- Created by: Francesca Marks
- Created on: 20-04-15 15:16
Principles of criminal law
What are the functions of criminal law- Ashworth and Horder- to prohibit behaviour that prevents a serious wrong against individual or societal value. Can be used by Parliament to regulate an activity. England has a common law system- but lots of it is in statute. 'In short crime is an act, capable of being followed by criminal proceedings having a criminal outcome' Williams.
Police use the criminal law to reinforce their authority. Justification for criminal law is that it is a deserved response to a culpable wrong doing and a necessary institution to deter wrongdoing. Criminal law is designed to punish offenders and breakers of the law. Retributivist: backward looking in that it seeks to punish wrong doer in order to restore the balance that is disturbed by the offfence. Retribution is commonly used to refer to giving offenders their 'just deserts'. Consequentialist: forward looking into the consequences of punishment, should achieve greater good eg crime reduction. Reparation. Deterrence- seek to discourage crime by providing such an unpleasant punishment they wont committ it again. Look to the future to see how it will effect the person. Doesnt always work in 2010-11 reconviction rate was 26%. Rehabilitation- punishment with the aim of reforming the person is more ambitious. Focuses on individual needs. Seen as positive and humanitarian. Highly paternalistic and criticised for trying to change character. Sentences would depend on the offender not the crime. Essentially doesnt really work/show result.
Home Office estimated only 2-3% of crime results in conviction. Labour made new offence each day whilst in power for ten years.
Discretion- a tariff is developed by judges which broadly set out the range of sentences for normal cases. Theres still lack of consistency and no criteria for what to take into account. Claim sentences are individualised but result was widespread disparity with similar cases having different results. 60-80 sentences checked by Crown court a year and 88% are found to be unduly lienient. Guideline judgements have been introduced. 2009 sentencing Guidelines council was set up with 8 judicial and non judicial members. Have published definitive guidelines for magistrates, and have guidelines for Crown Court. Objective of council is 'uniformity of approach, not uniformity of outcome'.
Lacey says sentencing should be in the hands of an independent body and not party politics.
To what extent is it ever right for the criminal law to attempt to enforce morality for its own sake, regardless of whether behaviour is harmful or to attempt to eradicate harmful behaviour that is not immoral? Common morality ensures cohesion of society. Deviation from this is capable of affecting society injuriously and may be justifiable and necessary to penalise immoral behaviour.
Criminal law may be justified in enforcing morality as there is no common morality. Restricts individual autonomy as it restricts a persons right to do what they want even if it is not obviously harmful. Some paternalism is needed to protect young and mentally ill. This implies may not be of rational mind and so cant make decisions for themselves. Legal moralism is saying that the law has moral content. Many actions prohibited are also moral wrongs. R v Brown- imprisonment of sadomaschists. This is probably down to the judges finding the actions and the homosexual behaviour immoral. This was a wrong decision as they shouldnt impose thier morals onto the private actions of others.
Is criminalisation the best way of regulating harmful action? Morality, social convention and peer pressure are informal sources of control. In some American states drunk drivers have to wear a badge on their care to shame them. Civil liability in tort and contract. Administrative regulation which includes licensing. Criminalisation should be kept for serious invasions of interests say minimalists. Less serious conduct dealt with by civil law. Criminalisation of soft drugs gives rise to social consequences that are hardly better than the crime and shouldnt be criminal. Clarkson and Keating say criminal law should be last resort. May drive activity underground and more dangerous. Devices such as ASBOs used- civil behaviour orders.
Harm principle, welfare principle and offence princple.
Clarkson and Keating- if victims acts are reasonably foreseeable they will not break the chain of causation, these actions can be seen as involuntary. Eg in Roberts. Test of reasonable foresight is purely objective and so no characteristics can be taken into account. Often the fear of victims gives them no choice in what they did. 'Reasonable acts performed for the purpose of self preservation.' Williams was not reasonably foreseeable.
Acts of medical practicioners will almost never break the chain of causation. It would 'require a most extraordinary and unusal case' Jordan was an exceptional case. These decisions are made on policy considerations. Courts are unwilling to accept medical treatment to break the chain as the NHS are pushed for funds and dont want to exempt violent assailants from liability just because their victims didnt recieve the best treatment. Drs are performing their duty and so their actions cannot count as sufficiently free or voluntary to break the chain. Whether Dr's acts can be constituted as 'reasonable act' in discharge of that duty must be considered with the above criteria in mind.'
Ashworth and Horder- distinction between where the injuries inflicted remain a substantial and operating cause of death despite the medical treatment and whether the original wound becomes merely the setting the other cause operates in. Doesnt follow ordinary causal principle. Desire to convict the culpable offender.
Clarkson and Keating- should there be a general duty ot help those in danger? It is hard to determine when the duty to act becomes appropriate, so everyone isnt liable for an accident near them. Feinberg- argues that any person in peril becomes ones neighbour for the principle of morals and so is owed a duty. Shouldnt have oneas freedom should only be restricted as it is necessary to prevent persons causing harm to others. Also argued that the imperiled stranger has no right to be rescued and so defendant is under no duty to do so.
Ashworth 'The scope of criminal liability for omissions'- coventional rule that criminal law shouldnt impose liability for omissions except in clear and serious cases. Duties should be limited to one weve volunteered for. Leaves citizen free to do what they want. Requiring them to help would stop pursuit of their own interests. Get praise if you stop but dont get blame if you dont. Forcing duty would be paternalistic. Ashworth says these argument 'depend on a narrow, individualistic view conception of human life which shouldbe rejected as a basis for morality and as a basis for criminal liability.' He says autonomy isnt a good reason as it is rare that it is promoted as a supreme value through a moral or legal system. Social responsibility view draws attention to the cooperative elements in social life and may be fair to place citizens under obligation. Individuals need others for a wide variety of tasks to maximise pursuit of personal goals. Society can be regarded as a network of relationships, which indirectly and directly support each other.
Should encourage cooperation at minimum level to help those in peril. Foundation of the argument is that a level of social cooperation and social responsibility is good and necessary for the realistaion of individual autonomy. Value of one citizens life is generally more than the value of anothers temporary freedom but it should only arise in easy rescue cases. Maybe too intrusive. Law shouldnt require more of a person than they can give in the situation. Should not be liable for conviction unless possible to do what required. The general principle in criminal law should be that omissions liability should be possible if duty is established. 'The conduct of the parabolic priest and Levite on the road to Jericho may have indeed been deplorable but English law has not so far developed to the stage of treating it as criminal.'
Williams 'Criminal Omissions- the conventional view' 1991- thinks it should be exceptional and needs to be adequately justified in each case. If imposed should be done so in clear statutory language. Penalities for an omission should be rethought in each case and not automatically transferred. Shouldnt be a general duty as societys most urgent task is the repression of active wrongdoing. Left with problem of defining scope in legal duty. Law enforcement already have too much work with those who actively offend. The prisons are packed and attempting to punish not acting would exceed the bounds of possibility. Three types of duty based on social responsibility- duty to assist those in peril, to take reasonable steps towards law enforcement and to ensure health and wellbeing of ones children.
Steps to law enforcement would require people to report on companions whatever the degree of seriousness. This is 'misprison' which was abolished in 1967. What a citizen does to help police must be left to his sense of citizen ship. Duty to ensure health of ones children- inadvertant negligence by omission to take care without foresight of the harmful result as a high probablility should never carry a custodial sentence.
Criminal law revision committee considered on its fourth reference that liability for omissions in the sphere of defences against the person should be confined to murder, manslaughter, causing serious injury with intent and offences of unlawful detention. With these offences courts should be left with unfettered discretion to decide where theres a duty to act and for whos benefit the duty is imposed. (Reply to Ashworth)
My own thoughts- Would duty be the same for everyone regardless of skills they claim to have? Eg drs, life guards, fire fighters etc. How would there be evidence of if they shouldve acted? Would it be a subjective or objective view? eg if I thought the water was too deep to save someone but in reality it was only a meter would I be charged for this? Who would you prosecute? Everyone that witnessed the accident?
Norrie 'After Woollin' 1999- distanced itself from Hyam formulation of probable or highly probable consequences. Important and most welcome for drawing fine line between recklessness and intention. Foresight and intention are well intertwined. Narrow foresight of virtual certainty test, but there is a broader foresight of probablility approach in the guidelines. Woollin is the law of indirect/ oblique intention. 'Lord Bridge wanted to distinguish recklessness from indirect intention, but he did so by suggesting that intend and foresee connote two different states of mind.' 'What he should have said to be consistent with his analysis of indirect intention was that the relevant distinction was between the mental state of foresight of moral certainty and foresight of a consequence within the range of probablility. 'In Woollin Lord Steyn observes that it does not follow from the decision that intent will have the same meaning in relation to every crime.' Jury are entitled to find foresight of virtual certainty does not equate with intent. These are cases where there is a moral threshold. On narrow conception of indirect intention Hyam and Nedrick are manslaughterers and on the broad conception are murderers.
Wilson 'Doctrinal responsibility after Woollin' 1999- 'what a person foresees is not necessarily even probative of what he means to achieve.' Direct intention and foresight are different states of mind like love and aquisitiveness. Proving that a person foresees the consequence is no more conclusive of intention to produce the consequences than counting an art deals acquisitions can establish love of art.
Clear in cases such as Maloney and Hancock that foresight doesnt constitute intention. Direct intention cannot conclusively be inferred from mere foresight of probability. Law Commission states that a person acts intentionally with respect to result when it is his purpose to cause it although it is not his purpose to cause the result, he knows it would occur in the ordinary course of events if her were to succeed in his purpose of causing some other result. Lords prefer find to infer. Didnt give clear defintion of intention. Instead reminded that intention is not the state of mind of someone who foresees the consequence to a lesser degree of probability than that of virtual certainty. 2 application problems: if there are good motives and is directly attributable to the failure of implement explicitly the standard defintion. Second involves the cases of wicked recklessness. Good motives: jury cant be advised to trust their common sense. Something has to give, doctrinal integrity or criminal justice. Risk taking- the judges were not bound to give the special direction in cases of murderous risk taking. In such cases juries will continue to draw inferences of direct intention from degrees of probability and so moral judgements will still play a part in juries determinations of defintional fault.
Pedain 'Intention and the Terrorist Example' 2003- article argues that a terrorist who plants a bomb not necessarily forseeing death or serious injury as virtually certain can nevertheless be found to have intention required for murder if attention is paid to the terrorists attitude towards the risk he creates.Thinks it is possible to develop a coherent subjectivist
concept of intention which allows us to understand terrorist conduct like the foregoing as manifesting as intention to kill. Woollin seems to give the answer that the unwanted but foreseeable consequences of our actions count as intended only if they were virtually certain and we were aware of that fact. Woollin distances himself from his actions as he did not endorse injury or death as even a possibility. Primary and secondary intention can be seen as essentially the emotional and rational variant of wanting something. To be completely indifferent to the harm you may be causing is a way of accepting that harm as a possible outcome of the actions. It is a different state of mind to the one in which you take a gamble on another persons well being because you trust the risk you create will not materialise. Failure test by Duff: intend outcome as a consequence of actions when we would have percieved ourselve to have failed if actions turned out to be harmless eg an overtaker being glad no one was on the otherside of the road, compared with Hyam who wouldve failed if the house hadnt caught on fire.
Ashworth and Horder- strict liability: for protectionism and social defence. Against: unfairness and respect for autonomy, negligence should be the minimum requirement. Example of strict liability- sex with minors. Negligence may be an appropriate standard for criminal liability if i) the potential harm is great ii) the risk of it occuring is obvious iii) D has a duty to avoid the risk and iv) D has the capacity to take the required precautions.
Referential point of fault: unforseen mode: D sets out to committ an offence one way, but causes it by an unforeseen mode. As long as result is the same law chooses pragmatism and ignores unforeseen mode. Mistaken object: when D intends to do the crime to someone but does it to the wrong person still committs offence. Applies to property as well. Transferred fault: when D set out to committ offence in relation to a particular thing but his conduct miscarries and fall on someone/something else. Intent is transferred onto the person it happened to. Can only be transferred in same class of offence.This doctrine is contraversial- Mustill said lacks sound ground.
Clarkson and Keating- Sentencing Advisory Panel has stated four levels of culpabiltiy- intention, recklessness, knowledge and negligence. Intention is an objective test. DPP v Smith 1961 HoL could be seen as turning murder into a crime of negligence.
Voluntary euthanasia- can say actively that you want to die. You can request and itll be active or passive. Involuntary euthanasia- in coma so cant say you want to die. Someone makes your decision. Assissted suicide- make a requestion but someone facilitates- eg giving you drugs.
Clarkson and Keating- Suicide Act 1961- amendments made by the 2009 Coroners and Justice Act were intended solely to modernise, not extend the law. Is now a result crime, not a conduct crime. The consent of the DPP is needed before the prosecution may bring under Suicide Act 1961. Purdy had the occasion to consider prosecutorial discretion. Ruled the Code for Crown Prosecutors didnt provide sufficient or specific guidelines on this issue and so the DPP would be required to issue offence specific policy. DPP stated this in 2010 providing a list for an against prosecution in the public interest of cases of assisted suicide. Assured those suffering from terminal illness, a severe and incurable phsyical disabiltiy or sever degenerative disease that if they seek to take their own lives, assisted by their loved one, that said loved ones will not be prosecuted if they can be said to have done so with compassion. However if done by a professional this can be a factor in favour of prosecution. Nicklinson found S2 doesnt impose blanket ban, declined to order DPP to amend prosecution policy after complaints it wasnt clear enough. Prosecutions are rare making sentencing difficult. Law Commission recommended that gov ought to undertake a consultation process on the question of whether the law should allow for partial defence of mercy killing or create a new offence for it.
Halliday 'Comparative Reflections upon the Assisted Dying Bill 2013- a plea for a more European approach.' 2013- latest bill to seek assisted dying in UK is Lord Falconers Assisted Dying Bill 2013, a private members bill. Seeks to authorise health care professionals to assist the suicide of terminally ill adult patients with capacity, who have clear and settled intention to end their lives. Any legislation enacted must balance instituting a rigourous system of control mechanisms and ensuring that the procedures dont become so weighed down so as to be pointless. Britain still maintains an absolute prohibition of intentional killing. Purdy suggested 'professional assisted suicide will not be tolerated.' In Europe can be done if a patient makes voluntary and carefully considered requests. Uses a monitoring commission to ensure compliance with the leglislation and assess the operation of the law in this area.
Qualifying conditions- terminal illness/unbearable suffering- suffering is inherently subjective. Must be an objective element as well as the suffering must be palpable to doctors. Patient must be an adult with capacity and the Dr must be sure of this. Depression- should be taken into account and given psychiatric exam. In Belgium, Holland and Luxembourg a patient can execute an advance euthanasia directive, requesting life to be terminated in certain circumstances. Have to ensure termination of life isnt a coerced choice masquerading as free will. Dr decides this. In Europe interviews are scruitised by committees to ensure done properly. Independent consultants. Can be liable if dont make report justifying actions.
Ashworth and Horder- can be seen as paradoxical to legalise suicide but make it a serious offence to assist or encourage it. There is a need to protect the vulnerable form persuasion. Factors relevant to prosecution- under 18, suspect not fully motivated by compassion, suspect being unknow personally to the suicider, suspect paid to do it, suspect acting in capacity as a health care professional. Against- fully motivated by compassion, assistance or compassion was minor, suspect sought to disuade it or was reluctant, suspect reported it to the police and cooperated fully with police.
Mercy killing- Criminal Law Revision Committee see this as unsatisfactory and it may no longer be treated the same way after 2009. Proposed a new offence where a person, out of compassion, unlawfully kills another who is, or believed to be by him, permanently helpless or in great pain. Strong opposition. In respect of Dr's, some flexibility is achieved through distinctions of bringing about death by omission (may be lawful) or by positive act.
Currently threshold may be too low, parties embarking on criminal enterprise can be convicted, through secondary liability of a crime they had no intention of committting. Maybe liability should only be imposed when it can be shown that the defendant intended same consequence. This criteria would apply to the three types of the offence. Also should be proved that the parties have the same level of contribution to the plan or the action. However all parties involved should also be held liable of assisting the principal in committing the crime to prevent escaping punishment.
Hard to distinguish who had the intention to kill in the first place. Merely having to prove that the defendant foresaw what the principle might do, with the requisite mens rea, provides a very wide scope. Leads to defendants being convicted even with a lower level of culpability. A positive consequence of JEL is reduced injustice and there is more liability for gang members.
Maybe parties shouldnt be convicted without the required mens rea and where they dont deserve murder sentence. The principal should recieve a more severe punishment than the other assisting parties. This might lead to a group shifting the blame to the principal and lead those who are still culpable to freedom.
Maybe could put secondary parties to a crime below the principal.
Ideas- disease of the mind could be altered due to its negative stigma. This term is outdated and maybe could be changed to 'an alteration of reasonable thinking.' If pose a high risk could have hospital order, but if not and not likely to recur then could be acquitted or have community order. Maybe should be a full defence if mental issues were completely to blame rather than intent. Burden of proof should maybe be beyond reasonable doubt, rather than on the balance of probabilities. Could give a defintion of how substantial the impairment should be, rather than more than trivial. Diminshed responsibility maybe should be a general offence, rather than just to murder charges. Alcoholics could be prevented from being allowed to rely on offence to protect public and promote morality.
Loss of control
Extent and limitations- sexual infidelity cannot be used as a qualifying trigger. However in R v Clinton it was argued it should be taken into account as background of the case, but it cannot be a trigger on its own. Sexual infidelity isnt included as it is likely to provoke the most reaction. Seems unfair to exclude this one.
By removing the 'sudden' time frame this will help battered women as often their attacks are not immediately after violence from their partner. They will no longer have to admit abnormality of the mind. This will benefit battered women but it may result in more people trying to claim loss of control. Courts will have to be conscious of those who claim it but in reality have planned their attack.
The objectiveness will attempt to prevent too much discretion. They maybe should be able to take into account the age of the defendant so the jury is not demanding too much of a child for example. Women and men behave very differently by different stimulus and so maybe sex should be allowed to have a more accurate view.
Gross negligence manslaughter
Point of debate is the third strand (was the conduct so bad) , should it be an objective or subjective test? the test to be employed by juries is circular, should find the defendants actions criminal if they think theyre below proper standards of care so as to be judged as criminal. Arguably amounts to leaving a question of law to the jury as they are deciding whether the conduct amounts to a crime. The absense of a legally defined criteria renders the law highly uncertain and increases chances of inconsistency.
They could maybe include an objective test. Establish a criteria or definiton of gross or bad instead of leaving to the jury. This would take individual context out of the equation though. May create climate of Dr's not taking risks in the fear of making mistakes as the result could amount to criminal prosecution.
Offences against the person
Common assault and battery 6 months max. Where there is serious injury the sentence is longer.
Baker, 'The Moral Limits of Consent as a Defence in Criminal Law' 2009- Devlin argues that it is fair to criminalise conduct according to positive morality eg criminalising homosexuality as may lead to anarchy and social integration. Hart asserted that fair criminalisation could only be determined by referring to objective standards. Requires legislation to provide appropriate defences to prevent unfair criminalisation. Criminalisation is just when it is deserved and this is determined by referring to objective moral reasons such as harm and culpability. Shouldnt be because majority dislike it. Body of conventional morality changes slowly and not fairly. Would mean homosexuality and weed wouldnt be illegal. Hart looked for objective justifications in an attempt to ensure criminalisation would meet some kind of objective fairness standard. Feinbergs harm principle- proivdes wide reaching objective justification for criminalisation. Catches conduct that has risk of causing harm as well. Morally wrongful 'offence to others' is criminalisable in appropriate circumstances. Says legal moralism and paternalism are insufficient grounds for criminalisation. Type of harm in R v Konzani and R v Brown would be morally acceptable because genuine consent nullifies the wrongfulness of the activities.
Consent provides an objective reason for allowing a person to make choices that may involve consenting to harm, but consent isnt absolute. Protects personal autonomy but doesnt ...
Offences against the person
destroy human dignity. Can forfeit personal autonomy but not dignity eg a prisoner. Importance of autonomy means consent is a valid defence unless harm crosses threshold of degrading the human dignity of the consenter to a serious degree. R v Brown legal moralism and paternalism. Author thinks wrongfully harmful in objective sense, as degrades the dignity of the consenters. Whether they were wrongfully harmed. Feinbery says consent nullifies the wrongfulness. 2 ways to degrade humanity: 1) alienating the right to life and alienating the right to maintain a minimum degree of dignity. R v Konzani- arguable the HIV consenter alienates her right to life. Dignity degraded in a serious way. Author thinks shouldnt be allowed consent when know of risk of grave harm. Mental element would therefore be real risk. HIV cannot predict actual harm. In masochism harm doer has used the consentor as mere means and doesnt have excuse or justification. Consenting to gross harm eg HIV for no purpose will not relieve the transmitter of liability, as there are reasonable precautions. If use these and accident no liability.
R v Brown- wrong doers treated victims with lack of respect. Harm was reparable and not likely to alienate consentors right to life at some point in future. Consent not a viable defence to intentionally inflicted harm: abh or higher. Gravity of harm influenced. Violated dignity as human beings. Degree of disrepect makes it criminal. Brown sits on the line as personal autonomy and harm wasnt permanent. Plastic surgery legal despite harm. Aim isnt harm or violates the dignity of consentor. Some say S+M cant be separated form violation of dignity.
Consent and offences against the person
Weait 'Knowledge, autonomy and consent: R v Konzani' 2005.- in CoA was on the issue as to whether the judge had misdirected on the meaning of consent and its availability as a defence where a person had been convicted of recklessly transferring HIV. General rule that consent or honest belief in consent, will only provide a defence where the injury doesnt amount to ABH or GBH, unless injury is sustained in a legally recognised context eg tattoo or surgery. If D raises consent must be acquitted unless prosecution can disprove the existence of consent or belief in it. In Dica the appellant gave HIV to two partners and the judge didnt even consider consent. In CoA they said that consent to sex shouldnt imply consent to transmission of disease and there was a big difference between consenting to abh or gbh and consenting to the risk. To hold otherwise amounts to unjustifiable interference with autonomy. Although defence of consent was available in principle, it was unlikely a person would consent to the transmission of a serious disease if she was ignorant of that risk and so there could be sucessful prosecution. Problems: imposed criminal liability on any one who knowingly has HIV who has sex without disclosing this.
After Konzani- court said fundamental difference between running a risk and consenting to a risk. As a result no consent Konzani could have believed in. In Dica CoA held that there was a defence if complainant consented to risk of transmission but Konzani didnt like this. Highlighted reckless behaviour and concealment of his condition. Wrong to say criminal if theyve disclosed and from then consented. Consent had to be 'willing' and 'conscious'.
Consent and offences against the person
This was not possible if they hadnt discussed it with the partner. Doesnt have to directly disclose it, say had sexual realtions with their nurse, she would know of it. Courts rejected argument about general risks of unprotected sex with a person whos HIV status is uncertain. Some argue that where a person is aware of sex risks and hasnt satisfied himself the partner is HIV negative there should be defence. The reason is that HIV should be seen as a public health issue and that everyone should be responsible for minimising spread. Current approach puts all responsibility on those with disease and none on those without.
Autonomy- essense of **** law is that there is no wrong if consent exists. Consent operates as a defence on a charge of assault, reflects view that people should be free from liability because to hold otherwise would be a significant and unjustifed diminuation of human freedoms. In Konzani court indicates that a complainants autonomy isnt enhanced by exculpating a person who recklessly harms her by transmitting HIV. Court recgonised in Dica that people should be able to consent to risks associated with sex because to deny this right would infringe autonomy. Konzani made clear only informed consent, grounded in knowledge, directly or indirectly, applies. Ratio from these cases is that a person can consent to risks that have been directly or indirectly disclosed , not to sexual intercourse risks in general. The court has in effect imposed a positive duty of disclosure on people with HIV and maybe all with STI's. Also implies disclosure
Consent and offences against the person
as a precautionary principle should be adopted by all those with serious contagious illnesses, eg flu. Problems with current approach- no clear guidance as to whether condoms change possibility of conviction or whether it will negate recklessness. Requirement that people must know they have HIV before they are reckless may stop people being tested. By imposing a duty to disclose HIV status prior means that assume those who are HIV positive and know this will disclose to avoid liability. May mean people who dont disclose are presumed to be HIV negative. Also where someone has HIV and doesnt disclose it after sex they are preventing the partner getting medical help, as telling them will amount to confessing to the commission of a serious criminal offence.
Doesnt give guidance as to when else HIV patients have to disclose, eg would they have to disclose every time they were somewhere where they risked being cut eg football? or if they have a nose bleed at school?
Clarkson and Keating- general consensus that recklessness bears the Cunningham meaning for assualt and battery. Punishment for battery is 6 months max. Where no injury is caused a fine is the starting point. 1 aggrevating factor= community order, 2= custodial order. Aggrevated assault- change from common to S47 normally includes medical attention or permanence, recognisable pyschiatric injury as well.
Offences against the person
No requirement for defendant to foresee abh. A crime of half mens rea as it doesnt correspond with the actus reus. Max 5 years. If premeditated and serious injury goes from 1 year and a half to up to 3 years.
Malicious wounding and inflicting GBH- continuity of whole skin broken. CPS advises only when wouding is 'really serious'. Serious psychiatric, internal bleeding and HIV count. How serious an injury depends on the victim. Inflicted- some judges says can be used interchangably with caused but some say inflict implies unpleasantness. Hasnt been cleared up. Maliciously is synonymous with recklessly. In Cunningham CoA said had to foresee harm that might be done and go on to take risk. In Mowatt only needed forseen and Brady said awareness of risk.
Wounding and causing GBH with intent- cause was held to be 'wider or at least not narrower than inflict' in HoL. Burstow 'no radical difference between the two words.' Maliciously adds nothing that isnt already in the intent. Intent same meaning as Nedrick. Specific intent as by the CPS- planned attack, deliberate selection of weapon, making prior threats etc. Max life sentence. Depends on seriousness of injury, whether premeditated and whether weapon was used. If yes to all, minimum sentence is 12 years. If no starts at 5-9.If injuries considered less grave its 4 years start.
Offences against the person
Racially and religously aggrevated attacks- Crime and Disorder Act 1998 set out the new offence of racially aggrevated assault. Increases sentences. Must show the defendant demonstrated hostility or that he was motivated by it. Even if have no real hostility but objectively demonstrated it then it still counts. R v Woods. If not explicitly at a group Rodgers take a 'flexible non technical approach.' Must be immediately before or after the commission of the offence. Can be even 15 minutes before if shown to be part of the violence. 20 minutes after Parry might not be. Context is everything. Maximum sentence 2 years. ABH 7 year max.
Home Office drew up draft bill based on Law Commission work, called Home Office, Violence: Reforming the Offences Against the Person Act 1861, Draft Offences Against the Person Bill 1998. Law Commission are set to review the law in 2014. In implementing reforms it is important to remember that individual offences should communicate the essence of wrongdoing involved. Important that the relative seriousness of offences should be communicated and that criminal law as a whole should convey morally informative sets of messages.
Consent- some crimes can only be committed in the absense of consent, eg ****. Actus reus of crime is missing. Consent of victim may exempt the D from liability. This issue in Brown. Majority took view that consent should be defence, not a defintional element, but concluded it wasnt available for ABH in sadomaschist encounters.
Means defendant admits theyve done the whole actus reus, but claims consent justifies their actions. A justificatory offence that can be explained in terms of superior interests being upheld. Human autonomy.
Reality of consent- to act as morally transformative consentmust be full and free. In Konzani needed to be informed consent. Convictions have been obtained under s20 where defendants have failed to disclose an infection of hepititus B and herpes. It is not clear what is an active deception. The person must have capacity. Capacity to consent for disabled adults is a sensitive issue. Law Commission concluded the need to understand reasonably foreseeable conequences of sexual activity was fundamental to consent. Courts have held they have the power as part of inherent parental jurisdiction to override the childs objections even when he does have sufficient understanding and is 16. Normally used when children reject treatment.
Nature and degree of harm- harm can be defined as any violation of an interest. Whether consent is a defence is a question of public policy- seriousness of harm against social utility. Cant consent to your own death. Normally in best interest of patient. Decision making is done in Mental Capacity Act 2005. If an absense of social utiltiy normally is no defence to serious injuries. Leach- V organised to be crucified and those who did it were liable for unlawful wounding. R v Brown- consent to common assault but not abh. Unless tattooing sport etc.
Consent and offences against the person
Horseplay- consent to as long as no intention to cause injury. After Brown there have been reform proposals. Proposals would produce a law which would give more scope for defence of consent.
Ashworth and Horder- the values that underlie the offences of physical violence are reflected in various convention rights eg A3 right to not be tortured A5 right to liberty A8 respect for private life.
Indirect battery- DPP v K 1990 says this can happen. DPP v Santana Bermudez 2004- created the danger, his failure to avert the danger and its resultant materialisation were capable of fulfilling the conduct requirement for battery.