Worksheet 1-

Murder
Rance v Mid-Downs Health Authority (1991) 1 All E.R. 801, 817

Facts:

The plaintiffs were the parents of a child born with severe spina bifida and hydrocephalus. After
birth, they learned that an ultrasound scan performed on the child's mother during her pregnancy
had given rise to a suspicion of spinal abnormality in the unborn child. They alleged that the
defendants, health authority and a doctor, had been negligent in failing to diagnose the child's
handicap when a foetus of about 26 weeks and that but for their negligence, the mother would
have had an abortion under the provisions of sectionof1) (b) of the Abortion Act 1967.1 They
claimed damages for the mother's pain and suffering and for the cost of raising and caring for the
child. The defendants denied negligence and contended that at the material time the child was
capable of being born alive so that any termination would have been unlawful under section 1of
the Infant Life (Preservation) Act 1929

Held:

dismissing the action, (1) that before the enactment of section 1of the Infant Life (Preservation)
Act 1929, the common law did not protect a child at the time of birth; that the intention of
Parliament in section 1 was to protect a child capable of being born alive if it could breathe and
live by reason of its own breathing without deriving any of its living or power of living by or
through any connection with its mother; that a "viable" foetus in section 5(1)of the Abortion Act
1967 had the same meaning and, therefore, under that provision an abortion could not be
lawfully carried out if section 1 of the Act of 1929 applied (post, pp.620A,E,621A-B,622A2)
That at 26 to 27 weeks' gestation the plaintiffs' child had been capable of being born alive within
the meaning of section 1 of the Act of 1929 and, therefore, although the evidence showed clearly
that there were responsible medical practitioners at hospitals other than the defendants' who
would have been willing to carry out an abortion in the circumstances, such an abortion would
have been illegal and, therefore, the plaintiffs' claim that they had lost the opportunity of having
the foetus aborted failed; and that, in any event, the plaintiffs had no proved that the defendants
had been negligent .

Per curiam. (i) There would have been no grounds on which the plaintiffs' child could have
lawfully been deprived of the chance to live, whatever his parents' wishes, even if the necessary
treatment involved operative treatment (post, p. 617A).(ii) Once the court was satisfied that the
plaintiffs could only have turned their lost opportunity to value by termination of the life of a
child, who, on the balance of probabilities, was capable of being born alive, it would be the duty
of the court on policy grounds to deny them relief

R v Poulton (1832) 5 C & P 329

Facts:

A mother strangled her newborn baby, and was charged with the murder. Three medical men
testified before a jury that a child can die during the delivery, thus the fact that a child breathes
when it is born before it its whole body is delivered does not mean that it is born alive:

“It frequently happens that a child is born as far as the head is concerned, and breathes, but death
takes place before the whole delivery is complete. My opinion in this case is, that the child had
breathed; but I cannot take upon myself to say that it was wholly born alive.”

Issue:

The issue in question was when a foetus becomes a ‘human being’ for the purposes of murder
and manslaughter.

Held:

An unborn child is incapable of being killed. A child is born only when the whole body is
brought into the world, but it is not sufficient that the child breathes in the progress of the birth,
as the child may die before the whole delivery takes place. For a murder or manslaughter
conviction, a child must be killed after it has been fully delivered alive from the mother’s body.
In this case the jury found the child not to be born alive, and therefore the mother could not be
guilty of murder. The case of A-G’s Ref (No 3 of 1994) [1997] 3 WLR 421 confirmed that an
unborn foetus is not capable of being murdered, but a manslaughter conviction can stand where
the foetus was subsequently born alive but dies afterwards from injuries inflicted whilst in the
womb.

Attorney General’s Reference (No. 3 of 1994) (1997) 3 All ER 936

Facts:

The defendant stabbed his pregnant girlfriend in the face, abdomen and back when she was 22-
24 weeks pregnant. 17 days after the incident the woman went into premature labour and gave
birth to a live baby. The baby died 121 days later due to the premature birth. The defendant was
charged with wounding and GBH on the mother and convicted for which he received a sentence
of 4 years. On the death of the baby he was also charged with murder and manslaughter. The trial
judge held that he could not be convicted of murder or manslaughter since at the time of the
attack the foetus was not in law classed as a human being and thus the mens rea aimed at the
mother could not be transferred to the foetus as it would constitute a different offence. The
Attorney General referred the following point of law:

"1.1 Subject to the proof by the prosecution of the requisite intent in either case: whether the
crimes of murder or manslaughter can be committed where unlawful injury is deliberately
inflicted:

(i) to a child in utero

(ii) to a mother carrying a child in utero

where the child is subsequently born alive, enjoys an existence independent of the mother,
thereafter dies and the injuries inflicted while in utero either caused or made a substantial
contribution to the death.

"1.2 Whether the fact that the death of the child is caused solely as a consequence of injury to the
mother rather than as a consequence of direct injury to the foetus can negative any liability for
murder or manslaughter in the circumstances set out in question 1.1

"The Court of Appeal reversed the decision in relation to murder. The defendant appealed to the
House of Lords

Held:

The appellant's actions could not amount to murder for the reasons given by the trial judge.
However, his actions could amount to constructive manslaughter. There was no requirement that
the foetus be classed as a human being provided causation was proved. The attack on the mother
was an unlawful act which caused the death of the baby. There is no requirement under
constructive manslaughter that the unlawful act is aimed at the actual victim or that the unlawful
act was directed at a human being.

R v Dyson (1908) 2 K.B. 454

Facts
The defendant beat his child, causing a skull fracture and brain injury. These injuries would
have, in the normal course of things, eventually killed the child. After serving his sentence for
assaulting the child, he beat the child again. There was evidence that this second beating may
have accelerated the child’s death from the original skull fracture.

The defendant was charged with manslaughter. He argued that the second beating had not caused
the child’s death. This was because the child would have died from the original injury in due
course. The first beating was not admissible as a cause of death due to the ‘year and a day’ rule.

Issue(s)

Was the second beating a relevant cause of the child’s death?

Decision

The Court of Appeal allowed the defendant’s appeal against his conviction. It was sufficient for
the prosecution to show that the child would not have died at that particular time had they not
suffered the second beating. However, the jury had not considered whether the second beating
accelerated the child’s death. The court could not substitute its view of the evidence for that of a
jury, and so had to allow the appeal.

This Case is Authority For…

When determining whether causation exists, it is enough to show that without the defendant’s
acts or omissions, the proscribed result would not have happened at that particular time.

This means that the prosecution can establish a homicide offence where the defendant
accelerates the death of a terminally ill person, for example.

Other

This case also discusses the old ‘year and a day’ rule. This applied to homicide cases where the
victim took a long time to die of their injuries. This rule is no longer good law.

R v Adams (1957) Crim. L.R. 365

Dr Bodkins Adams had administered a lethal dose of pain killers to a terminally ill patient.

Held:

Dr Bodkins was acquitted of murder.

Devlin J:
"a life shortened by weeks or months is just as much murder as one shortened by years....
However, a doctor is entitled to do all that is proper and necessary to relieve pain and suffering
even if such measures may incidentally shorten life."

R v White (1910) 2 K.B. 124; 22 Cox C.C. 325

Facts

The defendant put poison into the evening drink of the victim, his mother, with the intention of
killing her. The victim drank a few sips of the drink and then fell asleep. She did not wake up,
however the medical evidence was that she had died of a heart attack rather than as a result of the
poison. The defendant also gave evidence that he had not intended to kill her by a single dose but
had planned to deliver multiple doses over a longer period of time. The defendant was convicted
of attempted murder.

Issue

On appeal, the question arose as to whether the defendant could be liable for murder given that
his actions had not factually caused the death. A second issue was whether having delivered a
single dose was a sufficient ‘attempt’ to ground the conviction in light of the evidence that the
defendant had intended the victim to die as a result of later doses which were never administered.

Held

The court established the ‘but for’ test of causation, according to which the defendant could not
be convicted unless it could be shown that ‘but for’ his actions the victim would not have died.
On the facts of this case the test was not met, therefore the defendant could not be convicted of
murder.

On the issue of attempt, the court held that it was sufficient that the attempted murder had been
begun, notwithstanding that the defendant had not completed his plan. The conviction for
attempted murder was therefore upheld.

R v Smith (1959) 2 Q.B. 35; (1959) 2 All E.R. 193; (1959) 2 W.L.R. 623; 43 Cr. App.Rep. 121

Facts

The defendant was a soldier who stabbed one of his comrades during a fight in an army barracks.
The victim was taken to receive medical attention, but whilst being carried to the hospital was
dropped twice by those carrying him. Once at the hospital, he received negligent medical
treatment; the medics failed to diagnose a puncture to his lung. The victim died of his injuries,
and the defendant was charged with murder and convicted at first instance. The defendant
appealed on the basis that the victim would have survived but for the negligence of those treating
him. He also argued that his confession had been obtained under duress and was therefore
inadmissible.
Issue

The issue was whether the negligence on the part of the doctors was capable of breaking the
chain of causation between the defendant’s action in stabbing the victim, and his ultimate death.

Held

The court held that the stab wound was an operating cause of the victim’s death; it did not matter
that it was not the sole cause. In order to break the chain of causation, an event must be:

“…unwarrantable, a new cause which disturbs the sequence of events [and] can be described as
either unreasonable or extraneous or extrinsic” (p. 43).

The chain of causation was not broken on the facts of this case.

With respect to the issue of duress, the court held that as the threat was made some time before
the relevant confession and was no longer active at the time of the defendant’s statement, it did
not render the evidence inadmissible. The conviction for murder was therefore upheld.

R v G and R [2003] UKHL 50 (overrulling Caldwell)

Facts

The 11 and 12 year old defendants were messing around in the early hours with some bundles of
old newspapers which they had found in the back yard of the Co-op store in Newport Pagnell.
They lit some of the newspapers and threw them on the concrete floor underneath a large plastic
wheelie bin. Adjacent was another similar bin which was next to the wall of the shop. The
accused left the yard with the papers still burning. The fire spread to the first bin, then to the
second and then to the guttering and fascia board on the overhanging eave. It penetrated the roof
space and set alight to the roof and adjoining buildings causing about £1m worth of damage. The
defendants were charged with damaging by fire ‘commercial premises . . .being reckless as to
whether such property would be damaged.’

The issue therefore turned on whether they were reckless as to damaging the buildings. At the
trial, it was accepted that the boys thought the fire would extinguish itself on the concrete floor
and that neither appreciated that it might spread to the buildings. Nonetheless the boys were
convicted and the Court of Appeal, basing itself on Caldwell, affirmed the conviction because
the boys gave no thought to a risk of damaging the buildings which would have been obvious to
any reasonable adult. The defendants appealed to the House of Lords.

Decision

The convictions were quashed. Recklessness for the purposes of the Criminal Damage Act 1971
is subjective; D must have foreseen the risk of the harm and gone on to take that risk. The
Caldwell direction was capable of leading to obvious unfairness, had been widely criticized by
academics, judges and practitioners, and was a misinterpretation of the CDA 1971.

According to Lord Steyn,

‘The surest test of a new legal rule is not whether it satisfies a team of logicians but how it
performs in the real world. With the benefit of hindsight, the verdict must be that the rule laid
down by the majority in Caldwell failed this test. It was severely criticized by academic lawyers
of distinction. It did not command respect among practitioners and judges. Jurors found it
difficult to understand: it also sometimes offended their sense of justice. Experience suggests that
in Caldwell the law took a wrong turn.’

Key principle:

Caldwell recklessness no longer applies to criminal damage, and probably has no place in
English criminal law unless expressly adopted by Parliament in a statute.

R v Matthews and R v Alleyne (2003) 2 Cr. App. R. 30

Facts

The defendants attacked and kidnapped the victim and eventually took him to a bridge over the
River Ouse. They threw him off the bridge into the river below despite hearing the victim say
that he could not swim. The victim drowned. One issue which arose concerned the accuracy of
the trial judge’s direction on the requirements of Woollin non-purpose intention and this led the
Court of Appeal to review previous case law.

Decision

The trial judge had gone further than the present law allowed in redrafting the Nedrick/Woollin
direction on virtual certainty, but on the facts, there was an irresistible inference or finding of
intention to kill once the jury were sure that Ds appreciated the virtual certainty of V’s death
from their acts and had no intentions of saving him. Appeal dismissed.

Key principle

Once convinced that D foresaw death or serious harm to be virtually certain from his actions, the
jury may convict of murder, but does not have to do so. However, in some cases, it will be
almost impossible to find that intention did not exist.
 Worksheet 2-Voluntary
Manslaughter
R v Julien (1970) 16 WIR 395

Facts:

Felix Julien was convicted of murder and appealed on the ground that there was a misdirection
on a question of law, in that the trial judge omitted to direct the jury that they might find him
guilty of manslaughter if they were in doubt as to whether he was provoked by the deceased.
Provocation was not a defence raised by the appellant and the trial judge did not give the
direction contended for by the appellant.

The appellant's version of the main incident gleaned from his statement to the police and his
evidence, was that the deceased, with whom he had lived as man and wife for three or four years,
refused to give him $20 which she had for him and said she would give him the following
morning. He said he discovered that she had been drinking that day and had omitted to collect his
clothing from the laundry. Thereupon he took off his belt and lashed her hard. She sat on a chair
by a table and he bathed, changed his clothes and left the house.

When he returned home in the early hours of the following morning he found her dead. The
medical evidence disclosed that the deceased suffered massive injuries which, with traumatic
shock, caused her death. There was evidence of a quarrel between the appellant and the
deceased.

Held: (i) that although provocation is not specifically raised as a defence, where there is some
evidence of provocation it is the duty of the trial judge to direct the jury as fully as if the defence
had been raised. R v Richards ((1967), 11 WIR 102) followed;

(ii) that the failure of the trial judge to direct the jury that they might find the appellant guilty of
manslaughter if they were in doubt as to whether he was provoked by the deceased, was not a
misdirection in law because provocation did not sufficiently arise on the evidence to make it
incumbent on the trial judge to give such a direction.
Per Curiam: the presence of an intention to kill or to do grievous bodily harm is contrary to the
expression that the accused was “for the moment not master of his mind”, and the dictum of
LEWIS JA (as he then was), clearly gives effect to the new thinking on the subject. Because we
accept this dictum as sound it is necessary for us to state what we know

consider to be the proper definition of provocation arising as it does from R v Duffy ([1949] 1
All ER 932, n, CCA) elaborated in Lee Chun- Chuen v R ([1963] 1 All ER 73, [1963] AC 220,
[1962] 3 WLR 1461, 106 Sol Jo 1008, PC), and amended by R v Bunting ((1965), 8 WIR 276).
This, in our view, is the correct definition of provocation:

“Provocation is some act or series of acts done or words spoken by the deceased to the accused
which would cause any reasonable person, and actually causes in the accused, a sudden and
temporary loss of self-control, rendering the accused so subject to passion as to cause him to
retaliate.”

Appeal dismissed. Conviction and sentence

affirmed.
Lord Widgery:

"The third point taken by Mr. McHale is that the deputy chairman was wrong in directing the
jury that before the appellant could use force in self-defence he was required to retreat. The
submission here is that the obligation to retreat before using force in self-defence is an obligation
which only arises in homicide cases. As the court understands it, it is submitted that if the injury
results in death then the accused cannot set up self-defence except on the basis that he had
retreated before he resorted to violence. On the other hand, it is said that where the injury does
not result in death (as in the present case) the obligation to retreat does not arise.

The sturdy submission is made that an Englishman is not bound to run away when threatened,
but can stand his ground and defend himself where he is. In support of this submission no
authority is quoted, save that Mr. McHale has been at considerable length and diligence to look
at the text books on the subject, and has demonstrated to us that the text books in the main do not
say that preliminary retreat is a necessary prerequisite to the use of force in self-defence.
Equally, it must be said that the text books do not state the contrary either; and it is, of course,
well known to us all that for very many years it has been common form for judges directing
juries where the issue of self-defence is raised in any case (be it a homicide case or not) to say
that the duty to retreat arises.

It is not, as we understand it, the law that a person threatened must take to his heels and run in
the dramatic way suggested by Mr. McHale; but what is necessary is that he should demonstrate
by his actions that he does not want to fight. He must demonstrate that he is prepared to
temporise and disengage and perhaps to make some physical withdrawal; and that that is
necessary as a feature of the justification of self-defence is true, in our opinion, whether the
charge is a homicide charte or something less serious. Accordingly, we reject Mr. McHale’s
third submission.

Lett v R [1963] 6 WIR 92

Facts:

The appellant was convicted of murdering the grandmother of LH on 28 February 1962. LH was
the paramour of the appellant and shared a house at Barataria with his grandmother. He worked
at Mayaro and went at week-ends to his home where the appellant used to join him every Friday
evening and leave when he left the following Monday. She was very fond of children and nursed
the idea that whenever she became pregnant the grandmother assumed a supernatural form and
sucked the foetus from her womb. On Friday, 2 March 1962, LH got home about 7 pm and
discovered the dead body of his grandmother lying on the floor. On being interviewed thereafter
by the police the appellant stated that she went to the grandmother's home on Wednesday, 28
February 1962, and met her in the kitchen peeling an orange with a knife.

The grandmother called her an old mule as she entered the house and thereafter made a grab at
her as she proceeded towards the room in which she and her paramour slept together. As the
grandmother did so she took out a piece of wood which she had concealed in her handbag and
struck her several times with it. The grandmother fell on the floor bleeding and began to bawl.
She then tied the grandmother's mouth with a towel, closed the door of the house and went away.
She concluded her statement by confessing that she did this because of the supernatural practices
in which she believed the grandmother indulged. In dealing with the issue of provocation the
learned trial judge (a) directed the jury inter alia that if the appellant had set out with the piece of
wood with the intention of wounding the grandmother, or that the use of that weapon was
intended from the first then the verdict must be guilty of murder; and (b) omitted to direct the
jury how they should resolve any doubt they might have as to whether the killing was
unprovoked.

Held:

(i) the direction at (a) above was not wholly accurate because if the fatal blow was

struck as a direct consequence and under the stress of a provocative act it was wholly

immaterial that there had been some previous intent to kill or do serious bodily injury unless that
intent continued to be operative so that the fatal blow may fairly be attributed thereto
notwithstanding the intervening provocative act: R v Kirkham ((1837), 8 C & P 115, 15 Digest
(Repl) 938, 8989.) and Lee Chun-Chuen v R ([1963] 1 All ER 73.) applied;

(ii) the jury were not adequately directed so that they should be fully aware of their duty, and the
appellant's right, in the event of their finding themselves in doubt on the issue of provocation: R
v Prince ([1941] 3 All ER 37, 58 TLR 21, 28 Cr App Rep 60, CCA, 14 Digest (Repl) 338, 3297.)
and R v McPherson ((1957), 41 Cr App Rep 213.) applied.

Appeal allowed; verdict of manslaughter

substituted

R v Duffy [1949] 1 All ER 932

The appellant attacked and killed her husband with a hammer and a hatchet whilst he was
sleeping in bed. He had subjected her to violence throughout their marriage.

Devlin J gave the classic definition of provocation as:

"Provocation is some act, or series of acts done (or words spoken)... which would cause in any
reasonable person and actually causes in the accused, a sudden and temporary loss of self-
control, rendering the accused so subject to passion as to make him or her for the moment not
master of his or her mind."

R v Ahluwalia [1992] 4 All ER 889

Facts:

The appellant poured petrol and caustic soda on to her sleeping husband and then set fire to him.
He died six days later from his injuries. The couple had an arranged marriage and the husband
had been violent and abusive throughout the marriage. He was also having an affair.

On the night of the killing he had threatened to hit her with an iron and told her that he would
beat her the next day if she did not provide him with money. At her trial she admitted killing her
husband but raised the defence of provocation however, the jury convicted her of murder. She
appealed on the grounds that the judge's direction to the jury relating to provocation was wrong
and she also raised the defence of diminished responsibility.

Held:

The judge's direction on provocation was correct. The Duffy direction was good law and the
judge had directed the jury on the issue of the abuse suffered by the appellant and thus the jury
would have considered the affect of this in reaching their verdict. The appeal on the grounds of
provocation was therefore unsuccessful.

However, the appeal was allowed on the grounds of diminished responsibility. The Court did,
however, stress that it was exceptional that fresh evidence would be allowed.

Lord Taylor CJ:

"Ordinarily, of course, any available defences should be advanced at trial. Accordingly, if

medical evidence is available to support a plea of diminished responsibility, it should be adduced
at the trial. It cannot be too strongly emphasised that this court would require much persuasion to
allow such a defence to be raised for the first time here if the option had been exercised at the
trial not to pursue it. Otherwise, as must be clear, defendants might be encouraged to run one
defence at trial in the belief that if it fails, this court would allow a different defence to be raised
and give the defendant, in effect, two opportunities to run different defences.

Nothing could be further from the truth. Likewise, if there is no evidence to support diminished
responsibility at the time of the trial, this court would view any wholly retrospective medical
evidence obtained long after the trial with considerable scepticism."

R v Baillie [1995] 2 Cr App R 31

Facts:

The appellant, having consumed alcohol, learnt that the deceased had threatened his youngest

son, and went to the deceased’s house armed with a sawn off-shotgun and cut-throat razor. He

had injured the deceased with a razor and the shots he fired had caused particles from a fence

to fatally wound the deceased. The background was that the deceased had supplied drugs to

the appellant’s sons, who the deceased had threatened, believing that one son had left him out

of a drugs deal. The appellant a man of no previous convictions was charged with murder and

his defence was that his intention was only to frighten the deceased. The judge summed up

that there was no evidence capable of amounting to provocation other than self-induced

provocation which had arisen after the appellant had entered the deceased’s house. The judge

considered that there was time for reflection and cooling-off between the appellant’s
knowledge of the threats and the carrying out the shooting. The appellant was convicted of

murder and appealed against conviction on the basis that the judge had erred in finding that

there was no evidence capable of giving rise to a defence of provocation. The Court considered

s3 of the Homicide Act 1957 which stated that when there was evidence that the

defendant was provoked to lose his self control, the question of whether the provocation was

enough to make a reasonable man do as he did should be left to the jury, and shall take into

account everything done or said according to the effect which it would have had on

reasonable man.

Held:

In principle, Parliament intended for the issue of provocation to be within the jury’s rather

than the judge’s province, although it had reserved a screening process to the judge. The

provisions of s 3 of the 1957 Act should be construed with proper regard to human frailty in

answering the essential jury question. In the instant case, to find that this was not a case of

provocation seemed too austere an approach, as there were the threats were aimed at the

appellant’s teenage sons, drugs that might ruin the sons’ lives, and the appellant had

consumed alcohol and acted inconsistently with anything he had done before. The judge

summed up the issue of false alibi as potentially probative of guilt, but she had not said why

she regarded that the false alibi negated intention or provocation. In line with authority, a

careful direction should be given in relation to how to regard the appellant’s conduct after the

killing and the lies told thereafter should have been given in the instant case. The appeal

would be allowed.

R v Thornton [1992] 1 All ER 306

Facts:
The appellant killed her alcoholic, abusive and violent husband. On the day in question the

deceased returned home drunk and an argument erupted. At one point he asked her to leave

and started throwing her clothes out. She then left the house with her husband's son. She

returned later to find her husband asleep on the sofa. She went and changed into her night

clothes and came down and asked her husband to come to bed. He called her a whore and

told her to get out or he would kill her. She went to the kitchen got a knife and sharpened it

then returned to the living room. Woke her husband and again asked him to come to bed. He

made further abusive comments. She plunged the knife into his stomach which killed him. At

her trial she raised the defence of diminished responsibility based on a personality disorder.

She did not raise the defence of provocation but the judge directed the jury on provocation.

She was convicted of murder. In her first appeal, the appellant challenged the Duffy direction

given to the jury ie the requirement that the loss of control be sudden and temporary. This

appeal was unsuccessful. She then appealed relying on fresh medical evidence that at the time

of the killing she was suffering from battered woman syndrome in addition to her personality

disorder and whilst the trial judge had directed the jury to take into account her characteristics

in assessing whether she had lost her self control, he had not specifically mentioned these

particular characteristics nor the fact that they could be attributed to the reasonable man when

the jury is assessing the standard of control expected of the appellant.

Held:

The appeal was allowed and the murder conviction was quashed. In accordance with Morhall,

Ahluwalia and Humphreys, the jury should have been directed that they could take into

account her mental characteristics in assessing the standard of control expected of the

defendant
R v Acott [1997] 1 WLR 306

Facts:

The appellant, aged 48, lived with his mother and became financially dependent on her. On

17th Feb 1993 the appellant called an ambulance as his mother had fallen down the stairs.

She died. Medical evidence was such that the mother died from a sustained attack rather than

from a fall. The appellant was charged with her murder. At his trial he denied any attack and

maintained that his mother fell. During the trial, Counsel for the prosecution continually put it

to the defendant that his mother had mocked him and berated him for being inadequate and

he then lost his control and attacked her and pushed her down the stairs. The defendant

strongly denied all such allegations. Nevertheless, the jury convicted him of murder. The

defendant appealed contending that the trial judge should have directed the jury on

provocation due to the allegations made by the prosecution.

Held:

There was no evidence put forward of provocation and therefore the trial judge was right not

to put the defence to the jury. The appeal was dismissed and the appellant's conviction for

murder upheld.

Vasquez v R [1994] 45 WIR 103 Luc (Belize)

The burden of proof on provocation in a murder case remained with the prosecution despite the
constitution. The Belize Criminal Code imposed no more than an evidential burden on the
accused: ‘In their Lordships’ view section 116(a) of the Code, by placing the burden of proof of
provocation upon an accused, conflicts with section 6(3)(a) of the Constitution and must
accordingly be modified to conform therewith. Their Lordships consider that section
116(a) should be construed as though the prefatory words of the section read: ‘A person who
intentionally causes the death of another person by unlawful harm shall be deemed to be guilty
only of manslaughter, and not of murder, if there is such evidence raised a reasonable doubt as to
whether he was deprived of the power of self-control by such extreme provocation given by the
other person as is mentioned in section 117;’ and that the prefatory words of section 119 (1)
should be construed as though they read: ‘Notwithstanding the existence of such evidence as is
referred to in section 116(a) the crime of the accused shall not be deemed to be thereby reduced
to manslaughter if it appear, either from the evidence given on his behalf, or from evidence
given on the part of the prosecution . . ‘It follows that the trial judge misdirected the jury on on
us of proof and the conviction for murder must be quashed.’ A judge need not be astute to
conjure up hypothetical situations in which provocation could conceivably have arisen if
the issue is not directly raised in evidence. He should only direct the jury on provocation
if there is evidence before the court which, if believed, might be taken by a reasonable jury to
support this defence.

Luc Thiet Thuan v R (1996) 3 WLR 45

Facts:

The appellant killed his ex-girlfriend. He claimed she owed him money and tied her up and

took her to a cash point and forced her to reveal her code knife point. He then claimed that

she mocked his sexual ability and boasted that her new lover was a better performer. He lost

his control and stabbed her multiple times. At his trial medical evidence was given that the

defendant suffered from an organic brain problem induced by a head injury. However, the

defendant's responsibility was not found to be substantially impaired. The trial judge did not

refer to the medical evidence in directing the jury on the issue of provocation and whether the

organic brain problem could be considered in assessing whether a reasonable man

would have done as the defendant did. The jury convicted him of murder (which carries the

death penalty in Hong Kong). The defendant appealed on the grounds that the judge should

have directed the jury on the medical evidence in relation to provocation.

Held:

Appeal dismissed conviction for murder upheld. (Lord Steyn dissenting)

Lord Goff gave the leading speech in which he stated that English law had taken a wrong

turning in Newell as applied in Aluwahlia and Thornton in allowing mental characteristics to

be taken into account when assessing whether a reasonable man would have done as the
defendant did. Allowing such mental characteristics blurs the distinction between diminished

responsibility and provocation. It also lowers the evidential burden on the defendant. Mental

characteristics may only be taken into account where the provocation is by words such as

taunts or insults about the characteristic which affect the gravity of the provocation but not in

the assessment of whether a reasonable man would have reacted in the same way as the

Defendant.

AG for Jersey v Holley [2005] 2 Cr App R 36

A landmark case where the Privy Council declared that they were announcing the law

applicable not only to Jersey but also to England and Wales. (Privy Council decisions are not

generally considered binding in English law but of mere persuasive authority). The Judicial

Committee consisted of nine members of the House of Lords.

Facts:

The defendant had a stormy relationship with the deceased. They were both alcoholics and he

had a history of violence towards her for which he had spent time in prison. On his release

from prison she indicated that she did not want to continue the relationship. However, they

continued to live together having constant rows. On the day in question they had both been to

the pub in the afternoon. He returned early because of an argument. She returned in the

evening and announced that she had had sex with another man. He hacked her to death with

an axe. At his trial he raised the defence of provocation. He wished to rely on his alcoholism,

depression and other personality traits. The jury convicted him of murder. The defendant

appealed to the Court of Appeal who quashed the conviction and ordered a retrial. He was

again convicted at the retrial and again appealed. His conviction was again quashed and a

manslaughter conviction was substituted. The Attorney General sought leave to appeal
arguing the decision in Smith (Morgan) was wrong and should not apply in Jersey.

Held: 6:3 Decision (Lords Carswell, Bingham and Hoffman dissenting) The appeal was allowed.

The law in Jersey and England & Wales is the same on this issue. The decision in Smith

(Morgan) allowing mental characteristics to be attributed to the reasonable man in assessing

the standard of self-control expected of the defendant is no longer good law.

R v James; R v Karimi [2006] 1 All ER 759

Facts:

James killed his wife in 1979. He stabbed, punched and suffocated her. The couple had been

separated for 5 months and she had formed a new relationship with another man. Four

psychiatric reports were received by the court and the prosecution indicated that they were

willing to accept a manslaughter verdict based on diminished responsibility. James did not

want to use that defence and pleaded not guilty to murder, but guilty to manslaughter on

grounds of provocation. At the time of trial the law on provocation was as set out in R v

Camplin ie only certain factors such as age could be taken into account. The psychiatric

reports were not therefore put before the jury. Following the decision in Smith (Morgan),

allowing mental characteristics to be taken into account, the defendant applied to the

Criminal Cases Review Commission for referral to the Court of Appeal. The CCRC referred

the case to the CA, however, before the hearing of the appeal, the Privy Council decision in

A-G for Jersey v Holley for was announced.

Karimi
Facts:

Karimi, a Communist Freedom Fighter in Kurdistan came to England with his wife. His wife
 formed a relationship with another man, Kabadi, who was a friend of Karimi and also a

freedom fighter. Kabadi came at Karimi with a knife and shouted ‘Besharif’ an insulting

phrase meaning you have no honour. Karimi then disarmed him and stabbed him to death

with the knife in a frenzied attack. The judge gave a direction based on Holley and the jury

convicted. The defendant appealed on the grounds that this was a mis-direction and the judge

should have used the direction in R v Smith (Morgan).

Held:

Both appeals were dismissed. Convictions were upheld.

The court drew a distinction between the gravity of provocation and the standard of self

control:

o Gravity of provocation
Where the provocation consists of words (eg taunts or insults) about a particular
characteristic of the accused, the jury may take into account the particular
characteristic in assessing the gravity of the provocation.
o Standard of self- control.
The court may not take into account the defendant’s particular characteristics of the
defendant (other than age or gender) in assessing the standard of self control expected
of a reasonable man

R v Serrano [2006] Crim LR 569

Facts:

In 1972, the defendant had met the deceased in a public house. The deceased was found the

next day in a driveway. The prosecution evidence at the defendant’s trial that year for murder

was that the injuries sustained by the deceased were indicative of a sustained sexual assault

and that kicks had most likely been used to inflict the wounds and fractures suffered by the

deceased prior to her death. The defendant’s evidence at trial, which included an account

which he had not previously advanced in interview, was that he had met the deceased, that
they had gone together and had engaged in sexual activity, but that he had had trouble

achieving an erection. He stated that he and the deceased had laughed together about that,

that he had not felt humiliated, and that, at one stage, the deceased had become aggressive,

saying that she wanted him to ‘make it worth her while’, had thrown something at him and

had struck him a number of times. He stated that his instinctive, reflex action, as a boxer, had

been to lash out, with his hands, without thinking. The defendant was an experienced amateur

boxer. He denied that he had kicked the deceased or that he had sexually assaulted her, stating

that he had touched her sexually with the deceased’s consent, before they broke off as a result

of his inability to perform sexually. Neither trial counsel nor the judge concluded that the

issue of provocation should be left to the jury, despite the prosecution’s observation in

response to the defendant’s evidence as to his sexual performance (which had arisen for the

first time in evidence) that he might have lost control as a result of the deceased mocking

him. In the event, the issue that the jury had to decide was the defendant’s intention when he

had hit the deceased. The defendant was convicted of murder. His application for leave to

appeal against his conviction was refused. The Criminal Cases Review Commission referred

the case back to the Court of Appeal pursuant to s 9 of the Criminal Appeal Act 1995.

Consideration was given, inter alia, as to whether the deceased’s alleged conduct in punching

the defendant had amounted to provocative conduct so that the judge should have directed the

jury as to provocation.

Held:

The appeal would be dismissed. On the authorities, there could only be an issue of

provocation to be considered by the jury where the judge considered that there was some

evidence of a specific act or words of provocation resulting in a loss of self-control. Where

there was no such evidence, but merely the speculative possibility that there had been an act
of provocation, it was wrong for the judge to direct the jury to consider provocation. It could

not be said that a boxer’s instinctive, reflex, reaction to a punch in the nose could be equated

with the concept of the loss of self-control as explained in the authorities, as what was

contemplated by the requirement in provocation for the loss of self-control was something

more than an instinctive reaction, but rather, a sudden and temporary loss of control, so

subject to passion as to make defendant not the master of his own mind.

On all the evidence in the instant case, and bearing in mind the nature of the prosecution case

that the deceased had been subjected to a sustained sexual assault, it could not be said that

there was evidence of specific provocative conduct which had resulted in the defendant’s

losing his self-control, and it followed that the judge had not erred in failing to leave the issue

of provocation to the jury.

The conviction was not unsafe.

R v Davies [1975] 1 QB 691

The defendant killed his wife after seeing her lover walk towards her place of work. It was

held that the act of the lover walking to her work place could amount to a provocative act and

the issue of provocation should have been put before the jury. The provocative act need not

be deliberately aimed at provoking the victim, nor must the provocation come from the victim.

R v Johnson [1989] 2 ALLER 839 CA

Facts:

The appellant was at a night club. A woman called him a 'white nigger'. The appellant was

white but had taken to adopting a West Indian accent. He took exception to the comments and

made violent threats to her. A male friend of hers intervened and poured a glass of beer over
the appellant. A fight developed between the two men and the appellant stabbed the man

resulting in his death. The appellant argued he was acting in self-defence as he believed he

was about to be glassed. He also denied losing any self-control. The judge directed the jury

on self-defence but did not direct the jury on provocation because he considered the

provocation was self-induced. The jury rejected self-defence and convicted him of murder.

He appealed contending the judge had a duty to direct the jury on provocation.

Held:

Conviction for murder quashed and substituted for manslaughter. The judge should have

directed the jury on provocation.

LJ Watkins:

"In view of the express wording of section 3, as interpreted in Camplin, which was decided

after Edwards, we find it impossible to accept that the mere fact that a defendant caused a

reaction in others, which in turn led him to lose his self-control, should result in the issue of

provocation being kept outside a jury's consideration. Section 3 clearly provides that the

question is whether things done or said or both provoked the defendant to lose his self-

control. If there is any evidence that it may have done, the issue must be left to the jury. The

jury would then have to consider all the circumstances of the incident, including all the

relevant behaviour of the defendant, in deciding (a) whether he was in fact provoked and (b)

whether the provocation was enough to make a reasonable man do what the defendant did."

Ramjattan v The State (No 2) [1999] 57 WIR 501

Facts:

The appellant was charged with the murder of her common-law husband. Two others were

also charged with the same offence. At the trial the appellant maintained that she had not been
a party to the plan to kill or to inflict serious bodily injury on the deceased. Although she had

been the victim of serious physical abuse by the deceased, no plea of diminished

responsibility was made on her behalf. All three accused were convicted; the verdict of the jury

indicated that they must have considered the appellant guilty at least as an accessory. The

Court of Appeal dismissed appeals by the three accused, but on further appeal to the Privy

Council the appellant's case was remitted to the Court of Appeal to consider whether to admit

fresh evidence relating to the possible defence of diminished responsibility based on the

battered wife syndrome. On the remittal the court granted leave for evidence to be given by a

forensic psychiatrist who had interviewed the appellant and concluded that she had suffered

from symptoms of depressive illness and of chronic post-traumatic stress disorder leading to

abnormality of the mind and substantial impairment (cf s 4A(1) of the Offences Against the

Person Act). No challenge was mounted to this evidence, other than the fact that the fresh

evidence had been obtained long after the trial and accordingly should be viewed with

Skepticism.

Held:

(1) that an appeal court must be careful not to allow an accused to abuse the process of the

court by holding back the issue of diminished responsibility to be raised only on appeal, after

some other defence which it was hoped would result in an acquittal had failed; and an appeal

court should not permit any going back on a decision taken not to run a defence of

diminished responsibility at the trial, if taken after proper advice and with knowledge of all

material facts, as such a defence could have been raised as an alternative to another defence.

(2) However, that in the present case the Court of Appeal was satisfied that the defence had

not taken a deliberate decision not to raise the defence of diminished responsibility by reason
of the battered wife syndrome in order to rely on it at a later stage; there had (at the time of

the trial) been no instance of battered wife syndrome leading to abnormality of the mind

(within the meaning of s 4A(1)) having been raised in the jurisdiction; the court accepted that

the forensic psychiatrist had to rely largely on what the appellant had told him, but it

had no reason not to accept his evidence; and accordingly the court would grant leave for it

(and evidence in support) to be raised on an appeal against conviction.

Bristol v R BB 2002 CA 33

Facts:

The accused had a turbulent relationship with her husband, who she killed in a heinous

nature. The accused plundered her husbands head while he slept with a rammer. The accused

had been subjected sexual abuse by her father as a child in Guyana and further subjected to

physical and sexual abuse from the inception of marriage by her husband. On the night of the

attack, the accused had checked herself out from a hospital where she was receiving help for

her alcoholic habits. Her husband verbally abused her when she arrived home calling her a

big ass for getting help and refusing it. She subsequently went to her room where she drank

rum she had hidden in her pillow. Her husband later confronted her about this drinking, and

forced himself sexually upon her, raping her. She later that night sat and plotted of ways to

take her husband’s life, where she went to the yard and took the rammer, returned to the

house, entered her husbands room and proceeded to smash his head with the rammer as he

slept. She returned the rammer outside and washed it off, she also took the towel she held it

with and placed it in a plastic bag, walked down the street and threw the plastic bag

containing the towel in a near by bush. She attempted to call her counselor but he told her

that it was late and he would return the call in the morning. She went back to her room and fell
 asleep. She awoke around six o’clock in the morning and with her son she called the police and
reported the matter.

Decision:
The appellant June Ann Bristol was charged with the murder on the 14th July 1998 of her

husband Urias Kenute Bristol. When she appeared before the High Court on the 6th October

1999, she pleaded not guilty of murder but guilty of manslaughter. The plea was accepted by

the Crown, and she was sentenced on the 22nd November 1999 to ten years imprisonment.

She has appealed to this Court on the ground that the sentence was excessive.

Held:

Court of Appeal

Difficult though the exercise may be, it is necessary to make an assessment of the sequence of

events on that fateful night to determine the appellant's state of mind and her feelings and

attitude before, during and after her attack upon her husband. In spite of her state of mind and

of intoxication, she seems to have agonized over the utterly callous and brutal treatment that

she received from her husband on the very first night after she left hospital and the realization

that she had returned to the very same sexual abuse to which she had been subjected before.

What she did to her husband seems to have been more the result of utter desperation than of

anything approaching calm deliberation. In all the circumstances, we are of opinion that a

sentence of 10 years' imprisonment is excessive and we would reduce it to 6 years to run from

the 6th October 1999.

R Byrne (1960) 2 QB 396

D was a sexual psychopath who strangled a young woman and then mutilated her body. The

medical evidence was that, because of his condition, he was unable to control his perverted
desires. He was convicted of murder but the Court of Appeal quashed the conviction and

substituted a conviction for manslaughter.

Court: The phrase “abnormality of mind” in the Homicide Act 1957 is wide enough to cover:

1. The perception of physical acts and matters;

2. The ability to form a rational judgment as to whether an act is right or wrong; and

3. The ability to exercise willpower to control physical acts in accordance with that

rational judgment.
 Worksheet 3-
InVoluntary
Manslaughter
R v Lamb [1967] 2 All ER 1282

Two boys were playing with a revolver. There were two bullets in the chamber, but neither were
opposite the barrel. The two boys believed that this meant it would not fire. One of the boys
pointed the gun at the other and fired. As he pulled the trigger the chamber turned, and the gun
went off killing the boy. The other was charged with unlawful act manslaughter.

Held:

There was no unlawful act as no assault had been committed as the victim did not believe the
gun would go off therefore he did not apprehend immediate unlawful personal violence.

Dias [2002] 2 Cr App

The appellant and Edward Escott were both vagrants and drug addicts. They pooled their money
and brought £10 worth of heroin. The appellant prepared the solution of heroin and handed a
loaded syringe to the Escott who injected himself. Escott died. The trial judge ruled that
following the decision in R v Kennedy [1999] Crim LR 65, the self-injection by Escott of the
heroin was itself an unlawful act. It followed that aiding and abetting such an offence would
make the appellant criminally liable as a secondary party for that unlawful act which in turn had
caused the death of Escott. The jury convicted him of manslaughter. The appellant appealed. The
trial judge certified a point of law asking if he was correct to rule that self-injection of heroin was
an offence.

Held:

Appeal allowed. The appellant's conviction for manslaughter was quashed. The Court of Appeal
decision in R v Kennedy 1999 was wrong to state that self-injection of heroin was an unlawful
act. Whilst possession of the heroin was an unlawful act there was no direct causation. The jury
had not been directed on the issue of causation therefore the conviction was unsafe. In any event
it is likely in most cases that the freely informed decision, by an adult of sound mind to self-
inject drugs, would amount to a novus actus interveniens breaking the chain of causation.
Kennedy (no.2) [2007] 3 WLR 612

Facts:

The defendant and victim were living together in a hostel. The victim visited the defendants
room and asked for “a bit to make him sleep”. The defendant prepared a dose of heroin for the
victim, then passed him the syringe so that he could self inject. The victim did so, and died
several hours later as a result of choking on his own vomit while under the influence of the drug.
The defendant was convicted of unlawful act manslaughter and appealed.

Issue:

The key question before the House of Lords was whether the victim’s act in self injecting was an
intervening act such as to break the chain of causation. An additional question was which
unlawful act the manslaughter conviction should properly have been based.

Held:

It was held that as the victim was a fully informed and consenting adult, who had freely and
voluntarily self-administered the drug without any pressure from the defendant, this was an
intervening act. The chain of causation between the defendant’s act in supplying the drug and the
victim’s death was therefore incomplete. The reasoning of the House was based on the need for
the criminal law to respect free will and to treat the victim, being an adult of sound mind, as an
autonomous individual. The defendant’s conviction was therefore overturned.

On the question as to which unlawful act the manslaughter conviction was founded, the House
held in a case where there were several legitimate and valid alternative formulations, it was of
little consequence how the act was identified. The essential point was that the chosen
formulation should be clear and applied consistently throughout the trial.

Arobieke [1988] Crim LR 314

A train was stationary at a train station. The appellant peered into a railway carriage looking for
the victim. The victim was fearful of the appellant and jumped out of the carriage and started to
run off. He was electrocuted when he stepped onto a live rail. He was convicted of constructive
manslaughter and appealed.

Held:

The appeal allowed and the manslaughter conviction was quashed. Whilst the victim did
apprehend immediate unlawful personal violence, the appellant's actions did not constitute an
assault. There was thus no unlawful act.

R v Lowe [1973] QB 702

The connection between “wilful neglect” under s.1(1) of the Children and Young Persons Act
1933 and manslaughter by negligence

Facts

Mr Lowe, of low intelligence, did not call a doctor to his sick infant child. The child died from
dehydration and gross emaciation. Mr Lowe was convicted of manslaughter by negligence and
wilfully neglecting a child so as to cause unnecessary suffering or injury to health under s.1(1) of
the Children and Young Persons Act 1933. The defendant appealed.

Issue

The jury convicted Mr Lowe based on a direction by the judge that manslaughter is a necessary
consequence of a conviction of wilful neglect under s.1(1) of CAYPA 1933 if that neglect caused
the victim’s death. The jury specified that it had found that the defendant was not reckless (the
mens rea element of manslaughter) and that it was, therefore, not his recklessness that caused the
child’s death. Mr Lowe argued that the jury had been misdirected about the necessary elements
of manslaughter and that “wilful neglect” involved proof that he intended the consequences of
the neglect.

Held

Under s.1(1) of CAYPA 1933 “wilful neglect” means that the neglect was deliberate and not
merely inadvertent. Although the defendant may not have been able to foresee the consequences
of not calling a doctor, this failure was deliberate nevertheless. His conviction under CAYPA
1933 was therefore proper. As to manslaughter by negligence, Mr Lowe was expressly found by
the jury not to have been reckless. Consequently, his omission, which was wilful only to the
extent of not being inadvertent, should not have inevitably led to a conviction for manslaughter,
even though it caused his child’s death. Overall, the jury had indeed been misdirected, as a result
of which Mr Lowe’s conviction for manslaughter could not stand.

Andrews v DPP [1937] AC 576

The appellant drove a van above the speed limit and overtook another car. As he did so he struck
a pedestrian and killed him.

Held:

His conviction for manslaughter was upheld.

Lord Atkins on the degree of negligence required for gross negligence manslaughter:

"Simple lack of care such as will constitute civil liability is not enough: for purposes of the
criminal law there are degrees of negligence: and a very high degree of negligence is required to
be proved before the felony is established."
DPP v Newbury and Jones [1976] 2 All ER 365

Two 15 year old boys threw a paving slab off a railway bridge as a train approached. The paving
slab went through a glass window on the cab of the train and struck the guard killing him. The
boys were convicted of manslaughter. The Court of Appeal dismissed the boys' appeals. The
boys appealed to the Lords with the following certified question of law:

" can a defendant be properly convicted of manslaughter, when his mind is not affected by drink
or drugs, if he did not foresee that his act might cause harm to another?"

Held:

There is no requirement that the defendant foresees that some harm will result from his action.
The applicable law is that stated in R v Larkin as modified in R v Church. The statement relating
to foresight made by Lord Denning in Gray v Barr was erroneous and not binding in the criminal
division of the Court of Appeal.

AG’s Reference (No.3 of 1994) [1997] 3 All ER 936

The defendant stabbed his pregnant girlfriend in the face, abdomen and back when she was 22-
24 weeks pregnant. 17 days after the incident the woman went into premature labour and gave
birth to a live baby. The baby died 121 days later due to the premature birth. The defendant was
charged with wounding and GBH on the mother and convicted for which he received a sentence
of 4 years. On the death of the baby he was also charged with murder and manslaughter. The trial
judge held that he could not be convicted of murder or manslaughter since at the time of the
attack the foetus was not in law classed as a human being and thus the mens rea aimed at the
mother could not be transferred to the foetus as it would constitute a different offence. The
Attorney General referred the following point of law:

"1.1 Subject to the proof by the prosecution of the requisite intent in either case: whether the
crimes of murder or manslaughter can be committed where unlawful injury is deliberately
inflicted:

(i) to a child in utero

ii) to a mother carrying a child in utero

where the child is subsequently born alive, enjoys an existence independent of the mother,
thereafter dies and the injuries inflicted while in utero either caused or made a substantial
contribution to the death.

"1.2 Whether the fact that the death of the child is caused solely as a consequence of injury to

the mother rather than as a consequence of direct injury to the foetus can negative any liability
for murder or manslaughter in the circumstances set out in question 1.1."
The Court of Appeal reversed the decision in relation to murder. The defendant appealed to the
House of Lords

Held:

The appellant's actions could not amount to murder for the reasons given by the trial judge.
However, his actions could amount to constructive manslaughter. There was no requirement that
the foetus be classed as a human being provided causation was proved. The attack on the mother
was an unlawful act which caused the death of the baby. There is no requirement under
constructive manslaughter that the unlawful act is aimed at the actual victim or that the unlawful
act was directed at a human being.

R v Goodfellow [1986] 83 Cr App R23

The appellant had been harassed by two men and wished to move from his council
accommodation. In order to get re-housed he set fire to his house making it look as if it had been
petrol bombed. Unfortunately his wife, son and son's girlfriend all died in the fire.

Held:

His conviction for manslaughter was upheld. There was no requirement that the unlawful act was
directed at the victims nor that it was directed at a person.

R v Larkin [1943] 1 All ER 217

The appellant waved a razor about intending to frighten his mistress's lover. He claimed his
mistress, who was drunk, blundered against the razor and was killed when it cut her throat.

Held:

Conviction upheld.

An unlawful act had been committed consisting of the assault against the mistress's lover. This
was a dangerous act in that it was one which a sober and reasonable person would regard as
dangerous.

R v Church [1965] 2 All ER 72

Sylvia Notts mocked the appellant's ability to satisfy her sexually and slapped his face. A fight
developed during which the appellant knocked her unconscious. He tried to wake her for 30 mins
to no avail. He believed she was dead and threw her body into a river. Medical evidence revealed
that the cause of death was drowning and she therefore had been alive when he threw her into the
river. The trial judge made several errors in his direction to the jury and in the event they
convicted of manslaughter rather than murder. The appellant appealed on the grounds of
misdirection.
Held:

Whilst there were several errors in the judge's direction the conviction for manslaughter was
safe.

Edmund Davies LJ set the applicable test for constructive manslaughter:

"The conclusion of this Court is that an unlawful act causing the death of another cannot, simply
because it is an unlawful act, render a manslaughter verdict inevitable. For such a verdict
inexorably to follow, the unlawful act must be such as all sober and reasonable people would
inevitably recognise must subject the other person to, at least, the risk of some harm resulting
therefrom, albeit not serious harm."

Dawson [1985] 81 Cr App R 150

The defendant approached a petrol station manned by a 50 year old male. The defendants
attempted a robbery with an imitation gun and a pick-axe handle. The defendants demanded
money but did not touch the attendant who pressed the alarm button and the defendants ran away
without obtaining any cash. The petrol station attendant, who unknown to the defendants had a
pre-existing heart condition suffered a heart attack and died. The defendant was charged with
and convicted of unlawful act manslaughter and appealed.

Issues

Was the defendant’s act foreseeably dangerous so as to constitute the second element of unlawful
act manslaughter? Did the defendants realise that their acts would be likely to cause physical
harm? Did the defendants have to have knowledge of the victims medical condition for them to
realise that their act was likely to be dangerous?

Held:

The defendant’s appeal was allowed. The trial judge’s direction to the jury was a misdirection.
The question that the jury should have been asked was whether a reasonable person would have
realised that their actions were likely to create the risk of physical injury. An unlawful act must
also be dangerous and the defendant’s must have reasonably foreseen that this would be
dangerous. If the defendant’s had knowledge that the victim had a heart condition then they may
have been cognisant of the fact that their actions were likely to create a risk of physical harm. As
they did not, a reasonable person would not judge that the act was in itself dangerous.

R v Ball [1989] Crim LR 730

Facts:

The appellant was involved in a dispute with a neighbour over her parking her car on his land.
The neighbour’s car then disappeared and she and two men went to the appellant's house to
question him about it. Things got out of hand and the appellant went and grabbed his shot gun
and what he believed to be blank cartridges. He fired a shot at her intending to frighten her. In
fact the cartridge was live and she died from her injury. He was convicted of manslaughter and
appealed on the basis that the jury should have been directed that his mistaken belief that the
cartridges were blank should be taken into account in assessing whether the sober and reasonable
man would have regarded his actions as dangerous.

Held:

The appeal was dismissed.

"The question of whether the act was a dangerous one is to be judged not by the appellant's
appreciation but by that of a sober and reasonable man and it is not possible to impute into his
appreciation the mistaken belief of the appellant that what he was doing was not dangerous
because he thought that there was a blank cartridge in the chamber. At that stage the appellant's
intention, foresight or knowledge is irrelevant."

R v Adomako 1994 3 All E.R. 79

The appellant was an anaesthetist in charge of a patient during an eye operation. During the
operation an oxygen pipe became disconnected and the patient died. The appellant failed to
notice or respond to obvious signs of disconnection. The jury convicted him of gross negligence
manslaughter.

The Court of Appeal dismissed his appeal but certified the following question to the House of
Lords:

"In cases of manslaughter by criminal negligence not involving driving but involving a breach of
duty is it a sufficient direction to the jury to adopt the gross negligence test set out by the Court
of Appeal in the present case following R. v. Bateman (1925) 19 Cr. App. R. 8 and Andrews v.
Director of Public Prosecutions [1937] A.C. 576, without reference to the test of recklessness as
defined in R. v. Lawrence (Stephen) [1982] A.C. 510 or as adapted to the circumstances of the
case?"

Held:

His conviction for gross negligence manslaughter was upheld. The Lords ruled that the law as
stated in R v Seymour [1983] 2 A.C. 493 should no longer apply since the underlying statutory
provisions on which it rested have now been repealed by the Road Traffic Act 1991.

The certified question was answered thus:

"In cases of manslaughter by criminal negligence involving a breach of duty, it is a sufficient

direction to the jury to adopt the gross negligence test set out by the Court of Appeal in the
present case following R. v. Bateman 19 Cr. App. R. 8 and Andrews v. Director of Public
Prosecutions [1937] A.C. 576 and that it is not necessary to refer to the definition of recklessness
in R. v. Lawrence [1982] A.C 510, although it is perfectly open to the trial judge to use the word
"reckless" in its ordinary meaning as part of his exposition of the law if he deems it appropriate
in the circumstances of the particular case."

Lord Mackay LC set the test for gross negligence manslaughter:

"On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain
whether or not the defendant has been in breach of a duty of care towards the victim who has
died. If such breach of duty is established the next question is whether that breach of duty caused
the death of the victim. If so, the jury must go on to consider whether that breach of duty should
be characterised as gross negligence and therefore as a crime. This will depend on the
seriousness of the breach of duty committed by the defendant in all the circumstances in which
the defendant was placed when it occurred. The jury will have to consider whether the extent to
which the defendant's conduct departed from the proper standard of care incumbent upon him,
involving as it must have done a risk of death to the patient, was such that it should be judged
criminal.

The essence of the matter which is supremely a jury question is whether having regard to the risk
of death involved, the conduct of the defendant was so bad in all the circumstances as to amount
in their judgment to a criminal act or omission...

It is true that to a certain extent this involves an element of circularity, but in this branch of the
law I do not believe that is fatal to its being correct as a test of how far conduct must depart from
accepted standards to be characterised as criminal. This is necessarily a question of degree and
an attempt to specify that degree more closely is I think likely to achieve only a spurious
precision. "

Singh (1999) Crim LR 582 CA

The judge directed the jury that as a matter of law, the defendant owed a duty to V, an occupant
of the lodging house in which he worked as a ‘maintenance man’, in respect of safety of the gas
fire. V died from carbon monoxide poisoning from the defective fire. The conviction for
manslaughter was upheld. The jury must have found that a reasonably prudent person would
have known that there was a serious and obvious risk of death and that D’s negligence was a
substantial cause.

Lidar (2000) Archbold News 3 CA

Facts

The defendant drove off whilst the victim was having a conversation with him; the victim’s head
still part way in the car

The defendant’s head was crushed by the rear wheel of the car
Issue

Could the defendant be convicted of manslaughter?

Decision

Yes – reckless manslaughter

Reasoning

This is the only known reckless manslaughter conviction, were the probability of serious harm or
death was present, and that risk was assessed and then taken by the defendant.

R v Franklin (1883) 15 Cox CC 163

Manslaughter caused by an unlawful act and criminal negligence

Facts
Mr Franklin took up a larger box from Brighton Pier and threw it into the sea. The victim was
swimming underneath in the sea at the time and was struck by the box and died.

Issues
Relying on the case of R v Fenton (1830) 1 Lew CC 179, the prosecution argued that,
independent of the question of negligence, in order to find manslaughter, it should be sufficient
to show that the defendant did an unlawful act which he can neither justify nor excuse. The act
committed by the defendant in Fenton was trespass and thus wrongful. In the prosecution’s
view, the question should be whether the victim’s death could be “fairly and reasonably”
considered to be the result of this wrongful act.

Decision / Outcome
The jury had to consider the case within the framework of negligence and not upon the narrow
ground proposed by the prosecution, i.e. death caused by a (civil) wrongful act. Simply because a
civil wrong was committed, it ought not to be used as a necessary step in a criminal case.The
case of R v Fenton was not binding on the Court as the circumstances of the present case were
different. Mr Franklin was found guilty of manslaughter based on the principles of criminal
negligence.

Worksheet 4-
 Non-Fatal Offences of a
Person
Fagan v Metropolitan Police Commisioner [1969] EW 582

Actus reus – assault of policeman – car driven on to policeman’s foot

Facts

Fagan was sat in his car when he was approached by a police officer who told him to move the
vehicle. Fagan did so, reversed his car and rolled it on to the foot of the police officer. The
officer forcefully told him to move the car off his foot at which point Fagan swore at him and
refused to move vehicle and turned the engine off. Fagan was convicted of assaulting a police
officer in the execution of his duty. Fagan subsequently appealed the decision.

Issues:

Fagan appealed on the basis that there cannot be an offence in assault in omitting to act and that
driving on to the officer’s foot was accidental, meaning that he was lacking mens rea when the
act causing damage had occurred. The legal issue here was whether the prosecution had proven
facts which had amounted to an assault. For an assault to be committed both actus reus and mens
rea must be established at the same time.

Held:

It was agreed that an omission cannot establish an assault. The court held that: ‘Although assault
is an independent crime and is to be treated as such, for practical purposes today, assault is
generally synonymous with battery.’ (at page 433) On this basis, it was held that Fagan’s crime
was not the refusal to move the car but that having driven on to the foot of the officer and
decided not to cease the act, he had established a continual act of battery.

This meant that actus reus and mens rea were present and as such, an assault was committed.
Fagan’s conviction was upheld.

Spratt [1990] 1 W.L.R. 1073, EW 627

The defendant fired an air gun with pellets out of his flat window. He stated that he did not think
anyone was in the vicinity and did not foresee a risk of any harm he only wanted to see how far
the pellets would go. Two pellets struck a young girl playing in the forecourt. He was charged
with ABH and pleaded guilty. He was sentenced to 30 months and appealed against sentence.
When the appeal came before the court the judge questioned whether the facts as stated could
give grounds for a conviction and referred an appeal against conviction. The Crown contended
that inadvertent (Caldwell) recklessness would suffice for a charge under s.47.

Held:

Conviction was quashed. Recklessness required the defendant to have an appreciation of the risk

R v Lamb [1967] 2 QB 981

Two boys were playing with a revolver. There were two bullets in the chamber but neither were
opposite the barrel. The two boys believed that this meant it would not fire. One of the boys
pointed the gun at the other and fired. As he pulled the trigger the chamber turned and the gun
went off killing the boy. The other was charged with unlawful act manslaughter.

Held:

There was no unlawful act as no assault had been committed as the victim did not believe the
gun would go off therefore he did not apprehend immediate unlawful personal violence.

Byrne [1968] SH 401

The appellant murdered a young girl staying in a YWCA hostel. He then mutilated her body. He
did so as he was suffering from irresistible impulses which he was unable to control.

Held: "abnormality of mind" was wide enough to cover the mind's activities in all its aspects,
including the ability to exercise will power to control physical acts in accordance with rational
judgment. But "abnormality of mind" means a state of mind so different from that of ordinary
human beings that a reasonable man would term it abnormal. He was thus allowed the defence to
reduce the murder conviction to manslaughter.

R v Chan-Fook [1994] 1 WLR 689

French student was lodging at the house of Mrs Fox who was engaged to the appellant. Mrs
Fox's engagement ring went missing and the she accused the student of stealing it. The appellant
interrogated the student during which he struck him several times. He then locked him in an
upstairs room and threatened him with further violence if the ring was not returned. The student
attempted to escape by roping the curtains and sheets together and tying them around the curtain
pole. The curtain pole broke and the student fell to the ground and suffered a fractured wrist and
a dislocated hip. The appellant was charged with the offence of an assault occasioning actual
bodily harm under S.47 of the Offences Against the Person Act 1861. The prosecution did not
frame the case in relation to the physical injuries sustained from him jumping out of the windows
(presumably assuming his actions may amount to a novus actus interveniens). The prosecution
based their case on the mental state of the victim and the fear and panic he suffered. No medical
evidenced was produced to support a finding of psychiatric injury.
Held: Conviction was quashed. To amount to actual bodily harm, the injury need not be
permanent but should not be so trivial as to be wholly insignificant. Feelings of fear and panic
are emotions rather than an injury and without medical evidence to support recognised
psychiatric condition a conviction for ABH could not stand

R v Ireland; R v Burstow [1997] [1997] 3 WLR 534

Can psychiatric injury be considered bodily harm, and whether ‘inflicted’ ought be interpreted as
requiring physical force.

Facts

The defendant and victim were engaged in a short romantic relationship, which the victim
ended. Unhappy with this decision, the defendant proceeded to harass the victim over several
months, making repeated phone calls, delivering hate mail, appearing unexpectedly, harassing
her neighbours, inter alia, causing her to sustain psychiatric injury (severe depression).

Issues

Whether psychiatric injury could be classified as bodily harm, as per s. 18, s. 20 and s. 47 of the
1861 Offences Against the Person Act. Further, whether it would be possible to bring a charge of
actual bodily harm under s. 20, which requires that harm be ‘inflicted’, where there had been no
physical force applied or damaged caused by the defendant being charged.

Held

The House of Lords held that psychiatric injury did suffice to be considered ‘bodily harm’,
building on the obiter dicta in R v Chan Fook (1994) 1 WLR 689 in which it was determined that
psychiatric injury could be classified as ABH under s. 20. Lord Steyn extended the Chan Fook
judgment, stating that in considering whether psychiatric illness can amount to bodily harm for s.
18, s. 20 and s. 47 of the OAPA, ‘the answer must be the same’ ([156]). Notably, it was viewed
as necessary for public policy reasons that the law ought provide recourse to women suffering
from malicious harassment by former and unrequited lovers. Moreover, in interpreting the word
‘inflict’ in s. 20, the Court determined it did not require the application of physical force, but
instead could be understood as simply meaning the defendant’s actions had been causative of the
injury. Subsequently, the defendant was found guilty of assault.

R v Constanza [1997] Crim LR 576

Whether words alone could constitute an assault and the temporal element of fear of immediate
violence.

Facts
A man was convicted of assault occasioning actual bodily harm of a female ex-colleague. For a
period of almost two years, the man followed the women home from work, made numerous
silent phone calls, wrote her over 800 letters, drove past her house, visited her house without
consent, and wrote offensive words on her house’s door three times. Following these actions, she
received two additional letters with threatening language. She was soon diagnosed by a doctor as
suffering from clinical depression and anxiety due to apprehended fear caused by the man’s
actions and letters. Issue (1) Whether the man’s words alone, without any physical action against
the victim, could constitute an assault and (2) whether there was an apprehended fear of
immediate and unlawful violence in order to constitute an assault under Offences Against a
Person Act 1861 s. 47.

Held:

The Court stipulated that words alone can constitute an assault, without the presence of physical
action, if they cause the victim to apprehend a fear of immediate violence. Concerning the
temporal aspect of the fear of violence, the Court held that, for the purposes of proving an
assault, it is sufficient to demonstrate that the victim feared violence “at some time not excluding
the immediate future.” The Court held that this element was fulfilled, placing emphasis upon the
close proximity of the man’s house to the victim’s and his delivery of the most recent letters to
her house. Accordingly, the Court dismissed the appeal and upheld the conviction for assault
occasioning bodily harm caused solely by words.

R v Savage [1991] 94 Cr App R 193

The defendant threw a pint of beer over the victim in a pub. The glass slipped out of her hand
and smashed and cut the victim's wrist. The victim was her husband's ex girlfriend and there had
been bad feeling between the two. The defendant maintained that it was never her intention to
throw the glass just to humiliate her by throwing the beer. The trial judge directed the jury that
malicious meant that an unlawful act was deliberate and aimed against the victim and resulted in
the wound. The jury convicted and the appellant appealed. The Court of Appeal held this was a
mis-direction as it did not correctly state that malicious included recklessness and this is decided
subjectively. The Court of Appeal substituted a conviction of ABH under s.47 OAPA 1861 and
certified a point of law to the House of Lords as to whether it was necessary under s.20 to
establish that the defendant intended or was reckless as to the infliction of GBH or whether it
was sufficient that the defendant foresaw some harm.

Held: It was not necessary to demonstrate the defendant had the mens rea in relation to level of
harm inflicted. It was sufficient that they intended or could foresee that some harm will result.

R v Savage, R v Parmenter [1991] 4 All ER 698, (1992) EW 625, SHC 89

The foreseeability of the level of physical harm and subjective intent required for the crime of
grievous bodily harm.

Facts:
 In the first case, Ms. Savage threw beer over her husband’s ex-girlfriend in a bar. Yet, while
doing so, the glass slipped out of her hand resulting in the victim’s wrist being cut. She claimed
that she had no intention to harm her with the glass, yet was convicted for inflicting grievous
bodily harm. In the second case, Mr. Parmenter had injured his new-born son, yet claimed that he
had done so accidently as he had no experience with small babies. Mr. Parameter was also
convicted of inflicting grievous bodily harm. Issue The issue pertained as to whether it was
necessary to establish that the defendant intended the infliction of grievous bodily harm in order
to establish the crime of malicious infliction of grievous bodily harm under s 20 of the Offences
Against the Person Act 1861.

Held:

It is unnecessary that the accused should either have intended or have foreseen that his unlawful
act might cause grievous bodily harm under s 20 of the Offences Against the Person Act 1861.
To satisfy the mens rea element of “maliciously,” it is not necessary to demonstrate that the
defendant intended the level of harm inflicted. It is sufficient that the accused foresaw that some
physical harm to some person, no matter of how minor a character envisaged, might result from
the conduct. Accordingly, the Court dismissed Savage’s appeal and substituted Parmenter’s
conviction to that of assault occasioning bodily harm

Collins v Wilcock [1984] 3 All ER 374

Definition of battery, unlawful touching when beyond scope of police authority

Facts:

A police officer wished to question a woman in relation to her alleged activity as a prostitute.
The woman decided to walk away, but the police officer was intent on stopping her and in order
to do so, grabbed her arm in order to prevent her from walking away. Under the Street Offences
Act 1959 c.57, the police officer had no power to detain the woman. The woman struggled with
the police officer and scratched him. She was charged with assaulting a police office in the
course of his duty.

Issue:

The issue in this case was whether the conviction for assaulting a police officer was lawful given
the lack of legal authority on the part of the police office to restrain the woman.

Held:

It was held that the police officer was acting outside the scope of his powers as he had no power
to arrest the woman in that situation and therefore, was acting outside of the scope of his duties
as a police officer. There was no question therefore of assaulting a police officer in the course of
his duty. It was held further that the grabbing on the part of the police officer, without the power
to make an arrest, amounted to an unlawful assault (a battery). The woman had been entitled to
resist as an action of self-defence. Her conviction was therefore quashed. The court took the
opportunity to clarify the meaning of battery as a touching of another with hostile intent or in
other words any intentional touching outside of the scope of what normally acceptable.

“[A] broader exception has been created to allow for the exigencies of everyday life. Generally
speaking consent is a defence to battery; and 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 . . Although such cases are regarded as examples of
implied consent, it is more common nowadays to treat them as falling within a general exception
embracing all physical contact which is generally acceptable in the ordinary conduct of daily
life . . [We] think that nowadays it is more realistic, and indeed more accurate, to state the broad
underlying principle, subject to the broad exception. . . In each case, the test must be whether the
physical contact so persisted in has in the circumstances gone beyond generally acceptable
standards of conduct; and the answer to that question will depend upon the facts of the particular
case.” (Goff LJ)

Wilson v Pringle [1986] 2 All ER 440

The plaintiff and the defendant were two schoolboys involved in an incident in a school corridor
as the result of which the plaintiff fell and suffered injuries. The plaintiff issued a writ claiming
damages and alleging that the defendant had committed a trespass to the person of the plaintiff.
In his defence the defendant admitted that he had indulged in horseplay with the plaintiff and on
the basis of that admission the plaintiff applied for summary judgment under RSC Ord 14. The
registrar refused to enter judgment but on appeal by the plaintiff the judge held that the defendant
had admitted that his act had caused the plaintiff to fall and in the absence of any allegation of
express or implied consent the defence amounted to an admission of battery and consequently an
unjustified trespass to the person. He accordingly gave the plaintiff leave to enter Judgment. The
defendant appealed to the Court of Appeal, contending that the essential ingredients of trespass
to the person were a deliberate touching, hostility and an intention to inflict injury, and therefore
horseplay in which there was no intention to inflict injury could not amount to a trespass to the
person. The plaintiff contended that there merely had to be an intentional application of force,
such as horseplay involved, regardless of whether it was intended to cause injury.

Held –

An intention to injure was not an essential ingredient of an action for trespass to the person, since
it was the mere trespass by itself which was the offence and therefore it was the act rather than
the injury which had to be intentional. However, the intentional act, in the form of an intentional
touching or contact in some form, had to be proved to be a hostile touching, and hostility could
not be equated with ill-will or malevolence, or governed by the obvious intention shown in acts
like punching, stabbing or shooting or solely by an expressed intention, although that could be
strong evidence. Whether there was hostility was a question of fact in every case. Since the
defence did not admit a hostile act on the part of the defendant there were liable to judicial trial
issues which prevented the entry of summary judgment. The appeal would therefore be allowed,
and the defendants given unconditional leave to defend.

Per Curiam.Where the immediate act of touching does not of itself demonstrate hostility the
plaintiff should plead the facts alleged to do so.

R v Miller [1954] 2 QB 282

Facts:

The defendant, Mr Miller, had been the husband of the victim who, at the time of the alleged
offence, had left the respondent and filed a petition for divorce on grounds of adultery. During
this period, the defendant met with the victim and had intercourse with her against her will. This
caused the victim to suffer significant mental distress. The defendant was charged with both rape
and, in the alternative, assault occasioning actual bodily harm under section 47 OAPA. An
appeal was brought on the basis that the defendant had no case to answer; a husband could not
rape his wife, as a wife impliedly consented to intercourse for the duration of the marriage.

Issues:

Whether the common law rule as to the implied consent of a wife remained good law and, if so,
whether there were circumstances, such as the use of force or violence, in which this consent
could be revoked. This case also raised the question of whether psychological damage, expressed
in the dated language of nervous hysteria, was capable of constituting actual bodily harm.

Held:

That the appellant could not be guilty of rape, as the implied consent of a wife to have
intercourse with her husband could only be revoked by court order or a binding separation
agreement. In the circumstances, this consent had not been revoked. Nevertheless, a husband was
not entitled to use force or violence for the purposes of exercising his right to intercourse; to do
so would amount to an assault. Moreover, as a ‘hysterical and nervous condition’ ([1954] 2 Q.B.
282, 292 per Lynskey J) is a recognised form of bodily harm, such an assault would constitute an
offence under s.47 OAPA.

R v Burstow [1997] 1 Cr. App. R. 144

The defendant had a brief relationship with a woman She ended the relationship and he could
not accept her decision and embarked on a campaign of harassment against her over a period of 8
months. He made silent telephone calls, abusive telephone calls, he appeared at her house, took
photos of her, distributed offensive cards to her neighbours and hate mail. As a result she
suffered a severe depressive illness. Two questions for the court were: 1. whether psychiatric
injury could amount to bodily harm under the OAPA 1861 2. whether a person could be liable
under s.20 where there was no direct or indirect application of physical force on a person
Held: 1. Psychiatric injury could amount to bodily harm. Dicta in Chan-Fook applied. 2. The
word 'inflict' in s.20 simply means cause. There was thus no requirement that physical force is
directly or indirectly applied.

Mowatt (1968) 1 QB 421 SH 426

Facts:

The defendant and a friend were out late at night, and came across the victim, at which point the
defendant knocked the victim unconscious whilst the defendant’s friend proceeded to steal
money from the victim. The victim then chased the friend but could not find him and so returned
to the defendant, and insisted that he inform of the friend’s whereabouts. The defendant claimed
to have felt endangered by the victim’s aggressive demeanour and so punched the victim, and
proceeded to violently attack him. He was later charged with malicious wounding under s. 18 of
the 1861 Offences Against the Person Act.

Issues:

Whilst a jury has the option of returning a guilty verdict for the lesser charge of s. 20 when
contemplating a charge under s. 18, did a judge err in failing to emphasise the distinction of
malicious intent between the two crimes.

Held:

The Court deemed it irrelevant that the first instance judge had not explicitly elaborated on the
word ‘malicious’ as the defendant’s actions could be taken as indicative of his intent to
intentionally cause serious harm. As Diplock LJ commented: ‘It is quite unnecessary that the
accused should have foreseen that his unlawful act might cause physical harm of the gravity
described in the Section, i.e. a wound or serious physical injury. It is enough that he should have
foreseen that some physical harm to some person, albeit of a minor character, might result.’
[(426)] Subsequently the defendant was deemed guilty of an offence of wounding under s. 18.

C (a minor) v Eisenhower [1984] 1 QB 331

Facts:

The defendant, a minor, shot multiple rounds from an air gun at a group of people, of which one
airgun pellet hit the victim, also a minor, in the face, which ruptured internal blood vessel’s near
the victim’s eye, causing bruising and swelling.

Issues

Did the defendant’s actions amount to a wounding under s. 18 of the Offences Against the
Person Act.
Held:

The Court found the defendant not guilty of wounding, determining that a charge under s. 18
required that there be a break in ‘the continuity of the skin’, that is the whole skin and not merely
a scratch to the outer layer of the skin. Goff LJ, who delivered the leading judgment, stated that
precedent was relatively clear on the matter, and further that: ‘It is not enough that there has been
a rupturing of a blood vessel or vessels internally for there to be a wound under the statute
because it is impossible for a court to conclude from that evidence alone that there has been a
break in the continuity of the whole skin’ ([341]). Subsequently, the appeal was upheld and the
charge against the defendant lessened. This rule continues to be strictly applied in determining
whether an injury is best described as actual bodily harm, grievous bodily harm or wounding
under s. 18. Thus, in cases where the skins remains intact, ABH or GBH are the only options for
a charge.

Burrell v Harmer [1965] 3 All ER 684

The defendant tattooed two boys aged 12 and 13. The boys had consented to the tattoo. It was
held that the boys’ consent was ineffective since the court was of the opinion they were unable to
comprehend the nature of the act. The defendant was liable for assault occasioning actual bodily
harm under s.47 Offences Against the Person Act 1861.

R v Brown [1993] 2 All ER 75 The five appellants were convicted on various counts of ABH
and wounding a under the Offences Against the Person Act 1861. The injuries were inflicted
during consensual homosexual sadomasochist activities. The trial judge ruled that the consent of
the victim conferred no defence and the appellants thus pleaded guilty and appealed. The Court
of Appeal upheld the convictions and certified the following point of law of general public
importance: "Where A wounds or assaults B occasioning him actual bodily harm in the course of
a sadomasochistic encounter, does the prosecution have to prove lack of consent on the part of B
before they can establish A's guilt under section 20 and section 47 of the 1861, Offences Against
the Person Act?" Held: 3:2

The defence of consent cannot be relied on in offences under s.47 and s.20 OAPA 1861 where
the injuries resulted from sadomasochist activities.

Lord Templeman: "Society is entitled and bound to protect itself against a cult of violence.
Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised. I would
answer the certified question in the negative and dismiss the appeals of the appellants against
conviction."

Lord Lowry: "What the appellants are obliged to propose is that the deliberate and painful
infliction of physical injury should be exempted from the operation of statutory provisions the
object of which is to prevent or punish that very thing, the reason for the proposed exemption
being that both those who will inflict and those who will suffer the injury wish to satisfy a
perverted and depraved sexual desire. Sadomasochistic homosexual activity cannot be regarded
as conducive to the enhancement or enjoyment of family life or conducive to the welfare of
society. A relaxation of the prohibitions in sections 20 and 47 can only encourage the practice of
homosexual sadomasochism and the physical cruelty that it must involve (which can scarcely be
regarded as a "manly diversion") by withdrawing the legal penalty and giving the activity a
judicial imprimatur."

Lord Mustill dissenting: "The issue before the House is not whether the appellants' conduct is
morally right, but whether it is properly charged under the Act of 1861. When proposing that the
conduct is not rightly so charged I do not invite your Lordships' House to endorse it as morally
acceptable. Nor do I pronounce in favour of a libertarian doctrine specifically related to sexual
matters. Nor in the least do I suggest that ethical pronouncements are meaningless, that there is
no difference between right and wrong, that sadism is praiseworthy, or that new opinions on
sexual morality are necessarily superior to the old, or anything else of the same kind. What I do
say is that these are questions of private morality; that the standards by which they fall to be
judged are not those of the criminal law; and that if these standards are to be upheld the
individual must enforce them upon himself according to his own moral standards, or have them
enforced against him by moral pressures exerted by whatever religious or other community to
whose ethical ideals he responds. The point from which I invite your Lordships to depart is
simply this, that the state should interfere with the rights of an individual to live his or her life as
he or she may choose no more than is necessary to ensure a proper balance between the special
interests of the individual and the general interests of the individuals who together comprise the
populace at large. Thus, whilst acknowledging that very many people, if asked whether the
appellants' conduct was wrong, would reply "Yes, repulsively wrong", I would at the same time
assert that this does not in itself mean that the prosecution of the appellants under sections 20 and
47 of the Offences against the Person Act 1861 is well founded."

R v Wilson [1996] 3 WLR 125

Facts:

Alan Wilson was charged under s 47 of the Offences Against the Person Act 1861 for assault. He
branded his initials into his wife’s buttocks with a hot knife

Issue:

The first issue was whether R v Brown (1993) 97 Cr. App. R. 44, is an authority for the
proposition that consent is not a defence to assault occasioning actual bodily harm to a person,
under s 47 of the Act. Further, when criminal investigation or conviction is required where
consensual activity between a couple occurs in the privacy of their own home. Where consensual
activity has taken place in the privacy of one’s home, and is has not serious or extreme in nature,
a defence of consent is valid against s 47 of the Act and it is not a proper matter for criminal
investigation.

Held:
The court distinguished the case of R v Brown holding that the engagement of the defendants in
sadomasochism which led to the decision to convict the defendant under s 47 of the Act was
extreme, with a serious risk of injury occurring. There was no factual comparison to be made
between the actions of Wilson and the facts presented in R vBrown and there was no aggressive
intent on the part of Wilson. It was further held that consensual activity between a husband and
wife in the privacy of their own home was not a matter for criminal investigation or conviction.
Therefore, consent was a valid defence to s 47. The appeal was allowed and the conviction was
quashed.

R v Richardson [1999] QB 444 CA

Facts:
The appellant, a registered dentist, had her licence to practice suspended by the General Dental
Council in 1996 but continued to treat patients, whom she did not inform of the suspension. On
this basis, the appellant was charged with six counts of assault occasioning actual bodily harm.
The judge at trial ruled against the defence submission that the patients treated by the appellant
after her disqualification had consented to their respective procedures, noting that the fraud as to
her credentials vitiated any such consent.

Issue:

On appeal it was argued by counsel for the appellant that the judge at trial had erred in striking
out the submission of the defence, in that not all deceptions amounted to fraud of a type that
could vitiate consent; only those which spoke to the nature of the act itself or the identity of the
person perpetrating the fraud were capable of doing so. It thus fell to be determined by the Court
of Appeal whether a deception as to a person’s attributes, in this case their qualifications, would
suffice to negative the consent of the deceived party.

Held:

The Court of Appeal confirmed, allowing the appeal, that fraud only negatived consent in
circumstances where the victim was deceived as to either the nature of the act performed or the
identity of those performing it. It was noted that lesser forms of deception might suffice for a
claim to damages in tort, however. Importantly, the Court held that the phrase ‘identity of the
person’ did not extend to that person’s qualifications or attributes.

R v Tabassum [2000] Crim LR 686

Facts:
The appellant had deceived a number of women into participating in what was claimed to be a
breast cancer survey, for the purposes of helping the appellant to prepare a software package for
sale to doctors. On this basis, the appellant induced the women to allow him to demonstrate how
to carry out a self-examination, which required that the victims remove their clothes and allow
the appellant to feel their breasts. Each victim was adamant that their consent was predicated on
the belief that the appellant possessed the qualifications he claimed to hold, and that the
procedure was medical in nature.

Issue:

Consent will be negatived if a person is deceived as to the nature or quality of the act performed.
The appellant claimed that, as he had done no more than was ostensibly consented to by the
victims, their consent remained operative, and therefore that his conviction for indecent assault
should be quashed as a consequence.

Held: The acts of the appellant were indecent if they were performed without the consent of the
victims. On the facts, there could be no true consent as the women had consented only to acts of
a medical nature, when in fact the actions of the appellant were without any medical
significance. The nature of the act consented to, a breast examination, was so fundamentally
different that it rendered any apparent consent entirely inoperative. On this basis, the appeal was
dismissed and the conviction of the appellant upheld.

R v Konzani [2005] 2 Cr. App.R. 14

Facts:

Feston Konzani was charged with three counts of inflicting grievous bodily harm contrary to s 20
of the Offences against the Person Act 1861. Konzani was HIV positive and aware of his
condition. He had unprotected sexual intercourse with three complainants without informing
them of his condition. Consequently, the three complainants contracted HIV.

Issues:

Whether there was a reasonable or genuine belief by Konzani that the complainants were aware
of his HIV positive status and thus, consented to the risk of contracting HIV through unprotected
sexual intercourse. Konzani relied on the defence of reasonable or genuine belief against s 20 of
the Act. However, on appeal it was found that Konzani’s concealment of his HIV status was
incongruent with honesty.

Held:

There was no evidence to indicate or to which the jury could have inferred, that Konzani had the
honest belief that the complainants had consented to unprotected sexual intercourse, knowing
that they were exposing themselves specifically to the risk of contracting HIV. The case of R v
Dica [2004] EWCA Crim 1103 was referred to and applied to some degree, as the principle of
personal autonomy to ensure that the individual takes necessary precautions to mitigate their
risks of infection was acknowledged. However, it was distinguished on the basis that where
Konzani had knowingly concealed the fact that he had HIV from his sexual partners, his sexual
partner’s personal autonomy could not reasonably be expected to extend to anticipate his
deception. Therefore, his concealment of his condition consequently led to the transmission of
HIV to the complainants. The complainants could not have given proper consent as they were
not honestly informed. The defence of honest belief was not upheld under s 20 of the Act. The
appeal was dismissed and the conviction stayed.

R v Coney [1882] 8 QBD 534

The defendants were engaged in prize fighting. It was held that prize fighting in public was
unlawful, notwithstanding the consent of the individuals involved.

Stephens J: "When one person is indicted for inflicting personal injury upon another, the
consent of the person who sustains the injury is no defence to the person who inflicts the injury,
if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is
injurious to the public as well as to the person injured. But the injuries given and received in
prize-fights are injurious to the public, both because it is against the public interest that the lives
and the health of the combatants should be endangered by blows, and because prize-fights are
disorderly exhibitions, mischievous on many obvious grounds. Therefore the consent of the
parties to the blows which they mutually receive does not prevent those blows from being
assaults."

R v Bradshaw [1878] 14 Cox 83

Facts:
The defendant was playing football with the victim. In an ill-judged tackle, the defendant kneed
the victim in the stomach. This injured the victim in a manner which led to his death. The
defendant was charged with unlawful act manslaughter.

Issue(s)
1. Was the defendant acting unlawfully by tackling the victim?

Decision
The judge directed the jury that it was possible for the victim to have consented to the risk of
harm, which would render the act lawful. This would depend in part on whether the defendant
was acting with ‘malicious motive or intention‘, which the jury might infer from whether the
defendant acted within the rules of the game or not. On this basis the jury acquitted the
defendant.

This Case is Authority For…

Bramwell LJ stated that:

‘if a man is playing according to the rules and practices of the game and not going beyond it, it
may be reasonable to infer that he is not actuated by any malicious motive or intention, and that
he is not acting in a manner which he knows will be likely to be productive of death or injury.
But, independent of the rules, if the prisoner intended to cause serious harm to the deceased, or if
he knew that, his act might produce serious injury and was indifferent and reckless as to whether
he would produce serious injury or not, then the act would be unlawful.’

Other
The judge also noted that the mere fact that a game or activity is subject to rules and regulation
cannot make an unlawful attack lawful.

R v Jones [1986] 83 Cr App Rep 375

Facts: There were six appellants to the appeal a conviction under s 20 of the Offences against
the Person Act 1861. All had pleaded guilty to at least two counts of inflicting grievous bodily
harm, arising from an incident in the playground. The two complainants were thrown into the air
and landed on the ground, causing them serious injuries. The judge declined to give a direction to
the jury as to whether the boys were participated in rough horseplay with intent to injure.

Issues:

The issue was whether the complainants had consented to ‘rough and undisciplined horseplay’
and whether there had been intent to cause serious injury. Section 20 requires an intention or
reckless on the part of the defendant/appellant in their actions, which was found not to exist.

Held: McCowan J held that consent to engage in horseplay was a defence where there had been
no intention to seriously injure. It was further opined that if the jury had been given the
opportunity to consider the defence of consent, in that the appellants had only been participating
in “rough and undisciplined play”, and where there was no intention to cause harm or serious
injury, then they would have likely rejected the conviction. Lord Chief Justice was found to have
erred in failing to refer to the actions of the appellants as “rough and undisciplined play” and
removing the defence of consent which ultimately impacted the outcome of the case.

The conviction was quashed and the appeal was allowed

R v Dica [2004] EWCA Crim 1103

Criminal – Assault Inflicting Grievous bodily harm – Transmitting disease through

consensual sexual intercourse 

Facts
The defendant, Mohamed Dica was charged with inflicting two counts of grievous bodily
harm under s 20 of the Offences against the Person Act 1861. The defendant was
charged on the basis that while knowing he was HIV positive, he had unprotected sexual
intercourse with two women who were unaware of his infection. Both women were
infected with HIV.

Issue
The question for the court was whether the complainants were consenting to the risk of
infection with HIV when they consented to sexual intercourse with defendant. The court
found that given the complainants had consensually agreed to unprotected sexual
intercourse, they were therefore accepting the risk of such acts. 

Decision / Outcome
Judge LJ analysed the case of R v Clarence  (1889) 22 QB 23, finding that its reasoning
behind the decision to quash the conviction under s 20 no longer had no continuing
relevance in today’s law. R v Clarence had not considered the issue of consent because
consent to sexual intercourse was assumed to have been given at the beginning of
marriage. The court distinguished a number of cases where sexual violence had been
consented to but had found to be unlawful given its nature and subsequent harm
caused to the participant. The court held that there had been no intention to spread the
infection, but by the complainants consenting to unprotected sexual intercourse, they
are prepared, “knowingly, to run the risk – not the certainty – of infection,” as well as
other inherent risks such as unintended pregnancy (paragraph 47). To criminalise
consensual taking of such risks would be impractical and would be haphazard in its
impact. The consent to risk provided a defence under s 20, resulting in the conviction
being quashed.

R v Clarence (1889) 22 QB 23
  Criminal law – Assault – Communication of Venereal Disease 

Facts
The defendant, Charles James Clarence (CJC) was charged for unlawfully inflicting
grievous bodily harm upon his wife Selina Clarence (SC) and occasioning actual bodily
harm, under sections 20 and 47 of the Offences against the Person Act 1861. CJC had
sexual intercourse and knowingly transmitting Gonorrhoea to SC, who was unaware of
his infection.

Issue
Having sexual intercourse with a spouse, while knowingly infected with a sexually
transmittable disease, without their knowledge, did not constitute “unlawful” or
“malicious” conduct, as there was no intention to transmit the infection, despite the
known risk of such. Thus, the conduct fell short of an assault under s 20 of the Act.
There could be no assault, as sexual intercourse within a marriage was consented to,
therefore fell short of the requirements for a conviction under s 47 of the Act.

Decision/Outcome
Wills J held that rape could not have occurred as SC consented to sexual intercourse
with CJC. As the sexual intercourse was consensual, the conduct was not deemed an
‘assault’ under s 47 of the Act. In the context, sexual crimes were intended to be dealt
with as a class by themselves and it was not the legislator’s intention to deal with sexual
offences within s 47.All judges were in agreement that there was a requirement for an
assault and an immediate connection between the violent action of the defendant and
the onset of the consequences. As the SC had consented to sexual intercourse, there
had been no ‘violent action’ that had resulted in her contracting Gonorrhoea.
Therefore s 20 could not be applied. Stephen J further opined that CJC could not have
acted “unlawfully” as described under s 20, as he had the legal right to have intercourse
with his wife, applying a very literal interpretation of the meaning ‘unlawful’. The appeal
was allowed and the conviction was quashed.

R v Brown [1993] 2 All ER 75 House of Lords

The five appellants were convicted on various counts of ABH and wounding a under the Offences
Against the Person Act 1861. The injuries were inflicted during consensual homosexual sadomasochist
activities. The trial judge ruled that the consent of the victim conferred no defence and the appellants
thus pleaded guilty and appealed. The Court of Appeal upheld the convictions and certified the
following point of law of general public importance:

"Where A wounds or assaults B occasioning him actual bodily harm in the course of a sado-
masochistic encounter, does the prosecution have to prove lack of consent on the part of B before
they can establish A's guilt under section 20 and section 47 of the 1861, Offences Against the Person
Act?"

Held: 3:2

The defence of consent cannot be relied on in offences under s.47 and s.20 OAPA 1861 where the
injuries resulted from sadomasochist activities.

Lord Templeman:

"Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the
infliction of pain is an evil thing. Cruelty is uncivilised. I would answer the certified question in the
negative and dismiss the appeals of the appellants against conviction."
Lord Lowry:

"What the appellants are obliged to propose is that the deliberate and painful infliction of physical
injury should be exempted from the operation of statutory provisions the object of which is to prevent
or punish that very thing, the reason for the proposed exemption being that both those who will inflict
and those who will suffer the injury wish to satisfy a perverted and depraved sexual desire.
Sadomasochistic homosexual activity cannot be regarded as conducive to the enhancement or
enjoyment of family life or conducive to the welfare of society. A relaxation of the prohibitions in
sections 20 and 47 can only encourage the practice of homosexual sadomasochism and the physical
cruelty that it must involve (which can scarcely be regarded as a "manly diversion") by withdrawing
the legal penalty and giving the activity a judicial imprimatur." 

Lord Mustill dissenting: 

"The issue before the House is not whether the appellants' conduct is morally right, but whether it is
properly charged under the Act of 1861. When proposing that the conduct is not rightly so charged I
do not invite your Lordships' House to endorse it as morally acceptable. Nor do I pronounce in favour
of a libertarian doctrine specifically related to sexual matters. Nor in the least do I suggest that ethical
pronouncements are meaningless, that there is no difference between right and wrong, that sadism is
praiseworthy, or that new opinions on sexual morality are necessarily superior to the old, or anything
else of the same kind. What I do say is that these are questions of private morality; that the
standards by which they fall to be judged are not those of the criminal law; and that if these standards
are to be upheld the individual must enforce them upon himself according to his own moral standards,
or have them enforced against him by moral pressures exerted by whatever religious or other
community to whose ethical ideals he responds. The point from which I invite your Lordships to depart
is simply this, that the state should interfere with the rights of an individual to live his or her life as he
or she may choose no more than is necessary to ensure a proper balance between the special
interests of the individual and the general interests of the individuals who together comprise the
populace at large. Thus, whilst acknowledging that very many people, if asked whether the appellants'
conduct was wrong, would reply "Yes, repulsively wrong", I would at the same time assert that this
does not in itself mean that the prosecution of the appellants under sections 20 and 47 of the Offences
against the Person Act 1861 is well founded."

Regina v D: HL 1984
D was convicted for kidnapping his 5-year old daughter, a ward of court, who was in the care
and control of her mother. The CA held that there was no such offence as the kidnapping of a
child under 14, that it could not be committed by a parent, and that the proper remedy was for
contempt of court rather than the criminal law. 
Held: Allowing the Crown’s appeal that 1) the common law of the offence of kidnapping in
relation to children under 14 was unaffected by the statutory offence of child stealing so that
where the ingredients of kidnapping were proved, namely the taking or carrying away of one
person by another by force without the consent of the other and without lawful excuse, an
offence was committed people (R v Edge [1943] IR 115 considered) 
2) Although a father’s paramount authority in the family would have proved a lawful excuse in
the past, that defence was no longer available in the changed social and legal attitudes when
parents were treated as having equal authority over a child. A parent could not plead his rights as
a father as a lawful excuse and could therefore kidnap his own child in law; 
3 it was desirable that people who snatch their own children in defiance of a court order should
be dealt with in civil proceedings for contempt of court save in exceptional cases where the
parent’s conduct was so bad that an ordinary right thinking person would unhesitatingly regard it
as conduct of a criminal nature. The defendant’s conduct and plea justified the decision to
prosecute him, and the order of the court of appeal should be set aside and the conviction for
kidnapping restored.
The offence of kidnapping ‘was always regarded, by reason of its nature, as a grave and (to use
the language of an earlier age) heinous offence’
It is extremely undesirable that they showed in any circumstances any private prosecutions for
such a kidnapping.
Lord Brandon said: ‘From this wide body of authority six matters relating to the offence of
kidnapping clearly emerge. First, the nature of the offence is an attack on, and infringement of,
the personal liberty of individuals. Secondly, the offence contains four ingredients as follows: (1)
the taking or carrying away of one person by another; (2) by force or by fraud; (3) without the
consent of the person so taken; and (4) without lawful excuse. Thirdly, until the comparatively
recent abolition by statute of the division of criminal offences into the two categories of felonies
and misdemeanours, the offence of kidnapping was categorised by common law as a
misdemeanour only. Fourthly, despite that, kidnapping is always regarded, by reason of its
nature, as a grave and (to use the language of an earlier age) heinous offence. Fifthly, in earlier
days, the offence contained a further ingredient, namely that the taking or carrying away should
be from a place within the jurisdiction to another place outside it; this further ingredient has,
however, long been obsolete, and forms no necessary part of the offence today. Sixthly, the
offence was in former days described not merely as taking or carrying away a person, but further
or alternatively as secreting him; this element of secretion has, however, also become obsolete,
so that, although it may be present in a particular case, it adds nothing to the basic ingredient of
taking or carrying away.’

R v Cogan & Leak [1976] QB 217

R v Cogan & Leak [1976] QB 217 is a Criminal Law case concerning the offence of aiding and
abetting.

Facts:
First defendant, the husband of the victim, told his wife that he was interested in watching her
have sex with his friend, the second defendant. The second defendant had sex with the first
defendant’s wife without the wife’s consent. Consequently, whereas the second defendant was
charged with rape, the first defendant was convicted of aiding and abetting.

The second defendant appealed to his conviction on the grounds that he honestly believed that he
had the wife’s consent. The court allowed the appeal and quashed his conviction.

Issues:

In his appeal, the first defendant sought to argue that he could not be convicted of aiding and
abetting after the second defendant’s appeal succeeded.

Held:

In R v Cogan & Leak, the Court of Appeal dismissed the appeal by the first defendant. The Court
held that the person can still be guilty of aiding and abetting the alleged rape, even if the alleged
rapist is found innocent. The first defendant admitted to his offence, so it would be illogical to
quash his conviction.

DPP v Morgan [1976] AC 182

Rape – Consent – Honest Belief to Consent – No Reasonable Belief Required if Honest and
Genuine Belief to Consent

Facts
The defendant was a Royal Air Force Pilot and he had invited his friends over to have sexual
intercourse with his wife. He told them that any signs of struggle were not to be seen as a lack of
consent and that she enjoyed it. The men were convicted of rape, while Morgan was convicted of
aiding and abetting his wife. The men had argued that they had the honest belief that the
complainant had consented to sexual intercourse.

Issues
The defendant appealed on the direction of the trial judge. The issue in this case was concerning
whether there could be a conviction for rape if the defendant honestly believed that the woman
consented to sexual intercourse, if his belief was not based on reasonable grounds.
Decision / Outcome
It was held that as long as a belief was genuine and honest pertaining to consent, it did not have
to be a reasonable belief for a defence to rape. The focus was on the mens rea of rape; there had
to be an intention to commit the crime, as well as a lack of consent. There was a requirement to
know the woman had not consented or reckless to whether she did. Despite this decision, the
conviction was upheld, as no reasonable jury would have found them not guilty, even if directed
correctly by the judge. The complainant had clearly communicated her lack of consent for sexual
activity in this case.

R v Miller [1954] 2 Q.B. 282

MARITAL RAPE – CONSENT – ASSAULT OCCASIONING ACTUAL BODILY HARM

–S.47 OFFENCES AGAINST THE PERSON ACT 1861 (OAPA)

Facts
The defendant, Mr Miller, had been the husband of the victim who, at the time of the alleged
offence, had left the respondent and filed a petition for divorce on grounds of adultery. During
this period, the defendant met with the victim and had intercourse with her against her will. This
caused the victim to suffer significant mental distress. The defendant was charged with both rape
and, in the alternative, assault occasioning actual bodily harm under section 47 OAPA. An
appeal was brought on the basis that the defendant had no case to answer; a husband could not
rape his wife, as a wife impliedly consented to intercourse for the duration of the marriage.

Issues
Whether the common law rule as to the implied consent of a wife remained good law and, if so,
whether there were circumstances, such as the use of force or violence, in which this consent
could be revoked. This case also raised the question of whether psychological damage, expressed
in the dated language of nervous hysteria, was capable of constituting actual bodily harm.

Decision/Outcome
That the appellant could not be guilty of rape, as the implied consent of a wife to have
intercourse with her husband could only be revoked by court order or a binding separation
agreement. In the circumstances, this consent had not been revoked. Nevertheless, a husband was
not entitled to use force or violence for the purposes of exercising his right to intercourse; to do
so would amount to an assault. Moreover, as a ‘hysterical and nervous condition’ ([1954] 2 Q.B.
282, 292 per Lynskey J) is a recognised form of bodily harm, such an assault would constitute an
offence under s.47 OAPA.

DPP v Camplin [1978] AC 705 House of Lords

The appellant, a 15 year old boy, killed a middle aged man by hitting him over the head with a chapati
pan. At his murder trial the defendant raised the defence of provocation stating that the deceased had
raped him and then laughed at him at which point he lost his control and hit him. The trial judge
directed the jury on provocation that they should consider whether a reasonable adult would have
done as the defendant did and told them that they should not take acount of the defendant's actual
age. The jury convicted him of murder and the defendant appealed contending the judge was wrong
to direct the jury that age was irrelevant.

Held:

The appeal was allowed. The jury should be allowed to consider the age of the defendant.

Lord Diplock:

"In my opinion a proper direction to a jury on the question left to their exclusive determination by
section 3 of the Homicide Act 1957 would be on the following lines. The judge should state what the
question is using the very terms of the section. He should then explain to them that the
reasonableman referred to in the question is a person having the power of self-control to be
expected of an ordinary person of the sex and age of the accused, but in other respects
sharing such of the accused's characteristics as they think would affect the gravity of the
provocation to him ; and that the question is not merely whether such a person would in like
circumstances be provoked to lose his self-control but also would react to the provocation as the
accused
did."

R v Flattery (1877) 2 QBD 410

Criminal – Sexual Assault –Consent obtained through fraud – Pretence of Surgical Operation

Facts
The defendant, John Flattery (JF) posed as a medical doctor and surgeon. The complainant, a
young woman aged 19, consulted JF with respect to an illness she was suffering, accompanied
by her mother. JF advised that surgery was required. Under the pretence of performing surgery,
JF had sexual intercourse with the complainant. The crown brought proceedings against JF under
Statute 13 Edw. 1, c. 34, charging him with rape.

Issues
The issue was whether submission to sexual intercourse amounted to consent. The complainant
had submitted to JF’s advances, but only on the belief that he was treating her for her seizures.
Submission did not amount to consent by law where that consent had been obtained by fraud.
There was no consent given to JF to have intercourse with the complainant, only to treat her
medically.

Decision / Outcome
The complainant submitted to the intercourse on a false pretence and was therefore unlawful.
Mellor J. relied on the case of R v Case 19 L. J. (Mag. C.) 174, agreeing with and quoting
Wilde, C.J. that,
“she consented to one thing, he did another materially different, on which she had been
prevented by his fraud from exercising her judgment and will.” (paragraph 414)

Mellor referred to the Statute 13 Edw. 1, c. 34 which defined rape to be sexual intercourse that
had not been “assented [to] before nor after”. Mellor concluded that submission may be
considered as consent, but not where consent was only given for some other action or thing and
not sexual intercourse. The appeal was dismissed and the conviction stayed.

R v Flattery (1877) 2 QBD 410

Criminal – Sexual Assault –Consent obtained through fraud – Pretence of Surgical Operation

Facts
The defendant, John Flattery (JF) posed as a medical doctor and surgeon. The complainant, a
young woman aged 19, consulted JF with respect to an illness she was suffering, accompanied
by her mother. JF advised that surgery was required. Under the pretence of performing surgery,
JF had sexual intercourse with the complainant. The crown brought proceedings against JF under
Statute 13 Edw. 1, c. 34, charging him with rape.

Issues
The issue was whether submission to sexual intercourse amounted to consent. The complainant
had submitted to JF’s advances, but only on the belief that he was treating her for her seizures.
Submission did not amount to consent by law where that consent had been obtained by fraud.
There was no consent given to JF to have intercourse with the complainant, only to treat her
medically.

Decision / Outcome
The complainant submitted to the intercourse on a false pretence and was therefore unlawful.
Mellor J. relied on the case of R v Case 19 L. J. (Mag. C.) 174, agreeing with and quoting
Wilde, C.J. that,

“she consented to one thing, he did another materially different, on which she had been
prevented by his fraud from exercising her judgment and will.” (paragraph 414)

Mellor referred to the Statute 13 Edw. 1, c. 34 which defined rape to be sexual intercourse that
had not been “assented [to] before nor after”. Mellor concluded that submission may be
considered as consent, but not where consent was only given for some other action or thing and
not sexual intercourse. The appeal was dismissed and the conviction stayed.

R v Bree [2007] EWCA Crim 256

Facts
The defendant, Bree (B), visited his brother at University and went for an evening out with him
and others, including the complainant (C). Both B and C consumed considerable quantities of
alcohol, before returning to B’s brother’s home. Whilst C’s memory from this point is poor, she
recalls vomiting and having B and his brother help wash the vomit from her hair. Her next
memory is of her and B having sexual intercourse. C contended that, although she had not
specifically said ‘no’ to intercourse, she had not consented. B contended that he had reasonably
believed she was consenting as she had undressed herself, appeared willing and been conscious
throughout the event.

History of the Case

At first instance, B was convicted by the Court of rape under the Sexual Offences Act 2003 s.1,
on the grounds that C had not consented to sexual intercourse. Notably, at first instance, the
Crown initially contended that C had been unable to consent as she was unconscious for much of
the event. However, following the delivery of evidence at trial, the prosecution’s approach
changed to submit that C did have the capacity to consent, and had made it as clear as possible,
given her inebriated state, that she did not consent to sexual intercourse with B.

B successfully appealed this decision to the Court of Appeal, and was ultimately not
convicted of rape.

Issue
The issue of appeal, as brought by B, was that at first instance the Court had not clarified to the
jury that a person may still be capable of consenting, even where voluntarily heavily intoxicated.
Rather, B viewed that the Court had implied heavy intoxication sufficed to remove one’s
capacity to consent, regardless of other factors. This would be contrary to the law on consent in
the Sexual Offences Act 2003.

Held
The Court of Appeal upheld B’s appeal, making two main points.

First, the Sexual Offences Act 2003 s.74 defines consent as where a person:

“… agrees by choice, and has the freedom and capacity to make that choice”
- (Sexual Offences Act 2003, s.74).

Where a person loses their capacity to consent due to intoxication, they indeed cannot consent.
However, it is possible that a person may be heavily intoxicated, having voluntarily consumed a
large quantity of alcohol, and still be capable of deciding to have intercourse. Further, the
specific facts of each case must be examined in deciding whether consent is deemed to have been
given, alongside the mental states of the defendant and complainant. Simply being intoxicated
does not remove one’s ability to consent, and equally, simply to be conscious does not mean one
has the capacity to consent. Sir Igor Judge commented that:

“[W]hen someone who has had a lot to drink is in fact consenting to intercourse, then that is
what she is doing, consenting: equally, if after taking drink, she is not consenting, then by
definition intercourse is taking place without her consent.” (R v Bree [2007] EWCA Crim 256
[a])

Secondly, that the Court at first instance had failed to properly direct the jury as to the legal
matters relevant to this case. Specifically, little or no guidance had been given on how consent is
examined in the context of voluntary heavy intoxication, despite this being crucial to delivering a
verdict. Further, little or no guidance had been given on dealing with the Crown Prosecution’s
significant change in approach, as occurred during the case. Subsequently, it was unclear
whether the jury still believed C to be unconscious at the time of the sexual activity. The Court
of Appeal was critical of the earlier Court for failing to establish that alcohol may alter
someone’s behavior, and heavy intoxication does not automatically mean a person cannot
consent. R v Olugboja [1982] QB 320 ought to have been applied, and the central issues
regarding consent mentioned and summarised for the jury’s benefit.

Related Case Law and Developments

R v Bree has been followed in subsequent case law and remains valid. Further, it has had impact
on the Code for Crown Prosecutors, which was subsequently updated to emphasise the Appeal
Court’s findings. The Code now reminds prosecutors to pay particular attention to all the
relevant facts in a specific case in assessing a person’s capacity to consent in a rape case
involving intoxication due to alcohol or drugs. The importance of reminding the judge, where
necessary, to properly instruct the jury on such matters is also reiterated.

The benefits of this approach have been stressed by other commentators, such as the highly-
regarded Rook & Ward who note that rape cases involving heavy intoxication by either one or
both parties tend to be

‘… so fact specific, [and] there are dangers to slavishly following a prescriptive specimen
direction’ (On Sexual Offences 2010, 4th edition, para 1.131).

Nonetheless, his decision has also been the focus of notable criticism from many legal
commentators, such as Wallerstein (Crim L J 2009, 73(4), 318, 343) arguing that the
understanding provided of the definition of consent fails to bring about the change hoped for in
reforming this area of the law, specifically to increase the number of convictions for rape. Such
criticisms also note that this case follows the decision in R v EB [2006] EWCA Crim 2945 in
which it was found that a person’s failure to mention their status as HIV positive did not vitiate
another’s consent to engage in sexual intercourse with them, which would subsequently have
made any sexual intercourse rape. There is subsequently a view held by some, including
Wallerstein (aforementioned), Elvin (Crim L J 2008, 72(6), 519) and Simpson (Crim L J 2016,
80(2), 97), inter alia, that the current definition and construction of consent under the Sexual
Offences Act 2003 is somewhat weak and is failing to provide adequate protection and justice to
the victims of sexual offences.
R v Linekar [1995] 3 All ER 69
Key point

 At common law, fraud which did not induce a mistake about the nature of the act
or of the identity of the man does not vitiate consent

Facts

 D hired a prostitute, but did not pay her after

 D was convicted of rape

Held (Court of Appeal)

 Appealed allowed – conviction was overturned

 There was no mistake as to the nature of the act which was sexual nor the
identity of D

Commentary

 At common law mistake as to purpose did not vitiate consent unlike the current
law under s76 Sexual Offences Act 2003 where deception as to purpose raises a
conclusive presumption
 In Jheeta the Court of Appeal at [28] stated that there was no deception as to
purpose in Linekar either and thus s76(2)(a) would not apply

Kaitamaki v The Queen [1985] AC 147

Whether penetration is an ongoing act for the purposes of rape under Sexual Offences Act 2003,
s1

Facts
The defendant was convicted of breaking into the victim’s flat and raping her twice. There was
no dispute that sexual intercourse had taken place on two occasions, but the defendant contended
that the victim had consented or that he had a reasonable belief that she was consenting. With
regards to the second act of sexual intercourse, the defendant stated that whilst he believed that
the victim was consenting at the time of penetration, he became aware that she subsequently was
not consenting. The defendant did not however cease the intercourse.

Issue
The court was asked to define the term penetration for the purposes of Sexual Offences Act
2003. In particular, whether the term applied only to the initial penetrating act.
Decision / Outcome
It was held that whilst sexual intercourse occurs at the point of penetration, it was also a
continuing act that ceases only at the point of withdrawal. On this basis, because the Sexual
Offences Act 2003, s 1(1)(a) defines rape as requiring the intentional penetration of the victim’s
vagina, anus or mouth with the defendant’s penis and s 1(1)(b) and (c) state that the offence will
be satisfied if the victim does not consent to the penetration and the defendant does not
reasonably believe that the victim consents, a defendant will be liable if they become aware
during sexual intercourse that the victim no longer consents and fail to withdraw at that point.
Penetration itself is ongoing throughout the act of sexual intercourse. The defendant’s appeal was
dismissed and his conviction for rape upheld.

(Note: the judgment refers to the New Zealand Crimes Act 1961 under which the definition of
rape is worded slightly differently. However, the wording is sufficiently similar for the case to
have application to the 2003 Act.)

R v Cooper; R v Schaub [1994] Crim LR 531

Whether penetration is an ongoing act for the purposes of rape under Sexual Offences Act 2003,
s1

Facts
The defendants met the victim at a bar and asked her to show them where the nightclubs were in
the area. The victim ultimately went to one of the nightclubs with the two men. The victim stated
that she had asked another woman to accompany her in a car with the defendants, but this
woman’s account differed significantly from the victims. In any event, the victim asked the two
men to take her home. The victim stated that once in the back of the car, she fell asleep and
awoke to find that Schaub had got into the back of the car and was sexually assaulting her. He
then put his penis in her vagina. At this time Cooper put his penis in the victim’s mouth. The
victim then bit Cooper’s penis. This resulted in the defendants changing positions and Cooper
putting his penis in the victim’s vagina whilst Schaub put his in her mouth under threat that she
would suffer is she bit it. The two defendants eventually ejaculated and dropped the defendant
off at a place of her choosing.

Issues
There were some initial issues regarding the judges summing up of police interviews and the use
of screens which were pertinent only to this judgment. The primary issue was whether
penetration under Sexual Offences Act 2003, s 1 was complete after the initial act so that
subsequent lack of consent did not render the defendant guilty of rape.

Decision/Outcome
Following Kaitamaki v The Queen [1985] AC 147 penetration is an ongoing act and therefore, if
a man continues to have sexual intercourse after consent is withdrawn he will be committing
rape.
R v Elbekkay [1995] Crim LP 163

RAPE – CONSENT – DECEPTION – IMPERSONATION OF BOYFRIEND

Facts
The appellant had been out for the evening drinking with the victim and her boyfriend. They
returned to the victim’s flat and the victim retired to bed whilst the appellant and the victim’s
boyfriend continued to drink. Later that evening the appellant climbed into the victim’s bed.
Believing the appellant to be her boyfriend the victim said, “I love you”. The appellant then
began to have intercourse with the victim. Soon after the victim realised her error and fought the
appellant off, cutting him with a knife. The appellant was convicted of rape and appealed on the
basis that the victim had consented to intercourse.

Issues
Under s.4 of the Criminal Law Amendment Act 1885 there existed a legal presumption that a
victim who is induced to agree to intercourse by a person impersonating her husband does not
consent to the act, as the fraud is sufficiently fundamental to negative any purported consent on
the part of the victim. The question arose whether this presumption was limited to spouses or
extended to unmarried couples.

Decision/Outcome
The statutory presumption contained in s.4 was limited to husbands because it was designed to
resolve a particular confusion. It was therefore not implicit that only the impersonation of a
husband would be rape. In impersonating the boyfriend of the victim, with whom she had been in
a relationship for 18 months, the appellant had committed a rape.

It is worth noting that this position is now codified under s.76(2)(b) of the Sexual Offences Act
2003.

R v Olugboja [1982] QB 320

The meaning of consent under amended Sexual Offences Act 1956, s 1

Facts
The defendant and the co-accused met the complainant and her friend at a discotheque and
offered to take them home. However, the defendant took the complainant to the co-accused’s
bungalow. The girls refused to go into the bungalow but, when they walked off, were followed
by the co-accused who proceeded to have sexual intercourse with the complainant. Both of the
girls were then forced back to the bungalow where the defendant told the complainant that he
was going to have sexual intercourse with her. The complainant asked him to leave her alone, but
did what he told her.
Issue
The Sexual Offences (Amendment) Act 1976, s 1 removed the need for sexual intercourse to
have taken place as a result of force, fear and fraud from the definition of rape under Sexual
Offences Act 1956, s 1. The issue in this judgment was how the new definition of lack of
consent on the part of the victim and a lack of reasonable belief in consent contained within the
1976 Act was to be applied.

Decision/Outcome
Although consent is an ordinary, common word, its definition under the 1956 Act should not be
entirely left to the jury. This is because consent can range from enthusiastic willingness to
reluctant acquiescence. In cases where it is suggested that the sexual intercourse was through
force or fear of force, it is unlikely to be necessary to direct the jury beyond explaining the
meaning of the word. However, where the issue is less clear the jury should be directed to
consider the state of mind of the victim immediately before the act and the events leading up to
it.

R v Clarence (1889) 22 QB 23
Criminal law – Assault – Communication of Venereal Disease

Facts
The defendant, Charles James Clarence (CJC) was charged for unlawfully inflicting grievous
bodily harm upon his wife Selina Clarence (SC) and occasioning actual bodily harm, under
sections 20 and 47 of the Offences against the Person Act 1861. CJC had sexual intercourse
and knowingly transmitting Gonorrhoea to SC, who was unaware of his infection.

Issue
Having sexual intercourse with a spouse, while knowingly infected with a sexually transmittable
disease, without their knowledge, did not constitute “unlawful” or “malicious” conduct, as there
was no intention to transmit the infection, despite the known risk of such. Thus, the conduct fell
short of an assault under s 20 of the Act. There could be no assault, as sexual intercourse within
a marriage was consented to, therefore fell short of the requirements for a conviction under s 47
of the Act.

Decision/Outcome
Wills J held that rape could not have occurred as SC consented to sexual intercourse with CJC.
As the sexual intercourse was consensual, the conduct was not deemed an ‘assault’ under s 47 of
the Act. In the context, sexual crimes were intended to be dealt with as a class by themselves and
it was not the legislator’s intention to deal with sexual offences within s 47. All judges were in
agreement that there was a requirement for an assault and an immediate connection between the
violent action of the defendant and the onset of the consequences. As the SC had consented to
sexual intercourse, there had been no ‘violent action’ that had resulted in her contracting
Gonorrhoea. Therefore s 20 could not be applied. Stephen J further opined that CJC could not
have acted “unlawfully” as described under s 20, as he had the legal right to have intercourse
with his wife, applying a very literal interpretation of the meaning ‘unlawful’. The appeal was
allowed and the conviction was quashed.

R v Dica [2004] Q.B. 1257 (CA)

Facts:

The defendant, Mohamed Dica was charged with inflicting two counts of grievous bodily
harm under s 20 of the Offences against the Person Act 1861. The defendant was
charged on the basis that while knowing he was HIV positive, he had unprotected sexual
intercourse with two women who were unaware of his infection. With the first woman,
he told her that they did not need to use protection, as he had had a vasectomy. With
the second woman, he used protection in the beginning of the relationship, but ceased
to use it later on. Both women were infected with HIV.

Issue:

The question for the court was whether the complainants were consenting to the risk of
infection with HIV when they consented to sexual intercourse with defendant. The court
found that given the complainants had consensually agreed to unprotected sexual
intercourse, they were therefore accepting the risk of such acts.

Held:

Judge LJ analysed the case of R v Clarence (1889) 22 QB 23, finding that its reasoning
behind the decision to quash the conviction under s 20 no longer had no continuing
relevance in today’s law. R v Clarence had not considered the issue of consent because
consent to sexual intercourse was assumed to have been given at the beginning of
marriage. The court distinguished a number of cases where sexual violence had been
consented to but had found to be unlawful given its nature and subsequent harm
caused to the participant. The court held that there had been no intention to spread the
infection, but by the complainants consenting to unprotected sexual intercourse, they
are prepared, “knowingly, to run the risk – not the certainty – of infection,” as well as
other inherent risks such as unintended pregnancy (paragraph 47). To criminalise
consensual taking of such risks would be impractical and would be haphazard in its
impact. The consent to risk provided a defence under s 20, resulting in the conviction
being quashed.
R v Konzani [2005] EWCA Crim 706; [2005] 2 Cr. App. R. 14

Criminal – Consent –Defence of honest belief of consent

Facts
Feston Konzani was charged with three counts of inflicting grievous bodily harm contrary to s 20
of the Offences against the Person Act 1861. Konzani was HIV positive and aware of his
condition. He had unprotected sexual intercourse with three complainants without informing
them of his condition. Consequently, the three complainants contracted HIV.

Issues
Whether there was a reasonable or genuine belief by Konzani that the complainants were aware
of his HIV positive status and thus, consented to the risk of contracting HIV through unprotected
sexual intercourse. Konzani relied on the defence of reasonable or genuine belief against s 20 of
the Act. However, on appeal it was found that Konzani’s concealment of his HIV status was
incongruent with honesty.

Decision / Outcome
There was no evidence to indicate or to which the jury could have inferred, that Konzani had the
honest belief that the complainants had consented to unprotected sexual intercourse, knowing
that they were exposing themselves specifically to the risk of contracting HIV. The case of R v
Dica [2004] EWCA Crim 1103 was referred to and applied to some degree, as the principle of
personal autonomy to ensure that the individual takes necessary precautions to mitigate their
risks of infection was acknowledged. However, it was distinguished on the basis that where
Konzani had knowingly concealed the fact that he had HIV from his sexual partners, his sexual
partner’s personal autonomy could not reasonably be expected to extend to anticipate his
deception. Therefore, his concealment of his condition consequently led to the transmission of
HIV to the complainants. The complainants could not have given proper consent as they were
not honestly informed. The defence of honest belief was not upheld under s 20 of the Act. The
appeal was dismissed and the conviction stayed.

Papadintropoulos [1957] 98 CLR 249

Only misrepresentations of the nature of the sexual act or the identity of the defendant can negate
consent at common law (IE only fraud re: the nature of the act or the identity of the defendant).
Such a misrepresentation occurred in Papadimitropoulos where a bureaucratic exchange at a
registry office was portrayed as a form of marriage (IE she thought that she was getting married
to a man, but they really were not married.) She then consented to intercourse. After she found
out that they were not married, she contended that she would not have consented if she had
known that they were not married and that she had been raped. There was no fraud as to identity
because there was no misapprehension as to the physical nature of what occurred between the
supposed newlyweds.
Held:The judgment of the majority of the Full Court of the Supreme Court goes upon the moral
differences between marital intercourse and sexual relations without marriage. It may well be
true that the woman in the present case never intended to consent to the latter relationship. But
the key to such a case lies in remembering that it is the penetration of the woman’s body without
her consent to such penetration that makes the felony. To return to the central point: rape is the
carnal knowledge of a woman without her consent. “Carnal knowledge" is the physical act of
penetration; it is the consent to that which is in question; such a consent demands a knowledge of
a) what is about to take place, b) the identity of the man, and c) the character of what he is doing.
But once the consent is comprehended and actual, the inducing causes cannot destroy its reality
and leave the man guilty of rape. That is to say, inducing causes like fraud* as to marital status,
occupation and the like are insufficient to legally invalidate consent because she knew that she
was consenting to the actual act of intercourse. There was no rape because the fraud pertained to
the belief of marriage, not to the nature of the act nor the identity of the defendant.

Worksheet 6- Sexual
Offenses
Fairclugh v Whipp [1951] 2 All ER 834

Facts

While making water on the bank of a river, the respondent, with his person exposed, said to a girl
of nine who was passing, "Touch it," and she did so.

Held

An invitation to someone to touch the invitor could not amount to an assault on the invitee, and,
therefore, there had been no assault, and, consequently, no indecent assault on the girl by the
respondent.

R v Court [1989] 1 AC 28

Facts

The appellant, an assistant in a shop, struck a 12-year-old girl visitor some 12 times, for no
apparent reason as she thought, outside her shorts on her buttocks. In response to a question by
the police as to why the appellant had done so he said "I don't know-buttock fetish." He was tried
on a count charging indecent assault contrary to section 14(1) of the Sexual Offences Act 1956.

He pleaded guilty to assault, denied that it was indecent and submitted that his statement about
"buttock fetish" should be excluded as being a secret uncommunicated motive and could not
make indecent an assault not overtly indecent. The trial judge refused to exclude the statement,
the appellant did not give evidence and he was convicted. The Court of Appeal (Criminal
Division) dismissed the appellant's appeal against conviction.

On appeal by the appellant:

Held: dismissing the appeal (Lord Goff of Chieveley dissenting), that where a charge of indecent
assault contrary to section 14(1) of the Sexual Offences Act 1956 was founded on facts capable
of being given an innocent as well as an indecent interpretation, it was necessary for the
prosecution to prove not only that the accused intentionally assaulted the victim but that in doing
so he intended to commit an assault which right-minded persons would think was indecent; and
that evidence as to the accused's motive tending to explain the cause for his conduct was
admissible to establish whether he intended to Commit not only an assault but an indecent
assault; that accordingly the evidence concerning the appellant's statement about buttock fetish
had been admissible and the verdict was not unsafe or unsatisfactory.

R v Scarfe [1965] 9 WIR 323

Facts

At the trial of the appellant on a charge of rape, the jury acquitted him of rape or of attempted
rape but found him guilty of indecent assault. On appeal, it was submitted that since the appellant
had been acquitted of rape and also of attempted rape, there was no evidence before the Court
which could support a verdict of indecent assault.

Held:

The jury having acquitted the appellant not only of rape but of the offence of attempted rape, and
the evidence on that offence being indistinguishable from that on the offence of indecent assault,
the verdict of indecent assault was inconsistent with the acquittal of attempted rape and could not
be supported.

M'Cormack [1969] 2 QB 442

Facts:
The defendant, who was indicted on a count of unlawful sexual intercourse with a girl aged
under 16 contrary to section 6 (1) of the Sexual Offences Act,1956,1 denied sexual intercourse
but admitted inserting his finger into her vagina. On rulings that the allegations in the indictment
included an allegation of indecent assault on the girl within section 6 (3) of the Criminal Law
Act, 1967,2 and that no discretion existed not to leave to the jury consideration of the offence of
indecent assault, the jury convicted the defendant of indecent assault.

On appeal: -

Held: dismissing the appeal, (1) that an indictment alleging an act of unlawful sexual intercourse
with a girl under 16 years of age necessarily included an allegation of indecent assault on the girl
and that, if a man inserted a finger into the vagina of a girl under the age of 16, it was an indecent
assault in view of her age.

Faulkner v Talbot [1981] 3 All ER 468

Facts:

Where a woman touches the penis of a boy under the age of 16 during or preliminary to sexual
intercourse with the boy, the woman commits an indecent assault contrary to s 15(1) a of the
Sexual Offences Act 1956, notwithstanding that sexual intercourse between a woman and a boy
under the age of 16 is not itself illegal, or that the boy may be willing and co-operative, since by
virtue of s 15(2) the boy's consent does not prevent the act being an assault

Horton v Mead [1913] 1 KB 154

Every male person who in any public place persistently solicited or importuned for immoral
purposes should be deemed a rogue and vagabond and might be dealt with accordingly.

Facts:

Appellant was watched by two police officers on a certain night and was seen to enter certain
public lavatories and to remain a few minutes in each. While in the lavatories and while in the
street he made certain gestures, but he did not at any time speak to or touch anybody or attempt
to do so. No person complained as to his conduct or alleged that he had been solicited, nor was
any evidence given that any person had noticed his solicitations except the police officers.
Appellant having been convicted under the above Act of having persistently solicited for
immoral purposes:

Held:

It was not necessary to convict the appellant to prove that the solicitation reached the mind of the
person intended to be solicited to attract his notice.
Dale v Smith [1967] 2 All ER 1133

Facts:

On the evening of 12 February 1966, the appellant, who was the deputy headmaster of a school,
spoke to two or three groups of youths at a railway station. He kept bumping into two of the
youths saying "Hello" or "Bumped into you again" and asked one of them if he would like to
look at some sexy photographs. On the following evening, the two youths were waiting at the
station and when one of them went to the public lavatory the appellant was there and said
"Hello" to him. The appellant then went to a café, looked into a window and saw a boy of about
ten years old. He went into the café, sat opposite the boy and talked to him, and showed him an
object which might have been a piece of paper or cardboard, whitish in colour. The appellant and
the boy left the case together and the three youths followed. As a result of something which the
appellant said to him, the boy left the appellant who then went into a coffee bar. One of the
youths followed him and requested him to go to the police station. At the police station the
appellant was searched and forty-five indecent photographs were found on him which he said he
had found in a lavatory at the station. On appeal against conviction of persistently importuning in
a public place for immoral purposes, contrary to s 32 of the Sexual Offences Act, 1956,

Held:

The appellant had been rightly convicted, because, apart from the undoubted invitation to the
small boy, the justices were entitled to treat the evidence of the appellant's saying "Hello" to the
youth in the public lavatory as a separate importuning, since the same word had been used the
evening before and was then followed by an importuning by asking one of the youths if he
wanted to look at some sexy photographs (see p 1136, letters d to f , post).

Appeal dismissed.

Beherendt v Burridge [1976] 3 All ER 285

Facts:

The respondent was a common prostitute. She was observed by police officers sitting on a stool
in a downstairs bay window of a house. The window was illuminated by a red light and the
respondent was dressed in a low-cut top and a mini skirt. She was in that position in order to
advertise to passers by in the street that she was a prostitute available to render the services of a
prostitute in those premises. During the time that the respondent was being observed, two men
entered the premises and one paid money for sexual intercourse. At no time, however, was the
respondent seen actively to communicate in any way with any person in the street. An
information was preferred against the respondent which charged that, being a common prostitute,
she had solicited in a street for the purposes of prostitution, contrary to s 1(1) a of the Street
Offences Act 1959. The justices, after a submission of no case to answer, dismissed the
information, holding that her conduct could not be regarded as anything more than an explicit
form of advertising and that she had not therefore been 'soliciting' within s 1(1). The prosecutor
appealed

Section 1(1) provides: 'It shall be an offence for a common prostitute to loiter or solicit in a street
or public place for the purpose of prostitution.'

Held: Although the respondent had not made any active approach to prospective clients by way
of word or gesture, her presence at the window in those circumstances was sufficient to
constitute 'soliciting' for the purposes of s 1(1) in the sense of tempting or alluring prospective
clients to come in for the purposes of prostitution. Accordingly the appeal would be allowed and
the case remitted to the justices with a direction to continue the hearing .