Assessed Oral Moot Problem - Case Study Example

CRIMINAL LAW ASSESSED ORAL MOOT PROBLEM 6th March 2008 R v Clarkson In the House of Lords Skeleton argument for ­­­­­­­­­­­­­­­­­­­_________________________________ __________ COUNSEL FOR _______________________ First ground of appeal: That the Court of Appeal had erred in holding that Clarence had been impliedly overruled by Ireland insofar as relevant. Mr Clarkson had not ‘inflicted’ any injury on Ms Smith within the meaning of s. 20 of the 1861 Act Submission(s) on ground 1 Interpretation of section 20 of the 1861 Act in relation to the transmission of HIV has been defined as when it can be proven that the person with HIV as infected their partner; that the accused was or should have been aware of the risk of transmission and that they did not receive informed consent from the person they infected. Informed consent has been deemed not to have been given were the person was not made aware of the accused stats either through deceit or omission. It is the submission of counsel in this instance that the accused was not fully aware of the risks of transmission and in the alternative if the court finds that he was fully aware that the accused was under the honest belief that his partner by consenting to unprotected sexual intercourse was also consenting to the risk involved in the transmission of sexual diseases and pregnancy. It is the intention of counsel for the plaintiff to rely on s74 of the Sexual Offences Act 2003 to prove that the victim consented to unprotected and that such consent should be taken to include an acceptance of the risks of disease in all circumstances. The case of Dica mentioned below reliance was placed on the fact that he ought to have known of the danger of transmission of the disease to his partner. In the case of Matias the judge recognised that although the accused knew that he was HIV positive that he might not be aware of the risk of transmission. In this case judge Michael Stokes Q.C. commented that ‘Matias might be in need of further information about issues relating to HIV and hoped that he would be provided with such information while in prison. This demonstrates the doubts that the judge had on the knowledge of the accused with regard to the risk of transmitting this disease to another. In relation to consent counsel will rely on the case of R v B in which the court held that the issue of whether the victim knew of the status of the accused was irrelevant in this particular case. The issue centred on whether the victim consented. The court stated that the issue of informed consent was a separate issue and was not raised as an issue in the case so therefore could not be relied on to show that the victim would not have consented if she had kb=known of his condition. In a paper issued by Eliot he argues ‘that in order to be held criminally liable, the HIV positive person must both understand that HIV is a communicable disease and know how it may be transmitted’. Proof of a lack of knowledge would mean that the court would not be able to assess the guilty mind of the accused. Authorities on ground 1: (TO A MAXIMUM OF THREE) (list your Acts (including relevant sections), cases and other authorities here) R v Dica” (2005) 68 M.L.R. 121 Sexual offences act 2003 s74 ‘For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice’. R v Matias Guardian, April 30, 2005. R v B [2006] EWCA Crim 2945; [2007] 1 W.L.R. 1567; [2007] 1 Cr. App. R. 29; (2006) 150 S.J.L.B. 1392 R. Elliott, Criminal Law, Public Health and HIV Transmission: A Policy Options Paper (Joint United Nations Programme on HIV/AIDS, 2002) p.11. Second ground of appeal: As infection with the HIV virus is only one possible consequence of unprotected sexual intercourse, consent to unprotected sexual intercourse is implied consent to all the risks associated with sexual intercourse. Submission(s) on ground 2: It is the submission of counsel for the plaintiff that unprotected consensual sex between those able to consent within the law should amount to acceptance of all the relevant risks therein attached to having unprotected intercourse, including the risk of pregnancy and the possibility of transmission of a sexually transmitted disease. In the case of Konzani the court relied on the assertion that the victim had consented to all risks that were apparent in unprotected sex. It is the assertion of counsel that the judge erred in making the comment that the disease is fatal as this is indeed not always the case given the availability of new forms of treatment. The court stated that the accused could only rely on consent if he could show that it was informed consent which in this case he could not. Whilst the courts in Konzani and Dica initially held that consent to the risk of transmission should not be allowed in the court of appeal the judge’s reversed these decisions stating that ‘consent to the risk of transmission should provide the person who recklessly transmits HIV with a defence. It was made clear in the case of Konzani ‘that such consent had to be “willing” or “conscious” and that this was, in effect, not possible if the infecting partner had failed to disclose known HIV positive status at the relevant time. The court in Konzani accepted that there maybe occasions were the defendant as the honest belief that informed consent was obtained. The court gave examples of when this might occur stating ‘By way of an example, an individual with HIV may develop a sexual relationship with someone who knew him while he was in hospital, receiving treatment for the condition. If so, her informed consent, if it were indeed informed, would remain a defence, to be disproved by the prosecution, even if the defendant had not personally informed her of his condition. Even if she did not in fact consent, this example would illustrate the basis for an argument that he honestly believed in her informed consent. Alternatively, he may honestly believe that his new sexual partner was told of his condition by someone known to them both. Cases like these, not too remote to be fanciful, may arise.’ It is the assertion of counsel in this case that the accused was under the impression that their partner ought to have known of his condition. Authorities on ground 2: (TO A MAXIMUM OF THREE) R. v Konzani [2005] EWCA Crim 706; [2005] 2 Cr. App. R. 14; (2005) 149 S.J.L.B. 389 R v Dica” (2005) 68 M.L.R. 121 Read More