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Criminal liability case: Rape, bodily harm, and theft

There are several offences that may or may not have been committed by Caroline and / or Tony in this account. The possible offences are:

  • Illegal immigration
  • Loitering or Soliciting for prostitution, contrary to s.1 of the Street Offences Act 1959
  • Rape, contrary to s.1 of the Sexual Offences Act 2003
  • Actual Bodily Harm, contrary to s.47 Offences Against the Person Act 1861, or
  • Common Assault, contrary to s.39 Criminal Justice Act 1988
  • Theft, contrary to s.1 of the Theft Act 1968
  • Grievous Bodily Harm, contrary to s.20 Offences Against the Person Act 1861.

As Caroline is an asylum seeker, and there is no other evidence to suggest that she has either arrived or remained in the United Kingdom illegally, it is not worth discussing possible immigration offences. Also, as there is no sufficient evidence to support a charge of loitering or soliciting to prostitution, and as prostitution itself is not an offence there is no point in discussing the liability of either character in relation to the loitering or soliciting because it is not known if Caroline’s encounter with Tony followed an act of loitering or solicitation, although or practical purposes it probably did.

It is also worth mentioning that if liability is established for any offending, there are several factors can shield an otherwise guilty person from the attachment of criminal liability. These include youth, insanity, duress and necessity, amongst others that are more ‘offence specific’. From the facts of the account it would appear that none of the general defences would apply and so if an offence is made out it would probably be charged.


Section 1 of the Sexual Offences Act 2003 replaced the previous versions of rape that the law had recognised, and did so with a new offence that placed greater emphasis on the actor to obtain consent than the old law had done when it looked to establish that the sexual act was procured by force, fear or fraud[1], gradually replaced[2] but not fully abolished until the Act of 2003.

The common law had long understood that consent obtained by fraud would be invalid consent, as shown in the old cases of Flattery[3] and Williams[4] but the law gradually developed limitation to the type of fraud that would be permitted to invalidate otherwise genuine consent.

In Papadimitropoulos[5] even deception as to the lawfulness of a marriage ceremony was insufficient to invalidate the victim’s consent to the intercourse that followed. The most relevant example to these facts is of course Larter[6] where intention to not pay a prostitute for her services, followed by actually not paying her was still insufficient to render her initial consent invalid and leave the defendant guilty of rape.

The court of appeal in Larter held that the reason for why the prostitute agreed to have sex with the appellant Larter was not relevant to whether her consent was valid or not. She had been deceived not to the nature of the sexual act, as in Flattery and in Williams, and nor to the quality of the act as in Tabassum[7], or the identity of the actor as in Elbekkay[8], but she had merely been deceived as to the circumstances for her incentive to agree to it.

The position under the new law post 2003, is no different to that of the common law on this point. The new law provides that, in relation to this type of situation, a presumption of no consent will only apply if:

s.76(2) exist then it is conclusively presumed that the complainant did not consent and that D did not reasonably believe in her consent. The circumstances are that—

(a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act; or

(b) ... (not relevant)

Caroline has similarly been deceived by Tony on the same issues as in Larter and so, following Larter, Tony will not be guilty of the rape of Caroline.

Actual Bodily Harm, or Common Assault

The non fatal offences are found in the Offences Against the Person Act 1861. Section 47 is the offence of Actual Bodily Harm, which the Crown Prosecution Service treat as including a ‘displaced broken nose’[9]. No information is given as to the extent of Tony’s injury following the punch in his face by Caroline, but if she has broken his nose, and it has displaced, then it would appear that she has committed the section 47 offence.

Viscount Kilmoir LC in Smith[10] described a grievous bodily harm as needing to be an injury that was “really serious”, which is unlikely to be satisfied by her sole punch to his face, although not impossible. Reed and Fitzpatrick go on to point out that actual bodily harm means something that is ‘not so trivial as to be described as wholly insignificant... [and] a bruise, a graze and cut would all be capable as being described as an actual bodily harm’[11].

If Tony does not have an injury such as a broken nose, or minor fracture, or cuts requiring stitching (as detailed by the CPS), or injury that could properly be described as actual, then Caroline may not have committed the offence of actual bodily harm, but she will in that case have certainly committed the offence of common assault, section 39 of the Criminal Justice Act 1988.

Common Assault is an offence based merely on the putting another person in fear of the immediate application unlawful personal violence. Common assault requires no physical contact to be made with the victim, as shown long ago in Tuberville v Savage[12]. The victim need only apprehend that unlawful force is likely to be applied to them immediately, although the immediacy of the threat has been more loosely defined in recent decisions.

In Constanza[13] the Court of Appeal held that a prolonged apprehension of violence may still complete the offence providing that there could be violence in the immediate future. There is no such difficulty in this account because Caroline has actually punched Tony. She will only have committed the assault offence however, if he was aware that she was going to punch him before she made contact with his person.

If Tony did not see he about to punch him then there would have been no assault. Caroline would merely have battered Tony, although the outcome of this would still be liability upon Caroline for the level of offence that befits Tony’s injuries. The distinctions between the non fatal offences against the person are determined mainly by the seriousness of the result. The legal outcome will depend on the harm caused, under the general principle of ‘you take your victim as you find him’; otherwise known as the eggshell-skull rule.

Consent cannot be pleaded by Caroline to whatever offence she is charged with simply because it is not possible to say that Tony consented to this affront.


Theft requires less than just the taking of property, but is committed when property is dishonestly handled, which is appropriated. Some of the most widely referred to authorities from the House of Lords that turn on the issue of appropriation include Lawrence[14], Morris[15], Gomez[16], and Hinks[17], House of Lords.

Caroline has certainly appropriated the money that she took from Tony, because from Morris it is understood that all handling of property is an appropriation. The Theft Act 1968 states that ‘property includes money’[18], and it cannot be convincingly argued from the facts given that Caroline did not intend to permanently deprive Tony, to whom the property belonged, of the property at the time that she appropriated it. The only remaining issues is that of whether or not Caroline was dishonest when she did do, and if she was she thus fulfils the definition of Theft and her offence is complete.

The 1968 Act cites three examples of when conduct will not be dishonest. They are:

2 — (1) A person’s appropriation of property belonging to another is not to be regarded as dishonest—

(a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or

(b) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or

(c) ... if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

Caroline may be able to rely on the provision at subsection (a) of section 2 of the Act, that she believed that she had a right in law to the property. To do so she would not have to show that she had an actual right in law to the property, which she may or may not have given that the law is not usually inclined to uphold contracts of an immoral or illegal nature. She would only have to show that she had a genuine, ‘whether reasonable or not’,[19] belief that she has a legal right to the property, which it is likely that Caroline could satisfy. She is unlikely to therefore convicted of theft.

Grievous Bodily Harm

The position as regard people who spread disease was that for the whole of the 20th century the authority of Clarence[20] held out an as impossible the prosecution of such people where the disease was spread thorough consensual sexual activity. Clarence was a case where a man gave his wife gonorrhoea, ‘an incurable and fatal disease of the day’[21] and was acquitted of inflicting a GBH (s.20 OAPA 1861) upon her, essentially because it was transmitted through consensual sexual intercourse. The court held that he had not inflicted it upon her, as was required by the 1861 Act, and Warburton notes that the fact that she was his wife, and he could not be convicted at that time of raping his own wife probably influenced the court a great deal in not attaching criminal liability to the transmission[22].

In other types of cases involving the consensual infliction of serious injury, it has been decided that it is not in the public interest to allow citizens to commit grievous bodily harms upon each other without impunity[23]. Recently however the law has responded with conviction for section 20 offences where the defence had failed to tell the victim of his HIV infection, and where the infection subsequently passed on. It is therefore possible that if Tony is the source of Caroline’s infection, and he had failed to tell her of his status he may be convicted of GBH upon her.


Ormerod D, 2005, Smith & Hogan Criminal Law, 11th Ed. OUP

Reed and Fitzpatrick, Criminal Law, 3rd Edition, Sweet & Maxwell, 2006

Warburton D, 2004, A Critical Review of English Law in respect of Criminalising Blameworthy Behaviour by HIV+ Individuals, Journal of Criminal Law, Vathek Publishing, Vol. 68.1

Word count: 2000


[1] Howard (1965) 3 All ER 684

[2] Olugboja [1982] QB 320

[3] (1887) b2 QBD 410

[4] [1923] 1 KB 340

[5] [1958] 98 CLR 249

[6] eg: Larter [1995] Crim LR 75

[7] (2000) 2Cr App Rep 328.

[8] [1995] Crim LR 163


[10] DPP v Smith [1961] AC 290

[11] Reed and Fitzpatrick, Criminal Law, 3rd Edition, Sweet & Maxwell, 2006, p.376

[12] (1669) 1 Mod Rep. 3: 86 All ER 684

[13] [1997] Crim LR 576

[14] [1972] AC 626

[15] [1984] AC 320

[16] [1993] AC 442

[17] [2000] 4 All ER 833

[18] Section 4(1)

[19] Ormerod D, 2005, Smith & Hogan Criminal Law, 11th Ed. OUP, p.693

[20] (1888) 22 QBD 23

[21] Warburton D, 2004, A Critical Review of English Law in respect of Criminalising Blameworthy Behaviour by HIV+ Individuals, Journal of Criminal Law, Vathek Publishing, Vol. 68.1, p.58

[22] Ibid. p.64

[23] [1994] 1 AC 212; upheld by the ECtHR in Laskey v United Kingdom (1997) 24 EHRR 39, approved by KA and AD v Belgium 17th February 2005

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