R v G (2002)

English Criminal Law

R v G and R
‘Racing with Fire’ by Andrea Banjac

Reckless culpability and the innocence of youth cross swords in a case that both rewrote the powers of legislation and allowed subjective reasoning to prevail, when two young boys aged eleven and twelve spent the night outside before playing in the rear storage yard of a Co-operative store.

What began as tomfoolery with matches and newspaper, wound up as criminal damage and arson totalling over £1m in damages, however with equal consideration of English criminal law and precedent relating to the facts, it also became a matter destined to reach the House of Lords.

Having decided to camp out underneath the stars, the two appellants trespassed into the refuse area of the store and began reading discarded newspapers, after which they set alight to a bundle of newspapers before placing them beneath a large plastic dustbin. Without staying to watch the flames extinguish, the defendants later left the yard and presumably returned home. 

Unfortunately as is the nature of fire, the flames ignited the bin, which subsequently ignited the adjacent bin until the fire spread to the roof and beyond, and so when first heard at trial the judge rightly relied upon the exacting terms of s.1(1) of the Criminal Damage Act 1971, which reads that:

“A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an off­ence.”

While the term ‘reckless’ remains subjectively difficult to ascertain, the application of this measure failed to discriminate between the range of comprehension created through age, disability, or intelligence. This absence of evaluation forced the jury to determine the boys’ guilt on the objective reasoning of an adult, as established in R v Caldwell and earlier in R v Cunningham (albeit a case more reliant upon maliciousness than ignorance).

In Caldwell the defendant had been intoxicated prior to choosing to set fire to his employer’s hotel, thereby putting the guests and staff in great danger while noting that he had paid little mind to the consequences when starting the fire, while it was this case that led to an objective reasoning test that whilst applicable to most mature adults, offered little consideration for children or vulnerable adults in similar circumstances.

Having deliberated on the certainty of a fair conviction, the judge and jury were left finding guilt, although not without concern for the limitations of the  1971 Act, and so with their challenge dismissed by the Court of Appeal, the appellants were granted leave to present to the House of Lords, where greater attention was placed upon the disparity of the Criminal Law Act 2003 and art.40(1) of the European Convention on Human Rights (Public hearings and access to documents), which expressed that:

“States parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.”

It was then with appreciation of the narrowness that recklessness previously enjoyed, that the House examined the relevance of continuing to broaden the scope of reckless behaviour, so as to avoid the need for deliberate and considered forethought to the mindset of those accused.

Upon revisitation of the case history preceding the Criminal Damage Act 1971, it became clear that overlooking the objective test had prevented fair and reasoned judgment, and that this particular case was the perfect vehicle upon which to amend that error, thus  the House (by majority) declared the boys’ innocence and upheld the appeal, while clarifying that:

“[I]f the law is to operate with the concept of recklessness, then it may properly treat as reckless the man who acts without even troubling to give his mind to a risk that would have been obvious to him if he had thought about it.”

Ivey v Genting Casinos UK Ltd (2016)

English Criminal Law

Ivey v Genting Casinos
‘The Card Players’ by Paul Cézanne

In a case that was to result in a reduction of the Ghosh two-step dishonesty test, a professional card player is left with no choice but to pursue his winnings in the courts when the gaming establishment liable for the payout, cries foul on the pretence of cheating, which itself proves a concept that continues to elude judicial narrowness due to its mutable interpretation and seemingly countless applications.

Having established himself as reputable ‘advantage’ poker player in his home country of the United States, the appellant had spent a considerable number of hours playing Punto Banco at the respondents gambling house in Mayfair London, when at the point of his retirement, he had amassed winnings in excess of £7.7m, after which the respondents refused to release the funds on the premise that when playing against the house, the appellant had resorted to a number of techniques that were considered violative of the rules of play.

With no option other than to litigate, the appellant appeared before the Court of the Queen’s Bench, claiming recovery of his winnings while the respondents held that in short, the appellant had ‘cheated’ under s.42 of the Gambling Act 2005, which reads in part that:

“(1) A person commits an offence if he (b) cheats at gambling….”

While the Act also notes that:

(3) Without prejudice to the generality of subsection (1) cheating at gambling may, in particular, consist of actual or attempted deception or interference in connection with (a) the process by which gambling is conducted….”

In the first instance, the court noted that there was uncertainty as to whether the element of dishonesty was applicable to a claim of cheating, or if by definition, the act itself denoted dishonest intent, regardless of objective or subjective jury opinion, all of which left the court unable to determine if s.42 had in fact been breached, and so instead concluded that such claims would be best remedied in a civil court, thus the claim was dismissed, while the court held that:

“What precisely is condemned as cheating by section 42 of the 2005 Act and what must be proved to make out the offence is not, in my view, clear and it would be unwise if it is unnecessary, as it is, for me to attempt to determine what that might be.”

Whereupon the appellant pursued his claim in the Court of Appeal, who conversely held by a majority that the Ghosh test had no place in a cheating scenario, and was thus inapplicable to s.42 of the 2005 Act, although it was held by Lady Justice Arden that:

“[A] person may be liable to a criminal penalty for cheating if he deliberately interferes with the process of a game so that the game is then played to his or another’s advantage in a way which was never intended by the participants.”

And so when presented to the Supreme Court, the appellant continued his line of argument, while the court attempted to establish if dishonesty as defined by Ghosh, was to become an integral part of cheating under the 2005 Act, and if so, whether the appellant was guilty, and thereby liable for sentencing.

For clarity, the Ghosh test for dishonesty was based on the principle that:

“It is no defence for a man to say “I knew that what I was doing is generally regarded as dishonest; but I do not regard it as dishonest myself. Therefore I am not guilty.” What he is however entitled to say is “I did not know that anybody would regard what I was doing as dishonest.””

Thus having provided a thorough examination of the case itself, along with the mottled history behind the Ghosh test, the court took the liberty of simplifying the dishonesty test through the removal of the subjective element, and so while finding the appellant liable for cheating through his manipulation of the croupier, the court dismissed the appeal, while revising their standing on dishonesty by holding that:

“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”

R v Adomako (1994)

English Criminal Law

R v Adomako
‘The First Operation with Ether’ by Robert Cutler Hinckley

The difference between criminal negligence and manslaughter is discussed in a case that showcased the immense vulnerability with which we place our care, and therefore our lives, in the hands of medical professionals on any given day.

Having been summoned to serve as a locum anaesthetist at Mayday Hospital, London, during a routine eye operation, the appellant was alerted by an alarm on the Dinamap machine, whereupon he immediately administered two intravenous doses of atropine on the assumption that the patient was having what he thought was an ocular cardia reflex, even though the actual cause of the alarm had resulted from a disconnection of the endotracheal tube providing oxygen to the patient, some four and a half minutes earlier.

In fact, it wasn’t until the appellant noticed how the patient had begun to turn blue, that he attempted to perform cardiopulmonary resuscitation (CPR), which proved ultimately futile when the patient then suffered a cardiac arrest and died, all of which resulted in the appellant appearing before the Central Criminal Court on charges of manslaughter, wherein the jury found him guilty.

Having challenged the judgment in the Court of Appeals, the appellant argued that while a failure to notice the disconnection was short of the duty of care prescribed him, his actions following his discovery were reasonable given the circumstances, and that the court ought to have found him culpable only of misdiagnosis and not criminal negligence, or even manslaughter as convicted.

However with consideration of the proportional trial direction, the court explained that when attempting to determine involuntary manslaughter, a jury must first establish (i) the existence of a duty, (ii) a breach of that duty that amounts to a death, and (iii) negligence sufficient enough to warrant a criminal conviction, and so having deliberated upon the facts presented, the court held that:

“It was in our view clearly open to the jury to conclude that the appellant’s failure to perform his essential and in effect sole duty to see that his patient was breathing satisfactorily and to cope with the breathing emergency which should have been obvious to him, justified a verdict of guilty. They were entitled to conclude his failure was more than mere inadvertence and constituted gross negligence of the degree necessary for manslaughter.”

Whereupon the appellant’s case was presented to the House of Lords on the question as to whether in cases of manslaughter the jury ought to be guided by the test first used in R v Lawrence and now commonly applied in motor vehicle related deaths, or by those principles used in the trial court.

Here the House first turned to R v Bateman, in which the Court of Appeal had held that:

“[I]n order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment.”

 While the House noted that in Andrews v Director of Public Prosecutions it had similarly held that:

“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.”

However in Lawrence the test for recklessness was reliant upon the fact:

(i) “[T]hat the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property…”

And:

(ii) “[T]hat in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved, had nonetheless gone on to take it.”

Thus the House held that when ascertaining liability for manslaughter, the courts ought only to rely upon the  Bateman and Andrews tests in order to simplify their application and assist a jury, although should the judge feel so compelled, he might also consider the Lawrence test where wholly applicable, upon which the court dismissed the appeal in full, while holding that:

“To make it obligatory on trial judges to give directions in law which are so elaborate that the ordinary member of the jury will have great difficulty in following them, and even greater difficulty in retaining them in his memory for the purpose of application in the jury room, is no service to the cause of justice.” 

 

R v Haigh (2010)

English Criminal Law

R v Haigh
‘Woman with Dead Child’ by Käthe Kollwitz

As is peculiar to criminal law in most jurisdictions, the necessary component for murder requires evidence beyond a reasonable doubt of the both the act itself (actus reus), and the subjective intention (mens rea) of those accused, and so on this occasion the English criminal courts were left with no option other than to reduce a murder sentence to manslaughter, on grounds that there was simply insufficient evidence to adduce deliberate and unlawful killing, as opposed to what could only be construed as a momentary loss of control on the part of the defendant.

Having been born to unloving and thus dysfunctional parents, the appellant had been later adopted by a well educated and devoted couple when aged only eight years of age, and whose only wish was for her to have a better life than the one she had left behind. Sadly during her adolescence, the appellant was further diagnosed with an IQ of just 74, a personality disorder, attention deficit and hyperactivity disorder (ADHD) and prolonged depression, for which she was on prescribed medication.

After meeting her former partner at the young age of sixteen, the appellant soon became pregnant, and gave birth to their son Billy two years later, and although the two of them remained together for a further three years, her partner was eventually incarcerated for assaulting her; an act which had followed years of his routine verbal and physical abuse towards her both before, and after, their son’s arrival.

At the point of her indictment before the Central Criminal Court, the appellant was reported to have called the ambulance services complaining that her son had stopped breathing, and yet despite clear instructions to perform emergency cardiopulmonary resuscitation (CPR) at the time of the call, her son was pronounced dead almost five hours later; after which it was claimed by court that the appellant had murdered her son by way of asphyxiation, and that there was sufficient medical evidence upon which to sustain the conviction; whereupon the appellant challenged the verdict in the Court of Appeals.

Here, the appellant contended that when reaching summary judgment, the trial court had erroneously accepted circumstantial evidence relating to previous interactions with her son, and which presented her in a poor light, however the court referred to R v Penman, in which the deciding court had held that:

“[W]here it is necessary to place before the jury evidence of part of a continual background of history relevant to the offence charged in the indictment and without the totality of which the account placed before the jury would be incomplete or incomprehensible, then the fact that the whole account involves including evidence establishing the commission of an offence with which the accused is not charged is not of itself a ground for excluding the evidence.”

Thus the first aspect of her appeal was denied, while on a second count, the appellant claimed that lack of witness testimony, and only one physical symptom of trauma, prevented the court from establishing beyond a reasonable doubt that she had intended to murder, or at the very least unlawfully kill her son in the moments before his death.

Here the court was reliant upon the presence of petechial haemorrhaging upon her child’s face, which in most instances was attributable to asphyxial death. However, there was also theoretical argument that prolonged resuscitation could also prove a contributory factor; yet further circumstantial evidence proposed this as incredible, based upon the appellant’s refusal to perform CPR whilst waiting for the ambulance crew to arrive, and via witness testimony citing visible evidence of the symptoms upon their arrival.

In addition to this, there was further evidence of bleeding from the child’s ears, which according to expert medical testimony, had often been found present when addressing traumatic asphyxiation cases in which young children had become trapped in washing lines, a  fact which only exacerbated the suggestion that the appellant had either strangled or smothered her son whilst alone with him, therefore the court held that there was sufficient evidence for a jury to determine that the appellant had unlawfully killed her child.

This left only the third count, which was that a murder conviction was unsafe due to the first two factors, and that there was simply no direct evidence to support the contention that the appellant had wilfully and with malice, killed her child, but that instead, the best the court could hope to rely upon was a manslaughter charge; an argument that caused the court to uphold the third ground of appeal before quashing the murder conviction on grounds that in R v Stacey it had held that:

“[A]n intent to do serious bodily harm may be quickly formed and soon regretted; but so may a less serious intent, simply to stop a child crying by handling him in a way that any responsible adult would realise would cause serious damage or certainly might do so. That would only provide the mental element necessary for manslaughter.”

R v M’Naghten (1843)

English Criminal Law

R v M'Naghten
‘Dance at Insane Asylum’ by George Wesley Bellows

Jury instruction for the defence of insanity dates back as far as the common law of England, however in 1843 the time had arrived for a revision and clarification of what qualified as insanity, and how best to grant the jurors scope to reach a credible conclusion, as was shown in this now landmark case.

In January of that year, Daniel M’Naghten was indicted before the Middlesex Central Criminal Court on grounds that he had wilfully and with malice aforethought, murdered another man when shooting him in the back with a pistol.

During the trial, medical evidence presented was such that suggested a man was of unsound mind when afflicted with morbid delusions capable of rendering him unable to determine right from wrong at the time his act was committed, to which the defendant claimed such weakness as a defence.

When instructing the jury in The Queen v M’Naghten, Tindal LJ expressed that:

“The question to be determined is, whether at the time the act in question was committed, the prisoner had or had not the use of his understanding, so as to know that he was doing a wrong or wicked act. If the jurors should be of opinion that the prisoner was not sensible, at the time he committed it, that he was violating the laws both of God and man, then he would be entitled to a verdict in his favour: but if, on the contrary, they were of opinion that when he committed the act he was in a sound state of mind, then their verdict must be against him.”

Upon which the jury returned a not guilty verdict and the matter was escalated to the House of Lords so as to explore both the existing legal position on insanity, along with the optimal and most effective use of jury instruction where cases required it.

By addressing a number of esteemed judges, the House requested clarification on the following five questions:

  1. What was the common law position on crimes involving insane delusions under a variation of circumstances ranging from simple offences to revenge or acts of public interest?
  1. What were the correct jury instructions in such matters?
  1. How much freedom should be given to jurors when assessing the defendant’s state of mind?
  1. Should a defendant shown to be delusional be acquitted of whatever crime is under discussion?
  1. Can a medical professional provide a credible and measured opinion of a defendant whose acts occurred both out of sight and mind of those providing such testimony?

To which the judges tentatively answered:

1. “To render a person irresponsible for crime on account of unsoundness of mind, the unsoundness should, according to the law as it has long been understood and held, be such as rendered him incapable of knowing right from wrong.”

2. “[E]very man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”

3. “[T]here are no terms which the Judge is by law required to use. They should not be inconsistent with the law as above stated, but should be such as, in the discretion of the Judge, are proper to assist the jury in coming to a right conclusion as to the guilt of the accused.”

4.  “[I]f under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.”

5. “[T]he medical man, under the circumstances supposed, cannot in strictness be asked his opinion in the terms above stated, because each of those questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide, and the questions are not mere questions upon a matter of science, in which case such evidence is admissible. But where the facts are admitted or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right.”

To which the House expressed its sincere gratitude at placing the judges in such a position that might otherwise precluded them from venturing an answer to questions as broad as they were narrow.

 

R v Jordan (1956)

English Criminal Law

R v Jordan
‘Jury’ by Norman Rockwell

Jury conviction beyond any reasonable doubt can often prove protracted and not without its tenuous merits, however on this occasion the determination that murder was the unequivocal cause of death is brought into stark controversy, when the introduction of alternate medical evidence casts serious doubts upon exactly what happened in the time prior to the victim’s death.

In May 1956, the appellant American Serviceman and three other men were embroiled in a fracas when during the disagreement, the appellant stabbed one of those involved, after which the victim later died of broncho-pneumonia whilst recovering in hospital, and upon which the appellant was indicted for murder and found guilty in Leeds Assizes before being sentenced to death.

Under appeal, an investigation by the American authorities revealed new evidence put forward by two highly reputable medical doctors, and which cited that the cause of death was actually related to the administration of terramycin, a commonly prescribed antibiotic that on this occasion, had triggered and allergic reaction that in turn led to diarrhoea, and which was further exacerbated through its continued administration, despite immediate instructions to cease its use.

In addition to this, hospital staff had also intravenously introduced disproportionate doses of saline, which likewise resulted in a pulmonary oedema through waterlogged lungs, a condition that left untreated, causes broncho-pneumonia, and upon which it had been established as the direct cause of death, while the stab wound itself had since been shown to have healed with no known complications.

Faced with such weighty and compelling testimony, the Criminal Court of Appeal turned to a number of distinguishable cases before relying upon R v Harding, in which it had earlier held that:

“Acquittal must follow if the evidence is such as to cause a reasonable doubt, because that is only another way of saying that the prosecution have failed to establish the case.”

Therefore when giving consideration to the effect that this information would have upon a criminal jury, the court deliberated in saying that when faced with such acute medical facts they saw no reason to suspect that the murder conviction would have been rendered unsustainable, and so with little more to debate the appeal was allowed and the conviction set aside in full, while the court reminded the parties that under normal circumstances:

“[D]eath resulting from any normal treatment employed to deal with a felonious injury may be regarded as caused by the felonious injury.”  

R v Ireland (1997)

English Criminal Law

R v Ireland
‘Western Electric Rotary Telephone’ by Christopher Stott

While s.20 of the Offences Against the Person Act 1861 provides that certain physical acts of violence are grounds for a conviction of grievous bodily harm, the psychological fear of impending violence through the use of words or silence, can prove difficult to sustain as a claim for assault occasioning actual bodily harm. However on this occasion, the House of Lords unequivocally clarified that both words and actions are equally damaging to their intended victims.

In this matter, the appellant had been tried and convicted of assault occasioning actual bodily harm under s.47 of the 1861 Act, which reads that:

“Whosoever shall be convicted upon an Indictment of any Assault occasioning actual bodily Harm shall be liable…to be kept in Penal Servitude for the Term of Three Years…”

Having repeatedly called three women during the night on a number of occasions, and each time remaining silent or breathing heavily, his actions had the cumulative effect of causing their prolonged psychiatric distress by way of palpitations, cold sweats, tearfulness, headaches, anxiety, insomnia, agoraphobia, dizziness, nervousness and breathing difficulties. 

And so in the first instance, the Newport Crown Court had found him guilty and passed sentence accordingly, upon which the appellant challenged the judgment in the Court of Appeal, who upheld the decision while holding that:

“[T]he making of a telephone call followed by silence, or a series of telephone calls, is capable of amounting to a relevant act for the purposes of section 47 of the Offences against the Person Act 1861.”

Granted leave to appeal, the appellant argued his case again before the House of Lords, who reexamined the facts and statutory position in order to reevaluate the scope of s.47, both in terms of actual bodily harm and that of common assault.

Referring first to R v Chan-Fook, the House noted that the Court of Appeals had previously held that:

“[T]he phrase “actual bodily harm” is capable of including psychiatric injury. But it does not include mere emotions such as fear or distress nor panic nor does it include, as such, states of mind that are not themselves evidence of some identifiable clinical condition.”

Yet it was also evident from their previous judgment that no specific mention had been made of assault, and so turning to Fagan v Commissioner of Metropolitan Police, the House also noted how the Court of the Queen’s Bench had held that:

“An assault is any act which intentionally or possibly recklessly causes another person to apprehend immediate and unlawful personal violence.”

Thus the House held that wile the women were physically beyond the reach of the appellant, there was simply no tenable grounds to assume that the appellant never intended to inflict violence upon them, particularly when using the words “I will be at your door in a minute or two” therefore the appeal was uniformly dismissed. In closing , the House further reminded the court that s.47 was still subject to the context in which it was applied, and that when determining the inclusion of assault, the court must remain vigilant to its arbitrary over inclusion to convictions, while more importantly holding that:

“The proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible. A thing said is also a thing done.”

R v Williams (Barry Anthony) (1991)

English Criminal Law

Williams (Barry Anthony)
‘Glastonbury Mud at Sunset’ by Kurt Jackson

The importance, if not imperative demonstration of causation lies at the heart of a case in which a jury was led to believe that manslaughter by way of robbery was unquestionably evident, when in fact the circumstances behind the event were such that prevented any reasonable direction, or sustainable conviction thereafter.

In June of 1989, the appellant was driving a vehicle with two passengers when a hitch-hiker attempted to obtain a lift to Glastonbury Festival. Having entered the car, the now deceased was subjected to what was held as a pre-meditated robbery attempt, during which he threw himself from the vehicle at speed, an action that resulted in severe head trauma and his subsequent death.

Upon indictment to the Bristol Crown Court, the appellant and the co-defendants were accused of threatening the victim so as to take all of his money, whereupon he had reluctantly offered to pay a nominal sum to the appellant rather than risk suffering possible violence while travelling inside the car.

Despite a lack of causative evidence aside from the witness testimonies of the three men accused, the presiding judge explained to the jury that:

“[W]hat he was frightened of was robbery, that this [money] was going to be taken from him by force, and the measure of the force can be taken from his reaction to it. The prosecution suggest that if he is prepared to get out of a moving car, then it was a very serious threat involving him in the risk of, as he saw it, serious injury.”

And so when reaching a verdict, the jury held that two of the men were guilty of manslaughter, with the appellant found to have been the one threatening the victim shortly before his death, a decision which was challenged in the Court of Appeal on grounds of misdirection and lack of causation between the actual threat and subsequent death.

Here the court turned to R v Roberts, in which the Court of Appeal had held that:

“[I]f of course the victim does something so “daft,” in the words of the appellant in this case, or so unexpected, not that this particular assailant did not actually foresee it but that no reasonable man could be expected to foresee it, then it is only in a very remote and unreal sense a consequence of his assault, it is really occasioned by a voluntary act on the part of the victim which could not reasonably be foreseen and which breaks the chain of causation between the assault and the harm or injury.”

While in R v Mackie, the court had further held that:

“Where the injuries are fatal, the [escape] attempt must be the natural consequence of an unlawful act and that 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’….”

A fact that on this occasion, was far from proven, but instead relied upon the urgency of the judge when directing the jury. This translated that the court was unable to sustain the previous verdict of either count, as neither robbery nor manslaughter had been proven beyond any reasonable doubt, therefore the appeal was allowed in full, while the court held that in matters of manslaughter:

“[T]he nature of the threat is of importance in considering both the foreseeability of harm to the victim from the threat and the question whether the deceased’s conduct was proportionate to the threat….”

Collins v Wilcock (1984)

English Criminal Law

Collins v Wilcock
‘Parisian Life’ by Juan Luna

Most likely uncertain to many members of the general public, the difference between assault and battery are markedly different, as was established in a case involving a uniformed policewoman and a suspected prostitute, judged to be loitering for the purposes of unlawful solicitation.

In the summer of 1982, the now respondent was driving in her patrol car when herself and her colleague observed what appeared to be two prostitutes standing around in the street whilst conversing with two men for what was determined to be a negotiation of solicitation, upon which the respondent requested that the now appellant enter the car so they could question her, to which the appellant lawfully refused and proceeded to walk away.

It was at this point that the respondent left the vehicle and attempted to question the appellant again while in pursuit, to which the appellant told her unceremoniously to ‘fuck off’, a statement that caused the respondent to physically grab the appellant by the forearm so as to restrain her from walking further, and which in turn resulted in the appellant shouting again ‘just fuck off copper’ and scratching the respondent’s forearm with her fingernails; an action that led to the appellant’s arrest and subsequent charge of assaulting a police officer in the line of duty.

Having contended the offence before the then Metropolitan Stipendiary Magistrate presiding in the Marylebone office, London, the appellant argued that the respondent was at the time of her physical exertion, acting beyond the scope of her police powers, while the respondent countered that she had acted lawfully under the Street Offences Act 1959, in which s. 1(1) which read that:

“It shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution.”

And s. 3, which further reads that:

“A constable may arrest without warrant anyone he finds in a street or public place and suspects, with reasonable cause, to be committing an offence under this section.”

To which the magistrate held the appellant guilty of the offence of assault, and fined her £50 under s. 51(1) of the Police Act 1964 while holding that:

“[I]n the circumstances the placing of her hand on [the defendant’s] arm to restrain her from moving away, yet again, was within her duty and was not unreasonable.”

A decision which the appellant challenged in the High Court, holding as before that the respondent had acted unlawfully when attempting to deny the appellant her freedom to leave when questioned.

Here, the court first looked to Cole v Turner, in which the Court of the Kings Bench had held that:

“The least touching of another is battery.”

Which was a principle later expanded upon in William Blackstone’s ‘Commentaries on the Laws of England’ (1830), in which it was stated clearly that:

“[T]he law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being scared, and no other having a right to meddle with it, in any the slightest manner.”

And so noting that assault is an act that causes another person to ‘apprehend the infliction of immediate unlawful force’ upon them, battery requires the ‘actual infliction of unlawful force’, and so on this occasion the court held that when attempting to restrain the appellant, the respondent had acted outside her official powers when there had in that instance, been no grounds for any arrest, but instead the subjective compulsion to prevent the appellant from exercising her civil rights through the use of battery, thus the appeal was upheld, while the court held that:

“[E]verybody is protected not only against physical injury but against any form of physical molestation” 

And that: 

“[R]easonable force may be used in self-defence or for the prevention of crime.”

R v C (2009)

English Criminal Law

R v C
Image: ‘x_report#30’ by Kim Byungkwan

The right to choose to engage in sexual intercourse, or even a sexual act, relies upon the powers contained under the Sexual Offences Act 2003 as well as art.8 of the ECHR (Right to respect for private and family life). However, when disability fetters that discretion, the court is required to exercise greater consideration of exactly how such a vulnerability intervenes.

In summer of 2006, a 28 year-old woman suffering with schizo-affective disorder and an IQ of 75, found herself confronted by an aggressive man known to be suffering from metal health issues, and coerced into a situation whereby the defendant forced the victim to perform oral sex against her will.

Upon indictment, the defendant argued that while her illness caused fluctuating symptoms, she was at the time of the alleged offence, able to choose whether or not to engage in the act. When directing the jury, the judge remarked that in order to secure a conviction they must agree that the victim:

“[W]ould be unable to refuse if she lacked the capacity to choose whether to agree to the touching…for example, an irrational fear arising from her mental disorder or such confusion of mind arising from her mental disorder, that she felt that she was unable to refuse any request the defendants made for sex.

Alternatively, [she] would be unable to refuse if through her mental disorder she was unable to communicate such a choice to the defendants even though she was physically able to communicate with them.”

With the defendant duly convicted, he immediately appealed, during which the Court of Appeal both acknowledged and supported his original defence through Re MM, in which the court held that:

“Irrational fear that prevents the exercise of choice cannot be equated with lack of capacity to choose.”

However, when presented to the House of Lords under challenge by the Crown, close examination of s.2(1) of the Mental Capacity Act 2005 revealed that:

“[A] person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain.”

While s.30(1)(c)(d) of the Sexual Offences Act 2003 states how a person is guilty of an offence if the victim is unable to refuse:

“(c)…because of or for a reason related to a mental disorder, and

(d) A knows or could reasonably be expected to know that B has a mental disorder and that because of it or for a reason related to it B is likely to be unable to refuse.”

This is further supported by s.30(2) which states that a sexual offence is recognised when:

“(2) B is unable to refuse if –

(a) he lacks the capacity to choose whether to agree to the touching (whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason), or

(b) he is unable to communicate such a choice to A.”

On this occasion, the House held that when placed into such a traumatic and hopeless situation, the victim had been unable to neither decide nor refuse the advances of the defendant, therefore there could be no doubt as to the soundness of the original conviction. It was for these reasons that the appeal was upheld, while the House reminded that had the victim been held to have capacity but been unable to communicate her refusal, the defendant would have been otherwise liable for statutory rape under ss.1 and 75(2)(e) of the 2003 Act.