Herring Ch 6 - Non-Fatal Offences Against the Person Theory

Question 1

The True Nature and Extent of Violent Crime

Answer 1

> Process from committal of the crime to conviction isn’t a straightforward one.
A procedure known as down-charging is common.
E.g. a stabbing may result in charge under s. 18 or s. 20 but if prosecution not confident it can establish the necessary MR, it may prefer to charge under s. 47 where MR is easier to prove.
Or plea bargain where D agrees to plead guilty to s. 47 but not s. 20.
In both cases prosecution may, in order to save time & resources, prosecute for lower offence.
Around 1 in 5 cases of violent crimes reported are domestic violence and may incidents go unreported.
As Anthony Giddens (1989) has written:
-“The home is, in fact, the most dangerous place in modern society. In statistical terms, a person of any age or of either sex is far more likely to be subject to physical attack in the home than on the street at night.”

Question 2

S. Choudhry and J. Herring, “Righting Domestic Violence” (2006) 20 International Journal of Law, Policy and the Family 95.

Answer 2

> Rejection of arguments that state shouldn’t be involved in cases of domestic violence because they are a private matter:

• “… the right of privacy was one held against the state. The right inhibited state intrusion into personal life. It was not relevant where one citizen was interfering in the private life of another.”
• “Violence in the home is less serious than violence in public because it causes less disturbance to the ‘public peace’.
• “A good starting point for rethinking the nature of privacy is to ask: Why should the state respect the private life of its citizens?”
• “Autonomy.”
• “Privacy is not necessarily a negative concept about state non-intervention, but rather about an enabling of each individual to flourish as a person.”
• “Adopting such approach means that privacy is not a concept which prevents state intervention in incidents of domestic violence but one which in fact requires it. Without state intervention a V of domestic violence will be prevented from pursuing her vision of the good life.”
• “If the state wishes to promote privacy in the sense of the ability to thrive in one’s attempt to do what they wish with their lives then protection from violence is required. To leave a person in an abusive relationship which is restricting her ability to develop her life as she wishes is not respecting her privacy, quite the opposite.”

Question 3

Other reasons for why the state should be involved in cases of domestic violence

Answer 3

> Can causes serious harm where children are present. So state’s interests in promoting a more equal society.
Domestic violence should be seen as more serious van violence between strangers as more significant impact on V’s sense of self and well-being plus its impact on children and society’s wish to promote greater gender equality mean domestic abuse can be seen as a major social issue.

Question 4

The Nature of Assault

Answer 4

> Is the offence about the creation of fear (if so why must the fear be imminent force?) or is it closer to an attempted battery (if so why can words amount to assault?)
Jeremy Horder suggests the best way to understand the nature of assault is as a threatening confrontation

Question 5

Objections to and reform of the OAPA 1861 - general & list

Answer 5

> How can an 1861 Act deal with our ‘modern’ problems? E.g. email harassment, racially motivated assaults, stalking & HIV infections.
Ashworth: Act = “unprincipled” and “expressed in language whose sense is difficult to convey to juries.”
Ashworth worries “it may lead judges to perpetrate manifest distortions in order to secure convictions in cases where there is “obvious” guilt but where the Act falls down.”
Most common areas of complaint:
1. Max sentences
2. Correspondence principle
3. “Wound or GBH”
4. Inflict/cause
5. Archaic language
6. Obsolete offences
7. The need for an assault in section 47.

Question 6

Objections to and reform of the OAPA 1861 - most common areas of complaint - maximum sentences

Answer 6

> Seems odd that s. 20 and s. 47 both have same max sentence of 5 years imprisonment when s. 20 is for wounding or GBH whilst s. 47 is only for ABH plus S. 20 has MR of foresight of some harm, rather than foresight of an assault or battery.
Shouldn’t s. 20 (being treated more serious in practice) have a higher max sentence than s. 47?

Question 7

Objections to and reform of the OAPA 1861 - most common areas of complaint - correspondence principle

Answer 7

> Some say its wrong to have an offence where D is guilty even though they didn’t intend/foresee AR.
OAPA 1861 doesn’t accord with correspondence principle as s. 47 there’s no need to intend/foresee ABH and for s. 20, there’s no need to intend/foresee GBH.

Question 8

Objections to and reform of the OAPA 1861 - most common areas of complaint - ‘wound or grievous bodily harm’

Answer 8

> AR of ss. 18 & 20 involves wounding OR causing GBH.
When wounding can be a minor cut is it not wrong to group it with GBH?
Cut could easily turn septic and endanger V’s life at time Act made but not nowadays.
Some argue that cut involves significant invasion of the person and also that including wounding in the offence could be justified as a deterrent to those who use knives or sharp implements in an attack.

Question 9

Objections to and reform of the OAPA 1861 - most common areas of complaint - ‘inflict/cause’

Answer 9

> Dispute over meaning of words ‘inflict’ in s. 20 and ‘cause’ in s. 18.
If mean the same then why not use the same words?

Question 10

Objections to and reform of the OAPA 1861 - most common areas of complaint - archaic language

Answer 10

> Some argue language is archaic and doesn’t describe offences covered in accessible and clear language.
This they argue has led to courts giving a strained interpretation of the meaning of the sections’ words on occasions, e.g. inclusion of psychological illness within the term ‘bodily harm.’

Question 11

Objections to and reform of the OAPA 1861 - most common areas of complaint - obsolete offences

Answer 11

> Some commentators say Act is full of offences with little relevance to modern life.
E.g. s. 17 = ‘impeding a person escaping from a wreck.’
E.g. s. 26 = ‘not providing servants or apprentices with food.’

Question 12

Objections to and reform of the OAPA 1861 - most common areas of complaint - the need for assault in section 47

Answer 12

> Why is assault a requirement?
Shouldn’t it be enough to prove D caused V ABH?
Might not be easy to prove there was a battery or assault.

Question 13

Objections to and reform of the OAPA 1861 - most common areas of complaint critique

Answer 13

> Law Commission (2014) & many commentators are convinced by these arguments and aren’t willing to stand up for the Act.
John Gardner challenges their claims though and stands up for the Act.

Question 14

Objections to and reform of the OAPA 1861 - most common areas of complaint - John Gardner’s challenge in standing up for the Act.

Answer 14

> J. Gardner, ‘Rationality and the Rule of Law in Offences Against the Person’ (1994):

• “Section 20 requires that GBH be inflicted, whereas for section 18 it only needs to be caused. The law at present tells us that infliction requires violent force… If that is right, one may commit a section 18 offence without using violent means, but a section 20 offence requires such means. This the Commission apparently holds to be a self-evidently irrational point of distinction between the two offences. For the Commssion, seriousness varies only ‘according to the type of injury that D intended or was aware he might cause… It fails the test which the Commission uses to determine what factors may affect the seriousness of a crime in this area oof law…The extra element of violence is required for the less serious offence, not the more serious.. This distinction is not merely irrational.”
• However, “only someone who mistakes the harm in section 20 for the wrong in section 20 would think it irrelevant how the harm came about. For the wrong is that of bringing the harm about in that way. In morality, as in law, it matters how one brings things about.”
• “It matters… in deciding which wrong one committed.”
• “The fact that one inflicted harm rather than merely causing it can be, likewise, a matter of intrinsic moral significance.”
• “Under section 20, that is to say, one does not merely end up grievously harmed. One is a victim of violence. This is a common factor, moreover, which unites the infliction of GBH with wounding, accounting for the fact that these sit side by side in a single offence. Thus section 20 is correctly regarded, not merely as a core offence against the person, but as a core crime of violence. Violence is the basic section 20 theme which has to be adapted for the purposes of the more heinous offence under section 18.”
• Extension from harm from violence to harm where it’s caused without being inflicted. “Since the vey fact that one adopts to means to some result entails that one intends it.”
• Which is why s. 18 uses ‘by any means whatsoever’ and s. 20 uses the infliction-oriented proviso ‘with or without any weapon or instrument.’
• “None of this contradicts the Commission’s view that section 18 should be regarded as the more serious version of section 20. On the contrary, it confirms that view.”
• “When we come to relate sections 18 and 20 to section 47… What needs to be uprooted here is the assumption that the former relate to the latter, in substance, as more serious offences to less serious. That assumption needs to be replaced with a sensitivity to the essential qualitative differences between section 47 offences and those covered by sections 18 and 20. They are incomparably different types of offences, with different basic themes.”
• Section 47 belongs to offences of assault (sections 38 to 47). Different type of offences. Neither more nor less serious.
• Answer lies once again in mistaking the harm for wrong. Focusing on harm leads one to believe that s. 47 (ABH) is a less serious offence than s. 20 (GBH).
• Focus on assault not the harm. Whilst many assaults do involve violence, assault is not a crime of violence. Conversely, one may subject another to violence without assaulting them. Reveals “how far the subject matters of sections 38 to 47 diverge from the crimes of violence in sections 18 and 20.”
• S. 47 adds harm requirement distinguishing it from an assault simpliciter and other categories of assault specified in 1861 Act.
• Mistake to say harm plays same logical role in s. 47 like in 18 and 20.
• “S. 47 creates a crime of constructive liability, i.e. a crime which one commits by committing another crime.”
• “Under s. 47, those who commit the crime of assault take the risk, not only that it will occasion harm (the primary risk), but also that, if it does, they will have committed a more serious crime (the secondary risk).”
• “By committing an assault one changes one’s own normative position, so that certain adverse consequences and and circumstances which would not have counted against one but for one’s original assault now count against one automatically, and add to one’s crime.”
• Constructive offences aren’t very popular and violate what Ashworth calls the ‘correspondence principle’. “Fortunately, this ‘correspondence principle’ is not and never has been a principle of English law. The relevant principle of English law is actus non facit reum nisi mens sit rea; no guilty act without a guilty mind.” (constructive offences don’t violate this).
• No MR requirement in s. 47 apart from MR for assault because would be nonsense that those embarking on crimes, change in the process their own normative positions regarding the risks they take.
• “The point is, however, that one cannot have it both ways, since the assault theme (invasion of body space) is not the same as the theme of sections 18 and 20 (personal violence).” Law Commission need to categorically decide which s. 47 should be treated as because otherwise they are “diluting the two themes so that they become harder to distinguish.”
• “In substance, the wrong of an assault crime is different from the wrong a section 20 crime much as the wrong of theft is different from the wrong of fraud. The two may happen to overlap, even across a large proportion of their terrain, but one cannot in principle unify them into neatly scaled family of crimes.”

Question 15

Proposed Reforms to the OAPA 186 - Home Office - proposals

Answer 15

> In 1998, the Home Office proposed replacement of the offences with a more coherent pattern of offences.
2 key points:
1. They largely accord with the correspondence principle: a person is only responsible for the degree of injury he foresaw or intended. (Not perfect as in subsection (iii), there’s no distinction between intentionally & recklessly causing injury.
2. The language used is simple and readily comprehensible.
In 2015, the Law Commission supported the implementation of reform along the lines of the Bill.

Question 16

Proposed Reforms to the OAPA 186 - Home Office and Law Commission proposals - criticism

Answer 16

> Jeremy Horder sees simplicity of language as a vice as he argues to comply with the labelling theory there needs to be an accurate and precise definition of the wrong done to the victim.
However, this could entail much court time and effort dedicated to D claiming, e.g. “I did not disable, I disfigured, and by adopting the HO’s broader definition of ‘causing serious injury’ such arguments could be avoided.

Question 17

Consent - defence of actus reus?

Answer 17

> Vera Bergelson in ‘The Defence in Consent’ (2014), argues that in some cases consent operates as a defence and in others lack of consent is part of the AR.
Some cases, e.g. rape, kidnapping, theft, only become bad in the absence of consent and so using George Fletcher’s terminology, non-consent is a part of the definition of the offense regardless of how a particular criminal statute is drafted. Its role is inculpatory.
“In contrast, causing pain, injury, or death isn’t morally neutral - it is regrettable. Bringing about a regrettable state of events is bad and should be avoided…. consensual killing or hurting is regrettable and prima facie prohibited. In certain circumstances consent may be able to overcome this presumption against killing and hurting. Accordingly, the role of consent here is exculpatory; it may only serve as an affirmative defense.”
-“The affirmative defense shields the D from punishment only if there are special circumstances that may excuse of justify the prima facie prohibited act.”
-“Need 2 distinct sets of consent rules - one, for offenses like rape, theft, or kidnapping, in which the mere presence of consent defeats the charge; and the other for offenses involving physical harm (e.g. homicide or batter) for which consent may only serve as an affirmative defense.”

Question 18

Consent - defence of actus reus? Criticism of Bergelson’s view

Answer 18

> Non-consent is a nothing - it is the absence of something - how can it turn a good thing into a bad thing?
Why does she say pain is regrettable?

Question 19

The dispute over Brown - key differences

Answer 19

1. Majority saw case as involving violence, which shouldn’t be inflicted without very good reasons for which sexual pleasure isn’t sufficient.
2. Minority saw the case as involving consensual private sexual activity. Unless there’s strong reasons to render such conduct unlawful, it shouldn’t be permitted.

Question 20

The dispute over Brown - Lord Jauncey

Answer 20

> Said holding D’s actions to be lawful would be to give ‘judicial imprimatur’ to the actions.
This can’t be correct as to hold an action lawful doesn’t indicate the laws approval of it, e.g. adultery.

Question 21

The dispute over Brown - arguments in favour of Brown - list

Answer 21

1. Concerns about the participants in sadomasochism.
2. Concerns that the activities would harm others.
3. Moral outrage at what the defendants did.
4. Human dignity.
5. The wrongful intent of the sadist.
6. Feminist concerns.

Question 22

The dispute over Brown - arguments in favour of Brown - Concerns about the participants in sadomasochism

Answer 22

> Majority were concerned groups of sadomasochists may insufficiently organised, leading to non-consensual injuries being caused. E.g. consent withdrawn midway but other continues as is caught up in sexual excitement of the moment. Esp. as Lord Jauncey pointed out, if under influence of alcohol or illegal drugs.
Lord Templeman: results of actions = “unpredictably dangerous”. Can consent if V;s not aware of potential consequences.
However, minority said better to prosecute whenever Vs didn’t truly consent than outlaw all sadomasochistic activities.

Question 23

The dispute over Brown - arguments in favour of Brown - Concerns that the activities would harm others

Answer 23

> Lord Templeman: to permit sadomasochistic activity would ‘breed and glorify violence.’
Feared activities could overspill into illegal activities against non-consenting Vs not members of the group, but minority rejected this on basis such fears weren’t well founded.

Question 24

The dispute over Brown - arguments in favour of Brown - Moral outrage at what the defendants did

Answer 24

> Moral outrage.
Lord Templeman: ‘indulgence of cruelty’
Lord Lowry: ‘perverted and depraved sexual desire’ of the appellants.

Question 25

The dispute over Brown - arguments in favour of Brown - Human dignity

Answer 25

> Crucial to protect the taboo in society against deliberately inflicting harm so not to show lack of respect for human dignity.
William Wilson argues however that “no threat to society’s moral integrity is likely to result from esoteric practices of a group of homosexuals.” In a multicultural, multi-faith society we have so many different notions of right and wrong it isn’t possible to talk of key moral principles that form the cement of out society.
Dennis Baker: “A person can waive his right not to be harmed, but he cannot waive his right to maintain a certain level of dignity as a human being.”
Antony Duff: it’s permissible for state to prohibit dehumanizing behaviour. “They were enacting rituals of torture, which treat the person tortured as, or try to reduce him to, a humiliated and degraded animal… what they consented to and sought was treatment that, in itself, denied their humanity.”
Duff has later written an argument that says that D’s conduct in Brown is worthy of at least moral respect because it is orientated toward morally legitimate ends (mutual sexual please) and is informed by morally admirable values (love and respect) even if means by which those ends are pursued is in others’ eyes shocking.

Question 26

The dispute over Brown - arguments in favour of Brown - The wrongful intent of the sadist

Answer 26

> Madden Dempsey locates wrong in the reasons for their acts - to cause pain and suffering - rather than the actual acts.
She goes on to explain that someone harming a masochist simply to give the masochist pleasure is less objectionable because they are promoting masochist’s well-being (as understood by the masochist).
Problem is that sadist isn’t harming based on understanding of the masochist’s well-being.
Sadist derives pleasure from thrill of causing intense pain to V.
Others, e.g. Margo Kaplan, say that mutual pleasure is central to their appreciation of what’s happening.

Question 27

The dispute over Brown - arguments in favour of Brown - Feminist concerns

Answer 27

> Some (not all) feminist writes think sadomasochism could disguise instances of domestic violence.
Cases of most serious domestic abuse where V becomes completely subservient to the abuser and accepts violence as appropriate punishment for their wrongdoing, look chillingly like cases where cases adopt BDSM (bondage, dominance and submission, and sadomasochism) roles.

Question 28

The dispute over Brown - arguments against Brown - overview

Answer 28

> Minority’s view is based on principle that private consensual activities should be rendered illegal only if it can be shown that such conduct harms society.
Easier to support minority’s standpoint in justifying the exceptional circumstances in which consent can provide a defence:
-Minority = such actions don’t harm society.
-Majority = such actions are beneficial to society and so the violence is justified.
Best response from those in favour of Brown is that majority objected to the ‘intentional’ infliction of harm. In Brown, unlike in the exceptional cases, the activities would have been unsuccessful for all concerned because there wasn’t any pain.
Some say court’s decision showed prejudicial attitudes in courts’ decisions in this are - ‘manly’ behaviour - real men may set each other alight (Aitken), but do not wound each other for sexual pleasure (Brown).
Or it’s permitted to brand your spouse (Wilson) but not to ask a tattooist to split your tongue (BM)?

Question 29

The dispute over Brown - arguments against Brown - Paul Roberts on relevance of V’s consent in a criminal case from a philosophical perspective - outline

Answer 29

> ‘Appendix C’ in Law Commission Consultation Paper No. 139, ‘Consent in the Criminal Law; (1995):

• Outlines 3 approaches = liberalism, paternalism, legal moralism.
  1. Liberalism and Criminalisation
  2. Consent and Harm Principle.
  3. Paternalism.
  4. Paternalism Ideals and Values.
  5. Paternalism and Criminalisation.
  6. Legal Moralism.

Question 30

The dispute over Brown - arguments against Brown - Paul Roberts on relevance of V’s consent in a criminal case from a philosophical perspective - liberalism & criminalisation

Answer 30

> The liberal is particularly hostile to state intervention through the mechanism of criminal prohibition & regulation.
As Raz observes: ‘Coercion by criminal penalties is a global & indiscriminate invasion of autonomy.”
The criminal law places direct limits on individual freedom which the liberal wants to keep to a minimum.
Must be some limits so liberal doesn’t want absolute liberty, but rather the max individual liberty that is compatible with similar liberty to all.
Liberals support the offence principle because some forms of offence can be so extreme and protracted that they unacceptably infringe the autonomy of unwilling observers are are therefore, on liberal principles, legitimate candidates for criminalisation.
But extremely cautious and limits use.
The liberal will only countenance criminalising offence which is extreme and unavoidable, and this can never be said of activity which takes place in private.

Question 31

The dispute over Brown - arguments against Brown - Paul Roberts on relevance of V’s consent in a criminal case from a philosophical perspective - consent and harm principle

Answer 31

> Liberalism will only countenance interference with individual liberty in order to prevent harm or serious offence so it is inconsistent with liberal principles to criminalise self-injury.
Consensual harm cannot said to be ‘wrong’ in the relevant sense either, as Feinberg explains:
-“The harm principle will not justify the prohibition of consensual activities even when they are likely to harm the interests of the consenting parties; its aim is to prevent only those harms that are wrongs.”
Can a person ever be wronged by conduct to which he has fully consented? Feinberg continues…
-“There is a principle of law which emphatically answers this question in the negative: Violenti non fit injuria (‘To one who has consented no wrong is done’).
Liberal position on criminalisation & consent:
-“Fully valid consent ought to be a defense to all the crimes that are defined in terms of individuals acting on other individuals, including batter, (serious injury) and murder… Collaborative behaviour ought never to be criminal when the collaboration is fully voluntary on both sides and interests other than those of the collaborative parties are directly or substantially affected.”

Question 32

The dispute over Brown - arguments against Brown - Paul Roberts on relevance of V’s consent in a criminal case from a philosophical perspective - Paternalism

Answer 32

> Legal paternalism = It is always a good reason in support of a prohibition that it is probably necessary to prevent harm (physical, psychological, or economic) to the actor himself.
Legal paternalist advocated what the liberal denies: that the state may be justified in using its most coercive powers to force a person to act or forbear to act against his will in order to promote his own self-interest and well-being.

Question 33

The dispute over Brown - arguments against Brown - Paul Roberts on relevance of V’s consent in a criminal case from a philosophical perspective - Paternalism Ideals and Values

Answer 33

> Places greater value on the attainment of some objective or end-state than on the ideal of autonomy.
Justifies criminal prohibitions and so endorses state interference with one’s freedom of choice and action on basis it is for one’s own good/promotes own welfare.

Question 34

The dispute over Brown - arguments against Brown - Paul Roberts on relevance of V’s consent in a criminal case from a philosophical perspective - Paternalism & Criminalisation

Answer 34

> Challenge legal paternalists face is ‘why should the promotion of an individual’s welfare take precedence over the liberal preference for respecting his or her autonomy?
Paternalist: ‘We should legislate to save people from themselves, to prevent them from doing grave harm to their own welfare.
Issues paternalists face:
1. Argue from a philosophical slippery slope. Should we therefore criminalise smoking? Fatty foods? Risk-taking activities like mountain climbing, sky-diving? Theoretically, the paternalist seems to be committed to using the criminal law to turn us all into super-fit, clean-living ‘spartans’, whether we like it or not.
2. Some criminal prohibitions which are often justified by paternalist arguments are in fact best explained in terms of the harm principle and are therefore perfectly consistent with liberalism.
3. Modern-day liberals follow J S Mill in pointing out that the state can do a great deal to assist people to make the right choice without resorting to the coercion of criminal sanctions. The liberal state can educate, inform, remonstrate, persuade, and exhort, and provided that it stops short of outright coercion it retains its liberal principles.

Question 35

The dispute over Brown - arguments against Brown - Paul Roberts on relevance of V’s consent in a criminal case from a philosophical perspective - Legal Moralism - types

Answer 35

> 2 types:

1. Strict legal moralism = it can be morally legitimate to prohibit conduct on the ground that it is inherently immoral, even though it causes neither harm nor offence to the actor or to others.
2. Moral conservatism = It can be morally legitimate to prohibit conduct on the ground that it will lead to drastic change in traditional ways of life, even though it causes neither harm nor offence to the actor or to others.

Question 36

The dispute over Brown - arguments against Brown - Paul Roberts on relevance of V’s consent in a criminal case from a philosophical perspective - Legal Moralism

Answer 36

> Legal moralism justifies criminalising evils that don’t directly harm or offend anyone.
Such evils don’t infringe on people’s rights and therefore don’t give any particular individual a legitimate ground for grievance of complaint.
Liberalism isn’t the view that morality can never be enforcred by means of criminal prohibition, for the injunctions against causing harm or serious offence to others are surely moral rules.
Distinction between liberalism & legal moralism isn’t that moralists enforce morals whilst the liberal doesn’t, but that the liberal will only use the criminal law to enforce that part of morality constituted by the harm principles.
By contrast, the moralist will in principle use the criminal law to proscribe any immorality, even if it causes not harm or offence to anybody.

Question 37

Harm Principle

Answer 37

> John Stuart Mill wrote about the harm principle.

>The harm principle holds that the actions of individuals should only be limited to prevent harm to other individuals.

Question 38

The dispute over Brown - Law Commission

Answer 38

> Law Commission in its report written after Brown, chose not to adopt fully one on the 3 positions outlined in Roberts’s paper.
Basic approach = a person shouldn’t be able to provide effective consent for a ‘serious disabling injury’ but could for a less injury.
‘Serious disabling injury’ = serious distress, and involve loss of bodily member or organ or permanent bodily injury or functional impairment, or serious/permanent disfigurement, or severe & prolonged pain, or serious impairment of mental heal, or prolonged unconsciousness. When determining whether permanent, the fact that it may be remedial by surgery shouldn’t be taken into account.

Question 39

Body Modifications - Samantha Pegg’s (2019) objections to BM’s reasoning to find extreme modification was unlawful

Answer 39

1. Assumes those seeking body modifications are looking to harm themselves.
   - When Brown was decided, body piercing was considered a subcultural practice, yet in 2008 10% of population had a body piercing. It is reasonable to assume body modification are more widespread than the court had appreciated.
2. Lord Burnett CJ seems to suggest that those who seek out bodily modifications may be mentally ill is not a sound rationale on which to exclude modifications from the class of activities to which one may consent. Mentally ill & vulnerable may participate in dangerous sports or cosmetic surgery but we trust that their governing bodies will self-regulate.

Question 40

Emotional and relational harm

Answer 40

> Criminal law clearly covers physical injuries but emotional harm rarely amounts to a criminal offence.
Only if = psychological injury, harassment, creation of fear of imminent violence.
E.g. in Dhaliwal, husband reduced wife to emotional reck but this wasn’t a crime.
Lindsay Farmer, in ‘Making the Modern Criminal Law: Criminalisation & Civil Order’ (2017) sees signs that law is beginning to recognise harms beyond the merely physical:
-“Personhood is understood as a kind of personal space in which an individual is able to exercise or develop their autonomy and sense of self. This personal space is protected by the law not only against physical har,, but now also against threatening, intimidating, controlling or abusive conduct.”
-“The law is placing a particular weight on responsible conduct in relation to others by criminalising conduct which the person knew, or ought have known, would be experienced as abusive.”
-“This conception of personhood thus comes together with and facilitates a pressure for increased criminalisation.”

Question 41

Transmitting Disease & the Criminal Law

Answer 41

> George Mawhinney:
-“The right not to be harmed, the right to life, must take precedence over social awkwardness every time in any morally sound person’s mind. There is always another option, and that is to refrain from unprotected intercourse, if an honest confession as to the risk D poses to V should they have unsafe sex is too onerous for D.”
-Goes on to reject proposal the offence should only be committed if V has asked D if he is infected & he denies it.
However, Samantha Ryan argues that is is appropriate to limit the use of the law to cases where D has actively deceived their partner about their HIV status.
Others argue that criminalisation of infection might work against public health strategies as someone maybe discouraged from seeking treatment for fear of prosecution nor do we want people to be deterred from taking tests (like those deterred from downloading track and trace app in case they were ‘pinged’) to see if they have an STD for fear of its potential impact on their sexual life.
Can be seen as an attack on gay community as in 2006, 60% of newly diagnosed cases were among heterosexual couples.
A third of those with HIV are unaware.
Mothers who pass HIV onto babies during pregnancy or breastfeeding aren’t prosecuted.
Why doesn’t the same law apply to other communicable diseases?
Better to focus on other behaviours, e.g. human trafficking & organ selling, which are closely linked with spread of HIV rather than on prosecuting individuals.

Question 42

Transmitting Disease & the Criminal Law - Matthew Weait, ‘Knowledge, Autonomy and Consent: R v Konzani’ [2005]

Answer 42

> Suggests sexual activity can be regarded as a joint activity, with each participant being responsible for the potential consequences.
Disappointed by CA’s justification for Konzani:
-“Personal autonomy is not enhanced if the D is exculpated when he recklessly transmits the HIV virus to her through consensual sexual intercourse.”
What justification does this have for imposing criminal liability via the denial of a defence based on honest belief in consent?
Autonomy “suggests the right of a person to be free from unwarranted and unwanted physical interference.”
“Where consent operates as a defence to a charge of assault, or causing bodily harm, it reflects the law’s recognition that there exists a sphere (albeit one circumscribed by public policy considerations) in which people should be entitled to freedom from liability because to hold otherwise would result in a significant and unjustified diminution of essential human freedoms.”
Distinction between consent in rape meaning there’s no legally recognised harm committed and the case above where law protects a putative D from criminal liability not on the basis that no recognisable harm has been caused, but because of the context in which it has taken place.
Law is protecting the autonomy of the person who harms from the imposition of unjustified liability.
CA in Konzani suggests that it is the autonomy of the person harmed that it is the law’s function to protect because the court indicates that the complainant’s autonomy is not enhanced by exculpating a person who recklessly harms her by transmitting HIV and by implication that it is enhanced by denying such a D the right to assert an honest belief in her consent to the risk of such harm.
The non-discloser may not assert an honest belief in his partner’s consent, because the fact of non-disclosure renders her ‘consent’, uninformed, legally nugatory, and therefore not one on which his, or should be, entitled to rely.
CA: “silence in these circumstances is incongruous with honesty.”
Court recognised in Dica that consent to risks associated with sexual intercourse because to deny them this right would amount to an infringement on authority that only Parliament could sanction.
In Konzani, however, the court has made clear that only an informed consent amounts to consent.

Question 43

Transmitting Disease & the Criminal Law - Matthew Weait, ‘Knowledge, Autonomy and Consent: R v Konzani’ [2005] - problems with CA’s decision in Konzani

Answer 43

> By using the language of autonomy so loosely, and failing to specify the justification for, and scope, of, the decision in Konzani is, the court has delivered a judgment which fails to deal with the core issues which its subject matter raises.

1. In emphasising that only in the most exceptional circumstances will non-disclosure be congruent with honesty, the court has imposed a standard of reasonable belief in cases where there has been an absence of disclosure - should this not be for Parliament to decide as in rape?
2. Courts have imposed a positive duty.
3. Should it not then follow that disclosure as a precautionary principle ought to be adopted by those who are infected with serious or potentially serious contagious diseases.

Question 44

Transmitting Disease & the Criminal Law - Dennis Baker, ‘The Moral Limits of Consent in Criminal Law’ (2008)

Answer 44

> Unlike Weait, he argues that an HIV-positive person shouldn’t be able to rely on consent to justify risking transmission of the condition.
“Court wrong to hold that informed consent would have been sufficient to provide D in Konzani with a defense.”
Informed (knows partner has HIV) consent = consent to more than a remote risk of grave harm.
Risking human dignity.
Mental element = harm-doer knows there was real risk.
“A consenter should be able to take remote chances, as this preserves her personal autonomy.”
HIV case - grave harm. No different to consenting to a leg amputation.
“There is no need to be able to identify the exact ex post facto harm at the ex ante criminalisation stage, so long as the reckless behaviour generally poses a real risk of grave harm.”

Question 45

Concluding thoughts

Answer 45

> Remarkable that law on assaults is based on an act over 160 years old.
Imaginative statutory interpretation by the courts.
Law on assaults reflects wider social attitudes about what counts as harm to a person & what a person may or may not do with their bodies.
Many debates reflect wider issues about the place of the body in modern society and the significance of concepts such as dignity and autonomy.