What is the short title of this Act? (2 marks)
The short title of this act is Offences Against the Persons Act 1861 (OAPA).
What is the long title of this Act? (5 marks)
The long title of the act is an Act to consolidate and amend the Statute Law of England and Ireland relating to Offences against the Person.
When did this Act come into force? (3 marks)
The Act received royal assent on 6 August 1861 and come into force on 1 November 1861.
Explain in your own words what are the main non-fatal offences under this Statute? (10 marks)
A non-fatal offence under this statute refers to the malicious wounding or infliction of grievous bodily harm (GBH) to another person under the Section 20 of OAPA 1861. The actus reus of this offence implies an unlawful wounding or inflicting GBH. According to Moriarty and Brooks (1834), the wound to the victim requires all layers of the skin to be pierced. The term ‘inflict’ imply that there must be some sort of action, in which the decision from Clarence (1888) that the infliction of GBH must be caused by an assault or battery.1 Using the DPP v Smith, the infliction of grievous bodily harm implies that the harm must be ‘really serious’.2 However, the decision in Wilson (1984), suggests that there could be an infliction of GBH which contrary to the Section 20 without an assault.3 This is supported by the decision in Burstow (1998) where the idea of inflicting serious psychiatric injury on another which does not require any physical force can amount to the offence under Section 20.4 The harm does not need to be life-threatening or permanent or to have a long-lasting consequence or even require treatment.5 The grievousness of the harm must be judged objectively based on contemporary social standards and experience,6 which takes into account the injury of the victim and their age, health and other factors.7 The ‘wounding’ of the victim must prove that the inner and outer skin to be broken from the D’s conduct. The mens rea requires the defendant to be ‘malicious’ which Mowatt (1967) interpret the term as ‘intentionally’ or ‘recklessly’. Further to this, Savage; Parmenter (1992), to prove that D’s conduct is malicious, it is enough to prove that D intended some physical harm to a person, albeit of a minor character, in which could result in harm.8 This non-fatal offence has a maximum penalty of five years imprisonment.9
Another non-fatal offence is the offence of wounding and grievous bodily harm with intent under the Section 18. This indicates the conduct ’causes’ contrary to ‘inflict’ of grievous bodily harm. The actus reus of Section 18 is the same as the actus reus in section 20. The mens rea requires an intention to do either grievous bodily harm or resist the lawful apprehension of any person. However, recklessness does not apply. 10 The offence charged under this section has a maximum sentence of life imprisonment.11
Lastly, Section 47 of the OAPA (1861) refers to actual bodily harm caused to the victim. This includes any injury that interferes with the health or comfort of the victim.12 The harm to the claimant relates to injury otherwise it would not be enough to interfere with the claimant’s health or comfort if there is no injury, which does not have to be permanent. The ‘bodily’ harm is not limited to the skin, flesh and bones but includes all parts of the body.13 The actus reus of this offence must prove the commission of the AR of an assault or battery caused actual bodily harm. The mens rea requires that the bodily harm does not have to be intended or foreseen as a risk by the defendant.14 This offence has a maximum of five years imprisonment.15
Consider the following scenario: Vicky got into a fight with Hamza in a bar. During the fight, Hamza grabbed a beer bottle and broke it over Vicky’s head. The broken glass cut deeply into Vicky’s neck causing such severe bleeding that Vicky needed emergency hospital treatment to save her life.
Explain the differences between a s18 and a s20 offence under the OAPA 1861 within the scenario? (10 marks)
Hamza breaking the beer bottle on Vicky’s head could make him liable for wounding and inflicting GBH with intent under section 18 of OAPA 1861. The defendant satisfies the actus reus where the conduct is ‘grievous’ or really serious because Vicky suffered a cut on her neck that caused severe bleeding and requires an emergency treatment to save her life. Moreover, Hamza fulfils the mens rea of section 18 which is the intention to do GBH on Vicky. Using the CPS Charging Standards which provides guidance about selecting the most appropriate charge, the intent to cause GBH in Section 18 includes the deliberate selection of weapon, in which Hamza grabbed a beer bottle and hit Vicky’s head.
Whereas, in Section 20 the offence under the OAPA is a malicious wounding or infliction of grievous bodily harm to another person. The mens rea of this section shows the defendant’s act is reckless (Savage 1992). Mowatt 1968 also indicates that the person is aware that his act could cause physical harm to another person, in which Hamza foresaw that breaking a beer bottle on the victim’s head could result into physical injury but still continue to do the act.
Therefore, Hamza is more likely to be charged under Section 18 because of the intention of his act, which if held liable he will serve a maximum sentence of life imprisonment.
Consider the following scenario: Ravandeep, Barry and their friends organised a game of football. At one point in the game, Barry, slide tackled Ravandeep. Barry’s football studs slid down the back of Ravandeep’s leg causing a cut that requires 3 stitches at the hospital.
What potential defences may be raised within the scenario in relation to offences under this Act? (10 marks)
A potential defence that could be raised in this scenario where Ravandeep and Barry were playing a game of football and Barry’s football studs slid down the back of Ravandeep’s leg resulting in a cut. The general rule is that a person may consent to the act which could be a defence for an assault or battery but not to ABH or GBH. However, Emmet (Stephen Roy) 1999 established a ‘good reasons’ exceptions. For instance, in an organised games or sports, taking into account rules of the game and D’s intention (Barnes 2005) in which slide tackling of Ravandeep is a part of the game in order to get the ball from the opposing team. In addition, the consent from both parties is informed that by playing a sport such as football there is a possibility of harm occurring. Further to this, Barry is entitled to be acquitted if they are taking part in a “rough” and undisciplined sport and does not have the intention to cause harm, in which the injuries occurred are within the victim’s consent.16 Hence, Barry can use consent as his defence against Ravandeep’s injury.
What are the proposals for reform of the OAPA 1861 as outlined in the Law Commission Report in November 2015 and what is the rationale behind them? (10 marks)
The Law Commission Report proposes a reform of the Offences Against the Persons Act 1861 in November 2015. J.S. Smith stated that the act “is a rag-bag of offences brought together from a wide variety of sources with no attempt, as the draftsman frankly acknowledge, to introduce consistency as to substance or as to form”. They believe that the act is outdated as the language used were old and vague. To illustrate this, the word ‘maliciously’ have no clear meaning even if courts have interpreted it, the word used to define an offence is ambiguous. Therefore, this leads to the recommendation of the reform to make the Act more “clear modern and simple” where the language will be easier to understand and the offences are classified appropriately.
The Magistrates Association stated that: “OAPA 1861 contains a large number of offences distinguished by specific type and individual circumstances. Some will be known to the public, usually by their abbreviated forms such as GBH and ABH, but without a clear understanding of the differences in law.” There is no clear hierarchy of the offences and it is difficult to differentiate some of the offences from one another. For instance, the section 20 which refers to maliciously wounding or inflicting grievous bodily harm is seen more serious as the ‘grievousness’ implies the harm to be really serious, whereas Section 47 is an assault occasioning actual bodily harm, but both have the same maximum penalty of five years.
The Law Commission Report proposes to replace ss18, 20 and 47 with three new offences:
a) Intentionally causing serious injury to another, with maximum penalty of life imprisonment
b) Recklessly causing serious injury to another, with maximum penalty of seven years
c) Intentionally or recklessly causing injury to another, with a maximum penalty of five years.
The offences under this Act are complex because some of the offences overlapped as they can relate to each other which can be put under one offence. For example, there are four offences relating to the misuse of explosives. Thus, the need for reform is needed because those offences that are similar can creates doubt as to whether the individual would be charged with multiple offences that have common meaning. The reform state that “if there is a common theme to the scenarios listed, the offence should be defined by that common theme.” Furthermore, the reform suggested what level of harm must be for the defendant to foresee in order to satisfy the offence. However, they also suggest that the defendants should not be penalised for the harm that they did not intend or foresee.
The Lord Chief Justice supports the reform: “I recognised the problems identified in the paper…the legislation is out of date…new ways of offending are not satisfactorily captured.” Hence, this reform will make the Act easy to understand with a clear clarification of the boundaries for each offence.
Part B: Court of Appeal (Criminal Division) Judgement in R v Konzani (Neutral case citation number: (2005) EWCA Crim 706 (50 marks in total)
Draft a summary of case of the facts, issues, decision, reasons for decision and the ratio in the above case (25 marks)
Feston Konzani is convicted on three counts of inflicting grievous bodily harm on three women. The appellant was an HIV positive and was inform of the risks of passing the infection to any sexual partners. Konzani had unprotected sexual intercourse with all the women and did not informed them that he was an HIV positive, in which resulted in all the complainants contracting the HIV virus.
The first complainant, DH, had sexual intercourse with the appellant unprotected. There was no discussion about the potential risks and the possibility of pregnancy. She discovered she was HIV positive and that the appellant never told her that he was HIV positive. The risk of catching the virus never entered the mind of the complainant.
The second complainant, RW, moved in with the appellant and had sexual intercourse in which sometimes with protection, sometimes not. She did not think about the risk of having unprotected sex with the appellant as she had trusted him. After testing for pregnancy, she also found out that she was HIV positive and the appellant did not tell her that he was HIV positive. She gave birth to a child who was HIV negative.
The third complainant, LH, had a four-year-old son who has a life-threatening condition which concerns with hygiene. They were HIV negative. The appellant informed her that HIV was not common from where he came from and did not tell her that he was HIV positive. She jokingly stated that she hoped that the appellant did not have any disease to which he responded with “Don’t be stupid”. She genuinely believed that if someone has HIV, then it’s their responsibility to tell their sexual partner.
Konzani appeal on the grounds that by consenting to unprotected sexual intercourse the complainants consented to the risks relating to having unprotected sexual intercourse.
· Whether the appellant’s conduct can be considered ‘reckless’.
· Whether the complainants’ consent to have unprotected sexual intercourse with the defendant extends to the acceptance of the risk of contracting the infection.
· Whether the appellant had an honest belief in the complainant’s consent
The appeal was dismissed. In providing a defence using consent it must be informed by the defendant cannot honestly believe that the complainants’ consent to the risk of getting the HIV by withholding his condition.
Reasons for decision
Whether the appellant’s conduct can be considered ‘reckless’.
An individual’s act may be perceived as reckless if they are aware that their action has a consequence of causing harm to another person and continue to proceed with the act. The witness had told the jury that once the appellant had been aware of his condition, Konzani spoke in terms of eradicating women. Further to this, the appellant concealed his condition to his sexual partners and exposed them to the risk of getting the infection, in which all the complainants had been tested as HIV positive. During the interview from one of the complainant, when she and Konzani were having a conversation she jokingly said “I hope you haven’t got any disease” to which he replied with “Don’t be stupid”. Therefore, Konzani’s act is reckless as he concealed information which results in the complainants becoming HIV positive.
Whether the complainants’ consent to have unprotected sexual intercourse with the defendant extends to the acceptance of the risk of contracting the infection.
The complainants had consented to have unprotected sex with the appellant but not with taking the risk of getting the infection. Each complainant “did not willingly consent to the risk of suffering that infection” (para 34). Mr Roberts for the appellant pointed that whether she consented to that risk, not consented to being given the disease which is both different as “willingly consent” refers to the consent being done consciously. The defendant cannot be convicted of the offence if there had been an informed consent with the sexual partner that there is a risk of transferring the infection. At the time of the sexual intercourse, the complainants did not consent to the risk of suffering the infection. If they have been aware of the appellant’s condition and continue to have sexual intercourse with him, then they consent to the risks. The appellant could be convicted if it is proven that the complainants “did not willingly consent to the risk of suffering that infection”. The appellant could only rely on defence if the informed consent of the complainants is present and willingly consent to the risk of HIV.
Whether the appellant had an honest belief in the complainant’s consent
In this instance, the appellant relies on the honest belief in consent as a defence. The court indicated that there must be honest belief and consent to provide a defence, in which the appellant had failed to show evidence. Thus, it leads to the jury concluding that the complainants had consented to the risk of getting the infection.
Even if the act of the appellant was reckless by concealing his condition, the complainants may have given an informed consent to the risks of contracting the infection. For instance, when an individual receives a treatment for his condition and his sexual partner had been aware of this, then they can rely on informed consent as their defence, as the sexual partner does not have to be personally informed of the condition. The sexual partner may not consent but the defendant had honestly believed in the informed consent.
In a sexual intercourse with an HIV patient, there must be an informed consent that by consenting to unprotected sexual intercourse, they consent to all the possible risk as a consequence of that act. With the informed consent, the defendant can use this a defence. If an individual has HIV virus and conceals this to their sexual partner, then that individual does not have informed consent as they cannot give their consent to something they have no knowledge of. The defendant could use consent as a defence if he honestly believed that the sexual partner had consented to take the risk of contracting HIV.
What examples of judicial precedent can be found within this Judgement? Please provide specific examples from the Judgement (15 marks)
Judicial Precedent is where the judges have followed the decisions in previous cases and bases their decision on this and becomes a source for future decision making until the case becomes overruled.
· In which the appellant honestly believed that she consented because they had sexual intercourse and so takes the possible risk of this act. The court in Jones (1986) 83 CAR 375, where “the judge declined to direct the jury that the defendants were entitled to be acquitted if the jury decided that they were indulging in ‘rough’ and undisciplined sport or play, not intending to cause harm, and genuinely believing that the injuries which occurred in the course of the horseplay occurred with the victim’s consent.” (paragraph 36)
· Lord Mustill in R v Brown 1994 1 AC 212 directs that “what types of conduct are properly excluded from its scope and what is meant by ‘going too far’ will not remain constant”. There is no limit or definite on what’s gone too far as the individuals’ changes with the passage of time. Thus, what’s gone too far will not remain constant. (paragraph 36)
· R v K 2002 1 AC 422 established the guilty mind of having sexual intercourse with an underage girl. (paragraph 37)
· It is required in Section 20 of OAPA 1861 that there must be an element of recklessness from R v Cunningham 1957 2 QB 396, in which the defendant must have foreseen that his action has a dire consequence in which the victim suffers harm, this is approved in R v Savage 1992 1 AC 422. (paragraph 37)
· R v Dica 2004 EWCA Crim 1103 the issue of consent where having a sexual intercourse with an individual who they are aware of suffering from HIV could provide no defence. (paragraph 38)
· R v Clarence 1888 22 QBD that when the wife consented to a sexual intercourse, the consent extends to the possible risks of sexual intercourse such as sexually transmitted disease. (paragraph 38)
· R v Barnes 2004 EWCA Crim 3246 an individual can be guilty of the offence under section 20, if they had a sexual intercourse knowing their condition and conceals this information, thus infecting the sexual partner. (paragraph 39)
What were the policy decisions in this case? Please make reference to particular parts of the judgement? (10 marks)
Policy decisions are rules or agreements that defined the principles to help determine future decisions.
· R v Brown 1994 1 AC 212 established a clear principle that the consent of the injured person does not form a kind of all-purpose species of defence to an offence of violence contrary to s 20 of the 1861 act. (paragraph 40)
· In accordance with the public interest, “the spread of catastrophic illness must be avoided or prevented.” (paragraph 42)
· “The principle of personal autonomy in the context of adult non-violent sexual relationships should be maintained.” This insinuates that when an individual conceals his condition to their sexual partner and had sexual intercourse as a result contracted the disease, this does not protect the personal autonomy of the victim as they are deceived by their sexual partner. (paragraph 42)
· Reckless must also be established. Otherwise, the defendant cannot be convicted without the mens rea of the offence, unless there has been an informed consent. (paragraph 43)
By placing policy consideration, it protects the public interest such preventing potential victims of contracting diseases, which could affect their daily life. It is only fair for the state to intervene in cases such as this in order to prevent it from reoccurring that victims could potentially suffer from grievous bodily harm through sexual intercourse.
1 1888 22 QBD 23, CCR
2 1961 AC 290, HL
3 1984 AC 242, HL
4 1998 AC 147, HL
5 Bollom 2003 EWCA Crim 2846; Golding 2014 EWCA Crim 889
6 Brown 1998 Crim LR 485
7 Bollom 2003 EWCA Crim 2846
8 1992 1 AC 699, HL
9 Richard Card & Jill Molloy, Criminal Law (22nd edn, Oxford University Press 2016) page 186
10 1976 1 WLR 741
11 Richard Card & Jill Molloy, Criminal Law (22nd edn, Oxford University Press 2016) page 192
12 Archbold’s Criminal Pleadings and Practice 32nd ed., p. 959
13 Chan-Fook 1994 2 All ER 552, CA
14 Roberts 1971 56 Cr App R 95, CA
15 Richard Card & Jill Molloy, Criminal Law (22nd edn, Oxford University Press 2016) page 177
16 R v Jones 1987 Crim LR 123