861. However, Section 47 of the 1861 Act is a different matter entirely. According to this provision the actus rea of actual bodily harm is assault which is a summary offence by virtue of Section 39 of the Criminal Justice Act 1988.3 The House of Lords maintained that all that had to be shown is that the defendant’s conduct caused the harm.4 In Rex v. Donovan Swift J said that 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.’5 The word ‘damage’ is used to define Tiny’s injury which automatically implies that the injury is not ‘transient and trifling’. According to the ruling in R v Venna the requisite mens rea involves proof that the defendant’s conduct either recklessly or maliciously caused the victim to fear immediate force.6 However, by virtue of Lord Lane’s comments in Attorney Generals Reference (No 6 of 1980) Newly can invoke the defence of consent. Lord Lane said that ‘it is an essential element of an assault that the act is done contrary to the will and without the consent of the victim.’7 Obviously if a person consents to the force he cannot be said to suffer fear and/or anticipation. Therefore consent would operate to negate fear. The only proviso is that the conduct causing the harm or the injury falls within the rules of the game.8 Karate is a very physical sport where the use of force is virtually mandatory. In R v Barnes [2004] Lord Woolf explained that it is possible to consent to the use of force outside the rules of the game in certain circumstances. For instance a participant can respond to the heat of the moment and suffer ejection and yet that conduct might rise to the level of unlawful assault.9 Based on this ruling by the Court of Appeal Newly has the defence of consent given that karate is a combative sport. However, Tiny may be at liberty to the raise the issue of his age. In R v Brown [Lord Slynn said that ‘…there exist areas where the law disregards the victim’s consent even where that consent is freely and fully given. These areas may relate to the person (e.g. a child); they may relate to the place (e.g. public); or they may relate to the nature of the harm done.’10 Be that as it may, Newly must be taken to have assumed that his opponent (Tiny) was at least 18 years old as was the minimum age for the match that he participated in with Tiny. If that is the case, Newly does not have the requisite ‘malicious’ element constituting the crime of assault. Knowledge is an important feature of the mens rea of any crime. Tiny’s father may be criminally liable for the assault if he, knowing the age minimum set about deceiving the organizers as to Tiny’s age so as to have him enter the match. Tiny’s father is criminally liable for battery. The offence of battery does not require actual or grievous bodily harm. Touching another with hostile intentions will suffice.11 Tiny’s father was not merely performing a disciplinary function in the ordinary scope of social discourse. He was punishing the child in response to his losing a competitive match. It is therefore likely that Tiny’s father is criminally liable for beating Tiny and for placing him in the match under Section 1(1) of the Children and Young Persons Act 1933. 12 Section 1(1) of the Children and Young Persons Act 1933 provides as follows:- If any person who has attained the age of sixteen years and has the custody, charge, or care of any child or young person under that age wilfully assaults, ill-treats, neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated, neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health (including injury to or loss of sight hearing, or limb, or organ of the body, and any mental derangement), that person shall be guilty of a misdemeanor…’13 Question Two Consent is generally a defence of consent is applicable in offences against the person. In a typical case offences against the person include assault and battery contrary to Section 39 of the Criminal Justice Act 198814, actual bodily harm as provided for in Section 47 of the Offences Against the Person Act 186115 and grievous bodily harm.16 An essential element of these offences is that the conduct constituting the offence ‘intentionally or recklessly causes the victim to apprehend immediate and unlawful violence.’17 It is important to note that the emphasis is on the victim’s mind and it is obvious why in certain circumstances the courts recognize that consent can negate this very important element contained in offences against the person. As it result it makes perfect sense that the defence of consent should be available to all offences arising out of ‘spheres of activity’. When a person willingly and knowingly submits to spheres of activity he or she submits to the inherent risks of harm involved. The courts have long since recognized the necessity of permitting consent as a defence in situations where assault might inadvertently or intentionally occur. James J maintained that assault by definition ‘is a term used to mean the actual intended use of unlawful force to another person without his consent.’18 The court in Attorney Generals Reference (No 6 of 1980) readily acknowledged that consent would operate to defeat the mental elements required to establish the offences against the person. In Attorney General’s Reference (No 6 of 1980) it was held that in ‘properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions etc...’19 If the defence of consent was not permitted in these kinds of circumstances many otherwise lawful actions would become criminalized and virtually every activity that resulted in some harm to another would constitute a crime. Social activities would be severely limited and restricted and doctors would face criminal prosecution for cases which are properly left to the civil courts in malpractice lawsuits. Moreover, athletes would face criminal prosecution and parents would not be permitted to properly discipline their children within the bounds of reason. Currently, sporting activities are already one sphere of activity that recognizes and applies the defence of consent. As early as 1878 where it was held that the victim consented to any harm that he incurs as a result of activity carried within the rules of the game.20 Despite adherence to this position over the years, the courts have now departed from the strict application of the ‘rules of the game’. In R v Barnes [2004] Lord Woolf explained that a participant in a sporting activity could consent to harm which occurred outside of the rules of the game. For instance, a defendant could get caught up in the heat of the moment and respond in such a way as to cause the referee to penalize him and even remove him from the game. Even so, that conduct would not rise to the level of unlawful assault.21 In spheres of activity constitution criminal offences the defence of consent has always been a matter of concern for the courts and it is perhaps an area of activity where consent should remain limited but perhaps not to the extent suggested by the House of Lords in R v Barnes. Lord Jauncey explained that that ‘there must be some limitation upon the harm which an individual could consent to receive at the hand of another. The line between injuries to the infliction of which an individual could consent and injuries to whose infliction he could not consent must be drawn … where the public interest required.’22 It appears from this ruling that any criminal activity would deny the use of the consent defence even if the conduct was carried out by consenting adults in private. The Court of Appeal in R v Wilson (1996) 2 Cr App Rep 241 was not entirely happy with this ruling. In the words of Russell LJ the decision left open the possibility of criminalizing private activities. Russell LJ said that The reality that I have to deal with is that on the face of it the majority in the House of Lords in the case of R. v. Brown, approved of the dicta in the case of Donovan [(1934) and that accordingly until such time as the legislature or the European Court do something about it we are now saddled with a law which means that anyone who injures his partner, spouse, or whatever, in the course of some consensual activity is at risk of having his or her private life dragged before the public to no good purpose.’23 Although the current limitations on the defence of consent is that it violates Article 8 of the EU convention on human rights which provides for respect in one’s private and family life. Where two consenting adults participate in activity that results in harm to one or the other, unless that harm constitute serious injury it cannot be in the public interests to drag those persons before the public arena via the courts. Therefore, the law regarding consent as a defence to offences against the person should be broadened to exonerate consenting adults who carry out activities privately unless of course the conduct results in serious injury. As Lord Goff said in Collins v Wilcock ‘most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is (within reason) slapped.’24 Likewise the law relating to consent should be revised too reflect Lord Goff’s position as well. Bibliography Attorney General’s Reference (No 6 of 1980) Q.B 715 Bradshaw (1878] 14 Cox CC 83 Children and Young Persons Act 1933 Collins v Wilcock 3 All ER 374 Criminal Justice Act 1988 Fagan v MPC [1969] 1 QB 439 JCC (A Minor) v Eisenhower (1984) 78 Cr App R 48a Offences Against the Person Act 1861 Ormerod, David. Smith and Hogan: Criminal Law. Oxford: Oxford University Press, 2005. Rex v. Donovan [1934] 2 K.B. 498 R v Barnes [2004] EWCA Crim 3246 R v Bradshaw (1878) 14 Cox CC 83 R v Brown [1994] 1 A.C. 212 R v Chan-Fook [1994] 2 All ER 552 at 557D. R v Roberts (1971) 56 Cr App R 95 R v Saunders (1985] Crim LR 230 R v Venna [1976] QB 421 R v Wilson (1996) 2 Cr App Rep 241 Wilson v Pringle [1986] 2 All ER 440 Read More