Criminal Law Issues - Assignment Example

Criminal Law "It is not possible for a person to consent to bodily harm being inflicted upon them" Critically examine the ment above with reference to cases and articles that support your arguments. The issue in this question requires analysis upon the law on consent and whether bodily harm inflicted upon a person with his consent is or is not a defence. The first offence that would be looked into is common assault which is committed ‘if a person intentionally or recklessly causes another to apprehend the application of immediate unlawful force’ (Fagan v MPC)1, this definition has also been approved by the House of Lords (Savage and Parameter)23. The defence of consent does apply in this situation, as consent would clearly negate common assault and therefore there would be no offence. However, there are limits under which consent tends to limit criminal liability and this could be illustrated by an example of a defendant with the requisite intention of causing harm, even though such harm was trivial in nature. Even though consent must be precise in nature to the act concerned, it need not be stated expressly. Medical treatment given by doctors to patient may amount to battery or be an aggravated non-fatal offence, if consent was not obtained. However, where consent is given, it would be a defence, as such treatment is likely to result in bodily harm being caused. There has been an implied presumption that people consent to ordinary social contact, however, this also depends on the surrounding situations and circumstances (Lord Goff in Re F where private and public necessity was discussed)4 .5 There have been certain requirement under which the provision of consent apply, that is it should not be obtained by fraud or duress. The fact that a fraud has been committed to obtain consent to sexual intercourse by false representation, would constitute as battery (R v. Williams)6. The rule that stood was that the fraud must go to the nature of the act or to the characteristics of the executor and it had been decided that if a fraud to the effect and result of the act was committed, it would not in itself suffice so as to vitiate consent (R v. Clarence where the identity was known but not the collateral and so no assault)7. However, in R v. Tabassum8 the court found that there had been consent as to the nature of the act and none in relation to quality, thus creating a new dimension of ‘quality’.9 In a recent Court of Appeal decision (Rv Dica)10, it was stated that Clarence would not be of appropriate application where the defendant had infected two sexual partners with HIV and so consent to unprotected sexual intercourse clearly did not mean that that the victim had impliedly consented to the risk of such infection from the act. Thus, even though there was no fraud as to the nature of the act of sexual intercourse, there was fraud as to the possible risk of HIV, thus they had not consented to bodily harm. This approach was followed by the court in later decisions (R v. Barnes11 and R v. Feston Konzani12]. The result of such decisions is that if someone knows that he is HIV positive and is aware of the fact that if he has unprotected sex with his partner, it has a risk of transmission and still does the act, without telling the victim, he would be liable to prosecution if his partner becomes infected. Fraud as to identity of a person may also vitiate consent. However, the fraud as to qualifications of defendant does not make such consent ineffective. (Richaedson)13. If consent is given because of duress, it may be ineffective, as consent should clearly be obtained freely and not by threats or fear. The test which would determine duress is unclear as it is not known whether the reasonable man succumbing to the act would suffice or the victim’s own actions would be sufficient. Relationship may allow duress to be implied (Nichol)14.15 The age will not make consent ineffective provided the victim had understood the nature of the act. The next main element that has played a vital role in making consent ineffective is public policy grounds which states that the bodily harm was likely or had been intended and it was not in public interest that such behaviour should be disregarded. (Attorney General’s reference (no. 6 of 1980)16. Thus it has been found that where the courts consider the act o be for a valid social purpose and is justified on grounds of public interest, such consent will be valid and the possible criminal liability will be annulled even where the act in question is perilous there is a possible risk of injury. (e.g. medical treatment, ear piercing or sports that are conducted properly). Even though such principles have been well established by the courts, the measure requires weighing up of the social utility of the conduct of the defendant, a principle not always clear. The Court of Appeal in Attorney General’s reference (No. 6 of 1980) stated that if there is either ‘infliction of any degree of bodily harm or bodily harm which more than transient or trifling; or where such harm was intended but not caused’, consent could be defence if it was in public interest and provided for certain conducts like properly conducted games, reasonable surgical operation and lawful discipline to be of such interest. The House of Lords approved the decision in Brown17 where it was stated that even though there had been consent by sado-masochistic homosexuals there was a criminal act under Offences Against the Persons Act 1861 because as per Lord Lane ‘the satisfying of sado-masochistic libido does not come within the category of good reason (or public interest) nor can the injuries be described as merely transient or trifling’. There was an appeal to European Court of Human Rights where it was argued that the right to private and family life that had been guaranteed under Article 8 of the European Convention on Human Rights had been infringed, however, the court found that such rights were not absolute in their nature and so had to be balanced out so as to protect the aim of health and morals. However, the courts have not always been consistent in their approach which can been seen in differing cases, the first one being that of Slingsby18 where the victim died as a result of sexual activities to which she had consented, where it was found that ‘it would be contrary to principle to treat as criminal, activity which would not otherwise amount to an assault merely because an injury was caused’19; contrary to this the courts did find a person guilty on the same facts in Boyea20. Further, Russell LJ in Wilson21 stated that ‘consensual activity between a husband and wife in the privacy of the matrimonial home is not in our judgment a proper matter for criminal investigation, let alone prosecution.’ The case of Wilson was distinguished in Emmett22 and it was stated rather in a peculiar way that the harm in Wilson was less serious and that the potential damage in this case was evident to the defendant and the court went on to say that the case of Brown was not an authority in all the circumstances. Thus there has been a suggestion that the law on this matter is to be developed on a case by case basis. The next issue where consent arises is that of medical treatment. It has been long standing that where consent has been obtained it is always lawful treatment, however, if such consent was not obtained, then it might be battery or a more serious offence subject to any defence available. In respect of body adornment, the courts have allowed consent, subject to limits, to be a valid defence, even though such acts would result in bodily harm. Thus if an adult consent to piercing of body parts it would be valid unless done for sexual gratification. Furthermore, a parent’s consent to ears of child being pierced is valid, however, where the procedure is invasive the parents’ consent may not be valid as ‘the courts have been unwilling to accommodate foreign cultural practices involving children such as incision of cheeks’23. In cases of lawful sports the law has recognised that consent will prevent battery provided it could have been reasonably expected in the game. However, if the game does allow for dangerous conduct, then courts can find such consents to be unlawful (boxing might be an exception to this rule as sometime there is consent to serious injuries). Thus if it is argued that a criminal offence was committed by a person it should be brought forward only if the player injured another player during the sports event and the act could have been categorised as criminal. (Barnes)24. The actions of children while they are playing could be rough and such consents might constitute to be a defence to infliction of bodily harm, this was extended to adults in Aitken.25 In respect of children , it was held to be lawful, that parents used reasonable force so as to discipline their children provided the child could understand the purpose for which such actions had been undertaken. However, if corporal punishment, or the force that was used was unreasonable then such conduct could be classified as unlawful. The law on consent has therefore has developed through case law and there have been differing opinions of judges even though the facts of the case have been the same. There have been time when consent was held to be valid defence and such a finding could be said to justified, but on the other hand there have been decisions which have been severely criticised. The courts have at times decided to leave out consented activities between husband and wife and on others have took an action against it, however such an action by the courts can be said to be justified as they have merely tried to balance out the approach of balancing out privacy, protection and consent. Furthermore, the activities under sado-masochism have been held to be unlawful merely to protect a greater cause, that is corruption of the younger generation, thus the public policy in this respect is clearly justified. As for consent in respect of fraud, the law has been uncertain and there have been time when the decisions which have been reached have allowed for unreasonable decisions to be reached and this clearly requires statutory intervention, so as to straighten out the law in this respect. Finally, the decision of courts to hold doctors accountable for battery and other offence if they do not obtain has been criticised, however, it can be seen that such an approach has balanced out respect for religion, the importance of consent of the person himself and wrongdoings, if any by the doctors. Thus even though the law on consent has its problems, it is to a very great extent satisfactory and balanced out. Bibliography Smith, John C, Brian Hogan, David Ormerod, John C. Smith, Brian Hogan, David Ormerod, John C. Smith, Brian Hogan, and David Ormerod. Smith & Hogan Criminal Law. Oxford [etc.: Oxford University Press, 2005. Print. Ashworth, A. Principles of criminal law. (Oxford: Oxford University Press, 2006) fifth edition [ISBN 0199281149] Clarkson, C.M.V. and H. Keating Criminal law: texts and materials. (London: Sweet & Maxwell, 2006) sixth edition [ISBN 0421947802] Simester, A.P. and G.R. Sullivan Criminal law: theory and doctrine. (Oxford: Hart Publishing) second edition [ISBN 1901362604] Ormerod, D C. Smith and Hogan Criminal Law: Cases and Materials. Oxford: Oxford University Press, 2009. Print. Jefferson, Michael. Criminal Law. Harlow, UK: Pearson Longman, 2009. Print. Finch, Emily, and Stefan Fafinski. Criminal Law. Harlow, England: Pearson Longman, 2009. Print Martin, Jacqueline. Criminal Law. London: Hodder Arnold, 2009. Print. Read More