New Questions

QUESTION 1
"I cannot accept that the restoration of the law as understood before R v Caldwell
would lead to the acquittal of those whom public policy would require to be
convicted."
Lord Bingham in R v G (2004)
Discuss

Comment
Activity 6.4 on page 70-71 required you to read Lord Bingham's speech in the case of R v G and another (2003) which you were given in your study pack) and answer a number of questions for which you were given feedback. There was also a sample examination question on the issue, again with feedback.


QUESTION 2
Susan, a recovering alcoholic, was finding it difficult not to drink. The strain of this
had made her very short-tempered and depressed and she was taking antidepressants prescribed by her doctor. Susan had known for a while that her husband was having an affair with his secretary as he repeatedly taunted her about it. She drove to his office to meet him for lunch and, as she parked the car, she saw his secretary leave the building. The sight of the secretary so incensed Susan that she drove the car at her and hit her, killing her instantly.

Discuss Susan's criminal liability, if any.

Comment

 Offence of Murder and the defences of provocation and diminished responsibility.
 Actus reus and men rea
 No need to discuss causation.
 mens rea for murder was intention to kill or intention to cause grievous bodily harm
 Please go to chapter 7 of the subject guide and read page 88 and then go to chapter 6 and read pages 66-69 and note, in particular, what Lord Steyn said in Woollin.
 There was no indication in the question that she had actually been drinking.
 The defences possibly available to Jane i.e. provocation and diminished responsibility – consider the relevant elements of these defences
 Note that the provocative conduct need not be unlawful, Doughty (1986), it need not come from the deceased, Davies (1975) and it can be 'cumulative' see Thornton (No.2) (1996) and Pearson (1992).
 Note also that, while the burden of proof is on the defendant on balance of probabilities where s/he raises the defence of diminished responsibility, where the defence of provocation is at issue, the burden remains with the prosecution, the standard being, beyond a reasonable doubt.

QUESTION 3

At a party, Simon and Fred noticed Alice dancing on a table . Alice, who was very drunk, smiled at them. Fred went over to the table and put his hand inside Alice's skirt, indecently touched her and tried to pull her off the table. Fearing what he might do, she kicked him, causing him to suffer a black eye. She became too drunk to get down from the table unaided and so Simon lifted her down. He helped her to go upstairs and then had sexual intercourse with her. He later said that, as she did not resist his advances, he thought that she was consenting. Alice's boyfriend, Gerald, was angry when he found out what had happened. He telephoned Simon and told him that he would beat him 'to a pulp' if Simon left the house. Simon was too frightened to leave the house for over a week.

Consider the criminal liability, if any, of the parties.

Comment
 This question required discussion of a number of non-fatal offences against the person, including sexual offences, and the defence of self-defence.
 Some of you also seemed to think that smiling at Simon and Fred was sufficient consent to Fred's subsequent indecent touching. On that basis alone, Fred is unlikely to have had a reasonable belief in
 Nearly everybody pointed out that Alice would raise the defence of self-defence which is considered in chapter…. Of the subject guide although many of you forgot to mention the possible impact of O'Grady (1987) and Hatton (2005). Although Alice was, indeed, very drunk, would these decisions necessarily mean that she would not succeed with the defence? Very few of you addressed this issue.
 There is an overlap between rape and assault by penetration contrary to section 2 which also carries a maximum life sentence. This offence, however, is only likely to be relevant – in the case of a possible rape - where the victim was not sure with what s/he was vaginally or anally penetrated. If Simon was guilty of rape he is likely also to be guilty of the lesser offence of sexual assault contrary to section 3.
 Again, virtually everybody who attempted this question considered the issue of assault in respect of Gerald's behaviour recognising that words can amount to assault (Ireland and Burstow (1998)), although there is the issue here of whether Simon apprehended 'immediate' violence. What is 'immediacy' in this context. In addition some of you referred to the offence assault occasioning actual bodily harm without noting that the psychological harm, in order to amount to bodily harm had to be an identifiable clinical condition Chan-Fook (1994)


QUESTION 4
Frederick went into a corner shop to buy a newspaper and some chocolate. He was late for work and so he pushed his way to the front of the queue at the counter. Frederick paid for his purchases but it was not until later in the day that he realised he had been given too much change but decided to keep it. On his way out of the shop, he noticed that the stockroom door was open. He entered the stockroom to see if there was any chocolate he could steal. He picked up a box of chocolate bars.

As Frederick left the stockroom with the chocolate, Angus, another customer, saw what he had done and raised the alarm. Frederick threw the chocolate at Angus, hitting him, and ran away. Angus went to chase after him. Unfortunately, the shopkeeper, Youssef, was a little shortsighted and thought it was Angus who had taken the chocolate. He grabbed Angus and locked him in the stockroom, saying that he was going to call the police. Angus was very frightened but noticed a door which led to an alleyway at the back of the shop. He broke down the door and made his escape.

Discuss the criminal liability, if any, of the parties

Comment

 This was a very straightforward problem question which invited you discuss a number of offences against property and non-fatal offences against the person together with some appropriate defence
 The question did not state that Frederick had any ulterior intent at the time he entered the shop so there was no question of burglary contrary to section 9(1)(a) of the Theft Act 1968 as some students thought. The later commission of offences did not make his original entry burglarious.
 Most of you recognised that, by pushing his way to the front of the queue, Frederick might be liable for the common law offence of battery and many of you considered theft in relation to the excess change, referring to section 5(4) of the Theft Act although very few of you questioned whether it was necessary to rely on section 5(4) given the decisions in Chase-Manhattan Bank (1981) and Shadrokh-Cigari (1988).
 When he entered the stockroom – 9(1)(a). Burglary is considered in chapter 17 of the subject guide and see in particular Walkington (1979) at page 266. If all the elements of theft (or attempted theft) were present when he appropriated the chocolate, he would then have been guilty of burglary contrary to
 Yousseff may want to raise the common law defence of private defence i.e. he used reasonable force in defence of his property or the statutory defence under section 3 of the Criminal Law Act 1967 of using reasonable force in the prevention of crime.
 The elements of these two offences are virtually identical and you should have considered whether first of all, the force was necessary, taking into account his mistaken belief that it was Angus who had taken the chocolate – see Gladstone Williams (1984) and Chapter 12 of the subject guide – and then whether the force he used was reasonable under the circumstances as he believed them to be. See Martin (2001)
 Angus could be liable for simple criminal damage contrary to section 1(1) of theCriminal Damage Act 1971. Criminal damage is considered in chapter 18 of the subject guide. Note that he did intend to break down the door and that the facts of the question state that the door was damaged. See page 275 of the subject guide.
 Section 5(2)(a) of the Criminal Damage Act provides a defence of lawful excuse which might be available to Angus if he believed that Yousseff would have consented to the damage had he known of the circumstances – i.e. had he known that had locked up the wrong person.
 He might plead the defence of duress of circumstances provided he reasonably believed that there was a threat of serious harm, bearing in mind that Yousseff was only going to call the police. You might also have considered the defence of necessity . There is no requirement that there be a threat of serious harm for the defence of necessity although it is still questionable if this defence actually exists as a separate defence and, if it does, what circumstances it does and does not cover.

QUESTION 5
(a) Robin was a lifeguard at a local authority swimming pool. He was bored and needed a break so asked his friend Bunty if she would keep an eye on the pool for him for ten minutes. Bunty agreed. She heard screaming and noticed that Sally, who was a poor swimmer, was in the deep end of the pool. Bunty, who was chatting to her friends, then noticed that the screaming had stopped and assumed that Sally had swum back to the shallow end. Sally had drowned. Discuss the criminal liability, if any, of Robin and Bunty.

(b) Pinto repeatedly abused his wife, Harriet. Eventually she left him but despite the support of her friends continued to suffer from anxiety and nerves. After a few months she committed suicide.

Consider Pinto's criminal liability, if any, for Harriet's death.

Comment

 The first part of this question requires a discussion of gross negligence manslaughter. For a discussion as to how to formulate an answer to a question such as this please now go to the comments to question 8 on the Zone A paper. Note that gross negligence manslaughter is considered in chapter 7 of the subject guide and you will find omissions to act discussed in chapter
 For this question, you should have considered, first of all, whether Robin was under a duty (see Pittwood in this context) and then whether, by delegating his responsibility to Bunty, he had discharged his duty to a reasonable standard. If it was reasonable for him to have delegated to Bunty then he could not be criminally liable for Sally's death. If, on the other hand, it was not reasonable for him to have charged Bunty to look after the swimming pool in his absence, then a jury is likely to find that he was in breach of his duty and the issue would be, as that discussed in the comment to question 8 Zone A, was his negligence gross and criminal and did it cause Sally's death?
 So far as Bunty was concerned, again you should have considered whether, assuming she was not a colleague (in which the same considerations as applied to Robin would apply to her) but just a friend. Was there a voluntary undertaking? See Stone and Dobinson. If so, was she in breach of that duty and, if so, was her negligence gross and criminal and did it cause death? The second part of the question invited you to consider the possibility of Pinto's liability for constructive manslaughter again considered in chapter 7 of the subject guide.
 You should, first of all, have addressed the issue of whether there was an unlawful act? Remember, the unlawful act must be a crime and, it seems the elements of that offence must be proved (Lamb (1967) and Jennings (1980) but see also Cato (1976),and Newbury & Jones HL (1977). Did her nervousness and anxiety amount to a recognisable clinical condition – see Chan-Fook (1994) and Dhaliwal (2006). Secondly, was it dangerous – see the Church (1966) direction approved by the House of Lords in Newbury. Finally – and this was the difficult area – if there was an unlawful and dangerous act, did it cause Harriet's death? Even assuming that it could be established that Pinto's conduct was the factual cause of Harriet's death, whether it was also the legal cause is debateable. You should have considered the case of Dear (1996) and also that of Dhaliwal (2006) where it was stated per curiam that unlawful violence on an individual with a fragile and vulnerable personality which is proved to be a material cause of death, even where it was death by suicide was, arguably, capable of amounting to manslaughter. This case was referred to on the 2007 Recent Developments.


QUESTION 6

Silas, aged 17, went to the cinema but when he arrived he discovered that the film he wished to see was restricted to those over the age of 18. When asked how old he was he said that he was 18, paid the entrance fee and watched the film. He later met up with some friends for a drink. One of his friends, Derek, who was 21, told them about a life insurance policy he had recently taken out. He had obtained a reduced premium by stating that he was a non-smoker. Derek smoked two packets of cigarettes per day. Derek admired Silas's watch and offered to buy it for £100. The watch was a copy Rolex which Silas had bought for £5 while on holiday. Silas was not sure whether Derek realised the watch was not genuine. Saying nothing, Silas sold him the watch for £100. On his way home, using some foreign coins he had left over from his holiday, Silas purchased his train ticket from the vending machine at the railway station.

Consider the criminal liability, if any, of Derek and Silas.

Comment
 This Act creates a general offence of Fraud (section 1) which can be committed by false representation (section 2) failing to disclose information (section 3) and abuse of position (section 4).
 The common elements of all three forms of fraud are dishonesty and an intention to make a gain in terms of money or other property or an intention to cause loss to another or expose another to a risk of loss in terms of money or other property.
 Dishonesty is one of the central elements of this offence and note that there is no need for the prosecution to prove that the false representation acted on the mind of the victim.
 The offence of obtaining services dishonestly, contrary to section 11 of the Fraud Act is also on the syllabus.
 As with the case of Bluebell and the school on the Zone A paper, very few of you recognised that there was unlikely to be any criminal liability at all when Silas lied about his age. Had Silas not intended to pay the entrance fee either in whole or in part he may have been guilty of obtaining services contrary to section 11. The question made it clear, however, that he paid to get into the cinema. A considerable number of you thought he might be guilty of fraud by false representation – in fact that was the only offence some people considered. Again, this is unlikely as it requires proof of an intention to make a gain in terms of money or other property or an intention to cause loss to another etc. (see above) and very few people mentioned this.
 Derek falsely stated to the insurance company that he was a non-smoker in order to gain a reduced premium. You should have considered the offence of fraud contrary to section 1 by false representation (section 2) and/or by failing to disclose information (section 3) discussing the common elements of the offence.
 So far as the Rolex watch was concerned, it was questionable as to whether Silas was guilty of fraud. Did he impliedly and fraudulently represent that the watch was a Rolex by not correcting Derek's impression? Should he have disclosed the fact that it was not a Rolex when Derek expressed an interest? Remember that a fraudulent representation is an assertion which is untrue or misleading and which the person making it knows is or might be untrue or misleading ( section. 2(2). Would this amount to a representation by omission? Although the pre-Act case of Dip Kaur (1981) would suggest that there might be no representation here, we do not know how situations such as this will be decided under the new legislation. Note that a fraudulent representation is an assertion which is untrue or misleading and which the person making it knows is or might be untrue or misleading ( section. 2(2).
 Did Silas make a false representation to the ticket machine? Remember that there no longer any no need to prove that anyone was actually deceived by the representation, that by section 2(5) a representation may be regarded as made if it is submitted in any form to a system designed to receive, convey or respond to communications, and that this includes representations made to machines and/or over the internet.

QUESTION 7

Rita had not repaid her debt to Samantha, saying that she did not have enough money. Samantha decided to waylay Rita and try to get the money from her, using violence if she had to. Samantha went to see her friend Liz, who had a low IQ and a very nervous disposition. She told Liz of her plan and asked Liz to help her. Liz did not want to but Samantha said, that if she did not, she would beat Liz to within an inch of her life. Liz reluctantly agreed to help. They stopped Rita on her way home from work and Samantha demanded the money from her saying that she and Liz would beat Rita up if she did not repay her immediately. Rita was frightened and tried to run away. Liz got hold of Rita and Samantha went to hit her but Rita broke free. Samantha grabbed at the gold chain Rita was wearing around her neck and it snapped allowing her to get away. Samantha decided to keep the chain as part-payment of the debt.

Discuss the criminal liability, if any, of Samantha and Liz.

Comment

 The inchoate offences of incitement to commit robbery (on the part of Samantha) and conspiracy to rob on the part of each of them should have been considered. See chapter 14 of the subject guide which covers these offences.
 Indeed, the threat of harm made by Samantha to Liz to get her to agree to help may also have amounted to the substantive offence of assault so that should also have been considered.
 The threatening demand for repayment of the money made by Samantha to Rita could amount to blackmail contrary to section 21 of the Theft Act 1968. – see chapter 17 of the guide; blackmail is dealt with on pages 269-271.
 You should, as ever, have considered the elements of this offence and given particular attention to the issue of whether the demand was 'unwarranted' section 21(1).
 You should also have considered the offence of attempted robbery (in relation to the money) contrary to section 1 of the Criminal Attempts Act 1981 and robbery (in relation to the chain) contrary to 8 of the Theft Act 1968 – again see chapter 17 of the guide. Could the elements of these offences be established on the facts given?
 Remember (so far as the substantive offence of robbery is concerned) there must be a theft so all the elements of that offence must be present as well. Might she have appropriated the chain in the belief that she had a right to deprive Rita of it? See section 2(1)(a) of the Theft Act 1968. Was the force sufficient and was it used in order to facilitate the theft?
 So far as Liz was concerned, you should have considered her liability as an accomplice – see section 8 of the Accessories and Abettors Act 1861 considered in chapter 15 of the guide and also her liability for battery when she grabbed hold of Rita. The defence of duress should also have been considered. See chapter 13 of the

QUESTION 8
(a) Julian and Sandy met at a singles' bar and Sandy agreed to spend the night with Julian. Julian, who was HIV positive, had been drinking heavily and neither used a condom during sex nor told Sandy of his condition. Sandy contracted the virus.

Consider Julian's criminal liability, if any.

(b) Maisy and Kirsty were on a driving holiday. It was very hot. Maisy had driven that day and Kirsty had drunk two bottles of wine during the journey. By the time they arrived at their destination in the early afternoon Kirsty was fast asleep. Maisy left Kirsty asleep in the car while she went to get something to eat and then find somewhere for them to stay. She was gone for three hours. Due to the combination
of heat and alcohol, Kirsty died in the car. Consider the criminal liability, if any, of Maisy

Comment

So far as Julian and Sandy are concerned, you should have considered the offence contrary to section 20 of the Offences Against the Person Act 1861; the offence contrary to section 18 is unlikely although worth a mention provided you made it clear that it would only lie if it could be proved that Julian actually intended to infect Sandy – foresight, if there was such foresight, on his part of a virtually certain occurrence of grievous bodily harm would be evidence on which the jury could find he intended it. Remember he was intoxicated and he might raise this as evidence that he did not intend to infect Sandy: section 18 creates a specific intent crime so intoxication would be relevant evidence of lack of intent. Sandy, it would seem, consented to sexual intercourse with Julian so there was no offence of rape as some students thought.. However, just because a person consents to sexual intercourse it does not mean they are also consenting to a risk of bodily harm. See Dica (2004) and see also Konzani (2005) where it was said that: 'there is a critical distinction between taking a risk of the various, potentially adverse and possibly problematic consequences of sexual intercourse and giving an informed consent to the risk of infection with a fatal disease.'

So far as Maisy and Kirstie are concerned, have a look at the commentary to question 8(a) on the Zone A paper which discusses omissions and gross negligence manslaughter. Did Maisy owe a duty to Kirsty? What factors should you have taken into account? If there was a duty, was there also a breach and, if so, was it gross and criminal and did it cause death? See also the case of Lewin v CPS (2002) considered on page 92 of the subject guide.

QUESTION EIGHT
(a) John became ill while at work. His wife Anna picked him up and drove him home as it was snowing heavily and he said he was too ill to drive himself. John complained all the way home about his state of health. Anna, who thought he probably only had a cold, became very cross with him. When they arrived home, she locked the car and stormed inside the house, shutting the front door behind her. She refused to let John in for a long time. John who had in fact been suffering from influenza, contracted pneumonia and died.
Discuss Anna's criminal liability, if any

(b) Masha asked her boyfriend Nikita, a trainee tattooist to tattoo his initials on her arm. Nikita did so but, unfortunately, he had not properly cleaned his equipment and Masha's arm became badly infected.
Consider the criminal liability of Nikita

Comment
As was the case with question 5, this question consisted of two parts both of which should have been answered. Although the majority of students who attempted this question did so, a small minority of you did not to the detriment of your papers as a whole. No matter how sympathetic we feel, it is impossible to give marks when there is nothing there, so please ensure that you always read the rubric very carefully before beginning to write.

Most students recognised that the first part of this question required consideration of gross negligence manslaughter and many of you answered this part of the question very competently addressing the ssue, first of all, as to whether Anna owed John a duty by virtue of cohabitation or voluntary assumption of a duty (she had driven him home from work) Stone and Dobinson (1977). Not many of you, however, mentioned that she might be under a duty by virtue of marriage Hood (2004) or that in Ruffell (2003) the Court of Appeal found that the defendant had breached his duty towards the victim by deliberately leaving the victim who was clearly unwell outside in the cold weather. See page 92 of the subject guide. Note that it is for the jury to decide whether a duty exists, once the judge has decided that there is evidence capable of establishing a duty. Willoughby (2004) As some of you pointed out, a breach can be by act or omission Watts(1998) but many of you went straight from 'duty' to a discussion of whether Anna's conduct was gross or criminal and, although many of you referred to Adomako (1995), the guidance given by the House of Lords for juries caused a certain amount of confusion – which is not completely surprising as it does lack a certain clarity. The jury must consider whether the breach – if there was one – was gross and criminal. According to the Court of Appeal in Misra (2004) 'The question for the jury is not whether the defendant's negligence was gross, and whether, additionally, it was a crime but whether his behaviour was grossly negligent and consequently criminal.' Not a lot of help either I would suggest but, apparently it is this which makes it a question of fact and not law and, thus, not incompatible with the Human Rights Act! Most of you did not mention that there must also have been a reasonably foreseeable risk of death Gurpal Singh (1999) Misra (2004) So far as the causation element of the offence is concerned, remember that the defendant must take the victime as s/he finds him Those of you who answered the second part of this question generally made creditable
attempts at addressing the relevant issues noting that the issue of consent needed to be considered. Do remember though that you must always deal with the possible offences first. The question states that Masha's arm became badly infected which indicates that it might amount to serious harm. You would therefore first of all consider offences contrary sections 18 and 20 of the Offences Against the Person Act 1861. Does a tattoo constitute a 'wound'? How would this be determined? Remember that the section 18 offence requires proof of an intention to do grievous bodily harm - which, on the facts of the question - is unlikely whereas section 20 merely requires proof of foresight of some harm. It might be that the infection might not amount to serious harm in which case you would consider the offence of assault occasioning actual bodily harm. How is ABH defined? What is the authority for this. You might also like to have a look at the extract from the Crown Prosecution Service's guidelines to prosecutors. Although these are not of binding effect – the issue of harm being a question for the jury – they will give you an idea of what types of injury are likely to result in particular charges. You will find them on pages 125- 127 of the study pack. Please note that when discussing the section 47 offence – having established that the harm might amount to actual bodily harm - you must first of all determine whether
there was an assault or battery which requires consideration of the elements of this or these offences as they relate to the facts of the question. If the actus reus and mens rea of assault and/or battery are established then the only remaining issue is whether that was the cause of the harm. It does not matter that the defendant did not foresee harm. Masha consented to the tattoo so the issue now becomes whether Nikita might succeed with the defence of consent to any charge. Where a person freely consents to what would otherwise be a common assault there is no offence. The position, however changes where the defendant caused or intended some harm, even of a fairly minor nature and it is not in the public interest that such conduct should be condoned. AG's Ref (N. 6 of 1980) (1981) which was approved by the House of Lords in Brown (1993) Consent is discussed on pages 127-132 of the subject guide. Look, in particular at the public policy exceptions which seem to include tattooing provided, presumably, that it is not done for sexual gratification. Nikita, however, was only a trainee tattooist. Might this make a difference? Mr. Wilson was not a professional brander – if there is such a thing – see Wilson (1996) where the Court of Appeal quashed his conviction.


Prior to the Sexual Offences Act 2003: "The government considered that the existing law on sexual offences was 'archaic, incoherent and discriminatory' and that it failed to reflect 'changes in society and social attitudes'." Temkin and Ashworth. (2004)
CLR 328

To what extent is the Sexual Offences Act 2003 an effective and satisfactory response to the government's concerns

Comment
Sexual offences are dealt with in chapter 11 of the subject guide and the article referred to in this question is in the study pack, as are extracts from the White Paper 'Protecting the Public: strengthening protection against sex offenders and reforming the law on sexual offences'.
Not many students attempted this question although many who did made a creditable
attempt at addressing the issues raised in the question. Unfortunately, some students
merely gave a narrative account of some of the provisions of the Act without
sufficient, or indeed any comment, on the issues raised.
In answering this question you were expected to critically examine the development
of the law in this area, in the context of whether the Sexual Offences Act 2003
(SOA), a radical overhaul of the law relating to sexual offences, was an effective and
satisfactory response to the government's concerns as set out in the question.
What follows is by no means an exhaustive commentary on the issues raised by the
question it merely sets out some points you might have considered. And don't worry,
we are very aware that with only 45 minutes to read the question, plan your essay and
then write it, you would not have been able to cover all of the possible arguments.
In what way did the government consider that the law in this area as it was before the
passing of the SOA to be 'archaic, incoherent and discriminatory'? Was this a
generally held view? How could the law be said to have failed to reflect 'changes in
society and social attitudes'? What did commentators have to say on these issues?
Are there conflicting views you could have illustrated and on which you could have
commented?
Note that prior to 2003 most of the law relating to sexual offences was contained in
the Sexual Offences Act 1956 which was, itself, a consolidation act containing law
which, in some cases, dated back to the 19th century. There had, since 1956, been
piecemeal developments in this area both statutory and common law and, it has been
remarked by some commentators, that this resulted, at least to some extent, to
incoherence in the law, failure to adequately protect the vulnerable and a lack of
respect in relation to sexual autonomy. Would you agree with this?
How effective a response to criticism of the pre-existing law has the SOA been?
The SOA has redefined rape and created a number of new offences. One criticism of
the Act is that stated in Smith & Hogan at page 594: '[It] takes 80 sections to set out
the many new offences, and these often contain numerous sub-categories of offence'.
One of the aims of the government was that the law should set out clearly what was
unacceptable behaviour and that it should provide 'a clearer legal framework for juries
as they decide on the facts in each case.' Might this development result in confusion
over what might be an appropriate charge in any given case? Might it inhibit the
development of case law? Or, you might consider that having such a wealth of
offences to choose from serves to focus the law more sharply, one of the objectives of
the Sexual Offences Review. (Don't worry – you were not expected to be familiar
with all of the offences – only those on the syllabus)
Might there be a problem in some areas of incompatibility with the Human Rights Act
1998 for example in the areas of consensual sexual conduct between children? E.g.
two 14 year olds happily sharing an intimate kiss and cuddle – or more. Although
you might not approve of children engaging in such activity, should it attract possible
criminal liability? Might this contravene their rights under Article 8 of the European
Convention on Human Rights? Again, you are not expected to analyse the offences
they might be committing as they are not on the syllabus, but the HRA argument is
something you are likely to have come across in your reading.
Prior to 2003 the offence of rape had been extended by the Criminal Justice and
Public Order Act 1994 to include non-consensual anal intercourse with a woman or a
man. The SOA by section 1(1)(a) further extends this to, for example, non consensual
oral penetration with a penis (or reconstructed penis in the case of a transsexual). It
has been argued that classifying oral penetration as rape, rather than, as has been
suggested, assault by penetration, might somewhat devalue the offence of rape
making juries reluctant to convict. Do you agree or perhaps you consider that this
properly reflects 'changes in society and social attitudes'?
Rape is the only offence contained within the statute which is not gender neutral so
far as the defendant is concerned, although, of course, women can attract accessorial
liability for this offence and can properly be liable as principle offenders in respect of
the other sexual offences on the syllabus.
Assault by penetration, contrary to section 2 is a completely new offence attracting a
maximum life sentence, considered by many to properly reflect public attitudes to
non-penile penetration of the vagina or anus which, before the passing of the Act,
could only be charged as indecent assault.
The activity must be 'sexual'. See section 78 – is there an element of incoherence
here as has been suggested?
The provisions on consent (sections 74-76), the object of which was to clarify this
issue and encourage victims to report, should have been considered by students as
they have attracted considerable debate, both at the time of the Bill's passage through
parliament and since the enactment of the SOA.
By virtue of section 74 a person consents if s/he agrees by choice, and has the
freedom and capacity to make that choice. The terms 'freedom', 'choice' and 'capacity'
have all been the subject of debate but very few students engaged in discussion of this
point.
There are two further routes to proving lack of consent, irrebuttable and rebuttable
presumptions – sections 75 and 76.
Do these three routes reflect a moral hierarchy? Are they sensible? For example, to
impersonate a person known to the victim or to deceive the victim as to the nature of
the act conclusively proves lack of consent whereas having sexual intercourse with a
victim who is asleep or unconscious give rise to a rebuttable presumption of lack of
consent. What was the reason for this distinction? Why should engaging in sexual
conduct by means of violence or threat of violence attract the irrebuttable presumption
of lack of consent but the same behaviour where the victim is sleeping, unconcsious
or has been administered with drugs gives rise to a rebuttable presumption?
75(2)(f) is limited to situations where a victim has had a stupefying or overpowering
substance administered to him or her without consent although it had been
recommended that the list of situations giving rise to a rebuttable presumption should
include the situation where the victim was too affected by alcohol or drugs to give
free agreement but this recommendation was not adopted. Does this imply an element
of fault on the part of the victim in the second situation? Is it a coherent distinction?
Might a direction on a combination of these routes be confusing to a jury? Should
irrebutable presumptions in relation to the mens rea element of a very serious offence
have any place in our legal system? Rape and sexual penetration carry maximum
sentences of life imprisonment. You might, however, as do many commentators,
consider that notwithstanding the issues to which the law on consent gives rise, the
presumptions demonstrate respect for individual autonomy reflecting changes in
society and social attitudes.
Do you think the provisions on consent: '…strike the right balance between protecting
victims and ensuring fairness under the law for defendants by helping juries with the
fundamental questions of whether the victim was able to, and did in fact, give his or
her consent on the occasion in question.' (White Paper Protecting the Public Ch.2). Is
the law clear and coherent?