Sexual Offences Act

Question 1

The main offences arising out of this particular case are relating to the Sexual Offences Act 2003 and the Offences Against the Person Act 1861.

Claire v Len (Sexual Offences Act 2003)

If it can be shown that Len acted unlawfully, his unlawful act would fall under s. 2 of the Sexual Offences Act, assault by penetration.

The actus reus of the offence is penetration by the defendant of the vagina or anus of another person with a part of the defendant's body or anything else. The penetration needs to be sexual and the victim does not consent to the penetration.

The mens rea of the offence is the intentional penetration and lack of reasonable belief by the defendant that the victim consents.

In this case, Len had committed the actus reus (penetration of the vagina) of the offence. It is, however, necessary that both actus reus and mens rea are present in order for the offence to exist.

As mentioned above, lack of reasonable belief that the victim had consented, will amount to the necessary mens rea. Therefore the issue of consent needs to be considered.

S. 74 states that valid consent is where a person agrees by choice, and has freedom and capacity to make that choice.

In order to further examine whether Claire had consented and whether Len had a reasonable belief that she had consented, the issue of voluntary intoxication needs to be considered.

In R v Benjamin Bree [2007] 2 All ER 676 on appeal against conviction for rape, the Court of Appeal emphasised that if a person has voluntarily consumed alcohol, but remained capable of deciding whether or not to have intercourse, and while intoxicated agreed to do so, this would not amount to rape.

If a defendant has the mens rea even while intoxicated, he will be guilty of the offence. Furthermore, intoxication can only amount to a defence if it meant that the defendant did not form the mens rea for the crime and if the crime is one of specific intent.

Crimes of specific and basic intent were defined In DPP v Majewski [1977] 2 WLR 623. It stated that crimes of specific intent are those where the mens rea of the offence is intention only, while crimes of basic intent are those where the mens rea includes recklessness.

Voluntary intoxication can only be a defence to crimes of specific intent where the defendant was so intoxicated that he did not form the mens rea of the offence. Therefore, voluntary intoxication is no defence to any crime that can be committed recklessly.

In R v Heard [2007] 3 WLR 475 the Court of Appeal held that the offence under s. 3 was one of basic intent, despite the fact that s. 3 requires proof that defendant's touching was "intentional". Court of Appeal categorised the offence of sexual assault as an offence of basic intent, in order to ensure that voluntary intoxication could not be available as an excuse.

Following the decision in R v Heard, assault under s.3 is an offence to which voluntary intoxication will not provide a defence. It would be safe to presume that the same principle would be applied to offences under s. 2 as well.

Len could argue that he lacked the mens rea and that his honest belief was founded on the fact that initially Claire reacted positively to his kiss. However, it could be argued that kissing him back, does not necessarily mean that she consented to sexual penetration. He would need to prove the lack of mens rea, and he cannot rely on voluntary intoxication as defence. Therefore, if it can be shown that Claire had not consented and that Len had no reasonable belief that she had, he would be guilty of the offence.

Len v Claire (Offences Against the Person Act 1861)

In order to establish the level of Claire's culpability, both ss. 47 and 20 need to be considered.

Under s. 47 the actus reus of the offence is defined as an assault which occasions actual bodily harm.

In R v Miller [1954] 2 QB 282 it was stated that actual bodily harm means any injury that might interfere with the health of the victim. Harm does not have to be serious and a bruise would be sufficient.

Mens rea of s. 47 was established in R v Savage; R v Parmenter [1992] AC 714 where the House of Lords held that intention or recklessness is adequate mens rea. It is not required to prove that the defendant intended or was reckless as to the harm.

It could be argued that Claire has both actus reus and the mens rea of the offence. By pushing Len (assault) she caused his fall (occasioning) and he suffered fractured skull (actual bodily harm). However, due to the nature of his injury, s. 20 also needs to be considered. The actus reus of the offence is to wound or inflict grievous bodily harm. A wound requires both layers of the skin to be broken, and blood to be drawn.

The mens rea of s. 20 is determined in the word "maliciously" which is interpreted as intentionally or recklessly.

In R v Savage; R v Parmenter it was established that the defendant only needs to intend or be reckless. It is not necessary to prove that the defendant foresaw really serious harm or the exact harm that occurred.

Claire could argue that when she pushed Len, she did not do it intentionally and whether she foresaw any harm resulting from her assault would need to be considered. Both ss. 47 and 20 state that reckless conduct could amount to sufficient mens rea. The deciding factor here would be the fact that Len suffered fractured skull after his fall. Although it would be difficult to establish whether fractured skull would fall within the definition of s. 20, it would nevertheless be a question for jury to decide whether such injury would amount to really serious harm. If it could be shown that fractured skull is indeed classified as a wound, then Claire would be guilty of an offence under s. 20. However, if this type of injury does not fall within the s. 20, then she would be guilty of an offence under s.47.

The fact that Claire was intoxicated would not be a valid defence, because both ss. 47 and 20 are basic intent offences and voluntary intoxication cannot be a valid defence for such offences.

If it could be shown that Len had acted unlawfully and that he had the mens rea for the offence of sexual penetration, she could argue the defence of self-defence. An individual may use reasonable force to act in self-defence if he honestly believes there is a danger, even if that belief is unreasonable.

Claire's subsequent act, however, could amount to battery. The actus reus of battery is infliction of unlawful personal violence on the victim. No injury is required for the offence to exist. The mens rea for battery is to intentionally or recklessly inflict unlawful violence.

Claire's act of removing Len's trousers and writing in lipstick "rapist" on his body, could amount to battery. As there is no need for the defendant to suffer any injury, it could be argued that she intentionally inflicted unlawful violence. She could not rely on voluntary intoxication as defence.

Word count: 1228

Bibliography

Allen, M. J. and Cooper, S. (2006) Elliott & Wood's Cases and Materials on Criminal Law, (9th edition), Sweet & Maxwell

Open University (2009) W201 Law: the individual & the state, Unit 21, Assaults, Milton Keynes, The Open University

Open University (2009) W201 Law: the individual & the state, Unit 22, Incohate Liability and Sexual Offences, Milton Keynes, The Open University

Open University (2009) W201 Law: the individual & the state, Unit 23, Defences (1), Milton Keynes, The Open University

Cases

R v Miller [1954] 2 QB 282

DPP v Majewski [1977] 2 WLR 623

R v Savage; R v Parmenter [1992] AC 714

R v Benjamin Bree [2007] 2 All ER 676

R v Heard [2007] 3 WLR 475

Question 2

The issues in this case relate to the Offences Against the Person Act 1861 and the Homicide Act 1957.

George v Hugh (Offences Against the Person Act 1861)

Hugh committed an offence under s. 18 of the Offences Against the Person Act 1861. The offence of wounding or causing grievous bodily harm with intent is the most serious non-fatal offence against the person.

The mens rea required for s. 18 is intention and recklessness will not be adequate. Section 18 states that the actus reus is wounding or causing grievous bodily harm. The mens rea for this offence is intention.

Although Hugh might have been reckless in terms of the injury he caused, he nevertheless had the intention of causing grievous bodily harm, and it is irrelevant what the type of injury he ended up inflicting. He could argue that the actus reus of the offence could fall under a lesser offence under s. 20, however, as shown above, the mens rea he had both prior and during the offence is one of intent. There was no recklessness, and therefore it could be argued that both the mens rea and the actus reus are sufficient for an offence under s. 18.

There is also an issue of consent, since both George and Hugh had agreed to be part of the fight and therefore consented to any injuries. However, following R v Brown [1994] 1 AC 212 consent can only be a defence to ss. 47, 20 and 18 if it is in the public interest. Hugh could therefore not argue that George had consented. It would be irrelevant in particular since George suffered wounds.

In R v Tabassum [2000] Cr App R 328 the Court of Appeal held that for consent to be valid, a person consenting had to know the identity of the person and the nature and quality of the act. In the present case it could be argued that George might have thought he was consenting to a fist fight, but not to a fight with a weapon.

Furthermore, in R v Dica [2004] 3 All ER 593 the Court of Appeal held that the defence would not be available where there was a deliberate infliction of grievous bodily harm. The consent of the victim to the deliberate infliction of bodily harm was no defence.

Hugh could not rely on the defence of self defence as he was fully aware of the fight before it had happened and was a willing participant. His use of knife was in order to ensure that he will win the fight and therefore impress the other members of the gang.

He could not claim that he was incited by the other members of the gang, because he went ahead with the idea, which could make him a part of a conspiracy.

R v Hugh (Offences Against the Person Act 1861 / Homicide Act 1957)

Intention to cause grievous bodily harm is an adequate mens rea for murder. Once the actus reus has been established (killing another person), the defendant must also have the appropriate mens rea. Mens rea is an intention to kill or cause grievous bodily harm. In order to establish whether the defendant had the appropriate mens rea, the subjective test is applied. This subjective test asks whether the individual defendant intend to kill or to cause grievous bodily harm.

In R v Moloney [1985] 1 AC 905 the issue of indirect intention came into the question. Indirect or oblique intention refers to the situation where the defendant has a purpose other than causing the unlawful act, however where the unlawful act is foreseen as being virtually certain, than it can be said that the defendant had intended that result.

Although Hugh might not have intended to kill anyone, he must have foreseen that there is a high possibility that this might occur. Furthermore, although he chose Jacob as his victim with the intention of wounding him, it was foreseeable that he could miss and injure or kill either Jacob or another person.

Although Hugh killed an unintended victim, his mens rea remains unchanged. The doctrine of transferred malice states that if a defendant intends to commit a crime against one victim, that intent will be transferred to any unintended victim. The doctrine of transferred malice establishes that it is irrelevant whether Jacob or Kate were intended victim. The question to be asked is whether Hugh intended to cause death or grievous bodily harm to any person.

The reform of the criminal law relating to murder suggests that in situations where the defendant intended to cause serious harm would no longer attract a mandatory life sentence.

Hugh, however, does not have any defences that he could rely on. He will therefore be liable for murder.

Bibliography

Allen, M. J. and Cooper, S. (2006) Elliott & Wood's Cases and Materials on Criminal Law, (9th edition), Sweet & Maxwell

Open University (2009) W201 Law: the individual & the state, Unit 21, Assaults, Milton Keynes, The Open University

Open University (2009) W201 Law: the individual & the state, Unit 23, Defences (1), Milton Keynes, The Open University

Open University (2009) W201 Law: the individual & the state, Unit 24, Homicide (1): Murder and Voluntary Manslaughter, Milton Keynes, The Open University

Open University (2009) W201 Law: the individual & the state, Unit 25, Homicide (2): Involuntary Manslaughter and Death by Dangerous Driving, Milton Keynes, The Open University

Cases

R v Moloney [1985] 1 AC 905

R v Brown [1994] 1 AC 212

R v Tabassum [2000] Cr App R 328

R v Dica [2004] 3 All ER 593