Criminal Law for Forensic Scientists | University of Kent

09/25/21 Criminal Law for Forensic Scientists | University of Kent

Criminal Law for Forensic Scientists View Online

18 items

The following book is required for the course: Elliott & Quinn: Criminal Law, 10th Edition (1 items) ISBN-13: 978-1292015491

Criminal law - Catherine Elliott, Frances Quinn, 2014 Book | Suggested for student purchase

Additional Texts (3 items)

Unlocking criminal law - Jacqueline Martin, Tony Storey, 2015 Book | Background (Could Read) | Many law students find books in the "Unlocking" series to be a useful revision tool. I mention this as you have an end-of-term in-class assessment . Frankly, the Elliott & Quinn text, looking up and noting key cases and digging in to the academic material associated with such cases should be more than sufficient for your purposes. If you are having difficulty with the text-book or looking up cases or accessing background materials you must let either the lecturer or the seminar leader know.

Criminal law: text, cases, and materials - Jonathan Herring, 2014 Book | Background (Could Read) | This is a heavy-duty text-book containing notes of cases and copious reference to academic material regarding those cases. It also has a high-quality commentary of its own. Certainly worth consulting if you are looking for further material or an additional explanation of key issues.

Criminal law - William Wilson, 2014 Book | Background (Could Read) | Wilson explains the law by using theoretical examples as a context within which the cases and other materials are deployed. Complex, but a useful reference if you are lookingt for further material or an additional explanation of core materials.

Week 1 - An introduction to the study of criminal law, including techniques of research into and use of legislative materials, case-law and scholarly articles (3 items) An introduction to the module generally including assessment content and rationale; the finding and use of the lawyer's basic tools; addressing questions like 'why do cases matter?' and 'why is law not as scientific a subject as is sometimes pretended?'

Unlocking criminal law - Jacqueline Martin, Tony Storey, 2015 Book | Recommended (Should Read) | pages 3 to 7 & 246 to 260

1/18 09/25/21 Criminal Law for Forensic Scientists | University of Kent

How to find case law - Lawlinks - University of Kent Webpage | Recommended (Should Read) | Guidance on finding cases can be found here

Woolmington v DPP [1935] AC 462

This case is probably the most important one which will underpin everything you read and write in this module. Worth a read, then. Locate the case using Westlaw (the link below is for future reference).

Locate the journal article "The Presumption of Innocence" N.I.L.Q. 1987, 38(3), 223-243 by J C Smith using the "journal articles" tab on the "Case Analysis" page on Westlaw. You will have to use the library's on-line service for this purpose: go to the resources page, select "journals" and enter the name of the journal (it is the Northern Ireland Legal Quarterly). Take it from there ...

R v Donovan [1934] 2 K.B. 498

This is the case which establishes the rule that a person cannot consent to harm which is more than merely transient or trifling. We will see next week that there are, of course, exceptions to this rule.

This week, please ignore the link to the case (below). Instead, locate it using Westlaw. Make a short note identifying (1) the important facts, (2) the issue to be decided by the Appeal Court, (3) the judgment handed down by the appeal court, and (4) the impact that the case had on our understanding of the relevant law.

Locate the journal article "Flogging live complainants and dead horses: we may no longer need to be in bondage to Brown" using the "journal articles" tab on the "Case Analysis" page for R v Donovan. Tracking down journal articles is a skill you will need to develop and use when preparing your case-note (Assessment 1).

Week 2 - An introduction to the general principles and concepts underpinning the criminal law, including but not limited to blameworthiness, harm, and autonomy (1 items) You will need to read chapter 1 of Elliott & Quinn so that you become familiar with the concepts of actus reus, and the limited role of omissions in creating liability (both examined in greater detail in Week 3) and mens rea, including the meaning of transferred malice (examined in greater detail in Week 4) and the relationship of actus reus and mens rea to each other. There is additional material in the lecture on blameworthiness, harm and autonomy. There is useful material on the concept of harm in chapter 13 of Elliott & Quinn pages 400-408.

You need to consider the following cases:-

From the lecture:-

R v Donovan (see week 1): the case more or less establishing the 'no consent to abh' rule

ADT v United Kingdom [2000] ECHR 402

2/18 09/25/21 Criminal Law for Forensic Scientists | University of Kent

From the lecture and text-book:-

R v Brady [2006] EWCA Crim 2780: confirms the definition of recklessness in R v G and Another 2004 1 Cr App R 21 and addresses issues of blameworthiness.

R v Brown & Others [1993] 2 All ER 75: the 3 v 2 H/L decision upholding the general rule that there can be no consent to abh or above.

Laskey Jaggard Brown v UK (1997) 24 EHRR 39: the Court of Human Rights agree with the HL in R v Brown & Others)

R v Wilson [1996] 3 WLR 125: fitting a case amongst the exceptions to the general rule or moving with the times?

R v Emmett (1999) The Times 15th October 1999: the issue is the level of harm, not sexual orientation

Articles:-

Bergelson, V - The Right To Be Hurt - Testing The Boundaries Of Consent - Rutgers Law School - Working Paper 37

Mitchell - In Defence Of A Principle Of Correspondence - (1999) Crim LR 195

Horder - Questioning The Correspondence Principle - The Reply - (1999) Crim LR 206

The British Crime Survey 2014

Check out the methodology and purpose of the BCS in the Introduction to Elliott & Quinn. Contrast the stats they report with the most recent survey available here.

Week 3 - Causation through act or omission, focusing on killing in homicide offences (1 items) We have seen how, in order to convict a person of a criminal offence it is necessary to prove that his/her conduct, other circumstances, and his/her state of mind fit the definition of the crime in question. Here we will be looking at how a person's act (or sometimes his/her omission) can be said to have amounted to, or caused any given crime (many of the examples involve homicide). We will also see how the definition of a crime may involve the need to prove other matters e.g. a prohibited consequence (e.g. the death in homicide) or the existence of a thing (e.g. property in theft) or a circumstance (e.g. the absence of consent in rape).

Required reading

Elliott & Quinn pp 14-21 and the following cases:-

From the lecture:-

Attorney General's Reference (No 3 of 1994) 2 All ER 10: if a component part of the crime

3/18 09/25/21 Criminal Law for Forensic Scientists | University of Kent

is not proved (here, there was no 'person in being' at the time needed for the crime of murder to exist) then that crime has not been committed

R v White [1910] 2 K.B. 124: addresses issues of factual causation (including importance of having watertight forensic evidence).

R v Cheshire [1991] 3 All ER 670 - a case of fundamental importance so please read the report in full. Provides a useful definition of legal causation as well as firming up impact of medical mistreatment following the defendant's actions.

R v Jordan (1956) 40 Cr App R 152: a case - a rare case - which shows a medical novus actus interveniens.

R v Blaue [1975] 3 All ER 446 - a key case on breaking the chain of causation linking the accused to the prohibited result

Kennedy (No. 2) [2007] UKHL 38: drawing the threads together. Apparently drug addicts voluntarily choose to self-administer drugs supplied to them by a drug dealer. There is no distinction to be drawn between 'administering' and 'causing to be administered' for the purposes of sections 23 or 24 of the Offences Against the Person Act 1861. Judges do live in the same world as real people.

From the lecture and text-book:-

1. Fagan v Metropolitan Police Commissioner [1969] 1 QB 439: on the occurrence of mens rea at some point in a continuing act.

2. R v Miller (1983) 2 AC 161: liability via creation of a dangerous situation

3. R v Evans (Gemma) [2009] EWCA Crim 650: This case provides a useful synthesis of several issues arising in the area of liability via an omission to act.

4. Airedale NHS Trust v Bland: general rule: no liability in criminal law for omissions. Application of general rule: withdrawing nourishment from a patient in a PVS = an omission to act. No duty to act in a way which is not in the best interests of a patient

5. R v Lowe (1973) 1 All E.R 805: liability imposed by statute.

6. R v Stone R v Dobinson [1977] 2 All ER 341: liability imposed by assumption of responsibility followed by failure to discharge that responsibility.

7. R v Pittwood (1902) 19 TLR 37: liability imposed by contract.

Background cases:-

Dear [1996] Crim LR 595 (CA)

Cato [1976] 1All ER 260

Malcherek (1981) 2 All E.R 422

Roberts (1972) Crim.L.R.27

4/18 09/25/21 Criminal Law for Forensic Scientists | University of Kent

Dytham [1979] QB 722

Sheppard (1862) Le & Ca 147

Hood [2003] EWCA Crim 2727

Roberts (1972) Crim LR 27

Week 4 - The historical development of, and current law regarding blameworthy states of mind, focusing on intention in the crime of murder (1 items) Acts/omissions, prohibited consequences, things and circumstances are labelled "actus reus". We now turn to the other label in this area, "mens rea". This label is applied to whatever state or states of mind must be proved in order to convict a person of a criminal offence. The state or states of mind are part of the definition of the crime, and so they differ according to the crime under consideration. Four of the five cases which follow are homicide cases; notice how the mens rea needed in these cases differs from the fifth case (Fagan) and what an important difference that makes.

Required reading –

Elliott & Quinn pp21-37 (skipping the material on pp24-28 on 'Caldwell' recklessness, which is of historical interest only) and the following cases:-

From the lecture:-

R v Mohan (1975): contains a succinct definition of the concept of intention

R vf Moloney (1985) AC 905: reminds us that if a crime specifies that it must be committed intentionally, then nothing short of proof of an intention will suffice.

From the lecture and textbook:-

1. R v Woollin (1998) UKHL 28: virtual certainty that death or gbh will result from the defendant's action + the defendant realizing that = evidence of intention for the jury to consider NOT a different type of intention

2. R v G and Another [2003] UKHL 50: on need for recognition of risk

3. R v Brady [2006] EWCA Crim 2780: on 'how much risk'

4. AG's Reference (No 3 of 2003) [2004] EWCA Crim 868: on the offences to which R v G and Another applies.

5. R v Adomako [1994][ 3 All ER 79 (introducing negligence)

6. A-G's Ref (No.3 of 1994) [1998] AC 245 (on transferred malice)

7. R v Gnango [2011] UKSC 59 (the application of transferred malice to accomplices)

8. Thabo Meli v R [1954] 1 All ER 373 (on the need for actus reus and mens rea to be

5/18 09/25/21 Criminal Law for Forensic Scientists | University of Kent

linked)

9. R v Le Brun [1991] 4 All ER 673 (on the need for actus reus and mens rea to be linked)

Background cases:-

Mitchell [1983] 2 All ER 427 (CA)

Week 5 is READING WEEK

Week 6 - Absent and diminished responsibility (1 items) We pick up after reading week by moving from issues relating to the proof of liability in respect of a crime to successfully arguing defences. We start with a defence (non-insane automatism) which, if argued successfully, expunges liability for a crime. Insane automatism, otherwise labelled 'insanity' by lawyers (doctors differ as to usage of the term) also expunges liability for a crime, but the defendant may incur a sentence/order aimed at protecting the public. Diminished responsibility is a partial defence (partial because it reduces rather than expunges liability). Like insanity, it provides an exception to that general rule, as the defence team must prove the existence of DR.

Required reading –

Elliott & Quinn Chapter 4 pp95-103 and Chapter 13 pp 347-358 and the following cases:-

From the lecture:-

R v Vinagre (1979) 69 Cr App R 104: the appellant at the material time was suffering from a mental condition which was described as the "Othello syndrome" defined as being "morbid jealousy for which there was no cause". On the margin of recognition for the purposes of the defence.

R v Ramchurn [2010] EWCA Crim 194: a case examining the concept of substantial impairment in the diminished responsibility defence, which demonstrates, broadly speaking, that there is no change from the previous position i.e. the jury need to hear expert evidence on the issue, but it is up to them to decide whether as a matter of fact the defendant's responsibility was substantially impaired.

R v R [2010] EWCA Crim 194: on the meaning of substantial impairment.

Khan [2009] EWCA Crim 1569: for the appellant to be able to rely on the defence of diminished responsibility, it was for him to satisfy the jury, on a balance of probabilities, of the matters set out in section 2(1) of the 1957 Act (as amended). In reaching a decision on that point, they were entitled to look at all the facts, including those which suggested that there was no substantial impairment of responsibility.

From the lecture and text-book:-

A. Insanity

The M'Naghten Case [1843] UKHL J16: confirms that the presumption of sanity requires a defendant to prove that s/he was insane; and sets out the test for insanity so far as the

6/18 09/25/21 Criminal Law for Forensic Scientists | University of Kent

criminal law is concerned.

Bratty v Attorney General For Northern Ireland [1961] 3 All ER 523: the source of confusing statements on the nature of 'disease of the mind'.

R v Hennessy [1989] 2 All ER 9: diabetes will be treated as a disease of the mind for the purposes of the M'Naghten Rules where the condition, untreated, causes a hyperglycemic episode.

R v Quick [1973] 3 All ER 347: diabetes will not be treated as a disease of the mind for the purposes of the M'Naghten Rules where medication for the condition causes a hypoglycemic episode.

R v Burgess [1991] 2 QB 92: sleep-walking can be a disease of the mind for the purposes of the M'Naghten Rules.

R v Sullivan (1983) 2 All.E.R 673: epilepsy is a disease of the mind for the purposes of the M'Naghten Rules.

R v Coley [2013] EWCA Crim 223: distinguishing between the effects of voluntary intoxication and insanity etc

B. Diminished Responsibility

R v Dietschmann [2003] UKHL 10: the decision of the House of Lords showing that mere voluntary intoxication is to be disregarded when deciding whether the accused was suffering from diminished responsibility.

R v Dowds (2012) EWCA Crim 281: the case confirming 'no change' in the approach taken to voluntary intoxication and diminished responsibility in the Dietschmann case.

R v Wood [2008] EWCA Crim 1305: intoxication can be at the root of a recognized medical condition if it has actually caused brain damage.

Martin (Anthony) [2001] EWCA Crim 2245: paranoid personality disorder will probably be a recognized medical condition giving rise to an abnormality of mental functioning, given that it was capable of giving rise to diminished responsibility under the original s2 HA 1957.

LC290 - Partial Defences To Murder 2004

Law Commission Consultation Paper 173 - Partial Defences To Murder (2003)

Mackay R - The Abnormality Of The Mind Factor In Diminished Responsibility [1999] Crim LR 117

Week 7:Loss of control and Self-defence (including the prevention of

7/18 09/25/21 Criminal Law for Forensic Scientists | University of Kent

crime) (1 items) Loss of control is another partial defence to a charge of murder, and it demonstrates a general rule (it is for the prosecution to disprove a defence, not for the defence to prove it). Self-defence is an example of a defence which, if successfully argued, expunges liability.

Required reading -.

Elliott & Quinn Chapter 4 pp 79-95 and Chapter 13 pp 368-378 and the following cases:-

A. Loss of control

From the lecture and text-book:-

A. Loss of Control

R v Clinton and Others [2012] EWCA Crim 2: a breath-taking case on the undermining of Parliament's wish to rid the new LoC defence of the stench of homicidal (usually) male violence as a response to sexual infidelity.

R v Asmelash [2013] EWCA Crim 157: this case is authority for the proposition that the defendant's voluntary intoxication at the time of the killing was not one of his "circumstances" relevant to whether the partial defence of loss of control under s54 Coroners and Justice Act 2009 was made out. However, if a sober individual in the defendant's circumstances, with normal levels of tolerance and self-restraint, might have behaved in the same way as the defendant when confronted by the relevant qualifying trigger, a defendant who had been drinking would not be deprived of the loss of control defence just because he was not sober.

So the court is able to disregard voluntary intoxication but not sexual infidelity in spite of a clear instruction from Parliament to do so.

R v Dawes, Hatter and Bowyer [2013] EWCA Crim 322: a burglar can have no justification for feeling seriously wronged in respect of something said during the burglary (Bowyer); but the defence may work where the defendant has not incited violence for the specific purpose of creating a 'loss of control' defence (Dawes). Sexual infidelity alone is still excluded (Hatter, where the only issue was the victim's sexual infidelity).

The Clinton case - a critique

This is an article penned by Lauren Foulstone and YT on the Clinton case for a professional journal so it is practical rather than theoretical in nature.

B. Self-defence and the prevention of crime

From the lecture

A.G.'s Ref. No.2 of 1983 (1984) QB 456: the defence is available in respect of the defence of property, applying the principle from cases like R v Hussey (1924) 18 Cr App R 160.

8/18 09/25/21 Criminal Law for Forensic Scientists | University of Kent

R v Bird [1985] 1 WLR 816: my preferred case on the relevance of a failure to retreat (Elliott & Quinn prefer McInnes (1971) but it is my module, not theirs).

R v Hatton [2005] EWCA Crim 2951: a mistaken belief caused by self-induced intoxication could not be relied upon to establish that the defendant was acting in self defence

R v Owino [1995] Crim L R 743: the case which tells us that the question whether the defendant's use of force was reasonable is decided according to the standard of the reasonable person acting on the facts as the defendant believed them to be.

From the lecture and text-book:-

R v O'Grady [1987] QB 995: see Hatton (above).

R v Attwater [2010] EWCA Crim 2399: there must be a crime still to be prevented for the s3 CLA 1967 defence to work. R v Jones [2006] UKHL 16 makes the same point regarding something which is 'only' an offence known to international law.

Re A (Conjoined Twins) [2000] 4 All ER 961: a case argued to impact on the generality of the principle subsequently recognized in Attwater and Jones, but probably best treated as a case decided upon, and relevant only to, its own particular facts.

DPP v Bayer [2003] EWHC 2567 (Admin): self-defence only works if it is exercised in respect of something which is itself criminal.

Malnik v DPP [1989] Crim LR 451: self defence will not be available where the defendant has created the situation where the use of force may be necessary (best looked at as a 'going equipped' case).

R v Keane; R v McGrath [2010] EWCA Crim 2514: the component parts of the 'self-defence' defence remain unchanged following the statutory intervention in s76 CJ&I Act 2008, so the defence may arise where the defendant has started a fight, but only if the response to which s/he then reacts is disproportionate.

R v Hichens [2011] EWCA Crim 1626: force may be exercised in self defence against innocent party provided the creiteria of necessity and reasonableness are made out.

Williams (Gladstone) [1987] 3 All ER 411: the need for force is to be judged on the facts as the defendant believed them to be.

R v Yaman [2012] EWCA Crim 1305: see Owino (above).

R v McInnes [1971] 3 All ER 1600: see Bird (above).

Palmer -v- R [1971] AC 814: if death results from the use of an unreasonable degree of force in self-defence, the offence will be murder provided the accused meant to cause death or grievous bodily harm unless the jury thought that, in a moment of unexpected anguish, a person attacked had only done what he honestly and instinctively thought was necessary.

A-G for NI Ref (No 1 of 1975) [1977] AC 105: "reasonable force" is always a matter for the jury, but the reasonable person will weigh in the balance the consequences of acting or not

9/18 09/25/21 Criminal Law for Forensic Scientists | University of Kent

acting "in the brief second or two which the accused had to decide whether to shoot or not", and under all the stresses to which D was exposed.

Week 8 - Involuntary manslaughter (1 items) This week completes the picture regarding the principle homicide offences (we do not look at suicide pacts, infanticide or the other ‘specialist’ offences). We have used murder as the general framework for understanding crime; we have actually dealt with the main ‘voluntary manslaughter’ offences, as this label applies to a person who has killed as a result of a loss of control (week 7) or diminished responsibility (week 6).

Required reading -.

Elliott & Quinn Chapter 5 pp 109-127 and 138-141 and the following cases:-

A. Unlawful Act Manslaughter aka Constructive Manslaughter

From the lecture and text-book:-

R v Lowe (above, week 2): on the need for there to be an act rather than an omission for UAM to arise.

R v Dhaliwal [2006] EWCA Crim 1139: on the need to prove the link between the unlawful act(s) and the death of the victim.

R v Church [1965] 2 WLR 1220: on the need for the unlawful act(s) to be dangerous in the sense of creating the risk of some physical harm, albeit not necessarily serious physical harm.

R v JM & SM [2012] EWCA Crim 2293: the defendant does not need to foresee the risk of a particular type of physical harm or indeed any physical harm: it is sufficient if the reasonable person would have foreseen the risk of some physical harm, whether or not of the type which actually occurred. Calls into question:-

R v Carey [2006] EWCA Crim17 (on the ground that an affray exists where a person uses or threatens unlawful violence towards another and that conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety, so even a minor affray must create the risk of some physical harm, even if not seriousphysical harm);

R v Dawson (1985) 81 Cr App R 150 (on the ground that provided the reasonable person can foresee the risk of some physical harm, it does not matter whether the accused does or not); and

R v Watson [1989] 2 All ER 865 on the same argument as Dawson (but still necessary to prove the link between the unlawful act and the death).

R v Ball [1989] Crim LR 730: see R v Lamb (below)

R v Kennedy (No 2) [2007] UKHL 38: drug addicts voluntarily choose to self-administer drugs supplied to them by a drug dealer. There is no distinction to be drawn between 'administering' and 'causing to be administered' for the purposes of sections 23 or 24 of

10/18 09/25/21 Criminal Law for Forensic Scientists | University of Kent

the Offences Against the Person Act 1861. Judges do live in the same world as real people.

R v Lamb [1967] 2 All ER 1282: (a) unlawful = criminally unlawful; (b) the mens rea for unlawful act manslaughter is the mens rea for the criminally unlawful act.

R v Meeking [2012] EWCA Crim 641: allegedly controversiol because s22A RTA 1988 'is, in essence, an offence of negligence'. Not really. The relevant parts say: "(1) A person is guilty of an offence if he intentionally and without lawful authority or reasonable cause - (b) interferes with a motor vehicle, trailer or cycle … in such circumstances that it would be obvious to a reasonable person that to do so would be dangerous". So, a criminally unlawful act is required (not an omission) which is dangerous in the sense of causing "(2) … danger either of injury to any person while on or near a road, or of serious damage to property on or near a road" (an extension to risk of some physical harm etc, but Parliament can do that sort of thing) which causes death. Bog standard UAM if you ask me …

B. Gross Negligence Manslaughter

From the lecture and text-book:-

R v Adomako [1994] 3 All ER 79: a person is guilty of gross negligence manslaughter if (a) they are under a duty of care to the victim; (b) they are in breach of that duty causing the victim's death; and (c) the circumstances are gross enough to justify a crimninal conviction.

R v Watts [1998] Crim LR 833: if conviction for gross negligence manslaughter is a possibility, an Adomako-style direction must be given. A direction on UAM manslaughter alone is clearly not enough.

R v Wacker [2002] EWCA Crim 1944: a duty of care can be owed even in the performance of a criminal act.

R v Evans (Gemma) [2009] EWCA Crim 650: the judge's role includes advising on the criteria for the existence of a duty of care; a parent owes a dependent child a duty of care.

R v Lidar (unreported): a case which illustrates how, if there is one thing worse than a court letting a person off on spurious grounds (e.g. Geddes) it is a court looking for a reason to maintain a conviction in the face of obvious error. Here, the trial judge gave a 'reckless manslaughter' direction in a case occurring after the decision in Adomako (which over-ruled key reckless manslaughter cases) when the defendant was under an obvious duty of care to the victim (a person dangling into the window of the car that the defendant was driving). In seeking to uphold the conviction, a rather weak Court of Appeal give a decision which is bordering on the legally illiterate.

R v Misra & Srivatava [2004] EWCA Crim 2375: on the need for there to be a risk of death for GNM to arise and the nature of' gross' for the purpose of GNM.

Week 9. Non-fatal offences against the person (1 items) This seminar will examine how (common law) assault and the three main offences in the Offences Against the Person Act 1861 are structured. We will explore problems created by the statutory wording and how the courts have attempted to overcome them in the light of

11/18 09/25/21 Criminal Law for Forensic Scientists | University of Kent

changing social norms. An OAPA grid for completion will be available on Moodle and you may find it useful to print a copy for completion during class discussion.

Required reading –

Elliott & Quinn Chapter 6 and the following cases:-

From the lecture:-

14th Report of the Criminal Law Revision Committee on Offences against the Person (1980): provides a working definition of assault and battery and is evidence of the uncertainty in usage of the two terms.

Collins v Wilcock [1984] 3 All ER 374: if a police officer touches a person with a view to restraining them for the purpose of speaking to, but not arresting them, that amounts to an unlawful battery.

R v Venna [1975] 3 All ER 788: the mens rea of assault is to create the fear of the use of immediate unlawful violence or to be reckless as to wjhether such fear is created: the mens rea of battery is to apply unlawful force either intentionally or being reckless as to whether such force is applied.

R v Williams; Davis [1992] 1 WLR 380: "in fatal cases there are two requirements. The first, as in non-fatal cases, relates to the deceased's conduct which would be something that a reasonable and responsible man in the assailant's shoes would have foreseen. The second, which applies only in fatal cases, relates to the quality of the unlawful act which must be such that all sober and reasonable people would inevitably recognise must subject the other person to some harm resulting therefrom, albeit not serious harm" per Stuart-Smith LJ (see R v Roberts (below).

JCC (A Minor) -v- Eisenhower (1984) 78 Cr App R 48: A "wound" for the purposes of s20 meant a break in the continuity of the whole skin. An internal rupturing of blood vessels did not therefore amount to a "wound".

DPP v K (a minor) [1990] 1 WLR 1067: the application of force need not be direct. Ignore what the court say about Caldwell recklessness (it has been abolished - the defendant must now appreciate the risk of harm and proceed anyway as per Venna).

Mandair [1994] 2 WLR 700: "cause" is wider or at least as wide as "inflict", and so "causing" gbh was wide enough to include "inflicting" gbh (Lord Mustill).

R -v- Belfron [1976] 1 WLR 741: one or another of the required intentions ("to do some grievous bodily harm to any person or … to resist or prevent the lawful apprehension or detainer of any person") in s18 has to be proved. Mere foresight of, or recklessness as to the existence of one or another of them is not enough.

From the lecture and text-book

A. Assault

R v Constanza [1997] 2 Cr App R 492: words can constitute a common assault.

12/18 09/25/21 Criminal Law for Forensic Scientists | University of Kent

R v Meade and Belt (1823) 1 Lew CC 151: see Constanza (above).

Tuberville -v- Savage (1669) 86 ER 684 KBD: an assault must cause apprehension (fear) of the immediate application of unlawful force. Words can negative an assault.

Smith v Chief Superintendent, Woking Police Station(1983) 76 Cr App R 234: creating fear that something will be done of a violent nature is enough to support an assault charge.

R v Ireland; R v Burstow [1998] AC 147: it is not enough that the victim be put in fear; the fear must be of immediate violence.

B. Battery

DPP v K (a minor) [1990] 1 WLR 1067: see above.

C. Assault occasioning actual bodily harm

R v Donovan [1934] 2 KB 498: " ... 'bodily harm' has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling ... "

T v DPP [2003] Crim LR 622: (not R v DPP as stated in Elliott & Quinn): an injury which is transient but not trifling can amount to actual bodily harm.

R v Chan-Fook [1994] 2 All ER 552: "actual bodily harm' is capable of including psychiatric injury. Hobhouse LJ emphasised, at p. 696: '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."

R v Ireland; R v Burstow [1998] AC 147: Lord Steyn (with whom Lords Goff and Slynn agreed) noted that, as harassment of women by malicious calls was a significant social problem against which the law should be able to provide protection, the Act should be construed in the light of the scientific knowledge current at the time of the offence, notwithstanding the fact that psychiatric illness was not considered to be bodily harm during the original drafting of the Act. An assault was committed under s47 if the victim was caused to apprehend imminent personal violence and the question whether a malicious telephone caller was guilty of assault would thus be a question of fact in each case.

DPP v Smith [2006] 2 All ER 16: abh = injury, harm or damage to any part of the body.

R v Savage; R v Parmenter [1992] 1 AC 699: (Parmenter): "The verdict of assault occasioning actual bodily harm may be returned upon proof of an assault together with proof of the fact that actual bodily harm was occasioned by the assault. The prosecution are not obliged to prove that the defendant intended to cause some abh or was reckless as to whether such harm would be caused" per Lord Ackner.

R v Roberts [1978] Crim LR 44: the original statement of the rule now in Parmenter (above). On causation, held that a defendant causes those consequences which are the natural result of what s/he said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what s/he was saying or doing.

13/18 09/25/21 Criminal Law for Forensic Scientists | University of Kent

R v Williams; Davis [1992] 1 WLR 380 (see above).

D. Recklessly Wounding OR Inflicting Grievous Bodily Harm

Bollom [2003] EWCA Crim 2846: "grievous bodily harm" should be given its ordinary and natural meaning, that of really serious bodily harm, and other definitions should be resisted: Director of Public Prosecutions v Smith [1961] A.C. 290. The ambit of grievous bodily harm is therefore potentially wide, as is demonstrated by the inclusion, for instance, of psychiatric injury: Ireland; Burstow [1998] AC 147 H/L. In deciding whether injuries were grievous, an assessment had to be made of, amongst other things, the effect of the harm on the particular individual" (per Fulford J).

R v Saunders [1985] Crim LR 230: no meaningful distinction between that which is 'really serious' and that which is 'serious'.

JCC (A Minor) -v- Eisenhower (1984) 78 Cr App R 48: on the meaning of 'wound' (see above).

R v Savage; R v Parmenter [1992] 1 AC 699: (Savage): in order to establish an offence under s20 the prosecution had to prove "either that the defendant intended or that he actually foresaw that his act would cause harm" per Lord Ackner. The "harm" implied simply harm to the person as opposed to harm to property i.e. it was not concerned with the amount of harm caused.

R v Dica [2004] EWCA Crim 1103: the crucial question regarding consent was whether the victims had consented to the risk of HIV infection, not to sexual intercourse. Brown did not determine this issue. The defendant did not become a rapist by concealing his HIV+ status, but applying the logic of Tabassum [2000] Crim LR 686 regarding indecent assault to the offence under s20, concealing his health status could negate any consent to the risk of infection.

Konzani (Feston) [2005] EWCA Crim 706: there is a crucial distinction to be drawn between taking a risk as to the various potentially adverse and possibly problematic consequences of unprotected consensual sexual intercourse, and the giving of informed consent to the risk of infection with a fatal disease. For consent to the risk of contracting HIV to provide a defence, the consent had to be an informed consent.

E. Wounding OR Causing gbh with intent

Mandair [1994] 2 WLR 700: on the meaning of "cause" (above).

Background cases

R v Brown & Stratton [1998] Crim LR 485:more on the meaning of gbh.

R v Adaye(2004, Liverpool Crown Court, Unreported): knowledge of a higher level of risk of HIV infection was sufficient evidence that the defendant had acted recklessly by not informing a new partner of the risk of HIV infection.

Week 10. Sexual offences and consent (1 items) This seminar will discuss the legislation and case law on sexual offences, with particular

14/18 09/25/21 Criminal Law for Forensic Scientists | University of Kent

reference to the offence of rape.

Required reading –

Elliott & Quinn Chapter 7 and the following cases:-

From the lecture:-

R v McNally [2013] EWCA Crim 1051: deception as to gender could vitiate consent to sexual activity, and where a girl had engaged in sexual activity with another girl while claiming to be a boy, the consent obtained was vitiated and she was guilty of assault by penetration.

From the lecture and text-book:-

DPP v K & C [1997] 1 Cr App R 36: whilst only a man can be a rapist, a woman can be liable as, for example, a procurer of a rape.

R v Olugboja [1982] QB 320: rape is not limited to cases where sexual intercourse had taken place as a result of force, fear or fraud. 'Consent' obtained by duress amounted to submission, not true consent. A fortiori, after s74 SOA 2003 was put on the statute book ...

… a proposition confirmed in R v Kirk [2008] EWCA Crim 622 and s75(2)(a)(c) SOA 2003..

R v Lartner & Castleton [1995] [1995] Crim LR 75: now s75(2)(d) SOA 2003.

R v C(A) [2012] EWCA Crim 2034: evidence of under-age grooming can negative evidence of consent when older.

R v C [2009] UKHL 42: a case on s30 SOA 2003 which does not, prima facie, have the meaning that Elliott & Quinn place upon it (they have taken the view of one law lord (Lord Rodger), with whom one other agreed (Lord Hope), and ignored the silence of the other three).

R v Dougal (Swansea Crown Court, Unreported, 2005): trial judge stopped rape prosecution when victim admitted to being less than 100% sure that she had not consented when thoroughly drunk.

R v Hysa [2007] EWCA Crim 1791: failure of memory in the Dougal sense does not automatically mean that a case fails. All the evidence needs to be considered.

R v Bree [2007] EWCA Crim 804: section 74 of the Sexual Offences Act 2003, properly understood, means that if, through drink, the complainant had temporarily lost her/his capacity to choose whether to have intercourse on the relevant occasion, s/he was not consenting. However, where the complainant had voluntarily consumed even substantial quantities of alcohol, but nevertheless remained capable of choosing whether or not to have intercourse, and in drink agreed to do so, s/he was consenting.

R v EB [2006] EWCA Crim 2945:the fact that the appellant may not have disclosed his HIV status is not a matter which could in any way be relevant to the issue of consent under section 74 in relation to the sexual activity.

15/18 09/25/21 Criminal Law for Forensic Scientists | University of Kent

Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin): the question of consent is to be determined by reference to s.74. It would plainly be open to a jury to hold that, if the victim had made clear that she would only consent to sexual intercourse if Assange used a condom, then there would be no consent if, without her consent, he did not use a condom.

R v Jheeta [2007] EWCA Crim 1699: the complainant had been deceived about the situation in which she found herself, not about the nature or purpose of the act of sexual intercourse with the defendant. This meant that the conclusive presumption in section 76(2)(a) Sexual Offences Act 2003 had no application. However, the defendant's admissions that there were occasions on which the victim was not consenting rendered his conviction for rape safe.

R v Tabassum [2000] 2 Cr. App R. 328: consent given in the mistaken belief that a person was medically qualified or had relevant training and that in consequence the touching was for a medical purpose was not true consent since it was given to touching for medical purposes, not to indecent behaviour. Consent to the nature of the act but not to its quality was not true consent.

R v Devonald [2008] EWCA Crim 527: the phrase "nature of the act" was important to the engagement of s76 SOA 2003, but so was its "purpose", which encompasses rather more than the specific purpose of sexual gratification by the defendant.

R v Bingham [2013] EWCA Crim 823: s76 SOA 2003 was to be interpreted narrowly, and if there was a conflict between Jheeta and Devonald, then Jheeta is to be preferred.

Background cases

R v O'Brien [2006] EWCA Crim 1419: consent to one type of activity covered by s1 SOA does not = consent to all of them.

R (F) v DPP [2013] EWHC 945 (Admin): if a person's consent to sexual activity is conditional (here, on withdrawal before ejaculation) then deli=berate breach of that condition goes to consent under s74.

R v B [2013] EWCA Crim 3: belief in consent for the purposes of s1(1) of the Sexual Offences Act 2003 had not only to be genuinely held, it also had to be reasonable in the circumstances. A delusional belief short of insanity was by definition irrational and therefore unreasonable.

R v Mark Anthony C [2007] EWCA Crim 378: the presumptions in s75 SOA 2003 address certain imbalances of power between the parties which reflect the vulnerability of the victim. s75(2)(c) SOA 2003 covers any situation in which the victim is rendered unable to go where they wish, even temporarily, such as being driven to an unwanted destination in a car (Judge LJ).

Week 11 – Specialist topic evidencing major theoretical debates e.g. problems arising from joint enterprise or another topic that is generating current and informed debate (3 items) Details for this week will be added after Reading Week. Unless something of cosmic importance happens between now and then, the topic is likely to be problems arising from

16/18 09/25/21 Criminal Law for Forensic Scientists | University of Kent

liability via joint enterprise.

Required Reading:-

Elliott & Quinn Chapter 11 pp 299-327.