OAPA Flashcards

Question

R v Ciccarelli [2011] EWCA Crim 2665

Answer 1

* Under s75 Sexual Offences Act 2003, evidence of reasonable belief in consent must be realistic before the issue is left to the jury to decide * Some evidence beyond the fanciful or speculative had to be adduced to support the reasonableness of his belief in her consent

Answer 2

Key point Where a vulnerable and immature individual is groomed, there may be no true consent to sexual activity, whether there is consent is for the jury to decide Facts Ds were charged with rape for grooming young girls from troubled backgrounds for sexual purposes The prosecution argued that after grooming, the girls became sexually compliant and any consent was not genuine Ds appealed on the basis that the jury was wrongly directed to consider whether the girls had truly consented Held (Court of Appeal) Appeal dismissed – Ds were rightly convicted Fulford LJ When vulnerable people are groomed for sexual exploitation, compliance can mask the lack of true consent on the part of the victim: [57] Although grooming does not necessarily vitiate consent, it starkly raises the possibility that a vulnerable or immature individual was led to acquiesce rather than consent Grooming has the tendency to limit or subvert the free will of the victim by creating an environment of dependency: [58]

Answer 3

Key point Deception on the situation that were threatening did not fall within the meaning of ‘nature and purpose’ in s76 Sexual Offences Act Facts D and V were in a sexual relationship After V broke off the relationship, D pretended to be police officers in text messages to V, which demanded that she to have sex with him, threatening her with a fine if she refused D was charged with rape Held (Court of Appeal) D was rightly convicted – although the conclusive presumption in S76 Sexual Offences Act 2003 did not apply, V did not consent within the meaning of S74 of the Act Judge LJ S76 raises conclusive presumptions that ‘require the most stringent scrutiny.’: [23] S76(2)(a) only applied to deception on the nature or purpose of intercourse and no conclusive presumption arose when the complainant is deceived in some other way such as ‘disingenuous blandishments of or common or garden lies’: [24] In this case, V was deceived not about the nature or purpose of the act of intercourse but about the situation in which she found herself: [28] However, V had not consented to intercourse for the purposes of s74 and D was aware she had not consented: [29]

Answer 4

Key point The test for reasonable belief in consent under the Sexual Offences Act is objective and mental illness of the defendant should not be taken into account Facts D was convicted of raping his partner D was a paranoid schizophrenic and did so as he believed he had ‘sexual healing power’ The judge directed the jury to ignore D’s mental illness in determining whether he had reasonable belief in his partner’s consent for the purposes of s1(1) Sexual Offences Act 2003 D appealed on the ground that the judge misdirected the jury Held (Court of Appeal) Appeal dismissed Hughes LJ On the facts medical evidence showed that D’s condition did not impair his ability to understand whether or not his partner consented But even if it did, such a delusional belief cannot in law render reasonable a belief that his partner was consenting when in fact she was not Unless the state of mind amounts to insanity in law, a belief in consent arising from mental illness must be judged by objective standards and not by taking into account the mental illness However, there might be cases where the defendant’s personality or abilities are relevant, such as if they impede his ability to recognise social cues Commentary Hughes LJ seemed to acknowledge that it would be difficult to draw the line between what is a relevant lack of ability and an irrelevant mental illness – one such case would be where the inability to recognise social cues results from low intelligence and he settled on saying that such a case will be decided on the specific facts

Answer 5

*This case is a departure from R v Jheeta by giving a wide meaning to deception as to purpose under s76 Sexual Offences Act 2003, and was later rejected in R v Bingham D thought that his daughter’s ex-boyfriend (V) had mistreated her and sought revenge D pretended to be 20-year-old girl on the web and persuaded V to masturbate on webcam so as to release the footage on the internet D was charged with causing a person to engage in sexual activity without consent under s4 Sexual Offences Act 2003 There was no deception in the nature of the act which was undoubtedly sexual * However, there was deception in the purpose, which was not sexual gratification but rather for revenge by releasing the footage on the web * Therefore s76 construed widely * Maybe because there was only one purpose, separate purpose would be different

Answer 6

* Even if asleep, not always rape if V previously consented * If V was asleep – evidential presumption under s 75 which means if D raises evidence more than speculative or fanciful then question must be put to jury whether V consented

Answer 7

* Both incapacity to choose and incapacity to express consent can be mental as well as physical

Answer 8

* A jury would be entitled to find that consent to sexual intercourse with a condom is not consent to sexual intercourse without a condom which affords protection * Not conclusive presumption as to deceit but based on general meaning of consent

Answer 9

Key point Deception as to one’s gender can vitiate consent under s.74 of the Sexual Offences Act (SOA) 2003. Facts The defendant (D) and the victim (V) were in an online relationship. D was a girl but V believed D was a boy as D called herself ‘Scott’ and wore men’s clothing. When they met in-person, D penetrated V with a dildo on multiple occasions. V claimed she would not have consented to this if she knew D’s true gender. D was convicted of the offence of assault by penetration under s.2 SOA 2003 at first instance. Issue Had D’s deception as to gender vitiated V’s consent as defined under s.74 SOA 2003? Held (Court of Appeal) Appeal dismissed; D’s conviction was upheld. Leveson LJ D’s deception deprived V of V’s “freedom to choose” because “[V] chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the appellant’s deception.”: [26] Not all deceptions will vitiate consent, such as those relating to one’s wealth: [25] Here, though, the deception is relevant because it altered the sexual nature of the act of penetration: [26]

Answer 10

Key points A strict interpretation of s76 Sexual Offences Act 2003 must be adopted pursuant to Jheeta Deception as to peripheral matters, such as identity and consequences of non-compliance, must be distinguished from deception as to purpose Facts D, pretending to be other men, threatened his girlfriend, V, that he would email photographs of her to her employers if she did not perform sexual acts on webcam D was charged with causing a person to engage in sexual activity without consent Issue Did the conclusive presumption under s76 Sexual offences Act 2003 apply? Held (Court of Appeal) Appeal allowed – the conclusive presumption in s76 did not apply Hallett LJ The definition of purpose under s76 should not be defined too widely, s76 must be strictly construed as it effectively removes the only line of defence to a criminal charge ‘If there is any conflict between the decisions in Jheeta and Devonald, we would unhesitatingly follow Jheeta’: [20] D’s purpose had been sexual gratification and V was aware of that: [22] Deception to a ‘peripheral matter’ will not amount to deception of purpose under s76: [23] However, the prosecution has a strong case that there was no consent under s74 if they can prove that V only complied as she was blackmailed: [24]

Answer 11

* Undercover officer met and fell in love with V as part of operation/cover – V deceived as to identity of D – court upheld CPS decision not to prosecute * D had deceived V but not as to nature or purpose of sexual acts therefore no rape: court strict about what kind of deceptions will negate consent * Although V would not have consented if she knew the truth, deception did not go to nature of act: therefore it could not vitiate consent

Answer 12

* Lawrance: D deceived V about having a vasectomy: CA held D was not guilty: * Test: Is fertility so closely connected to performance of sexual act as to negate consent? * No – not directly connected to (physical) act itself * Deceptions as to result of act are immaterial

Answer 13

This was defined by the House of Lords in DPP v Smith [1961] AC 290 as meaning nothing more technical than "really serious bodily harm". The Court of Appeal has since held, in R v Saunders [1985] Crim LR 230, that it is sufficient for a trial judge to direct a jury that grievous bodily harm simply means "serious harm" and the omission of ‘really’ is not a misdirection. In deciding whether the injury was serious, the jury should be instructed to look at the injuries caused by the accused in total and so it may be that even though none of the injuries was sufficient to amount to GBH their combined effect was – Grundy [1977] Crim LR 714 In deciding whether the injuries are grievous, this is an objective question and not what the victim regarded them as – Brown and Stratton [1988] Crim LR 485, CA. In Bollom [2004] 2 Cr App R 50 the jury could take into account the fact that the bruises were to a 17-month-old child and the same sized bruises on an adult might not have amounted to GBH. It has also been recognised that serious psychological injuries can constitute GBH – Ireland and Burstow and that infection with HIV also – Dica [2004] EWCA Crim 1103

Answer 14

Key point The fact that a job may involve the risk of physical harm does not imply consent Facts D, a young student suffering from ADHD, assaulted a teacher at a school for students with special needs D alleged that the assault had been impliedly consented to by the teacher Held (High Court) Appeal dismissed Occupational risk was not the same as implied consent to the use of violence against them by pupils An analogy to implied consent in contact sports to the risk of injury was rejected Commentary Contrast this case to Barnes which considered the application of implied consent in sport Refused to hold that teacher consented to harm just because she foresaw a risk of it

Answer 15

In deciding this the court will look at the nature of the substance and the amount supplied

Answer 16

"To infect an unsuspecting person with a grave disease you know you have, or may have, by behaviour that you know involves a risk of transmission, and that you know you could easily modify to reduce or eliminate the risk, is to harm another in a way that is both needless and callous. For that reason, criminal liability is justified unless there are strong countervailing reasons. In my view there are not." 12 According to Spencer actual knowledge of HIV positive status is not necessary for a finding of recklessness and the imposition of liability. Reliance on this passage by the Court of Appeal in Dica would seem to indicate its acceptance of this broad view of recklessness. Ryan, Crim LR 2006

Answer 17

HIV positive status and modes of transmission should be a necessary requirement for the imposition of criminal liability [under the current law, it seems] liability may be imposed upon a finding of wilful blindness on the part of the accused as to their HIV positive status. As a result the net of criminal liability for transmission of HIV is spread very widely, potentially capturing individuals who have never been tested or diagnosed or who are not aware that their conduct poses a risk to others

Answer 18

* the type of sport in question; * the safety rules, level and conditions under which the game in question was played; * the "playing culture" of the game, recognising that in highly competitive contact sport conduct outside the rules should be expected to occur "in the heat of the moment" but might not reach the required level of criminality; * the nature of the injuring act and its surrounding circumstances, recognising that injury inflicted "off the ball" is more likely to exceed the boundaries of implied sporting consent; * the extent of force employed; * the degree of risk of injury including the probability of serious harm; * the state of mind of the accused Anderson Crim. L.R. 2008, 10, 751-763

Answer 19

(a) Sports and organised games R v Billinghurst [1978] Crim LR 553. R. v Barnes [2004] EWCA Crim 3246. ‘properly conducted’. Attorney-General's Reference (No 6 of 1980) [1981] 2 All ER 1057. (b) Tattooing, ritual circumcision of males, ear piercing and personal adornment Wilson [1996] - activities similar (c) Religious mortification Where, as part of an act of repentance, the penitent asks another to inflict pain upon him. This category was specifically mentioned by Lord Mustill in Brown. Ad hoc intervention (d) Rough horseplay This will apply where children play rough games together: - R v Jones (Terence) (1986) 83 Cr App R 375. . R v Aitken and Others [1992] 1 WLR 1066. (e) Surgery carried out by a medically qualified person BM [2018] EWCA Crim 560 (f) Dangerous Exhibitions This exception was brought into existence by the CA in Attorney-General's Reference (No 6 of 1980) [1981]. (g) Belief in Consent

Answer 20

Bamforth: It was wrong for the majority to frame sado–masochism as violence rather than a meaningful part of sexual activity If a presumption in favour of respecting a person as a sexual agent is adopted, given the misery caused by regulation of consenting sexual activity, consenting sado-masochistic activity should be protected both under the law Hart: Laws restricting consenting sexual behaviour may “create misery” because “sexual impulses…form a strong part of each person's day-to-day life” Duff: Respect for a person as an autonomous subject requires respect for their integrity as a sexual agent Bix: It is just a matter of characterisation to describe the same activity in different ways, ie violence rather than sexual activity Hedly: There is no real threat to public interest if the risk was acceptable to the indulgers If consent is not a defence in this case, consent in cases of boxing should also be investigated since the same arguments apply to boxing Defendants were not given opportunity to adduce evidence against the claims the judges made that, e.g. “[I]t would appear to be good luck rather than good judgment which has prevented serious injury from occurring” Bix: No general principle is drawn on when consent does or does not serve as a defence Lord Mustill (Dissent): Sadomasochism would only fall into special category if there is “good reason” to view so → Unclear what the good reason is A more direct confrontation of moral questions would have been preferable to procedural or evidentiary justifications for decisions