Criminal Law First Term Flashcards
What is the ratio of R v G and what does it show?
As long as MR is present and B is under 13, reasonable belief in her being older is no excuse. Shows strict liability.
R v B
Husband stranger
Which case asserts that Olugboja made a fresh start?
R v Elbekkay
What is the issue with R v McNechnie?
V may have died at the same time in the same way regardless, but the court made a lot of assumptions to arrive at their judgment
What is the ratio in Booth v CPS?
Borderline decision of assuming one state of mind from another
How does S.2 Genital Mutilation Act 2003 restrict novus actus?
Defence so that anyone who uses novus actus to get someone to mutilate themselves is still liable
What is the ratio in Gillick v West Norfolk and Wisbeck AHA?
Sufficient maturity to consent despite being under the age of 16
R v Richardson
Alcoholic dentist
Russell [1933]
Wife and child
What do Sullivan and Simester note is perhaps the reason for adopting a causation-without-limits approach in cases like Williams?
To deter all unlicensed/unregistered drivers, but this is at the expense of severe injustice
What does Williams note about knowledge in Cunningham?
Knowledge of inflammability of coal gas does not lead to an assumption about its toxicity as they cause injury in different ways
What does Williams note about subjective recklessness and preoccupation?
It cannot be defeated by an argument from preoccupation, and can be assumed.
Smith v Newsam
Sword
What else does Horder use apart from suspensory conditions to suggest there is no need for an imminence requirement?
Thomas v Num –> Miners
What did the HoL note in R v Ireland about psychological harm and s.47 OAP?
The statute is ‘always speaking’ as it loosely defined in ordinary words to get meaning from current society
What is the MR of s.47 OAP incompatible with?
Correspondence principle
What was the ratio in R v Dica?
STDs can be considered to cause GBH despite consent
Since consent nullifies AR of assault/battery, and s.47 requires this, does consent nullify s.47?
No
What is the ratio in Attorney General’s reference (No.6 of 1980)?
Consent to assault does not nullify liability
R v Jones
Boy in air
What case with higher authority supports the crown court decision in R v Slingsby?
R v Jones and R v Dica
As there is no provision for reasonable belief under s.47, what position does the law revert to to ascertain if D believed V gave informed consent?
Subjectivist position
When did Lord Jouncey and Lowry in Brown argue that consent becomes immaterial?
When it becomes AoABH or gave objectively a realistic risk of more than trivial harm
What act prohibits the case for a good enough reason for consent to s.47 or s.20 in terms of circumcision, limiting it to only men?
Female Genital Mutilation Act 2003, s.1
What is covered under s.47 OAP?
Assault occasioning ABH
What does Williams say about the argument of not thinking of a risk?
If someone does not believe a risk exists, and it is unreasonable for him to take it, he is still liable because he still thought of it
Kaitamiki v R
Rape is a continuing act
R v Devonald
Dad, ex-bf
R v McNally
‘Boy’ is girl
What are the recent cases in which the CoA have follow decisions prior to R v Olugboja?
R v Larter & Castleton, R v Elbekkay and R v Linekar
What case defines ‘unlawful’ in battery?
Collins v Wilcock
What does s.20 OAP govern for?
Inflicting GBH maliciously
What is the ratio in R v Bollom?
GBH on a child may not be GBH on an adult
How did the CPS deal with the fact that it is arguable if recklessness counts if the risk of harm is less than 0.1% (Dica)?
Increased number of exposures to a low risk infection increases level of recklessness
R v Harris
Voices fire
What case/judge gives the definition of the AR for s.47 OAP?
Lynsky J in R v Miller
What is the AR of s.20 OAP?
Any act that causes ‘really serious’ bodily harm (DPP v Smith), applying to psychiatric illnesses like s.47, but unlike s.47 it need not be caused by an assault/battery - need only be ‘inflicted’ which is much wider
What is the MR for s.20 OAP?
D must have intended/been reckless as to causing ‘some harm’ but need not have foreseen the full consequences. Malicious should be interpreted as referring to both intention and recklessness
R v Bree
B must have the ability to express agreement or disagreement through the act
What is the AR for s.5 SOA?
Penetration of a person under 13
What is the ratio in R v Kennedy?
Fully informed act of V broke chain of causation
What is an example of a corresponding MR requirement?
Recklessness creating foreseeable risk of ‘some harm’ to V
What was the ratio in R v Konkani?
Consent can be accepted if V had a particularly good reason to suspect or consents and knows the risk
R v Brown
Sadomasochists
Attorney General’s reference (No.6 of 1980)
Football teams (fight)
What is the ratio in H v CPS?
Knowledge of the risk is not sufficient for consent
What does John Gardner argue is of intrinsic moral significance in assault?
That one inflicted rather than caused harm
Who found, through Environmental Agency v Empress Car Company (Abertillery) Ltd, that causation findings are becoming exercises of statutory interpretation?
Sullivan and Simester
Which case overrules R v Devonald and how?
R v B - not ANY important purpose hidden.
What is a gateway wrong of constructive liability according to Ashworth?
Corresponding MR requirement (recklessness creating foreseeable risk of ‘some harm’ to V)
What does J R Spencer note about the issue of SOA in ‘The Sexual Offences Act 2003: Child and family offences’?
Home Office wanted new offences to be punishable regardless of consent, but no provision that express nullifies consent
What is the defence to s.3 SOA?
Reasonable belief
What does subsection 2 of s.1-4 SOA govern for?
How to determine reasonable belief
R v Jheeta
Policeman boyfriend texts
R v Dica
HIV and unprotected
When is it beneficial, according to Gardner, to draw a line between reluctant acquiescence and mere submission?
When V is insensible with no other safeguard as to consent - lack of any ‘positive state of mind at all’ cannot count as giving consent regardless
Why, according to Ashworth, is a substantive doctrine of intoxication preferable to an evidential doctrine?
Evidential inference can lead to variant outcomes, and it gives transparency
What was the ratio in R v Emmett?
One could not consent to lighter fluid on their body if it resulted in a claim under s.47 or even s.20
R v Burstow
Stalker posters
What four cases define the AR of battery?
DPP v K, Fagan v Metropolitan Police Commissioner, R v Matin, DPP v Santana-Bermudez and Faulkner v Tabot
How can one rebut some of the presumptions of 75(2)?
Existence of a close relationship
What is the AR for assault?
Any act by which one person causes another to apprehend immediate ad non-consensual bodily contact (Ireland)
What is the ratio in DPP v Majewski?
Voluntary intoxication is not a defence to mens rea
Dalloway
Reins
What did Finch and Munro note about s.74 definition in ‘Breaking Boundaries: Sexual consent in the jury room’?
Hindered by stereotypical views, vagueness of central terms, extended to often unrelated factors and led to leniency for D
What case supports the MR for assault?
R v Lamb
Why does it not fit with Olugboja that the judge in R v Elbekkay decided jury could not have failed to conclude lack of consent?
Asserts types of mistake which do/don’t negate consent
What case supports the role of transferred malice in battery?
Haystead v Chief Constable of Derbyshire
What judge noted that you cannot give a common sense answer to the application of causation?
Lord Hoffman in Empress
What is the AR for s.1 SOA?
Penetration and B does not consent to the penetration
What does The Interpretation Act 1978 s.6 provide for?
In all AoP, the use of the masculine noun includes the feminine unless the contrary intention appears
What is the ratio for R v Jheeta?
Look at individual when deciding between submission and reluctant acquiescence
R v Allen
No intention to be drunk
What is the MR of s.47 OAP an example of?
Constructive liability
What part of the SOA governs for the definition of ‘sexual’?
S.78
What is the de minimis principle?
‘more than negligible cause of death’
What is a negative of the rival, fixed-formula approach to rape?
Treats some mistakes as significant to ALL individuals when this may not be true
DPP v K
Acid chemistry
What is Horder’s definition of assault?
‘Threatening confrontation experienced by the victim’
Faulkner v Tabot
Babysitter - touching does not require you to be active
Who found a high level of correspondence in relation to factors that influenced decision making (e.g. victim responsibility, defendant’s intentions, parties’ intoxication and impact of intoxication)?
Finch and Munro, ‘Juror Stereotypes and Blame Attribution in Rape Cases Involving Intoxicants’
What are the three positives of the Olugboja approach according to Gardner?
Attentiveness to individual, D’s MR requires lack of care about consent so may not lack certainty (by referring to V’s state of mind) and decides from impact on V if they acquiesced or submitted
R v Pagett
Shot girlfriend
R v Bailey
insulin
What did Lord Bingham note about D’s presence in court in Cunningham?
D’s presence when the issue is one of knowledge is vital - no evidence of ‘absence of knowledge’ creates an evidential presumption of the knowledge
What case defines the AR for assault?
R v Lamb
What is the ratio for R v Roberts?
Within range of reasonable responses so no contributory negligence
What does Horder note is the advantage of his definition of assault over Williams’ and Gardner’s?
Notes the moral significance of the AR
What do Sullivan and Simester note about the application of Dalloway, and why?
It should have been applied in Williams because ‘such a Draconian outcome’ as expecting D to take account of ‘potential homicide liability for deaths which were the sole responsibility of others… is not within the scope of anyone’s reasonable expectations’
What does section 30 of the SOA govern for?
Sexual activity with a person with a mental disorder impeding choice
What does Horder say about ‘suspensory conditions’?
They are usually not ‘defeating conditions’, so they should not be blocked by an imminence requirement
Why does R v Linekar not align with Olugboja?
Asserted some kind of mistakes do negate consent and others do not as a matter of law
Name at least three cases where consent was allowed to s. 47?
R v Slingsby, R v Jones, R v Dica, R v Konzani
What is the ratio for R v Olugboja?
Absence of force/threats of violence does not prove consent
What test does the Law Commission give for ‘sub-rational’ agreement cases?
Fixing transition point between allowing sexual expression and preventing exploitation by having regard to V’s ability to understand or retain relevant information and make a decision
What is the MR for s.3 SOA?
Intentionally touches another person
R v Malone
Drunk neighbour
Whitte
Mistaken belief
What does Ashworth in ‘Intoxication is never a defence’ note about the formation of the doctrine?
It is not evidential as there is no MR (presumed), so it is substantive as D would have had MR but for intoxication
What three individuals try to give a definition to assault?
Williams, Gardner and Horder
What was the ratio in R v Golding?
GBH needs not be ‘permanent or dangerous’ with ‘lasting consequences’ - it is up to the jury to decide the effect on V in the individual case
What is the ratio for R v Mallet (egg shell skull rule)?
Unlikeliness without subsequent intervention gives liability
What is the evaluative causation question to be asked?
Is there a direct intervening cause (novus actus interveniens) that cannot be explained by proximity?
What cases give that failure to resist does not constitute consent?
R v Malone, MC v Bulgaria
What does Ashworth note about the exclusion of specific intent offences from the intoxication doctrine?
It is a ‘simple move that allows for increased flexibility, and moral sensitivity’.
What precedent gives that rape is a continuing act?
Kaitamiki v R
What does section 5 of the SOA govern for?
Rape of a child
Name at least three cases which support the fact that there is no notion of contributory negligence?
R v Roberts, R v Lewis, R v McNechnie, R v Pagett and R v Hughes
What is the ratio in R v Fotheringham?
D cannot rely on a belief caused by intoxication
In what cases did the courts show that consent to the assault/battery does not preclude liability under s.47?
AG’s reference (No.6 of 1980) and R v Brown
How does the Law Commission suggest we fix a transition point for ‘sub-rational’ agreement cases?
Have regard to V’s ability to understand or retain relevant information and make a decision
What section of SOA dictates requirements for sexual activity with a child?
Section 9
What is the ratio for R v Jheeta?
None of the deceptions affected the act itself
What are the four possible defences to s.47 OAP?
Consent, self-defence, duress and insanity
What is the MR of s.9 SOA?
Intentionally touches another person
R v Cheshire
Breathing tube infection
What are the four possible defences to s.20 OAP?
Self-defence, duress, insanity and consent
Fagan v Metropolitan Police Commissioner
Policeman’s foot
What is the ratio in Collins v Wilcock?
You cannot continue with everyday touching if they object strongly
What two other issues did J R Spencer find with the new child sex offences in the SOA in his article?
They are complex/obscure with serious overlap and it is legislative overkill
Who doesn’t Williams agree with on the top of anger making an exception to subjective recklessness?
Lord Ziplock in Caldwell who extends it to other emotions such as excitement
What case supports the first way to prove recklessness according to G v R (D took an objectively unreasonable risk)?
Chief Constable of Avon v Shimmen –> Martial arts
Haystead v Chief Constable of Derbyshire
Wife and baby
What does s.9(2) govern for?
Types of touching liable for sexual activity with a child
Does a novus actus interveniens count even if it was foreseeable?
Yes
What does s.74 SOA govern for?
Consent
Booth v CPS
Damaging car
R v D
Wife suicide
What is the ration in R v Harris?
D didn’t have sufficient MR, but could also distinguish from Parker in that he had no choice due to his mental illness, drawing a comparison with Jones v First Tier Tribunal and Criminal Injuries Compensation Authority.
What are the four key cases for deciding a freedom to agree?
R v C, R v Jhetta, R v Kirk and R v Olugboja
What does section 4 of the SOA govern for?
Causing sexual activity without consent
What is the ratio in R v Roberts, in reference to s.47 OAP MR?
Foresaw original assault so guilty of ABH
R v Satnam and Kewell
Hope
Collins v Wilcock
Everyday touching
Why did the EU reverse the decision in MC v Bulgaria?
Fundamental that consent is expressed
R v Slingsby
Signet ring
R v Green
Doctor masturbate
What cases shows most effectively the interplay between s.74 and s.76?
Thomas LJ in Assange v Swedish Prosecution Authority
What is the key case for recklessness in non-fatal offences?
G v R
R v Spratt
Air rifle
R v Golding
Herpes
R v B
Schizophrenic
Which case rejects the fact that Olugboja made a fresh start?
R v Linekar
What section gives deceptions in the SOA?
S.76
What are the two basic offences against the person?
Battery and assault
What does the judgment in Olugboja focus on?
Protecting sexual autonomy
What section of the SOA governs for consent?
S.74
R v Mallet
Neighbours fighting
What are a few cases involving s.76(a)?
Any from R v Green, R v Jheeta, R v Devonald, R v B, R v Bingham, R v McNally and AKJ et al v Metropolitan Police Commissioner
What is the ratio in R v Allen?
It is irrelevant if D has no intention to be drunk
What act is used to define the word ‘capacity’ in the SOA?
Mental Capacity Act 2005
What is the MR of s.4?
Intentionally causes B to engage in a sexual activity
What did the court note about R v Dica and consent?
If partners had consent, the harm is unwanted wide effect and therefore not intended
What does the word ‘unlawful’ remove liability for in battery?
Minor contacts carried out in an everyday and civilised fashion
What did Temkin and Ashworth disapprove of in the SOA?
Hierarchical approach where fraud/deception is non-rebuttable but threats/violence are
What section of SOA dictates requirements for rape of a child?
Section 5
What is the ratio in R v Matin?
Indirectly causing unwanted contact constitutes a battery
Laskey v UK
Sadomasochism 2
R v Blaue
Jehovah’s witness
What are the four negatives of the Olugboja approach according to Gardner?
Uncertain, D cannot know about V’s state of mind, like cases not treated alike and may look to individual to see if they should have taken the pressure in their stride
Why is R v McNally not technically giving support to the use of s.76(b)?
Decided under s.74 instead
Outline the judgment in R v Linekar
Ignored Olugboja’s fresh start, asserted some kind of mistakes do negate consent and others do not as a matter of law
What is the MR for battery?
D must intend or be reckless as to the unlawful bodily contact. Transferred malice.
What is an example of a sine non qua test?
Medical evidence
What four things are covered under the Offences Against the Person Act 1861?
Assault occasioning ABH, maliciously inflicting GBH, maliciously inflicting GBH with intent and poisoning
When is there an exception to novus actus according to G Williams?
When D remains the de facto cause in spite of the subsequent novus actus
What is the ratio for R v Cheshire?
Medical negligence will never remove D’s responsibility if injury is still present at death
What is the ratio on imminence given in Ireland?
‘V must have to fear that D intended to use unlawful force on him before V’ could escape or seek ‘official protection’
What were the facts in Russell?
Negligently failing to stop his wife murdering his child and committing suicide
What does the Law Commission give as guidance for misapprehension cases?
If the matter as to which V was mistaken was important enough TO HER, it negates consent
Who found that the public generally decided against legal position of R v Malone in terms of conscious = ability to consent/struggle?
Finch and Munro, ‘Juror Stereotypes and Blame Attribution in Rape Cases Involving Intoxicants’
R v Lamb
Gun
What solution of JC Smith does G Williams adopt in ‘Finis for Novus Actus’?
Distinguishing between ‘the last act necessary’ and the ‘preparatory stage’.
What section of the SOA gives rebuttable presumptions?
S.75
What is the ratio for R v McNally?
Homosexual act was not agreed upon so deception as to nature
What three cases explicate the function of novus actus interveniens?
Environmental Agency v Empress Car Company (Abertillery) Ltd, R v Kennedy and R v D
What did Finch and Munro conclude in ‘Juror Stereotypes and Blame Attribution in Rape Cases Involving Intoxicants’
‘Strong evidence… of an ongoing reliance on legally irrelevant factors and adherence to stereotypical views of sexual behaviour’
What is the defence to s.5 SOA?
No defence
R v Parker
Smash phone box
What is the ratio in R v Venna?
Recklessness as to the act is sufficient - no intention required
What subsection of the SOA gives for reasonable belief?
Subsection 2 of s.1-4 SOA
What is the point of evaluative causation?
Causation ‘in law’ to filter out arbitrary sine non qua contributions
Why did the HoL in R v Ireland note that psychiatric injuries can be a form of ABH?
They can lead to physical symptoms and affect the nervous symptoms
What four cases support the fact that recklessness for battery is usually a narrow meaning of personal foresight?
R v Spratt, DPP v Majewski, R v Allen and R v Brady
What are the three ways of filtering out arbitrary sine non qua contributions?
Egg shell skull rule, subsequent omissions/acts that do not change operative cause of D’s action are irrelevant and no notion of contributory negligence for V
AKJ et al v Metropolitan Police Commissioner
Undercover
What is a case which supports the egg shell skull rule?
R v Mallet –> Neighbours fighting
What is the ratio for R v Bingham
There was no deception as to the sexual purpose of the act
What cases give definitions for not good enough reasons for consented-to activity?
Attorney-General’s Reference, R v Brown, Laskey v Uk and R v Emmett
Jones v First Tier Tribunal and Criminal Injuries Compensation Authority
Suicide
MC v Bulgaria
Field - EU reversed the decision of Bulgaria
Williams [2010]
Appearing
R v Hardie
Valium
Why was the case thrown out in R v D (wife suicide)?
Ireland requires evidence to prove psychiatric effects
What is the ratio in R v Richardson?
Consent given to acts, not people
What two cases define MR of s.47 OAP?
R v Savage and R v Roberts
What were the CoA disapproving of in R v Richardson?
Prosecution should have focused on bad dentistry and less on unregistered dentist
R v Ireland
Silent phone calls
How can Williams and R v Kennedy be distinguished according to Sullivan and Simester in ‘Causation without limits’?
V in the former did not die by her own hand, but in both V was wholly responsible
R v B
HIV - no active deception so not rape
What is the ratio for R v Lewis?
Supports R v Roberts - reasonable response
Which case gives that malicious should be interpreted as referring to both intention and recklessness in s.20 OAP?
R v Cunningham –> Gas meter
IM v LM
Capacity for treatment - threshold to give consent to sexual activity is very low, and limited relevant information is required
R v Kirk
Taxi man (money, homeless, previous abuse etc.)
What is not a defence to s.47 OAP?
Chastisement
The Law Commission noted what two types of agreement cases?
‘Sub-rational’ agreement cases and misapprehension cases
Environmental Agency v Empress Car Company (Abertillery) Ltd
Oil pollution
DPP v Santana-Bermudez
Ticket tout
R(F) v DPP
Withdrawal
What is the ratio for R v Green?
Deception about true purpose negates consent
Gillick v West Norfolk and Wisbeck AHA
Gillick competence
How can the prosecution disprove consent under s.74 SOA?
Need only disprove one, and all are left undefined in the statute so need to use precedent
What are the problems with Thomas LJ’s statement in Assange about deceptions?
Material deceptions being covered under s.74 is arguably obiter and decision in McNally is arguably obiter as it would fit under s.76
What does Williams say about the action of knowledge?
‘Knowledge must be regarded as a continuing state of mind’
What two cases show that anger or forgetting does not remove recklessness?
R v Parker and R v Harris
What two cases define consent to battery?
H v CPS and Gillick v West Norfolk and Wisbeck AHA
Is there any binding precedent for Thomas LJ’s statement in Assange?
No
What was the ratio in R v Barstow?
Psychiatric illness is now considered bodily harm, so the word ‘inflicted’ should not be limited to its Victorian usage - causation is sufficient, and not the same as the narrow meaning for assault/battery
What is the MR for s.5 SOA?
Intentionally penetrates the vagina, anus or mouth of another with his penis
What does G v R give to prove recklessness?
Prosecution must satisfy the court that D took an objectively unreasonable risk and they foresaw that risk at the time
Who noted that the principle of novus actus can rescue D from strict liability and in which article?
G Williams, ‘Finis for Novus Actus’
What is the ratio for Chief Constable of Avon v Shimmen?
Taking a tiny risk can be reckless if it is without good reason
What statute restricts novus actus for women?
S.2 Genital Mutilation Act 2003
What cases show a radical development in the law of GBH in particular?
Dica, Burstow etc.
What case supports the ratio of R v Cheshire?
R v Blaue –> Jehovah’s witness
What analysis of the intoxication doctrine does Ashworth prefer and why?
Constructive liability - allows courts to convict D of a stand-alone intoxicated wrongdoing than of the crime corresponding to the later AR
What is constructive liability made up of according to Ashworth?
A gateway wrong and an aggravating part
What is an aggravating part of constructive liability according to Ashworth?
A matter of strict liability (V dies)
R v Kennedy
Supplying heroin
What two cases show the courts ‘having regard to all circumstances’ to determine reasonable belief?
R v B and R v Fotheringham
What case suggests that deceptions may negate consent to battery?
R v Richardson
Within the specific families of criminal wrongs with overlapped AR elements, what two features appear?
More serious offences require purposive intent and there is always a fall-back offence
What is the ratio in R v Bailey?
Lack of knowledge of a substance’s effects removes MR.
R v Bingham
Sexual acts
What judges in Brown noted that When it becomes AoABH or gave objectively a realistic risk of more than trivial harm, consent is immaterial?
Lord Jouncey and Lowry
Who disapproves of the hierarchical approach of the SOA in terms of fraud/deception (non-rebuttable) as worse than threats/violence (rebuttable)?
Temkin and Ashworth
What is the ratio in R v Lamb?
Where the parties do not apprehend any risk at all, there is no AR, and D lacked MR as he neither intended to shoot his friend, nor foresaw V’s apprehension
If a substance is consumed which is not known to be dangerous/alcoholic, which case does not apply?
DPP v Majewski
What case supports the fact that subsequent acts/omission are irrelevant if they do not change operative cause of D’s action?
R v Cheshire –> Breathing tube infection
R v C
Mother’s boyfriend
Beatty v Gillbanks
Salvation Army v Skeleton Army
Why does Williams reject the indifference test?
Too hypothetical
What is the ratio in R v Savage, in reference to s.47 OAP MR?
No MR further than assault/battery is required
R v Williams
Singing voice
What is the ratio of Faulkner v Tabot?
Touching does not require you to be an active participant
What two cases give that conditional consent to penetration may be valid if it relates to the act itself?
Assange v Swedish Prosecution Authority, R(F) v DPP
What does S Gardner note about court’s use of R v Olugboja in ‘Appreciating Olugboja’?
CoA have preferred to follow earlier decisions in 3 recent cases
What is the ratio in R v Sprat?
Not reckless - didn’t foresee any harm at all
Thomas v Num
Miners
What is the ratio in R v Martin in regard to inflicting GBH?
‘Inflict’ does not have the same meaning as for assault/battery - he need not have done it personally
What is the ratio for R v Hughes?
Matters to proximity test if blame can be attributed to D’s act
R v Savage
Pub glass
How does Thomas LJ in Assange v Swedish Prosecution Authority show interplay between s.74 and s.76 SOA?
Deceptions not under s.76 may fall under s.74 if important enough
What is the ratio in DPP v K?
Only a causal link is required, no MR for battery
What are the common elements of s.1, s.3 and s.4 in the SOA?
Consent and reasonable belief
How does s.74 SOA define consent?
‘Agreement by choice, by someone who had the freedom and capacity to make that choice’
What is the defence to s.1 SOA?
Reasonable belief
After noting Lord Hoffman’s statement about application of causation in Empress, what do Sullivan and Simester say this means?
Restrict causation doctrine to mere statutory interpretation
What does subsection 2 of s.1-4 SOA give for reasonable belief?
It is determine by ‘having regard to all circumstances, including any steps A has taken to ascertain whether B consents’
What is the ratio for R v Devonald?
Any important purpose hidden is deceptive - very wide meaning of ‘purpose’
What does s.20 OAP not require unlike s.47?
Doesn’t require GBH to be caused by an assault/battery, only ‘inflicted’
What section of SOA dictates requirements for sexual activity with a person with a mental disorder impeding choice?
Section 30
Why does Ashworth not agree with the Modal Penal Code on the sufficiency of a statistical link?
Whilst violence is usually accompanied by intoxication, this is not always true in reverse - we do many risky things in society, but the presence of risks does not make it a wrong
What case limits the ways that agreement can be expressed?
R v Ciccarrelli –> Come on. Considered gap of several hours relevant
What is the ratio in DPP v Santana-Bermudez?
V did not make an informed choice OR D battered her by ‘omission’
What is the ratio for R v Kirk?
Difficult case but decided that due to circumstances, she lacked freedom to agree as she had no other choice
What did the CPS try to prosecute for in R v D?
Unlawful act manslaughter where the act was ABH psychological harm to avoid use of novus actus through mental damage
R v Emmett
Lighter fluid
What was the ratio in R v Slingsby?
Restricted to acts intended or foreseen, so consent can nullify ABH liability, although just a crown court decision
R v G
15 years old?
What five points did Lord Lowry in C v DPP give for courts to consider before making radical developments?
Matter of law or wider social ramifications, has P consider it, is the answer to the case clear, would they be discarding fundamental legal doctrines and would changing the law lead to clarity and finality
R v Hughes
Uninsured hits druggie
What is the ratio in Fagan v Metropolitan Police Commissioner?
Omission of acting can cause battery
What is a ‘freedom to agree’, and what is the key precedent for this?
Acquiescence is agreement, but submission is not. Key precedent if R v Olugboja [1982] –> House rape
What is the AR of s.9 SOA?
Touching is sexual (s.78), and either (1)(c)(i) B is under 16 and A has no reasonable belief that they are older or (1)(c)(ii) B is under 13. (2) also gives the types of touching liable
What case gives the requirement of foreseeing some harm in s.20 OAP?
DPP v Parmenter –> Shook baby
What is the ratio for R v Pagett?
Two causes of same death do not cancel out D’s actions
R v Lewis
Student vs. taxi
According to J C Smith and G Williams, in the ‘preparatory stage’, is the instigator still responsible if there is an intervening act?
No
What is the MR of s.47 OAP?
D needs to have intended/foreseen the original assault/battery but need not have intended/foreseen the ABH.
What section of SOA dictates requirements for causing sexual activity without consent?
Section 4
What case shows that later knowledge may be brought in to prove recklessness?
Miller [1983]
R v Cunningham
Gas meter
What does the Modal Penal Code argue is sufficient in intoxication doctrine?
Statistical link
Faulkner v Tabot
Babysitter sex
How does Horder suggest an independent role of fear-inducing threats could be created?
By focusing on morally significant way psychic assault is nearly always done through confrontation
What is the ration in Jones v First Tier Tribunal and Criminal Injuries Compensation Authority?
Subjective nature of recklessness - consider individual’s mental state at the time
R v Bollom
Depends on individual victim
What meaning did R v Ireland stretch?
‘Immediate’ to imminent
What is the ratio in Environmental Agency v Empress Car Company (Abertillery) Ltd?
D responsible for creating the risk and legislation extended liability
R v H
Tracksuit
S.143 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 gives what to s.20 of the OAP?
Similar office in respect of serious injury caused by dangerous driving which is kind of negligently causing GBH
What does section 9 of the SOA govern for?
Sexual activity with a child
There is no offence of ______ causing GBH
Negligently
R v Roberts
Hitchhiker
What is the ratio in R v Brown?
Not a good enough reason so consent did not nullify liability
What are the three policy arguments in favour of novus actus according to G Williams?
D should not be guilty for something the public would blame on someone else, making D responsible for V’s foreseeable behaviour is too great a restriction and restricts the number of persons liable
If there is no ____, s.20 can’t be applied.
Foresight
Which lord in C v DPP gave five points to consider before making radical developments?
Lord Lowry
What is factual causation?
Sine non qua test
What is the ratio in DPP v Smith?
Not necessarily life threatening harm, and need not be permanent GBH
Which case gives a very wide meaning to s.76(a) - ‘purpose’?
R v Devonald
DPP v Smith
‘Really serious’
What case create uncertainty in the law of manslaughter and it’s interaction with novus actus according to G Williams?
Australian case of Russell [1933]
What is the AR of s.4?
Engaging in sexual activity without the consent of B
What were the court open to in R v D (wife suicide)?
Idea that ordinary assault would cause death even without psychological suffering but the CPS did not follow this route
What is the ratio in R v D?
No novus actus as she did not make the decision freely
What three cases support the second way to prove recklessness according to G v R (D foresaw risk at the time)?
R v Cunningham, Booth v CPS and Jones v First Tier Tribunal and Criminal Injuries Compensation Authority
What is the ratio in R v B?
Mental illness or delusions could not found reasonable beliefs as they are irrational by nature
The emphasis on what requires special offences for those who have sexual activity with children?
Visceral rather than cerebral thinking, but lacking ability to conduct their own decision-making means they lack capacity regardless
What is the AR for s.47 OAP?
‘Any hurt of injury calculated to interfere with health or comfort’, coming from an assault/battery
What does s.8 Criminal Justice Act 1967 show?
The proof of criminal intent
What does s.78 use to define ‘sexual’?
Nature is sexual regardless of circumstances/purpose, or because of nature may be sexual and circumstances/purpose make it sexual
What two cases note that agreement is solely to the actual physical acts?
R v Linekar and R v B
What is the ratio for R v McNechnie?
Supports R v Roberts and R v Lewis
What is the ratio in Faulkner v Tabot?
If girl was passive, there is no battery, so novus actus decided the case
What is the ratio in R v Brady?
Despite being drunk, if D wouldn’t have foreseen the risk sober then D is not liable
R v Fotheringham
Babysitter, not wife
What case decided that capacity to understand the act was too low based on the circumstances?
R v Williams –> Singing voice
What is the ratio for Whitte?
Trial judge - if D has a reasonable belief in V’s consent because D believes V is someone else (C), then D cannot call on mistaken belief
What does section 3 of the SOA govern for?
Sexual assault
What case makes use of the MCA 2005 as a definition for ‘capacity’?
R v A (G)
What did Gardner consider about the application of Olugboja in Linekar?
The conviction would probably have held
R v Jheeta
Policeman boyfriend texts
How can the judgment in R v Fotheringham be varied according to modern day views?
It was decided that belief did not exist at all, but now it exists but is necessarily unreasonable
R v McNechnie
Old man ulcer
What does section 1 of the SOA govern for?
Rape
What section of SOA dictates requirements for rape?
Section 1
What was the ratio in Dalloway (1847)?
D’s mere presence on the road was not to be taken as the legal cause of V’s death
R v Venna
Police battery
What is the venial intervener, according to G Williams?
D can remain responsible if V acted ‘semi-forgivably’, as long as it was reasonably foreseeable
When does Williams note that subjective recklessness could afford a defence?
When concepts of recklessness should not be used anyway (e.g. his example of opening a door whilst preoccupied and hitting a cyclist)
What does the court draw a line between in Olugboja?
Reluctant acquiescence and mere submission
What was the ratio in R v Wilson?
Consensual matrimonial activity should not be criminalised
What is the MR for assault?
Intending or foreseeing that V may apprehend immediate and non-consensual bodily contact
Elliot v C
Shed fire
Why does the morally distinct part of Horder’s AR for assault render immediacy unimportant?
It focuses on V’s perception of D’s words as threatening for AR
Outline the judgment in R v Elbekkay
CoA rejected pre-1976 law, accepting that Olugboja made a fresh start, but decided that the jury could not have failed to conclude lack of consent
What are the two exceptions to the requirement of subjectivity in recklessness for William?
Intoxication (Caldwell) and anger
R v Linekar
Prostitute paid
In what case did Lord Lowry give five points for courts to consider before making radical developments?
C v DPP
R v Martin
Theatre ‘fire’
What two cases define MR for battery?
R v Venna and Haystead v Chief Constable of Derbyshire
What are the three mistakes that the Law Commission gives as negating consent as a matter of law?
Nature of the act, identity of D and D’s freedom from STDs.
DPP v Majewski
Forgetful
What does Horder argue for an ‘independent role’ in assault?
Fear-inducing threats through the way fear can be caused - focus on morally significant way psychic assault is nearly always done through confrontation
What is the ratio for R v B?
Look at refined purpose each individual has for entering into the act - she understood the act so not a deception
What is the ratio in R v H?
Definition of touching sufficient for touching clothes for s.3
R v Brady
Crippled pub
What two cases support the fact that Majewski does not apply when substance is consumed and not known to be dangerous/alcoholic?
R v Bailey and R v Hardie
What is the defence to s.4?
Reasonable belief
What was the ratio in R v Jones (boy in air)?
Boy consented and boys did not foresee any harm, so defence to s.47
Why does Lord Hoffman note that you cannot give a common sense answer to the application of causation in Empress?
Need to know more about scope and purpose of the rule to which it is to be applied
Assange v Swedish Prosecution Authority
Condom
What does John Gardner name as unnecessary qualifications to the essential wrong of causing harm?
Imminence and requirement of threats
R v Wilson
Buttocks
According to the CJA s.8, what is the proof of criminal intent?
Not enough to assume foresight due to ‘natural and probable consequences’ - D has actually to foresee them, by reference to all the evidence and drawing appropriate inferences
What is the MR for s.1 SOA?
Intentionally penetrating the vagina, anus or mouth of another person with his penis
What is the AR for s.3 SOA?
Touching that is ‘sexual’ for the purposes of s.78 and B does not consent
What is the ratio for AKJ et al v Metropolitan Police Commissioner?
Fraud to obtain sexual relations is not illegal under SOA
What are good enough reasons for consent to s.47 or s.20?
Medical treatment, tattooing (R v Wilson), boxing/regulated sport and male circumcision
According to G Williams in ‘The Unresolved Problem of Recklessness’, what does the Draft Code of the LC plan to go back to?
Subjective recklessness
What is the ratio for R v Satnam and Kewell?
Narrow definition of ‘belief’ - no doubt in D’s mind
What is the AR for battery?
Any act by which one person makes or causes unlawful non-consensual bodily contact with another
H v CPS
Mental patient
What is a positive of the rival, fixed-formula approach to rape?
Respects need for certainty
R v Olugboja [1982]
House rape
What case supports the fact that for the AR of assault, V need not think something is actually going to happen, just apprehend it?
R v Ireland
What is the ratio for R v C?
If relationship is unequal and abusive from the start, V does not change from submitting to consenting
