Zoom-CRIMINAL Law-UoL

Review Chapter 9

Non-Fatal Offences Against the Person

9.1 Crimes against autonomy

Actus reus: assault

Activity 9.1
Read Wilson, Section 11.3.A.1 ‘Assault’ and answer the following questions.
a. A points a gun at B// and threatens// to shoot B//. B, but not A, knows the gun is
not loaded.// Is there an assault?

i) A points a gun at B= n/a if just pointing; unlawful if unjustifiable; criminal if intend to

harm
ii) and threatens= criminal because intent to harm
iii) to shoot B= yes a/r of assault; making someone apprehend the threat (by an
affirmative act of voluntary wrongdoing)
iv) B, but not A, knows the gun is not loaded= no m/r of assault because B doesn’t
apprehend the threat
-assault
-a/r= making someone apprehend/know/feel the immediate threat
-m/r= D has self-aware and deliberately know that V apprehends the immediate threat
(psychic assault)
b. A points a gun at B and threatens to shoot B. A, but not B, knows the gun is
not loaded. Is there an assault?
-yes a/r of assault
-yes m/r of assault
-yes there's an assault because B apprehends the threat

Activity 9.2
Read question (b) in Activity 9.9 below. Do you understand why Adam was not
guilty of assault occasioning actual bodily harm? The answer is that Adam did
not provoke a fear of violence in Eve and so did not commit (psychic) assault.
Clearly there was no battery either.

Checked, checked, checked!

Actus reus: battery

Activity 9.3
If F had only learned about the plight of the policeman having left the car, would
his refusal to remove the car still be a continuation of the initial act of parking the
car? Would the tree surgeon, considered above, be guilty of battery on this
basis?’

Battery:
-a/r= (harmful, negative) physical force/interference applied on someone without
consent (unlawful/criminal); can be direct or indirect
-m/r= intention to make V aware of threat of that force (criminal)

Scott v Shepherd (1773) 95 ER 1124

-D threw fireworks into a crowd and blew up V's face
-firework passed many ppl before landing on V (indirect battery/indirect physical
force/interference)

F
-at first= F had a/r but no m/r
-then after= once realized (continued to have a/r) and m/r

-if F realized then removed car, then no a/r and only m/r left
-if F realized but continued to leave car where it is, doesn’t remove it, then it’s a
continuation of a/r and of course, m/r is also still there
-yes D liable (chapt 4 study guide-- causation)
-s47
========
Tree guy (T)
-at first= T had no a/r, m/r= criminal act or criminal mind of act; just doing his job
-then after= no a/r, m/r = if he’s only doing his job

= he’s not a paramedic, or doctor, if he attempts to remove tree from V, he may cause
more damage than help

but if he intentionally wanted to hurt V, and after realizing V got “stumped” literally- and
failed to remove stump to save V- then D’s liable under criminal offence

Exception
Situation I

1. D cuts tree in his backyard; private property = lawful

2. D cause tree to fall outside of his fence= wrongful act
3. tree falls on pedestrian outside his fence= wrongful act + no m/r no intention to make
tree hit pedestrian
4. D is only being careless- negligent cause harm to V; cause link, but for cause

Situation II
1.D cuts tree that belongs to the public (sidewalk, public park, clears after a storm...etc)
b/c he works for the city= no a/r, no m/r= just doing his job= lawful act, lawful intention

2. but tree falls on pedestrian= no a/r because doing his job; no m/r because no
intention to aim at pedestrian to ensure it hits someone; accidents happen

-but D owes a duty of care for public safety b/c he’s in public domain, working for the
public, changing public environment for the public good/interest- failed to ensure safe
cutting and disposing of tree while on the job=== omission, negligence (chapter 4 study
guide)

*if he had no intention to harm, and he tried everything possible to save V by calling
paramedics, keep V occupied, ensure V is alive and safe before ambulance arrives;
then he is not creating a continuation of assault+battery with the initial conduct==
he is breaking the chain of liability after knowing he was negligent

*but, if he had intention to harm and harm is (common sense) foreseen, and didn’t try
any possible way to save V while on the job and fill that duty to ensure public safety,
then of course, he is accountable; chain links continue; continuation of liability from
initial act continues

No feedback provided.

Activity 9.4
Read Wilson, Section 11.3.A.2 ‘Battery’ and answer the following question.
What was the act of assault relied upon in DPP v Santana-Bermudez (2003)? What
problem does the case create?
-Summary
Where a person, by act or word, created a danger and thereby exposed another to a
reasonably foreseeable risk of injury which materialised, there was an evidential basis
for the actus reus of an assault occasioning actual bodily harm, and it remained
necessary for the prosecution to prove an intention to assault or the appropriate
recklessness

A/r= yes- V had doubts, fear and caution of a potential threat, so she searched with
care
-Yes- assault occasioning actual bodily harm by deception act/word created risk of
danger to others
-Yes- assault: a/r -psychiatric = an action that makes a V apprehend a threat
-Need to prove-assault: m/r - self aware that V apprehends a threat from that action but
still go ahead and did it

-other definition= battery: a/r- unwelcomed direct or indirect physical force applied
without consent; immediate force
-other definition= battery: m/r- intention and recklessness to the unlawful physical force
contact

-common assault
= a/r- actual bodily harm and a cause link between that assault and that actual bodily
harm
--need to prove- m/r- Recklessness (Cunningham- subjective) of that common assault=
intend to inflict that battery/force & intend to lead V to apprehend that unwelcomed force

M/r
=self-aware of risk of danger to others if one punctures the needles in his jacket ==
prosecution need to prove this

=but the nature of his intention was to hide the needles from police search not to
specifically puncture or cause harm to police or any other police who happens to search
him that day= purpose was to succeed from the search
=didn’t assume anyone would be able to find out, nevermind puncturing himself/herself
b/c D was sure they were well hidden

-easy to view objectively for intention and risk of harm but case created problems of
proving subjective intention to actually cause == all evidences infer and point towards
the argument that D didn’t intended more than he did intend
Spratt [1990] 1 WLR 1073
s.47 OAPA 1861

9.2.1 Assault occasioning actual bodily harm

Common assault
Illustration 9.1
a. A punches B (battery), breaking B’s nose (causing actual bodily harm).
b. A, intending to throw beer at V, accidentally lets go of the glass (causing),
which hits (battery) and cuts C (actual bodily harm) (Savage [1992] 1 AC 699).
c. A makes an unwelcome advance to V, a passenger in the back of B’s car
(simple assault). V, in fear, jumps out of the car, breaking her leg (causing actual
bodily harm) (Roberts (1972) 56 Cr App R 95).

Activity 9.5
Read Wilson, Chapter 111.4.A.1 ‘Assault occasioning actual bodily harm’ and
complete the following activity.
List examples of actual bodily harm to be found in the Crown Prosecution Service
charging standards. These standards do not have the force of law but they are
influential in practice. You can use them to guide your own choice of which
crimes to charge in problem answers.

(Wilson,130--7th ed, digital)

“The Crown Prosecution Service has the overall responsibility for
instituting proceedings, assessing the weight of evidence, charging
and deciding, in the light of the evidence and the public interest,
whether the prosecution should proceed...controlled
by a Code for Crown Prosecutors.
Although official charging standards
govern the exercise of discretion, there is no necessary connection
between the offence actually committed and that charged, beyond
what is necessary to secure a conviction. Thus a person who has
committed robbery may be charged only with theft; a person who
has committed a wounding may be charged only with assault; a
person who has committed murder may be charged only with
manslaughter. Undercharging carries a number of benefits.”

Mens rea: s.47

Activity 9.6
Read Wilson, Sections 11.2 ‘Offences protecting physical integrity’ and 11.3
‘Offences protecting personal autonomy’ (is this right?) and answer the following
questions.
a. Adam and Eve are partners. One day Eve starts tickling Adam. He asks her to
stop but she refuses and so Adam jumps over the sofa and falls awkwardly,
breaking his ankle. Has Eve committed assault occasioning actual bodily harm?
i) Adam and Eve are partners = lawful (duty of care, maybe yes, maybe no)
ii) One day Eve starts tickling Adam= lawful
iii) He asks her to stop= no consent (simple assault-- unwelcome physical touching)
iv) but she refuses= unlawful & criminal (with intent knowing V feels threat/discomfort
but did it still from no consent- reckless-Cunningham)
v) and so Adam jumps over the sofa- V’s reaction is foreseeable and reasonable from
the discomfort/threat as a Victim; causing/causal chain; cause for V to jump
vi) and falls awkwardly- battery/force impose create the fall came from V’s jump & not
from D’s direct touching, but D is an indirect cause from that unconsented action as well
vii) breaking his ankle- assault occasioning bodily harm= cause chain unbroken

Has Eve committed s47

i) assault- (a/r cause V to apprehend the threat; m/r knows that V apprehends the
threat; battery unconsented direct immediate physical contact of tickling) --- Yes
ii) occasioning--- Yes. To cause; D is factual cause, legal cause, cause chain started
and unbroken; unconsented tickling caused threat, caused fear, caused V jump, caused
V break ankle== “but for” cause
iii) actual bodily harm? --- Yes. Ankle is part of V’s body. Criminal harm result is the
broken ankle
Roberts (1972) 56 Cr App R 95

b. Eve is an asthmatic. Adam, who knows this, steals her inhaler. He then
telephones her to tell her what he has done. Eve asks for its return but Adam
refuses, although he foresees that this might cause her to have a panic attack,
which in turn would precipitate an asthma attack. This is indeed what happens
and Eve is rushed to hospital. In attempting to remedy her condition an overdose
of a palliative drug is given which sends Eve into a coma. She regains
consciousness a few days later with no ill effects. What offence(s), if any, has
Adam committed?

i) Eve is an asthmatic- given, lawful; pre-existing condition (lurking is the “eggshell

skull” principle chapt 4 study guide)

ii) Adam, who knows this- D’s self-aware knowledge

iii) steals her inhaler- take property belongs to someone else and intends to keep it
and then kept it - criminal; theft- Theft Act 1968

iv He then telephones her to tell her what he has done- a/r assault- act to make V
apprehend threat; m/r - intend to let V know to purposely create fear/for V to apprehend
threat and D knows that V fears-- psychic assault
Venna [1975] 3 All ER 788
Thomas v NUM [1986] Ch 20

v) Eve asks for its return but Adam refuses- intention to keep

vi) although he foresees that this might cause her to have a panic attack, which in
turn would precipitate an asthma attack--D’s thieving cause risk of danger to V;
foreseeable, reasonable consequence; Caldwell reckless objective test; there’s a
certain amount of potential danger when D withholds inhaler -- yet, V could have had
the inhaler and still could have a panic/asthma attack no less = who is say this can’t
happen-- so, we cannot presume what V’s health will be; we can only infer and presume
that there is a risk of harm somehow if V doesn’t have the inhaler
vii)This is indeed what happens and Eve is rushed to hospital- V to hospital not
from lack of medication but from asthma attack; asthma cause Eve to go to hospital-
certainty, foreseen consequence from a pre-existing illness= her condition is
complicated to her own

viii) In attempting to remedy her condition- Docs try to prolong life not shorten it-
lawful

ix) an overdose of a palliative drug is given which sends Eve into a coma- chain
broken with D b/c V in a coma from drug trying to cure her pre-existing condition of
asthma; not because D stole her inhaler-- Rafferty

x) She regains consciousness a few days later with no ill effects- V could have
stayed ill from the overdose or recover from it, doesn’t matter- she recovered from doc’s
cure and not from the lost inhaler; she could have used the inhaler but that doesn’t
mean she could have recovered either-- again we can’t presume her what her health or
illness will do, we can only infer that D is not liable at this stage

What offence(s), if any, has Adam committed?

-Theft

-NO s47 b/c D didn’t have direct/indirect immediate force physical contact with V so it’s
not a s.47 offence: assault occasioning actual bodily harm; he had all the bad intentions
but didn’t act out on Eve for the aim of achieving those bad intentions

-may be a duty of care IF they are common-law partners living together (chapt 4 study
guide) -- D’s criminal intentions of omission- fail to care/save partner; fail to get her
medical attention/medication -- could charge D of negligence; but can also counter
argue that even if she did the medical attention, it doesn’t guarantee she’ll be saved
(Dyson)---

-but can rebut that too: why risk a chance endangering her by omitting the medication
anyway? it has the same potential harm just as much. -- (extra step, extra homework -
optional-- prove this with relevant case of asthma attacks)
-psychic assault

Hint: In question (b), Adam cannot be guilty under s.47. Do you know why? If you
do, and you understand what he may be guilty of, you are a long way down the
road to a good understanding of this area.

s.47
-assault- yes--psychic assault (m/r intent to keep inhaler not intent to cause her harm;
though D has foresight and self-aware of her pre-existing condition)

-occasioning- no-- asthma caused her to go to hospital; caused her to have overdose
to cure & recover
-actual- no
-bodily-no
-harm-yes, no
--------------
Other Possible charges under s20, s18

s20
-inflict --yes, cause (though not active wounding)--psychic wounding; psychiatric
injury-- fear panic
-bodily-- yes V’s body into panic and asthma attack-- asthma loss of breathing, could
result in death, very serious
-injury-- yes, psychiatric injury
-w/wo-- w/o
-a weapon-- no
Occasionally, a section 20 charge was successful although no
assault could be established. For example, in it was held that a
person who, as a practical joke, had barred the doors and turned the
lights out towards the end of a theatre performance, causing people
to panic and injure themselves, could be guilty of section 20
(Martin). There was no suggestion of either type of assault
here

9.2.2 Malicious wounding/infliction of grievous bodily harm

Actus reus: s.20

Illustration 9.2
a. D, wanting to seriously hurt V, takes a carving knife and thrusts it towards V’s
abdomen. V sidesteps and the knife catches him on the arm, causing significant
bleeding.

i) D, wanting to seriously hurt V--m/r intent to hurt; malice; reckless

ii) takes a carving knife- a/r - for criminal wrongdoing; a weapon
iii) and thrusts it towards V’s abdomen- a/r active conduct indirect and immediate
battery; knife flying has force that hits V, not directly from D’s cutting into V; causation
chain; risk of danger and risk of harm
iv) V sidesteps and the knife catches him on the arm- cuts, actual harm
v) causing significant bleeding- wounding; continuous heavy bleeding from wound
s.20
-inflict- yes
-bodily- arm
-injury- yes
-w/wo- with
-a weapon-yes, knife

A/r= inflict/cause harm with force, battery, direct and immediate battery- unwelcome
physical contact without consent
M/r= malicious/intent to cause that force/ result in wounding
Wounding= cut into dermis and epidermis causing continuous bleeding
Waltham
b. D smashes V over the head with an iron bar. This causes a fracture to V’s skull.
-Malicious infliction of GBH
-with intent to cause GBH; infliction and cause are the same Salisbury

Activity 9.7
Return to Chapter 4 of this module guide and remind yourself of the principles
governing causation. In particular, you must remember how not all ‘but for’
causes of a harm are the legal causes. Then answer the following question.

Jaz and Deepak attack Ali when he calls them names at a football match. Jaz hits
the first blow which causes Ali to fall down. Jaz then loses interest and returns to
watching the game. Meanwhile Deepak kicks Ali several times, causing him to
suffer a ruptured spleen. Has Ali’s (serious) injury been caused by both Jaz and
Deepak or only by Deepak?

i) Jaz and Deepak attack Ali- cause chain starts common assault/battery; s47, s20,
s18 OAPA 1861

ii) when he calls them names at a football match- not criminal, not illegal

iii) Jaz hits the first blow- a/r battery: hitting; m/r: deliberate blow; physical assault;
cause chain begins
iv) which causes Ali to fall down- Ali falls from force of the blow (falls indirectly from
Jaz’s hand)- BUT for cause; Jaz intent to harm; inflict/cause harm= Jaz is the factual &
legal cause

v) Jaz then loses interest- changes mind, doesn’t want to continue; intent to stop

vi) and returns to watching the game- stop the hitting ------- Rafferty (for D); or
Maybin (against D); Smith principle

vii Meanwhile Deepak kicks Ali - criminal with intent to harm; inflict/cause harm; new
cause chain starts; intervention 3rd party

viii) several times- purpose/deliberate intent to harm; ensure V is harmed and knowing
V will be harmed if he continues but he chose to continue -- closed mind- Cunningham
reckless (subjective m/r); Caldwell reckless (objective m/r)

ix) causing him to suffer- cause chain continued unbroken for Deepak; operative &
legal cause; (though continuation of BUT for causes from earlier with Jaz)

x) a ruptured spleen- (beyond wounding cut of dermis & epidermis; beyond assault
occasioning bodily harm s47; beyond inflicting bodily injury with/without a weapon s20
as in malicious wounding and malicious infliction GBH)

this is
s18 OAPA 1861
=this is GBH

1=direct intent to hit

2=direct intent to hit to cause wounding
3=direct intent to hit to cause wounding to cause GBH -- Purcell, Belfon (on top of
Woollin direction)

[*note: charge of causing grievous bodily harm with

intent, is sufficient mens rea for murder as well]

Has Ali’s (serious) injury been caused by both Jaz and Deepak or only by
Deepak?

-Both Jaz and Deepak liable = Maybin + s20, s18

-only Deepak liable = Rafferty + s18 intent infliction GBH

Smith principle

-only Jaz liable= s20 malicious infliction of GBH

Mens rea: s.18

Activity 9.8
Read Wilson, Section 11.2.A.2 ‘Mens rea’, Section (b) ‘Maliciously’ and then
answer the following question.
Is D guilty of the s.18 offence in the following two illustrations?

a. P, a police officer, is chasing D for the purpose of arresting her. While crossing
a road, P grabs hold of D. D pushes P away, causing P to fall over. He is hit and
seriously injured by a passing car.

i) P, a police officer- lawful duty

ii) is chasing D for the purpose of arresting her- lawful duty
iii) While crossing a road, P grabs hold of D- lawful duty
iv) D pushes P away- D -criminal act a/r resist arrest, m/r intend to resist arrest- s18
OAPA 1861; s89 Police Act 1996
v) causing P to fall over- indirect causation; P fall from force of push (not directly from
D’s hands literally attached to P while P descends to the ground--- but bc of D, P falls--
so D is in the unbroken chain of cause)
vi) P is hit and seriously injured by a passing car- GBH (serious wounding) - s20
OAPA 1861 for inflicting malicious GBH; because intended to escape arrest and not
directly intended to cause GBH so cannot use s18; though P’s fall is the end product of
D resisting arrest
-D is liable for being the cause and cause chain
-yet, if D purposely pushed P into the oncoming car instead of randomly pushing to
escape, then it’s definitely a deliberate m/r intention to cause GBH, then use s18
b. As above, except that D does not push P, who trips over before being hit by the
car.
i) P trips-- can be because of D as in BUT for cause; or can be P’s own fault (doubts,
not beyond a reasonable doubt)

ii) P gets hit by the passing car-- serious injury, serious wounding; GBH

-if D is the BUT for cause to P falling though D didn’t push = then it’s still s18 because D
resisting arrest

-if P tell on his own (he had bad shoes, bad legs, or was careless of his own feet)= no
a/r & no m/r intention on D so no charge for D if P’s own fault for the fall

Activity 9.9
a. Read Wilson, Section 6.6.B ‘Intention in the criminal law: intention, purpose
and motive’ and 6.6.C ‘The meaning of intention in the criminal law’. Then create
an examination-style question in which a Woollin direction would be necessary in
a case of causing GBH with intent.
b. Read Wilson, Section 11.2 ‘Offences protecting physical integrity’ and answer
the following questions
i. Identify two similarities and two differences between s.18 and s.20.
similarities
-both contain a form of a/r GBH infliction determined by m/r
-both include psychological harm/GBH as well as physical harm
differences
-s20 7 yrs, s18 life
-s20 has malicious wounding and malicious infliction of GBH (basically injury on a lower
level); s18 has direct GBH (harm on the extreme level; pain and disability highest level)

ii. Identify two similarities and two differences between s.20 and s.47.

similarities
-both require force or battery imposed on one to cause harm (direct, indirect and
immediate force)
-both include to the body in some ways

differences
-s47 5yrs, s20 7 yrs
-s 47 assault occasioning bodily harm; s20 infliction of bodily injury w/wo a weapon
 Activity 9.10
If Richardson had never been a qualified dentist, but was a charlatan, would this
have vitiated V’s consent?

i) If Richardson had never been -zero chances someone/something happening before

this

ii) a qualified -recognized official professional and licensed to practice; compliance

mandatory in certain jurisdiction

iii) dentist- dentistry; dental medicine and oral medicine doctor and practioner

iii) but was a charlatan- someone opposite from a qualified person (see ii)

iv) would this have vitiated V’s consent?

-nope; consent is approved for both a qualified and a common man only if the
nature/purpose of the act V gave consent for is relevant and not criminal

(once a professional or common person violates that trust of consent AND got
discovered for that--- then doesn’t matter who he /she is= criminally liable no different)

eg:
-Richardson: consent for teeth checkup only; b/c dentist’s licensing issue was not up for
debate so we can’t say whether V consented to the licensing issues or not; V could
have been ok if V had known or V could have not…. we don’t know; we don’t care; court
can’t assume\presume== so best to rely on the concept of “nature/purpose of the act” --
less complicated to judge the case

-therefore, on appeal, Richardson won b/c V consented to the NATURE/PURPOSE of

dental service only (V not knowing the underlying faults of Richardson...well it’s
unfortunate) --

consent basis paraphrased:

-s74 SOA 2003 (agrees by choice and full capacity of consent and freedom to consent)
-s76 2a SOA 2003 (consent to nature or purpose ..etc…)

*note in mind:
-the only issue here is Richardson failed to disclose such info. -- this would be a
different charge on the possible basis that a doc omit (duty to patient/public) to
disclose licensing malpractice is a danger to public safety= that’s why society has
licensing standards, organizations...etc that are “watchdogs” to proper professional
practice in the first place or else no one would care about licensing. that is a different
crime unrelated to the current case about consent

Consent and violence

Illustration 9.3
a. Alan has an informal boxing match with his friend, Brenda. In the course of the
match Alan and Brenda land several blows to the body. These do not result in any
significant harm.

i) Alan has an informal- non-regulated, unstructured, unrecognized, unofficial; casual

ii) boxing match with his friend, Brenda- illegitimate contact game but with mutual
implicit consent between friends == categorized as “horseplay”
by Wilson-
“valid consent can be given
to dangerous risk-taking is what has been termed ‘horseplay’”
“Rough
horseplay and dangerous exhibitions such as knife-throwing and
trapeze work may be consented to, despite the dangers they involve.
No obvious public benefit is effected by such activities but a free
society would surely be diminished by their criminalisation...Consent is generally implied
with respect not only to those
contacts which are lawful within the rules of game but also to those
illegitimate contacts” (Wilson, 831/1632 7th ed digital)

iii) In the course of the match Alan and Brenda land several blows- implicit consent
with prior common sense knowledge this ‘horseplay’ contains; as long as consent is for
this fun ‘horseplay’ and not for something else
iv) to the body- yes, reasonable knowledge of this fact with implied consent
v) These do not result in any - “in any” --- not with others, this or that; none
vi) significant- serious, extreme, substantive
vii) harm- damage
Barnes -- consent context (Wilson, 831)

b. Stephen and Richard have an informal boxing match. In the course of the
match Stephen and Richard land several blows to the body and the face. Stephen
suffers a broken nose and cuts and bruises as a result.
-same as a)
-offence if no consent and harm is intentional/harm on purpose-- inflicting GBH-s20

Activity 9.11
Read Wilson, Sections 2.2.B.2 ‘Liberal objections to the enforcement of morality’
and 2.2.B.3
‘Is there a meaningful difference between legislating to enforce morality and
legislating to prevent harm?’

Morality- this context means = personal values

Harm- means damage either physical and/or mental
Legislating to enforce morality AND prevent harm makes sense b/c if allow certain
damaging behaviour to pass base on “morality” then ---human nature by default--- has a
potential to abuse the freedom of exercising “personal values.” Such abuse may
exceed what is both ironically “morally” and legally acceptable.

In Brown, sado-masochistic sexual activity between

consenting males is wrong b/c if allowed, society will soon interpret that “it’s ok” to hurt
someone else with consensual torture AND non-consensual torture. To draw a clear
line at an early stage of, “no, this is not ok!” will prevent the abuse of this “moral
freedom;” especially to prevent future non-consensual victims from this abuse. This is a
reasonable prevention of future distant harm before they can happen.

On the basis of the arguments presented there do you agree with their Lordships’
decision in Brown?
sure.

No feedback provided.

Activity 9.12
Read Wilson 11.4.A.3.

On the basis of what you read there do you agree with the decision in R v BM?
Yes and no

Do you think a similar approach should be taken in relation to full facial tattoos?
Yes --b/c if explicitly and implicitly implied consent given- signing waiver prior to service;
allow business to open base on body art mission; sanitation pass; health and safety
licensing
-like ‘horseplay’ it’s a private matter of the client; one at age of consent & willing without
duress== so should be allowed at free will

No-- b/c extreme body deviation; hurtful practices of drilling holes, splitting tongues,
piercing force, cutting into flesh with serious/grievous damage to skin, muscle tissues
or malpractice may cause infection and spread diseases

-requires regulation and threshold limit certain services and not allow all extreme body
art conducts
-not a matter of judgement and/or discrimination but a matter of health and safety to
society

Activity 9.13
Read Wilson, Section 11.4.A.3 ‘What can be consented to?’ and answer the
following questions.
a. Is it possible to reconcile the decision in Slingsby with that in Emmett and
Brown?
Yes if consent is like in horseplay- if there is a limit potential of serious harm that may or
may not lead to death, illness or disability; common sense= everything needs balance
and moderation. Sexual activity is no different. ESPECIALLY sexual activities= chance
of disease transmission, infection, injury; physical and mental fragility is high
b. Is it possible to reconcile the decision in Konzani with that in Emmett and
Brown?
Konzani was a case of dishonesty; concealment of HIV knowingly, recklessly
transmitting diseases to 3 partners; argued against s20 OAPA 1861- inflict GBH- basis
that D truly believed Vs consented but in fact 3 Vs didn’t know D had HIV so couldn’t,
and didn’t consent in any shape or way. D was only imagining Vs’ consent.
Brown & Emmett consented to the sexual activities (nature/purpose of having sex);
whatever happens during and escalates after sex is dependent on both parties’
approval. It was not a dishonesty, surprise or concealment of intention. So both cannot
reconcile with Konzani b/c these are different cases by different consent standards.
Konzani didn’t give Vs the choice to choose yet Brown & Emmett did (though illegal
conducts, but Vs had some choice to act)
c. Read the case of Aitken (1992). Do you think this case was rightly decided?

20 Inflicting bodily injury, with or without weapon

Whosoever shall unlawfully and maliciously wound or inflict any grievous

bodily harm upon any other person, either with or without any weapon or

instrument, shall be guilty of a misdemeanor, and being convicted thereof

shall be liable < . . . > to be kept in penal servitude . . . [shall be guilty of an

offence and liable, on conviction on indictment, to imprisonment for a term not

exceeding 7 years].

Held , (1) that since section 20 of the Offences against the Person Act 1861 was not an offence of
specific intent the effect of intoxication was no defence to the forming of the intent necessary for the
commission of the offence; and that, therefore, the judge advocate had correctly directed the court
that the appellants would have acted maliciously if they had foreseen that their intentional act of
setting fire to the suit would result

[1992] 1 WLR 1006 at 1007

in injury to G. or would have foreseen injury but for the drink they had consumed (post, pp. 1016E–G,
1017A).
--This means: similar to “Woollin direction” -- requires D to have self-awareness of harm in advanced;
if D knew the damage prior but still intend on purpose to do the wrongful act, then D is reckless
(foresight; harm happening for sure); if not, then D didn’t do on purpose.
-in this case, Ds didn’t think/see the potential damage happening by Ds’ act at that moment
(foresight) and b/c intoxication is not a defence; so Ds honestly believed they had no intention or
purpose to create harm of the moment or harm of the future

(2) Allowing the appeals, that since G. had taken part in the horseplay and other activities during the
evening, it was possible that G.'s continued presence was an acceptance by him that such an activity
might be perpetrated on him and an indication that he consented to such an action; that since the
appellants had not intended to injure G., it was arguable both that the pouring of a large quantity of
white spirit over him was accidental and that the appellants had genuinely believed, whether
reasonably or not, that G. had consented; and that, accordingly, the judge advocate's direction on
unlawfully causing injury was defective in excluding those matters and, in the circumstances, the
convictions would be quashed (post, p. 1020A–C, F–H).

--this means: b/c V was playing around from the start; Ds honestly believed that V was still playing
during the burning stage up to the end
-Ds saw that V consented; that all were mutual and approved of the act
-b/c the situational and oral evidences suggested that V consented (viewed by Ds as implied) -- the
court using the word “unlawful” is incorrect -- unlawful means = unreasonable and unjustifiable
reasons to a wrongful act
-b/c Ds see V consenting, therefore consent is reasonable and they have all reasons to believe the
“implied consent” (though of course V disagreed hence the charge); so using the word “unlawful” in
this context is incorrect
-unlawful is wrong where there is “reasonable consent” and prove of “reasonable belief of consent;” so
appeal is allowed and first conviction is squashed

The court's decision

For the reasons already stated this court considers that the judge advocate failed to give a proper
direction to the court as to the meaning of the word “unlawfully” as it appears in section 20 of the
Offences against the Person Act 1861. Had he given such direction we consider that it would have
been open to the court, in the light of all the evidence, to reach a verdict in favour of the appellants.
For these reasons we are of the view that the conviction in regard to each of these appellants must be
regarded as unsafe and unsatisfactory. For that reason we order that each conviction be quashed.
Appeals allowed.

-I don’t think it’s rightly decided. 1992 is different from 2003 when the structured definition of consent
published in SOA 2003

-doesn’t matter what Ds believed; b/c by default no one will say himself as truly believing a V doesn’t
consent; of course they will say that to displace liability== using consent on the basis of subjective
view is inappropriate, unrealistic and unreasonable
-consent needs to be from an objective view: from reasonable external views and especially from the
V himself; no means no; not “maybe;” not “wait a few minutes’” not “we think you said no but we’ll
keep doing it until something unfortunate happens then we’ll take you seriously b/c what we feel
about consent is more important than your say about consent.”

-the conviction was reasonable; the squash of conviction was “unlawful” in itself ironically arguing the
point of “unlawfulness”

d. The Law Commission published a consultation paper entitled Consent and

Offences against the Person in 1994. In it the suggestion is made that individuals
should have the right to consent to any non-serious injury. Do you agree with
this?
-one should have consent to everything, minor and major; non-serious and serious
injuries; otherwise it’s an infringement on autonomy

-waiting until after the fact; until after injury occurs defeats the purpose of prevention

e. Do you think consent should be a defence to harm caused while boxing, where
the purpose of the competition is to cause harm, possibly life-threatening harm,
to the other?
-yes absolutely; an explicit structure of rules of the game and a consent waiver is
mandatory
-it shouldn’t even be a defence b/c it is approved by all participating parties; driven by
fame and monetary rewards to participate; a voluntary act and intent for the purpose
and nature of the activity
-risks with rewards, no matter how harmful are voluntary supported
f. Can the exception in the case of boxing be reconciled with the absence of an
exception in the case of sado-masochistic sexual relations between consenting
adults?
 i) Can the exception in the case of boxing- excluding the case of consented,
structured rules, voluntary, aware, known, implied and explicit approval from all
participants

ii) be reconciled- be agreed, to resolve to

iii) with the absence of an exception- missing in the the consented, structured rules,
voluntary, aware, known, implied and explicit approval from all participants

iv) in the case of sado-masochistic sexual relations between- in case of physical

torture during sex
v) consenting adults? - with adults at legal age giving approval

-translation- this means:

=boxing is full of consent so can torture during sex activity between consenting adults
be on the same level as boxing?

=Yes: if all parties sign a waiver before sex; even husband and wife - a literal approach
-spell out and have a structure rule guide outlining all details and signed with witnesses

-though not legally supported but if specifically about consent, then this is a good
measure of consent to avoid future litigation and misunderstandings (make consent
explicit if want to be on same level as boxing; make everything the same as boxing, no
matter how ridiculous may sound)

If not, should they both be criminal or neither?

=boxing is sport that brings both economical benefits (money) and public interest
(entertainment; release of pending stress/violent “cavemen” characteristics; instead of
going to war, use such bloody sports to release pressure of intrinsic biological and
psychological needs to release such natural harmful stress)

=if make boxing criminal, a loss of revenue and entertainment - society needs both
=society needs sex as well
=should not be criminal but criminally liable base on legal consent

Am I ready to move on?

Are you ready to move on to the next chapter? You are if – without referring to the
module guide or Wilson – you can answer the following questions.
1. State the s.18 OAPA 1861 offence.
-18 Shooting or attempting to shoot, or wounding, with
intent to do grievous bodily harm, or to resist
apprehension
Whosoever shall unlawfully and maliciously by any means whatsoever wound

or cause any grievous bodily harm to any person . . . with intent . . . to do

some . . . grievous bodily harm to any person, or with intent to resist or

prevent the lawful apprehension or detainer of any person, shall be guilty of

felony, and being convicted thereof shall be liable, . . . to be kept in penal

servitude for life . . .

2. State the s.20 OAPA 1861 offence.

20 Inflicting bodily injury, with or without weapon

Whosoever shall unlawfully and maliciously wound or inflict any grievous

bodily harm upon any other person, either with or without any weapon or

instrument, shall be guilty of a misdemeanor, and being convicted thereof

shall be liable < . . . > to be kept in penal servitude . . . [shall be guilty of an

offence and liable, on conviction on indictment, to imprisonment for a term not

exceeding 7 years].

3. State the s.47 OAPA 1861 offence.

47 Assault occasioning bodily harm—Common assault

Whosoever shall be convicted upon an indictment of any assault occasioning

actual bodily harm shall be liable < . . . > to be kept in penal servitude [to

imprisonment for a term not exceeding 7 years] . . . ; . . .

4. Explain what actual bodily harm means and comprises.

-physical hurt, injury, psychiatric injury
Chanfook
-interference with body comfort

5. Explain what grievous bodily harm means and comprises.

-Grievous: serious, extreme
-Bodily: Physical body (psychic)
-Harm: discomfort, interruption function in body
-broken bone, disfigurement, fracture skull, impairment to life, finance, permanent, STD,
COVID

6. Explain the points of difference and the points of overlap between s.18, s.20 and
s.47 OAPA 1861.
points of similarities
-harm, injury, direct & indirect force, imprisonment,
-s18, s20: GBH-- levels varies--- weapons
-47 & 20-- 5yrs

7. Explain what the mens rea is for s.47 OAPA 1861.

-m/r: common assault; intention to create unwelcome contact, physical and psychic
assault; make V belief there’s threat/aware of threat

8. Explain what the mens rea is for s.20 OAPA 1861.

-m/r: intention; reckless; malice inflict bodily injury w/w/o weapon
parmenter 1991

Approving mowatt

9. Define common assault (both forms), ensuring you are word perfect.
-Physical common assault: battery and assault; immediate/not; a/r above; mr/ above
-Psychic common assault: a/r: in Venna, D makes V apprehend the criminal act; m/r: V
feels and aware of threat; Parmenter , Savage

10. Explain the difference between assault and battery and how one can be
committed without the other.
Assault: a/r & m/r above
Battery: force, direct or indirect : DPP v K (A Minor) (1990) 91 Cr App R 23;
unwanted, unconsented physical contact: kiss or hug; “assault by beating”
-assault threat or
-physical battery
-vice versa: hit from behind battery but no threat no assault

11. Explain what the immediacy requirement in (psychic) assault means in practice.
-Ireland not immediate (over 3 months)
-Smith (mine workers picket)
-Constanza (letters)
12. Explain when consent can be vitiated by fraud.
-If ppl don't understand or do not have capacity to consent
-Burrell- tattooing of 12/13 yr olds
-Fraud and consent- only vitiated if the nature of fraud
-Consent is vitiated only if the nature of the fraud prevented the victim from understanding what they
were consenting to
& Richardson....consent not fully vitiated by the fact not fully informed
-Tabasum-- doctor to breast exam-- sex assault== fraud into assault- no consent

13. Explain the legal position governing consent in respect of common assault.
-legality of common assault- under consent:
-eg: battery: no consent to physical touch of any kind
14. Explain the legal position governing consent with regard to crimes of violence.
--horseplay, sports: consent regulation- all parties aware of risk and harm of activities
-consent to certain health; beneficial
-no one consents to violence