R v C

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.

Key Citations

“[T]o be able to make a decision, the person concerned must not only be able to understand the information relevant to making it but also be able to “weigh [that information] in the balance to arrive at [a] choice…”

“One does not consent to sex in general. One consents to this act of sex with this person at this time and in this place.”

R v Lambie

English Criminal Law

 

R v Lambie
Image: ‘Red Purse’ by Vladimir Kush

Fraudulent misrepresentation and the need for proof of inducement, may at first seem like prudent adjudication, however when the facts are properly assembled, there is little doubt as to whether the act itself was one of corroboration through personal gain, or a simple exploitation of the contractual arrangements between credit and debtor.

In the winter of 1980, the now respondent was convicted for obtaining pecuniary advantage by deception under s.16(1) of the Theft Act 1968 after an indictment on two counts, one of which was quashed, while the second occurred during a period after the lending bank had recalled the credit card used.

Having been granted use of the card in spring 1977, the bank had, after a period of time, requested its return after the respondent had incurred a debt far in excess of the prescribed limit of £200. On 6 December 1977, the respondent agreed to return the card, after which she entered into a transaction in a Mothercare store on 15 December 1977, before returning the card on 19 December, at which point the debt had increased to a princely £1005.

At the trial, the jury returned a verdict against the respondent, after which she appealed on grounds that the store clerk had, by her application of store policy regards their relationship with the bank, allowed the transaction to proceed, not because she had been falsely induced, but rather because the credit card was (i) within the expiration date, (ii) not on the store’s ‘stop list’ and (iii) the respondent’s signature matched that on the card. It was also argued that the mere presentation of the card did not indicate anything more than that of a right to use it, as opposed to any representation on behalf of the bank, therefore liability for deception could not stand.

With doubts as to the exactness of related precedent, the Court of Appeal reluctantly overturned the conviction, during which Cumming-Bruce LJ remarked:

“By their contract with the bank, Mothercare had bought from the bank the right to sell goods to Barclaycard holders without regard to the question whether the customer was complying with the terms of the contract between the customer and the bank.”

At which point the County Chief Constable appealed under s.33(2) of the Criminal Appeal Act 1968, and the matter was again presented before the House of Lords. Here, the facts of R v Charles were given deliberate consideration, in particular the commentary by Diplock LJ who had explained:

“By exhibiting to the payee a cheque card containing the undertaking by the bank to honour cheques drawn in compliance with the conditions endorsed on the back, and drawing the cheque accordingly, the drawer represents to the payee that he has actual authority from the bank to make a contract with the payee on the bank’s behalf that it will honour the cheque on presentment for payment.

What creates ostensible authority in a person who purports to enter into a contract as agent for a principal is a representation made to the other party that he has the actual authority of the principal for whom he claims to be acting to enter into the contract on that person’s behalf.

[T]hen, is he bound by the contract purportedly made on his behalf. The whole foundation of liability under the doctrine of ostensible authority is a representation, believed by the person to whom it is made, that the person claiming to contract as agent for a principal has the actual authority of the principal to enter into the contract on his behalf.”

Which meant that despite the protestations of exemption from the transaction, the respondent was inevitably liable for deception when using the card in the knowledge that it was the property of the issuing bank, and that the period for its used had since expired. It was also noted by the House that when introducing the concept of inducement into any act of fraud, the words of Humphrey J in R v Sullivan reminded the judiciary that:

“[I]t is patent that there was only one reason which anybody could suggest for the person alleged to have been defrauded parting with his money, and that is the false pretence, if it was a false pretence.”

At which point the House unanimously reversed the decision of the Court of Appeal and awarded due judgment for the Crown.

Key Citations

“[W]here a drawer of a cheque which is accepted in return for goods, services or cash uses a cheque card he represents to the payee that he has the actual authority of the bank to enter on its behalf into the contract expressed on the card that it would honour the cheque on presentation for payment.”

 

R v Stephenson

English Criminal Law

R v Stephenson
Image: ‘The Hay Bales’ by Roger Bansemer

Subjective ‘recklessness’ and the complexities of mental illness, are given equal weight when a charge of arson is levelled against a man who while apologetic for his actions, was astute enough to undertake, and become convicted of burglary, an act which in itself paradoxically requires a degree of foreseeability.

In the winter of 1977, the appellant trespassed upon farmland before climbing into a large straw stack to fall asleep. Suffering from the cold, the appellant decided to use the straw to build a small fire from which to keep warm. Unfortunately the fire quickly spread, before catching light to a Nissen hut containing farming equipment, resulting in damages of around £3,500.

Having fled the scene, he was later arrested, whereupon he immediately apologised and explained that the whole incident was an accident, and that he never intended to cause such destruction. When indicted, he was charged with burglary under s.9(1) of the Theft Act 1968 and arson under s.1(1)(3) of the Criminal Damage Act 1971, yet at trial, the appellant failed to give any evidence aside from the medical testimony of a consultant psychiatrist, who confirmed that the appellant was suffering form schizophrenia, and as such, was unable to appreciate the obvious risks attached to starting a fire in such a hazardous environment.

When directing the jury, the judge used the phrase:

“[A] man is reckless if he realises that there is a risk, but nevertheless presses on regardless.”

While reiterating the words of the Appeal Court in an earlier case, which were:

“A man is reckless in the sense required (that is to say, in the sense which leads to conviction) when he carried out a deliberate act knowing or closing his mind to the obvious fact that there is some risk of damage resulting from that act, but nevertheless continuing in the performance of that act.”

At which point the jury returned a guilty verdict on both counts, whereupon the appellant took issue in the Court of Appeal on grounds of severe misdirection when applying the subjective principle of recklessness. Here, the definition of recklessness in R v Briggs was held as being that:

“A man is reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from that act but nevertheless continues in the performance of that act.”

While in the Law Commission Working Paper No.31 (Codification of the Criminal Law: General Principles. The Mental Element in Crime) it was explained how:

“A person is reckless if, (a) knowing that there is a risk that an event may result from his conduct or that a circumstance may exist, he takes that risk, and (b) it is unreasonable for him to take it having regard to the degree and nature of the risk which he knows to be present.”

Perhaps more importantly, the root definition of recklessness was outlined by Donovan J in R v Bates, when he said:

“The ordinary meaning of the word ‘reckless’ in the English language is ‘careless,’ ‘heedless,’ ‘inattentive to duty.’ Literally, of course, it means ‘without reck.’ ‘Reck’ is simply an old English word, now, perhaps, obsolete, meaning ‘heed,’ ‘concern,’ or ‘care.’”

Contrastingly, in Shawinigan Ltd v Vokins & Co Ltd the objective purpose of recklessness was defined by Megaw J who said:

“In my view, ‘reckless’ means grossly careless. Recklessness is gross carelessness – the doing of something which in fact involves a risk, whether the doer realises it or not; and the risk being such, having regard to all the circumstances, that the taking of that risk would be described as ‘reckless.’”

Yet in the House of Lords, Salmon J had recently promoted the subjective definition in Herrington v British Railways Board when he explained how:

“Recklessness has, in my opinion, a subjective meaning: it implies culpability. An action which would be reckless if done by a man with adequate knowledge, skill or resources might not be reckless if done by a man with less appreciation of or ability to deal with the situation.”

And so it was with full consideration of the effects and medico-legal opinion of schizophrenia, coupled with the perhaps ironically unstable history behind ‘recklessness’, that the Court found the arson conviction unsafe when knowing the jury were unable to wholly determine the mental limitations of the appellant. It was therefore on that basis that the burglary charge remained valid, while the arson charge was quashed on principles of natural justice.

Key Citations

“A man is reckless when he carries out the deliberate act appreciating that there is a risk that damage to property may result from his act. It is however not the taking of every risk which could properly be classed as reckless. The risk must be one which it is in all the circumstances unreasonable for him to take.”

R v Roberts

English Criminal Law

R v Roberts
Image: ‘Escape’ by Anna Dart

In a case involving assault occasioning actual bodily harm, the defendant appealed on grounds that an irrational act on the part of the alleged victim was sufficient enough to constitute ‘novus actus interveniens’, thereby breaking the chain of causation and defeating the charges held against them.

In spring of 1971, the victim was an engaged twenty-something who having spent some time together at a party, had decided to join the appellant in car journey in the early hours of the morning. It was during the journey that the appellant had misled the victim as to where they were headed, after which he attempted to have sex with her, despite her immediate protestations.

Having then asked to be taken home, the appellant threatened to force her to walk back if she failed to comply with his demands, but not before he had physically assaulted her. It was at this point that he attempted to remove her coat whilst driving at speed, thereby forcing her to open the passenger door and jump out, thus suffering from mild concussion and numerous contusions as a result of her escape.

Having wandered to the nearest house, she was taken in and then safely escorted to hospital for treatment and a three-day stay with lengthy cross-examination. At trial, the judge explained to the jury that in order to find the appellant guilty, they needed to be certain that it was his actions alone that had led to the victim’s injuries, and that his efforts to disrobe her against her will were tantamount to an assault.

Using the exact words:

“[I]f you accept the evidence of the girl in preference to that of the man, that means that there was an assault occasioning actual bodily harm, that means that she did jump out as a direct result of what he was threatening her with, and what he was doing to her, holding her coat, telling her he had beaten up girls who had refused his advances, and that means that through his acts he was in law and in fact responsible for the injuries which were caused to her by her decision, if it can be called that, to get away from his violence, his threats, by jumping out of the car.”

The jury were directed as to ensure they were satisfied that the two acts were inextricably linked, and that unless they could, beyond any reasonable doubt, identify and connect them, the appellant was to escape the charge held under s.47 of the Offences Against the Person Act 1861. It was then found by the jury that despite reservations as to the weight of both parties arguments, the actions of the appellant were directly contributive to the illogical action of the victim and so the charge was upheld.

Upon appeal, the argument presented was that the judge had failed to factor the foreseeability by the appellant of the victim’s actions at the time the offence took place, and that when testing for assault, this aspect of the jury direction was absent. In response, the Court held that as was explained in R v Beech, the judge had rightly asked:

“Will you say whether the conduct of the prisoner amounted to a threat of causing injury to this young woman, was the act of jumping the natural consequence of the conduct of the prisoner, and was the grievous bodily harm the result of the conduct of the prisoner?”

And that at no point in English law had a prerequisite for the defendant’s mindset existed, as to allow such an obligation would immediately nullify any conviction held against them. It was then for this salient reason that the Court dismissed the appeal and secured the original conviction.

Key Citations

“[I]t had got to be shown to be his act, and if of course the victim does something so “daft,” in the words of the appellant in this case, or so unexpected, not 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.”

R v Blaue

English Criminal Law

R v Blaue
Image: ‘King Mannaseh’ by Unknown Artist

The right to manifest one’s religious beliefs, and the right to prove ‘novus actus interveniens’ within a criminal trial are equally valid, and yet when brought together, the finer points of law and natural justice must always prevail.

In spring of 1974, the victim and now deceased, was a young eighteen year-old Jehovah’s witness, who by all accounts, considered herself a devout worshipper, and one clearly unafraid of death. While resting at home, the appellant appeared before her and demanded sexual intercourse. After refusing to comply with his demands, the appellant stabbed her four times before fleeing the property. When found staggering in the street outside, the victim was rushed to hospital, before being diagnosed as having a punctured lung and suffering severe blood loss.

In order to perform the required surgery, the surgical registrar confirmed that she would need an immediate blood transfusion, at which point the deceased explained that due to her religious disciplines, she would be unable to receive foreign blood, and that despite knowing the potential, if not unavoidable outcome, she was unwilling to accept the help offered.

Before passing, the deceased also acknowledged such a position in writing, and so at trial the appellant had argued that the charge of murder be reduced to manslaughter on grounds of diminished responsibility when refusing to accept the transfusion.

Relying upon R v Smith to establish the possibility that her refusal of help had caused her own death, and that such an unreasonable act had broken the chain of causation, the judge directed the jury so as to ask themselves if, by virtue of her religious confines, the deceased had in fact been the primary contributor of her own death, or that despite her painful and somewhat illogical choices, the stab wound itself had caused her to die, and that anything afterwards was merely academic.

After returning a verdict in favour of the deceased, the appellant appealed, after which the Court of Appeal reminded them that a long established principle of common law, as was written in ‘Hale’s Pleas of the Crown’ (1800) was that:

“He who inflicted an injury which resulted in death could not excuse himself by pleading that his victim could have avoided death by taking greater care of himself…”

It was thus established and held, that that the primary cause of death was bleeding into the pleural cavity of the lung, and that any decision taken after the fact was secondary to the victim’s passing; and that regardless of the role in which religion played, the deceased was entitled to express that belief as she saw fit. It was for this fundamental reason that the appeal was dismissed and the murder charge upheld.

Key Citations

“It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man.”

“A policy of the common law applicable to the settlement of tortious liability between subjects may not be, and in our judgment is not, appropriate for the criminal law.”

R v Cheshire

English Criminal Law

R v Cheshire
Image: ‘The Surgeon’ by Jose Perez

Novus actus interveniens’ or breaking the chain of causation, is a maxim often relied upon in criminal cases, however, while the principle itself is simple enough, the facts required to establish it prove far from clear. In a case involving the potentially fatal shooting of an unwitting victim, the surgical aftercare provided, became subject to the scrutiny of the courts when death followed soon afterwards.

In late 1987, the deceased was party to an argument with the now appellant, which resulted in three shots being fired from a concealed handgun. The first bullet was fired in the air above them, while the second and third entered the victim’s upper thigh and abdomen, shortly before the appellant fled from the scene.

Having been rushed to hospital, the surgeons cleaned up both wounds, while reconnecting the thigh bone and undertaking an extensive bowel resection in order to prevent further complications. In the weeks following his admission, the deceased complained of breathing difficulties, at which point a tracheotomy was performed, after a simple ventilating machine had failed to properly address the problem.

Around a month later his condition deteriorated, and so investigative measures were taken to inspect the stomach wound, while the deceased began to suffer with vomitous discharge and chest infections, later resulting in fluid permeation of the lungs. It was then, after numerous complaints and several visits by the consultant general surgeon, surgical registrar, orthopaedic registrar and finally the house surgeon, that his breathing pattern was recognised as ‘stridor’, a disturbing vibration typically associated with an obstruction of the larynx or windpipe.

Unfortunately, despite the intervention of a medical registrar and urgent cardiac massage, the deceased died as a result of mucus blockage of the windpipe resulting from excessive tracheotomy scarring, upon which the resident pathologist concluded that:

“I give as the cause of death cardio-respiratory arrest due to gunshot wounds of the abdomen and leg.”

At the trial, the judge directed the jury to establish a conviction of recklessness on the part of the hospital, which if proven, would support the breaking of the chain of causation on grounds that the hospital had failed to properly identify the actual cause of death, and that in doing so, the appellant’s actions were now secondary to the death of the victim. After a degree of jury deliberation, a verdict was passed in favour of the hospital, before the appellant challenged the judgment under s.23 of the Criminal Appeal Act 1968.

Presented to the Court of Appeal, consideration was given to the principle of recklessness and gross negligence, while particular reference was made to the words of Goff LJ in R v Pagett, who said:

“Even where it is necessary to direct the jury’s minds to the question of causation, it is usually enough to direct them simply that in law the accused’s act need not be the sole cause, or even the main cause, of the victim’s death, it being enough that his act contributed significantly to that result…nevertheless the intervention of a third person may be regarded as the sole cause of the victim’s death, thereby relieving the accused of criminal responsibility.”

However in R v Smith it was also argued by Parker CJ that:

“It seems to the court that if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it in another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound.”

Before Lane CJ later reiterated in R v Malcherek that:

“[T]he fact that the victim has died, despite or because of medical treatment for the initial injury given by careful and skilled medical practitioners, will not exonerate the original assailant from responsibility for the death.”

With careful appreciation of the medical evidence, along with reasoned accommodation of the high threshold of surgical margins of error, the Court held that despite the alleged negligence of the hospital staff, there was simply insufficient evidence to uphold the application of ‘novus actus interveniens’, and that even with the best medical team on hand to treat the deceased, the fundamental cause of death preceding the complication was, and remained, the shooting by the appellant, and so on those grounds the appeal was dismissed and the original murder charge upheld.

Key Citations

“In the criminal law, and in particular in the law of homicide, whether the death of a deceased was the result of the defendant’s criminal act is a question of fact for the jury, but it is a question of fact to be decided in accordance with legal principles explained to the jury by the judge.”

“Whilst medical treatment unsuccessfully given to prevent the death of a victim with the care and skill of a competent medical practitioner will not amount to an intervening cause, it does not follow that treatment which falls below that standard of care and skill will amount to such a cause.”

“[W]hen the victim of a criminal attack is treated for wounds or injuries by doctors or other medical staff attempting to repair the harm done, it will only be in the most extraordinary and unusual case that such treatment can be said to be so independent of the acts of the defendant that it could be regarded in law as the cause of the victim’s death to the exclusion of the defendant’s acts.”

R v Lawrence

English Criminal Law

R v Lawrence
Image: ‘Ducati Scrambler Cafe Racer’ by Unknown Artist

Reckless driving, while contextually similar to the criminal charge of recklessness, was at the time of this case, still unclear in terms of the mens rea of drivers brought to trial. Unfortunately for the victim’s family, this uncertainty resulted in an acquittal from the offence on grounds of a confused and thereby ineffective, jury.

In 1979, a couple took a visit to their local off-licence in order to purchase some soft drinks for their children. Parking opposite the shop, the mother entered the store, before standing at the kerbside in preparation for crossing back over the road. Moments after blowing her husband a kiss, the victim stepped into the road before being struck by one of two motorcycles, dying instantly, while being carried at speed on the front of the driver’s vehicle.

Upon indictment, the defendant was convicted by a majority jury of reckless driving under s.1 of the Road Traffic Act 1972. There were also questions raised at the time around the exact speed at which the motorcycle was travelling, with opinions ranging from 30 -80mph, resulting in a lengthy trial, and one in which despite an absolute conviction, left the jury seeking clarification as to exactly what reckless driving required, and whether there was a need to appreciate the mindset of the defendant at the time both before, and during, the time of the offence.

Upon appeal, the Court quashed the conviction upon grounds that where uniform agreement could not be found as to how reckless driving existed under the 1972 Act, there could be no established verdict beyond any reasonable doubt. In response, the regional Chief Constable appealed on behalf of the Crown to the House of Lords, while trying to find agreement as to what s.1 of the Road Traffic Act 1972 truly meant.

Referring to the meaning of recklessness as defined by R v Murphy, the courts recognised that:

“A driver is guilty of driving recklessly if he deliberately disregards the obligation to drive with due care and attention or is indifferent as to whether or not he does so and thereby creates a risk of an accident which a driver driving with due care and attention would not create.”

However, in cases such as R v Caldwell, the jury were required to consider not only the actus reus (actions) of the accused, but the mens rea (mindset) prior to the act of arson duly charged. This by convention, had not been something applied during road traffic accidents, therefore the jury in this trial were left confused as to whether an objective evaluation was in itself sufficient, or whether subjective consideration was needed to fully contain the origin of recklessness, as opposed to arguments over which speed the defendant was travelling when the offence occurred.

Though a comprehensive chronology of reckless driving within the road traffic offences, the House held that there needed to be two elements to a conviction of recklessness, namely:

(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.”

Therefore it was left to the jury to determine if, as hypothetical road users themselves, they felt that a defendant did knowingly choose to take charge of a vehicle with the intention to cause harm, as opposed to harm being caused by means beyond their control. This by effect, also rendered the Murphy direction null and void, while paving the way clear for expeditious trials under similar circumstances.

Key Citations

“[I]t is a truism to say that justice delayed is justice denied. But it is not merely the anxiety and uncertainty in the life of the accused, whether on bail or remand, which are affected. Where there is delay the whole quality of justice deteriorates.”

“The purpose of a direction to a jury is not best achieved by a disquisition on jurisprudence or philosophy or a universally applicable circular tour round the area of law affected by the case.”

“A direction to a jury should be custom built to make the jury understand their task in relation to a particular case. Of course it must include references to the burden of proof and the respective roles of jury and judge. But it should also include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides, and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts.”