Defences
Cases
Attorney General’s Reference No 6 of 1980
[1981] EWCA Crim 1 (07 May 1981)
THE LORD CHIEF JUSTICE: This is a reference to the Court by the Attorney General under section 36 of the Criminal Justice Act 1972. The point of law upon which the Court is asked to give its opinion is as follows:
“Where two persons fight (otherwise than in the course of sport) in a public place can it be a defence for one of those persons to a charge of assault arising out of the fight that the other consented to fight.”
The facts out of which the reference arises are these. The respondent, aged 18, and a youth aged 17, met in a public street and argued together. The respondent and the youth decided to settle the argument there and then by a fight. Before the fight the respondent removed his watch and handed it to a bystander for safe keeping and the youth removed his jacket. The respondent and the youth exchanged blows with their fists and the youth sustained a bleeding nose and bruises to his face caused by blows from the respondent.
Two issues arose at the trial: (1) self defence and (2) consent. The learned Judge directed the jury in part as follows:
“Secondly, if both parties consent to a fight then that fight may be lawful. In that respect I disagree with Mr. Inglis’ description of the law. It may well be that a fight on the pavement is a breach of the peace or fighting in public or some other offence but it does not necessarily mean that both parties are guilty of an assault. So that if two people decide to fight it out with their fists then that is not necessarily an assault. If they use weapons or something of that nature, other considerations apply. So you have to consider those two matters in this case. Was Mr. X acting in self-defence? Was this a case of both parties agreeing to fight and using only reasonable force?”
Thus the jury were directed that the respondent would, or might, not be guilty of assault if the victim agreed to fight, and the respondent only used reasonable force. The respondent was acquitted.
At the hearing of the reference, Mr. Rougier Q. C. and Mr. Inglis appeared for the Attorney General. Mr. Rougier submitted that this direction was incorrect, that the answer to the point of law was “No”, and that if an act (ordinarily constituting an assault) is unlawful per se, no amount of consent can render it lawful. Thus an act committed in public might, he submitted, be an assault, even though it would not be if committed in private, since if committed ix public it would be a breach of the peace and for that reason unlawful.
Mr. Allan Green appeared as amicus curiae, and drew the attention of the Court to the relevant authorities and text books. He pointed out that though the conclusions in the cases are reasonably consistent, the reasons for them are not.
For convenience we use the word “assault” as including “battery”, and adopt the definition of Mr. Justice James in Fagan v. Commissioner of Metropolitan Police (1969) 1 Q B 439) at page 444, namely:
“the actual intended use of unlawful force to another person without his consent”, to which we would respectfully add “or any other lawful excuse”.
We think that it can be taken as a starting point that it is an essential element of an assault that the act is done contrary to the will and without the consent of the victim; and it is doubtless for this reason that the burden lies on the prosecution to negative consent. Ordinarily, then, if the victim consents, the assailant is not guilty.
But the cases show that the Courts will make an exception to this principle where the public interest requires: R. v. Coney (1881/82) 8 Q. B. D. 534 (the Prize Fight case). The eleven Judges were of opinion that a prize fight is illegal, that all persons aiding and abetting were guilty of assault, and that the consent of the actual fighters was irrelevant. Their reasons varied as follows: Mr. Justice Cave, that the blow was struck in anger and likely to do corporal hurt, as opposed to one struck in sport, not intended to cause bodily harm; Mr. Justice Mathew, the dangerous nature of the proceedings; Mr. Justice Stephen, what was done was injurious to the public, depending on the degree of force and the place used; Mr. Justice Hawkins, the likelihood of a breach of the peace, and the degree of force and injury; Chief Justice Coleridge, breach of the peace and protection of the public.
The judgment in R. v. Donovan (1934) 2 K. B. 498 (beating for the purposes of sexual gratification), the reasoning in which seems to be tautologous, proceeds upon a different basis, starting with the proposition that consent is irrelevant if the act complained of is “unlawful… in itself”, which it will be if it involves the infliction of bodily harm.
Bearing in mind the various cases and the views of the text book writers cited to us, and starting with the proposition that ordinarily an act consented to will not constitute an assault, the question is: at what point does the public interest require the Court to hold otherwise?
In answering this question the diversity of view expressed in the previous decisions, such as the two cases cited, make some selection and a partly new approach necessary. Accordingly we have not followed the dicta which would make an act (even if consensual) an assault if it occurred in public, on the ground that it constituted a breach of the peace, and was therefore itself unlawful. These dicta reflect the conditions of the times when they were uttered, when there was little by way of an established police force and prise fights were a source of civil disturbance. Today with regular policing, conditions are different. Statutory offences, and indeed bye-laws, provide a sufficient sanction against true cases of public disorder, as do the common law offences of affray, etc. Nor have we followed the Scottish case of Smart v. H. M. Advocate (1975) Scots Law Times 65, holding the consent of the victim to be irrelevant on a charge of assault, guilt depending upon the “evil intent” of the accused, irrespective of the harm done.
The answer to this question, in our judgment, is that it is not is the public interest that people should try to cause or should cause each other actual bodily harm for no good reason. Minor struggles are another matter. So, in our judgment, it is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent.
Nothing which we have said is intended to cast doubt upon the accepted legality of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions, etc. These apparent exceptions can be justified as involving the exercise of a legal right, in the case of chastisement or correction, or as needed in the public interest, in the other cases.
Our answer to the point of law is No, but not (as the reference implies) because the fight occurred in a public place, but because, wherever it occurred, the participants would have been guilty of assault (subject to self-defence) if (as we understand was the case) they intended to and/or did cause actual bodily harm.
The point of law referred to us by the Attorney General has revealed itself as having been the subject of much interesting legal and philosophical debate, but it does not seem that the particular uncertainty enshrined in the reference has caused practical inconvenience in the administration of justice during the last few hundred years. We would not wish our judgment on the point to be the signal for unnecessary prosecutions.
R v Brown
[1993] UKHL 19 (11 March 1993)
JUDGMENT
Die Jovis 11° Martii 1993
Upon Report from the Appellate Committee to whom was
referred the Cause Regina against Brown, Regina against Lucas,
Regina against Jaggard, Regina against Laskey and Regina against
Carter, That the Committee had heard Counsel as well on Tuesday
the 1st as on Wednesday the 2nd, Thursday the 3rd and Monday the
7th days of December last upon the Petitions and Appeals of
Anthony Joseph Brown of 36 Heathmere Avenue, Yardley, Birmingham,
Saxon Lucas of 243 Albert Road, Meersbrook, Sheffield, S8 9QY,
Roland Jaggard of 295 Knella Road, Welwyn Garden City,
Hertfordshire, Colin Laskey of 27 Llanwern Road, Maesycoed,
Pontypridd, Mid-Glamorgan, Wales and Christopher Robert Carter
of 10 New Street, Frankwell, Shrewsbury, Shropshire, praying that
the matter of the Orders set forth in the Schedules thereto,
namely Orders of Her Majesty’s Court of Appeal (Criminal
Division) of the 19th day of February 1992, might be reviewed
before Her Majesty the Queen in Her Court of Parliament and that
the said Orders might be reversed, varied or altered or that the
Petitioners might have such other relief in the premises as to
Her Majesty the Queen in Her Court of Parliament might seem meet;
as upon the case of the Director of Public Prosecutions (on
behalf of Her Majesty) lodged in answer to the said Appeals;
which said Appeals were by an Order of this House of the 9th day
of November 1992 conjoined; and due consideration had this day
of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Orders of Her Majesty’s Court of Appeal
(Criminal Division) of the 19th day of February 1992 complained
of in the said Appeals be, and the same are hereby, Affirmed and
that the said Petitions and Appeals be, and the same are hereby,
dismissed this House: And it is further Ordered. That the
Certified Question be answered in the negative.
Cler: Parliamentor:
Judgment: 11 March 1993
HOUSE OF LORDS
REGINA
v.
BROWN (APPELLANT)
LUCAS(APPELLANT)
JAGGARD (APPELLANT)
LASKEY (APPELLANT)
CARTER (APPELLANT)
(ON APPEAL FROM THE COURT OF APPEAL)
(CRIMINAL DIVISION)
(CONJOINED APPEALS)
Lord Templeman
Lord Jauncey of Tullichettle
Lord Lowry
Lord Mustill
Lord Slynn of Hadley
LORD TEMPLEMAN
My Lords,
The appellants were convicted of assaults occasioning actual bodily
harm contrary to section 47 of the Offences Against the Person Act 1861.
Three of the appellants were also convicted of wounding contrary to section
20 of the Act of 1861 (24225 Vict. c. 100). The incidents which led to each
conviction occurred in the course of consensual sado-masochistic homosexual
encounters. The Court of Appeal upheld the convictions and certified the
following point of law of general public importance:
“Where A wounds or assaults B occasioning him actual bodily harm
in the course of a sado-masochistic encounter, does the prosecution
have to prove lack of consent on the part of B before they can
– 1 –
establish A’s guilt under section 20 and section 47 of the 1861,
Offences Against the Person Act?”
The definition of assault set forth in the 14th Report of the Criminal
Law Revision Committee (1980) (Cmnd 7844) para. 158 and adopted by the
Law Commission in their Consultation Paper No. 122 (1992) paragraph 9.1
is as follows:
“At common law, an assault is an act by which a person intentionally
or recklessly causes another to apprehend immediate and unlawful
personal violence and a battery is an act by which a person
intentionally or recklessly inflicts personal violence upon another.
However, the term ‘assault’, is now, in both ordinary legal usage and
in statutes, regularly used to cover both assault and battery.”
There are now three types of assault in ascending order of gravity, first
common assault, secondly assault which occasions actual bodily harm and
thirdly assault which inflicts grievous bodily harm.
By section 39 of the Criminal Justice Act 1988
“Common assault and battery shall be summary offences and a person
guilty of either of them shall be liable to a fine … to imprisonment
for a term not exceeding six months, or to both.”
By section 47 of the Act of 1861, as amended:
“Whosoever shall be convicted upon an indictment of any assault
occasioning actual bodily harm shall be liable … [to a maximum
penalty of five years imprisonment].”
In Rex v. Donovan [1934] 2 K.B. 498 Swift J. delivering the judgment
of the Court of Criminal Appeal said, at p. 509:
“‘ . . . bodily harm’ has its ordinary meaning and includes any hurt or
injury calculated to interfere with the health or comfort of the
prosecutor. Such hurt or injury need not be permanent, but must, no
doubt, be more than merely transient and trifling.”
In the present case each appellant pleaded guilty to an offence under
this section when the trial judge ruled that consent of the victim was no
defence.
-2-
By section 20 of the Act of 1861, as amended:
“Whosoever shall unlawfully and maliciously wound or inflict any
grievous bodily harm upon any other person, either with or without
any weapon or instrument, shall be guilty of [an offence], . . . and
shall be liable … [to a maximum penalty of five years
imprisonment].”
To constitute a wound for the purposes of the section the whole skin
must be broken and not merely the outer layer called the epidermis or the
cuticles; see J.J.C. (a minor) v. Eisenhower [1983] 3 All E.R. 230.
“Grievous bodily harm” means simply bodily harm that is really
serious and it has been said that it is undesirable to attempt a further
definition; see Director of Public Prosecution v. Smith [1961] A.C. 290.
In section 20 the words “unlawfully” means that the accused had no
lawful excuse such as self defence. The word “maliciously” means no more
than intentionally for present purposes; see Reg. v. Mowatt [1968] 1 Q.B.
421.
Three of the appellants pleaded guilty to charges under section 20
when the trial judge ruled that the consent of the victim afforded no defence.
In the present case each of the appellants intentionally inflicted violence
upon another (to whom I refer as “the victim”) with the consent of the victim
and thereby occasioned actual bodily harm or in some cases wounding or
grievous bodily harm. Each appellant was therefore guilty of an offence
under section 47 or section 20 of the Act of 1861 unless the consent of the
victim was effective to prevent the commission of the offence or effective to
constitute a defence to the charge.
In some circumstances violence is not punishable under the criminal
law. When no actual bodily harm is caused, the consent of the person
affected precludes him from complaining. There can be no conviction for the
summary offence of common assault if the victim has consented to the assault.
Even when violence is intentionally inflicted and results in actual bodily harm,
wounding or serious bodily harm the accused is entitled to be acquitted if the
injury was a foreseeable incident of a lawful activity in which the person
injured was participating. Surgery involves intentional violence resulting in
actual or sometimes serious bodily harm but surgery is a lawful activity.
Other activities carried on with consent by or on behalf of the injured person
have been accepted as lawful notwithstanding that they involve actual bodily
harm or may cause serious bodily harm. Ritual circumcision, tattooing, ear-
piercing and violent sports including boxing are lawful activities.
In earlier days some other forms of violence were lawful and when
they ceased to be lawful they were tolerated until well into the 19th century.
-3-
Duelling and fighting were at first lawful and then tolerated provided the
protagonists were voluntary participants. But where the results of these
activities was the maiming of one of the participants, the defence of consent
never availed the aggressor; see Hawkins pleas of the Crown (1824), 8th ed.,
Chapter 15. A maim was bodily harm whereby a man was deprived of the
use of any member of his body which he needed to use in order to fight but
a bodily injury was not a maim merely because it was a disfigurement. The
act of maim was unlawful because the King was deprived of the services of
an able-bodied citizen for the defence of the realm. Violence which maimed
was unlawful despite consent to the activity which produced the maiming. In
these days there is no difference between maiming on the one hand and
wounding or causing grievous bodily harm on the other hand except with
regard to sentence.
When duelling became unlawful, juries remained unwilling to convict
but the judges insisted that persons guilty of causing death or bodily injury
should be convicted despite the consent of the victim.
Similarly, in the old days, fighting was lawful provided the
protagonists consented because it was thought that fighting inculcated bravery
and skill and physical fitness. The brutality of knuckle fighting however
caused the courts to declare that such fights were unlawful even if the
protagonists consented. Rightly or wrongly the courts accepted that boxing
is a lawful activity.
In Reg. v. Coney (1882) 8 QBD 534, the court held that a prize-fight
in public was unlawful. Cave J. said, at p. 539:
“The true view is, I think, that a blow struck in anger, or which is
likely or is intended to do corporal hurt, is an assault, but that a blow
struck in sport, and not likely nor intended to cause bodily harm, is
not an assault, and that an assault being a breach of the peace and
unlawful, the consent of the person struck is immaterial.”
Stephen J. said, at p. 549:
“When one person is indicted for inflicting personal injury upon
another, the consent of the person who sustains the injury is no
defence to the person who inflicts the injury, if the injury is of such
a nature, or is inflicted under such circumstances, that its infliction is
injurious to the public as well as to the person injured. But the
injuries given and received in prize-fights are injurious to the public,
both because it is against the public interest that the lives and the
health of the combatants should be endangered by blows, and because
prize-fights are disorderly exhibitions, mischievous on many obvious
grounds. Therefore the consent of the parties to the blows which they
mutually receive does not prevent those blows from being assaults . .
. In cases where life and limb are exposed to no serious danger in the
-4-
common course of things, I think that consent is a defence to a charge
of assault, even when considerable force is used, as, for instance, in
cases of wrestling, single-stick, sparring with gloves, football and the
like; but in all cases the question whether consent does or does not
take from the application of force to another its illegal character, is a
question of degree depending upon circumstances.”
Hawkins J. said, at p. 553:
“… whatever may be the effect of a consent in a suit between party
and party, it is not in the power of any man to give an effectual
consent to that which amounts to, or has a direct tendency to create,
a breach of the peace; so as to bar a criminal prosecution. In other
words, though a man may by consent debar himself from his right to
maintain a civil action, he cannot thereby defeat proceedings instituted
by the Crown in the interest of the public for the maintenance of good
order; … He may compromise his own civil rights, but he cannot
compromise the public interests.”
Lord Coleridge C.J. said, at p. 567:
“. . .I conceive it to be established, beyond the power of any
argument however ingenious to raise a doubt, that as the combatants
in a duel cannot give consent to one another to take away life, so
neither can the combatants in a prize-fight give consent to one another
to commit that which the law has repeatedly held to be a breach of the
peace. An individual cannot by such consent destroy the right of the
Crown to protect the public and keep the peace.”
The conclusion is that a prize-fight being unlawful, actual bodily harm
or serious bodily harm inflicted in the course of a prize-fight is unlawful
notwithstanding the consent of the protagonists.
In Rex v. Donovan [1934] 2 K.B. 498 the appellant in private beat a
girl of seventeen for purposes of sexual gratification, it was said with her
consent. Swift J. said, at p. 507 that:
“It is an unlawful act to beat another person with such a degree of
violence that the infliction of bodily harm is a probable consequences,
and when such an act is proved, consent is immaterial.”
In Attorney General’s Reference (No. 6 of 1980) [1981] QB 715
where two men quarrelled and fought with bare fists Lord Lane, C.J.,
delivering the judgment of the Court of Appeal said, at p. 719:
“. . . It is not in the public interest that people should try to cause, or
should cause, each other bodily harm for no good reason. Minor
struggles are another matter. So, in our judgment, it is immaterial
– 5 –
whether the act occurs in private or in public; it is an assault if actual
bodily harm is intended and/caused. This means that most fights will
be unlawful regardless of consent. Nothing which we have said is
intended to cast doubt upon the accepted legality of properly conducted
games and sports, lawful chastisement or correction, reasonable
surgical interference, dangerous exhibitions, etc. These apparent
exceptions can be justified as involving the exercise of a legal right,
in the case of chastisement or correction, or as needed in the public
interest, in the other cases.”
Duelling and fighting are both unlawful and the consent of the
protagonists affords no defence to charges of causing actual bodily harm,
wounding or grievous bodily harm in the course of an unlawful activity.
The appellants and their victims in the present case were engaged in
consensual homosexual activities. The attitude of the public towards
homosexual practices changed in the second half of this century. Change in
public attitudes led to a change in the law.
The Wolfenden Report (Report of the Committee on Homosexual
Offences and Prostitution (1957) ((Cmnd. 247)) declared that the function of
the criminal law in relation to homosexual behaviour “is to preserve public
order and decency, to project the citizen from what is offensive or injurious,
and to provide sufficient safeguards against exploitation and corruption of
others, particularly those who are especially vulnerable because they are
young, weak in body or mind, inexperienced, or in a state of special,
physical, official or economic dependence”; paragraph 13 of chapter 2.
In response to the Wolfenden Report and consistently with its
recommendations, Parliament enacted section 1 of the Sexual Offences Act
1967 which provided, inter alia, as follows:
“(1) Notwithstanding any statutory or common law provision, . . .
a homosexual act in private shall not be an offence provided that the
parties consent thereto and have attained the age of 21 years.
“(2) An act which would otherwise be treated for the purposes of this
Act as being done in private shall not be so treated if done – (a) when
more than two persons take part or are present; . . .
“(6) It is hereby declared that where in any proceedings it is charged
that a homosexual act is an offence the prosecutor shall have the
burden of proving that the act was done otherwise than in private or
otherwise than with the consent of the parties or that any of the parties
had not attained the age of 21 years.
“(7) For the purposes of this section a man shall be treated as doing
a homosexual act if, and only if, he commits buggery with another
-6-
man or commits an act of gross indecency with another man or is a
party to the commission by a man of such an act.”
The offence of gross indecency was created by section 13 of the Sexual
Offences Act 1956 in the following terms:
“It is an offence for a man to commit an act of gross indecency with
another man, whether in public or private, or to be a party to the
commission by a man of an act of gross indecency with another man,
or to procure the commission by a man of an act of gross indecency
with another man.”
By the Act of 1967, Parliament recognised and accepted the practice
of homosexuality. Subject to exceptions not here relevant, sexual activities
conducted in private between not more than two consenting adults of the same
sex or different sexes are now lawful. Homosexual activities performed in
circumstances which do not fall within section 1(1) of the Act of 1967 remain
unlawful. Subject to the respect for private life embodied in the Act of 1967,
Parliament has retained criminal sanctions against the practice, dissemination
and encouragement of homosexual activities.
My Lords, the authorities dealing with the intentional infliction of
bodily harm do not establish that consent is a defence to a charge under the
Act of 1861. They establish that the courts have accepted that consent is a
defence to the infliction of bodily harm in the course of some lawful activities.
The question is whether the defence should be extended to the infliction of
bodily harm in the course of sado-masochistic encounters. The Wolfenden
Committee did not make any recommendations about sado-masochism and
Parliament did not deal with violence in 1967. The Act of 1967 is of no
assistance for present purposes because the present problem was not under
consideration.
The question whether the defence of consent should be extended to the
consequences of sado-masochistic encounters can only be decided by
consideration of policy and public interest. Parliament can call on the advice
of doctors, psychiatrists, criminologists, sociologists and other experts and can
also sound and take into account public opinion. But the question must at this
stage be decided by this House in its judicial capacity in order to determine
whether the convictions of the appellants should be upheld or quashed.
Counsel for some of the appellants argued that the defence of consent
should be extended to the offence of occasioning actual bodily harm under
section 47 of the Act of 1861 but should not be available to charges of serious
wounding and the infliction of serious bodily harm under section 20. I do not
consider that this solution is practicable. Sado-masochistic participants have
no way of foretelling the degree of bodily harm which will result from their
encounters. The differences between actual bodily harm and serious bodily
– 7 –
harm cannot be satisfactorily applied by a jury in order to determine acquittal
or conviction.
Counsel for the appellants argued that consent should provide a defence
to charges under both section 20 and section 47 because, it was said, every
person has a right to deal with his body as he pleases. I do not consider that
this slogan provides a sufficient guide to the policy decision which must now
be made. It is an offence for a person to abuse his own body and mind by
taking drugs. Although the law is often broken, the criminal law restrains a
practice which is regarded as dangerous and injurious to individuals and which
if allowed and extended is harmful to society generally. In any event the
appellants in this case did not mutilate their own bodies. They inflicted bodily
harm on willing victims. Suicide is no longer an offence but a person who
assists another to commit suicide is guilty of murder or manslaughter.
The assertion was made on behalf of the appellants that the sexual
appetites of sadists and masochists can only be satisfied by the infliction of
bodily harm and that the law should not punish the consensual achievement of
sexual satisfaction. There was no evidence to support the assertion that sado-
masochist activities are essential to the happiness of the appellants or any
other participants but the argument would be acceptable if sado-masochism
were only concerned with sex, as the appellants contend. In my opinion sado-
masochism is not only concerned with sex. Sado-masochism is also concerned
with violence. The evidence discloses that the practices of the appellants were
unpredictably dangerous and degrading to body and mind and were developed
with increasing barbarity and taught to persons whose consents were dubious
or worthless.
A sadist draws pleasure from inflicting or watching cruelty. A
masochist derives pleasure from his own pain or humiliation. The appellants
are middle-aged men. The victims were youths some of whom were
introduced to sado-masochism before they attained the age of 21. In his
judgment in the Court of Appeal, Lord Lane C.J. said that two members of
the group of which the appellants formed part, namely one Cadman and the
appellant Laskey:
“. . . were responsible in part for the corruption of a youth K . . . It
is some comfort at least to be told, as we were, that K has now it
seems settled into a normal heterosexual relationship. Cadman had
befriended K when the boy was 15 years old. He met him in a
cafeteria and, so he says, found out that the boy was interested in
homosexual activities. He introduced and encouraged K in “bondage
affairs”. He was interested in viewing and recording on videotape K
and other teenage boys in homosexual scenes . . . One cannot overlook
the danger that the gravity of the assaults and injuries in this type of
case may escalate to even more unacceptable heights.”
– 8 –
The evidence disclosed that drink and drugs were employed to obtain
consent and increase enthusiasm. The victim was usually manacled so that the
sadist could enjoy the thrill of power and the victim could enjoy the thrill of
helplessness. The victim had no control over the harm which the sadist, also
stimulated by drink and drugs might inflict. In one case a victim was branded
twice on the thigh and there was some doubt as to whether he consented to or
protested against the second branding. The dangers involved in administering
violence must have been appreciated by the appellants because, so it was said
by their counsel, each victim was given a code word which he could
pronounce when excessive harm or pain was caused. The efficiency of this
precaution, when taken, depends on the circumstances and on the personalities
involved. No one can feel the pain of another. The charges against the
appellants were based on genital torture and violence to the buttocks, anus,
penis, testicles and nipples. The victims were degraded and humiliated
sometimes beaten, sometimes wounded with instruments and sometimes
branded. Bloodletting and the smearing of human blood produced excitement.
There were obvious dangers of serious personal injury and blood infection.
Prosecuting counsel informed the trial judge against the protests of defence
counsel, that although the appellants had not contracted AIDS, two members
of the group had died from AIDS and one other had contracted an HIV
infection although not necessarily from the practices of the group. Some
activities involved excrement. The assertion that the instruments employed by
the sadists were clean and sterilized could not have removed the danger of
infection, and the assertion that care was taken demonstrates the possibility of
infection. Cruelty to human beings was on occasions supplemented by cruelty
to animals in the form of bestiality. It is fortunate that there were no
permanent injuries to a victim though no one knows the extent of harm
inflicted in other cases. It is not surprising that a victim does not complain
to the police when the complaint would involve him in giving details of acts
in which he participated. Doctors of course are subject to a code of
confidentiality.
In principle there is a difference between violence which is incidental
and violence which is inflicted for the indulgence of cruelty. The violence of
sado-masochistic encounters involves the indulgence of cruelty by sadists and
the degradation of victims. Such violence is injurious to the participants and
unpredictably dangerous. I am not prepared to invent a defence of consent for
sado-masochistic encounters which breed and glorify cruelty and result in
offences under sections 47 and 20 of the Act of 1861.
The appellants’ counsel complained that some of the group’s activities
involved the appellants in offences of gross indecency which, happily for the
appellants, became time barred before the police obtained video films made
by members of the group of some of their activities. Counsel submitted that
since gross indecency charges were time barred, the police acted unfairly
when they charged the appellants with offences under the Act of 1861. But
there was no reason for the police to refrain from pursuing the charges under
the Act of 1861 merely because other charges could not be pursued.
– 9 –
Indecency charges are connected with sex. Charges under the Act of 1861 are
concerned with violence. The violence of sadists and the degradation of their
victims have sexual motivations but sex is no excuse for violence.
The appellants’ counsel relied, somewhat faintly, on article 7 of the
European Convention on Human Rights. That article so far as material
provides that:
” 1. No one shall be guilty of any criminal offence on account of
any act or omission which did not constitute a criminal offence
under national or international law at the time when it was
committed.”
At the relevant time it was a criminal offence under English law to
inflict actual bodily harm or worse. Counsel submitted that the appellants
reasonably believed that consent was a defence. This was an ingenious
argument for which there was no foundation in fact or principle and which in
any event does not seem to me to provide a defence under article 7.
The appellants’ counsel relied on article 8 of the Convention which is
in these terms:
“1. Everyone has the right to respect for his private and family
life, his home and his correspondence.
2. There shall be no interference by a public authority for the
exercise of this right except such as is in accordance with the
law and is necessary in a democratic society in the interests of
natural security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others.”
It is not clear to me that the activities of the appellants were exercises
of rights in respect of private and family life. But assuming that the
appellants are claiming to exercise those rights I do not consider that Article
8 invalidates a law which forbids violence which is intentionally harmful to
body and mind.
Society is entitled and bound to protect itself against a cult of violence.
Pleasure derived from the infliction of pain is an evil thing. Cruelty is
uncivilised. I would answer the certified question in the negative and dismiss
the appeals of the appellants against conviction.
– 10 –
LORD JAUNCEY OF TULLICHETTLE
My Lords,
All five appellants and a number of other persons were charged with
offences against section 47 of the Offences Against the Person Act 1861, and
the appellants Laskey, Jaggard and Lucas were also charged with
contraventions of section 20 of that Act. The events giving rise to all the
charges were sado-masochistic homosexual activities carried out consensually
by the appellants with each other and with other persons. Following upon a
ruling of the trial judge that consent of the other participant (“the receiver”)
was no defence to the charges the appellants pleaded guilty and were duly
sentenced. Their appeals against the judge’s ruling were dismissed by the
Court of Appeal which certified the following point of law as being of general
public importance.
“Where A wounds or assaults B occasioning him actual bodily harm
in the course of a sado-masochistic encounter, does the prosecution
have to prove lack of consent on the part of B before they can
establish A’s guilt under section 20 or section 47 of the Offences
Against the Person Act 1861?”
Although the issue of consent was fundamental and indeed common to
all five appeals the appellants did not lack for representation since no less than
four Queens Counsel and one junior counsel addressed your Lordships on
their behalf on different aspects of this matter.
The facts giving rise to the charges came to light as a result of police
investigation into other matters. It was common ground that the receivers had
neither complained to the police nor suffered any permanent injury as a result
of the activities of the appellants. Although the incidents giving rise to each
charge were the subject of a video-recording, these recordings were made not
for sale at a profit but for the benefit of those members of the “ring”, if one
may so describe it, who had not had the opportunity of witnessing the events
in person. Your Lordships were further informed that the activities of the
appellants, who are middle aged men, were conducted in secret and in a
highly controlled manner, that code words were used by the receiver when he
could no longer bear the pain inflicted upon him and that when fish-hooks
were inserted through the penis they were sterilised first. None of the
appellants however had any medical qualifications and there was, of course,
no referee present such as there would be in a boxing or football match.
The basic argument propounded by all the appellants was that the
receivers having in every case consented to what was inflicted upon them no
offence had been committed against sections 20 or 47 of the Offences Against
the Person Act 1861. All the appellants recognised however that so broad a
proposition could not stand up and that there must be some limitation upon the
harm which an individual could consent to receive at the hand of another.
– 11 –
The line between injuries to the infliction of which an individual could consent
and injuries to whose infliction he could not consent must be drawn it was
argued where the public interest required. Thus except in the case of
regulated sports the public interest required that injuries should not be inflicted
in public where they might give rise to a breach of the peace. Lady Mallalieu
for laggard argued that injuries to which consent would be irrelevant were
those which resulted in actual expense to the public by reason, for example,
of the expenses of hospital or other medical treatment, or payment of some
benefit. Such injuries would be likely to be serious and to be appropriate to
a section 20 charge, whereas the consensual infliction of less serious injuries
would not constitute an offence. Furthermore the presence of hostility was an
essential element in the offence of assault, which element was necessarily
lacking where a valid consent was present. Miss Worrall for Laskey
maintained that everyone had a right to consent to the infliction on himself of
bodily harm not amounting to serious harm or maiming at which point public
interest intervened. She further argued that having regard to the common law
offence of keeping a disorderly house and to the various offences created by
the Sexual Offences Acts 1956 to 1976 it was inappropriate to use the Act of
1861 for the prosecution of sexual offences because the public interest was
adequately looked after by the common law offence and the later Acts. Mr.
Kershen for Brown also argued that the Act of 1861 was an inappropriate
weapon to use in these cases. He submitted that while deliberate infliction of
injury resulting in serious bodily harm might be an offence whether or not
consent was given, deliberate consensual wounding would not be an offence
if it did not cause serious bodily harm. This latter proposition would appear
to draw the line somewhere down the middle of section 20. Mr. Kershen
further argued that if his primary submissions were wrong this House should,
having regard to the current public interest in freedom of sexual expression,
lay down new rules for sado-masochistic activities. Mr. Thwaites for Carter
traced the history of the offence of maiming which deprived the King of
possible service, invited your Lordships to hold that Rex. v. Donovan [1934]
2 K.B. 498, and Attorney-General’s Reference (No. 6 of 1980), 1981 1 Q.B.
715, to which I shall refer later, were wrongly decided and submitted that as
a matter of principle a man could lawfully consent to the infliction of any
injury upon himself which fell short of maiming.
In concluding that the consent of the receivers was immaterial to the
offences charged the Court of Appeal relied on three cases, namely, Reg. v.
Coney (1882) 8 QBD 534, Rex. v. Donovan [1934] 2 K.B. 498 and
Attorney-General’s Reference (No. 6 of 1980) [1981] QB 715. Before
examining these cases it is interesting to look at the definitions of “Maim” and
“Assault” in Hawkins’ Pleas of the Crown, 8th ed. (1824), Book 1 in Chapter
15. Maiming is defined, at p. 107, Sect. 1, as “… such a hurt of any part
of a man’s body whereby he is rendered less able, in fighting, either to defend
himself or to annoy his adversary . . . . ” Examples are then given. Assault
is defined, at p. 110, Sect. 1, as “… an attempt to offer, with force and
violence, to do a corporal hurt to another” and battery (Sect. 2) as “… any
injury whatsoever be it never so small, being actually done to the person of
– 12 –
a man in an angry, revengeful, rude, or insolent manner . . . ” It is to be
noted that lack of consent of the victim is stated to be a necessary ingredient
neither of assault nor of battery. In Coney the 11 judges who heard the case
held that a prize-fight was unlawful, that all persons aiding and abetting
therein were guilty of assault, and that consent of the persons actually engaged
in fighting to the interchange of blows did not afford any answer to the
criminal charge of common assault. The appellants were spectators at an
organised fight between two men near a public road. Cave J. said, at p. 539:
“The true view is, I think, that a blow struck in anger, or which is
likely or is intended to do corporal hurt, is an assault, but that a blow
struck in sport, and not likely, nor intended to cause bodily harm, is
not an assault, and that, an assault being a breach of the peace and
unlawful, the consent of the person struck is immaterial. If this view
is correct a blow struck in a prize-fight is clearly an assault; but
playing with single-sticks or wrestling do not involve an assault; nor
does boxing with gloves in the ordinary way, and not with the ferocity
and severe punishment to the boxers deposed to in Reg. v. Orton
Stephen J. said, at p. 549:
.
“The principle as to consent seems to me to be this: When one person
is indicted for inflicting personal injury upon another, the consent of
the person who sustains the injury is no defence to the person who
inflicts the injury, if the injury is of such a nature, or is inflicted under
such circumstances, that its infliction is injurious to the public as well
as to the person injured. But the injuries given and received in prize-
fights are injurious to the public, both because it is against the public
interest that the lives and the health of the combatants should be
endangered by blows, and because prize-fights are disorderly
exhibitions, mischievous on many obvious grounds. Therefore the
consent of the parties to the blows which they mutually received does
not prevent those blows from being assaults.”
In this passage Stephen J. clearly considered that prize-fights were likely to
cause breaches of the peace and that no consent could render fights with such
a result lawful. In a later passage on the same page he said:
“In cases where life and limb are exposed to no serious danger in the
common course of things, I think that consent is a defence to a charge
of assault, even when considerable force is used, as, for instance, in
cases of wrestling, single-stick, sparring with gloves, football, and the
like; but in all cases the question whether consent does or does not
take from the application of force to another its illegal character, is a
question of degree depending upon circumstances.”
– 13 –
In this passage he appears to be considering organised sports where
danger to life and limb is merely incidental to the main purpose of the
activity. Hawkins J. said, at p. 553:
“As a general proposition it is undoubtedly true that there can be no
assault unless the act charged as such be done without the consent of
the person alleged to be assaulted, for want of consent is an essential
element in every assault, and that which is done by consent is no
assault at all.”
He later said:
“. . . it is not in the power of any man to give an effectual consent to
that which amounts to, or has a direct tendency to create, a breach of
the peace; so as to bar a criminal prosecution.”
Hawkins J. concluded that every fight in which the object and intent of each
of the combatants was to subdue the other by violent blows tending to a
breach of the peace was illegal and he distinguished friendly encounters in the
follow passage, at p. 554:
“The cases in which it has been held that persons may lawfully engage
in friendly encounters not calculated to produce real injury to or to
rouse angry passions in either, do not in the least militate against the
view I have expressed; for such encounters are neither breaches of the
peace nor are they calculated to be productive thereof,”
It is obvious that in concluding that prize-fights were unlawful he was
influenced mainly, if not entirely, by the fact that they were likely to be
productive of breaches of the peace. Furthermore, it would in my view be
wrong to treat the first cited dictum of Hawkins J. as referring to all assaults
irrespective of the gravity thereof. The court was considering a charge of
common assault and I do not think that the learned judge was intending to lay
down a general principle which was applicable also to assaults charged under
section 47 of the Act of 1861 or to offences under section 20 thereof. Lord
Coleridge C.J. at p. 567 similarly concluded that the combatants in a prize-
fight could not consent to commit a breach of the peace.
Although there was unanimity among the judges in Coney as to consent
in the particular circumstances affording no answer to a charge of assault,
there were differing reasons advanced for reaching that conclusion. However,
Cave, Stephen and Hawkins JJ. and Lord Coleridge C.J. all considered that
effectual consent could not be given to blows producing or likely to produce
a breach of the peace. Stephen J. specifically referred to prize-fights being
injurious to the public as disorderly exhibitions and it may be assumed that the
other three judges also had in mind the public interest in preventing breaches
of the peace. Given the fact that the fight took place before a crowd of more
than 100 persons the likelihood of a breach of the peace would by itself have
– 14 –
been sufficient to negative consent without considering the nature and effect
of the blows struck. Nevertheless, Stephen J. also considered that it was
against the public interest that blows should endanger the health of the
combatants. Whether he had in mind only blows which produced a maim is
not stated although in the editions of his Digest published before and after
Coney he stated “Everyone has a right to consent to the infliction upon himself
of bodily harm not amounting to a maim.” (3rd ed. (1883) article 206) I do
not find great assistance in Coney towards the immediate resolution of the
questions raised in these appeals where the offences charged were statutory
and where no question of breach of the peace arose. I would therefore sum
up my analysis of Coney 8 Q.B.D. 534 by concluding that it is authority for
the proposition that the public interest limits the extent to which an individual
may consent to infliction upon himself by another of bodily harm and that
such public interest does not intervene in the case of sports where any
infliction of injury is merely incidental to the purpose of the main activity.
In Donovan [1934] 2 K.B. 498 the appellant was charged with indecent
and common assault upon a girl whom he had beaten with her consent for his
own sexual gratification. In delivering the judgment of the Court of Criminal
Appeal Swift J., after citing the passage in the judgment of Cave J. in Coney,
to which I have already referred, said, at p. 507:
“If an act is unlawful in the sense of being in itself a criminal act, it
is plain that it cannot be rendered lawful because the person to whose
detriment it is done consents to it. No person can license another to
commit a crime. So far as the criminal law is concerned, therefore,
where the act charged is in itself unlawful, it can never be necessary
to prove absence of consent on the part of the person wronged in order
to obtain the conviction of the wrongdoer. There are, however, many
acts in themselves harmless and lawful which become unlawful only
if they are done without the consent of the person affected. What is,
in one case, an innocent act of familiarity or affection, may, in
another, be an assault, for no other reason that that, in the one case
there is consent, and in the other consent is absent. As a general rule,
although it is a rule to which there are well established exceptions, it
is an unlawful act to beat another person with such a degree of
violence that the infliction of bodily harm is a probable consequence,
and when such an act is proved, consent is immaterial.”
Swift J. also observed that the passage from Stephen’s Digest which I
have quoted above needed considerable qualification in 1934. He went on to
consider exceptions to the general rule that an act likely or intended to cause
bodily harm is an unlawful act. Such exceptions included friendly contests
with cudgels, foils or wrestling which were capable of causing bodily harm,
rough and undisciplined sports or play where there was no anger and no
intention to cause bodily harm and reasonable chastisement by a parent for a
person in loco parentis. He might also have added necessary surgery. After
referring to the fact that if the appellant acted so as to cause bodily harm he
– 15 –
could not plead the gratification of his perverted desires as an excuse, Swift
J. said, at p. 509:
“Always supposing, therefore, that the blows which he struck were
likely or intended to do bodily harm, we are of opinion that he was
doing an unlawful act, no evidence having been given of facts which
would bring the case within any of the exceptions to the general rule.
In our view, on the evidence given at the trial, the jury should have
been directed that, if they were satisfied that the blows struck by the
prisoner were likely or intended to do bodily harm to the prosecutrix,
they ought to convict him, and that it was only if they were not so
satisfied, that it became necessary to consider the further question
whether the prosecution had negatived consent. For this purpose we
think that ‘bodily harm’ has its ordinary meaning and includes any hurt
or injury calculated to interfere with the health or comfort of the
prosecutor. Such hurt or injury need not be permanent, but must, no
doubt, be more than merely transient and trifling.”
It is clear from the report that the girl did in fact suffer actual bodily harm.
In Attorney General’s Reference (No. 6 of 1980) [1981] QB 715 the
respondent and the victim had a fistfight in a public street which resulted in
actual bodily harm to the victim. The respondent was charged with assault
causing actual bodily harm and was acquitted. The question referred to the
Court of Appeal was (p. 717):
“Where two persons fight (otherwise than in the course of sport) in a
public place can it be a defence for one of those persons to a charge
of assault arising out of the fight that the other consented to fight?”
The court answered the question in the negative. Lord Lane C.J. said, at
p.718H:
“Bearing in mind the various cases and the views of the text book
writers cited to us, and starting with the proposition that ordinarily an
act consented to will not constitute an assault, the question is: at what
point does the public interest require the court to hold otherwise?”
He later said, at p. 719C:
“The answer to this question, in our judgment, is that it is not in the
public interest that people should try to cause, or should cause, each
other actual bodily harm for no good reason. Minor struggles are
another matter. So, in our judgment, it is immaterial whether the act
occurs in private or in public; it is an assault if actual bodily harm is
intended and/or caused. This means that most fights will be unlawful
regardless of consent.
– 16 –
“Nothing which we have said is intended to cast doubt upon the
accepted legality of properly conducted games and sports, lawful
chastisement or correction, reasonable surgical interference, dangerous
exhibitions, etc. These apparent exceptions can be justified as
involving the exercise of a legal right, in the case of chastisement or
correction, or as needed in the public interest, in the other cases.”
Although the reasoning in these two cases differs somewhat, the conclusion
from each of them is clear, namely, that the infliction of bodily harm without
good reason is unlawful and that the consent of the victim is irrelevant. In the
unreported case of Reg. v. Boyea (28 January 1992), in which the appellant
was convicted of indecent assault on a woman, Glidewell L.J. giving the
judgment of the Court of Appeal (Criminal Division) said:
“The central proposition in Donovan [1934] 2 K.B. 498 is in our view
consistent with the decision of the court in the Attorney General’s
Reference (No. 6 of 1980) [1981] QB 715. That proposition can be
expressed as follows: an assault intended or which is likely to cause
bodily harm, accompanied by indecency, is an offence irrespective of
consent, provided that the injury is not ‘transient or trifling’.”
Glidewell L.J. went on to point out that having regard to the change in social
attitude towards sexual relations “transient and trivial” must be understood in
the light of conditions prevailing in 1992 rather than in 1934.
Before considering whether the above four cases were correctly
decided and if so what relevance they have to these appeals, I must say a
word about hostility. It was urged upon your Lordships that hostility on the
pan of the inflicter was an essential ingredient of assault and that this
ingredient was necessarily lacking when injury was inflicted with the consent
of the receiver. It followed that none of the activities in question constituted
assault. The answer to this submission is to be found in the judgment of the
Court of Appeal in Wilson v. Pringle [1987] QB 237 where it was said, at
p. 253 that hostility could not be equated with ill will or malevolence. The
judgment went on to state:
“Take the example of the police officer in Collins v. Wilcock [1984]
1 W.L.R. 1172. She touched the woman deliberately, but without an
intention to do more than restrain her temporarily. Nevertheless, she
was acting unlawfully and in that way was acting with hostility.”
If the appellant’s activities in relation to the receivers were unlawful they were
also hostile and a necessary ingredient of assault was present.
It was accepted by all the appellants that a line had to be drawn
somewhere between those injuries to which a person could consent to
infliction upon himself and those which were so serious that consent was
immaterial. They all agreed that assaults occasioning actual bodily harm
– 17 –
should be below the line but there was disagreement as to whether all offences
against section 20 of the Act of 1861 should be above the line or only those
resulting in grievous bodily harm. The four English cases to which I have
referred were not concerned with the distinction between the various types of
assault and did not therefore have to address the problem raised in these
appeals. However it does appear that in Donovan, the Attorney General’s
Reference (No. 6 of 1980), and Boyea the infliction of actual bodily harm was
considered to be sufficient to negative any consent. Indeed in Donovan and
Boyea such injuries as were sustained by the two women could not have been
described as in any way serious. Cave J. in Coney also appeared to take the
same view. On the other hand, Stephen J. in Coney appeared to consider that
it required serious danger to life and limb to negative consent, view which
broadly accords with the passage in his digest to which I have already
referred. A similar view was expressed by McInerney J. in the Supreme
Court of Victoria in Pallante v. Stadiums Property Ltd. (No. 1) [1976] V.R.
331.
I prefer the reasoning of Cave J. in Coney and of the Court of Appeal
in the later three English cases which I consider to have been correctly
decided. In my view the line properly falls to be drawn between assault at
common law and the offence of assault occasioning actual bodily harm created
by section 47 of the Offences Against the Person Act 1861, with the result
that consent of the victim is no answer to anyone charged with the latter
offence or with a contravention of section 20 unless the circumstances fall
within one of the well known exceptions such as organised sporting contests
and games, parental chastisement or reasonable surgery. There is nothing in
sections 20 and 47 of the Act of 1861 to suggest that consent is either an
essential ingredient of the offences or a defence thereto. If consent is to be
an answer to a charge under section 47 but not to one under section 20,
considerable practical problems would arise. It was held in Reg. v. Savage
[1992] 1 AC 699 that a verdict of guilty of assault occasioning actual bodily
harm is a permissible alternative verdict on a count alleging unlawful
wounding contrary to section 20 (Lord Ackner at p. 740D). A judge charging
a jury in a section 20 case would therefore not only have to direct them as to
the alternative verdict available under section 47, but also as to the
consequences of consent in relation to that alternative only. Such direction
would be more complex if consent was an answer to wounding under section
20 but not to the infliction of grievous bodily harm under the same section.
These problems would not arise if consent is an answer only to common
assault I would therefore dispose of these appeals on the basis that the
infliction of actual or more serious bodily harm is an unlawful activity to
which consent is no answer. In reaching this conclusion I have not found it
necessary to rely on the fact that the activities of the appellants were in any
event unlawful inasmuch as they amounted to acts of gross indecency which,
not having been committed in private, did not fall within section 1(1) of the
Sexual Offences Act 1967. Notwithstanding the views which I have come to,
– 18 –
I think it right to say something about the submissions that consent to the
activity of the appellants would not be injurious to the public interest.
Considerable emphasis was placed by the appellants on the well-
ordered and secret manner in which their activities were conducted and upon
the fact that these activities had resulted in no injuries which required medical
attention. There was, it was said, no question of proselytising by the
appellants. This latter submission sits ill with the following passage in the
judgment of the Lord Chief Justice:
“They [Laskey and Cadman] recruited new participants: they jointly
organised proceedings at the house where much of this activity took
place; where much of the pain inflicting equipment was stored.
“Cadman was a voyeur rather than a sado-masochist, but both he and
Laskey through their operations at the Horwich premises were
responsible in part for the corruption of a youth “K” to whom the
judge, rightly in our view, paid particular attention. It is some
comfort at least to be told, as we were, that “K” is now it seems
settled into a normal heterosexual relationship.”
Be that as it may, in considering the public interest it would be wrong to look
only at the activities of the appellants alone, there being no suggestion that
they and their associates are the only practitioners of homosexual sado-
masochism in England and Wales. This House must therefore consider the
possibility that these activities are practised by others and by others who are
not so controlled or responsible as the appellants are claimed to be. Without
going into details of all the rather curious activities in which the appellants
engaged it would appear to be good luck rather than good judgment which has
prevented serious injury from occurring. Wounds can easily become septic
if not properly treated, the free flow of blood from a person who is H.I.V.
positive or who has Aids can infect another and an inflicter who is carried
away by sexual excitement or by drink or drugs could very easily inflict pain
and injury beyond the level to which the receiver had consented. Your
Lordships have no information as to whether such situations have occurred in
relation to other sado-masochistic practitioners. It was no doubt these dangers
which caused Lady Mallalieu to restrict her propositions in relation to the
public interest to the actual rather than the potential result of the activity. In
my view such a restriction is quite unjustified. When considering the public
interest potential for harm is just as relevant as actual harm. As Mathew J.
said in Coney 8 Q.B.D. 534, 547:
“There is however abundant authority for saying that no consent can
render that innocent which is in fact dangerous”.
Furthermore, the possibility of proselytisation and corruption of young men
is a real danger even in the case of these appellants and the taking of video
recordings of such activities suggest that secrecy may not be as strict as the
– 19 –
appellants claimed to your Lordships. If the only purpose of the activity is the
sexual gratification of one or both of the participants what then is the need of
a video recording?
My Lords I have no doubt that it would not be in the public interest
that deliberate infliction of actual bodily harm during the course of
homosexual sado-masochistic activities should be held to be lawful. In
reaching this conclusion I have regard to the information available in these
appeals and of such inferences as may be drawn therefrom. I appreciate that
there may be a great deal of information relevant to these activities which is
not available to your Lordships. When Parliament passed the Sexual Offences
Act 1967 which made buggery and acts of gross indecency between consenting
males lawful it had available the Wolfenden Report (1957) (Cmnd. 247) which
was the product of an exhaustive research into the problem. If it is to be
decided that such activities as the nailing by A of B’s foreskin or scrotum to
a board or the insertion of hot wax into C’s urethra followed by the burning
of his penis with a candle or the incising of D’s scrotum with a scalpel to the
effusion of blood are injurious neither to B, C and D nor to the public interest
then it is for Parliament with its accumulated wisdom and sources of
information to declare them to be lawful.
Two further matters only require to be mentioned. There was
argument as to whether consent, where available, was a necessary ingredient
of the offence of assault or merely a defence. There are conflicting dicta as
to its effect. In Coney Stephen J. referred to consent as “being no defence”,
whereas in Attorney General’s Reference (No. 6 of 1980) [1981] QB 715
Lord Lane C.J. referred to the onus being on the prosecution to negative
consent. In Collins v. Wilcock [1984] 1 W.L.R. 1172, 1177F Goff L.J.
referred to consent being a defence to a battery. If it were necessary, which
it is not, in this appeal to decide which argument was correct I would hold
that consent was a defence to but not a necessary ingredient in assault.
The second matter is the argument that the appellants should have been
charged under the Sexual Offences Act and not under the Act of 1861. The
appellants could within the time limit have been charged under the Act of
1956 with committing acts of gross indecency. However that Act contained
no provision limiting the effect of sections 20 and 47 of the Act of 1861 to
offences unconnected with sex. The Wolfenden Report in considering gross
indecency between males took the view that it usually took one of three forms,
of which none involved the deliberate infliction of injury. Your Lordships
were referred to no material which suggested that Parliament, when enacting
the Act of 1956 had in contemplation the type of activities engaged in by the
appellants. These activities necessarily comprehended acts of gross indecency
as referred to in section 13 of the Sexual Offences Act 1956 and section 1(7)
of the Act of 1967. However, the Wolfenden Report (1957) (Cmnd. 247), at
paragraph 105 states that from police reports seen by the Committee and other
evidence acts of gross indecency usually take one of the three forms in which
none involves violence or injury. The activities of the appellants thus went
– 20 –
far beyond the sort of conduct contemplated by the legislature in the foregoing
statutory provisions and I consider that they were unlawful even when carried
out in private. In these circumstances there exists no reason why the
appellants should not have been charged under the Act of 1861.
I cannot usefully add anything to what my noble and learned friend
Lord Templeman has said in relation to the appellants’ argument on articles
7 and 8 of the European Convention on Human Rights.
My Lords, I would answer the certified question in the negative and
dismiss the appeals.
LORD LOWRY
My Lords,
I have had the advantage of reading in draft the speeches of your
Lordships. I agree with the reasoning and conclusions of my noble and
learned friends, Lord Templeman and Lord Jauncey of Tullichettle and I, too,
would answer the certified question in the negative and dismiss the appeals.
In stating my own further reasons for this view I shall address myself
exclusively to the cases in which, as has been informally agreed, one person
has acted upon another in private, occasioning him actual bodily harm but
nothing worse.
The appellants’ main point is that, contrary to the view of the trial
judge and the Court of Appeal, the consent of the victim, as I shall call the
willing recipient of the sado-masochistic treatment, constitutes a defence to the
charges of assault occasioning actual bodily harm contrary to section 47 of the
Offences Against the Person Act 1861 (“the 1861 Act”) and of wounding
contrary to section 20 of the 1861 Act (no more than actual bodily harm being
occasioned) or, to put it another way, that, when the victim consents, no such
offence of assault or wounding as I have described takes place.
Under the law which formerly held sway (and which has been
thoroughly described and analysed by my noble and learned friend, Lord
Mustill) consent was a defence to a charge of common assault but not to a
charge of mayhem or maiming. Everyone agrees that consent remains a
complete defence to a charge of common assault and nearly everyone agrees
that consent of the victim is not a defence to a charge of inflicting really
serious personal injury (or “grievous bodily harm”). The disagreement
concerns offences which occasion actual bodily harm: the appellants contend
that the consent of the victim is a defence to one charged with such an
– 21 –
offence, while the respondent submits that consent is not a defence. I agree
with the respondent’s contention for reasons which I now explain.
The 1861 Act was one of several laudable but untidy Victorian
attempts to codify different areas of the law. From the accusation of
untidiness I must exempt such measures as the Bills of Exchange Act 1882
and the Sale of Goods Act 1893, but, in regard to the 1861 Act I would adopt
the words of paragraph 7.4 of the Law Commission’s Consultation Paper No.
122 (“L.C. 122”) published in 1992.
“Sections 18, 20 and 47 of the 1861 Act are not part of a
comprehensive legislative code; were not drafted with a view to setting
out the various offences with which they deal in a logical or graded
manner; in some cases do not create offences, but merely state the
punishment for what is regarded as an existing common law offence;
and, above all, in so doing employ terminology that was difficult to
understand even in 1861. The sections are virtually the only
significant part of the extensive series of criminal law statutes passed
in 1861 that still remains on the statute book. Those Acts as a whole
attracted early criticism, not least from Sir (James) Fitzjames Stephen:
‘Their arrangement is so obscure, their language so lengthy and
cumbrous, and they are based upon and assume the existence
of so many singular common law principles that no-one who
was not already well acquainted with the law would derive any
information from reading them.’
“More recent critics have agreed with these strictures describing the
1861 Act as ‘piece-meal legislation’, which is a ‘rag-bag of offences
brought together from a wide variety of sources with no attempt, as
the draftsman frankly acknowledged, to introduce consistency as to
substance or as to form.'”
The 1861 Act has not the form or substance of a true consolidation
but, with acknowledgments to the work of C. S. Greave, Q.C., L.C. 122
traces section 18 of the 1861 Act to section 4 of the Offences Against the
Person Act 1837, (section 20 to section 29 of the Offences Against the Person
Act (Ireland) 1829) (and section 47 to section 29 of the Administration of
Criminal Justice Act 1851). I do not think, however, that it would be helpful
to your Lordships for me to go further back than the 1861 Act itself.
It follows that the indications to be gathered from the 1861 Act are not
precise. Nevertheless, I consider that it contains fairly clear signs that, with
regard to the relevance of the victim’s consent as a defence, assault
occasioning actual bodily harm and wounding which results in actual bodily
harm are not offences “below the line”, to be ranked with common assault as
offences in connection with which the victim’s consent provides a defence, but
offences “above the line”, to be ranked with inflicting grievous bodily harm
– 22 –
and the other more serious offences in connection with which the victim’s
consent does not provide a defence. The sections in question, in their original
form, read as follows:
“18. Whosoever shall unlawfully and maliciously by any means
whatsoever wound or cause any grievous bodily harm to any person,
or shoot at any person, or, by drawing a trigger or in any other
manner, attempt to discharge any kind of loaded arms at any person,
with intent, in any of the cases aforesaid, to maim, disfigure, or
disable any person, or to do some other grievous bodily harm to any
person, or with intent to resist or prevent the lawful apprehension or
detainer of any person, shall be guilty of felony, and being convicted
thereof shall be liable, at the discretion of the court, to be kept in
penal servitude for life or for any term not less than three years, – or
to be imprisoned for any term not exceeding two years, with or
without hard labour, and with or without solitary confinement.
“20. Whosoever shall unlawfully and maliciously wound or inflict
any grievous bodily harm upon any other person, with or without any
weapon or instrument, shall be guilty of a misdemeanour, and being
convicted thereof shall be liable, at the discretion of the court, to be
kept in penal servitude for the term of three years, or to be imprisoned
for any term not exceeding two years, with or without hard labour.
“47. Whosoever shall be convicted upon an indictment of any assault
occasioning actual bodily harm shall be liable at the discretion of the
court to be kept in penal servitude for the term of three years or to be
imprisoned for any term not exceeding two years with or without hard
labour; and whosoever shall be convicted upon an indictment for a
common assault shall be liable, at the discretion of the court, to be
imprisoned for any term not exceeding one year, with or without hard
labour.”
I suggest that the following points should be noted:
Offences against section 18 were felonies, but offences against sections
20 and 47 were misdemeanours. Therefore section 20 was not associated with
section 18 and separated from section 47 by categorisation.
Although section 47 appears to describe a less serious offence than
section 20, the maximum penalty was the same. Equality was maintained at
five years’ imprisonment after the distinction between felony and
misdemeanour was abolished.
Wounding is associated in sections 18 and 20 with the infliction of
grievous bodily harm and is naturally thought of as a serious offence, but it
may involve anything from a minor breaking or puncture of the skin to a near
fatal injury. Thus wounding may simply occasion actual bodily harm or it
– 23 –
may inflict grievous bodily harm. If the victim’s consent is a defence to
occasioning actual bodily harm, then, so far as concerns the proof of guilt, the
line is drawn, as my noble and learned friend, Lord Jauncey of Tullichettle
puts it, “somewhere down the middle of section 20”, which I would regard as
a most unlikely solution.
According to the appellants’ case, if an accused person charged with
wounding relies on consent as a defence, the jury will have to find whether
anything more than actual bodily harm was occasioned, something which is
not contemplated by section 20.
The distinction between common assault and all other attacks on the
person is that common assault does not necessarily involve any. significant
bodily injury. It is much easier to draw the line between no significant injury
and some injury than to differentiate between degrees of injury. It is also
more logical, because for one person to inflict any injury on another without
good reason is an evil in itself (malum in se) and contrary to public policy.
That consent is a defence to a charge of common assault is a common
law doctrine which the 1861 Act has done nothing to change.
The proposition that the line of “victim’s consent” is regarded as drawn
just above common assault gains support from the wording of clause 8(1) of
the Bill attached to L.C. 122 (see paragraph 9.10):
“8(1) A person is guilty of assault if –
(a) he intentionally or recklessly applies force to or causes an
impact on the body of another,
(i) without the consent of the other; or
(ii) where the act is likely or intended to cause injury, with
or without the consent of the other; or
(b) he intentionally or recklessly, without the consent of the other,
causes the other to believe that any such force or impact is
imminent.”
My Lords, on looking at the cases, I get little help from Reg. v. Coney
(1882) 8 QBD 534, which was much canvassed at the hearing of the appeal
and on which your Lordships, necessarily, have commented. The case
contains a number of inconclusive and sometimes conflicting statements, but
it was generally agreed (the charge being one of common assault) that consent
was no defence to that which amounted to, or had a direct tendency to create,
a breach of the peace. The only support for the present appellants is found
in the judgment of Stephen J., at p. 549:
– 24 –
“In cases where life and limb are exposed to no serious danger in the
common course of things, I think that consent is a defence to a charge
of assault, even when considerable force is used …”
The learned judge developed this view in his Digest of the Criminal Law,
where he stated that consent was a defence to a charge of assault occasioning
actual bodily harm. Archbold adopted that statement, for which there is no
other judicial authority, until it was disapproved in R. v. Donovan [1934] 2
K.B. 498, and the editor of later editions of Stephen’s Digest has abandoned
the distinguished author’s proposition.
In Donovan the appellant had been convicted on two counts, indecent
assault and common assault. The only issue of fact was whether the victim
consented. The chairman of quarter sessions rightly told the jury that the case
depended on the issue of consent. The jury must have rejected the appellant’s
evidence, but the Court of Criminal Appeal held that the chairman had
misdirected the jury as to the burden of proof on the consent issue and
quashed the conviction. It was obvious what had to be done once the court
found misdirection on the vital issue, but it is instructive to note what
happened. Lord Hewart, C.J. is reported in (1934) 25 Cr.App.R. 1, 4, as
saying at the conclusion of argument:
“We have come to the conclusion that this trial, dealing as it did with
a revolting matter, was in various ways unsatisfactory. The court is
compelled, however reluctantly, to take the view that in the
circumstances this conviction cannot safely be upheld and that this
appeal must be allowed. The matter involves, however, more than one
question of importance and we propose therefore to give our reasons
for our decision upon a later day.”
Five weeks later, as reported in [1934] 2 K.B. 498, Swift J. delivered
the judgment of the court, disposing first of the consent issue and another
point. He then dealt with the question which has some relevance to the
present appeals and which he introduced as follows, at p. 506:
“This conclusion would have been enough to dispose of the case were
it not for the fact that the learned counsel for the Crown relied in this
Court upon the submission which he had unsuccessfully made at the
trial, and argued that, this being a case in which it was unnecessary for
the Crown to prove absence of consent, this Court ought not to quash
the conviction.”
A doctor who gave evidence for the Crown had said that marks on the
girl’s body two days after the incident indicated “a fairly severe beating”;
therefore clearly actual bodily harm had been caused. The judgment
continued:
– 25 –
“We have given careful consideration to the question of law which this
submission raises.”
Then, having noted observations of Cave J. in Reg. v. Coney 8 Q.B.D. 334,
the judge said, at p. 507:
“We have considered the authorities upon which this view of the
learned judge was founded, and we think it of importance that we
should state our opinion as to the law applicable in this case. If an act
is unlawful in the sense of being in itself a criminal act, it is plain that
it cannot be rendered lawful because the person to whose detriment it
is done consents to it. No person can license another to commit a
crime. So far as the criminal law is concerned, therefore, where the
act charged is in itself unlawful, it can never be necessary to prove
absence of consent on the part of the person wronged in order to
obtain the conviction of the wrongdoer.” (emphasis supplied).
. . .
“As a general rule, although it is a rule to which there are well
established exceptions, it is an unlawful act to beat another person with
such a degree of violence that the infliction of bodily harm is a
probable consequence, and when such an act is proved, consent is
immaterial. We are aware that the existence of this rule has not
always been clearly recognized. In his Digest of the Criminal Law
(6th ed.), Art. 227, Sir James FitzJames Stephen enunciates the
proposition that ‘everyone has a right to consent to the infliction upon
himself of bodily harm not amounting to a maim.’ This may have
been true in early times when the law of this country showed
remarkable leniency towards crimes of personal violence, but it is a
statement which now needs considerable qualification.”
Having referred to East’s Pleas of the Crown and Foster’s Crown Law,
Swift J. stated, at p. 508:
“If an act is malum in se in the sense in which Sir Michael Foster used
the words, that is to say, is, in itself, unlawful, we take it to be plain
that consent cannot convert it into an innocent act.”
Having then mentioned the “well established exceptions” to the general rule
that an act likely or intended to cause bodily harm is an unlawful act, he
continued, at p. 509:
“In the present case it was not in dispute that the motive of the
appellant was to gratify his own perverted desires. If, in the course
of so doing, he acted so as to cause bodily harm, he cannot plead his
corrupt motive as an excuse, and it may truly be said of him in Sir
Michael Foster’s words that ‘he certainly beat him with an intention
– 26 –
of doing him some bodily harm, he had no other intent,’ and that what
he did was malum in se. Nothing could be more absurd or more
repellent to the ordinary intelligence than to regard his conduct as
comparable with that of a participant in one of those ‘manly
diversions’ of which Sir Michael Foster wrote. Nor is his act to be
compared with the rough but innocent horse-play in Reg. v. Bruce 2
Cox C.C. 262. Always supposing, therefore, that the blows which he
struck were likely or intended to do bodily harm, we are of opinion
that he was doing an unlawful act, no evidence having been given of
facts which would bring the case within any of the exceptions to the
general rule. In our view, on the evidence given at the trial, the jury
should have been directed that, if they were satisfied that the blows
struck by the prisoner were likely or intended to do bodily harm to the
prosecutrix, they ought to convict him, and that it was only if they
were not so satisfied, that it became necessary to consider the further
question whether the prosecution had negatived consent.”
This passage is followed by an explanation why, the question not having been
put to the jury, the court did not feel that, consistently with its practice, it
could uphold the conviction on the ground argued by Crown counsel.
I find this pan of the court’s judgment hard to follow, when I recall
the protest made at his trial by Sir Walter Raleigh to Sir Edward Coke: “The
Crown cannot recover, Mr. Attorney, save secundum allegata et probata.”
This is a universal proposition, not confined to trials of the high and the
mighty for treason. There were two counts in the indictment, to which
consent of the victim was a complete defence. If the jury, properly directed,
had found that consent was not disproved, they must have acquitted the
appellant of the only charges brought against him. How, then, could they
have convicted the appellant of either of those charges or of the offence of
assault, occasioning actual bodily harm, with which he was not charged? It
will not be overlooked that at p. 507 the judgment ran, “where the act charged
is in itself unlawful”.
Does the second part of the Court of Criminal Appeal’s judgment
therefore stand condemned in all respects? My Lords, I suggest not. It
clearly indicates the view of the court that assault, occasioning actual bodily
harm, is malum in se, an offence for which, absent one of the recognised
exceptions, the accused will be convicted, even though the victim consents.
Attorney General’s Reference (No. 6 of 1980) [1981] QB 715 was
relied on by both sides before your Lordships. The charge was one of assault,
occasioning actual bodily harm; the fight, between youths of 18 and 17 years
took place in the street; and the question referred was concerned with fighting
in public. In giving judgment, however, the court expressly made no
distinction between fighting in public and in private.
Lord Lane, C.J. introduced the subject by saying, at p. 718:
– 27 –
“We think that it can be taken as a starting point that it is an essential
element of an assault that the act is done contrary to the will and
without the consent of the victim; and it is doubtless for this reason
that the burden lies on the prosecution to negative consent. Ordinarily,
then, if the victim consents, the assailant is not guilty.”
Then he said (p. 718H):
“Bearing in mind the various cases and the views of the textbook
writers cited to us, and starting with the proposition that ordinarily an
act consented to will not constitute an assault, the question is: at what
point does the public interest require the court to hold otherwise?”
I would concede that the natural way in which to construe these passages is
to the effect that (1) there is no assault if the act is consented to by the victim
and (2) where the victim has consented, a factor directed to the public interest
is needed in order to make the court hold that an offence has been committed.
No doubt this is what caused Professor Glanville Williams in Text book of
Criminal Law 2nd ed. (1983) at pp. 582-589 to express the view that, by
vitiating the effect of the victim’s consent in cases where the occasioning of
physical harm seemed to be against the public interest, the courts were
extending the law against assault and were legislating judicial paternalism.
The Lord Chief Justice then spoke of the need for a “partly new
approach” (compared with that found in Coney and Donovan.) He continued,
at p. 719:
“The answer to this question” [that is, the question, At what point does
the public interest require the court to hold otherwise?], “in our
judgment, is that it is not in the public interest that people should try
to cause, or should cause, each other actual bodily harm for no good
reason. Minor struggles are another matter. So, in our judgment, it
is immaterial whether the act occurs in private or in public; it is an
assault if actual bodily harm is intended and/or caused. This means
that most fights will be unlawful regardless of consent.
“Nothing which we have said is intended to cast doubt upon the
accepted legality of properly conducted games and sports, lawful
chastisement or correction, reasonable surgical interference, dangerous
exhibitions, etc. These apparent exceptions can be justified as
involving the exercise of a legal right, in the case of chastisement or
correction, or as needed in the public interest, in the other cases.
“Our answer to the point of law is No, but not, as the reference
implies, because the fight occurred in a public place, but because,
wherever it occurred, the participants would have been guilty of
assault, subject to self-defence, if, as we understand was the case, they
intended to and or did cause actual bodily harm.”
– 28 –
The appellants submitted that this pronouncement was confined to fighting but,
as Professor Glanville Williams pointed out, the contents of the second
paragraph cited above appear to contradict this view. Thus we are left with
the proposition that it is not in the public interest that people should try to
cause, or should cause, each other actual bodily harm for no good reason and
that it is an assault if actual bodily harm is caused (except for good reason).
This principle was adopted in Reg. v. McCoy [1953(2)] S.A.L.R. 4
(although it was not required in order to decide the case), where the manager
of an airline caned an air hostess, allegedly with her consent, as a punishment
for failing to secure her seat belt when landing, and also by the Court of
Appeal Reg. v. Boyea (28 January 1992 unreported). I think that
consideration of the 1861 Act and the indications to be derived from the cases
together provide strong support for the respondents’ case on the effect of
consent on charges involving actual bodily harm. While saying this, I do not
forget the danger of applying to a particular situation cases decided by judges
who, in reaching their decisions, were not thinking of that situation at all.
Let me now consider the judgment of the Court of Appeal in this case,
reported at [1992] Q.B. 491 and delivered by Lord Lane, C.J. First, I agree
with the disposal, brief as it was, of the appellants’ argument directed to the
word “hostility”. On this point I gladly adopt everything which has been said
by my noble and learned friend Lord Jauncey. I also concur in the summary
dismissal of the argument that it was inappropriate for the Crown to have
proceeded under the 1861 Act. There was a considerable delay and one may
speculate that the prosecuting authorities had cast around for a suitable vehicle
for their accusations before finally deciding to proceed under the 1861 Act in
this unusual case, but the only way of meeting these charges otherwise than
on the merits was to contend that they amounted to an abuse of process. This
procedure was not resorted to, which is not surprising in the state of the
authorities.
Predictably, the appeal and the judgment in the Court of Appeal were
mainly occupied with the effect of the victim’s consent (p. 497B et seq.).
Having cited Donovan [1934] 2 K.B. 498, Lord Lane, C.J. drew attention to
Kenny’s Outlines of Criminal Law (p. 499E) and Archbold (p. 499G) and went
on to consider Attorney General’s Reference (No. 6 of 1980) [1981] QB 715.
Commenting on p. 719, he said (p. 500B):
“What may be ‘good reason’ it is not necessary for us to decide. It is
sufficient to say, so far as the instant case is concerned, that we agree
with the trial judge that the satisfying of sado-masochistic libido does
not come within the category of good reason nor can the injuries be
described as merely transient or trifling.”
In the immediately following paragraph of his judgment the Lord Chief Justice
shows that what he said in Attorney General’s Reference (No. 6 of 1980) was
intended by him to be of general application:
– 29 –
“It was submitted to us that the facts in that case were no different
from those in the instant case that the principle which is expressed in
the answer to the Attorney-General’s question does not apply to the
present circumstances. We disagree. In our judgment the principle as
expressed in Attorney General’s Reference (No. 6 of 1980) [1981] Q.B.
715 does apply. Consequently for those reasons the question of
consent was immaterial. The judge’s ruling was accordingly correct.”
If, as I, too, consider, the question of consent is immaterial, there are
prima facie offences against sections 20 and 47 and the next question is
whether there is good reason to add sado-masochistic acts to the list of
exceptions contemplated in Attorney-General’s Reference. In my opinion, the
answer to that question is “No”.
In adopting this conclusion I follow closely my noble and learned
friends Lord Templeman and Lord Jauncey. What the appellants are obliged
to propose is that the deliberate and painful infliction of physical injury should
be exempted from the operation of statutory provisions the object of which is
to prevent or punish that very thing, the reason for the proposed exemption
being that both those who will inflict and those who will suffer the injury wish
to satisfy a perverted and depraved sexual desire. Sado-masochistic
homosexual activity cannot be regarded as conducive to the enhancement or
enjoyment of family life or conducive to the welfare of society. A relaxation
of the prohibitions in sections 20 and 47 can only encourage the practice of
homosexual sado-masochism and the physical cruelty that it must involve
(which can scarcely be regarded as a “manly diversion”) by withdrawing the
legal penalty and giving the activity a judicial imprimatur. As well as all this,
one cannot overlook the physical danger to those who may indulge in sado-
masochism. In this connection, and also generally, it is idle for the appellants
to claim that they are educated exponents of “civilised cruelty”. A proposed
general exemption is to be tested by considering the likely general effect.
This must include the probability that some sado-masochistic activity, under
the powerful influence of the sexual instinct, will get out of hand and result
in serious physical damage to the participants and that some activity will
involve a danger of infection such as these particular exponents do not
contemplate for themselves. When considering the danger of infection, with
its inevitable threat of AIDS, I am not impressed by the argument that this
threat can be discounted on the ground that, as long ago as 1967, Parliament,
subject to conditions, legalised buggery, now a well-known vehicle for the
transmission of AIDS.
So far as I can see, the only counter-argument is that to place a
restriction on sado-masochism is an unwarranted interference with the private
life and activities of persons who are indulging in a lawful pursuit and are
doing no harm to anyone except, possibly, themselves. This approach, which
has characterised every submission put forward on behalf of the appellants,
is derived from the fallacy that what is involved here is the restraint of a
lawful activity as opposed the refusal to relax existing prohibitions in the 1861
– 30 –
Act. If in the course of buggery, as authorised by the 1967 Act, one
participant, either with the other participant’s consent or not, deliberately
causes actual bodily harm to that other, an offence against section 47 has been
committed. The 1967 Act provides no shield. The position is as simple as
that, and there is no legal right to cause actual bodily harm in the course of
sado-masochistic activity.
As your Lordships have observed, the appellants have sought to fortify
their argument by reference to the European Convention on Human Rights.
On the view which I have taken, Article 7 has no relevance since the question
of retrospective legislation or a retrospective judicial decision does not arise.
Article 8.1 of the Convention states that everyone has the right to
respect for his private and family life, his home and his correspondence. The
attempts to rely on this article is another example of the appellants’ reversal
of the onus of proof of legality, which disregards the effect of sections 20 and
47. I would only say, in the first, place, that article 8 is not part of our law.
Secondly, there has been no legislation which, being post-Convention and
ambiguous, falls to be construed so as to conform with the Convention rather
than to contradict it. And thirdly, if one is looking at article 8.2, no public
authority can be said to have interfered with a right (to indulge in sado-
masochism) by enforcing the provisions of the 1861 Act. If, as appears to be
the fact, sado-masochistic acts inevitably involve the occasioning of at least
actual bodily harm, there cannot be a right under our law to indulge in them.
For all these reasons I would answer “No” to the certified question and
would dismiss the appeals.
LORD MUSTILL
My Lords.
This is a case about the criminal law of violence. In my opinion it
should be a case about the criminal law of private sexual relations, if about
anything at all. Right or wrong, the point is easily made. The speeches
already delivered contain summaries of the conduct giving rise to the charges
under the Offences Against the Person Act 1861 now before the House,
together with other charges in respect of which the appellants have been
sentenced, and no longer appeal. Fortunately for the reader my Lords have
not gone on to describe other aspects of the appellants’ behaviour of a similar
but more extreme kind which was not the subject of any charge on the
indictment. It is sufficient to say that whatever the outsider might feel about
the subject-matter of the prosecutions – perhaps horror, amazement or
incomprehension, perhaps sadness – very few could read even a summary of
the other activities without disgust. The House has been spared the video
– 31 –
tapes, which must have been horrible. If the criminality of sexual deviation
is the true ground of these proceedings, one would have expected that these
above all would have been the subject of attack. Yet the picture is quite
different.
The conduct of the appellants and of other co-accused was treated by
the prosecuting authorities in three ways. First, there were those acts which
fell squarely within the legislation governing sexual offences. These are easily
overlooked, because attention has properly been concentrated on the charges
which remain in dispute, but for a proper understanding of the case it is
essential to keep them in view. Thus, four of the men pleased guilty either
as principals or as aiders and abettors to the charges of keeping a disorderly
house. It is worth setting out, with abbreviations, the particulars of a typical
charge:
“GWC on divers days between the 1st day of January 1979 and the 5th
day of November 1987 at . . . Bolton kept a disorderly house to which
numerous persons resorted in order to take part in, and who did take
part in, acts of sadistic and masochistic violence, and in accompanying
acts of lewd, immoral and unnatural kind. IW, PJG, COLIN
LASKEY and PJK at the same times and at the same place did aid,
abet, counsel and procure GWH to commit the said offence.”
Laskey also pleaded guilty to two counts of publishing an obscene article.
The articles in question were video-tapes of the activities which formed the
subject of some of the counts laid under the Act of 1861.
The pleas of guilty to these counts, which might be regarded as dealing
quite comprehensively with those aspects of Laskey’s sexual conduct which
impinged directly on public order attracted sentences of four years reduced on
appeal to eighteen months imprisonment and three months imprisonment
respectively. Other persons, not before the House, were dealt with in a
similar way.
The two remaining categories of conduct comprised private acts. Some
were prosecuted and are now before the House. Others, which I have
mentioned, were not. If repugnance to general public sentiments of morality
and propriety were the test, one would have expected proceedings in respect
of the most disgusting conduct to be prosecuted with the greater vigour. Yet
the opposite is the case. Why is this so? Obviously because the prosecuting
authorities could find no statutory prohibition apt to cover this conduct.
Whereas the sexual conduct which underlies the present appeals, although less
extreme, could at least arguably be brought within sections 20 and 47 of the
1861 Act because it involved the breaking of skin and the infliction of more
than trifling hurt.
I must confess that this distribution of the charges against the
appellants at once sounds a note of warning. It suggests that the involvement
– 32 –
of the Act of 1861 was adventitious. This impression is reinforced when one
considers the tide of the statute under which the appellants are charged,
“Offences against the Person”. Conduct infringing sections 18, 20 and 47 of
the Act of 1861 comes before the Crown Courts every day. Typically it
involves brutality, aggression and violence, of a kind far removed from the
appellants’ behaviour which, however worthy of censure, involved no
animosity, no aggression, no personal rancour on the part of the person
inflicting the hurt towards the recipient and no protest by the recipient. In
fact, quite the reverse. Of course we must give effect to the statute if its
words capture what the appellants have done, but in deciding whether this is
really so it in my opinion legitimate to assume that the choice of the Offences
against the Person Act as the basis for the relevant counts in the indictment
was made only because no other statute was found which could conceivably
be brought to bear upon them.
In these circumstances I find it easy to share the opinion expressed by
Wills J. in Reg. v. Clarence (1888) 22 QBD 23, a case where the accused
had consensual intercourse with his wife, he knowing and she ignorant that he
suffered from gonorrhoea, with the result that she was infected. The case is
of general importance, since the Court for Crown Cases Reserved held that
there was no offence under sections 47 and 20, since both sections required
an assault, of which the wound or grievous bodily harm was the result, and
that no assault was disclosed on the facts. For present purposes, however, I
need only quote from the report, at p. 30:
” . . . such considerations lead one to pause on the threshold, and
enquire whether the enactment under consideration could really have
been intended to apply to circumstances so completely removed from
those which are usually understood when an assault is spoken of, or to
deal with matters of any kind involving the sexual relation or act.”
I too am led to pause on the threshold. Asking myself the same question, I
cannot but give a negative answer. I therefore approach the appeal on the
basis that the convictions on charges which seem to me so inapposite cannot
be upheld unless the language of the statute or the logic of the decided cases
positively so demand. Unfortunately, as the able arguments which we have
heard so clearly demonstrate, the language of the statute is opaque, and the
cases few and unhelpful. To these I now turn.
I THE DECIDED CASES
Throughout the argument of the appeal I was attracted by an analysis
on the following lines. First, one would construct a continuous spectrum of
the infliction of bodily harm, with killing at one end and a trifling touch at the
other. Next, with the help of reported cases one would identify the point on
this spectrum at which consent ordinarily ceases to be an answer to a
prosecution for inflicting harm. This could be called “the critical level”. It
would soon become plain however that this analysis is too simple and that
– 33 –
I
there are certain types of special situation to which the general rule does not
apply. Thus, for example, surgical treatment which requires a degree of
bodily invasion well on the upper side of the critical level will nevertheless be
legitimate if performed in accordance with good medical practice and with the
consent of the patient. Conversely, there will be cases in which even a
moderate degree of harm cannot be legitimated by consent. Accordingly, the
next stage in the analysis will be to identify those situations which have been
identified as special by the decided cases, and to examine them to see whether
the instant case either falls within one of them or is sufficiently close for an
analogy to be valid. If the answer is negative, then the court will have to
decide whether simply to apply the general law simply by deciding whether
the bodily harm in the case under review is above or below the critical level,
or to break new ground by recognising a new special situation to which the
general law does not apply.
For all the intellectual neatness of this method I must recognise that it
will not do. for it imposes on the reported cases and on the diversities of
human life an order which they do not possess. Thus, when one comes to
map out the spectrum of ordinary consensual physical harm, to which the
special situations form exceptions, it is found that the task is almost
impossible, since people do not ordinarily consent to the infliction of harm.
In effect, either all or almost all the instances of the consensual infliction of
violence are special. They have been in the past, and will continue to be in the
future, the subject of special treatment by the law.
There are other objections to a general theory of consent and violence.
Thus, for example, it is too simple to speak only of consent, for it comes in
various sons. Of these, four spring immediately to mind. First, there is an
express agreement to the infliction of the injury which was in the event
inflicted. Next, there is express agreement to the infliction of some harm, but
not to that harm which in the event was actually caused. These two categories
are matched by two more, in which the recipient expressly consents not to the
infliction of harm, but to engagement in an activity which creates a risk of
harm: again, either the harm which actually results, or to something less.
These examples do not exhaust the categories, for corresponding with each are
situations of frequent occurrence in practice where the consent is not express
but implied. These numerous categories are not the fruit of academic over-
elaboration, but are a reflection of real life. Yet they are scarcely touched on
in the cases, which just do not bear the weight of any general theory violence
and consent.
Furthermore, when one examines the situations which are said to found
such a theory it is seen that the idea of consent as the foundation of a defence
has in many cases been forced on to the theory, whereas in reality the reason
why the perpetrator of the harm is not liable is not because of the recipient’s
consent, but because the perpetrator has acted in a situation where the consent
of the recipient forms one, but only one, of the elements which make the act
legitimate. This concept is clearly expressed in the following extract from the
– 34 –
judgment of my noble and learned friend Lord Goff of Chieveley in Collins
v. Wilcock [1984] 1 W.L.R. 1172, at pp. 1177:
“We are here concerned primarily with battery. The fundamental
principle, plain and incontestable, is that every person’s body is
inviolate. It has long been established that any touching of another
person, however slight, may amount to a battery.” So Holt C.J. held
in Cole v. Turner (1704) 6 Mod. 149 that “the least touching of
another in anger is a battery.” The breadth of the principle reflects the
fundamental nature of the interest so protected. As Blackstone wrote
in his Commentaries, 17th ed. (1830), vol. 3, p. 120:
“the law cannot draw the line between different degrees of violence,
and therefore totally prohibits the first and lowest stage of it; every
man’s person being sacred, and no other having a right to meddle with
it, in any the slightest manner.”
The effect is that everybody is protected not only against physical
injury but against any form of physical molestation.
“But so widely drawn a principle must inevitably be subject to
exceptions. For example, children may be subjected to reasonable
punishment; people may be subjected to the lawful exercise of the
power of arrest; and reasonable force may be used in self-defence or
for the prevention of crime. But, apart from these special instances
where the control or constraint is lawful, a broader exception has been
created to allow for the exigencies of everyday life. Generally
speaking, consent is a defence to battery; and most of the physical
contacts of ordinary life are not actionable because they are impliedly
consented to by all who move in society and so expose themselves to
the risk of bodily contact. So nobody can complain of the jostling
which is inevitable from his presence in, for example, a supermarket,
an underground station or a busy street; nor can a person who attends
a party complain if his hand is seized in friendship, or even if his back
is, within reason, slapped: see Tuberville v. Savage (1669) 1 Mod. 3.
Although such cases are regarded as examples of implied consent, it
is more common nowadays to treat them as falling within a general
exception embracing all physical contact which is generally acceptable
in the ordinary conduct of daily life. We observe that, although in the
past it has sometimes been stated that a battery is only committed
where the action is ‘angry, revengeful, rude, or insolent’ (see
Hawkins, Pleas of the Crown, 8th ed. (1824), vol. 1, e. 15, section 2),
we think that nowadays it is more realistic, and indeed more accurate,
to state the broad underlying principle, subject to the broad exception.”
In these circumstances I must accept that the existing case-law does not
sustain a step-by step analysis of the type proposed above. This being so I
have considered whether there is some common feature of those cases in
– 35 –
which consent has been held ineffectual whose presence or absence will
furnish an immediate solution when the court is faced with a new situation.
The only touchstone of this kind suggested in argument was the notion of
“hostility” without which, as Mr. Kershen Q.C. maintained, no offence of
violence can be made out. This argument, which equates hostility with
antagonism, is attractive because antagonism felt by the perpetrator against the
recipient, and expressed in terms of violence, is present in the great majority
of the offences dealt with by the courts under the Act of 1861. Nevertheless
I cannot accept it as a statement of the existing law which leads automatically
to a conclusion on the present appeals. It is true that counsel was able to cite
a series of cases on indecent conduct with consenting children, beginning with
Fairclough v. Whipp [1951] 2 All. E.R. 832 in which the absence of hostility
formed a ground for holding that indecent assaults were not proved. It is
however clear to my mind that whatever precise meaning the word was
intended to bear in the judgments there delivered it must have been different
from the one for which Mr. Kershen now contends. The facts were far
removed from the present, for the accused persons did nothing to the children
but merely persuaded them to do certain acts. They used no force, nor
inflicted any physical harm. It is not surprising that no assault was made out,
and the decisions do no more than furnish a useful reminder of the care to be
taken before punishing repugnant sexual conduct under laws aimed at
violence. Furthermore this theory does not fit the situations at the upper end
of the scale. The doctor who hastens the end of a patient to terminate his
agony acts with the best intentions, and quite without hostility to him in any
ordinary sense of the word, yet there is no doubt that notwithstanding the
patient’s consent he is guilty of murder. Nor has it been questioned on the
argument of the present appeal that someone who inflicts serious harm,
because (for example) he is inspired by a belief in the efficacy of a pseudo-
medical treatment, or acts in conformity with some extreme religious tenet,
is guilty of an offence notwithstanding that he is inspired only by a desire to
do the best he can for the recipient. Hostility cannot, as it seems to me, be a
crucial factor which in itself determines guilt or innocence, although its
presence or absence may be relevant when the court has to decide as a matter
of policy how to react to a new situation.
I thus see no alternative but to adopt a much narrower and more
empirical approach, by looking at the situations in which the recipient
consents or is deemed to consent to the infliction of violence upon him, to see
whether the decided cases teach us how to react to this new challenge. I will
take them in turn.
1. Death
With the exception of a few exotic specimens which have never come
before the courts, euthanasia is in practice the only situation where the
recipient expressly consents to being killed. As the law stands today,
consensual killing is murder. Why is this so? Professor Glanville Williams
suggests (Text book of Criminal Law, 2nd ed., (1983) pp. 579-580) that the
– 36 –
arguments in support are transcendental, and I agree. Believer or atheist, the
observer grants to the maintenance of human life an overriding imperative, so
strong as to outweigh any consent to its termination. Some believers and some
atheists now dissent from this view, but the controversy as to the position at
common law does not illuminate our present task, which is to interpret a
statute which is aimed at non-lethal violence.
Nor is anything gained by study of duelling, an activity in which the
recipient did not consent to being killed (quite the reverse) but did consent to
running the risk. The nineteenth century authorities were not too concerned
to argue the criminality of the practice as between principals, but to stamp
out this social evil by involving in the criminality those others, such as
seconds and surgeons, who helped to perpetuate it. A series of Nineteenth
Century cases, such as Rex. v. Rice (1803) 3 East 581, reiterated that the
dueller who inflicted the fatal wound was guilty of murder, whether he was
the challenger or not, and regardless of the fact that the deceased willingly
took the risk but by then it was already very old law – certainly as old as Rex
v. Taverner (1619) 3 Bulstr. 171 where Coke C.J. and Croke J expounded
the heinousness of the offence with copious reference to the ancients and to
Holy Scripture. Killing in cold blood was the sin of Cain, and that was that.
There is nothing to help us here.
2. Maiming.
The act of maiming consisted of “. . . such a hurt of any part of a
man’s body whereby he is rendered less able, in fighting either to defend
himself or to annoy his adversary . . . ” (Hawkins Pleas of the Crown, 8th
ed., vol. 1, ch. 15, p. 107). Maiming was a felony at common law. Self-
maiming was also a crime, and consent was no defence to maiming by
another. Maiming was also, in certain circumstances, a statutory offence under
a series of Acts, now repealed, beginning with the so-called “Coventry Act”.
and continuing as part of a more general prohibition of serious offences
against the person until an Act of 1803, 43 Geo. 3 c. 58. Then it seems to
have disappeared. There is no record of anyone being indicted for maim in
modern times, and I doubt whether maiming would have been mentioned in
the present case but for the high authority of Sir James Fitzjames Stephen who
as late as 1883, in article 206 of the third edition of his Digest of the Criminal
Law, stated that – “Every one has a right to consent to the infliction upon
himself of bodily harm not amounting to a maim.” No reported decision or
statute was cited in support of this proposition, and the reasoning (according
to a footnote) rested upon the assertion that below the level of maiming an
injury was no more than an assault, to which consent was a defence.
My Lords, I cannot accept that this antique crime any longer marks a
watershed for the interrelation of violence and consent. In the first place the
crime is obsolete. The Act of 1861 says nothing about it, as it must have done
if Parliament had intended to perpetuate maiming as a special category of
offence. Furthermore, the rationale of maiming as a distinct offence is now
– 37 –
quite out of date. Apparently the permanent disablement of an adult male was
criminal because it cancelled him as a fighting unit in the service of his king.
I think it impossible to apply this reasoning to the present case.
Finally, the practical results of holding that maim marks the level at
what consent ceases to be relevant seem to me quite unacceptable. The point
cannot be better made that in terms of the only illustration given by Stephen
J. in article 206 of his work. “It is a maim to strike out a front tooth. It is not
a maim to cut off a man’s nose.” Evidently consent would be a defence in the
latter instance, but not in the former. This not in my view a sound basis for
a modern law of violence.
3. Prizefighting, sparring and boxing.
Far removed as it is from the present appeal, I must take a little time
over prizefighting, for it furnishes in Reg. v. Coney (1882) 8 QBD 534 one
of the very few extended judicial analyses of the relationship between violence
and consent. By the early part of the Nineteenth Century it was firmly
established that prizefighting was unlawful notwithstanding the consent of the
fighters. It nevertheless continued to flourish. It is therefore not surprising to
find that the few and meagrely reported early cases at nisi prius were
concerned with the efforts of the courts to stamp out the practice by
prosecuting those who were thought to encourage it by acting as seconds or
promoters, or just by being present. Although it was at that stage taken for
granted that the activity was criminal per se, it is significant that in almost all
the cases the accused were charged with riot, affray or unlawful assembly,
and that emphasis was given to the tendency of prizefights to attract large and
unruly crowds. We encounter the same theme when at a later stage, in cases
such as Coney, Reg. v. Young (1866) 10 Cox C.C. 371 and Reg. v. Orton
(1878) 39 L.T. 293, the courts were forced to rationalise the distinction
between prizefighting (unlawful) and sparring between amateurs (lawful). Of
these cases much the most important was Coney 8 Q.B.D. 534. Burke and
Mitchell fought in a ring of posts and ropes on private land a short distance
from a highway. Upwards of one hundred people were present. There was
no evidence that the fight was for money or reward. Coney, Gilliam and Tully
were in the crowd. Originally, Burke, Mitchell, and three spectators and
others who did not appeal were charged under an indictment which contained
counts against all the accused for riot and other offences against public order,
but these were dropped and the trial proceeded on two counts alone, one
alleging (against all the accused except Burke) a common assault upon Burke,
and the other a kindred count relating to Mitchell. The chairman of quarter
sessions left to the jury the question whether this was a prize-fight, with a
direction that if so it was illegal and an assault. He also directed that all
persons who go to a prize-fight to see the combatants strike each other and
who are present when they do so are guilty of an assault. The jury convicted
all the accused. The chairman stated for decision by the Court of Crown Cases
Reserved the question whether in relation to the three last-named accused his
direction was right.
– 38 –
Two issues arose. First, whether the fighting between Burke and
Mitchell was an assault. If it was not, none of the accused were guilty of any
offence. Second, whether the direction as to the participation of the other
three appellants as aiders and abettors was correct. The court was divided on
the second issue. But on the first all the judges were agreed that if the
proceedings constituted a prize-fight then Burke and Mitchell were guilty of
assault irrespective of the fact that they had agreed to fight.
Even at first sight it is clear that this decision involved something out
of the ordinary, for the accused were charged, not with any of the serious
offences of violence under the Act of 1861 but with common assault; and as
all concerned in the argument of the present appeal have agreed, in common
with the judges in Coney itself, consent is usually a defence to such a charge.
Furthermore it seems that the degree of harm actually inflicted was thought
to be immaterial, for no reference was made to it in the case stated by
quarter sessions or (except tangentially) in the judgments of the court. What
then was the basis for holding that a prize-fight stood outside the ordinary
rules of criminal violence? Of the eleven judges only five went further than
to say that the law was well-established. Their reasons were as follows-
1. Prize-fighting is a breach of the peace. The parties may consent to the
infliction of blows as a civil wrong, but cannot prevent a breach of the peace
from being criminal. Per Cave J. at p. 538 of the report, and Stephen J.,
Hawkins J., and Lord Coleridge C.J. at pp. 549, 553 and 567 respectively.
As Stephen J. put it, prizefights were “disorderly exhibitions mischievous on
many obvious grounds”.
The participants are at risk of suffering ferocity and severe
punishment, dreadful injuries and endangerment of life, and are encouraged
to take the risk by the presence of spectators. It is against the public interest
that these risks should be run, whether voluntarily or not. Per Cave and
Mathew JJ., at pp. 539 and 544.
Fists are dangerous weapons like pistols, and prizefighting should be
proscribed for the same reasons as duelling. Per Mathew J. at p. 547.
My Lords, there is nothing here to found a general theory of
consensual violence. The court simply identifies a number of reasons why as
a matter of policy a particular activity of which consent forms an element
should found a conviction for an offence where the level of violence falls
below what would normally be the critical level. As Stephen J. made clear 8
Q.B.D. 534, 549, the question whether considerations of policy are strong
enough to take the case outside the ordinary law depends on whether “the
injury is of such nature or is inflicted under such circumstances that its
infliction is injurious to the public”. Speaking of duels, Bramwell L.J. was
later to say (in Reg. v. Bradshaw (1878) 14 Cox C.C. 83, 84-85): “No person
can by agreement go out to fight with deadly weapons, doing by agreement
what the law savs shall not be done, and thus shelter themselves from the
– 39 –
consequences of their acts.” (Emphasis added). Precisely the same reliance on
an empirical or intuitive reference to public policy in substitution for any
theory of consent and violence are seen in discussions of amateur sparring
with fists and other sports which involve the deliberate infliction of harm.
The matter is put very clearly in East, Pleas of the Crown, (1803) vol. 1, ch.
v, paras. 41 and 42, pp. 268-270:
” . . . If death ensue from such [sports] as are innocent and
allowable, the case will fall within the rule of excusable
homicide; but if the sport be unlawful in itself or productive of
danger, riot, or disorder, from the occasion, so as to endanger
the peace, and death ensue; the party killing is guilty of
manslaughter. . . . Manly sports and exercises which tend to
give strength, activity and skill in the use of arms, and are
entered into merely as private recreations among friends, are
not unlawful; and therefore persons playing by consent at
cudgels, or foils, or wrestling are excusable if death ensue. For
though doubtless it cannot be said that such exercises are
altogether free from danger; yet they are very rarely attended
with fatal consequences; and each party has friendly warning
to be on his guard. And if the possibility of danger were the
criterion by which the lawfulness of sports and recreations was
to be decided, many exercises must be proscribed which are in
common use, and were never heretofore deemed unlawful. . .
. But the latitude given to manly exercises of the nature above
described, when conducted merely as diversions among friends,
must not be extended to legalise prize-fighting, public boxing
matches and the like, which are exhibited for the sake of lucre,
and are calculated to draw together a number of idle disorderly
people…And again, such meetings have a strong tendency in
their nature to a breach of the peace..”
In his work on Crown Law, 3rd ed. (1809) p. 230, Sir Michael Foster
put the matter in a similar way when he distinguished beneficial recreations
such as single-stick fighting from
“prize-fighting and ….other exertions of courage, strength and activity
. .which are exhibited for lucre, and can serve no valuable purpose, but
on the contrary encourage a sprit of idleness and debauchery”.
Thus, although consent is present in both cases the risks of serious
violence and public disorder make prize-fighting something which “the law
says shall not be done”, whereas the lesser risk of injury, the absence of the
public disorder, the improvement of the health and skills of the participants,
and the consequent benefit to the public at large combine to place sparring
into a different category, which the law says “may be done”.
– 40 –
That the court is in such cases making a value-judgment, not dependant
upon any general theory of consent is exposed by the failure of any attempt
to deduce why professional boxing appears to be immune from prosecution.
For money, not recreation or personal improvement, each boxer tries to hurt
the opponent more than he is hurt himself, and aims to end the contest
prematurely by inflicting a brain injury serious enough to make the opponent
unconscious, or temporarily by impairing his central nervous system through
a blow to the midriff, or cutting his skin to a degree which would ordinarily
be well within the scope of section 20. The boxers display skill, strength and
courage, but nobody pretends that they do good to themselves or others. The
onlookers derive entertainment, but none of the physical and moral benefits
which have been seen as the fruits of engagement in manly sports. I intend no
disrespect to the valuable judgment of McInearny J. in Pallante v. Stadiums
Pty. [1976] V.R. 331 when I say that the heroic efforts of that learned judge
to arrive at an intellectually satisfying account of the apparent immunity of
professional boxing from criminal process have convinced me that the task is
impossible. It is in my judgment best to regard this as another special situation
which for the time being stands outside the ordinary law of violence because
society chooses to tolerate it.
4. “Contact” sports.
Some sports, such as the various codes of football, have deliberate
bodily contact as an essential element. They lie at a mid-point between
fighting, where the participant knows that his opponent will try to harm him,
and the milder sports where there is at most an acknowledgement that
someone may be accidentally hurt. In the contact sports each player knows
and by taking part agrees that an opponent may from time to time inflict upon
his body (for example by a rugby tackle) what would otherwise be a painful
battery. By taking part he also assumes the risk that the deliberate contact may
have unintended effects, conceivably of sufficient severity to amount to
grievous bodily harm. But he does not agree that this more serious kind of
injury may be inflicted deliberately. This simple analysis conceals a number
of difficult problems, which are discussed in a series of Canadian decisions,
culminating in Reg. v. Ciccarelli (1989) 54 C.C.C. (3d), 121, on the subject
of ice hockey, a sport in which an ethos of physical contact is deeply
entrenched. The courts appear to have started with the proposition that some
level of violence is lawful if the recipient agrees to it, and have dealt with the
question of excessive violence by enquiring whether the recipient could really
have tacitly accepted a risk of violence at the level which actually occurred.
These decisions do not help us in the present appeal, where the consent of the
recipients was express, and where it is known that they gladly agreed, not
simply to some degree of harm but to everything that was done. What we
need to know is whether, notwithstanding the recipient’s implied consent,
there comes a point at which it is too severe for the law to tolerate. Whilst
common sense suggests that this must be so, and that the law will not license
brutality under the name of sport, one of the very few reported indications of
the point at which tolerable harm becomes intolerable violence is in the
– 41 –
direction to the jury given by Bramwell B. in Bradshaw 14 Cox C.C. 83 that
the act (in this case a charge at football) would be unlawful if intended to
cause “serious hurt”. This accords with my own instinct, but I must recognise
that a direction at nisi prius, even by a great judge, cannot be given the same
weight as a judgment on appeal, consequent upon full argument and reflection.
The same comment may be made about Reg. v. Moore (1898) 14 T.L.R.
229.
5. Surgery.
Many of the acts done by surgeons would be very serious crimes if
done by anyone else, and yet the surgeons incur no liability. Actual consent,
or the substitute for consent deemed by the law to exist where an emergency
creates a need for action, is an essential element in this immunity; but it
cannot be a direct explanation for it, since much of the bodily invasion
involved in surgery lies well above any point at which consent could even
arguably be regarded as furnishing a defence. Why is this so? The answer
must in my opinion be that proper medical treatment, for which actual or
deemed consent is a pre-requisite. is in a category of its own.
6. Lawful correction.
It is probably still the position at common law, as distinct from statute,
that a parent or someone to whom the parent has delegated authority may
inflict physical hurt on his or her child, provided that it does not go too far
and is for the purpose of correction and not the gratification of passion or
rage. See Reg. v. Conner (1835) 7 C. & P. 438; Rex. v. Cheeseman (1836)
7 C. & P. 455; Reg. v. Hopley (1860) 2 F.& F. 202; Reg. v. Griffin (1869)
11 Cox C.C. 402. These cases have nothing to do with consent, and are useful
only as another demonstration that specially exempt situations can exist and
that they can involve an upper limit of tolerable harm.
7. Dangerous pastimes: bravado: mortification.
For the sake of completeness I should mention that the list of
situations in which one person may agree to the infliction of harm, or to the
risk of infliction of harm, by another includes dangerous pastimes, bravado
(as where a boastful man challenges another to try to hurt him with a blow)
and religious mortification. These examples have little in common with one
another and even less with the present case. They do not appear to be
discussed in the authorities although dangerous pastimes are briefly mentioned
and I see no advantage in exploring them here.
8. Rough horseplay.
The law recognises that community life (and particularly male
community life), such as exists in the school playground, in the barrack-room
and on the factory floor, may involve a mutual risk of deliberate physical
– 42 –
contact in which a particular recipient (or even an outsider, as in Reg. v.
Bruce (1847) 2 Cox C.C. 262) may come off worst, and that the criminal law
cannot be too tender about the susceptibilities of those involved. I think it
hopeless to attempt any explanation in terms of consent. This is well
illustrated by Reg. v. Terence Jones (1986) 83 Cr.App.R. 375. The injured
children did not consent to being thrown in the air at all, nor to the risk that
they might be thrown so high as to cause serious injury. They had no choice.
Once again it appears to me that as a matter of policy the courts have decided
that the criminal law does not concern itself with these activities, provided that
they do not go too far. It also seems plain that as the general social
appreciation of what is tolerable and of the proper role of the state in
regulating the lives of individuals changes with the passage of time, so we
shall expect to find that the assumptions of the criminal justice system about
what types of conduct are properly excluded from its scope, and about what
is meant by going “too far”, will not remain constant.
9. Prostitution.
Prostitution may well be the commonest occasion for the voluntary
acceptance of the certainty, as distinct from the risk, of bodily harm. It is
very different from the present case. There is no pretence of mutual
affection. The prostitute, as beater or beaten, does it for money. The dearth
of reported decisions on the application of the 1861 Act clearly shows how the
prosecuting authorities have (rightly in my view) tended to deal with such
cases, if at all, as offences against public order. Only in Rex. v. Donovan
[1934] 2 K.B. 498, amongst the English cases, has the criminality of sexual
beating been explored.
The facts were as follows. The accused met the complainant and
immediately asked her “Where would you like to have your spanking, in Hyde
Park or in my garage?”. Previous telephone conversations had made it clear
that he wanted to beat her for sexual gratification. She went with him to his
garage, where he caned her in a manner which left seven or eight marks
indicative, as a medical witness said, of “a fairly severe beating”. He was
charged with indecent assault and common assault. The defence was that the
girl consented and that it was for the prosecution to prove that she did not.
The chairman of quarter sessions directed the jury that the vital issue was
“consent or no consent”, apparently without giving any guidance on burden
of proof. After retiring for an hour the jury asked a question about reasonable
belief and consent, which again the chairman answered without reference to
burden of proof.
The Court of Criminal Appeal (Lord Hewart C.J., and Swift and du
Parcq JJ.). quashed the conviction. The fell into two entirely distinct parts.
The first was concerned with the direction on consent and proceeded on the
footing that consent was material to guilt and that the burden was on the
crown to disprove it. This part of the judgment concluded, at p. 506
– 43 –
“It is, in our view, at least possible that [a correct direction]
would have resulted in the acquittal of the appellant, and we
are, therefore, compelled to come to the conclusion… that the
trial was not satisfactory.”
On the face of it this conclusion was fatal to the conviction, but the
court went on to consider an argument for the Crown that this was not so,
because on the facts the striking of the girl was not an act for which consent
afforded a defence; so that the absence of a proper direction upon it made no
difference. On this question the court held that it was for the jury to decide
whether the situation was such that the consent of the girl was immaterial, and
that since the issue had never been left to the jury and the trial had proceeded
on the footing that consent was the key to the case, the appeal ought to be
decided on the same basis. Accordingly, the direction on consent being
unsatisfactory the conviction must be quashed.
How did the court arrive at the opinion that there was an issue for the
jury which ought to have been tried? As I understand it the course of
reasoning was as follows-
1. On the basis of a statement of Cave J. in Coney 8 Q.B.D. 534
and the old authorities on which it was founded the court was of the
opinion (p. 507) that -“If an act is unlawful in the sense of being in
itself a criminal act, it is plain that it cannot be rendered lawful
because the person to whose detriment it is done consents to it. No
person can license another to commit a crime. So far as the criminal
law is concerned, therefore, where the act charged is in itself
unlawful, it can never be necessary to prove absence of consent on the
part of the person wronged in order to obtain the conviction of the
wrongdoer.”
2. “There are, however, many acts in themselves harmless and
lawful which become unlawful only if they are done without the
consent of the person affected.”
3. “As a general rule, although it is a rule to which there are
exceptions, it is an unlawful act to beat another person with such a
degree of violence that the infliction of bodily harm is a probable
consequence, and when such an act is proved, consent is immaterial.”
4. The former distinction between maim and other types of injury
was out of date. Beating with the intent of doing some bodily harm is
malum in se to which consent is not a defence.
5. There are exceptions to this general rule, such as sparring,
sport or horseplay.
– 44 –
6. But what happened in the instant case did not fall within any of
the established exceptions.
For the purpose of the general rule bodily injury meant any hurt
or injury calculated to interfere with the health or comfort of the
prosecutor; it need not be permanent, but must be more than merely
transient or trifling.
It was for the jury to decide whether the appellant had inflicted or
intended to inflict bodily injury in this sense.
My Lords, the first two of these propositions have more than once
been criticised as tautologous. I do not accept this, but will not stay to discuss
the point for its seems to me that they are right, as the instances of prize-
fighting and duelling make plain, and as all the counsel appearing in the
present appeal have agreed. The law simply treats some acts as criminal per
se irrespective of consent.
It is with the next stages in the reasoning that I pan company.
Donovan was charged only with indecent assault, and the latter is an offence
to which, it is common ground, consent is a defence. Yet the Court of
Criminal Appeal proceeded on the basis that the critical level of violence was
that of actual bodily harm, and that the jury should have been directed to
decide whether he was guilty of facts establishing an offence under section 47
of the Act of 1861: an offence with which he had not been charged. There is
something amiss here. What is amiss is that the dictum of Cave J. and the old
cases said to support it are taken out of their context, which was in each
instance the kind of battery regarded for reasons of public policy as being in
a special category which is automatically criminal. Plainly the Court in
Donovan did not put the beating of the complainant into that category, or the
appeal would have taken a quite different course. All that the court had to say
about the nature of the beating was that it was not, as the present appellants
would have us say, in a category which is automatically innocent.
10. Fighting.
I doubt whether it is possible to give a complete list of the situations
where it is conceivable that one person will consent to the infliction of
physical hurt by another, but apart from those already mentioned only one
seems worth considering; namely, what one may call “ordinary” fighting.
This was the subject of Attorney General’s Reference (No. 6 of 1980), [1981]
Q.B. 715. The accused fell into an argument with another youth in a street.
They agreed to settle it there and then by a fight, which they did, and as a
result the other person suffered a bleeding nose and a bruised face. The
accused was charged with common assault. There was no evidence that
anyone was present except one bystander, nor that there was any public
disorder other than the fight itself. The judge directed the jury that the fight
did not necessarily amount to an assault, and that they should consider
– 45 –
whether it was a case of both parties agreeing to fight and use only reasonable
force. The Attorney General referred for the opinion of the Court of Appeal
the question -“Where two persons fight (otherwise than in the course of sport)
in a public place can it be a defence for one of those persons to a charge of
assault arising out of the fight that the other consented to fight? ” When
answering this question the court consciously broke new ground. No reliance
was placed on the unsystematic old cases on sparring, or on Donovan, or even
as I understand it on Coney except as showing that public interest may demand
a special response to a special situation. Indeed, the protection of public order,
which had been the principal ground for the recognition of prizefighting as a
special category in Coney was explicitly discarded. Instead the court began by
stating that in general consent is a defence to a charge of assault, and went on
to observe that there might be cases where the public interest demanded
otherwise. Such a case existed “where people ..try to cause or …cause each
other bodily harm for no good reason”.
My Lords, I am not sure that I can detect here the inconsistency for
which this judgment has been criticised. Perhaps it is unduly complicated to
suggest that the public interest might annul the defence of consent in certain
situations and then in the shape of “good reason” re-create it. Nevertheless
I am very willing to recognise that the public interest may sometimes operate
in one direction and sometimes in the other. But even if it be correct that
fighting in private to settle a quarrel is so much against the public interest as
to make it automatically criminal even if the fighter is charged only with
assault, (a proposition which I would wish to examine more closely should the
occasion arise), I cannot accept that the infliction of bodily harm, and
especially the private infliction of it, is invariably criminal absent some special
factor which decrees otherwise. I prefer to address each individual category
of consensual violence in the light of the situation as a whole. Sometimes the
element of consent will make no difference and sometimes it will make all the
difference. Circumstances must alter cases.
For these reasons I consider that the House is free, as the Court of
Appeal in the present case was not (being bound by Attorney General’s
Reference (No. 6 of 1980) was not free) was not, to consider entirely afresh
whether the pubic interest demands the interpretation of the Act of 1861 in
such a way as to render criminal under section 47 the acts done by the
appellants.
II AN UNLAWFUL ACT
A question has arisen, not previously canvassed, whether the
appellants are necessarily guilt because their acts were criminal apart from the
Offences against the Person Act 1861, and that accordingly a defence of
consent which might otherwise have been available as an answer to a charge
under section 47 is to be ruled out. This proposition if correct will have some
strange practical consequences. First of all, it means that solely because the
– 46 –
appellants were guilty of offences under the Sexual Offences Act 1967, with
which they had not been charged and of which they could not (because of the
time limit) be convicted they can properly be convicted of crimes of violence
under a different statute carrying a much larger maximum penalty. The logic
of this argument demands that if the prosecution can show that a sexual
harming constitutes some other offence, however trifling and however
different in character, the prosecution will be able to establish an offence of
common assault or an offence under the Act of 1861, even if in its absence
the defendant would not be guilty of any offence at all. Surely this cannot be
right.
Moreover, if one returns to offences of the present kind further
practical anomalies may be foreseen. Not all grossly indecent acts between
males are indictable under the Sexual Offences Act, 1956. Thus, if the
criminality of conduct such as the present under the Offences against the
Person Act is to depend on whether the conduct is criminal on other grounds,
one would find that the penal status of the acts for the purposes of section 47
would depend upon whether they were done by two adult males or three adult
males. I can understand why, in relation to a homosexual conduct, Parliament
has not yet thought fit to disturb the compromise embodied in the Sexual
Offences Act 1967, but am quite unable to see any reason to carry a similar
distinction into the interpretation of a statute passed a century earlier, and
aimed at quite different evil. Since the point was not raised before the trial
judge, and the House has properly not been burdened with all the committal
papers, it is impossible to tell whether, if advanced, it might have affected the
pleas offered and accepted at the Central Criminal Court, but its potential for
creating anomalies in other cases seems undeniable.
I would therefore accede to this argument only if the decided cases so
demand. In my opinion they do not, for I can find nothing in them to suggest
that the consensual infliction of hurt is transmuted into an offence of violence
simply because it is chargeable as another offence. Even in the prizefighting
cases, which come closest to this idea, the tendency of these events to attract
a disorderly crowd was relevant not because the fighters might have been
charged, if anyone had cared to do so, with the separate offence of causing
a breach of the peace, but rather because this factor was a reason why the
events were placed as a matter of policy in a category which the law treated
as being in itself intrinsically unlawful notwithstanding the presence of
consent. I am satisfied that it was in this sense that the courts made reference
to the unlawfulness of the conduct under examination, and not to its
criminality aliunde.
III THE EUROPEAN CONVENTION ON HUMAN RIGHTS
The appellants relied on the European Convention on Human
Rights for two reasons. First, because it was said to support an argument that
the law as it now stood should be interpreted or developed in a sense
favourable to the appellants, and secondly because in the event of failure
– 47 –
before the House the appellants intend to pursue the matter before the
European Court of Human Rights, and for this purpose must show that their
local remedies have been exhausted.
Two provisions of the Convention are called in aid. The first is article
7, the proposition being that the convictions cannot be upheld without making
the appellants guilty in respect of acts which were not criminal when it was
committed. I am satisfied that this argument is unsound. Many of the acts
relied on took place after the decision in Attorney General’s Reference (No.
6 of 1980) [1981] QB 715, and all of them long postdated Donovan [1934]
2 K.B. 498. The ruling of the trial judge was perfectly comprehensible in the
light of these and other decisions. The law was being applied as it was then
understood. If the view which I now propose were to prevail the law would
be understood differently. If this happened the appeals would succeed, without
any reference to article 7. And if, as I understand to be the case, your
Lordships hold that on the law as it already exists the trial judge’s ruling was
right, there is no change of any kind, whether retrospective or otherwise, that
could possibly infringe article 7.
The second argument, ably presented by Miss Sharpston, is altogether
more substantial. Not of course because the enunciation of a qualified right of
privacy in article 8 leads inexorably to a conclusion in the appellants’ favour,
since even after all these years the United Kingdom has still failed to comply
with its treaty obligation to enact the Convention. Nor because I consider that
the individual provisions of the Convention will always point unequivocally
to the right answer in a particular case. Far from it. Emphasis on human
duties will often yield a more balanced and sharply-focused protection for the
individual than the contemporary preoccupation with human rights. The
sonorous norms of the Convention, valuable as they unquestionably are in
recalling errant states to their basic obligations of decency towards those in
their power, are often at the same time too general and too particular to
permit a reasoned analysis of new and difficult problems. Article 8 provides
a good example. The jurisprudence with which this article, in common with
other terms of the Convention, is rapidly becoming encrusted shows that in
order to condemn acts which appear worthy of censure they have had to be
forced into the mould of article 8, and referred to the concept of privacy, for
want of any other provision which will serve. I do not deny that the privacy
of the conduct was an important element in the present case, but I cannot
accept that this fact on its own can yield an answer.
Nevertheless, I believe that the general tenor of the decisions of the
European court does furnish valuable guidance on the approach which the
English court should adopt, if free to do so, and I take heart from the fact that
the European authorities, balancing the personal considerations invoked by
article 8(1) against the public interest considerations called up by article 8(2),
clearly favour the right of the appellants to conduct their private lives
undisturbed by the criminal law: a conclusion at which I have independently
arrived for reasons which I must now state.
– 48 –
IV PUBLIC POLICY
The purpose of this long discussion has been to suggest that the decks
are clear for the House to tackle completely anew the question whether the
public interest requires section 47 of the 1861 Act to be interpreted as
penalising an infliction of harm which is at the level of actual bodily harm,
but not grievous bodily harm; which is inflicted in private (by which I mean
that it is exposed to the view only of those who have chosen to view it);
which takes place not only with the consent of the recipient but with his
willing and glad co-operation; which is inflicted for the gratification of sexual
desire, and not in a spirit of animosity or rage; and which is not engaged in
for profit.
My Lords, I have stated the issue in these terms to stress two
considerations of cardinal importance. Lawyers will need no reminding of the
first, but since this prosecution has been widely noticed it must be
emphasised that the issue before the House is not whether the appellants’
conduct is morally right, but whether it is properly charged under the Act of
1861. When proposing that the conduct is not rightly so charged I do not
invite your Lordships’ House to endorse it as morally acceptable. Nor do I
pronounce in favour of a libertarian doctrine specifically related to sexual
matters. Nor in the least do I suggest that ethical pronouncements are
meaningless, that there is no difference between right and wrong, that sadism
is praiseworthy, or that new opinions on sexual morality are necessarily
superior to the old, or anything else of the same kind. What I do say is that
these are questions of private morality; that the standards by which they fall
to be judged are not those of the criminal law; and that if these standards are
to be upheld the individual must enforce them upon himself according to his
own moral standards, or have them enforced against him by moral pressures
exerted by whatever religious or other community to whose ethical ideals he
responds. The point from which I invite your Lordships to depart is simply
this, that the state should interfere with the rights of an individual to live his
or her life as he or she may choose no more than is necessary to ensure a
proper balance between the special interests of the individual and the general
interests of the individuals who together comprise the populace at large.
Thus, whilst acknowledging that very many people, if asked whether the
appellants’ conduct was wrong, would reply “Yes, repulsively wrong”, I
would at the same time assert that this does not in itself mean that the
prosecution of the appellants under sections 20 and 47 of the Offences against
the Person Act 1861 is well founded.
This point leads directly to the second. As I have ventured to formulate
the crucial question, it asks whether there is good reason to impress upon
section 47 an interpretation which penalises the relevant level of harm
irrespective of consent: i.e. to recognise sado-masochistic activities as falling
into a special category of acts, such as duelling and prize-fighting, which “the
law says shall not be done.” This is very important, for if the question were
differently stated it might well yield a different answer. In particular, if it
– 49 –
were to be held that as a matter of law all infliction of bodily harm above the
level of common assault is incapable of being legitimated by consent, except
in special circumstances, then we would have to consider whether the public
interest required the recognition of private sexual activities as being in a
specially exempt category. This would be an altogether more difficult
question and one which I would not be prepared to answer in favour of the
appellants, not because I do not have my own opinions upon it but because
I regard the task as one which the courts are not suited to perform, and which
should be carried out, if at all, by Parliament after a thorough review of all
the medical, social, moral and political issues, such as was performed by the
Wolfenden Committee. Thus, if I had begun from the same point of departure
as my noble and learned friend Lord Jauncey of Tullichettle I would have
arrived at a similar conclusion; but differing from him on the present state of
the law. I venture to differ.
Let it be assumed however that we should embark upon this question.
I ask myself, not whether as a result of the decision in this appeal, activities
such as those of the appellants should cease to be criminal, but rather whether
the Act of 1861 (a statute which I venture to repeat once again was clearly
intended to penalise conduct of a quite different nature) should in this new
situation be interpreted so as to make it criminal. Why should this step be
taken? Leaving aside repugnance and moral objection, both of which are
entirely natural but neither of which are in my opinion grounds upon which
the court could properly create a new crime, I can visualise only the following
reasons:
1. Some of the practices obviously created a risk of genito-urinary
infection, and others of septicaemia. These might indeed have been grave in
former times, but the risk of serious harm must surely have been greatly
reduced by modern medical science.
2. The possibility that matters might get out of hand, with grave results.
It has been acknowledged throughout the present proceedings that the
appellants’ activities were performed as a pre-arranged ritual, which at the
same time enhanced their excitement and minimised the risk that the infliction
of injury would go too far. Of course things might go wrong and really
serious injury or death might ensue. If this happened, those responsible would
be punished according to the ordinary law, in the same way as those who kill
or injure in the course of more ordinary sexual activities are regularly
punished. But to penalise the appellants’ conduct even if the extreme
consequences do not ensue, just because they might have done so would
require an assessment of the degree of risk, and the balancing of this risk
against the interests of individual freedom. Such a balancing is in my opinion
for Parliament, nor the courts; and even if your Lordships’ House were to
embark upon it the attempt must in my opinion fail at the outset for there is
no evidence at all of the seriousness of the hazards to which sado-masochistic
conduct of this kind gives rise. This is not surprising, since the impressive
argument of Mr. Purnell Q.C. for the respondents did not seek to persuade
– 50 –
your Lordships’ to bring the matter within the Act of 1861 on the ground of
special risks, but rather to establish that the appellants are liable under the
general law because the level of harm exceeded the critical level marking off
criminal from non-criminal consensual violence which he invited your
Lordships to endorse.
3. I would give the same answer to the suggestion that these activities
involved a risk of accelerating the spread of auto-immune deficiency
syndrome, and that they should be brought within the Act of 1861 in the
interests of public health. The consequence would be strange, since what is
currently the principal cause for the transmission of this scourge, namely
consenting buggery between males, is now legal. Nevertheless, I would have
been compelled to give this proposition the most anxious consideration if there
had been any evidence to support it. But there is none, since the case for the
respondent was advanced on an entirely different ground.
4. There remains an argument to which I have given much greater
weight. As the evidence in the present case has shown, there is a risk that
strangers (and especially young strangers) may be drawn into these activities
at an early age and will then become established in them for life. This is
indeed a disturbing prospect, but I have come to the conclusion that it is not
a sufficient ground for declaring these activities to be criminal under the Act
of 1861. The element of the corruption of youth is already catered for by the
existing legislation; and if there is a gap in it which needs to be filled the
remedy surely lies in the hands of Parliament, not in the application of a
statute which is aimed at other forms of wrong-doing. As regards
proselytisation for adult sado-masochism the argument appears to me circular.
For if the activity is not itself so much against the public interest that it ought
to be declared criminal under the Act of 1861 then the risk that others will be
induced to join in cannot be a ground for making it criminal.
Leaving aside the logic of this answer, which seems to me
impregnable, plain humanity demands that a court addressing the criminality
of conduct such as that of the present should recognise and respond to the
profound dismay which all members of the community share about the
apparent increase of cruel and senseless crimes against the defenceless. Whilst
doing so I must repeat for the last time that in the answer which I propose I
do not advocate the de-criminalisation of conduct which has hitherto been a
crime; nor do I rebut a submission that a new crime should be created,
penalising this conduct, for Mr. Purnell has rightly not invited the House to
take this course. The only question is whether these consensual private acts
are offences against the existing law of violence. To this question I return a
negative response.
V CONCLUSION
Accordingly I would allow these appeals and quash such of the
convictions as are now before the House.
– 51 –
LORD SLYNN OF HADLEY
My Lords,
The Court of Appeal (Criminal Division) when granting leave to the
appellants to appeal to the House of Lords certified that a point of law of
general importance was involved in their decision to dismiss the appeal,
namely:
“Where A wounds or assaults B occasioning him actual bodily harm
in the course of a sadomasochistic encounter, does the prosecution
have to prove lack of consent on the part of B before they can
establish A’s guilt under section 20 and section 47 of the 1861
Offences Against the Person Act?”
By section 20 “Whosoever shall unlawfully and maliciously wound or
inflict any grievous bodily harm upon any other person, . . . shall be liable
to imprisonment . . .” and by section 47 “whosoever shall be convicted on
indictment of any assault occasioning actual bodily harm shall be liable . . .
to imprisonment.”
The trial judge ruled as a preliminary issue that:
” 1. It is an assault deliberately to strike or touch another person
other than in self defence with the intention thereby to cause bodily
harm, or a fortiori so to act so that bodily harm is thereby caused
intentionally or recklessly.
“2. Such an act or touching can be excused on the grounds that it
was lawfully carried out. Therefore whether consent is an element of
the offence itself, or whether it is to be treated as a defence in
exception to the general rule that I have stated, it is, accordingly, in
some cases a defence to the charge that the subject consented.”
The circumstances of this case do not permit these defendants
to rely on consent as a defence in law if any of them have carried out
acts satisfying the conditions under my first heading.”
On the basis of that ruling the appellants pleaded guilty to the charges
under section 47 of the Act (actual bodily harm) and to wounding (though not
to inflicting grievous bodily harm) under section 20 of the Act.
Some of the appellants and certain others also pleaded guilty to other
offences concerned with keeping a disorderly house, for which longer
sentences were imposed than those on the assault charges, and with the
– 52 –
publication and possession of obscene or indecent articles, for which sentences
of imprisonment were also imposed.
The argument on both sides has proceeded on the basis of earlier
authorities that bodily harm means any hurt or injury that is calculated to or
does interfere with the health or comfort of the subject but must be more than
transient or trifling; that grievous bodily harm means really serious bodily
harm and that wounding involves the breaking of the whole skin. Common
assault would include any physical touching which did not fall within these
categories.
The facts upon which the convictions under appeal were based are
sufficiently and clearly set out in the judgment of Lord Lane C.J. and
fortunately it is not necessary to repeat them. Nor is it necessary to refer to
other facts which are mentioned in the papers before the House which can
only add to one’s feeling of revulsion and bewilderment that anyone (in this
case men, in other cases mutatis mutandis, men and women or women) should
wish to do or to have done to him or her the acts so revealed. Some of those
other facts, though no less revolting to most people than the facts set out in
the charges, could not possibly have constituted an assault in any of the
degrees to which I have referred.
The determination of the appeal, however, does not depend on
bewilderment or revulsion or whether the right approach for the House in the
appeal ought to be liberal or otherwise. The sole question is whether when
a charge of assault is laid under the two sections in question, consent is
relevant in the sense either that the prosecution must prove a lack of consent
on the pan of the person to whom the act is done or that the existence of
consent by such person constitutes a defence for the person charged.
If, as seems clear on previous authority, it was a general rule of the
common law that any physical touching could constitute a battery, there was
an exception where the person touched expressly or impliedly consented. As
Goff L.J. put it in Collins v. Wilcock [1984] 1 W.L.R. 1172, 1177:
“Generally speaking, consent is a defence to battery.” As the word
“generally” suggests the exception was itself subject to exceptions. Thus in
Stephen’s Digest of the Criminal Law 3rd ed. (1883) it is stated in article 206
“Everyone has a right to consent to the infliction upon himself of bodily harm
not amounting to a maim”. By way of footnote it is explained that “Injuries
short of maims are not criminal at common law unless they are assaults, but
an assault is inconsistent with consent”. Maim could not be the subject matter
of consent since it rendered a man less able to fight or defend himself.
(Hawkins Pleas of the Crown, 8th ed., Book 1, p. 107). Nor could a person
consent to the infliction of death (Stephens, Digest, 3rd ed. article 207) or to
an infliction of bodily harm in such manner as to amount to a breach of the
peace (article 208). It was “uncertain to what extent any person has a right
to consent to his being put in danger of death or bodily harm by the act of
– 53 –
another” (article 209), where the example given suggests that dangerous acts
rendering serious bodily harm likely were contemplated.
The law has recognised cases where consent, expressed or implied, can
be a defence to what would otherwise be an assault and cases where consent
cannot be a defence. The former include surgical operations, sports, the
chastisement of children, jostling in a crowd, but all subject to a reasonable
degree of force being used, tattooing and earpiercing; the latter include death
and maiming. None of these situations, in most cases pragmatically accepted,
either covers or is analogous to the facts of the present case.
It is, however, suggested that the answer to the question certified flows
from the decisions in three cases.
The first is R. v. Coney (1882) 8 QBD 534. This is a somewhat
remarkable case in that not only the two participants in a prize-fight but a
number of observers were convicted of a common assault. The case was said
to be relevant to the present question since it was decided that consent was not
a defence to common assault. It is, however, accepted in the present appeal
that consent can be a defence to common assault. Moreover it is plain from
the judgment as a whole that a fight of this kind, since in public, either did,
or had a direct tendency to, create a breach of the peace. It drew large
crowds who gambled, who might have got excited and have fought among
themselves. Moreover it was plain that such fights were brutal – the fighters
went out to kill or very gravely injure their opponents and they fought until
one of them died or was very gravely injured. As Mathew J. put it, at p.
544:
“. . . the chief incentive to the wretched combatants to fight on until
(as happens too often) deadly injuries have been inflicted and life
endangered or sacrificed, is the presence of spectators watching with
keen interest every incident of the fight.”
This emphasis on the risk of a breach of the peace and the great danger to the
combatants is to be found in all of the judgments in the case. (See, for
example, pp. 538, 544, 546, 554, 562, 567). I cite only the judgment of
Stephen J. at p. 549:
“The principle as to consent seems to me to be this: when one person
is indicted for inflicting personal injury upon another, the consent of
the person who sustains the injury is no defence to the person who
inflicts the injury, if the injury is of such a nature, or is inflicted under
such circumstances, that its infliction is injurious to the public as well
as to the person injured. But the injuries given and received in prize-
fights are injurious to the public, both because it is against the public
interest that the lives and the health of the combatants should be
endangered by blows, and because prize-fights are disorderly
exhibitions, mischievous on many obvious grounds. Therefore the
– 54 –
consent of the parties to the blows which they mutually receive does
not prevent those blows from being assaults.”
The second case is Rex. v. Donovan [1934] 2 K.B. 498. Here the,
appellant, in private for his sexual gratification, caned a girl, who consented
and was paid. The appeal was allowed because the question of consent was
not left to the jury yet it was said that if the act done was itself unlawful,
consent to the act could not be a defence. This, however, was a long way
from Coney, upon which the essential passage in the judgment was largely
based, where the act was held to be unlawful in all circumstances regardless
of consent. In Donovan there was accepted to be an issue for the jury as to
whether the prosecution had proved that the girl had not consented and
whether the consent was immaterial.
The third case is the Attorney General’s Reference (No. 6 of 2980)
[1981] QB 715. Here two youths fought following an argument. There was
one bystander but no suggestion of public disorder as in Coney. If the
judgment had been limited to the fact that the fight took place in public then
there would clearly have been a possibility of a breach of the peace being
caused; but the court laid down (p. 719C) that even consensual fighting in
private constitutes an assault on the basis that consent is no defence “where
people . . . try to cause . . . or cause each other bodily harm for no good
reason.”
I am not satisfied that fighting in private is to be treated always and
necessarily as so much contrary to the public interest that consent cannot be
a defence. In any event I think that the question of consent in regard to a
fight needs special consideration. If someone is attacked and fights back he
is not to be taken as consenting in any real sense. He fights to defend
himself. If two people agree to fight to settle a quarrel the persons fighting
may accept the risk of being hurt; they do not consent to serious hurt, on the
contrary the whole object of the fight is to avoid being hurt and to hurt the
opponent. It seems to me that the notion of “consent” fits ill into the situation
where there is a fight. It is also very strange that a fight in private between
two youths where one may, at most, get a bloody nose should be unlawful,
whereas a boxing match where one heavyweight fighter seeks to knock out his
opponent and possibly do him very serious damage should be lawful.
Accordingly I do not consider that any of these three cases is
conclusive in resolving the present question.
These decisions are not in any event binding upon your Lordships’
House and the matter has to be considered as one of principle.
Three propositions seem to me to be clear.
It is “. . . inherent in the conception of assault and battery that the
victim does not consent” (Glanville Williams [1962] Grim. L.R. 74, 75).
– 55 –
Secondly, consent must be full and free and must be as to the actual level of
force used or pain inflicted. Thirdly, there exist areas where the law
disregards the victim’s consent even where that consent is freely and fully
given. These areas may relate to the person (e.g. a child); they may relate to
the place (e.g. in public); they may relate to the nature of the harm done. It
is the latter which is in issue in the present case.
I accept that consent cannot be said simply to be a defence to any act
which one person does to another. A line has to be drawn as to what can and
as to what cannot be the subject of consent. In this regard it is relevant to
recall what was said by Stephen J. in Reg. v. Coney 8 Q.B.D. 534, 549.
Even though he was referring to the position at common law, his words seem
to me to be of relevance to a consideration of the statute in question.
“In cases where life and limb are exposed to no serious danger in the
common course of things, I think that consent is a defence to a charge
of assault, even when considerable force is used that, as, for instance,
in cases of wrestling, single-stick, sparring with gloves, football, and
the like; but in all cases the question whether consent does or does not
take from the application of force to another its illegal character, is a
question of degree depending upon circumstances.”
There are passages in the judgment of Mclnerney J. in the Australian
case of Pallante v. Stadiums Pty. Ltd. (No. 1) [1976] V.R. 331, where a
boxing match was in issue which also seem to me to be helpful.
Thus at p. 340:
“It is easy to understand the proposition that if the harm to which
consent is alleged to have been given is really grievous, as, for
instance, in a case of maiming, the consent should be treated as
nugatory: see, for instance, Stephen’s Digest of Criminal Law (1926)
7th ed., Article 290. In Cross and Jones, An Introduction to Criminal
Law, 7th ed., p. 40, it is suggested as a reason for this conclusion that
the injured person is likely to become the charge of society. This may
be a good enough reason but I would think it is not the primary
reason. The primary reason, I would think, is that, as a general
proposition, it injures society if a person is allowed to consent to the
infliction on himself of such a degree of serious physical harm. . . .
“Grievous bodily harm is now to be understood as meaning ‘really
serious bodily harm’. So understood, the dictum of Stephen J. in
Coney’s case” [i.e. at p. 549, that the infliction of the blows is
regarded as injurious to the public as well as to the person injured]
“may, as Cross and Jones point out in the work cited at p. 40, require
to be understood as meaning that a person can lawfully consent to the
infliction of bodily harm upon himself provided it falls short of being
grievous bodily harm.”
– 56 –
I do not think a line can simply be drawn between “maiming” and
death on the one hand and everything else on the other hand. The rationale
for negating consent when maiming occurred has gone. It is, however,
possible to draw the line, and the line should be drawn, between really serious
injury on the one hand and less serious injuries on the other. I do not accept
that it is right to take common assault as the sole category of assaults to which
consent can be a defence and to deny that defence in respect of all other
injuries. In the first place the range of injuries which can fall within “actual
bodily harm” is wide – the description of two beatings in the present case
show that one is much more substantial than the other. Further, the same is
true of wounding where the test is whether the skin is broken and where it can
be more or less serious. I can see no significant reason for refusing consent
as a defence for the lesser of these cases of actual bodily harm and wounding.
If a line has to be drawn, as I think it must, to be workable, it cannot
be allowed to fluctuate within particular charges and in the interests of legal
certainty it has to be accepted that consent can be given to acts which are said
to constitute actual bodily harm and wounding. Grievous bodily harm I accept
to be different by analogy with and as an extension of the old cases on
maiming. Accordingly, I accept that other than for cases of grievous bodily
harm or death, consent can be a defence. This in no way means that the acts
done are approved of or encouraged. It means no more than that the acts do
not constitute an assault within the meaning of these two specific sections of
the Offences against the Person Act 1861.
None of the convictions in the present cases have been on the basis that
grievous bodily harm was caused. Whether some of the acts done in these
cases might have fallen within that category does not seem to me to be
relevant for present purposes.
Even if the act done constitutes common assault, actual bodily harm
or wounding, it remains to be established that the act was done otherwise than
in public and that it was done with full consent. I do not accept the suggested
test, as to whether an offence is committed, to be whether there is expense to
the state in the form of medical assistance or social security payments. It
seems to me better to ask whether the act was done in private or in public: is
the public harmed or offended by seeing what is done or is a breach of the
peace likely to be provoked? Nor do I consider that “hostility” in the sense
of “aggression” is a necessary element to an assault. It is sufficient if what
is done is done intentionally and against the will of the person to whom it is
done. These features in themselves constitute “hostility”.
In Reg. v. Wollaston (1872) 12 Cox C.C. 180 (where indecent assault
was charged) Kelly C.B., with whom the rest of the Court concurred, said,
at p. 181:
“If anything is done by one being upon the person of another, to make
the act an assault, it must be done without the consent and against the
– 57 –
will of the person upon whom it is done. Mere submission is not
consent, for there may be submission without consent, and while the
feelings are repugnant to the act being done. Mere submission is
totally different from consent. But in the present case there was actual
participation by both parties in the act done, and complete mutuality.”
In the present cases there is no doubt that there was consent; indeed
there was more than mere consent. Astonishing though it may seem, the
persons involved positively wanted, asked for, the acts to be done to them,
acts which it seems from the evidence some of them also did to themselves.
All the accused were old enough to know what they were doing. The acts
were done in private. Neither the applicants nor anyone else complained as
to what was done. The matter came to the attention of the police
“coincidentally”; the police were previously unaware that the accused were
involved in these practices though some of them had been involved for many
years. The acts did not result in any permanent or serious injury or disability
or any infection and no medical assistance was required even though there
may have been some risk of infection, even injury.
There has been much argument as to whether lack of consent is a
constituent of the offence which must be proved by the prosecution or whether
consent is simply raised by way of defence. Reliance is placed on the
Canadian case of Reg. v. Ciccarelli (1989) 54 C.C.C. (3d) 121, 123, where
it is said that in the absence of express consent the Crown must prove that the
victim did not impliedly consent to the act done. That decision, however, is
in the context of section 244 of the Criminal Code, (revised statutes of Canada
1970) which provides that: “A person commits an assault when, without the
consent of another person, or with consent (a) he applies force intentionally
to the person of the other, directly or indirectly; . . . ” In the present statute
there is no such provision, but it seems to me that here too the onus is on the
prosecution to prove that there was no consent on the part of the person said
to have been assaulted.
It has been suggested that if the act done is otherwise unlawful then
consent cannot be a defence, but it can be a defence, if the act is otherwise
lawful, in respect of injury which is less than really serious injury. That
would produce the result in the present case that if these acts are done by two
men they would be lawful by reason of section 1 of the Sexual Offences Act
1967, even though the acts are far away from the kinds of homosexual acts
which the Wolfenden Report had in mind (see paragraph 105 of the Report);
in that situation, consent, it is said, would be a defence. If on the other hand
three men took part, the activity would be unlawful under the Act of 1967 so
that there could be no consent to the acts done. But it would also appear to
mean that if these acts were done mutatis mutandis by a man and a woman,
or between two men and a woman, or a man and two women, where the
activity was entirely heterosexual, consent would prevent there being an
offence. I do not find that this distinction produces an acceptable result.
– 58 –
My conclusion is thus that as the law stands, adults can consent to acts
done in private which do not result in serious bodily harm, so that such acts
do not constitute criminal assaults for the purposes of the Act of 1861. My
conclusion is not based on the alternative argument that for the criminal law
to encompass consensual acts done in private would in itself be an unlawful
invasion of privacy. If these acts between consenting adults in private did
constitute criminal offences under the Act of 1861, there would clearly be an
invasion of privacy. Whether that invasion would be justified and in
particular whether it would be within the derogations permitted by article 8(2)
of the European Convention on Human Rights, it is not necessary, on the
conclusion to which I have come, to decide, despite the interesting arguments
address to your Lordships on that question and even on the basis that English
law includes a principle parallel to that set out in the European Convention on
Human Rights.
Mr. Kershaw Q.C. contended in a very helpful argument that the
answer to the question should be on the basis (a) of existing law or (b) that a
new ruling was to be given. My conclusion is on the basis of what I consider
existing law to be. I do not consider that it is necessary for the House in its
judicial capacity to give what is called “a new ruling” based on freedom of
expression, public opinion, and the consequences of a negative ruling on those
whom it is said can only get satisfaction through these acts; indeed the latter
I regard as being of no or at best of little relevance to the decision in this
case. Nor do I think that it is for your Lordships to make new law on the
basis of the position in other states so that English law can “keep in line”. All
these are essentially matters, in my view, to be balanced by the legislature if
it is thought necessary to consider the making criminal of sado-masochistic
acts per se. The problems involved are carefully analysed by Dr. L.H. Leigh
in Sado-masochism, Consent and the Reform of the Criminal Law'”(1976) 39
M.L.R. 130.
The Director of Public Prosecution contends in her written
submissions:
“In the end it is a matter of policy. Is/are the state/courts right to
adopt a paternalistic attitude as to what is bad or good for subjects, in
particular as to deliberate injury.”
I agree that in the end it is a matter of policy. It is a matter of policy
in an area where social and moral factors are extremely important and where
attitudes can change. In my opinion it is a matter of policy for the legislature
to decide. If society takes the view that this kind of behaviour, even though
sought after and done in private, is either so new or so extensive or so
undesirable that it should be brought now for the first time within the criminal
law, then it is for the legislature to decide. It is not for the courts in the
interests of “paternalism”, as referred to in the passage I have quoted, or in
order to protect people from themselves, to introduce, into existing statutory
crimes relating to offences against the person, concepts which do not properly
– 59 –
fit there. If Parliament considers that the behaviour revealed here should be
made specifically criminal, then the Offences against the Person Act 1861 or,
perhaps more appropriately, the Sexual Offences Act 1967 can be amended
specifically to define it. Alternatively, if it is intended that this sort of
conduct should be lawful as between two persons but not between more than
two persons as falling within the offence of gross indecency, then the
limitation period for prosecution can be extended and the penalties increased
where sadomasochistic acts are involved. That is obviously a possible course;
whether it is a desirable way of changing the law is a different question.
I would therefore answer the question certified on the basis that where
a charge is brought in respect of acts done between adults in private under
section 20 of the Offences against the Person Act 1861 in respect of wounding
and under section 47 in respect of causing actual bodily harm, it must be
proved by the prosecution that the person to whom the act was done did not
consent to it.
Accordingly I consider that these appeals should be allowed and the
conviction set aside.
– 60 –
Emmett, R v
[1999] EWCA Crim 1710 (18 June 1999)
orwich, the appellant, Mr Stephen Roy Emmett, appeared before His Honour Judge Downes and a jury charged with altogether five offences of assault occasioning actual bodily harm.
In the event, the prosecution were content to proceed upon two of those counts. The appellant was convicted of assault occasioning actual bodily harm, on one count, by the jury on the judge’s direction; and in the light of the judge’s direction, he pleaded guilty to a further count of assault occasioning actual bodily harm, following the judge’s ruling that there was no defence of consent available to the appellant. The remaining counts on the indictment were ordered to remain on the file on the usual terms.
On 23rd February 1999 the appellant was sentenced to 9 months’ imprisonment on each count consecutive, the sentence being suspended for 2 years.
He now appeals against conviction upon a certificate granted by the trial judge which sets out the following question for the determination of this Court:
“Where two adult persons consent to participate in sexual activity in private not intended to cause any physical injury but which does in fact cause or risk actual bodily harm, the potential for such harm being foreseen by both parties, does consent to such activity constitute a defence to an allegation of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861.”
The facts underlining these convictions and this appeal are a little unusual. The appellant and the lady who is the subject of these two counts were at the material time cohabiting together, and it is only right to recall that, since the events which formed the basis of this prosecution and since the prosecution was launched, they have married each other.
The evidence before the court upon which the judge made his ruling came not from the complainant, who indeed in the circumstances is hardly to be described as such, but from the doctor whom she had consulted as a result of the injuries that she had suffered. At trial the doctor was permitted only to describe the extent and nature of those injuries and not the explanations she gave for them. The explanations for such injuries that were proffered by the appellant, at his interview with the investigating police officers constituted the remainder of the evidence. The complainant herself did not give evidence and it was not intended that the appellant should do so either.
As to the first incident which gave rise to a conviction, we take gratefully the statement of facts from the comprehensive ruling on the matter that the learned judge handed down. The evidence on that count was that in the course of sexual activity between them, it was agreed that the appellant was to cover the complainant’s head with a plastic bag of some sort, tie it at the neck with a ligature, made from anything that was to hand, and tightened to the point of endurance on the part of the person being tied. There is a possibility, although the evidence was not entirely clear on the point, there might also have been a gag applied. In any event, the complainant was tied up.
On the occasion of count 1, it is clear that while the lady was enveloped in the plastic bag in this way, the defendant engaged in oral sex with her and it became apparent, at some stage, that his excitement was such that he had lost track of what was happening to the complainant. He eventually became aware that she was in some sort of distress, was unable to speak, or make intelligible noises, and it was apparent that she was in trouble because of the loss of oxygen.
He rapidly removed the bag from her head. It may well be, as indeed the complainant herself appears to have thought, that she actually lost consciousness during this episode. But, in any event, during the following day, her eyes became progressively and increasingly bloodshot and eventually she went to see her doctor. He found that there subconjunctival haemorrhages in both eyes and some petechial bruising around her neck. The first symptom was caused by the restriction of oxygen to the brain and the second by the restriction on the return blood flow in her neck. No treatment was prescribed and after about a week her eyes returned to normal.
However, it is plain, and is accepted, that if these restrictions had been allowed to continue for too long, as the doctor himself pointed out, brain damage of increasing severity and ultimately death might result.
The second incident arose out of events a few weeks later when again sexual activity was taking place between these two people. On this occasion lighter fuel was used and the appellant poured some on to his partner’s breasts and set light to it. As a result she suffered a burn, measuring some 6cm x 4cm, which became infected and, at the appellant’s insistence, she consulted her doctor again. He thought she had suffered a full thickness third degree burn which might in the event require skin graft. Happily, it appears that he may have somewhat overestimated the seriousness of the burn, as it appears to be accepted that, by the date of the hearing, the burn had in fact completely healed over without scarring.
Nonetheless, the doctor, alarmed by the appearance of his patient on two occasions and the explanations that she had given as to how these injuries had come about, informed the police, and the appellant was arrested.
During a series of interviews, the appellant explained that he and his partner had been living together for some 4 months, and that they were deeply involved in an energetic and very physical sexual relationship which both greatly enjoyed. The suggestions for some of the more outre forms of sexual activity came normally from him, but were always embarked upon and only after discussion and with her complete consent and always desisted from if she objected.
On the other hand, he accepted that it was their joint intention to take such matters “to the limit, before anything serious happens to each other.” He accepted that, on the first occasion, involving the plastic bag, things had indeed gone too far, and he had panicked: “I just pulled it off straight away, I didn’t realise how far the bag had gone.”
As to the lighter fuel incident, he explained that when he set light to the liquid, she had panicked and would not keep still, so he could not extinguish the flames immediately. As a result, she had suffered the burn which he had accepted was a serious one.
On both occasions, she had only gone to the doctor on his insistence. The learned judge, at the close of that evidence, delivered a ruling to which this Court desires to pay tribute, for its clarity and logical reasoning. He held that the nature of the injuries and the degree of actual or potential harm was such, that it was proper for the criminal law to intervene and that in light of the majority of the opinions of the House of Lords in R v Brown [1994] AC 212, 97 Cr App R 44, consent could not form the basis of a defence. It is to that authority that first reference must be made when considering a matter of this kind.
In that case a group of sadomasochistic homosexuals, over a period of years, took willing part in the commission of acts of violence against each other, including what can only be described as genital torture for the sexual pleasure engendered in the giving and receiving of pain. All such activities took place in private. The participants were convicted of a series of substantive offences against either section 20 or section 47 of the 1861 Act. The House of Lords, by a majority of 3 to 2 upheld the judgment of this Court, and dismissed the appeals against conviction, holding that public policy required that society should be protected by criminal sanctions against conduct which, among other things, held the potential for causing serious injury. Accordingly the House held that a person could be convicted under section 47 of the 1861 Act for committing sadomasochistic acts which inflict injuries, which were neither transient nor trifling, notwithstanding that the recipient of such injuries consented to the acts and not withstanding that no permanent injury was sustained.
Lord Jauncey and Lord Lowry in their speeches both expressed the view that, as a matter of principle, that the deliberate infliction of actual bodily harm in a sadomasochistic activity should be held unlawful notwithstanding the consent of the victim. At page 50 Lord Jauncey observed:
“It was accepted by all the appellants that a line had to be drawn somewhere between those injuries to which a person could consent to an infliction upon himself and those which were so serious that consent was immaterial. They all agreed that assaults occasioning actual bodily harm should be below the line, but there was disagreement as to whether all offences against section 20 of the Act of 1861 should be above the line or only those resulting in grievous bodily harm.”
In a later passage, the learned Lord of Appeal having cited a number of English cases observed:
“I prefer the reasoning of Cave J in Coney and of the Court of Appeal in the later three English cases which I consider to have been correctly decided. In my view, the line properly falls to be drawn between assault at common law and the offence of assault occasioning actual bodily harm created by section 47 of the Offence Against the Person Act 1961, with the result that consent of the victim is no answer to anyone charged with the latter offence or with a contravention of section 20 unless the circumstances fall within one of the well-known exceptions such as organised sporting contest and games, parental chatisement or reasonable surgery.”
Lord Lowry at page 67, agreed with Lord Jauncey, and also drew the line between that which amounts to common assault and that which amounts to the statutory offence of assault occasioning actual bodily harm. Lord Templeman, on the other hand, based his opinion upon the actual or potential risk of harm, and at page 51 he observed this, after describing the activities engaged in by the appellants in that case. He observed and we quote:
“The dangers involved in administering violence must have been appreciated by the appellant because, so it was said by their counsel, each victim was given a code word which he could pronounce when excessive harm or pain was caused. The efficiency of this precaution, when taken, depends on the circumstances and on the personalities involved. No one can feel the pain of another. The charges against the appellants were based on genital torture and violence to the buttocks, anus, penis, testicles and nipples. The victims were degraded and humiliated, sometimes beaten sometimes wounded with instruments and sometimes branded… There were obvious dangers of serious personal injury and blood infection.”
Then in a later passage he observed:
“It is fortunate that there were no permanent injuries to a victim though no one knows the extent of harm inflicted in other cases.”
In a resounding passage, Lord Templeman concluded:
“I am not prepared to invent a defence of consent for sado-masochistic encounters which breed and glorify cruelty and result in offences under section 47 and 20 of the Act of 1861.”
We observe en passant that although that case related to homosexual activity, we can see no reason in principle, and none was contended for, to draw any distinction between sadomasochistic activity on a heterosexual basis and that which is conducted in a homosexual context.
Their Lordships referred, with approval, in the course of those evidence, to the decision of this Court, in Attorney-General’s Reference No 6 of 1980 73 Cr App R 63, a case arising out of consensual fighting in the street. Lord Lane, giving the judgment of the Court, when answering the question: at what point does the public interest require the court to hold that consent is not a defence? He remarked and we quote:
“The answer to this question, in our judgment, is that it is not in the public interest that people should try to cause or should cause each other actual bodily harm for no good reason. Minor struggles are another matter. So, in our judgment, it is immaterial whether the act occurs in private or public; it is an assault if actual bodily harm is intended and/or caused. This mean that most fights will be unlawful regardless of consent.
Nothing which we have said is intended to cast doubt upon the accepted legality of properly conducted games and sports, lawful chatisement or correction, reasonable surgical interference, dangerous exhibitions, etc. These apparent exceptions can be justified as involving the exercise of a legal right, in the cause of chastisement or corrections, or as needed in the public interest, in the other case cases.”
In R v Jones (1988) 83 Cr App R 335, this Court, in relying on the abbreviation “etc”, added rough and undisciplined horseplay without there being any intention to cause injury to that list, and the appellant relies upon that case as forming the basis for a submission that the present case is to be similarly approached as dealing or being concerned with rough and undisciplined love play.
The primary basis, however, for the appellant’s submissions in this case, is to be found in the case of R v Wilson [1996] 2 Cr App R 241. In that case the facts were that the appellant, at the request and with the consent of his wife, used a hot knife to brand his initials A W on each of his wife’s buttocks. At the close of the prosecution case at trial, the judge ruled that there was a case to answer, holding that he was bound by the House of Lords authority of Brown. The appellant called no evidence, and was convicted. This Court allowed the appellant’s appeal on the basis that Brown is not authority for the proposition that consent is no defence, to a charge under section 47 of the Offences Against the Person 1861, in all circumstances where actual bodily harm is deliberately inflicted. What the appellant had done, if carried out with the consent of an adult, did not involve an offence against section 47, albeit actual bodily harm was deliberately inflicted. The court also observed in its view, consensual activity between husband and wife, in the privacy of the matrimonial home, is not a proper matter for criminal investigation or prosecution. Russell LJ, giving the judgment of the Court, after setting out the facts, pointed that there was no evidence of any significant harm having been done to the wife, in this particular case. The healing proceeded in the normal way, so much so that the doctor who gave evidence made no reference to any scar on the right buttock.
Having referred to Brown and another case Donovan, Russell LJ went on:
“We are abundantly satisfied that there is no factual comparison to be made between the instant case and the facts of either Donovan or Brown: Mrs Wilson not only consented to that which the appellant did, she instigated it. There was no aggressive intent on the part of the appellant. On the contrary, far from wishing to cause injury to his wife, the appellant’s desire was to assist her in what she regard as the acquisition of a desirable personal adornment, perhaps in this day and age no less understandable that the piercing of nostrils or even tongues for the purposes of inserting decorative jewellery.
In our judgment, Brown is not authority for the proposition that consent is no defence to a charge under section 47 of the 1861 Act, in all the circumstances where actual bodily harm is deliberately inflicted. It is to be observed that the questions certified for their Lordships in Brown, related only to a sadomasochistic encounter. Their Lordships recognised, in the course of their speeches, that it was necessary there must be exceptions to what is no more than a general proposition.”
Then, the learned Lord Justice continued at page 244:
“For our part, we cannot detect any logical difference between what the appellant did and what he might have done in the way of tattooing. The latter activity apparently requires no state authorisation, and the appellant was as free to engage in it as anyone else.
We do not think that we are entitled to assume that the method adopted by the appellant and his wife was any more dangerous or painful than tattooing. There was simply no evidence to assist the court on this aspect of the matter.”
The appellant, understandably, relies strongly upon these passages, but we have come to the clear conclusion that the evidence in the instant case, in striking contrast to that in Wilson, made it plain that the actual or potential damage to which the appellant’s partner was exposed in this case, plainly went far beyond that which was established by the evidence in Wilson.
The lady suffered a serious, and what must have been, an excruciating painful burn which became infected, and the appellant himself recognised that it required medical attention. As to the process of partial asphyxiation, to which she was subjected on the earlier occasion, while it may be now be fairly well known that the restriction of oxygen to the brain is capable of heightening sexual sensation, it is also, or should be, equally well-known that such a practice contains within itself a grave danger of brain damage or even death. There have been, in recent years, a number of tragic cases of persons who have taken this practice too far, with fatal consequences.
As the interview made plain, the appellant was plainly aware of that danger. In the course of argument, counsel was asked what the situation would have been if, in the present case, the process had gone just a little further and the appellant’s partner had died. No satisfactory answer, unsurprisingly, as we think could be given to that question.
Accordingly, whether the line beyond which consent becomes immaterial is drawn at the point suggested by Lord Jauncey and Lord Lowry, the point at which common assault becomes assault occasioning actual bodily harm, or at some higher level, where the evidence looked at objectively reveals a realistic risk of a more than transient or trivial injury, it is plain, in our judgment, that the activities involved in by this appellant and his partner went well beyond that line. The learned judge, in giving his ruling said:
“In this case, the degree of actual and potential harm was such and also the degree of unpredictability as to injury was such as to make it a proper cause from the criminal law to intervene. This was not tattooing, it was not something which absented pain or dangerousness and the agreed medical evidence is in each case, certainly on the first occasion, there was a very considerable degree of danger to life; on the second, there was a degree of injury to the body.”
With that conclusion, this Court entirely agrees. The learned judge was right to rule that these matters should be left to the jury, on the basis that consent could not amount to a defence.
Two other points have been raised before us which were not raised in the court below and which we must necessarily deal with. The first, which, in all fairness to Mr Spencer, we have to say he put forward with very considerable diffidence, is an argument based on provisions of the Local Government (Miscellaneous) Provisions Act which, as will be well-known, permits the setting up, under certain restricted circumstances, of a system of licenced sex shops. The argument, as we understand it, is that as Parliament contemplated the setting up of shops which, under certain circumstances would be permitted to sell articles to be used in connection or for the purpose of stimulating acts of force or restraint associated with sexual activity, then so must Parliament have recognised, and at least been prepared to tolerate, the use to which such articles would or might be put.
Mr Spencer regaled the Court with the recent publications emanating from the European Commission setting out what is apparently described as best practice to be followed when conduct of such kind is being indulged in.
If the suggestion behind that argument is that Parliament must be taken to have consented sub silentio to the use of sexual aids or other articles by one person, to inflict actual bodily harm upon another, then, with the greatest of respect, we would conclude that the absurdity of such a contention is such that it merits no further discussion. If that is not the suggestion, then the point has no relevance.
The second point raised by the appellant is that on the facts of this particular case, the involvement of the processing of the criminal law, in the consensual activities that were carried on in this couple’s bedroom, amount to a breach of Article 8 of the European Convention on Human Rights, and this provides under paragraph (1) that everyone has the right to respect for his private and family life, his home and correspondence. By paragraph (2), there should be no interference by a public authority with the exercise of this right, except such as is in accordance with the law and is necessary, in a democratic society, in the interests – and I omit the irrelevant words – of the prevention of disorder or crime, or for the protection of health or morals.
Article 8 was considered by the House of Lords in Brown. Lord Templeman, at page 52, observed tersely, after setting out the terms of Article 8 as follows:
“It is not clear to me that the activities of the appellants were exercises of rights in respect of private and family life. But assuming that the appellants are claiming to exercise those rights I do not consider that Article 8 invalidates a law which forbids violence which is intentionally harmful to body and mind.
Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised.”
Lord Jauncey agreed with those observations and Lord Lowry, at page 68, observed:
“The attempts to rely on this article is another example of the appellants’ reversal of the onus of proof of legality, which disregards the effect of sections 20 and 47. I would only say, in the first place, that article 8 is not part of our law. Secondly, there has been no legislation which, being post-Convention and ambiguous, falls to be construed so as to conform with the Convention rather than to contradict it. And thirdly, if one is looking at article 8.2, no public authority can be said to have interfered with a right (to indulge in sado-masochism) by enforcing the provisions of the 1861 Act. If, as appears to be the fact, sado-masochistic acts inevitably involve the occasioning of at least actual bodily harm, there cannot be a right under our law to indulge in them.”
This aspect of the case was endorsed by the European Court on Human Rights itself, its own consideration of the very same case, under the title of Laskey v United Kingdom 24 EHRR 39. Again, it seems clear to us that once the conduct of the accused person has gone beyond the permitted limit, however that is defined, in inflicting injury upon or exposing to potential risk his or her partner, in the course of sadomasochistic games whether homo- or heterosexual, so that he or she prima facie at least has committed an offence of a sufficient degree of seriousness, the institution of a criminal investigation and, if appropriate, criminal proceedings cannot amount to a breach of Article 8.
For all these reasons these appeals must be dismissed.
MR FARMER: I am asked to apply for costs in the sum of £1,236. The defendant did not receive an immediate custodial sentence and was paying some contribution to costs in the lower court.
MR SPENCER: My Lord, he has been on legal aid, I believe.
THE VICE PRESIDENT: Can we be sure.
MR SPENCER: I was instructed by the Registrar.
MR FARMER: I am not applying that he pay his own costs, I am applying for an order for the prosecution costs.
THE VICE PRESIDENT: Against the appellant, who is on legal aid. It would be a very unusual order.
MR FARMER: With respect, my Lord, no, the usual practise is that if he has the means to pay a contribution to the prosecution costs, it is general practice that he does.
MR JUSTICE WRIGHT: We have no evidence as to what his means are.
MR FARMER: All I can say, on the issue of means, is that he had sufficient means to pay a contribution in the court below.
MR SPENCER: I am trying to see if he is here, he is not. I am in extreme difficulty, I know not of his current state of affairs at all.
THE VICE PRESIDENT: Mr Farmer, did you give notice to the appellant that this application was going to be made?
MR FARMER: I did not give notice but it is well established. My learned friend well knows that it is, these days, always the instructions of the Crown Prosecution Service to apply for costs.
THE VICE PRESIDENT: Are you speaking in first instance or in this Court? Certainly it is not the experience of this Court.
MR FARMER: Usually when I have found myself in this situation, the defendant has finished with a custodial sentence, and I cannot actually recall, in this situation, where a defendant has not received a custodial sentence – there may have been, I cannot remember it.
THE VICE PRESIDENT: You are not seeking an Attorney-General’s Reference by the back door?
MR FARMER: Not at all, I am instructed to ask, I am asking. He is at liberty, and I know that certainly at the time of the Crown Court in January or February he had means to pay. That is what I am going on.
THE VICE PRESIDENT: We shall not accede to Mr Farmer’s application for costs. We add this. If, in future, in this Court, the question arises of seeking an order for costs against a legally aided appellant, it will be in everybody’s interest if the prosecution give notice of the intention to make that application to those, at least to counsel for the appellant.
BM, R v
[2018] EWCA Crim 560 (22 March 2018)
The Lord Burnett of Maldon:
The appellant is by trade a tattooist and body piercer who added “body modification” to his services. He operates from premises in Wolverhampton. He is due to stand trial in the Crown Court at Wolverhampton on an indictment charging three counts of wounding with intent to do grievous bodily harm contrary to Section 18 of the Offences Against the Person Act 1861. There are three alternative counts of inflicting grievous bodily harm contrary to Section 20 of the same Act. The procedures performed by the appellant which found these counts were first, the removal of a customer’s ear; secondly, the removal of a customer’s nipple; and thirdly, the division of a customer’s tongue to produce an effect similar to that enjoyed by reptiles. The prosecution was content to accept that each of the customers consented to the respective procedures being performed, or at least that it was not possible to disprove that fact. The question arose whether consent could provide a defence to the counts on the indictment.
That question was determined at a preparatory hearing held on 29 September 2017 following which His Honour Judge Nawaz gave a written decision on 6 October 2017. In a careful ruling, His Honour Judge Nawaz determined that consent could provide no defence. His ruling was made under section 31(3) of the Criminal Procedure and Investigations Act 1996. He relied upon the well-known decision of the House of Lords in R v Brown [1994] 1AC 212. This appeal is brought pursuant to Section 35(1) of the 1996 Act with leave of Judge Nawaz.
The Preparatory Hearing
It is striking that the ruling did not provoke guilty pleas to any of the counts on the indictment. Mr Anning, who appears for the appellant, has made clear that if the ruling of the judge is upheld then no defence can be put before the jury. He also indicated that, in the circumstances of this case, the alternative counts relating to Section 20 of the 1861 Act are redundant. That is because there is no question but that each of the procedures described was performed with the necessary intent for the purposes of Section 18. We agree with that assessment.
It is clear from the materials before us that the prosecution was at least considering seeking permission to amend the indictment to include counts based upon placing transdermal implants into the scalp of a customer and inserting an object under the skin of the hand of another.
The result of the preparatory hearing is clearly untidy in the sense that it has not conclusively determined the practical outcome of the underlying proceedings, while it appears that it was intended to do. It would have been better, in our opinion, had the issue been resolved in the ordinary way by a ruling, rather than in the course of a preparatory hearing generating the possibility of an interlocutory appeal. Had the appellant then pleaded guilty, the matter could have come to this court in the usual way. This is not one of those cases identified in R v I,P,O,I,U and G [2009] EWCA Crim 1793, [2010] 1 Cr App R 10 at [21] where the ruling ought to have been the subject of an interlocutory appeal with a view to saving court time in the trial.
The Background Facts
The appellant was the proprietor of a business in Wolverhampton. He was registered with the local authority for the purpose of piercing and tattooing.
Tattooing, electrolysis, acupuncture, semi-permanent skin colouring, ear piercing and other skin piercing may be conducted only in premises that are registered by the relevant local authority. Each practitioner operating from the premises must also be registered. The registration scheme is found in sections 13 to 16 of the Local Government (Miscellaneous Provisions) Act 1982. Registration provides lawful authority to undertake the specified tasks. Local authorities may supplement the registration scheme with bye laws directed, in particular, at cleanliness and hygiene. Undertaking the specified task without being registered is an offence – see section 16. But the same tasks performed by or under the supervision of a medical practitioner do not fall within the scheme of registration – see sections 14(8) and 15(8). That, no doubt, is because the provision of medical services is closely regulated by other legislation. In considering the grant of a licence local authorities considerer matters such as hygiene, cleaning, sterilisation, provision for the disposal of waste and the like. Details of qualifications, training and experience of the individuals giving the treatments are also sought by the local authority.
Body modification, which is a term which encompasses each of the procedures in issue in this case (and many more), is unregulated and those who practice it require no particular training or qualification. Anyone can set himself up as a body modifier. We are told that the appellant in fact attended various short courses, but he has no medical qualifications which equip him to carry out these surgical procedures, deal with adverse consequences and still less to make any judgments about the mental health of his customers.
On the 23 July 2015 a customer named Ezechiel Lott had his left ear removed by the appellant. He signed a consent form. The consent form described the appellant as a “qualified modification artist”, although what that means is opaque. The form then seeks confirmation whether the customer suffers from various diseases or is taking medication, of the sort familiar to anyone attending a doctor or dentist. It continues:
“Our promise to you … is to look after you before, during and after your procedure. We promise that the environment of your treatment is clean and sterile to a high standard. All that we ask is that you continue with our hard work and take care of your modification when you leave the studio. We will educate you the best we can on how to do this before you leave the studio.”
The customer then signed a declaration to the effect that he was aware that the process involved risk, that he has chosen to have the procedure done of his own free will and finally that he will not hold the “artist responsible in anyway for any problems or medical conditions that may arise” from the procedure.
Mr Ezekiel Lott’s ear was removed without anaesthetic.
The tongue splitting was undertaken with a scalpel on an unknown female on 23 of July 2012, also without anaesthetic. Although no consent form was signed (or at least none is in the papers before us), relating to the tongue splitting or nipple removal, the prosecution accept that consent was given. Similarly, the nipple was removed from an unknown male on 16 August 2012 without anaesthetic.
Uncontroversial evidence was served by the prosecution and placed before the judge by agreement from John Murphy, an ear, nose and throat consultant and also from Nigel Mercer, a consultant plastic surgeon.
Removal of an ear gives rise to a risk of moderate to severe hearing loss and injury to the facial nerve. As Mr Murphy explains, removal of the pinna (the visible ear) can cause the ear canal to close. That is difficult to correct surgically. The function of the pinna is to catch sound and funnel it into the ear. Some hearing loss will follow the removal of the pinna. Furthermore, the facial nerve is located immediately in front and below the pinna and thus its removal, particularly by an unskilled “surgeon”, carries a risk of facial paralysis. Mr Murphy also explains that at a practical level, loss of the pinna makes it difficult to wear spectacles and also to use a hearing aid. He notes the inevitable risk of infection attending such a procedure. Mr Mercer confirms that total ear removal or partial ear removal would never be done by a plastic surgeon for aesthetic reasons although both may be required for medical reasons. He explains that to perform any cosmetic surgery in the United Kingdom the doctor concerned must be listed on a Specialist Register held by the General Medical Council. This is a requirement of the Health and Social Care Act 2001. The General Medical Council has issued guidelines to assist cosmetic surgeons. Before a procedure is carried out, the surgeon would meet the patient on at least two occasions. The potential complications and risks would be explained and noted. Mr Mercer indicates that there is no requirement to perform a psychiatric assessment before carrying out cosmetic surgery. Nonetheless, a cosmetic surgeon would be on the look out for potential psychiatric or psychological problems and, if necessary, refer the patient for an assessment. The General Medical Council has also introduced rules which require a two week cooling off period before surgery is performed to enable a patient to change his or her mind.
Proper informed consent would be obtained and recorded in the approved forms.
If an ear were to be removed, it would be done under sterile conditions in an operating theatre. The ear is well served by blood vessels and so its removal would cause a good deal of bleeding. The ear canal is also an area which carries a lot of bacteria which enhances the risk of infection. About a week after the operation any patient would have a follow up appointment to remove sutures, check for infection and make an assessment of how the procedure has gone. Some months later the patient would be seen again to examine the scar before finally being discharged.
Mr Mercer has seen photographs of Mr Lott’s head. He accepts that the procedure “has been done quite well in that the skin edge is cleanly cut” but the stitching was not done to the standard of a plastic surgeon.
Mr Mercer also saw images in relation to the nipple removal. After the nipple was removed, the skin was closed in a straight line. In his opinion, a plastic surgeon would not remove nipples for aesthetic reasons, but only for medical reasons.
Although this appeal does not involve the procedure, Mr Mercer also comments on another form of body modification occasionally performed by those who started as body piercers. It is to reroute the urethra in a male by inserting a piece of metal at the base of the penis. This, again, is not a procedure that would be undertaken by a plastic surgeon. It merely illustrates the very broad range of activities that can fall within the ambit of the broad term of “body modification”.
Mr Mercer viewed the tongue splitting. This too would never be done by a reputable surgeon for aesthetic purposes, or indeed any other purpose. There are particular risks associated with it. First, the tongue will bleed very heavily. Secondly, it is liable to swell up after incisions are made. Furthermore, the mouth is a very dirty environment and hard to keep sterile. Infection is an ever-present risk. Splitting the tongue to create a forked tongue has adverse impact on both speech and feeding.
A plastic surgeon would be alert to the possibility that a patient was suffering from Body Dysmorphic Disorder if he or she presented with extreme demands for cosmetic surgery. That would give rise to real questions about whether the patient concerned was able to make a rational and informed decision about surgery and at least prompt the surgeon to consider a referral to a psychiatrist of psychologist.
The Law
The question whether the consent of a victim could provide a defence to offences of causing actual bodily harm contrary to section 47 of the Offences against the Person Act 1861, or wounding contrary to section 20, was authoritatively considered in the case of Brown. The circumstances were unorthodox in that the injuries were inflicted during the course of consensual extreme sado-masochistic sex. A majority of the House of Lords, with Lord Mustill and Lord Slynn dissenting, concluded that consent provided no defence. The headnote in the official report captures the ratio of the decision:
“… that although a prosecutor had to prove absence of consent in order to secure a conviction for mere assault it was not in the public interest that a person should wound or cause actual bodily harm to another for no good reason and, in the absence of such a reason, the victim’s consent afforded no defence to a charge under Section 20 or 47 of the Act 1861.”
The satisfaction of sado-masochistic desires did not constitute such a good reason.
Actual bodily harm means any injury “calculated to interfere with the health and comfort of the [victim]” but must be more than transient or trifling: R v Miller [1954] 2 QB 282 at 292. A wound is caused when the whole of the skin, dermis and epidermis, is broken including the inner skin within the cheek, lip or urethra: R v Smith (1837) 8 C & P 173; R v Waltham (1849) 3 Cox 442. Section 20 of the 1861 Act covers both wounding and also the infliction of grievous bodily harm. That means really serious bodily harm: DPP v Smith [1961] AC 290; R v Cunningham [1982] AC 566.
The decision in the Brown case flowed from detailed consideration of three earlier authorities, R v Coney (1882) 8 QBD 534, R v Donovan [1934] 2 KB 498 and Attorney General’s Reference (No. 6 of 1980) [1981] QB 715. The Coney case concerned spectators at a prize fight who were prosecuted as secondary participants in any offence committed by the fighters. The Donovan case concerned caning for sexual gratification. The Attorney General’s Reference case concerned a fight, not in the course of properly conducted sport. It was held that where two people fight in those circumstances intending or causing actual bodily harm, it is no defence for a person charged that the other consented, whether the fight is held in public or in private. Lord Lane CJ explained that it was not in the public interest that people should cause each other actual bodily harm for no good reason. He encapsulated the principles in the following passage of his judgment between 718E and 719F:
“We think it can be taken as a starting point that it is an essential element of an assault that the act is done contrary to the will and without the consent of the victim; and it is doubtless for this reason that it lies on the prosecution to negative consent. … But the cases show that the courts will make an exception to this principle where the public interest requires. … Bearing in mind the various cases and the views of the textbook writers cited to us, and starting with the proposition that ordinarily an act consented to will not constitute an assault, the question is: at what point does the public interest require the court to hold otherwise? In answering that question the diversity of view expressed in the previous decisions such as [Coney and Donovan] make some selection and a partly new approach necessary. Accordingly, we have not followed the dicta which would make an act (even if consensual), an assault if it occurred in public, on the grounds that it constituted a breach of the peace, and was therefore itself unlawful. There dicta reflect the conditions of the times when they were uttered …
The answer to the question, in our judgment, is that it is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason. … So in our judgment, it is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent.
Nothing which we have said is intended to cast doubt upon the accepted legality of properly conducted games or sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions etc. These apparent exceptions can be justified as involving the exercise of a legal right, in the case of chastisement or correction, or as needed in the public interest, in other cases.”
The majority of the House of Lords endorsed the approach of Lord Lane, with the result that for the appellants to avoid criminal liability, it was necessary for the committee to conclude that the conduct in question fell into a special exception to which the general rule did not apply. It is perhaps not unfair to suggest that the special categories hitherto identified in the cases do not lend themselves to a coherent statement of underlying principle. They are at best ad hoc, and reflect the values of society recognised from time to time by the judges. Some were referred to in the final paragraph of the quotation we have set out from Lord Lane’s judgment in the Attorney General Reference case. Each of the categories was discussed by the Law Commission in its Consultation Paper No 134 Consent and Offences Against the Person completed on 14 December 1993 between para 9.1 and 11.23. Its second consultation paper, No 139, contains a comprehensive exposition of the law relating to each of the exceptions.
In the Brown case itself Lord Templeman at 231F explained that “ritual circumcision, tattooing, [and] ear-piercing …are lawful activities.” Lord Mustill at 267C identified “bravado (where a boastful man challenges another to try to hurt him with a blow) and religious mortification.” Lord Slynn summarised the categories where consent provides a defence as including,
“…surgical operations, sports, the chastisement of children, jostling in a crowd, but all subject to a reasonable degree of force being used, tattooing and ear-piercing. … None of these situations, in most cases pragmatically accepted, either covers or is analogous to the facts of the present case.” (277D)
The Law Commission noted that no further indication was given in the Brown case to support the various exceptions and added that,
“… in some cases, such as ear-piercing and perhaps tattooing, one is driven to think that they are assumed to be lawful only because no-one would ever be minded to suggest otherwise. Certainly, ear-piercing would seem to be a form of actual bodily harm, that is in the nature of a medical operation, but which does not enjoy the exemption for lawful medical treatment because it is neither done for medical purposes nor performed by a medical practitioner.”
Lord Mustill’s approach to the question before the House of Lords was different from that of the majority, and indeed of Lord Slynn. He considered that the case should not have been about the criminal law of violence but should have been about the criminal law of sexual relations: 256G. He approached the appeal,
“on the basis that the convictions on charges which seem to me so inapposite cannot be upheld unless the language of the statute or the logic of the decided cases positively so demand.”
In the course of his discussion of the various cases where consent was taken to provide a defence to a charge of serious assault, at page 266F, he touched on surgery:
“Many of the acts done by surgeons would be very serious crimes if done by anyone else, and yet the surgeons incur no liability. Actual consent, or the substitute for consent deemed by the law to exist where an emergency creates a need for action, is an essential element in this immunity; but it cannot be a direct explanation for it, since much of the bodily invasion involved in surgery lies well above any point at which consent could even arguably be regarded as furnishing a defence. Why is this so? The answer must in my opinion be that proper medical treatment, for which actual or deemed consent is a prerequisite, is in a category of its own.”
Ultimately, Lord Mustill concluded that the prosecution had failed to demonstrate a sufficient reason to justify the criminal law interfering in matters of private morality: 273 C – E. He had earlier (272H – 272A) drawn a distinction between an offence under section 47 of the 1861 Act and an assault causing grievous bodily harm and returned to the topic at 274D:
“It has been acknowledged throughout the present proceedings that the appellants’ activities were performed by a pre-arranged ritual, which at the same time enhanced their excitement and minimised the risk that the infliction of injury would go too far. Of course things might go wrong and really serious injury or death might ensue. If this happened, those responsible would be punished according to the ordinary law, in the same way as those who kill or injure in the course of more ordinary sexual activities are regularly punished.”
Lord Slynn of Hadley accepted the analytical approach of the majority, but would have drawn the line in a different place. At 279B, he accepted that “there exist areas where the law disregards the victim’s consent even where that consent is freely and fully given. These areas may relate to the person (e.g. a child); they may relate to the place (e.g. in public); they may relate to the nature of the harm done.” At page 280, he proposed drawing the line “between really serious injury on the one hand and less serious injuries on the other”. At page 280D he indicated:
“If a line has to be drawn, as I think it must, to be workable, it cannot be allowed to fluctuate within particular charges and in the interest of legal certainty it has to be accepted that consent can be given to acts which are said to constitute actual bodily harm and wounding. Grievous bodily harm I accept to be different by analogy with an extension of the old cases on maiming. Accordingly, I accept that other than for cases of grievous bodily harm or death consent can be a defence. This in no way means that the acts done are approved of or encouraged. It means no more than that the acts do not constitute an assault within the meaning of these two specific sections of the Offences against the Person Act 1861.”
He went on to explain that none of the injuries before the court amounted to grievous bodily harm.
We have discussed the dissents in some detail because, even though the approaches of Lord Mustill and Lord Slynn were different in the context of sado-masochistic sex, neither accepted that consent could provide a defence for consensual violence causing really serious bodily harm. Each would have allowed the appeal because the charges were for causing actual bodily harm or wounding, not for causing grievous bodily harm.
For completeness we mention R v Wilson [1996] 2 Cr App R 241 where the appellant had branded his wife’s buttocks during consensual sexual activity, undoubtedly causing actual bodily harm. He was prosecuted for an offence contrary of section 47 of the 1861 Act. This court concluded that consensual activity between husband and wife in the matrimonial home was not a matter for criminal investigation and prosecution under section 47.
The Submissions of the Parties
On behalf of the appellant, Mr Anning accepts that we are bound by the ratio of the Brown case. It is no part of his argument that it was wrongly decided. Nonetheless, he submits that public policy consideration should not invalidate the consents which the prosecution accept were given in respect of the three procedures with which we are concerned. He distinguishes Brown on the basis that it was concerned with sado-masochistic activity. He submits that there is a good reason why the conduct of the appellant should be permitted, namely that it protects the personal autonomy of his customers. It is wrong, submits Mr Anning, to characterise the procedures carried out by the appellant as medical or surgical. They should be viewed as akin to body adornment, which is widely accepted in British culture and other cultures. What was done by this appellant should be seen as a natural extension of tattooing and piercing, the last of which involves wounding by breaking the skin, but to which consent has long been accepted to negative in any criminal activity.
In short, the case advanced by the appellant is that the procedures he conducted, albeit that they caused really serious bodily harm, should be immunised from the criminal law of assault, just as surgical procedures performed by medical practitioners and those who take part in properly organised boxing matches attract protection. The bite of the criminal law should be restricted to regulatory offences, if such are committed.
The appellant accepts that the procedures he performed carry medical risk but, submits Mr Anning, so too do body piercing and tattooing.
Mr Hankin QC submits that the procedures in question are, in truth, medical and amount to cosmetic surgery. They are serious irreversible procedures not warranted medically. They have adverse physiological consequences and involve significant risk. It is not in the public interest to decriminalise such activities when performed with the consent of the customers. He submits that each of the injuries in question amounted to grievous bodily harm, given its ordinary and natural meaning of really serious bodily harm. They go well beyond actual bodily harm and involve much more than a wound, i.e. breaking the continuity of the skin. It is a big and unwarranted step to suggest that an entirely new special category should be recognised.
Discussion
We have observed that the exceptions to the general rule confirmed in the Brown case deliver no easily articulated principle by which any novel situation may be judged. The difficulty is perhaps best illustrated by considering boxing, undoubtedly lawful when organised properly as a sport (but not otherwise), where each protagonist is at liberty to knock out his opponent, not infrequently causing very serious injury indeed. Lord Mustill paid tribute to the valuable judgment of McInearny J. in Pallante v Stadiums Pty [1976] V.R. 331 in trying to arrive at an intellectually satisfying account of the apparent immunity of professional boxing from criminal process, but concluded that the task is impossible.
Instead, the most that might be said about the special cases is that they represent a balance struck by the judges to reflect a series of different interests. There is a general interest of society in limiting the approbation of the law for significant violence, albeit inflicted with consent. There is some need to protect from themselves those who have consented, most particularly because they may be vulnerable or even mentally unwell. Moreover, serious injury, even consented to, brings with it risk of unwanted injury, disease or even death and may impose on society as a whole substantial cost. Yet there is a need to reflect the general values of society which have long accepted tattooing and piercing (not just of ears) as acceptable, along with such things as ritual circumcision, sports and the other sub-categories identified in the cases. That is not to say that each receives universal support from all sections of society, but the exceptions are so deeply embedded in our law and general culture that it would require Parliament to render such activities subject to the ordinary criminal law of assault. We have seen that Parliament has indeed intervened to provide for the regulation of activities such as tattooing, piercing and the like, and had earlier done so as regards children: Tattooing of Minors Act 1969.
Whilst the exceptions are incapable of being accommodated within any universally stated test, there are two features which may be thought to underpin almost all of them. First, they may produce discernible social benefit. That is true of the sporting exceptions and may even be true of boxing or “dangerous exhibitions” as entertainment. It is possible that those with a religious hue might also be considered as conferring a social benefit, at least at the time they were recognised. But the second is that it would simply be regarded as unreasonable for the common law to criminalise the activity if engaged in with consent by (on behalf of) the injured party. That would apply to tattooing and piercing and, again, perhaps to those with a religious hue, including ritual male circumcision.
New exceptions should not be recognised on a case by case basis, save perhaps where there is a close analogy with an existing exception to the general rule established in the Brown case. The recognition of an entirely new exception would involve a value judgement which is policy laden, and on which there may be powerful conflicting views in society. The criminal trial process is inapt to enable a wide-ranging inquiry into the underlying policy issues, which are much better explored in the political environment.
That said, there is, to our minds, no proper analogy between body modification, which involves the removal of parts of the body or mutilation as seen in tongue splitting, and tattooing, piercing or other body adornment. What the defendant undertook for reward in this case was a series of medical procedures performed for no medical reason. When Lord Lane referred to “reasonable surgical interference” in the Attorney General’s Reference case (quoted in [23] above) it carried with the implication that elective surgery would only be reasonable if carried out by someone qualified to perform it. The professional and regulatory superstructure which governs how doctors and other medical professionals practice is there to protect the public. The protections provided to patients, some of which are referred to in the medical evidence before the judge, were not available to the appellant’s customers or more widely to the customers of those who set themselves up as body modifiers. It is immaterial that this appellant took some trouble to ensure a sterile environment when he operated, or that his work was in some respects tidy and clean. Consent as a defence could not turn on the quality of the work then performed.
The protection of the public in this context extends beyond the risks of infection, bungled or poor surgery or an inability to deal with immediate complications. Those seeking body modification of the sort we are concerned with in this appeal invited the appellant to perform irreversible surgery without anaesthetic with profound long-term consequences. The fact that a desire to have an ear or nipple removed or tongue split is incomprehensible to most, may not be sufficient in itself to raise the question whether those who seek to do so might be in need of a mental health assessment. Yet the first response in almost every other context to those who seek to harm themselves would be to suggest medical assistance. That is not to say that all who seek body modification are suffering from any identifiable mental illness but it is difficult to avoid the conclusion that some will be, and that within the cohort will be many who are vulnerable. There are good reasons why reputable medical practitioners will not remove parts of the body simply when asked by a patient. One only has to reflect on the care, degree of inquiry and support given to a patient before gender reassignment surgery can be performed to appreciate the extensive nature of the protections provided in the medical context.
The personal autonomy of his customers does not provide the appellant with a justification for removing body modification from the ambit of the law of assault. It is true that Mr Lott could have cut his own left ear off and in doing so would have committed no criminal offence. So too the other customers. But the personal autonomy of one individual does not extend to involving another in what would otherwise be a crime. We note that the European Court of Human Rights rejected the arguments advanced under article 8 of the Convention by the appellants in the Brown case, (1997) 24 EHRR 39, and remind ourselves that the level of harm engaged in that case was below really serious injury.
In short, we can see no good reason why body modification should be placed in a special category of exemption from the general rule that the consent of an individual to injury provides no defence to the person who inflicts that injury if the violence causes actual bodily harm or more serious injury. Even were the general rule to be revisited by Parliament or the Supreme Court and a different line drawn which allows consent to act as a defence to causing actual bodily harm and wounding, body modification causes really serious harm. Neither of the dissentient voices in the Brown case would have been willing to allow consent to act as a defence to causing grievous (serious) bodily harm and we note that the proposals of the Law Commission, whilst suggesting some loosening of the constraints found in Brown, would also not have gone that far. The appellant’s argument envisages consent to surgical treatment providing a defence to the person performing the surgery whether or not that person is a suitably qualified as a doctor, and whether or not there is a medical (including psychological) justification for the surgery. Even were we attracted by the argument, which we are not, such a bold step is one that could only be taken by Parliament.
For these reasons, we dismiss the appeal.
Meachen, R v
[2006] EWCA Crim 2414 (20 October 2006)
Lord Justice Thomas:
The appellant was sent for trial in the Crown Court at Swansea (before H.H.J.Morton and a jury) on an indictment charging him with rape (count 1), indecent assault contrary to s.14(1) of the Sexual Offences Act 1956 (count 2), causing grievous bodily harm with intent contrary to s.18 of the Offences against the Person Act 1861 (count 3) and in the alternative, causing grievous bodily harm contrary to s.20 of the Offences against the Person Act 1861 (count 4)
The trial commenced on 19 May 2003. On 22 May 2003, at the end of the prosecution case, the judge directed an acquittal on the count of rape on the basis that there was insufficient evidence of penile penetration. He also gave a ruling to the effect that there was no defence in law to Counts 2 and 4 in view of the decision of this Court in Emmett [1999] EWCA Crim 1710. The appellant changed his plea to guilty in relation to Count 2 (indecent assault contrary to s.14(1) of the Sexual Offences Act 1956) and Count 4 (inflicting grievous bodily harm contrary to s.20 of the Offences against the Person Act 1861). The trial proceeded on Count 3 (causing grievous bodily harm with intent contrary to s.18 of the 1861 Act). He was convicted by the jury.
On 23 May 2003 the appellant was sentenced by the judge to 10 years imprisonment for causing grievous bodily harm with intent and to a concurrent sentence of 8 years for indecent assault.
An application for leave to appeal against sentence was refused by the single judge and also by the Full Court [2003] EWCA Crim 2890. The appellant instructed new solicitors and counsel and applied in July 2005 for leave to appeal out of time against his conviction over 2 years after his conviction. The single judge granted leave and the necessary extension of time.
At the first hearing of the appeal, it was not clear what had transpired between the appellant and counsel who had represented the appellant during the trial; the hearing was therefore adjourned to enable that counsel to set out his recollection for the court.
At the conclusion of the second hearing, we allowed the appeal against the convictions on Counts 2 and 4 and the orders made consequential upon his conviction on Count 2, but dismissed the appeal in relation to Count 3, the offence of causing grievous bodily harm with intent for reasons to be given later.
The issue at the trial
On the evening of 4 August 2002 the complainant (a 37 year old female) met the appellant. They returned to the complainant’s address and he then left in a taxi at 5.10 a.m. the following morning.
It was the prosecution case that the appellant had administered to the complainant liquid gammahydroxybutyrate (GHB) (popularly known as the “date rape” drug) which was not then a controlled drug. The appellant then had intercourse with her anally. He inserted a large object into her anus whilst she was unconscious; this caused the complainant very serious injuries.
It was the defence case that both the appellant and the complainant had consented to both of them taking GHB; that the appellant with the complainant’s consent had used his fingers to penetrate her anus and she had moved vigorously up and down on them. He was unaware of the complainant’s injuries when he left her address at 5.10am.
The evidence
On the evening of 4 August 2002, having been out drinking with her boyfriend for the day, the 37 year old complainant went to Carmarthen Town Football Club where she met the appellant, who was previously unknown to her. They started a conversation. They left together and went back to the house of the complainant’s niece. Then, shortly after midnight, they went by taxi to the complainant’s home a mile away.
The complainant had no recollection of events after leaving her niece’s house save that the appellant was with her at one point on the sofa in her living room. The appellant left her home by taxi at 5.10am that morning. When the complainant awoke around 7am she was in immense pain and was suffering considerable blood loss from her peri-anal area. She went next door to a neighbour and her GP was consulted. She was initially discharged from hospital, but a subsequent hospital examination revealed that she had extensive bruising of the peri-anal area, together with acute splitting of the anal canal area extending into the rectum. The injury was so severe that a colostomy was performed and she was fitted with a colostomy bag.
The Consultant Surgeon indicated that the most likely cause of the injury was “fisting” or penetration by a blunt object such as a broom handle or an un-lubricated can.
The appellant was arrested later that day. He admitted being in the complainant’s company and returning to her house. He said they had kissed, cuddled and fondled each other. He denied having intercourse with her, either vaginally or anally.
In a telephone conversation between the appellant and the complainant between her hospital visits and before she knew the extent of her injuries, the complainant asked the appellant whether they had had sex the previous evening. The appellant replied that she had wanted it or enjoyed it. When the complainant said, “No, we didn’t”, the appellant then replied, “Ok then we didn’t”.
Items of clothing were recovered from the appellant’s home. Blood staining was detected on his underpants and trousers, which matched the DNA profile of the complainant. A bottle of liquid was subsequently found in the appellant’s vehicle. It contained GHB which was also detected in the complainant’s urine sample.
The appellant was finally re-arrested in December 2002, when, in interview, he answered “no comment” to all questions put to him.
The appellant’s evidence
The appellant’s evidence, given after the ruling to which we have referred, was that he had met the complainant in a club and described her as “tipsy or high on drugs”. He asked the complainant if she was on drugs and she said, “Why. Have you got anything?” The complainant then asked him if he could get her some that night. He told her he used “Ecstasy, liquid ecstasy or salty water” – which is GHB – “and cannabis”.
They went to the complainant’s niece’s house and it was clear that her niece did not want them using drugs in her house. The complainant asked him if she could take alcohol with GHB and he told her what the effects were. They finally agreed that he would obtain some drugs, so he went out and bought a Lucozade bottle with some two inches of GHB in it for £5 and went back to the niece’s house.
When he arrived back the complainant was asking him whether he had been able to get anything. She then got her things together and they left her niece’s house. They decided to get a taxi back to the complainant’s house and whilst waiting for the taxi, both took half a cupful of the GHB.
Back at the complainant’s house they became sexually intimate. The complainant was an active and willing participant. She enjoyed penetration of her vagina and anus with his fingers. The complainant ended up astride the appellant with three of his fingers in her anus and his thumb in her vagina. The complainant was thrusting up and down on his fingers for some four or five minutes giving every sign of reaching a climax. She eventually went to her bedroom. He noticed some blood on his fingers and assumed that the complainant was having her period. He asked if this was correct and she said, “It’s only a bit, it doesn’t matter”. He went into her bedroom and noticed she had taken some more of the GHB and he decided to finish off the bottle. There was a little kissing and fondling after that. He stayed until 5am when a taxi arrived to pick him up. He did not know that the complainant was injured when he left her house.
He phoned the complainant the next day to ask her out again. The complainant told him she had been to see a doctor and had been advised she had fibroids. She also asked him whether they had done anything the previous evening. He asked, “What do you mean? You enjoyed yourself”. She asserted that nothing happened and so he said, “Fine”.
On arrest, the appellant said he had met the complainant and kissed and cuddled her. He had phoned her and she had said she was suffering from fibroids. Although he had taken more of the GHB than the complainant, he had a reasonably good memory of what had happened that night unlike the complainant.
Expert evidence
Both the prosecution and defence called expert evidence from highly qualified surgeons as to the cause of the injury. The defence expert gave evidence that the injuries to the complainant could have been caused by the vigorous moving up and down on the appellant’s three fingers inserted into her anus in the manner suggested by the appellant. The prosecution expert’s evidence was that it was not possible for the injury to have been caused in that way and that it had been caused by a fist or blunt instrument.
The appeal
The appeal involved two distinct issues:
i) Were the convictions on Counts 2 and 4 by reason of the guilty pleas safe, as they followed from the ruling made by the judge?
ii) Was the conviction by the jury’s verdict on Count 3 safe, even if the convictions on Counts 2 and 4 were unsafe?
We shall first consider the issue in relation to Counts 2 and 4.
I. Counts 2 and 4
The appellant’s case
As we have already noted, the judge was asked to make his ruling at the end of the prosecution case. At that stage the material part of the defence was set out in the defence statement as:
a) “He fondled her vagina and inserted three fingers into her back passage at her request. She was moving up and down on his fingers.
b) He denies Count 4 on the basis that he did not act unlawfully”.
It was clear from the report of the expert who was to be called on behalf of the Defendant and the cross examination of the expert who had been called on behalf of the prosecution that the cause of the really serious injury suffered by the complainant was in issue.
Counsel for the defendant (who was not counsel who represented the appellant on this appeal) asked the judge to indicate his preliminary views, in the light of the decision of this court in Emmett (to which we refer at paragraph 36.ii) below), on whether the consent of the victim could be a defence to the offence under s.20 of the Offences against the Person Act 1861 (Count 4) or to the offence of indecent assault (Count 2). Counsel accepted in the course of argument before the judge that Emmett was indistinguishable from the present case and he could therefore not properly argue that, as consent depended upon the nature or severity of the injuries, in view of the severity of the injuries, that consent could be a defence as the activity was unlawful. The defendant would plead guilty, though it would remain his case that the sexual activity was consensual.
The Judge ruled that consent could not be a defence where either actual bodily harm was caused or, adopting an objective test, what was done revealed a risk of more than transient or trivial injury. He made clear that, if the appellant gave evidence in accordance with his defence statement, he would rule in this way, following the analysis of Brown (to which we refer in paragraphs 32 and 33 below) made by the Court of Appeal in Emmett. Following this ruling, the appellant pleaded guilty to Counts 2 and 4.
It was contended before us, that the judge was incorrect in making that ruling. At that stage the defendant had not given evidence; this was, unlike Emmett, a case where it was the appellant’s case that he did not intend to cause injury; moreover at that stage there was no acceptance by the appellant on his account of what had happened that he intended or foresaw any bodily injury, albeit minor, being caused by his actions, namely the insertion of the three fingers into the complainant’s anus. In the absence of acceptance by the defendant that he intended some injury or foresaw the risk, the judge could not have ruled that there was no defence in law to the offence under s.20 or the offence of indecent assault under s.14(1). There was, of course, evidence on which a jury could at the appropriate time have concluded that he had such an intention or foresaw such a risk, but that was a question for the jury at the conclusion of the summing up.
In the light of that contention, it was necessary to ascertain from counsel who had represented the appellant at trial whether he had considered the issue of whether the appellant had foreseen any bodily injury, however minor, being caused in the manner suggested by the appellant, namely by the insertion of 3 fingers into the complainant’s anus and to ascertain the extent of the discussions which counsel had with the appellant prior to his change of plea. Counsel responded to the Court’s enquiry by saying that he could not recall what was discussed with the appellant some three years earlier and the notes of his conferences with the appellant did not assist. Given the lapse of time, no criticism can attach to counsel.
Our approach to the ruling on Counts 2 and 4
We proceed therefore to consider the appeal on Counts 2 and 4 on the basis that the defendant’s case was that, although he accepted that the injuries in fact had been caused by him, (1) the complainant had consented to the insertion of three fingers into her anus and that he had neither intended nor foreseen the risk of injury from that and (2) the injury had been caused by the complainant’s vigorous moving up and down on his fingers and not by the insertion of his fist as was the prosecution case.
It is well established that the deliberate or reckless infliction of actual bodily harm on another person without good reason is unlawful. Consent can be a good reason, but, as is clear from the speeches in Brown [1994] AC 212 (the sadomasochist case) and in particular that of Lord Mustill, there is no general theory of consent to violence and no step by step analysis of the cases can be sustained.
In Brown where those engaged in sadomasochistic activities had pleaded guilty to offences under s.47 and s.20 after a ruling by the judge, the issue for decision was whether the prosecution had to prove lack of consent on the part of the person harmed before guilt could be established under s.47 or s.20 of the Offences Against the Person Act 1861. It was decided by a majority that the infliction of some bodily harm, even with consent, was unlawful, unless the case fell within exceptions established by the court as a matter of public policy. They rejected the argument that there could be any distinction between consent to actual bodily harm and really serious bodily injury. As Lord Jauncey, with whom Lord Lowry agreed, said at page 244
” I prefer the reasoning of Cave J. in Coney and of the Court of Appeal in the later three English cases which I consider to have been correctly decided. In my view, the line properly falls to be drawn between assault at common law and the offences of assault occasioning actual bodily harm created by s.47 of the Offences Against the Person Act 1861, with the result that consent of the victim is no answer to anyone charged with the latter offence or with a contravention of s. 20 unless the circumstances fall within one of the well known exceptions such as organised sporting contest and games, parental chastisement or reasonable surgery.”
In other words, consent, outside the excepted cases is no defence to a charge under s.47 or s. 20, where the ingredients of those offences are otherwise made out. The third member of the majority, Lord Templeman based his view upon the actual or potential risk of harm.
The issue of consent in cases of assault was not before the House. It was, however common ground, in contradistinction, that consent was a defence to a charge of indecent assault – see the speech of Lord Mustill at pages 268-9 to which we will refer at paragraph 39.i) below.
It is therefore, we think, important to look at the issue separately in relation to Count 4 (the offence under s.20) and Count 2, the offence of indecent assault, although before the trial judge no distinction was drawn between the two offences.
Count 4: s.20 of the Offences against the Person Act
In considering the appellant’s contention in relation to the offence under s.20 of the Offences against the Person Act 1861, it is, we think helpful to consider the application of the decision in Brown in three subsequent cases:
i) In Wilson [1996] 2 Crim. App. R. 241, the appellant was convicted of an offence under s.47. He had, with his wife’s consent, branded his initials onto her buttocks with a hot knife. In allowing the appeal the court said:
“There was no aggressive intent on the part of the appellant. On the contrary, far from wishing to cause injury to his wife, the appellant’s desire was to assist her in what she regarded as the acquisition of a desirable piece of personal adornment, perhaps in this day and age no less understandable than the piercing of nostrils or even tongues for the purposes of inserting decorative jewellery. In our judgment, Brown is not authority for the proposition that consent is no defence to a charge under section 47 of the Act of 1861, in all circumstances where actual bodily harm is deliberately inflicted. It is to be observed that the question certified for their Lordships in Brown related only to a “sadomasochistic encounter”. However, their Lordships recognised in the course of their speeches, that it is necessary that there must be exceptions to what is no more than a general proposition. The speeches of Lord Templeman, Lord Jauncey, and the dissenting speech of Lord Slynn all refer to tattooing as being an activity which, if carried out with the consent of an adult, does not involve an offence under s. 47, albeit that actual bodily harm is deliberately inflicted. For our part we cannot detect any logical difference between what the appellant did and what he might have done in the way of tattooing. The latter activity apparently requires no state authorisation, and the appellant was as free to engage in it as anyone else. We do not think we are entitled to assume that the method adopted by the appellant and his wife was any more dangerous or painful than tattooing. There was simply no evidence to assist the court on this aspect of the matter.”
The trial judge was referred to this decision, but this was a case of intentional harm, and so of little assistance to the issue in the present appeal.
ii) In Emmett, the defendant and the complainant had lived together and engaged consensually in what was described as “outré” sexual activity. There were two incidents which were the subject of charges under s.47 of the 1861 Act. In the first incident, the defendant deliberately sought to bring about the partial asphyxiation of the complainant by the placing of a plastic bag over her head; she lost consciousness and suffered sub-conjunctival haemorrhages. In the second incident, the defendant deliberately poured lighter fuel over her breasts and ignited it; the complainant suffered a burn injury. The defendant was convicted of offences under s.47, following a ruling by the judge that consent was no defence. Unlike Wilson, there was evidence that the activities in which they were engaged were dangerous and that the defendant was plainly aware of the dangers of actual bodily injury and, in the case of partial asphyxiation, grave danger of brain damage or death. In the circumstances, the court held that consent was no defence:
“Accordingly whether the line beyond which consent becomes immaterial is drawn at the point suggested by Lord Jauncey and Lord Lowry, the point at which the assault becomes assault occasioning actual bodily harm, or at some higher level, where the evidence looked at objectively reveals a realistic risk of more than transient or trivial injury, it is plain, in our judgment that the activities involved in by this appellant and his partner went well beyond that line. That learned judge, in giving his ruling said:
“In this case, the degree of actual and potential harm was such and also the degree of unpredictability as to injury was such as to make it a proper cause from the criminal law to intervene. This was not tattooing, it was not something which absented pain or dangerousness and the agreed medical evidence is in each case, certainly on the first occasion, there was a very considerable degree of danger to life, on the second there was a degree of injury to the body.”
With that conclusion, this Court entirely agrees.”
Again this was a case where the defendant was undoubtedly aware of the serious risk of serious injury. On the basis of the defence put forward by the appellant and the basis on which we have proceeded to consider the appeal, it is clear that there was a significant distinction between that case and the present case.
iii) In Barnes [2004] EWCA Crim 3246, [2005] Crim LR 381, the defendant was convicted under s.20 of the 1861 Act in circumstances where, during a football match, he had tackled a member of the opposing side; it was the prosecution case that the tackle was late, unnecessary, reckless and high up the legs. In giving the judgment of the Court, Lord Woolf CJ set out the general principles applicable to the approach of the criminal law to organised sports. Although that is a very different factual context to the present appeal, we think it helpful to refer to two paragraphs:
“7. When no bodily harm is caused, the consent of the victim to what happened is always a defence to a charge. When at least bodily harm is caused, consent is generally irrelevant because it has been long established by our courts that, exceptional situations apart, as a matter of law a person cannot consent to having bodily harm inflicted upon him.
17. In the case of offences against the person contrary to ss. 18 and 20 of the 1861 Act, it is a requirement of the offence that the conduct itself should be unlawful….. In the case of an offence contrary to s. 20, the 1861 Act also requires the conduct to be inflicted “maliciously”. In that context, “maliciously” means either intending to cause some bodily harm (however slight) or causing the harm recklessly. (See R v Cunningham [1957] 2 Q.B. 396). “Recklessly” in this context means no more than the defendant foresaw the risk that some bodily harm (however slight) might result from what he was going to do and yet, ignoring that risk, the defendant went on to commit the offending act. (See DPP v Parmenter [1992] 1 AC 699). In a sport like football, anyone going to tackle another player in possession of the ball can be expected to have the necessary malicious intent according to this approach, and in the great majority of criminal cases, the existence of a malicious intent is not likely to be in issue. This being so, in many situations, as Lord Diplock pointed out in R v Mowatt [1968] 1 QB 421 (at pages 426E to 427F), it will only confuse the jury to make unnecessary reference to the word “maliciously” and invite them to consider the improbability that the defendant did not foresee the risk. However this is a subject which it will be prudent for the trial judge to discuss with counsel before he starts his summing up.”
A comment on the decision in the Criminal Law Review observes in relation to paragraph 7 of the judgment:
“It is submitted that this is a more desirable approach. Following logically, when D intended to cause only an assault/battery with consent and caused actual bodily harm, the valid defence to the assault/battery at the heart of the actual bodily harm charge should also preclude liability.”
Barnes is the most relevant of these three cases, as it makes clear that the ingredients of the offence under s.20 must be proved by the prosecution, whether or not consent is in issue. Therefore, as it is an ingredient of the offence under s.20 that the harm or wound be inflicted “maliciously” in the Cunningham sense (as conveniently summarised in Barnes), it is necessary for the prosecution to show that the defendant intended to cause some bodily harm however slight or caused such harm recklessly in the sense that he foresaw the risk that some bodily harm, however slight, might result from what he was going to do and yet, ignoring the risk, he went on to commit the act which caused the harm. In many cases intent or recklessness will not be in issue, but where it is, it is necessary for the prosecution to prove it.
Count 2: Indecent Assault under s.14(1) of the Sexual Offences Act 1956
In R v Court [1989] A.C. 28 the intention necessary to commit an indecent assault under s. 14(1) of the Sexual Offences Act 1956 was considered by the House of Lords. Lord Ackner made clear at page 41:
“It was common ground before your Lordships, and indeed it is self evident, that the first stage in the proof of the offence is for the prosecution to establish an assault. The “assault” usually relied upon is a battery the species of assault conveniently described by Lord Lane in Faulkner v Talbot [1981] 1 W.L.R. 1528 at 1534 as “any intentional touching of another person without the consent of that person and without lawful excuse. It need not necessarily be hostile or rude or aggressive, as some of the cases seem to indicate”
It is not necessary to refer further to Court, as there can be no doubt that, if the complainant did not consent to the touching in this case, the appellant intended to commit an assault which any right minded person would think indecent.
Against this basic definition it is helpful to consider five decisions, three of which predated Brown and were considered in it.
i) In Donovan [1934] 2 K.B. 498, the defendant was charged with indecent assault and common assault after caning a 17 year old female complainant for the purposes of sexual gratification. It was clear that the complainant suffered actual bodily harm, though the defendant was not charged with an offence under s.47. His defence was consent. The judge directed the jury that the issue was consent or no consent, without giving any guidance on the burden of proof. The court concluded that a direction should have been given on consent, as in the circumstances of the case the jury might reasonably have found consent. The Court then considered the contention (which the prosecution had unsuccessfully made at trial) that it was unnecessary for the prosecution to prove absence of consent and that therefore the failure to give the direction was immaterial. The court rejected this argument:
“Always supposing, therefore, that the blows which he struck were likely or intended to do bodily harm, we are of opinion that he was doing an unlawful act, no evidence having been given of facts which would bring the case within any of the exceptions to the general rule. In our view, on the evidence given at the trial, the jury should have been directed that, if they were satisfied that the blows struck by the prisoner were likely or intended to do bodily harm to the prosecutrix, they ought to convict him, and that it was only if they were not so satisfied, that it became necessary to consider the further question whether the prosecution had negatived consent. For this purpose we think that “bodily harm” has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling.”
This decision was approved by the majority in Brown. Although Lord Jauncey accepted that this case and none of the other prior cases had to consider the distinction between the various types of assault, he viewed the case as deciding that the infliction of actual bodily harm was sufficient to negative consent (see p. 244); he was thus examining the case for the purpose of the issue before the House of Lords and not for the purpose of the intent necessary. The decision was, however, subject to closer scrutiny by Lord Mustill at pages 268-9 in an analysis which (as Lord Woolf CJ said in Barnes) was of the highest authority, because Lord Mustill had only dissented as to the result of the application of a public policy test. He concluded:
“Donovan was charged only with indecent assault, and the latter is an offence to which, it is common ground, consent is a defence. Yet the Court of Criminal Appeal proceeded on the basis that the critical level of violence was that of actual bodily harm, and that the jury should have been directed to decide whether he was guilty of facts establishing an offence under s.47 of the Act of 1861: an offence with which he had not been charged. There is something amiss here. What is amiss is that the dictum of Cave J [in Coney] and the old cases said to support it are taken out of their context, which was in each instance the kind of battery regarded for reasons of public policy as being in a special category which is automatically criminal. Plainly the court in Donovan did not put the beating of the complainant into that category, or the appeal would have taken a quite different course.”
It is clear that Donovan was a case where there was a deliberate intention to inflict some harm; thus the issue in the present case was not before the court. It is important to note that, as was set out by Lord Mustill, it was common ground in Brown that consent was a defence to a charge to indecent assault (see also the speech of Lord Templeman at page 231 where he made clear that there could be no conviction for the offence of common assault where the victim consented to the assault).
ii) In Attorney-General’s Reference No 6 of 1980 [1981] 1 Q.B. 715, the court considered a reference on a point of law as to whether consent could be a defence to a charge of assault arising out of a fight in a public place to which the other consented. Donovan was briefly considered; the court concluded:
” It is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason. Minor struggles are another matter. So in our judgment, it is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent”
This decision was also approved by the majority in Brown, but in the context to which we have referred. Again this was a case where it is clear there was a deliberate intention to inflict some harm, however slight.
iii) In Boyea [1992] Crim L.R. 574, the defendant inserted his finger into the complainant’s vagina and twisted it around inside her; injuries were caused to the labia and an internal injury to the vagina, together with bruises and scratches elsewhere on her body. The defendant was charged with indecent assault. The judge directed the jury in conventional terms on the ingredients of an indecent assault; he then directed them that the question whether the complainant consented was irrelevant if they were satisfied that the actions of the appellant were likely or intended to cause harm, which in the context, meant harm that need not be serious or permanent, but which must be more than transient or trifling. It was contended that the jury should have been directed to ask whether the defendant knew or should it have been obvious to him that if he did the act, bodily harm might result. The Court referred to Donovan and to a passage in the speech of Lord Ackner in R v Savage, DPP v Parmenter [1992] 1 AC 699 at 742 F, where he said that the verdict of assault occasioning actual bodily harm might be returned upon proof of an assault together with proof of the fact that actual bodily harm was occasioned by the assault; that it was not necessary for the prosecution to prove that the defendant intended to cause some actual bodily harm or was reckless as to whether such harm would be caused. The court then continued:
“the question whether the act of the defendant was “likely or intended to do bodily harm” to the complainant is to be answered giving the word “likely” its ordinary meaning, that is to say objectively. The question is not equivalent to asking: “Did the defendant inflict the harm recklessly?” We therefore reject this submission by [counsel for the appellant].
After considering the decision in Attorney General’s reference No 6 of 1980, the court observed:
“The central proposition in Donovan is in our view consistent with the decision of the court in Attorney-General’s Reference. That proposition can be expressed as follows: an assault intended or which is likely to cause bodily harm, accompanied by indecency, is an offence irrespective of consent, provided that the injury is not “transient or trifling”…..
We would, however, say this. The court must take into account that social attitudes have changed over the years, particularly in the field of sexual relations between adults. As a generality, the level of vigour in sexual congress which is generally acceptable, and therefore the voluntarily accepted risk of incurring some injury is probably higher now than it was in 1934. It follows in our view that the phrase “transient or trifling” in that quotation must be understood in the light of conditions in 1992 rather than those of nearly 60 years ago. But with this qualification, we have no doubt that the extent of the violence inflicted on the complainant went far beyond the risk of minor injury to which, if she did consent, her consent would have been a defence.”
In R v Savage and DPP v Parmenter, Lord Ackner (with whom all the other Lords agreed), although making clear that the prosecution did not have to prove the defendant intended to cause some actual bodily harm or was reckless as to whether such harm would be caused, set out that it was common ground that the mental element required the intention or recklessness necessary for an assault.
This decision was approved by the majority in Brown in the context to which we have referred. However, in his commentary on Boyea, the late Professor Sir John Smith raised the issue that arises in this appeal:
“It is clear that assault and battery require proof of mens rea, namely intention or recklessness. Recklessness here means the conscious taking of a risk, that is Cunningham as distinct from Caldwell/ Lawrence recklessness. … Generally a person who intends to make some impact on the body of another, believing that the other consents to his doing so, does not intend to commit, nor is he reckless whether he commits, a battery. He has no mens rea. If, however, he intends to cause some injury (for which there is no social justification) or he is aware that he is likely to cause such an injury, then he does have mens rea, notwithstanding the fact that he knows the other consents. He now intends to commit, or is reckless whether he commits a battery. What, however, if, though the act is likely to cause injury, he does not realise this? He does not intend to commit a battery, nor is he reckless whether he does so, because he does not foresee that a battery may result. He foresees only a consented to, non injurious impact; and that is not a battery.”
We shall return to this decision.
iv) In Slingsby [1995] Crim. L.R. 571, the defendant penetrated the complainant’s vagina and rectum with his hand; she suffered cuts caused by a signet ring worn by the defendant; septicaemia developed and she died. The defendant was charged with manslaughter. At the outset of the trial the judge was asked to make a ruling on whether, putting the prosecution case at its highest, the defendant should be liable to be convicted of manslaughter. It was the prosecution case that if any significant injury was a likely consequence of vigorous consensual activity and injury resulted, that would amount to an assault, although it was accepted that the act of inserting fingers or hand into the vagina or rectum for the purposes of sexual stimulation would not, if consensual, amount to an assault or any other crime. Judge J (as he then was) held:
” The difficulty with this submission was that the sexual activity to which both the deceased and the defendant agreed did not involve deliberate infliction of injury or harm and but for the coincidental fact that the defendant happened to be wearing a signet ring, no injury at all would have been caused or could have been contemplated. The question of consent to injury did not, in fact, arise because neither anticipated or considered it. At the time, all they were considering was this vigorous sexual activity. Therefore, the reality was that the deceased sustained her unfortunate injuries, not when she or the defendant were consenting to injury, but as an accidental consequence of the sexual activity which was taking place with her consent. It would be contrary to principle to treat as criminal activity which would not otherwise amount to assault merely because in the course of the activity an injury occurred.”
v) In Dica [2004] EWCA Crim 1103, the Court of Appeal had to consider the circumstances in which a prosecution could lie under s.20 of the 1861 Act in relation to the infection with HIV. In the course of giving the judgment of the Court (over which Lord Woolf CJ presided), Judge LJ considered the issue of consent; after commenting on Brown, Emmett, Donovan and Boyea, he said:
“46. These authorities demonstrate that violent conduct involving the deliberate and intentional infliction of bodily harm is and remains unlawful notwithstanding that its purpose is the sexual gratification of one or both participants. Notwithstanding their sexual overtones, these cases were concerned with violent crime, and the sexual overtones did not alter the fact that both parties were consenting to the deliberate infliction of serious harm or bodily injury on one participant by the other. To date, as a matter of public policy, it has not been thought appropriate for such violent conduct to be excused merely because there is a private consensual sexual element to it. The same public policy reason would prohibit the deliberate spreading of disease, including sexual disease.
47. In our judgement the impact of the authorities dealing with sexual gratification can too readily be misunderstood. It does not follow from them, and they do not suggest, that consensual acts of sexual intercourse are unlawful merely because there may be a known risk to the health of one or other participant. …
51. The problems of criminalising the consensual taking of risks like these include the sheer impracticability of enforcement and the haphazard nature of its impact. The process would undermine the general understanding of the community that sexual relationships are pre-eminently private and essentially personal to the individuals involved in them. And if adults were to be liable to prosecution for the consequences of taking known risks with their health, it would seem odd that this should be confined to risks taken in the context of sexual intercourse, while they are nevertheless permitted to take the risks inherent in so many other aspects of everyday life, including, again for example, the mother or father of a child suffering a serious contagious illness, who holds the child’s hand, and comforts or kisses him or her goodnight.
On a charge of indecent assault, the prosecution has to prove that the touching of the complainant was without consent. It is sufficient for the issue that arises in this case to make clear that if the touching was with consent, then the fact that in the course of the consensual activity some bodily injury, even serious bodily injury, resulted accidentally and unintentionally, then as matter of principle no criminality can attach. It follows in our view that Savage was correctly decided in accordance with principle. We agree with the comments made by the late Professor Sir John Smith on this decision:
“The offence alleged was manslaughter by an unlawful and dangerous act. It was essential for the prosecution to prove that the injuries were caused by an unlawful act, a battery. Because no injury was intended (or, indeed, foreseen) and V consented to the acts done, the judge held that there was no battery. It is respectfully submitted that this is right. In Donovan and in Brown the injuries were intended and consent to the intentional inflection of injury was held to be no defence. Here there was no question of consenting to injury because the parties contemplated no injury.”
For the reasons we have given, the decision in Savage is not in any way inconsistent with the decisions in Donovan and Attorney-General’s Reference No 6 of 1980. However in each of those cases, it is clear that there was an intention to inflict injury; the issue raised in the present case and in Slingsby was not considered. However, one reading of Boyea, might suggest that the argument was apparently directed at the question of whether the test of foresight of injury was objective or subjective and that the Court might appear to have held that if there was an objective risk of harm there could be no consent. However we agree with the view of the decision expressed in Dica that “on close analysis, however, this case was decided on the basis that the victim did not in fact consent”. The issue therefore that arose in Slingsby and that arises in this appeal was not before the court in Boyea.
Our conclusion on the ruling made by the judge
We have no doubt but that counsel and the judge were all properly trying to narrow the issues in the case. However, at the time the judge made his ruling, on the assumption on which we have proceeded, it was the appellant’s case (1) that the complainant had consented to vigorous sexual activity which involved her desire to have him insert fingers into her anus and (2) that the very serious injury caused was as a result of her activity. It could not in the circumstances be correct to hold as a matter of law that consent was no defence either to the charge under s. 20 or the charge of indecent assault, absent the necessary mens rea for these offences.
There was an issue, given the appellant’s account, as to (1) whether he foresaw or was reckless to the risk of any harm and (2) whether the serious injury that followed was the unintentional and accidental result of consensual sexual activity. The fact that serious injury had in fact occurred, or was objectively likely, did not mean that there was no defence at the time the ruling was given, even though there was ample evidence on which the jury could have concluded that the appellant had the necessary intention to cause injury. The pleas were therefore made on a ruling which was incorrect and the convictions on counts 2 and 4, given the assumption on which we have proceeded, have to be quashed. In the circumstances, it was unnecessary for us to consider the further question as to whether it was only in the case of the deliberate infliction of actual bodily harm that consent was no defence; and whether the position was different if the defendant was only reckless as to causing actual bodily harm where the complainant consented to the risk of that level of harm.
II Count 3
The summing up
When the judge summed up the case, he made it clear to the jury that the only issues in relation to Count 3 were causation and whether the appellant intended to do her really serious bodily injury. On the issue of causation, he referred to the evidence of the prosecution expert who said that it was not possible for the injury to have been caused in the way the defendant had suggested, whereas the defence expert was in no doubt that it could have been. He directed the jury that they should convict only if they were sure that the prosecution expert was right on causation.
He then turned to the ingredients of the offence and directed the jury:
“The defendant admits causing injury to [the complainant] and he admits that the injury which he caused amounts to really serious injury. The complainant agreeing to what he did, if she agreed, cannot make what he did lawful, because of the injuries caused. So the only issue for you to decide on Count 3 is, whether the defendant intended to do her really serious injury at the time he caused that admittedly very serious injury.
You see the words “with intent to do her grievous bodily harm” … that question of intent is the difference between Counts 3 and 4 – Count 4 being a count to which he has pleaded guilty. There is that extra ingredient in Count 3.
Now it is important to remember in this case that an intention is not necessarily the same thing as a desire. The defendant’s desire or wish may have been sexual gratification. But if you are sure the defendant appreciated that really serious injury was a virtual certainty as a result of what he decided to do, then the necessary intention is proved.”
After giving a clear direction on the effect on proving the intention in the light of the drink and the GHB consumed by the appellant, he continued:
“How does the prosecution prove an intent? Well, you cannot look into a defendant’s mind. You have to look at all the circumstances and ask yourselves, are you sure you can draw the conclusion that the defendant formed that intention? And the prosecution case is that the defendant inserted something the size of a fist or greater into [the complainant]’s anus. And what the prosecution say, if you are sure that conclusion can be drawn, the further conclusion follows as a certainty- that is what the prosecution say – namely the defendant must have intended to do really serious injury. Whether you are sure you can draw those two conclusions is entirely a matter for you. …
Now it really comes to this on the facts of this case. You will convict the defendant of Count 3 if, but only if, you are sure of two things: first of all, and that [the prosecution expert]’s opinion is right, namely that it had to be something bigger than three fingers, which means rejecting [the defence expert]’s opinion; and secondly that, in addition to that, you are sure the defendant intended to do really serious injury.”
After summing up the evidence, he returned to the issue of causation and intention:
“So back to the crucial issue. As I have already said, the way the case has turned out, if [the complainant]’s injuries were or might have been caused as the defendant says, three fingers and four or five minutes of her jumping up and down on them, then you must acquit the defendant of the charge that you have to consider.
I make this obvious point: it is quite clear that on the vital issue there is no direct evidence from [the complainant], because she cannot remember, she had taken GHB provided by the defendant and, on the evidence, taken it willingly; though of course the defendant had to tell her what the effects were. You have heard that the defendant’s account of what happened; he was the only other person there.
The prosecution say that that the account just does not hold water, does not really make sense. One of the points they make – it is a matter for you to consider – is that to endure the pain that the injury must have inflicted she would have had to have been virtually unconscious, if not unconscious. It must be (say the prosecution) something bigger than three fingers. And, as I have said, if that is so, the defendant (argues the prosecution) must have intended really serious injury.”
Our conclusion on the summing up
In our judgment, the summing up made it very clear that it was for the jury to decide whether:
i) The injuries were caused by the insertion of the defendant’s fist into the complainant’s anus (the prosecution case) or by the vigorous movements of the complainant on the appellant’s fingers – The defence case). If the jury were not sure that the injuries were caused in the manner suggested by the prosecution, then he was to be acquitted.
ii) Whether the defendant intended to inflict really serious bodily injury. If they were not sure, he was to be acquitted.
These were clearly the issues in respect of Count 3. As was accepted and as is apparent from the decision in Brown, the judge rightly directed the jury that consent could not be a defence if the jury were sure about the prosecution case as to the causation of the injuries and that the appellant had intended to inflict really serious bodily injury. The fact that he had pleaded guilty to Counts 2 and 4 cannot in our view made no difference to the determination by the jury of the issues that were clearly put before them. The issues on Count 3 were quite different and left fairly to the jury.
Criticism was made of the passage which we have set out in paragraph 45 where the judge said that the defendant admitted he had caused the injuries. It was submitted that the judge was thereby not putting the issue of causation before the jury. However, as is evident from what we have set out in paragraphs 44 and 47, the judge made it very clear that causation was an issue for them to decide and that they were to acquit the appellant unless they were sure that the prosecution case was correct. All that the judge was doing in the passage criticised was reminding the jury that in fact the defendant did not dispute that the injuries had been caused by his engagement in sexual activity with the complainant; it is clear that the manner of causation was left to the jury.
We therefore saw no reason to doubt the safety of the conviction on Count 3 and dismissed the appeal on that Count.777
Dica, R. v
[2004] EWCA Crim 1103 (05 May 2004)
Lord Justice Judge:
This is an appeal by Mohammed Dica, with leave of the trial judge, against his conviction at Inner London Crown Court before HHJ Philpot and a jury on 14th October 2003 of two offences of causing grievous bodily harm, contrary to s.20 of the Offences Against the Person Act 1861. He was sentenced to consecutive sentences of 3 ½ years’ and 4 ½ years’ imprisonment, a total sentence of 8 years’ imprisonment. His appeal against sentence was referred to the full court by the Registrar.
The appeal raises issues of considerable legal and general public interest about the circumstances in which a defendant may be found guilty of a criminal offence as a result of infecting another person with a sexually transmitted disease. In the present case we are directly concerned with HIV. However we understand that there have been significant recent increases in the recorded rates of syphilis and gonorrhoea, and that a significant proportion of sexually active young women, and many young men, are infected with chlamydia. Accordingly, although we agreed to accept submissions from the Terence Higgins Trust, the George House Trust and the National AIDS Trust in relation to HIV, and some of the problems faced by those with this condition, for which we are grateful, the issues which arise in this appeal are not confined to that devastating disease.
The Facts
The facts relevant to this appeal can be summarised briefly.
The appellant was told in December 1995 that he was HIV positive. Appropriate medication was then started.
The first complainant, L, was born on 12th December 1966. She was a refugee from Somalia who arrived in the United Kingdom in November 1994. She said that she was first introduced to the appellant in 1997, and they subsequently met on a number of occasions. She explained that she was having matrimonial difficulties, and he told her that he had left his wife. The relationship between them developed from there.
According to L, when they had sexual intercourse, the appellant would say “Forgive me in the name of God”. He however insisted that they should not use protection, telling her that she could not become pregnant because he had undergone a vasectomy. After a time she experienced thrush and swollen glands. She eventually went to hospital where she was diagnosed HIV positive.
She was cross-examined at trial, when it was suggested that she might have contracted HIV from sources other than the appellant.
The second complainant was D. She met the appellant in December 2000. In February 2001 they had protected sexual intercourse, but on subsequent occasions during their relationship, sexual intercourse was unprotected. When she found that she was developing similar symptoms to those suffered by L, she sought medical advice. She was diagnosed as being HIV positive. Apart from the appellant, her only other sexual partner during the previous 18 years had been her husband.
The appellant was arrested on 11th July 2002. When cautioned, he replied, “I am terminally ill, and need to go to hospital today for an operation, I will tell you everything, I did it.” A few days later he was interviewed in the presence of his solicitor. He said that he had first met L in Kenya in 1988 and had a casual relationship with her. He had met her again in the United Kingdom. He had told her he was HIV positive when their relationship restarted, and she responded by saying that she thought that she was also infected. He said that she had been involved with between six and ten different men. In relation to D, he asserted that he had met her in 1994, when they had had a “one night stand”. The relationship resumed in 2001, when she knew that he was HIV positive. Thereafter he was charged, and after caution he replied, “I’ve understood.”
It is perhaps important to emphasise at the outset that the prosecution did not allege that the appellant had either raped or deliberately set out to infect the complainants with disease. Rather, it was alleged that when he had consensual sexual intercourse with them, knowing that he himself was suffering from HIV, he was reckless whether they might become infected. Thus, in the language of the counts in the indictment, he “inflicted grievous bodily harm” on them both.
It was not in dispute that at least on the majority of occasions, and with both complainants, sexual intercourse was unprotected. Recklessness, as such, was not in issue. If protective measures had been taken by the appellant that would have provided material relevant to the jury’s decision whether, in all the circumstances, recklessness was proved.
Although both women were willing to have sexual intercourse with the appellant, the prosecution’s case was that their agreement would never have been given if they had known of the appellant’s condition. The appellant would have contended that he told both women of his condition, and that they were nonetheless willing to have sexual intercourse with him, a case which in the light of the judge’s ruling, he did not support in evidence. The suggestion would have been strongly disputed by them both.
The Trial
At the end of the Prosecution case, Judge Philpot made two critical but distinct rulings. First, he concluded that notwithstanding the well-known decision by the Crown Cases Reserved in R v Clarence (1889) 22 QB 23, it was open to the jury to convict the appellant of the offences alleged in the indictment, on the basis that its standing as “an important precedent has been thoroughly undermined, and … provides no guidance to a (first) instance judge”. His second conclusion, which in a sense was more far-reaching, was that whether or not the complainants knew of the appellant’s condition, their consent, if any, was irrelevant and provided no defence. Accepting the Crown’s argument as advanced to him, the judge believed that the decision in the House of Lords in R v Brown & ors [1994] 1 AC 212 deprived the complainants “of the legal capacity to consent to such serious harm”.
Following that ruling the appellant elected not to give evidence, and the issue whether the complainants consented to have sexual intercourse with him knowing of his condition was not left to the jury.
Mr Carter-Manning QC, arguing the case on behalf of the appellant before this Court, contends that both these rulings were wrong in law. We must therefore examine them both. We have been fortunate that Professor John Spencer QC of Selwyn College, Cambridge, had, as a result of these convictions, published two articles in the New Law Journal of 12th and 26th March 2004, entitled “Liability for reckless infection”, which were of considerable assistance to us.
R v Clarence
Clarence had sexual intercourse with his wife when he knew, but she did not, that he was suffering from gonorrhoea. It was not suggested that he intended to cause her to become infected, and it was assumed that if she had known of the risk, she would not have had consensual sexual intercourse with him. In the result, she became infected with gonorrhoea, and accordingly suffered grievous bodily harm.
The indictment included two counts, the first alleging the infliction of grievous bodily harm, contrary to s.20 of the 1861 Act, and the second, assault occasioning actual bodily harm, contrary to s 47. The Recorder of London directed the jury that if the facts were proved the defendant could be convicted on either count, notwithstanding that the complainant was his wife. Clarence was convicted on both counts. By a majority of 9 to 4, his appeal was allowed. He had not committed an offence against either s.20 or s 47 of the 1861 Act. If Clarence remains authoritative, this case is indistinguishable and therefore this appellant should not have been convicted. His convictions, like Clarence’s, would have to be quashed.
In Clarence the main majority judgments were given by Wills and Stephen JJs. It is reasonable to infer that Manisty J agreed with them both, and Lord Coleridge CJ and Pollock B certainly agreed with both judgments, adding brief judgments of their own. The remainder of the majority, that is Matthew, AL Smith, Grantham JJs and Huddleston B expressly agreed with Stephen J.
Clarence has achieved notoriety as support for the proposition that a married woman is deemed to consent to sexual intercourse with her husband. A husband could not be indicted for rape of his wife. This “irrevocable privilege”, as Hawkins J described it, was finally identified as a fiction in R v R [1992] 1 AC 599. However the artificial notion that sexual intercourse forced on an unwilling wife by her husband was nevertheless bound in law to be treated as if it were consensual sexual intercourse permeated much of the reasoning of the majority, and was fundamental to the outcome in relation to both counts. For present purposes, it is sufficient to illustrate the impact of this artificial notion in relation to s 47 by considering Pollock B’s observations at p. 62:
“The second count charges an assault … I should be inclined to hold that … an assault must in all cases be an act which in itself is illegal and … I cannot assent to the proposition that there is any true analogy between the case of a man who does an act which in the absence of consent amounts to an indecent assault upon his niece, or any woman other than his wife, and the case of a man having connection with his wife. In the one case the act is, taken by itself, in its inception an unlawful act, and it would continue to be unlawful but for the consent. The husband’s connection with his wife is not only lawful, but it is in accordance with the ordinary condition of married life. … The wife as to the connection itself is in a different position from any other woman, for she has no right or power to refuse her consent.”
Many of the same considerations were thought to extend to the s.20 offence. Thus, for example, AL Smith J, having dealt with the assault issue on the basis of deemed matrimonial consent, turned to the offence under s.20, and went on:
“It appears to me that this offence cannot be committed unless an assault has in fact been committed, and indeed this has been so held …”
Both Wills and Stephen JJs made the same point, Stephen J noting that although the word “assault” did not appear in s.20,
“I think the words imply an assault and battery of which a wound or grievous bodily harm is the manifest immediate and obvious result.”
Both believed that this conclusion was supported by the decision in R v Taylor (1869) Law Rep. 1 CCR 194. Manisty J, in his very short judgment considered it “contrary to common sense” to describe what Clarence did as an assault, and from his judgment, it looks as though this robust assertion was meant to apply to both convictions.
S.20 of the Offences Against the Person Act 1861 provides:
“Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person either with or without any weapon or instrument, shall be guilty of a misdemeanour and being convicted thereof shall be liable … to imprisonment … for not more than five years.”
Wills J suggested that s.20,
“… clearly points to the infliction of direct and intentional violence, with a weapon, or the fist, or the foot, or any other part of the person, or in any other way not involving the use of a weapon as, for instance, by creating a panic at a theatre …”.
Without direct personal action of some kind, a conviction under s.20 would be wrong.
Stephen J thought that the section was dealing with,
“The direct causing of some grievous injury to the body itself with a weapon, as by a cut with a knife, or without a weapon, as by a blow with the fist, or by pushing a person down.”
He identified what seems to have been regarded as a crucial difference between the
“immediate and necessary connection between a cut or a blow and a wound or harm inflicted, and the uncertain and delayed operation of the act by which infection is communicated.”
It is perhaps significant that neither Wills nor Stephen JJs would have been prepared to accept that the administration of poison fell within the ambit of s.20 notwithstanding that grievous bodily harm was sustained.
Pollock B, consistently with both judgments, suggested that for the purposes of s.20, grievous bodily harm must represent:
“The natural consequence of some act in the nature of the blow, wound, or other violence which is in itself illegal, and not merely the result of conduct which is immoral and injurious by reason only of a fraud or breach of good faith; or to put the proposition in another form, ‘grievous bodily harm’ which is the ultimate effect of treachery in the doing of that which is not a ‘wounding or inflicting, etc, with or without any weapon or instrument,’ but is in the doing of an act of an entirely different character, is not within the terms of the statute.”
The requirement for an assault and an immediate connection between the violent action of the defendant and the onset of its consequences were plainly central to the decision that the conviction under s.20 should be quashed.
We have, so far, made no reference to any of the minority judgments. However we must now note the way in which Hawkins J approached the construction of s.20. He rejected the suggestion that bodily harm could not be “inflicted” unless it were brought about by an assault. He said:
“… the first count may be supported even assuming no assault to have been proved”.
He referred to the precise language of s 47 itself, commenting,
“Here it will be observed that where the legislature intends that an assault shall be the foundation of the offence, it says so in express terms. If in using the word ‘inflict’ in s.20 it had intended that it should be interpreted as ’caused by means of an assault’, s 47 would have been superfluous; for by merely substituting the word ‘actual’ for ‘grievous’ in s.20, the whole object of both sections would have been attained; for the punishment awarded in each is the same, and the ‘actual’ harm of necessity includes ‘grievous’ harm.”
After a lengthy analysis, he concluded
“These considerations lead me to the conclusion that the word ‘inflicted’ when used in the statute was not intended to be construed as involving an assault.”
Hawkins J’s minority view has now been vindicated. In R v Wilson (Clarence) [1984] AC 242, the House of Lords was considering the problem of convictions on alternative counts under s 6(3) of the Criminal Law Act 1967. It was necessary for the decision that the true ambit of s.20 of the 1861 Act should be considered. In the only detailed speech, with which each member of the House of Lords agreed, Lord Roskill made plain that notwithstanding the absence of an assault, a conviction under s.20 could nevertheless be sustained. He said in terms that “there can be an infliction of grievous bodily harm contrary to s.20 without an assault being committed”. This decision undermined, indeed destroyed, one of the foundations of the reasoning of the majority in Clarence, based on the view that an offence under s.20, like that under s 47, required an assault resulting in a wound or grievous bodily harm. This represented a major erosion of the authority of Clarence in relation to the ambit of s.20 in the context of sexually transmitted disease.
This process has continued. Since R v Chan-Fook [1994] 99 CAR 147, as approved in the House of Lords in R v Ireland: R v Burstow [1998] 1 CAR 177, it has been recognised that for the purposes of both s.20 and s 47 “bodily harm” includes psychiatric injury, and its effects. Although the impact of Chan-Fook is reflected in that now well-established principle, it is perhaps worth noticing that
“… an injury can be caused to someone by injuring their health; an assault may have the consequence of infecting the victim with a disease or causing the victim to become ill. The injury may be internal and may not be accompanied by any external injury …” (per Hobhouse LJ at p. 151)
This language, reflecting contemporary ideas, is entirely contrary to the reasoning adopted by the majority in Clarence. In argument in the House of Lords in Ireland and Burstow, Chan-Fook was strongly criticised. The challenge was robustly rejected. The ruling was said by Lord Steyn to mark “a sound and essential clarification of the law”. As he explained, the statute of 1861 was “always speaking”, and the ambit of the offences in ss 18, 20 and 47 had to be considered in circumstances which were never envisaged by the majority in R v Clarence.
In R v Ireland: R v Burstow, much argument also centred around the difference between the concept of inflicting grievous bodily harm in s.20 and causing it in s 18. Lord Steyn recognised that the two words, “inflict” and “cause”, are not synonymous. In relation to Clarence, he acknowledged that the possibility of inflicting or causing psychiatric injury would not then have been in contemplation, whereas nowadays it is. In his view the infliction of psychiatric injury without violence could fall within the ambit of s.20. Lord Steyn described Clarence as a “troublesome authority”, and in the specific context of the meaning of “inflict” in s.20 said expressly that Clarence “no longer assists”. Lord Hope similarly examined the consequences of the use of the word “inflict” in s.20 and “cause” in s 18. He concluded that for practical purposes, and in the context of a criminal act, the words might be regarded as interchangeable, provided it was understood that “inflict” implies that the consequence to the victim involved something detrimental or adverse.
Such differences as may be discerned in the language used by Lord Steyn and Lord Hope respectively do not obscure the fact that this decision confirmed that even when no physical violence has been applied, directly or indirectly to the victim’s body, an offence under s.20 may be committed. Putting it another way, if the remaining ingredients of s.20 are established, the charge is not answered simply because the grievous bodily harm suffered by the victim did not result from direct or indirect physical violence. Whether the consequences suffered by the victim are physical injuries or psychiatric injuries, or a combination of the two, the ingredients of the offence prescribed by s.20 are identical. If psychiatric injury can be inflicted without direct or indirect violence, or an assault, for the purposes of s.20 physical injury may be similarly inflicted. It is no longer possible to discern the critical difference identified by the majority in Clarence, and encapsulated by Stephen J in his judgment, between an “immediate and necessary connection” between the relevant blow and the consequent injury, and the “uncertain and delayed” effect of the act which led to the eventual development of infection. The erosion process is now complete.
In our judgment, the reasoning which led the majority in Clarence to decide that the conviction under s.20 should be quashed has no continuing application. If that case were decided today, the conviction under s.20 would be upheld. Clarence knew, but his wife did not know, and he knew that she did not know that he was suffering from gonorrhoea. Nevertheless he had sexual intercourse with her, not intending deliberately to infect her, but reckless whether she might become infected, and thus suffer grievous bodily harm. Accordingly we agree with Judge Philpot’s first ruling, that notwithstanding the decision in Clarence, it was open to the jury to convict the appellant of the offences alleged in the indictment.
Consent
We express no opinion, either way, whether the complainants did or did not have the requisite knowledge. That will be decided hereafter. For present purposes we have to address both possibilities, assuming for the purposes of the argument only that either may be correct, and bearing in mind that in this context the crucial question is whether the complainants were consenting to the risk of infection with HIV.
(a) The Crown’s case
Concealment of the truth by the appellant
The judgments of the majority in Clarence included considerable discussion about the issue of fraud (in the sense of concealment), and the consequences if consent were vitiated. Again, however, the observations have to be put into the context of the perceived requirement that in the absence of an assault Clarence could not be guilty of the s.20 offence, and the deemed consent of the wife to have sexual intercourse with her husband. To illustrate the reasoning, two lengthy passages in the judgments must be cited.
Wills J suggested, at p. 27:
“That consent obtained by fraud is no consent at all is not true as a general proposition either in fact or in law. If a man meets a woman in the street and knowingly gives her bad money in order to procure her consent to intercourse with him, he obtains her consent by fraud, but it would be childish to say that she did not consent.”
Later, at p. 33 he added:
“If intercourse under the circumstances now in question constitute an assault on the part of the man, it must constitute rape … it seems a strange misapplication of language to call such a deed as that under consideration either a rape or an assault. The essence of a rape is, to my mind, the penetration of the woman’s person without her consent … if coition, under the circumstances in question, be an assault, and if the reason why it is an assault depends on any degree upon the fact that consent would have been withheld if the truth had been known, it cannot the less be an assault because no mischief then ensues to the woman, nor indeed where it is merely uncertain whether the man be infected or not ….”.
Stephen J addressed the issue of the defendant’s failure to tell his wife about his condition, and at p. 42 stated:
“The question here is whether there is an assault. It is said there is none, because the woman consented, and to this it is replied that fraud vitiates consent and that the prisoner’s silence was a fraud. …”
He continued at p. 43,
“Is the man’s concealment of the fact that he was infected such a fraud as vitiated the wife’s consent to his exercise of marital rights, and converted the act of connection into an assault? It seems to me that the proposition that fraud vitiates consent in criminal matters is not true if taken to apply in the fullest sense of the word, and without qualification …”
At p. 44 he went on:
“…. The only sorts of fraud which so far destroy the effect of a woman’s consent as to convert a connection consented to in fact into a rape are frauds as to the nature of the act itself, or as to the identity of the person who does the act. There is abundant authority to show that such frauds as these vitiate consent both in the case of rape and in the case of indecent assault. I should myself prefer to say that consent in such cases does not exist at all, because the act consented is not the act done.”
“… the woman’s consent here was as full and conscious as consent could be. It was not obtained by any fraud either as to the nature of the act or as to the identity of the agent. The injury done was done by a suppression of the truth. It appears to me to be an abuse of language to describe such an act as an assault.”
Clarence did not face a charge of rape or indecent assault, yet the concept of his wife’s notional consent to the act of sexual intercourse was inextricably linked with the quashing of his convictions for offences of violence. He was not charged with an offence under s 3(2) of the Criminal Law Amendment Act 1885, until recently, s 3 of the Sexual Offences Act 1956, and now in slightly different terms, s 4 of the Sexual Offences Act 2003. S 3(2) of the 1885 Act, enacted shortly before the decision in Clarence, provided that:
“Any person who … by false pretences or false representations procures any woman … to have unlawful carnal connexion … shall be guilty of a misdemeanour.”
In short, by 1885, quite separately from rape, it was already unlawful to procure sexual intercourse by deception. This provision was not considered in Clarence, no doubt because he was not charged with the offence, and presumably because on the then understanding of the principle of matrimonial privilege, sexual intercourse by a husband with his wife could never be unlawful.
The present case is concerned with and confined to s.20 offences alone, without the burdensome fiction of deemed consent to sexual intercourse. The question for decision is whether the victims’ consent to sexual intercourse, which as a result of his alleged concealment was given in ignorance of the facts of the appellant’s condition, necessarily amounted to consent to the risk of being infected by him. If that question must be answered “Yes”, the concept of consent in relation to s.20 is devoid of real meaning.
The position here is analogous to that considered in R v Tabassum [2000] 2 CAR 328. The appellant was convicted of indecently assaulting women who allowed him to examine their breasts in the mistaken belief that he was medically qualified. Rose LJ considered Clarence, and pointed out that in relation to the infection suffered by the wife, this was an additional, unexpected, consequence of sexual intercourse, which was irrelevant to her consent to sexual intercourse with her husband. Rejecting the argument that an “undoubted consent” could only be negatived if the victim had been deceived or mistaken about the nature and quality of the act, and that consent was not negatived “merely because the victim would not have agreed to the act if he or she had known all the facts”, Rose LJ observed, in forthright terms, “there was no true consent”. Again, in R v Cort [2003] 3 WLR 1300, a case of kidnapping, the complainants had consented to taking a ride in a motor car, but not to being kidnapped. They wanted transport, not kidnapping. Kidnapping may be established by carrying away by fraud.
“It is difficult to see how one could ever consent to that once fraud was indeed established. The ‘nature’ of the act here is therefore taking the complainant away by fraud. The complainant did not consent to that event. All that she consented to was a ride in the car, which in itself is irrelevant to the offence and a different thing from that with which Mr Cort is charged.”
In our view, on the assumed fact now being considered, the answer is entirely straightforward. These victims consented to sexual intercourse. Accordingly, the appellant was not guilty of rape. Given the long-term nature of the relationships, if the appellant concealed the truth about his condition from them, and therefore kept them in ignorance of it, there was no reason for them to think that they were running any risk of infection, and they were not consenting to it. On this basis, there would be no consent sufficient in law to provide the appellant with a defence to the charge under s.20.
(b) The Defence Case
The victims’ knowledge
We must now address the consequences if, contrary to their own assertions, the complainants knew of the state of the appellant’s health, and notwithstanding the risks to their own, consented to sexual intercourse. Following Judge Philpot’s second ruling, this issue was not considered by the jury. In effect the judge ruled that in law such consent (if any) was irrelevant. Having listened to the exchanges on this topic between Mr Carter-Manning QC for the appellant, and the court, and on further reflection, Mr Gadsden for the Crown accepted that this issue should not have been withdrawn from the jury. Although we can take the issue relatively briefly, we must explain why this concession was right.
As a general rule, unless the activity is lawful, the consent of the victim to the deliberate infliction of serious bodily injury on him or her does not provide the perpetrator with any defence. Different categories of activity are regarded as lawful. Thus no-one doubts that necessary major surgery with the patient’s consent, even if likely to result in severe disability (e.g. an amputation) would be lawful. However the categories of activity regarded as lawful are not closed, and equally, they are not immutable. Thus, prize fighting and street fighting by consenting participants are unlawful: although some would have it banned, boxing for sport is not. Coming closer to this case, in Bravery v Bravery [1954] 3 All ER 59, Denning LJ condemned in the strongest terms, and as criminal, the conduct of a young husband who, with the consent of his wife, underwent a sterilisation operation, not so as to avoid the risk of transmitting a hereditary disease, or something similar, but to enable him to “have the pleasure of sexual intercourse without shouldering the responsibilities attaching to it”. He thought that such an operation, for that reason, was plainly “injurious to the public interest”. This approach sounds dated, as indeed it is. Denning LJ’s colleagues expressly and unequivocally dissociated themselves from it. However, judges from earlier generations, reflecting their own contemporary society, might have agreed with him. We have sufficiently illustrated the impermanence of public policy in the context of establishing which activities involving violence may or may not be lawful.
The present policy of the law is that, whether or not the violent activity takes place in private, and even if the victim agrees to it, serious violence is not lawful merely because it enables the perpetrator (or the victim) to achieve sexual gratification. Judge Philpot was impressed with the conclusions to be drawn from the well-known decision in R v Brown [1994] 1 AC 212. Sado-masochistic activity of an extreme, indeed horrific kind, which caused grievous bodily harm, was held to be unlawful, notwithstanding that those who suffered the cruelty positively welcomed it. This decision of the House of Lords was supported in the ECtHR on the basis that although the prosecution may have constituted an interference with the private lives of those involved, it was justified for the protection of public health (Laskey v United Kingdom [1997] 24 EHRR 34).
The same policy can be seen in operation in R v Donovan [1934] 2 KB 498, where the violence was less extreme and the consent of the victim, although real, was far removed from the enthusiastic co-operation of the victims in Brown.
R v Boyea [1992] 156 JPR 505 represents another example of the application of the principle in Donovan. If she consented to injury by allowing the defendant to put his hand into her vagina and twist it, causing, among other injuries, internal and external injuries to her vagina and bruising on her pubis, the woman’s consent (if any) would have been irrelevant. Recognising that social attitudes to sexual matters had changed over the years, a contemporaneous approach to these matters was appropriate. However, “the extent of the violence inflicted … went far beyond the risk of minor injury to which, if she did consent, her consent would have been a defence”. On close analysis, however, this case was decided on the basis that the victim did not in fact consent.
In R v Emmett (unreported, 18th June 1999), as part of their consensual sexual activity, the woman agreed to allow her partner to cover her head with a plastic bag, tying it tightly at the neck. On a different occasion, she agreed that he could pour fuel from a lighter onto her breasts and set fire to the fuel. On the first occasion, she was at risk of death, and lost consciousness. On the second, she suffered burns, which became infected. This Court did not directly answer the question posed by the trial judge in his certificate, but concluded that Brown demonstrated that the woman’s consent to these events did not provide a defence for her partner.
These authorities demonstrate that violent conduct involving the deliberate and intentional infliction of bodily harm is and remains unlawful notwithstanding that its purpose is the sexual gratification of one or both participants. Notwithstanding their sexual overtones, these cases were concerned with violent crime, and the sexual overtones did not alter the fact that both parties were consenting to the deliberate infliction of serious harm or bodily injury on one participant by the other. To date, as a matter of public policy, it has not been thought appropriate for such violent conduct to be excused merely because there is a private consensual sexual element to it. The same public policy reason would prohibit the deliberate spreading of disease, including sexual disease.
In our judgement the impact of the authorities dealing with sexual gratification can too readily be misunderstood. It does not follow from them, and they do not suggest, that consensual acts of sexual intercourse are unlawful merely because there may be a known risk to the health of one or other participant. These participants are not intent on spreading or becoming infected with disease through sexual intercourse. They are not indulging in serious violence for the purposes of sexual gratification. They are simply prepared, knowingly, to run the risk – not the certainty – of infection, as well as all the other risks inherent in and possible consequences of sexual intercourse, such as, and despite the most careful precautions, an unintended pregnancy. At one extreme there is casual sex between complete strangers, sometimes protected, sometimes not, when the attendant risks are known to be higher, and at the other, there is sexual intercourse between couples in a long-term and loving, and trusting relationship, which may from time to time also carry risks.
The first of these categories is self-explanatory and needs no amplification. By way of illustration we shall provide two examples of cases which would fall within the second.
In the first, one of a couple suffers from HIV. It may be the man: it may be the woman. The circumstances in which HIV was contracted are irrelevant. They could result from a contaminated blood transfusion, or an earlier relationship with a previous sexual partner, who unknown to the sufferer with whom we are concerned, was himself or herself infected with HIV. The parties are Roman Catholics. They are conscientiously unable to use artificial contraception. They both know of the risk that the healthy partner may become infected with HIV. Our second example is that of a young couple, desperate for a family, who are advised that if the wife were to become pregnant and give birth, her long-term health, indeed her life itself, would be at risk. Together the couple decide to run that risk, and she becomes pregnant. She may be advised that the foetus should be aborted, on the grounds of her health, yet, nevertheless, decide to bring her baby to term. If she does, and suffers ill health, is the male partner to be criminally liable for having sexual intercourse with her, notwithstanding that he knew of the risk to her health? If he is liable to be prosecuted, was she not a party to whatever crime was committed? And should the law interfere with the Roman Catholic couple, and require them, at the peril of criminal sanctions, to choose between bringing their sexual relationship to an end or violating their consciences by using contraception?
These, and similar risks, have always been taken by adults consenting to sexual intercourse. Different situations, no less potentially fraught, have to be addressed by them. Modern society has not thought to criminalise those who have willingly accepted the risks, and we know of no cases where one or other of the consenting adults has been prosecuted, let alone convicted, for the consequences of doing so.
The problems of criminalising the consensual taking of risks like these include the sheer impracticability of enforcement and the haphazard nature of its impact. The process would undermine the general understanding of the community that sexual relationships are pre-eminently private and essentially personal to the individuals involved in them. And if adults were to be liable to prosecution for the consequences of taking known risks with their health, it would seem odd that this should be confined to risks taken in the context of sexual intercourse, while they are nevertheless permitted to take the risks inherent in so many other aspects of everyday life, including, again for example, the mother or father of a child suffering a serious contagious illness, who holds the child’s hand, and comforts or kisses him or her goodnight.
In our judgement, interference of this kind with personal autonomy, and its level and extent, may only be made by Parliament.
This, and similar questions, have already been canvassed in a number of different papers. These include the efforts made by the Law Commission to modernise the 1861 Act altogether, and replace it with up to date legislation. In relation to sexually transmitted disease, much of the discussion initially focussed on the decision in Clarence, and its perceived consequences, which as we have now concluded is entirely bereft of any authority in relation to s.20 of the 1861 Act. In its report Non-Fatal Offences Against the Person No. 218 (1993), the Law Commission expressed the view that intentional or reckless transmission of disease should be capable of constituting an offence against the person (para 15.15-15.17). A second publication, Law Commission Consultation Paper No. 139 (1995) made a provisional proposal that precluded a defence of consent for the proposed offence of recklessly causing seriously disabling injury (para. 4.46-4.51). In 1998, in response to the activities of the Law Commission, the Home Office issued a consultation paper entitled Reforming the Offences Against the Person Act 1861. In this paper, the Home Office indicated that the Government had not accepted the recommendation that there should be offences to enable the intentional or reckless transmission of disease to be prosecuted. It pointed out that the issue had ramifications going beyond the criminal law into wider considerations of social and public health policy. It stated that the Government “is particularly concerned that the law should not seem to discriminate against those who are HIV positive, have AIDS or viral Hepatitis or who carry any kind of disease”. It then went on to say that there is a strong case for arguing that society should have criminal sanctions available for use to deal with evil acts, and that it was hard to argue that the law should not be able to deal with the person who gives the disease causing serious illness to others with intent to do them such harm. It then proposed that the criminal law should apply only to those whom it can be proved beyond reasonable doubt had deliberately transmitted a disease, intending to cause serious injury. It added “this aims to strike a sensible balance between allowing very serious intentional acts to be punished while not rendering individuals liable for prosecution of unintentional or reckless acts or for the transmission of minor disease” (see paras 3.13-318). On this approach it would seem that the policy at that stage would have been to criminalise conduct of the nature we are considering when it fell within s 18 of the 1861 Act, but not when it falls within s.20. In the Law Commission’s report in 2000, Consent in Sex Offences, no view was expressed on this topic, but it was assumed that any forthcoming legislation would not impose criminal liability for recklessly communicating HIV or other disease.
We have taken note of the various points made by the interested organisations. These include the complexity of bedroom and sex negotiations, and the lack of realism if the law were to expect people to be paragons of sexual behaviour at such a time, or to set about informing each other in advance of the risks or to counsel the use of condoms. It is also suggested that there are significant negative consequences of disclosure of HIV, and that the imposition of criminal liability could have an adverse impact on public health because those who ought to take advice, might be discouraged from doing so. If the criminal law was to become involved at all, this should be confined to cases where the offender deliberately inflicted others with a serious disease.
In addition to this material our attention has been drawn to the decisions in R v Mwai [1995] 3 NZLR 149, a decision of the Court of Appeal in New Zealand, and R v Cuerrier [1998] 27 CCC (3d) 1, in the Supreme Court of Canada. Both cases arose out of legislative provisions different to our own. Nevertheless, if we may say so, the judgments were illuminating, not least in the context of the views expressed in Cuerrier, which were inconsistent with some of the arguments put to us by the interested organisations. We also notice Professor Spencer’s illuminating conclusion on the question of recklessness. “To infect an unsuspecting person with a grave disease you know you have, or may have, by behaviour that you know involves a risk of transmission, and that you know you could easily modify to reduce or eliminate the risk, is to harm another in a way that is both needless and callous. For that reason, criminal liability is justified unless there are strong countervailing reasons. In my view there are not.”
Although we have considered these judgments, and the remaining material to which our attention was drawn, in this Court we are concerned only to decide what the law is now, and in this jurisdiction. Having done so, it is for Parliament if it sees fit, to amend the law as we find it to be.
In Judge Philpot’s second ruling, he accepted the Crown’s argument that the possible consent of the victims was irrelevant. That position, as we have already explained, was not maintained by the Crown before us. For the reasons we have now given, the ruling was wrong in law.
Conclusion
We repeat that the Crown did not allege, and we therefore are not considering the deliberate infection, or spreading of HIV with intent to cause grievous bodily harm. In such circumstances, the application of what we may describe as the principle in Brown means that the agreement of the participants would provide no defence to a charge under s 18 of the 1861 Act.
The effect of this judgment in relation to s.20 is to remove some of the outdated restrictions against the successful prosecution of those who, knowing that they are suffering HIV or some other serious sexual disease, recklessly transmit it through consensual sexual intercourse, and inflict grievous bodily harm on a person from whom the risk is concealed and who is not consenting to it. In this context, Clarence has no continuing relevance. Moreover, to the extent that Clarence suggested that consensual sexual intercourse of itself was to be regarded as consent to the risk of consequent disease, again, it is no longer authoritative. If however, the victim consents to the risk, this continues to provide a defence under s.20. Although the two are inevitably linked, the ultimate question is not knowledge, but consent. We shall confine ourselves to reflecting that unless you are prepared to take whatever risk of sexually transmitted infection there may be, it is unlikely that you would consent to a risk of major consequent illness if you were ignorant of it. That said, in every case where these issues arise, the question whether the defendant was or was not reckless, and whether the victim did or did not consent to the risk of a sexually transmitted disease is one of fact, and case specific.
In view of our conclusion that the trial judge should not have withdrawn the issue of consent from the jury, the appeal is allowed. Notwithstanding the arguments to the contrary, we unhesitatingly order a retrial, which should take place at the earliest possible date. Subject to witness convenience and availability, appropriate arrangements are in hand for a trial in early June before a High Court Judge at Inner London Crown Court. In these circumstances we shall not address the issue of sentence.
Konzani, R v
[2005] EWCA Crim 706 (17 March 2005)
Lord Justice Judge:
This is an appeal by Feston Konzani against his conviction on 14th May 2004 in the Crown Court at Teesside, before His Honour Judge Fox QC and a jury, on three counts of inflicting grievous bodily harm on three different women, contrary to s 20 of the Offences Against the Person Act 1861. On the judge’s direction he was acquitted of a further such count involving a fourth woman.
He was sentenced to a total of 10 years’ imprisonment on count 2, 4 years’ imprisonment on count 3, 3 years’ imprisonment, and on count 4, 3 years’ imprisonment, all the sentences to run consecutively. His application for leave to appeal against sentence was referred to the Full Court.
The appellant was born in February 1976. In November 2000, the appellant was informed that he was HIV positive. On that occasion, and on subsequent occasions, he was specifically informed of the risks of passing the infection on to any sexual partners, and its dire consequences. Thereafter he had sexual relationships the three complainants. He did not tell any of them that he was HIV positive, and he repeatedly had unprotected sexual intercourse with them, knowing, that by doing so, he might pass the infection on to them. In consequence, each contracted the HIV virus.
The appellant did not give evidence at trial. He called no witnesses. There was no evidence to contradict the clear statements by each complainant that he had not told them of his condition. It was however formally admitted on his behalf that he acted recklessly by having a sexual relationship with the complainants without using a condom every time he had sexual intercourse with them. It was also admitted that he infected them with the HIV virus, thus inflicting grievous bodily harm on them.
Notwithstanding their evidence that he withheld vital information about his condition from them, and that each complainant expressly denied that she consented to the risk of catching the HIV virus from him, counsel on his behalf addressed the jury on the basis that by consenting to unprotected sexual intercourse with him, they were impliedly consenting to all the risks associated with sexual intercourse. He argued that as infection with the HIV virus may be one possible consequence of unprotected sexual intercourse, the complainants had consented to the risk of contracting the HIV virus from him. Accordingly he should be acquitted. By their verdicts, the jury found that none of the complainants consented to the risk of contracting the HIV virus.
The significant aspect of the appeal relates to the accuracy in law of the judge’s direction to the jury on the issue of consent. We must, however, examine the essential facts in a little more detail.
DH
The first complainant was DH. She met the appellant in 2001, when she was 15 years old, when she bumped into him as she was walking down the street. He invited her and two friends, aged 14 years, to a party given by his sister. At the party, the appellant told her that he liked her because she was the eldest of the 3 girls.
She saw him a week later, and he asked her to become his girlfriend. She was a virgin. She had sexual intercourse with him. She moved into a house with him. Sexual intercourse took place regularly. She did not have sexual intercourse with anyone else. When they had sexual intercourse he did not use a condom, and ejaculated inside her.
There was no discussion about the potential risks, and to begin with she was not even worried about the danger of pregnancy. After two or four weeks, she returned home to her mother. She climbed out of a kitchen window and did not return.
After her relationship with the appellant, she had two sexual partners. Both were later tested for HIV, and both tested negative. Thereafter she saw the appellant on a couple of occasions, but ran away from him when she did. At Christmas 2001, she had a blood test, and discovered that she was HIV positive. The appellant had never told her that he was HIV positive. When she found out about her condition, she started crying. She wanted to die.
She said that at the time of the relationship she knew about the risks of pregnancy, and indeed of contracting a disease, but the risk of catching HIV never entered her mind.
We must refer to the transcript of her evidence. She was asked:
“Q. At any time when you were with Feston or after you were with Feston, did he tell you that he was HIV positive?
A. No.
…
A. Then my doctor came round and told me I was HIV positive.
Q. How did that make you feel?
A. I wanted to die.”
When cross-examined the following exchanges occurred:
“Q. Did they tell you anything about HIV? Did you know anything about Aids?
A. No.
Q. Either from those lessons at school or from what you have heard on the news?
A. Erm well, they told us about it at school but I didn’t really get to grips with what it was about
…
Q. And were you aware that there is an Aids problem in Africa?
A. Not really, no. …
Q. What did you know about him before you agreed to have sex with him?
A. Not much …
Q. Did you realise you were taking a risk of becoming pregnant.
A. Yeah.
Q. Were you prepared to take that risk?
A. Yeah.
Q. Did you realise you were taking a risk of catching a disease?
A. Yeah.
Q. And were you prepared to take that risk? …
A. Yes, I was, yeah.”
In re-examination she was asked:
“Q. When you were having sex with Feston did you think at any time there was a risk of you catching a serious sexually transmitted disease?
A. No. If I’d have known that I wouldn’t have went with him.
Q. You said a little bit about how you feel, having found out that you have HIV.
A. Yeah.
Q. Have you done anything as a result of it?
A. I was self-harming.
Q. You were self-harming. What do you mean by that?
A. I was cutting my arms.
Q. Do you know why you did that?
A. Because it took the anger and pain. I couldn’t exactly go down the road and punch Feston.”
RW
The second complainant was RW. She gave evidence that she was from Kenya. She first met the appellant in December 2002, in church. He told her that he was from Malawi. They talked about the Bible. They planned to meet for a prayer meeting. They became friends. She eventually moved in to live with the appellant, and they became lovers.
Sexual intercourse occurred on many occasions, sometimes protected, sometimes not. She said that she was not concerned about having unprotected sex with the appellant because she trusted him. He did not tell her he was HIV positive.
Gradually the relationship deteriorated. She became pregnant. They separated. When she went to see the doctor to confirm the positive result of her own home pregnancy test, she was told that she was both pregnant and HIV positive. She was devastated.
She was 27 years old, and aware of the Aids problem in Kenya and Malawi. She and the appellant never discussed contraception. Later she gave birth to their child who was HIV negative. She agreed in evidence that she realised that she had taken the risk of catching an infection, including HIV, but said that she had not thought about the risk of having unprotected sex with him at the time. She was not concerned because she trusted him. He did not tell her that he was HIV positive.
Again, we must refer to some passages in the transcript of RW’s evidence.
“Q. When Feston didn’t wear condoms were you concerned about any risks?
A. No.
Q. Why weren’t you concerned?
A. I trusted him.
Q. Did Feston tell you he was HIV positive?
A. No.”
Cross-examined it was put to her that:
“Q. You also realise that by having unprotected sex you risk catching an infection?
A. Yes …
Q. … That too is a risk that you took.
A. Yes.
Q. That risk included the risk of contracting HIV didn’t it?
A. Yes, but I didn’t think about it at the moment.
…
Q. That means at the time you had unprotected sex?
A. Yes. …
Q. But there was no discussion about HIV or tests or anything before you had sex?
A. Yes.
Q. You agree that there was no discussion?
A. Yes.”
LH
The third complainant was LH. She was a voluntary worker who did community work related to Africa. She had a 4 year old son, who suffered a life-threatening condition which was countered by very high levels of hygiene. Before she met the appellant, she and her child’s father had both had blood tests. They were HIV negative.
She met the appellant through her work in January 2003. She was attracted to him. She told him about her ambition to help orphans in Africa. He told her that HIV was not very common in the part of Africa from which he came. He did not tell her that he was HIV positive. Their friendship developed into a sexual relationship. The first time they had sexual intercourse he used a condom. Afterwards she joked, “I hope you haven’t got any disease”, to which he replied, “Don’t be stupid”. She said that she trusted him.
As the relationship developed, he stopped using condoms. She said that she did not think that she had a responsibility to ask the appellant whether he had an Aids test. She thought it was his responsibility to tell her. When the relationship came to an end, she took an HIV test which was positive. She was devastated, particularly because of its likely impact on her son.
She said that if she had known the appellant was HIV positive, she would have sought medical advice on how best to protect herself and her son. Given his condition she was particularly keen to avoid any serious infection.
Her evidence in a little more detail includes the following passages. During her evidence in chief she was asked:
“Q. Did you have any conversations with Feston after that [the first occasion of sexual intercourse]?
A. Yes. I says to him, joking, joking, I said, ‘I hope you haven’t got any diseases’.
Q. And what did he say?
A. He said, ‘Don’t be stupid’.
…
Q. What was the upshot of the conversations you had after he stopped using condoms?
A. Just generally like before, about the children in Africa and people living with HIV and Aids, the effect it has on people and how we can help and just general, general discussions.”
LH explained how the appellant was arrested after their relationship had come to an end. She was asked her reaction when she heard about the allegations against him. She said that she freaked out.
When cross-examined, she was asked:
“Q. Did you ask him if he had an HIV test before having unprotected sex with him?
A. No.
Q. Why was that?
A. Because if somebody’s got HIV then as an individual I would expect them to tell me the same way I would tell them.
…
Q. Did it not occur to you to ask him if he had ever had a test for HIV?
A. No.
Q. But you were actually on the subject of talking about HIV in Africa. Would it have been easy for you to ask him if he …
A. No, it would have been easier for him to tell me. That’s what I think. He had … I didn’t have the responsibility to ask him. He had the responsibility to tell me.
…
Q. So if you had known that he was HIV positive you would have continued to have a sexual relationship with him.
A. No. I would have went to the hospital and got advice before I done anything. That’s what I would have done. I would have seeked medical advice to see what I needed to do to protect myself and what I needed to do to protect him and what I needed to do if anything to protect my son.
…
Q. Had you had unprotected sexual intercourse after being diagnosed HIV positive?
A. No, protected sex.”
When re-examined she was asked:
“Q. Did you think that when you had unprotected sex … that there was a risk of you catching a serious sexually related disease?
A. No, never.”
Arrest
After his arrest, the appellant was interviewed by the police. Initially, he refused to answer any questions about DH, but eventually asserted that she had never stayed at his house, and that she did not know him by his first name, Feston. When it was suggested to him that DH had lived with him and that they had had a sexual relationship, he replied “I think this entire thing is a complete lie”. When asked about RW, he declined to answer most of the questions. He did however state that he had had sexual intercourse with her without a condom because “The entire sex thing had happened so fast”. He declined to answer any further questions about the relationship. When interviewed about LH, he refused to answer any questions at all.
So far as all three complainants was concerned, when he was asked whether any one of them would have had sexual intercourse with him if she had known that he was HIV positive, he refused to comment. He never suggested that he believed that any of the complainants consented to the risk of contracting HIV from him.
Complaint was made in the grounds of appeal about the directions given by the judge arising from these interviews, and the appellant’s responses. This ground of appeal was abandoned. We can conveniently deal with a further ground of appeal, a complaint that the judge erred when he directed the jury that they could draw adverse inferences against the appellant from his failure to give evidence. We have examined the judge’s direction. The judge highlighted the reasons why Mr Roberts contended before the jury that adverse inferences should not be drawn against his client, and gave accurate directions appropriate to the factual context. This ground fails.
Julian Kotze
Evidence was given by Julian Kotze.
This witness told the jury that when he learned that he was HIV positive, the appellant had spoken in terms of eradicating women. Objection was taken to the admissibility of the evidence. The judge ruled that it was relevant to the issue of recklessness. It would also have been relevant to the submission that the jury should consider whether the appellant had an honest belief in the complainant’s consent. As we shall see, the judge declined to leave that issue to the jury, and once recklessness was admitted, Kotze’s evidence had no further relevance. No reference was made to it in the summing up, and given the single issue before the jury, which related exclusively to the state of mind of the complainants, rightly so.
Consent
Referring to HIV, the judge directed the jury that they had to be sure that the complainant in each individual case:
“… did not willingly consent to the risk of suffering that infection. Note that I use the phrase ‘to the risk of suffering that infection’ and not merely just ‘to suffering it’. That is an important point which Mr Roberts rightly drew to your attention in his speech to you this morning. He put it this way, it is whether she consented to that risk, not consented to being given the disease which is, as he put it graphically, a mile away from the former. That is right, but note that I use the word ‘willingly’ in the phrase ‘willingly consent’, and I did that to highlight that the sort of consent I am talking about means consciously.”
He returned to the clear and important distinction between “running a risk on one hand and consenting to run that risk on the other”, pointing out that the prosecution had to establish that the complainant “did not willingly consent to the risk of suffering the infection in the sense of her having consciously thought about it at the time and decided to run it”. He added that the appellant should be acquitted, if, in relation to any complainant, she had thought of the risk of getting HIV, and nevertheless decided to take the risk. In answer to a question from the jury, he returned to emphasise that before the appellant could be convicted, the prosecution had to prove that she “did not willingly consent to the risk of suffering that infection”, and he repeated that for the purposes of his direction, “willingly” meant “consciously”. He again repeated the distinction between “running a risk on the one hand and consenting to run that risk on the other”, adding that the “willing” consent involved knowing the implications of infection with the HIV virus.
In short, the judge explained that before the consent of the complainant could provide the appellant with a defence, it was required to be an informed and willing consent to the risk of contracting HIV.
Mr Timothy Roberts QC submitted first, that the judge wrongly declined to leave to the jury the issue whether the appellant may have had an honest, even if unreasonable belief, that the complainant was consenting to the risk of contracting the HIV virus, and second, that he misdirected the jury on the issue of consent as it applied to the present case. Notwithstanding the express and uncontradicted evidence of the complainants, he submitted that as a matter of inference the appellant may have had an honest, even if unreasonable belief, that the complainant was consenting, simply because she had sexual intercourse with him in the circumstances in which she did, and so accepted all possible consequent risks. To support his submission he referred to the decisions of this Court in Jones [1986] 83 CAR 375 and Aitken [1993] 95 CAR 304. In Jones the trial 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. Aitken was another situation involving robust, high-spirited, “horseplay” which resulted in serious injury. We cannot improve on the analysis of these cases by Lord Mustill in his dissenting speech in R v Brown [1994] 1 AC 212, where he said:
“… As a matter of policy the courts have decided that the criminal law does not concern itself with these activities, provided that they do not go too far. It also seems plain that as the general social appreciation of the proper role of the state in regulating the lives of individuals changes with the passage of time, so we shall expect to find that the assumptions of the criminal justice system about what types of conduct are properly excluded from its scope, and what is meant by ‘going too far’ will not remain constant.”
Mr Roberts developed a linked complaint that the judge’s decision, and his later direction to the jury, in effect deprived the appellant of the jury’s consideration whether he had a guilty mind. For the purpose of establishing the need for mens rea, he drew our attention to R v K [2002] 1 AC 422. We have no difficulty with the general, indeed obvious, principle that mens rea is an essential ingredient of every statutory offence unless it is expressly excluded, or excluded by absolutely necessary implication. We immediately acknowledge the tautology, but it enables appropriate emphasis to be given to the principle. However for the purposes of s 20 of the 1861 Act, the required mental ingredient of the offence is established if the defendant was reckless in the sense formulated in R v Cunningham [1957] 2 QB 396, as approved in R v Savage [1992] 1 AC 699. In short, if he knew or foresaw that the complainant might suffer bodily harm and chose to take the risk that she would, recklessness sufficient for the purposes of the mens rea for s 20 was established. In the result, as we have recorded, recklessness was admitted.
To examine Mr Roberts’ submissions, and his criticisms of the directions to the jury, we must turn to R v Dica [2004] EWCA Crim 1103, where the issue of consent was addressed (a) in the context of the longstanding decision in R v Clarence (1888) 22 QBD 23 that the consent of a wife to sexual intercourse carried with it consent to the risks inherent in sexual intercourse, including the risk of sexually transmitted disease, and (b) the trial judge’s ruling that the consent of the complainants to sexual intercourse with an individual who was known to them to be suffering from the HIV virus could provide no defence.
In R v Barnes [2004] EWCA Crim 3246, Lord Woolf CJ summarised the effect of the decision in Dica in this way. An HIV positive male defendant who infected a sexual partner with the HIV virus would be guilty of an offence “contrary to s 20 of the 1861 Act if, being aware of his condition, he had sexual intercourse … without disclosing his condition”. On the other hand, he would have a defence if he had made the partner aware of his condition, who “with that knowledge consented to sexual intercourse with him because [she was] still prepared to accept the risks involved.”
R v Dica represented what Lord Mustill in R v Brown described as a “new challenge”, and confirmed that in specific circumstances the ambit of the criminal law extended to consensual sexual intercourse between adults which involved a risk of the most extreme kind to the physical health of one participant. In the context of direct physical injury, he pointed out that cases involving the “… consensual infliction of violence are special. They have been in the past, and will continue to be in the future, the subject of special treatment by the law”. In his subsequent detailed examination of the “situations in which the recipient consents or is deemed to consent to the infliction of violence upon him”, activity of the kind currently under consideration did not remotely fall within any of the ten categories which he was able to identify. Brown itself emphatically established the 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.
We are concerned with the risk of and the actual transmission of a potentially fatal disease through or in the course of consensual sexual relations which did not in themselves involve unlawful violence of the kind prohibited in R v Brown. The prosecution did not seek to prove that the disease was deliberately transmitted, with the intention required by s 18 of the 1861 Act. The allegation was that the appellant behaved recklessly on the basis that knowing that he was suffering from the HIV virus, and its consequences, and knowing the risks of its transmission to a sexual partner, he concealed his condition from the complainants, leaving them ignorant of it. When sexual intercourse occurred these complainants were ignorant of his condition. So although they consented to sexual intercourse, they did not consent to the transmission of the HIV virus. Dica analysed two different sets of assumed facts arising from the issue of the complainants’ consent, by distinguishing between the legal consequences if, as they alleged, the truth of his condition was concealed from his sexual partners by Dica, and the case that he would have developed at trial if he had not been prevented from doing so by the judge’s ruling, that far from concealing his condition from the complainants, he expressly informed them of it, and they, knowing of his condition because he had told them of it, consented to unprotected sexual intercourse with him. 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. For the complainant’s consent to the risks of contracting the HIV virus to provide a defence, it is at least implicit from the reasoning in R v Dica, and the observations of Lord Woolf CJ in R v Barnes confirm, that her consent must be an informed consent. If that proposition is in doubt, we take this opportunity to emphasise it. We must therefore examine its implications for this appeal.
The recognition in R v Dica of informed consent as a defence was based on but limited by potentially conflicting public policy considerations. In the public interest, so far as possible, the spread of catastrophic illness must be avoided or prevented. On the other hand, the public interest also requires that the principle of personal autonomy in the context of adult non-violent sexual relationships should be maintained. If an individual who knows that he is suffering from the HIV virus conceals this stark fact from his sexual partner, the principle of her personal autonomy is not enhanced if he is exculpated when he recklessly transmits the HIV virus to her through consensual sexual intercourse. On any view, the concealment of this fact from her almost inevitably means that she is deceived. Her consent is not properly informed, and she cannot give an informed consent to something of which she is ignorant. Equally, her personal autonomy is not normally protected by allowing a defendant who knows that he is suffering from the HIV virus which he deliberately conceals, to assert an honest belief in his partner’s informed consent to the risk of the transmission of the HIV virus. Silence in these circumstances is incongruous with honesty, or with a genuine belief that there is an informed consent. Accordingly, in such circumstances the issue either of informed consent, or honest belief in it will only rarely arise: in reality, in most cases, the contention would be wholly artificial.
This is not unduly burdensome. The defendant is not to be convicted of this offence unless it is proved that he was reckless. If so, the necessary mens rea will be established. Recklessness is a question of fact, to be proved by the prosecution. Equally the defendant is not to be convicted if there was, or may have been an informed consent by his sexual partner to the risk that he would transfer the HIV virus to her. In many cases, as in Dica itself, provided recklessness is established, the critical factual area of dispute will address what, if anything, was said between the two individuals involved, one of whom knows, and the other of whom does not know, that one of them is suffering the HIV virus. In the final analysis, the question of consent, like the issue of recklessness is fact-specific.
In deference to Mr Roberts’ submission, we accept that there may be circumstances in which it would be open to the jury to infer that, notwithstanding that the defendant was reckless and concealed his condition from the complainant, she may nevertheless have given an informed consent to the risk of contracting the HIV virus. By way of example, an individual with HIV may develop a sexual relationship with someone who knew him while he was in hospital, receiving treatment for the condition. If so, her informed consent, if it were indeed informed, would remain a defence, to be disproved by the prosecution, even if the defendant had not personally informed her of his condition. Even if she did not in fact consent, this example would illustrate the basis for an argument that he honestly believed in her informed consent. Alternatively, he may honestly believe that his new sexual partner was told of his condition by someone known to them both. Cases like these, not too remote to be fanciful, may arise. If they do, no doubt they will be explored with the complainant in cross-examination. Her answers may demonstrate an informed consent. Nothing remotely like that was suggested here. In a different case, perhaps supported by the defendant’s own evidence, material like this may provide a basis for suggesting that he honestly believed that she was giving an informed consent. He may provide an account of the incident, or the affair, which leads the jury to conclude that even if she did not give an informed consent, he may honestly have believed that she did. Acknowledging these possibilities in different cases does not, we believe, conflict with the public policy considerations identified in R v Dica. That said, they did not arise in the present case.
Why not? In essence because the jury found that the complainants did not give a willing or informed consent to the risks of contracting the HIV virus from the appellant. We recognise that where consent does provide a defence to an offence against the person, it is generally speaking correct that the defendant’s honest belief in the alleged victim’s consent would also provide a defence. However for this purpose, the defendant’s honest belief must be concomitant with the consent which provides a defence. Unless the consent would provide a defence, an honest belief in it would not assist the defendant. This follows logically from R v Brown. For it to do so here, what was required was some evidence of an honest belief that the complainants, or any one of them, were consenting to the risk that they might be infected with the HIV virus by him. There is not the slightest evidence, direct or indirect, from which a jury could begin to infer that the appellant honestly believed that any complainant consented to that specific risk. As there was no such evidence, the judge’s ruling about “honest belief” was correct. In fact, the honest truth was that the appellant deceived them.
In our judgment, the judge’s directions to the jury sufficiently explained the proper implications to the case of the consensual participation by each of the complainants to sexual intercourse with the appellant. The jury concluded, in the case of each complainant, that she did not willingly or consciously consent to the risk of suffering the HIV virus. Accordingly the appeal against conviction will be dismissed.
Sentence
We must consider the sentence. In relation to one of the cases, (we need not identify it specifically), the complainant is extremely compassionate and forgiving, and would support, indeed seeks a reduction of the sentence on the appellant in her case.
We have, of course, reflected on her position. It seems to us, however, that while the sentencing court should always take account of the impact of an offence on its victim, the appropriate sentence should not normally be influenced by the wishes of the victim. Otherwise, there would be wild sentencing inconsistency, and the eventual outcome after compassion or mercy. It is elementary that this could not form the basis for a sentencing decision, or for that matter for sentencing policy.
The sentences in each of these individual cases, and the total sentence imposed on the appellant were neither manifestly excessive nor wrong in principle.
Barnes, R. v
[2004] EWCA Crim 3246 (21 December 2004)
The Lord Chief Justice: This is the judgment of the Court:
Introduction
On 16 October 2003, at the Crown Court in Canterbury, after a 4 day trial before his Honour Judge Van Der Bijl, Mark Barnes (“the appellant”) was convicted by a majority verdict (11 to 1) on one count of unlawfully and maliciously inflicting grievous bodily harm upon Christopher Bygraves (“the victim”) contrary to Section 20 of the Offences Against The Person Act 1861 (“the 1861 Act”). On 12 December 2003, the appellant was sentenced. The Court made a Community Punishment Order for 240 hours and ordered the appellant to pay compensation in the sum of £2,609 to the victim, at £20 per week, commencing on 2 January 2004. He appeals against the conviction by leave of the full court.
The prosecution arose out of a serious leg injury sustained by the victim during the course of an amateur football match in December 2002. The prosecution contended that it was the result of a “crushing tackle, which was late, unnecessary, reckless and high up the legs”. The appellant admitted the tackle but claimed that it was a fair, if hard, challenge, in the form of a sliding tackle in the course of play, and that any injury caused was accidental. It was not disputed that the victim’s injury was the result of the tackle and that the injury to his right leg amounted to grievous bodily harm.
Seven different specific complaints are made in the grounds of appeal. They relate to specific aspects of the trial judge’s summing-up, but taken collectively they amount to the contention that the trial judge failed, in his summing-up and in response to a question asked by the jury after they had retired, adequately to explain to the jury the facts that needed to be established before the appellant could be convicted of the offence charged.
The Law
The issue which this appeal raises, is an important one. It goes to the heart of the question of when it is appropriate for criminal proceedings to be instituted after an injury is caused to one player by another player in the course of a sporting event, such as a football match. It is surprising that there is so little authoritative guidance from appellate courts as to the legal position in this situation. The explanation for this may be the fact that, until recently, prosecutions in these circumstances were very rare. However, there is now a steady but, fortunately, still modest flow of cases of this type coming before the courts, and thus the need for guidance.
In determining what the approach of the courts should be, the starting point is the fact that most organised sports have their own disciplinary procedures for enforcing their particular rules and standards of conduct. As a result, in the majority of situations there is not only no need for criminal proceedings, it is undesirable that there should be any criminal proceedings. Further, in addition to a criminal prosecution, there is the possibility of an injured player obtaining damages in a civil action from another player, if that other player caused him injuries through negligence or an assault. The circumstances in which criminal and civil remedies are available can and do overlap. However, a criminal prosecution should be reserved for those situations where the conduct is sufficiently grave to be properly categorised as criminal.
When criminal proceedings are justified, then, depending upon their gravity, the prosecution can be for: assault; assault occasioning actual bodily harm contrary to Section 47 of the 1861 Act; unlawfully wounding or inflicting grievous bodily harm contrary to Section 20 of the 1861 Act; or wounding or causing grievous bodily harm with intent contrary to Section 18 of the 1861 Act. If, unfortunately, death results from the assault, the charge could be one of manslaughter or even murder depending upon the defendant’s intent.
When no bodily harm is caused, the consent of the victim to what happened is always a defence to a charge. Where at least bodily harm is caused, consent is generally irrelevant because it has been long established by our courts that, exceptional situations apart, as a matter of law a person cannot consent to having bodily harm inflicted upon him.
To this general rule, there are obvious exceptions. A patient can lawfully consent to having an operation performed upon him by a surgeon, even though he will inevitably suffer bodily harm while the operation is being performed. Another exception is physical injury in the course of contact sports such as football or boxing. Boxing is different from football in that it is inherent in boxing that the combatants intend to injure each other. This should not be the position in football, albeit that taking part in a football match does give rise to a risk of injury and even grievous injury.
There is authority to support what we have said so far. The relevant authorities were exhaustively considered by the House of Lords in the course of their speeches in R v Brown [1994] 1 AC 212. Brown deals with a very different factual context, namely sado-masochistic activities between consenting adults. The speeches in that case make it clear that the rule and the exceptions to the rule that a person cannot consent to his being caused actual harm, are based on public policy. The position is dealt with, with particular clarity, by Lord Mustill in his speech in Brown at page 262 et seq. Lord Mustill deals first with prize-fighting and boxing and then contact sports such as the various codes of football. (While Lord Mustill dissented as to what the result should be of adopting a public policy test in that case, his analysis of the case law is still of the highest authority.)
The same public policy approach is adopted in the very recent decision of this Court in R v Dica [2004] QB 1257. Dica considers the position where, as a result of having sexual intercourse with two women, a male defendant who is HIV positive infects them so that they both are subsequently diagnosed as being HIV positive. This Court held that the man would be guilty of an offence contrary to Section 20 of the 1861 Act if, being aware of his condition, he had sexual intercourse with them without disclosing his condition. On the other hand, this Court considered that he would have a defence if he had made the women aware of his condition, but with this knowledge because they were still prepared to accept the risks involved and consented to having sexual intercourse with him.
The advantage of identifying that the defence is based upon public policy is that it renders it unnecessary to find a separate jurisprudential basis for application of the defence in the various different factual contexts in which an offence could be committed. For example, it explains why boxing, despite the fact that participants intend to hurt each other, is ordinarily considered a lawful sport, whereas prize-fighting is not. It also means that changing public attitudes can affect the activities which are classified as unlawful, as the judgment in Dica demonstrates. However, so far as contact sports are concerned, the recognition that public policy is the foundation of the defence should not detract from the value of recognising that public policy limits the defence to situations where there has been implicit consent to what occurred.
The fact that the participants in, for example, a football match, implicitly consent to take part in a game, assists in identifying the limits of the defence. If what occurs goes beyond what a player can reasonably be regarded as having accepted by taking part in the sport, this indicates that the conduct will not be covered by the defence. What is implicitly accepted in one sport will not necessarily be covered by the defence in another sport. In R v Cey (1989) 48 C.C.C. (3d) 480, the Saskatchewan Court of Appeal was concerned with ice hockey which is a very physical game. Despite the nature of ice hockey, in giving the majority judgment, Gerwing JA (Cameron JA concurring), made it clear that even in ice hockey:
“some forms of bodily contact carry with them such a high risk of injury and such a distinct probability of serious harm as to be beyond what, in fact, the players commonly consent to, or what, in law, they are capable of consenting to.” (At page 490)
The general position as to contact sports was helpfully considered by the Law Commission in “Consent and offences against the person: Law Commission Consultation Paper No. 134.” The Commission indicated its approval of the approach adopted by the Criminal Injuries Compensation Board which we would also approve. This is that “in a sport in which bodily contact is a commonplace part of the game, the players consent to such contact even if, through unfortunate accident, injury, perhaps of a serious nature, may result. However, such players do not consent to being deliberately punched or kicked and such actions constitute an assault for which the Board would award compensation.” (10.12)
Subject to what we have to say hereafter we would in general accept the view of the Commission that:
“the present broad rules for sports and games appear to be :
(i) the intentional infliction of injury enjoys no immunity;
(ii) a decision as to whether the reckless infliction of injury is criminal is likely to be strongly influenced by whether the injury occurred during actual play, or in a moment of temper or over-excitement when play has ceased, or “off the ball”;
(iii) although there is little authority on the point, principle demands that even during play injury that results from risk-taking by a player that is unreasonable, in the light of the conduct necessary to play the game properly, should also be criminal.” (10.18)
On the other hand, the fact that the play is within the rules and practice of the game and does not go beyond it, will be a firm indication that what has happened is not criminal. In making a judgment as to whether conduct is criminal or not, it has to be borne in mind that, in highly competitive sports, conduct outside the rules can be expected to occur in the heat of the moment, and even if the conduct justifies not only being penalised but also a warning or even a sending off, it still may not reach the threshold level required for it to be criminal. That level is an objective one and does not depend upon the views of individual players. The type of the sport, the level at which it is played, the nature of the act, the degree of force used, the extent of the risk of injury, the state of mind of the defendant are all likely to be relevant in determining whether the defendant’s actions go beyond the threshold.
Whether conduct reaches the required threshold to be criminal will therefore depend on all the circumstances. However, there will be cases that fall within a “grey area,” and then the tribunal of fact will have to make its own determination as to which side of the line the case falls. In a situation such as we have on this appeal, to determine this type of question the jury would need to ask themselves among other questions whether the contact was so obviously late and/or violent that it could not be regarded as an instinctive reaction, error or misjudgement in the heat of the game.
In the case of offences against the person contrary to Sections 18 and 20 of the 1861 Act, it is a requirement of the offence that the conduct itself should be unlawful. Where the offending act is alleged to fall within the implicit consent derived from the victim’s participation in the sport (so that a defence to the alleged offence exists), the defendant can be said not to be guilty of the offence because his conduct was not unlawful as required by the 1861 Act. In the case of an offence contrary to Section 20, the 1861 Act also requires that the conduct be inflicted “maliciously”. In that context, “maliciously” means either intending to cause some bodily harm (however slight) or causing the harm recklessly. (See R v Cunningham [1957] 2 Q.B. 396). “Recklessly” in this context means no more than that the defendant foresaw the risk that some bodily harm (however slight) might result from what he was going to do and yet, ignoring that risk, the defendant went on to commit the offending act. (See DPP v Parmenter [1992] 1 AC 699). In a sport like football, anyone going to tackle another player in possession of the ball can be expected to have the necessary malicious intent according to this approach, and in the great majority of criminal cases, the existence of a malicious intent is not likely to be in issue. This being so, in many situations, as Lord Diplock pointed out in R v Mowatt, [1968] 1 QB 421 (at pages 426E to 427F) it will only confuse the jury to make unnecessary reference to the word “maliciously” and invite them to consider the improbability that the defendant did not foresee the risk. However, this is a subject which it will be prudent for the trial judge to discuss with counsel before he starts his summing-up.
The Facts of this Case and the Summing-up
It is now necessary to apply the legal guidance we have sought to give to the circumstances of this case. We have already summarised the contrast between the case for the prosecution and the case for the defence. The offence which is alleged, occurred on 7 December 2002 during a match between two teams in the First Division of the Thanet and District Saturday League. The victim played for Minster Football Club. The appellant played for the Punch & Judy team. The match took place at Minster’s recreation ground.
By the 70th minute of the game, Minster were two goals ahead. When the ball was passed to the victim, who was a striker, he, as he admitted, went to the corner flag simply to waste time. The appellant attempted to tackle him and in doing so committed a foul. The referee awarded a free kick to Minster. Heated words were exchanged between the appellant and the victim and the appellant was told to “grow up” by the referee. About ten minutes later, the ball was received by the victim approximately six yards from the opposition penalty area. He ran with the ball and, when he was about seven yards from the goal mouth, kicked the ball with his left foot into the net. After he kicked the ball, the appellant tackled him from behind, making contact with his right ankle. The victim said he heard a snapping noise and fell to the ground. The appellant was also on the ground but stood up and said words to the victim to the effect: “have that”. The victim suffered a serious injury to his right ankle and right fibula.
Witnesses were called for both sides. Perhaps the most important witness was the experienced referee, David Lawrence, who had been a football referee for 34 years. He said that he had a clear unobstructed view of the incident and, in view of what he saw, he sent the appellant off the field for violent conduct. He would not agree that the appellant had made a “sliding tackle”. It was his view that the appellant had gone in with two feet.
In his summing-up, after drawing the jury’s attention to the count in the indictment and the fact that it was not in dispute that the appellant had caused the victim’s injury, the judge made it clear that the jury had to consider “the quality of that action” by the appellant. He also made it clear that the appellant could only be guilty if the prosecution had proved that what happened was “not done by way of legitimate sport”. He indicated that what the prosecution were alleging was that the appellant’s action “for whatever reason it was that he took it, was so reckless that it could not have been in legitimate sport and it was tantamount to an assault”.
Having dealt separately with what conduct would be unlawful and what conduct would be reckless, the judge added:
“This concept of recklessness that I direct you upon can cover the prosecution case, which is this was a two-footed, they say, lunge, or jump-in, from behind, or, indeed, it could cover a reckless sliding tackle, but, again – and this is the important point – over and above what is generally acceptable in a football game.”
Later, the judge said :
“The points that have arisen in the case are largely these: first of all, whether it was, as the prosecution allege, a lunge – “a two-footed jump-in” was a description by one of the prosecution witnesses. That is a point that you clearly will have to consider and resolve.
Another point is this: when, or, indeed, where, was the ball? Was it in the back of the net? Was it on its way there? Was it over the goal-line and about to go into the net itself? Or was it at Mr. Bygraves’ feet? That is another point that has been raised.
Thirdly: was it a sliding tackle with one foot out, one foot tucked underneath?
Fourthly: if it was a sliding tackle, was it reckless, criminally reckless in the way that I have directed you upon, and therefore beyond what is acceptable in the game of football?
The defence case is that it was a sliding tackle, that sliding tackles are legitimate, that injuries do get caused even in football, that this particular sliding tackle was not reckless, it was no more and no less indeed than a normal every-day tackle done in every game – sometimes in a game over a dozen or more times. So those, members of the jury, are largely the issues in the case.”
The judge then surveyed the evidence, during which he referred to the stark difference between the two cases. The jury, having retired, sent a note to the judge asking him “for a recap of the directions on points of law, saying that could be helpful in further deliberation”. The judge then gave the following further direction:
“I told you that the prosecution have to prove that it was unlawful – that is to say that there is no defence, they have to prove that there is no defence. A defence in a case of this nature has been put forward that what was done was done in legitimate sport, and if you think that it was or may have been done in legitimate sport, by way of legitimate sport, then that would provide a defence.
But the prosecution also have to prove that what was done was a deliberate act; there is no dispute that the fact that what was done was a deliberate act in that it was not, for example, an accident. They also have to prove that that deliberate act was reckless, because that is the way the Crown put it in this case – that is to say a reckless thing to do in this sense: that he realised when he did the act that some injury, however slight, which was over and above legitimate sport, might result from what he was going to do, and yet he either ignored that risk, or he was willing to take that risk, or, indeed, he deliberately set out to take that risk when he went in for what has been described as “the tackle”.
Of course, it is the quality of the tackle that you are concerned with, and the concept that I have just directed you upon could apply to the prosecution case, clearly, and their case is that it was a two-footed lunge, or jump in from behind, or it could indeed apply to a reckless sliding tackle – again, a reckless sliding tackle over and above what would be acceptable in a football game.”
Mr. Robinson on behalf of the appellant, submits that the summing-up was inadequate. It had failed to identify the real issue, and in particular did not deal with the importance and relevance of the defence of consent where an injury had occurred in the course of a lawful sport. It had not been made clear to the jury that there could lawfully be breaches, even serious breaches, of the rules of the sport without there necessarily being the commission of a criminal offence.
On behalf of the Crown, Mr. Walker argues that the use by the judge of the phrase “legitimate sport” was straightforward and obviously embraced the issue of consent between players as to injury and could include play that is “outwith the laws of the game”. While he accepts that the rules of football may not have been the interest of every juror, he contends that such matters would have been within their collective general knowledge and experience and that, having been left to decide the issue by the judge, it was for the jury then to determine what was “legitimate sport” on the facts.
As to the suggestion that the judge should have directed the jury to consider whether what happened may have been an accident, Mr. Walker submitted that the accident in this case related to the injuries and not the action taken by the appellant. However, he did accept that it was “arguable” that the judge should have identified objective criteria which would have had a bearing on what conduct was “generally acceptable in a football game”.
Conclusion
We appreciate the difficulty that the judge had summing up this case because of the state of the authorities. The concept of “legitimate sport” in itself is not unhelpful. However, it required an explanation of how the jury should identify what is and what is not “legitimate” in the context of the relevant sport. The case called out for the jury to be given help as to the approach they should adopt in determining what is or is not “legitimate sport”. The judge should have given the jury a direction to determine for themselves what actually happened at the critical time when the injury was inflicted. Broadly speaking, were they satisfied that the case for the prosecution was correct? They should have been told that if they were not, and they thought that the appellant’s description of what occurred might be correct, then that was in all probability the end of the case. It should have been pointed out to the jury that even if the offending contact was a foul, it was still necessary for them to determine whether it could be anticipated in a normal game of football or was it something quite outside what could be expected to occur in the course of a football game. The summing-up should also have made it clear that even if a tackle results in a player being sent off, it may still not reach the necessary threshold to constitute criminal conduct.
The jury were not given any examples of conduct which could be regarded as “legitimate sport” and those which were not “legitimate sport” for the purposes of determining whether they were criminal. The jury did not need copies of the rules, but they did need to be told why it was important to determine where the ball was at the time the tackle took place. They should have been told the importance of the distinction between the appellant going for the ball, albeit late, and his “going for” the victim.
Having carefully considered the summing-up as a whole, we can well understand why the jury felt they needed further assistance after they retired. The further direction they received, did not give them that assistance. Without it, it is difficult to determine what they thought they had to decide in order to find the appellant guilty. This being the position, we are forced to come to the conclusion that the summing-up was inadequate, and that as a result the conviction is unsafe. Accordingly the appeal will be allowed and the orders made set aside
H v The Crown Prosecution Service
(CPS) [2010] EWHC 1374 (Admin) (14 April 2010)
MR JUSTICE CRANSTON:
Introduction
In this appeal by way of Case Stated the Youth Court asks our opinion on whether a teacher who teaches at a school for children with special needs, including those with behavioural problems, impliedly consents to the use of violence against him. In other words the question continues, should the principles which apply in cases of contact sports be applied to incidents within institutions dealing with those with special needs.
Background.
The background is as follows. The appellant, who is now 15 years old, appeals against a decision of the Chester Youth Court, which convicted him in mid 2009 of two counts of common assault, by beating, against Mr Ian Cochran, contrary to Section 39 of the Criminal Justice Act 1988. Mr Cochran has been a teacher for 31 years, and at the time of the assault was the deputy head of the school where the appellant was a pupil. It is a Community Special School teaching children with emotional, behavioural and social needs. The appellant was described by the headteacher of the school as a challenging pupil who had not settled into the school since beginning the academic year September 2008. In the headteacher’s description his acting up behaviour had increased, he was quite angry, and he had a heightened status of arousal and low tolerance. He had been risk assessed and it was known that he did not like to be physically touched.
A report from a consultant community paediatrician informs us that the appellant had been diagnosed with attention deficit hyperactivity disorder (‘ADHD’) and commenced on medication in November 2008. That is a disorder characterised by inattention, impulsivity and hyperactivity, but can be managed by a combination of emotional and behavioural strategies both at home and school. In her report the consultant community paediatrician explains that the appellant had conduct disorder and had been in trouble with the police on many occasions for getting involved in fights.
The incidents which led to the prosecution were three fold. The first occurred on 4 March 2009. Mr Cochran was teaching a small group of three pupils, the appellant being one. Some 5 to 10 minutes into the lesson the appellant picked up a hammer which he did not have permission to use, and began banging it on the bench. Mr Cochran asked him to be quiet and to put the hammer down. The appellant then came very close to Mr Cochran and began to be abusive. He raised the hammer and swung it close to Mr Cochran’s face, causing Mr Cochran to flinch. Mr Cochran took hold of the hammer and the appellant released it. The appellant then grabbed Mr Cochran by the collar and tie and with one hand on his throat pushed him back against the wall, where Mr Cochran struck his head. Two days later there was a further incident involving Mr Cochran and the appellant in the school playground. Since the justices did not convict because of a lack of evidence, I need say no more about it.
Three weeks later, on the 27 March 2009, Mr Cochran was on playground duty in the morning when the appellant approached him and was verbally abusive. The appellant put his face very close to Mr Cochran’s, and appeared to be goading him. Mr Cochran backed off. The appellant grabbed Mr Cochran by the collar which the appellant twisted into Mr Cochran’s throat and wind pipe, affecting the ability to breath. The incident was witnessed by Joanne Leader, who was a senior child care associate at the school. She saw the appellant take hold of Mr Cochran by his tie or shirt and pin him up against a bunker. She heard the appellant shout that he hated Mr Cochran, and he was going to kill him. She said that as a result Mr Cochran appeared shaken and distressed. She intervened and tried to push the appellant backwards. She was aware the appellant was trying to headbutt Mr Cochran, but he did not make contact.
Mr Cochran reported the incidents to the police. The appellant was arrested and interviewed. In the police interview, the appellant was asked what he was going do with the hammer, and he replied “hit him over the head with it” with the spiky part towards Mr Cochran’s head. In addition, the appellant said that he had Mr Cochran against the wall and that he held him by the throat. Before the justices, however, the appellant chose not to give evidence. Mr Cochran gave evidence. He told the justices that he did not consent to the assaults. He conceded that he had taken employment at the school fully understanding that he would have to deal with pupils who had behavioural problems, and who might be abusive, violent or could cause damage.
The headteacher, Samantha Miles-Whittaker, also gave evidence. She told the justices that there was training for the staff to help them work with pupils at the school. Teachers were trained in non-violent and non-physical intervention techniques, and also in restraint methods as a last resort. She agreed that there was no written policy regarding contacting the police, but she expected her staff to consult her regarding calling them. However, she continued, staff members were entitled to call the police themselves. Generally speaking that was not in her view the appropriate course. She did not find it satisfactory that Mr Cochran had reported the incident to the police. She told the justices that there was a log of 10 incidents relating to the appellant. Four of these were serious incident reports, but none had led to a prosecution.
In representing the appellant before the justices, Mr Boag argued that the case was analogous to sporting fixtures, that Mr Cochran must be regarded as having accepted the risk when he took the post, and that the appropriate course was to take internal disciplinary procedures within the school.
In convicting the appellant of two of the three alleged assaults, the justices said that they were of the opinion that Mr Cochran had been specifically asked whether he consented to being assaulted whilst at the school and he had emphatically said that he had not. He was adamant that he had given no general consent to being assaulted as a teacher at a special school. Whereas the justices accepted that there was a difference between mainstream and special schools, they did not accept that the staff at a special school should be expected to tolerate physical violence to the degree involved in the case and therefore the contact sports analogy was to be rejected.
The appellant’s case.
Before us Mr Boag advanced his case on the basis that his submissions were confined to cases of common assault and only to special schools of the type involved in this case. Whilst he accepted that Mr Cochran gave evidence that he did not expressly consent to the assaults upon him by the appellant, his contention was that by voluntarily taking employment at this type of school any teacher would expect that there would be incidents where relatively minor violence would be used against them by pupils, and that they would have to use physical force to restrain pupils. That, in his submission, meant that any teacher employed at such a school impliedly consented to that situation. If, he continued, it was accepted that there was implied consent, it was then a question of whether public policy considerations invalidated that consent. Mr Boag submitted that there was a difference between mainstream schools and the behaviour to be tolerated there, and this type of school, where the pupils would often display aggressive and challenging behaviour on a regular basis. In his submission, a significant proportion of such incidents might involve the commission of offences of assault or criminal damage, but if all such incidents were reported to the police and prosecuted the schools could not effectively operate. On his case, the situation was analogous to persons participating in contact sports such as football, who accept they may be subjected to a level of violence and that such incidents should be dealt with by the sport’s disciplinary body, save if on an objective basis the level of violence went beyond the threshold which ought to be tolerated as a matter of public policy.
In respect of the two assaults where the appellant had been convicted, in Mr Boag’s submission the threshold had not been crossed. The evidence of the headteacher was that she did not support Mr Cochran reporting the incident to the police. Mr Boag took us to a document of the National Union of Teachers, dealing with individual pupil risk assessment. In particular it deals with the recording of a crime when requested by a school. That applies to offences classified as “serious arrestable offences” under Section 116 of the Police and Criminal Evidence Act 1988, except where the child, parent, guardian or representative considers that there has been or is likely to be serious loss or harm to the pupil. On that basis Mr Boag submitted that the assaults in this case were nowhere near that level of seriousness which are dealt with in the National Union of Teachers document. He accepted that if the level of assault had been at a more serious level it would be a matter which could have been reported to the police and prosecuted through the criminal courts. That was not the case, given the circumstances here. Moreover, it would be counter productive to involve this type of pupil in the criminal justice system. It was better for matters to be dealt with by the school’s own disciplinary procedures, as indicated by the evidence of the headteacher. Pupils of this type have to be brought to maturity, and involving them in the criminal justice system would hamper this. Legal principles
Implied consent is not unknown to the criminal law, although typically the issue of consent is whether a victim has consented in fact or whether there is an act for which consent cannot be given. Deemed consent by the victim of sexual offences came to an end in R v R [1992] 1 AC 599, although in the following year in R v Aitken [1992] 1 WLR 1006 the continuing presence of the victim during the horseplay of the evening was held to be a possible indication of consent when his fire resistant suit was set alight by fellow service personnel as a joke, causing him life threatening burns.
Deemed or implied consent to injuries sustained in the context of contact sports was recognised in the 19th century. A recurrent issue has been the boundaries of that consent. R v Bradshaw (1878) 14 Cox CC 83 was one such case, where Baron Bramwell directed the jury that the line is drawn when the player, independent of the rules and practices of game, intends to cause serious injury, or is indifferent or reckless as to whether that will be produced by what he does. In delivering the court’s judgment in R v Donavan [1934] 2 K B 498 Swift J said that rough and undisciplined sport or play was a well established exception to the rule that the consent of the victim is immaterial where a defendant beats his victim with such a degree of violence that the infliction of bodily harm is the probable consequence.
The boundary of deemed or implied consent in contact sports was authoritatively drawn in R v Barnes [2004] EWCA Civ 3246; [2005] 1 WLR 910. There the Court of Appeal Criminal Division invoked the approach of the Saskatchewan Court of Appeal in the R v Cey (1989) 48 CCC (3d) 48, which held that what a player can reasonably be regarded as having consented to by taking part in a sport varies with the circumstances, such as the nature of the sport. Giving the judgment of the court in Barnes, Lord Woolf gave general approval as well to the view of the Law Commission in its report Consent and Offences Against the Person, Law Commission No. 134, that a player cannot be regarded to consenting to the intentional infliction of injury or unreasonable risk taken by another player in the light of the conduct necessary to play the game properly. Lord Woolf said that the fact that the play is within the rules and practices of the game and does not go beyond them will be a firm indication that what had happened was not criminal. In highly competitive sports conduct outside the rules could be expected to occur in the heat of the moment, but it still might not reach the threshold level required for it to be criminal. Lord Woolf held that the level is an objective one, and does not depend on the views of the players. The type of sport, the level at which it is played, the nature of the act, the degree of force used, the nature of the risk of injury, and the state of the mind of the defendant are all likely to be relevant in determining whether the defendant’s action goes beyond the threshold: para 15. “[16] Whether conduct reaches the required threshold to be criminal will therefore depend on all the circumstances. However there will be cases that fall within the “grey area”, and then the tribunal of fact will have to make its own determination as to which side of the line the case falls. In a situation such as we have on this appeal to determine this type of question the jury will need to ask themselves among other questions as to whether the contact was so on obviously late and/or violent it could not be regarded as an instinctive reaction, error or misjudgment of the game.”
At the base of the recognition of deemed or implied consent in contact sports is public policy. Lord Woolf in Barnes said that the starting point is the fact that most organised sports have their own disciplinary procedures for enforcing standards of conduct: para [5]. As a result in the majority of cases there is not only no need for criminal proceedings, it is undesirable that there should be any. Further, there is the possibility of the injured player obtaining damages in a civil action. A criminal prosecution should therefore be reserved, in Lord Woolf’s judgment, to those situations where the conduct is sufficiently grave to be properly categorised as criminal. Where no bodily harm is caused the consent of the victim to what happened is always a defence to a charge, whereas if bodily harm is caused, consent is generally irrelevant, although boxing is an obvious exception.
Lord Woolf approved the analysis of Lord Mustill in R v Brown [1994] 1 AC 212. In the course of his dissenting speech in that case, Lord Mustill canvassed different situations involving deemed consent to the infliction of violence to determine where the decided cases offered lessons to new legal challenges such as before the House of Lords in that case. The situations included prize fighting and boxing, contact sport, surgery and rough horse play. In considering such activities, Lord Mustill thought it hopeless to attempt any explanation in terms of consent. Rather it was a matter of policy whether the courts would decide that the criminal law ought to be involved.
“It also seems plain that as the general social appreciation of what is tolerable and of the proper role of the state in regulating the lives of individuals changes with the passage of time, so we shall expect to find that the assumption of the Criminal Justice System about what types of conduct are excluded from this scope and what is meant by going “too far” will not remain constant (at 267F).”
The justices’ questions
In my view, neither as a matter of legal analysis nor legal policy can be it said that consent to an assault is to be implied in the case of a teacher at a school for children with special needs. It may well be, and is probably the reality, that a teacher at this type of school will recognise a higher risk of some pupils becoming violent than in mainstream schools. The individual pupil risk assessments referred to in the National Union of Teachers document to which earlier reference was made will no doubt reflect the different behaviour of pupils in these schools. But in my view, this is not an area where the criminal justice system needs to accommodate the reality by excluding this type of situation from its scope through the technique of implied consent or by other methods. Using implied consent would be especially inappropriate in this particular case in the face of Mr Cochran’s positive assertion during the trial that he did not consent to the assaults upon him.
As a matter of legal analysis, there is no existing category into which this situation can be fitted. The contact sports cases, as I have said, are based in part on the existence of rules governing the different sports. As far back as Baron Bramwell’s direction to the jury in Bradshaw, the rules have been regarded by the courts as a guide as to what a player may reasonably have been regarded to have consented given what otherwise would be a breach of the criminal law. To put it another way, the rules are an indication of the consent players give to what can happen and also reflect the reciprocity between players, the acknowledgment of the risk that a player may be injured by an opponent and the corresponding risk that he or she may cause injury to another.
This case bears little, if any, similarity to the contact sports cases. There are no doubt rules governing the behaviour of teachers and pupils in this school, as in other schools. Reflecting the character of the school, physical restraint of pupils is contemplated in exceptional cases. But it must be a given that the rules do not countenance violence against or assaults by pupils on teaching staff. Pupil assaults fall outside the rules; a pointer that the ordinary criminal law is not excluded.
Considering the matter objectively, I cannot conceive how the threshold of criminality is not reached in the circumstances of this case. Teachers cannot reasonably be regarded as having consented to being assaulted, even if in this type of school the risk of assault cannot be excluded. More generally, I cannot see that the passage of time referred to in Lord Mustill’s discussion in Brown demands that legal policy recognise an exception in modern society for this type of case. In other words, I do not accept that consent should be implied in this situation, especially when, as with Mr Cochran, teachers will not consent to pupil assaults.
Although floodgate arguments are not necessarily attractive, I am also troubled about where one would draw the line in this type of school. For example, if teachers impliedly consent to common assault what of other people such as support staff, dinner ladies and other students? Are they to be regarded as having impliedly consented to assaults upon them? One can also conceive of other situations, where if the appellant’s contention is correct, it must logically follow that consent must be deemed to be given, for example the nurse or doctor on a ward with difficult patients.
Finally, I also reject Mr Boag’s argument that it would be inappropriate in this type of case to pursue a criminal prosecution. Reference was made, as I have said, to the National Union of Teachers document, which refers to the reporting of more serious crimes. That is not applicable in this case, which involves common assault. Mr Boag contended that there was a practical problem if every assault from this type of school was reported. I accept that the headteacher of the school found it unsatisfactory that these assaults on Mr Cochran were reported to the police. No doubt the school has internal disciplinary procedures to deal with misbehaviour. In my view, however, there is no good reason that Mr Cochran should be deprived of his right to report to the police a criminal wrong of which he was the victim. To impose upon an individual teacher a condition precedent to their right to make a complaint to the police is, in my view, a step which should not be taken, even if it were jurisprudentially possible. In any event, the evidence of the headteacher was that members of the staff were entitled to call the police. There had been previous incidents involving this appellant, which was not reported, but it cannot be that the right to report an assault to the police can be lost by an acquiescence to previous assaults.
In reality, making a complaint to the police is only the first step on the road to a prosecution, as the police and the Crown Prosecution Service must consider the public interest in due course in deciding to prosecute. That provides a safeguard against needless or inappropriate prosecutions in situations where less formal disciplinary procedures or other forms of diversion would be sufficient. It also answers the case that the police and the courts could be overwhelmed by allegations of minor assaults. A challenge to a decision of a prosecuting authority can be made by way of an abuse of process argument or possibly by an application for judicial review before the trial. A teacher must generally retain the right to make a complaint to the police if he or she believes that they have been the victim of an assault.
In conclusion I would dismiss the appeal and answer the questions posed by the justices in the negative.
LORD JUSTICE RICHARDS: I agree.
People v Clarke
[1995] 1 ILRM 355John Clarke, having been indicted for murder, was convicted of the manslaughter on 29 June 1991, at Coolock, Dublin of Glen Larkin after a three day trial at the Central Criminal Court before O’Hanlon J and a jury which culminated on 1 March 1993. He was sentenced to ten years’ penal servitude. He was also convicted of certain firearms offences but this judgment is concerned essentially with the manslaughter conviction, against which conviction the applicant applies for leave to appeal on a number of grounds of which the pertinent ones will be set forth later in this judgment.
Background facts
The background facts to the case were as follows. The applicant, who was then just short of 21 years of age, went on the day in question, 29 June 1991, to the Camelot Hotel, Coolock, to play pool with a companion, Brian McCabe. The time was around 8.30 p.m. when Glen Larkin and a companion, Gavin Lambert, came in. It appears that Glen Larkin came into the pool room looking for money to make a phone call and that he then accused the applicant and Brian McCabe of talking about him behind his back; in fact nothing had been said about him. Glen Larkin got very annoyed without any cause and he hit the applicant in the face. The applicant described what happened in the course of a statement that he made on 30 June 1991, the day after the fatality, to the gardaí and in regard to the essential facts of which there was no dispute — certainly as far as this first fracas was concerned. He said as follows:
[Larkin] turned around to me and said, ‘I’m fuckin going to kill you’. They’re the sort of words he uses. He gave me a punch in the jaw. He then picked up a pool ball and threw it at me. I grabbed him then and held onto him and pleaded with him to calm down saying, ‘Glen you’re doing this for nothing’. At about this point one of the bouncers, named Angus Andrews, came in. He grabbed a hold of Glen. Glen said, ‘I’m only talking to him [me]’. Then Glen broke loose from Angus and hit me another clout on the other side of the face. I was afraid of getting involved in a fight because of serious head injuries I got in a traffic accident. I said, ‘I can’t fight and I don’t want to fight ya because of these head injuries, just one slap would open my skull’. I said, ‘you’re just doing it for nothing’. I said that to him. Then another bouncer and a barman came in. Paul is the barman and the bouncer was ‘Harpo’ Norris. They restrained Glen but he succeeded in breaking away from them. He came over to me and hit me again. I picked up a pool cue and hit him with it. I hit him on the shoulder. He kept coming and eventually he got me against the wall and started hitting my face. He actually succeeded in biting and cutting my lip and tried to bite my face but didn’t succeed. The bouncers came over and grabbed him off me again. The blood was pouring out of me. I still kept telling him to stop but he was going mad. He was as high as a kite he was. He was definitely on gear [meaning drugs] at the time. I went into the toilet to wash my face and to get away from him. Just when I came out of the toilet he was coming down to the toilet. He started threatening me. He said, ‘I’ll kill you and Brian [McCabe]’ and then he started on me. He said, ‘I’m coming back here with a hatchet. You think your head is bad now but when I come back with the hatchet you’ll be a write-off. I’ll kill you stone dead’. I believed that he was capable of doing this and I was very much afraid of him. Then he started threatening my family. He said, ‘It’s not just you I’ll get, I’ll get all of your family and all of the Roes as well. He had a glass in his hand and was threatening me with it. The bouncer was nearby and should have heard this conversation. So should two of the bar girls — Rhonda McClusky and a girl named Liz. Brian was also nearby, … I told the bouncer Angus to take the glass off him because I was afraid he was going to hit me with it. He didn’t. He was probably afraid of his reputation and his family. Glen told me he was going to ‘Get a hatchet to chop your head up and then I’m going to get your family.’ I was …, afraid of my life because I knew he came into that pub before with a hatchet. Angus, the bouncer, told me this. I asked Rhonda McCluskey to ring my dad at … — home — to come up and collect me, but when she went out to make the call Glen was still there so she came back and gave me back the 20p I gave her for the ‘phone call. Angus told me not to go out because Glen was still outside. I waited for Angus to come in and say he was gone. I was just leaving when my brother, Tommy, came in. Tommy is 22 and living with his girlfriend at 1 Marigold Court, Darndale. Tommy and I had a chat about what had happened. I said, ‘What am I going to do? He’s coming back with a hatchet and he’s going to chop me up and then me family’. Tommy said, ‘You’d better get out of here and go down to my ma’s.’ Me and Tommy walked down. We didn’t walk, we actually ran.
The significance of the reference to the ‘Roes’ is that John Clarke had a girlfriend, with whom he was living, Christine Roe.
Christine Roe went to the Camelot Hotel after this initial fracas and was told about it and she at this stage met Glen Larkin who had returned to the hotel with his brother, Tommy, and another man. This was David Pearson. Christine Roe gave evidence that Glen Larkin had said to Brian McCabe that he was going to smash his house and burn it. She said that Tommy Larkin had opened his jacket and had a machete with a green cover on it and that he took the green cover off. According to her, Glen Larkin said that he was going to chop John Clarke’s head off and that he would burn her mobile home whether she and the children were in it or not.
The next phase of activities was that Glen Larkin together with his brother Tommy and David Pearson left the Camelot Hotel and headed for home. After they had gone a certain distance John Clarke approached them and, according to Pearson, Glen Larkin said: ‘There is no need for guns’. Pearson left on Glen Larkin’s bicycle and Tommy ran in another direction. About five minutes later they heard the sound of a gun shot from the area of a nearby industrial estate.
Tommy Larkin’s evidence was to the effect that he saw the defendant coming from the side entrance of Darndale with a rifle barrel hanging down under his coat. He also saw the accused’s father. He said that John Clarke was moving the gun upwards and said: ‘Glen, I want you.’ According to him Glen Larkin replied: ‘Leave it out, John, no guns’ and then shouted ‘run’ to his brother, Tommy. He had got home by the time he heard the shot. His home was a couple of hundred yards away.
Geoff Hawkins, a security man attached to the industrial estate, where the incident happened said that at about 9.50 he heard a loud bang and on going to investigate he saw a body outside the security fence.
Marie Carr, a sister of John Clarke, said that she went to the Camelot Hotel and was on the way home in her car when she heard that someone had been shot. She said that she met John Clarke and that he was in a bad state. He said he wanted to do away with himself. He thought he had shot someone. She said that she left him and went off to the Camelot and spoke to her parents. She brought the defendant John Clarke to St Brendan’s Psychiatric Hospital.
To revert to the account given by the accused in his statement. Having recounted that when he got home his mother told him that Larkin was a ‘junkie’ and in view of the bite that he had got that he should go to hospital because he might get AIDS, he then went on to say:
I was worried about the AIDS but I was more worried about him coming down and chopping my head up or attacking my family because he knows where I live. While I was there I got a ‘phone call from my girlfriend Christine to tell me that ‘Glen was up here — that’s at the Camelot because she was ringing from the Camelot — with a hatchet and he’s gone up to Tommy’s house’. I knew my father had two guns upstairs; a shotgun and a rifle. I went up and grabbed the shotgun and loaded it. It’s a single barrel shotgun and I only put one cartridge in it. I didn’t take any more with me. I only intended using it to frighten him — to get him to stop. Tommy and I then ran back up to Darndale. Tommy actually went ahead of me. We left just minutes apart. I was wearing a long blue jacket. I wasn’t actually wearing the jacket but I carried it over the gun to conceal the gun. Just as I arrived at Tommy’s place in Marigold Court, Darndale, I saw Glen coming towards me from the direction of the shops. He wasn’t really coming towards me. He probably didn’t even see me, but I could see him. I don’t know if there was anyone with him. I could just see him. He may have seen me I don’t know — but anyway he started running down towards Coolock, the Link Road. He was carrying something in his hand, I cannot say what it was because he was too far away. At the same time as we started running I saw my brother Tommy there but he didn’t run with me. He was shouting to me to ‘Stop, hold on’. That’s all I heard. I didn’t see my father there or hear him shouting at me. I lost sight of Larkin for a minute or so going through the alleyways in Darndale but when I got to the Link Road I saw him going across the road into the factories …. I followed him into the industrial estate because I thought he was going over to my girlfriend’s house. He had threatened the Roes earlier and this is the quickest route from Darndale to my girlfriend’s house, 21 Ferrycarrig Avenue, where I live as well. When I got into the industrial estate and got to the place I showed you beside Blue Water Shipping the two of us just met. He looked back and said, ‘I’m fucking going to kill you. I said, ‘Glen what are you bringing my family into it for?’ He told me to ‘Fuck off’. Then he started running towards me saying, ‘I’m going to kill you, I’m going to kill you.’ I said to him, ‘Glen go back, I don’t want to do anything, I don’t want to shoot you.’ I had the gun openly displayed to frighten him off, but he kept coming. He kept saying, ‘I’m going to kill you, I’m going to kill you.’ I believed that he was armed with a hatchet though I never actually saw the hatchet. He was running at me. I was holding the gun pointing down at the road. As he got closer I stepped back a bit but he still kept coming. I raised the gun intending to fire a shot over his head but he was still coming. I pulled the trigger and he fell on the ground in front of me. He fell right back on his back with his arms outstretched. I didn’t see any blood but I knew I had shot him. I just panicked. There was nobody else there that I could see. I ran down to the end of the industrial estate to the high wall. I couldn’t carry the gun over the wall so I hid it under that metal thing where I pointed it out to you today. I then went over the wall and into Coolock. I was wandering around Coolock for a while.
Having detailed his hospitalisation he said at the end of his statement that he never intended shooting the deceased. He said that he was sorry and wished that it had never happened. He said: ‘I didn’t mean to shoot him, just to warn him off.’
In an interview held with the accused and Detective Inspector O’Brien and Detective Garda Palmer the next day the following dialogue took place. This was reproduced in a memo which was put in evidence.
What happened 10 to 15 yards before the shooting?
He turned around and said, ‘I am going to fucking kill you’. He was walking towards me when he was saying this.
Where was the gun at this stage?
I had it by my side pointing straight down. He kept coming so I brought the gun in front of me but it was pointing down to the ground.
When you brought the gun in front of you what did he do?
He ran at me.
What distance was he in front of you when you fired the shot?
He was about 3 yards in front of me when I raised the gun and fired the shot.
Before he fell to the ground can you say how far he was from you?
He was a couple of feet.
Did he handle the gun or yourself?
No.
In subsequent statements made over the next two days the accused corrected certain aspects of his original statement, especially in relation to who had accompanied him when he and the deceased confronted each other. It appears clear that he was accompanied by his brother Tommy whom he had supplied with a machete and in fact his father also accompanied him on the final mission that led to the tragedy. It is possible, though not certain, that his father may have had a pick-axe handle with him.
At all stages the accused repeated that the essential description that he had given of the circumstances in which he came to shoot the deceased was the truth.
Course of trial
The accused did not give evidence at his trial. His counsel took the stance in his address to the jury that the accused should be acquitted; a verdict of manslaughter was not canvassed on his behalf.
Possible verdicts
Nonetheless, it will be clear that the three possibilities open to the jury in this case were to return a verdict of murder; to hold that the defence of self-defence should prevail leading to a not guilty verdict or to hold that there had been excessive force used in the sense referred to in People (Attorney General) v. Dwyer [1972] IR 416 leading to a verdict of manslaughter.
Grounds of appeal
Ten grounds of appeal were set forth in the notice of appeal but it is necessary to deal with two of them only, viz.
(i) The learned trial judge, it is said, erred in law and in his summation of the evidence in effectively directing the jury that an acquittal of the accused, based on his defence of self-defence, was, to use his Lordship’s phrase, ‘a theoretical possibility’.
(ii) The learned trial judge misdirected the jury in relation to the statements made by the accused man to the police and unfairly contrasted the admissions tendered against him and the exculpatory portions of those statements with sworn evidence in such a manner as effectively to subvert completely the right of the accused not to give evidence at the trial and effectively directed the jury to devalue the evidence of statements made by the accused while in garda custody.
With regard to the defence of self-defence
The correct statement of the law on this topic is to be found in the decision of the Supreme Court in People (Attorney General) v. Quinn [1965] IR 366 at p. 382. Walsh J, speaking for the court, said:
When the evidence in a case, whether it be the evidence offered by the prosecution or by the defence, discloses a possible defence of self-defence the onus remains throughout upon the prosecution to establish that the accused is guilty of the offence charged. The onus is never upon the accused to raise a doubt in the minds of the jury. In such case the burden rests on the prosecution to negative the possible defence of self-defence which has arisen and if, having considered the whole of the evidence, the jury is either convinced of the innocence of the prisoner or left in doubt whether or not he was acting in necessary self-defence they must acquit. Before the possible defence can be left to the jury as an issue there must be some evidence from which the jury would be entitled to find that issue in favour of the appellant. If the evidence for the prosecution does not disclose this possible defence then the necessary evidence will fall to be given by the defence. In such a case, however, where it falls to the defence to give the necessary evidence it must be made clear to the jury that there is a distinction, fine though it may appear, between adducing the evidence and the burden of proof and that there is no onus whatever upon the accused to establish any degree of doubt in their minds. In directing the jury on the question of the onus of proof it can only be misleading to a jury to refer to ‘establishing’ the defence ‘in such a way as to raise a doubt’. No defence has to be ‘established’ in any case apart from insanity. In a case where there is evidence, whether it be disclosed in the prosecution case or in the defence case, which is sufficient to leave the issue of self-defence to the jury the only question the jury has to consider is whether they are satisfied beyond reasonable doubt that the accused killed the deceased (if it be a case of homicide) and whether the jury is satisfied beyond reasonable doubt that the prosecution has negatived the issue of self-defence. If the jury is not satisfied beyond reasonable doubt on both of these matters the accused must be acquitted.
Walsh J returned to this topic in People (Attorney General) v. Dwyer [1972] IR 416 at p. 420:
A homicide is not unlawful if it is committed in the execution or advancement of justice, or in reasonable self-defence of person or property, or in order to prevent the commission of an atrocious crime, or by misadventure. In the case of such self-defence, the homicide is justifiable and is therefore not unlawful. In such a case, where the evidence in the trial discloses a possible defence of self-defence, the onus remains throughout upon the prosecution to establish that the accused is guilty of the offence charged: see the decision of this Court in People (Attorney General) v. Quinn [1965] IR 366. If the prosecution has not satisfied the jury beyond reasonable doubt that the accused had not believed on reasonable grounds that his life was in danger and that the force used by him was reasonably necessary for his protection, the accused must be acquitted of any charge of unlawful homicide. To put it another way, but without suggesting that there is any reduction in the burden of proof on the prosecution, the homicide is not unlawful if the accused believed on reasonable grounds that his life was in danger and that the force used by him was reasonably necessary for his protection. In such a case he is entitled to a complete acquittal. At one time it was thought that the person attacked was required to retreat so far as he could before resorting to force; this point is considered in R. v. McInnes [1971] 1 WLR 1600 where Edmund Davies LJ, delivering the judgment of the criminal division of the English Court of Appeal, said at p. 1607 of the report that this was too inflexible ‘and might, in certain circumstances, be regarded as significantly misleading’. He preferred the view expressed by the High Court of Australia in R. v. Howe (1958) 100 CLR 448 that a failure to retreat is only an element in the considerations on which the reasonableness of an accused’s conduct is to be judged, and he quoted with approval the statement of the position put in Smith and Hogan’s Criminal Law (2nd ed. at p. 231) that it was ‘simply a factor to be taken into account in deciding whether it was necessary to use force, and whether the force used was reasonable’.
He went on to recount, as far as the circumstances of that case were concerned, that where self-defence fails as a ground for acquittal because the force used by the accused went beyond that which was reasonable in the light of the circumstances but was no more than the accused honestly believed to be necessary in the circumstances, he is guilty of manslaughter and not of murder.
In the course of delivering the opinion of the Privy Council in Palmer v. R. (1971) 55 Cr App R 223 Lord Morris of Borth-y-Gest, in a passage which sets out the parameters of how a jury should approach this question of self-defence, said (at pp. 242–243):
It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. Of these a jury can decide. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack, it would not be common sense to permit some act of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then immediate defensive action may be necessary. If the moment is one of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction. If the attack is all over and no sort of peril remains, then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may be no longer any link with a necessity of defence. Of all these matters the good sense of a jury will be the arbiter. There are no prescribed words which must be employed in or adopted in a summing-up. All that is needed is a clear exposition, in relation to the particular facts of the case, of the concept of necessary self-defence. If there has been no attack, then clearly there will have been no need for defence. If there has been attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary, that would be most potent evidence that only reasonable defensive action had been taken …. But their Lordships consider … that if the prosecution have shown that what was done was not done in self-defence then that issue is eliminated from the case. If the jury consider that an accused acted in self-defence or if the jury are in doubt as to this, then they will acquit. The defence of self-defence either succeeds so as to result in an acquittal or it is disproved, in which case as a defence it is rejected.
In a homicide case the circumstances may be such that it will become an issue as to whether there was provocation so that the verdict might be one of manslaughter. Any other possible issues will remain. If in any case the view is possible that the intent necessary to constitute the crime of murder was lacking, then the matter would be left to the jury.
There is no doubt that at the outset of his charge the learned trial judge gave an impeccable direction to the jury as to the three options open to them: to convict of murder; to acquit completely or to find the accused guilty of manslaughter. In regard to the latter possibility, he dealt fully with what might be termed the Dwyer case manslaughter option.
However, in the course of his analysis of the evidence he commented on what he called the ‘obligation to retreat’ — which ‘obligation’ has now, of course, been modified in the manner described in the passage already quoted from the Dwyer case. He made the point that the guards should have been called after the first attack and after Glen Larkin had come back for the second episode at the Camelot Hotel that once again an attempt should have been made to contact the guards. He pointed out that instead of that the accused went from the Camelot Hotel to his father’s house and there armed himself with a gun and armed his brother Tommy with a machete and that the three then set out, thus armed, and he said that as a matter of law that did not appear at all consonant with the obligation to withdraw from conflict and to retreat from danger of assault rather than using force and violence to propel it. The judge also said that they did not set out to defend the dwelling house that was meant to be subjected to an attack by Larkin and appeared to set out to confront the assailant.
Whether these comments went outside the limits of a trial judge’s entitlement to comment on the facts of a case does not require to be resolved in this case because a more fundamental defect occurred in his charge. Unfortunately, having made these comments, the learned trial judge then said the following:
While the verdict is open to you, ladies and gentlemen, and you could in theory acquit him of all responsibility, as I say it appears to me that the facts, even as described in the statement of the accused, hardly admit of the possibility of an acquittal, because there was ample time to avoid the confrontation. There was ample time to notify the guards. You are not entitled to go and get a lethal weapon and go in search of somebody to protect even yourself and your family if there are other means available to you which you should make use of. And we have been given no suggested explanation why it was not possible to invoke the power of the law on that occasion.
The court is of opinion that this part of the charge set at nought the previous impeccable part of the charge on the correct approach to the defence of self-defence. To say to a jury that something is only theoretically possible is in effect to invite them not to consider it at all; whereas it was accepted by the judge at the outset of his charge and was accepted by counsel for the prosecution at the trial and before this Court that the defence of self-defence had been raised to the extent necessary for consideration by a jury. Once raised, a charge along the lines described in the Quinn case was required. In the extract quoted, the judge went beyond commenting on the particular facts of the case; his direction was bound to be taken by the jury as a direction on a matter of law and that really amounted to a direction to them not to consider in any realistic way the defence of self-defence.
We think this ground of appeal has been made out.
As regards the weight to be attached to statements by accused
The learned trial judge dealt with this matter as follows:
Then turning to the statement made by the accused man himself or the statements I should say. Something the jury may not be conscious of but I have to draw your attention to it is this. A statement made to the guards is not in the same category as evidence in the case. Evidence in a case is somebody getting into the witness box, taking the oath, giving his evidence orally and allowing the jury to assess his evidence as he gives it, listen to a cross-examination if there is one and see whether a person is shaken in any way in his evidence … a statement made to the guards is not at all in the same category as a statement made on oath subject to cross-examination, subject to the jury assessing what they think of the witness and whether they are convinced by his evidence or not. I say that because at some stages in his closing address to the jury Mr McDowell spoke to you about the statement as though it were evidence. It is only evidence of what the accused man said to the guards the day after.
The judge then went on to point out that an accused had no obligation to give evidence and he then went on to point to the corrections that the accused had made to his original statement in particular as regards who had accompanied him on the last fatal mission and so forth. The sole point for resolution in dealing with this ground of appeal is the direction that should be given to a jury in relation to a statement made by an accused which contains incriminatory as well as exculpatory matter.
On being requisitioned to recall the jury on this point, the following dialogue may be noted between counsel and judge.
Mr McDowell: My lord, in my submission it is a self-evident proposition, that if something is said in a statement to the police and tendered as part of the evidence in the case it is either admissible or it is not admissible, my lord. That is the first thing. And if it is admissible ….
Judge: It is admissible as a confession or admission.
Mr McDowell: Yes, my lord. But the totality of the statement must be admitted in evidence or none of it, my lord, save with limited exceptions. And in my submission, my lord, it is not sufficient to say that anything that is damnifying as far as the accused is concerned is admissible as evidence against him but anything that is self-serving belongs to a wholly different category and can be disregarded or put into a wholly different category from sworn evidence itself. That is effectively what your lordship told the jury.
Judge: Yes. And you disagree with that?
Mr McDowell: I fundamentally disagree with that proposition, my lord.
Mr McDowell went on to elaborate his grounds of objection which he repeated before us.
The law on this topic was reviewed extensively in the decision of the Court of Criminal Appeal in People (Attorney General) v. Crosbie (1961) 1 Frewen 231 (31 July 1961). The court comprised Maguire CJ, McLoughlin and Teevan JJ. The judgment in the case was given by Teevan J.
The true position in law, as established by that case, and which we take this opportunity of reiterating is that once a statement is put in evidence, as in this case by the prosecution, it then and thereby becomes evidence in the real sense of the word, not only against the person who made it but for him as to facts contained in it favourable to his defence, or case. A jury is not bound to accept such favourable facts as true, even if unrefuted by contrary evidence, but they should be told to receive, weigh and consider them as evidence.
It appears that the learned trial judge’s approach was to draw a distinction between the incriminating parts and the exculpatory parts of the original statement. For some time this approach held sway in England but it appears now that it no longer prevails: see the judgment of the Court of Appeal, criminal division in R. v. Duncan (1981) 73 Cr App R 359. The court, in the course of its judgment, at p. 365, said as follows:
Where a ‘mixed’ statement [meaning thereby one that contains incriminatory as well as exculpatory matter] is under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and, therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies. It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state. Equally, where appropriate, as it usually will be, the judge may, and should, point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. Nor is there any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused not to give evidence.
This has been affirmed as a correct statement of the law in England by the House of Lords in R. v. Sharp (1987) 86 Cr App R 274.
With reference to the present case, while the judge was entitled to comment unfavourably on certain changes that had been made in regard to the accused’s original statement there was an obligation on him when dealing with the statement to remind the jury that the accused had raised the defence of self-defence fairly and squarely in the course of his first statement and that they thus had to consider that defence. It would have been appropriate, too, to point out that that statement was made at a very early stage before the accused had got any legal advice and was made spontaneously to the gardaí. It was necessary to remind the jury that the accused had never departed from the essential stance that he had taken as regards why he shot the deceased. The jury might have believed that explanation or disbelieved it and, either way, might still have held against the accused. But his explanation should have been laid before the jury as part of the evidence in the trial. Then they could accept it as true or reject it as false and resolve the issue of guilt or innocence having regard to the onus of proof that rested on the prosecution.
The court is of the opinion that this ground, too, has been made out.
Other grounds
While other grounds were advanced by Mr McDowell as regards the evidence of the witnesses who accompanied the deceased on his final journey and some objection was made as regards the way the judge in his charge to the jury dealt with the state pathologist’s evidence, we do not think it necessary to dwell on them since it is clear that there was a fundamental misdirection on the two grounds already discussed.
Conclusion
The court is accordingly satisfied that the applicant should be given leave to appeal, will treat the application as the appeal, quash the conviction and order a re-trial.
The court will hear the submissions of counsel as to what should be done in relation to the firearms charges.
Note: Having heard submissions the court ordered that the convictions for the firearms offences be quashed and a new trial directed on those charges also.
People (DPP) v Nally [2006] I.E.C.C.A. 128
JUDGMENT of the Court delivered by Mr. Justice Kearns on the 12th day of October, 2006
The applicant herein was charged that on the 14th October, 2004 at Funshinaugh Cross, Claremorris, Co. Mayo, he did murder one John Ward, a member of the travelling community who, on the date in question, had come unsolicited with his son Tom Ward to the applicant’s house. The trial took place in July, 2005 before Carney J sitting in the Central Criminal Court in Castlebar Courthouse. At the conclusion of the trial on the 20th July, 2005, the jury returned a verdict of manslaughter, the applicant having pleaded not guilty to the single count on the indictment.
The applicant is a bachelor aged 60 who at the time lived alone on a 65 acre farm at Funshinaugh. He has a sister who works in Ballina but who at the time of these events used to stay at weekends with her brother in the house on the farm in which both had grown up. This was largely to reassure the applicant who had developed major anxieties that his house would be burgled and that he himself might be harmed or killed by intruders. There was a basis for these fears. Considerable evidence was given during the course of the trial that there had been a spate of thefts and burglaries in the area in 2004, which, in the mind of the applicant at least, were sufficient to put him in constant fear and apprehension that he could at any time be a victim of such crime.
Around lunchtime on the 14th October, 2004, the applicant was alone in the house on the farm. While listening to the radio he heard the sound of a vehicle in the driveway. He went out and found Mr. Tom Ward sitting alone in the driver’s seat of a car and revving the engine in a loud manner. The applicant asked Tom Ward what he was doing on his property. Mr. Ward indicated he was enquiring as to whether or not a white car on the applicant’s property was for sale. The applicant was suspicious that Mr Ward was not alone and asked where “his mate was”. Mr Ward told him that his father, John Ward, had gone around the back of the house “to take a look”. The applicant passed a remark to the effect that, if so, “he would not be coming out”. He went round the back and, on then seeing John Ward pushing open the back kitchen door of the house, retrieved a loaded single barrel shotgun from a nearby shed. The applicant gave evidence that as he approached John Ward, a shot was accidentally discharged from the gun which hit John Ward in the lower right loin area and right hand. According to the applicant, John Ward then threw himself at the applicant and a ferocious physical struggle ensued. At some point the applicant managed to pick up a length of wood with which he struck John Ward repeatedly across the head and upper body. Mr Ward suffered a fractured arm in his efforts to defend himself. Mr. Ward had called out to his son for assistance but at this point, Mr. Ward junior left the scene in the vehicle. It was the applicant’s case that he was extremely concerned that Mr. Ward junior was gone for reinforcements or that he might return with some weapon. Mr. Ward senior appears to have been a man of considerable strength who had much experience of fighting He was also a man with a number of previous convictions, including convictions for burglary, and evidence was given at trial that he was a man of violent disposition. John Ward remained conscious at all stages of the assault and began to limp or run from the property. As he did so, the applicant returned to the shed and retrieved more cartridges and reloaded the shotgun. He followed Mr. Ward out onto the public roadway and there fired a further shot at him from a few yards distance and it was this second shot which proved fatal. Realising that Mr. Ward was dead, the applicant picked up his body and threw it into an adjoining field. The applicant gave evidence that he feared the consequences if others returned and found the body. He then went to a neighbour’s house from where the gardaí were called and the applicant met them at the farm and indicated exactly what had taken place.
There was evidence from the applicant’s sister that on the Sunday before the incident the applicant was extremely upset by incidents of burglaries and attacks on people in their homes in the area. Property had been removed from both the home of the applicant and his immediate neighbours in prior incidents. In particular a chainsaw had been stolen from the applicant’s property in February, 2004 and his gun had been moved from one position to another in the house. Both the applicant and some neighbours were so concerned with these incidents that they had started noting the registration numbers of unfamiliar cars that entered their properties. The applicant gave evidence that the Wards had entered his property some weeks previously in a car, ostensibly for the purpose of seeking directions to the nearby lake, a reason the applicant did not believe or accept was genuine. He was also obsessed with other incidents of local crime and notably by the circumstances of two brothers, the Gilmore brothers, who had lived in the next town of Ballinrobe, who had been tied up and left to die in their own homes, albeit that that incident had occurred many years previously. The applicant gave evidence that on the days leading up to the incident he had considerable difficulty sleeping and was on edge. He also gave evidence that he would splash water on the ground near the entrance gate so that on any occasion when he left the house he could on returning check to see if intruders had entered the property by checking for footprints or tyre marks in the mud.
The applicant’s defence at trial was one of self-defence. At the conclusion of all the evidence in the case there was a rather unusual development when Mr. O’Higgins, senior counsel for the respondent, invited the trial judge in the absence of the jury to rule and direct that the defence of self-defence raised by the applicant be allowed go to the jury in a truncated form, shorn of any possibility that the jury might acquit altogether, on the basis that the amount of force used by the applicant was so excessive as to destroy any notion that it was objectively reasonable and that in such circumstances it should only be open to the jury to convict of either murder or manslaughter. Mr. O’Higgins submitted that to rule otherwise would be to open the door to some form of prophylactic killing as part of the legal regime of self-defence. He submitted that, on the facts established in evidence, Mr Ward senior had retreated from the scene but was nonetheless shot in circumstances where he no longer posed a threat to the applicant. The shot fired on the roadway outside the applicant’s farm was clearly the fatal shot and was fired at a time when the applicant could have removed himself from the scene either on foot or in his car. Further, the applicant had told the Gardaí in the immediate aftermath of the event that he intended to kill Mr. Ward because of all the aggravations to which he had been subjected, that he could take no more and had, in fact, considered killing himself also following this incident. The trial judge should not, he urged, leave open the possibility that the jury might bring in a verdict which, if it was a complete acquittal, would be plainly perverse.
In ruling upon the matter the learned trial judge stated:-
“In my view if the jury, on the evidence which we have had in this case, found a full self-defence to be applicable, in other words that there was no crime, that would be perverse having regard to the evidence which has been given and I do not allow the full defence of self-defence. I do allow the partial defence of self-defence which is of course capable of reducing the admitted killing from murder to manslaughter and the case may proceed to the jury on that basis”
At this stage, and at the conclusion of the above ruling, counsel for the defence requested that provocation be also allowed go to the jury and this request was acceded to.
The jury retired to consider their verdict on the 20th July, 2005. Having deliberated, the jury returned a verdict of not guilty of murder but guilty of manslaughter on a unanimous basis. Thereafter the learned trial judge imposed a sentence of six years imprisonment to date from the 11th November, 2005.
On the hearing of the appeal, counsel for the applicant argued that once the issue of self defence has been raised, either by way of evidence directly provided by the defence or based on evidence adduced as part of the prosecution case, it then became an issue solely and exclusively for determination by the jury and that the trial judge was not entitled to truncate the defence in the manner which he did. Counsel argued that while the judge was entitled to express a view in relation to the facts, he was precluded from directing that the evidence adduced was sufficient to require a particular verdict one way or the other. That being so, the trial judge in this case was not entitled to deprive the jury of the option of considering whether the force used by the applicant was objectively reasonable, nor was he entitled, where no unlawful killing had been admitted, to direct the jury that they must find the applicant guilty of either murder or manslaughter, or indeed of any offence.
On behalf of the prosecution it was submitted that the charge to the jury in relation to the defence of self-defence was correct on the facts and evidence in this case. It was not contended on behalf of the applicant that the killing was an accident. Nor were the circumstances of the killing in dispute. Indeed they were described by the applicant himself in statements made to the Gardaí. What was at issue was the subjective state of mind of the applicant at the time he shot dead the deceased. It was submitted on behalf of the prosecution that the trial judge could not have left the full defence of self-defence to the jury on the facts and evidence in the case – and thereby afford to the jury the option of acquitting the accused completely – as to do so would be misdirect the jury in relation to the law of self-defence.
DECISION
The law of self-defence in this jurisdiction is neatly encapsulated in the following passage from the judgment of Butler J. in The People [A.G.] v Christopher Dwyer [1972] I.R. 416 at p.429:-
“A person is entitled to protect himself from unlawful attack. If in doing so, he uses no more force than is reasonably necessary, he is acting lawfully and commits no crime even though he kill his assailant. If he uses more force than may objectively be considered necessary, his act is unlawful and, if he kills, the killing is unlawful. His intention, however, falls to be tested subjectively and it would appear logical to conclude that, if his intention in doing the unlawful act was primarily to defend himself, he should not be held to have the necessary intention to kill or cause serious injury. The result of this view would be that the killing, though unlawful, would be manslaughter only.”
In the course of his summing up to the jury, the learned trial judge directed the jury in relation to the issue of self defence in the following manner:-
“Now self-defence permits of two different terms of defence. There is what is known as full self-defence, and where full self-defence operates, there is no crime at all. A person is entitled to use reasonable force to defend his life and to defend somebody else’s life, and if the force was reasonable having regard to all the circumstances, then even though there was a killing and even though there was a deliberate killing, there is no crime committed. Now I have ruled in your absence that, on the facts of this case, a finding that the force used to kill John Ward was reasonable and necessary to the degree that no crime at all was committed and that it was totally and entirely justified would be a perverse finding, and it is not open to me to allow matters to go to you which I rule as a matter of law are perverse….Now that ruling on my part is not the end of the matter because the law goes on to say that if the force used was excessive, but it was no more than the accused man considered necessary, then it is not murder, it is manslaughter. As I said, you apply the subjective test. In other words, you assess the state of belief that would operate having regard to his obsessions, to his lifestyle, to his baggage, to his history.”
Having cited the above passage from the judgment of Butler J. in The People (A.G.) v Christopher Dwyer, the learned trial judge continued:-
“So that is your battle ground in respect of the question of self-defence. I have ruled that the amount of force here cannot objectively be justified, but if you find that the accused man in a situation was using no more force than he considered reasonably necessary in the circumstances prevailing, murder would not be made out and the unlawful killing would be manslaughter.”
It will be apparent that two questions arise as a result of the ruling and direction given by the learned trial judge in this case. They are:-
(a) May the trial judge allow a limited form of self-defence only to be considered by the jury, notwithstanding that the defence wish that the entire issue of self-defence be considered by the jury?
(b) Is the trial judge entitled, on facts such as those established in the present case, to direct the jury effectively to bring in a verdict of guilty of either murder or manslaughter, shorn of any possibility of a verdict of not guilty?
The Court is satisfied that the answer to the second of these two questions is determinative of both.
In The People (Director of Public Prosecutions) v Mark Davis [1993] 2 I.R.1 the Supreme Court held that the constitutional right to trial with a jury had, as a fundamental and absolutely essential characteristic, the right of the jury to deliver a verdict. The court further held that, while there was a right and duty vested in a trial judge, at any stage of a criminal case, to withdraw the case from the jury and direct them to enter a verdict of not guilty, there was no corresponding right or duty on the part of a trial judge to direct a jury to enter a verdict of guilty.
In the course of his judgment, Finlay C.J. stated at pp. 14-15:-
“It is the actual direction to the jury, leaving to them no discretion or function in the matter to enter a verdict of guilty which I am satisfied is clearly unconstitutional. It is open to a judge in an appropriate case to express an opinion that a particular verdict of guilty is the only one which would be reasonable or proper on the evidence, but that must of necessity fall short of the right to direct a verdict of guilty.
In expressing his view in The People (Director of Public Prosecutions) v O’Shea [1982] I.R. 384 that the prosecution had no right to appeal from an acquittal entered by a jury, Henchy J. at p.438 stated as follows:-
‘The lack of reciprocity, residing in the fact that the accused is allowed to appeal a conviction while the prosecution is debarred from appealing an acquittal, is accepted and justified on the ground that it is part of the price that has to be paid for the independent verdicts of lay people sitting as jurors and applying community standards. Both judges and legislators have accepted that while a jury properly instructed by the trial judge have no right to bring in a verdict for the accused which is against the evidence, yet they have a power to do so; and that the risks inherent in any efforts at controlling the exercise of that power would not be warranted. The use of the power to err in favour of the accused is left to the consciences of the jurors. In any event, what may seem to judges to be a perverse verdict of acquittal may represent the layman’s rejection of a particular law as being unacceptable. So it is that such verdicts have often led to reform of the criminal law.’
Though this statement was part of the dissent of Henchy J. in that case, I adopt it in its application to the apparent inconsistency or anomaly arising from what I believe to be the true position that a judge can and must direct a jury to enter a verdict of not guilty in a case where he believes that it is justified, and may not direct a jury to enter a verdict of guilty in a case in which he feels that to be the only proper verdict.
I am satisfied that the mischief which could flow from any invasion, no matter how carefully circumscribed on the basis of being available only in exceptional cases, of the right of a jury itself to consider and finally to decide on the guilt or innocence of the accused, in the manner in which I have outlined in this judgment, is much greater than any conceivable harm that can arise from the inability of a judge to direct the entry of a verdict of guilty in certain cases.”
A similar view was recently taken by the House of Lords in R. v Wang [2005] 1 WLR 661, where it was decided that the decision of all factual questions, including the application of law as expanded by the trial judge, was a matter for the jury.
In that case, Lord Bingham delivered a judgment in the course of which he reviewed a number of authorities, including Woolmington v Director of Public Prosecutions [1935] AC 462, in respect of which he stated (at 666):-
“Woolmington v Director of Public Prosecutions is of course remembered above all for the affirmation by Viscount Sankey L.C. of the onus lying on the prosecution to prove the defendant’s guilt where issues of accident or provocation arise. But on reaching that conclusion he held, at p.480, in terms with which the other members of the House agreed:
‘If at any period of a trial it was permissible for the judge to rule that the prosecution had established its case and that the onus was shifted on the prisoner to prove that he was not guilty and that unless he discharged that onus the prosecution was entitled to succeed, it would be enabling the judge in such a case to say that the jury must in law find the prisoner guilty and so make the judge decide the case and not the jury, which is not the common law.’
Lord Oaksey, giving the judgment of the Privy Council, in Joshua v The Queen [1955] AC 121, 129-130, spoke to similar effect..
‘On the second question the Lordships are of opinion that it was for the judge to direct the jury as to the elements of the crime of effecting a public mischief (assuming that such a crime exists) and to direct them on the facts if he thought that there was evidence to go to the jury, and it was for the jury to find whether the appellant was guilty upon those facts. It was a misdirection to tell the jury as a matter of law that they must convict the appellant if they found that he had spoken the words alleged. To do so, was, in their Lordships’ opinion, to usurp the function of the jury… It is a general principle of British law that on a trial by jury it is for the judge to direct the jury on the law and insofar as he thinks necessary on the facts, but the jury, whilst they must take the law from the judge, are the sole judges on the facts..’”
Lord Bingham also cited with approval the following passage from the speech of Lord Devlin in Chandler v Director of Public Prosecutions [1964] AC 763 (at pp 803-04) where he stated:-
“It is the conscience of the jury and not the power of the judge that provides the constitutional safeguard against perverse acquittal…A judge may, of course, give his opinion to the jury on a question of fact and express it as strongly as the circumstances permit, so long as he gives it as advice and not as direction.”
Long Bingham finally considered the extended treatment of this topic by the House in Director of Public Prosecutions v Stonehouse [1978] A.C. 55. For present purposes, the Court does not propose to go further than to note Lord Bingham’s approbation for the views expressed in that case by Lord Salmon when he stated (at pp. 79-80):-
“Whilst there is no doubt that if a judge is satisfied that there is no evidence before the jury which could justify them in convicting the accused and that it would be perverse for them to do so, it is the judge’s duty to direct them to acquit. This rule, which has long been established, is to protect the accused against being wrongly convicted. But there is no converse rule – although there may be some who think that there should be. If the judge is satisfied that, on the evidence, the jury would not be justified in acquitting the accused and indeed that it would be perverse of them to do so, he has no power to pre-empt the jury’s verdict by directing them to convict. The jury alone have the right to decide that the accused is guilty. In any appropriate case (and this was certainly such a case) the judge may sum up in such a way as to make it plain that he considers that the accused is guilty and should be convicted. I doubt however whether the most effective way of doing so would be for the judge to tell the jury that it would be perverse for them to acquit. Such a course might well be counter-productive.”
The House thus concluded in R. v Wang [2005] 1 WLR 661 that there were no circumstances in which a judge was or is entitled to direct a jury to return a verdict of guilty.
Unfortunately, neither the decision of the Supreme Court in Davis or any of the English authorities referred to above were opened to the learned trial judge. Perhaps this was because the proceedings were heard procul ab urbe – far from the city – in circumstances where the marshalling of written legal authorities may have posed certain practical difficulties. Nonetheless, the prosecution should have anticipated that the nature of the ruling being sought was one which required support, if it was available, from decided authority. Quite clearly, the issue of self-defence was a central issue at every stage of this case.
It is manifest from a perusal of the transcript of 5th December, 2005, when an application for leave to appeal was made in the aftermath of the trial, that the learned trial judge was considerably vexed because counsel had not referred him to the decision of the Supreme Court in The People (D.P.P.) v Mark Davis [1993] 2 I.R. 1 at the time when a ruling was sought from him that the jury must find the applicant guilty of either murder or manslaughter. In referring to Davis, Carney J. stated:-
“The judgment of Chief Justice Finlay establishes clearly that the direction given to the jury by the trial judge usurps the function of the jury and a result the trial was procedurally unfair and not in accordance with the law. It is explicit from the judgment that although a trial judge can direct an acquittal he cannot direct a conviction. There exists a right for a jury to be wrong.
Now, that judgment obviously has caused me great difficulty in this case. It was a unanimous decision of the Supreme Court (and) was not opened to me, so I was not able to consider matters in the light of it. I don’t accept Mr Grehan’s suggestion that even an experienced trial judge at the end of such a fraught trial is going to have bubbling at the top of his mind everything that the superior court might have said a decade ago.
This was quite an exceptional trial in which the people of Ireland divided themselves on social lines, to put it at its lowest. It was a highly emotional and fraught trial. It contained circumstances which I doubt were ever contemplated by judges who had anything to do with previous lines of authority, which exist in this area.”
This Court has little doubt but that had the prosecution allowed this trial to proceed in the usual manner, the learned trial judge would have given appropriate directions to the jury in the usual form. That usual form would have enabled the trial judge express his opinion that the amount of force used could not in his view be objectively justified in the context of the defence of self-defence, but would have left the ultimate decision on that issue to the jury. As events transpired, the jury were denied the opportunity to return a verdict of not guilty, even if such a verdict may have flown in the face of the evidence and however inappropriate the learned trial judge might have considered such an outcome to be. The authorities, both in this and the neighbouring jurisdiction, make it abundantly clear however that the jurors, who swear an oath to deliver a verdict in accordance with the evidence, must retain the ultimate power to determine issues of guilt or innocence. That must, of necessity, include the power to return a verdict which conflicts with the opinion of the learned trial judge, however experienced that judge may be. The question whether the amount of force used is objectively reasonable is quintessentially a matter of fact for a jury.
While the Court therefore feels compelled to accede to the application for leave to appeal and to quash the conviction herein, it would wish to emphasise the important responsibility resting with counsel to place all relevant authorities before the trial judge when seeking rulings or directions of such importance in the course of a criminal trial. In quashing the conviction the Court will also direct a retrial.
DPP v Quinn
[2015] IECA 308
JUDGMENT of the Court delivered by Sheehan J. on the 18th day of December 2015
[1] Introduction
[1.1] On the 21st November 2013, following a twelve-day trial before the Dublin Circuit Court, the appellant was convicted on four of the seven counts on the indictment.
[1.2] On Count 3 the appellant was found guilty by unanimous verdict of causing serious harm to Lee Harte on the 9th October 2011 contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997 and sentenced to eight years imprisonment in respect of that offence. In respect of Count 4, the appellant was found guilty by unanimous verdict of assault causing harm to Curtis Lennon and in respect of Count 5 the appellant was found guilty of assault causing harm to James Toner Jnr by majority verdict and sentenced to four years imprisonment to run concurrent with the sentence on Count 3. The appellant was also convicted on Count 7, namely, the production of an article capable of inflicting serious injury, to wit, a knife, by a majority verdict and sentenced to four years imprisonment concurrent with Count 3.
[1.3] The appellant was acquitted in respect of two counts of assault causing serious harm and also another count of assault causing harm.
[1.4] The appellant has appealed against both conviction and sentence however this judgment is concerned solely with the appellant’s appeal against conviction.
[2] Overview
[2.1] In the Notice of Appeal filed by the appellant on the 12th February 2015, nine grounds of appeal against conviction were set out as follows:
1. In all the circumstances, the trial was unsatisfactory and the verdicts are unsafe, in particular, having regard to the various applications, submissions and requisitions made on behalf of the appellant and the adverse rulings made by the trial judge in respect of same.
2. The trial judge erred in fact and in law in refusing to adjourn the trial to permit full disclosure to be made, and the trial was unsatisfactory and the verdicts are unsafe having regard to the fact that adequate disclosure was not made to the defence, including in respect of the PULSE records in respect of relevant incidents occurring at or reported from the appellant’s home or his neighbour’s home.
3. The trial judge erred in fact and in law in making various rulings as to the evidence heard by the jury including:
a. By restricting the defence cross-examination of Lee Harte.
b. By permitting the statement of Robert Ryan to be read back to him and subsequently failing to give an adequate direction regarding the weight to be attached to his evidence.
c. By refusing to direct the witness, Sharon Joyce, to refrain from describing the appellant’s face as “evil”.
d. By permitting the prosecution to call “rebuttal evidence” arising from the evidence of good character called on behalf of the appellant, that five of the six complainants did not have previous convictions.
4. The trial judge failed to direct the jury adequately as to the law to be applied to the question of whether the force used by the appellant might have been lawful, including, in particular, in circumstances where such force may have been used inside the appellant’s dwelling against persons who may have been believed by the appellant to have entered that dwelling unlawfully in order to commit the criminal offence. Further, the question subsequently raised by the jury was not adequately addressed.
5. The trial judge erred in fact and in law in failing to direct the jury adequately as to the burden and standard of proof, including, in particular as to the law applicable to the assessment of:
a. Inferences favourable to the defence or the prosecution.
b. Inconsistencies in the evidence of the prosecution witnesses.
c. The relevance of alcohol consumption by witnesses.
6. The trial judge erred in fact and in law in failing to direct the jury adequately as to the law applicable to the assessment of the evidence of accomplices or otherwise to give appropriate warnings as to the evidence of the prosecution witnesses who might have been charged with criminal offences arising from the conduct and circumstances grounding the prosecution of the appellant.
7. The trial judge erred in fact and in law in failing to direct the jury adequately as to the law applicable to the assessment of the evidence of expert witnesses.
8. The trial judge erred in fact and in law in failing to direct the jury adequately as to the relevant evidence to the extent that the defence case was not adequately put.
9. Having regard to all the circumstances relating to the trial judge’s charge to the jury, the trial was unsatisfactory and the verdict is unsafe.
[2.2] In the course of comprehensive written submissions filed on the 6th July 2015, the appellant indicated that he was not pursuing the ground of appeal relating to the failure to adjourn the trial. Towards the end of the oral hearing of this appeal, grounds (2) and (7) were also withdrawn.
[2.3] When this appeal came on for hearing, counsel for the appellant informed the Court that his principal grounds of appeal related to the trial judge’s failure to charge the jury adequately on the question of self-defence and the refusal to give an accomplice warning. In considering these grounds of appeal, it is necessary to set out the background to the offences.
[3] Background
[3.1] The prosecution case was that on the evening of the 8th October 2011, going into the early morning of the 9th October 2011, an eighteenth birthday party had been taking place at 6, Deerpark Avenue, Tallaght, Dublin. It was James Toner Jnr.’s birthday and he lived at this address with his father, James Toner Snr., his mother, Deirdre Hawkins and his brother, Daniel. The appellant and his partner and their three children lived at 10, Deerpark Avenue, which was beside the Toner home.
[3.2] Both families were members of the Circle Housing Association which had been notified by James Toner Snr. of their intention to hold a birthday party on the date in question. The appellant and his partner had previously complained about late night noise from the Toner home, but had been informed that a party was to take place on this particular night.
[3.3] The party concluded at about 4.00am and Lee Harte was leaving with his cousin, Robert Ryan. They were both eighteen years of age and were being accompanied on their way out by James Toner Snr. and Deirdre Hawkins. According to Lee Harte, the appellant and his partner were standing outside their home at the adjoining wall with glasses in their hands. The appellant’s partner started to verbally abuse the Toner family, saying, among other things, “you are only scumbags, tomorrow morning youse will be all burnt out”. This resulted in a verbal altercation which continued until a glass was thrown at the Toners and the verbal altercation that was taking place developed into a physical altercation in which the prosecution stated that the appellant pulled or dragged Lee Harte into his home and stabbed him there causing him serious injury. In the course of a further physical altercation, the prosecution maintained that the appellant stabbed four other people who went to Lee Harte’s assistance.
[3.4] The defence case was that the appellant’s partner was outside her home on her own having a cigarette and drinking a glass of water when Lee Harte and Robert Ryan were leaving. She said that this group of people, which included James Toner Snr. and Deirdre Hawkins, started to verbally abuse her. She said this abuse was quickly followed by a physical attack on her by Robert Ryan as he pushed her towards her home. She also alleged that Robert Ryan had exposed himself to her in a demeaning and provocative manner. The appellant’s partner said that Robert Ryan pushed her towards her home. She said that the appellant, in trying to pull her into her home, was set upon by the complainants who had illegally entered his home. While the appellant could not remember what occurred after this invasion by what appeared to him to be a violent abusive crowd of drunken people intent on attacking himself and his wife, he maintained that any force used by him was to repel the invasion of his home and to repel the attack on himself and his wife, and that in those circumstances, whatever defence he used was lawful in the circumstances, as he perceived them to be. It was part of the defence case that prior to any stabbing the appellant had been hit over the head with a baseball bat.
[4] Legal position & submissions
[4.1] Section 18 of the Non-Fatal Offences against the Person Act 1997 and s. 1(2) of the said Act are the relevant statutory provisions directly in issue in this case. Section 18 provides for the following:
“(1) The use of force by a person for any of the following purposes, if only such as is reasonable in the circumstances as he or she believes them to be, does not constitute an offence—
(a) to protect himself or herself or a member of the family of that person or another from injury, assault or detention caused by a criminal act; or
(b) to protect himself or herself or (with the authority of that other) another from trespass to the person; or
(c) to protect his or her property from appropriation, destruction or damage caused by a criminal act or from trespass or infringement; or
(d) to protect property belonging to another from appropriation, destruction or damage caused by a criminal act or (with the authority of that other) from trespass or infringement; or
(e) to prevent crime or a breach of the peace.
(2) “use of force” in subsection (1) is defined and extended by section 20 .
(3) For the purposes of this section an act is “criminal” notwithstanding that the person doing the act—
(a) if charged with an offence in respect of it, would be acquitted on the ground that—
(i) he or she acted under duress,
(ii) his or her act was involuntary,
(iii) he or she was in a state of intoxication, or
(iv) he or she was insane so as not to be responsible according to law for the act,
or
(b) was a person to whom section 52(1) of the Children Act 2001 applied
(4) The references in subsection (1) to protecting a person and property from anything include protecting the person or property from its continuing; and the reference to preventing crime or a breach of the peace shall be similarly construed.
(5) For the purposes of this section the question whether the act against which force is used is of a kind mentioned in any of the paragraphs (a) to (e) of subsection (1) shall be determined according to the circumstances as the person using the force believes them to be.
(6) Notwithstanding subsection (1), a person who believes circumstances to exist which would justify or excuse the use of force under that subsection has no defence if he or she knows that the force is used against a member of the Garda Síochána acting in the course of the member’s duty or a person so assisting such member, unless he or she believes the force to be immediately necessary to prevent harm to himself or herself or another.
(7) The defence provided by this section does not apply to a person who causes conduct or a state of affairs with a view to using force to resist or terminate it:
But the defence may apply although the occasion for the use of force arises only because the person does something he or she may lawfully do, knowing that such an occasion will arise.
(8) Property shall be treated for the purposes of subsection (1) (c) and (d) as belonging to any person—
(a) having the custody or control of it;
(b) having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest); or
(c) having a charge on it;
and where property is subject to a trust, the persons to whom it belongs shall be treated as including any person having a right to enforce the trust.
Property of a corporation sole shall be treated for the purposes of the aforesaid provisions as belonging to the corporation notwithstanding a vacancy in the corporation.”
(9) In subsection (3) ‘intoxication’ means being under the intoxicating influence of any alcoholic drink, drug, solvent or any other substance or combination of substances.be.
Sections 18 requires to be read in light of s.1 (2) which states: – “For the purposes of sections 17, 18 and 19 it is immaterial whether a belief is justified or not if it is honestly held but the presence or absence of reasonable grounds for the belief is a matter to which the court or the jury is to have regard, in conjunction with any other relevant matters, in considering whether the person honestly held the belief.”
[5] Submissions in respect of Appeal Ground (4): that the trial judge misdirected the jury in relation to the second limb of the test for assessing whether a person acted in self-defence
[5.1] The first ground of appeal relates to the trial judge’s direction to the jury concerning the test to be applied by the jury in assessing whether the appellant had acted in self-defence. Counsel for the appellant submitted that there were two limbs to the test in assessing the legal criteria for whether an individual was acting in self-defence. The first limb is concerned with deciding whether the accused honestly believed it was necessary to use force for one of the five purposes specified in s.18(1), and in fact did so. The second limb concerns a determination as to whether such force as was in fact used was reasonable in the circumstances as he honestly believed them to be. In respect of both limbs the test is at all stages a subjective one. It does not matter whether or not the use of force at all, or the use of such force as was in fact used, was justified. An accused can avail of the defence of self defence if he honestly believed that the use of force was necessary, and that the amount of force employed by him was necessary, in the circumstances as he perceived them to be. However, in assessing the honesty of the asserted beliefs, the trier of fact, whether it be a non jury court, or a jury, is required to have regard to the presence or absence of reasonable grounds for those beliefs, in conjunction with any other relevant matters. To that extent, but to that extent only, the assessment as to whether an individual was acting in self-defence contains an objective component.
[5.2] The appellant contends that on several occasions in the course of addressing the jury in this matter, both in her principal charge and in subsequent recharging, the learned trial judge slipped into error by holding that when it came to assessing the force used by the appellant i.e., the second limb of self defence, the test ceased to be a subjective one and it was for the jury to apply an objective test. In essence, the complaint made is that the trial judge failed to convey to the jury, the nuance that the objective component is only relevant to the assessment of the “honesty” of an asserted belief.
[5.3] Counsel for the appellant further submitted that that there was also a failure to address the recognised and accepted position that a person whose dwelling is invaded or who perceives his home is being invaded unlawfully, is entitled to a special level of latitude and protection, having regard to the constitutional right to the inviolability of the dwelling. Counsel relied upon the judgment in The People (at the suit of the Director of Public Prosecutions) v Barnes [2007] 3 IR 13 in this regard.
[5.4] Counsel for the appellant further submitted that the inconsistent directions to the jury were such that this Court must attach a certain weight to the fact that at trial, the matter was the subject of requisitions however the judge was not disposed to address the matter again save for reading out a direct quotation from the judgement. The foreman of the jury subsequently sought clarification in relation to the matters which had been the subject of requisitions. Counsel for the appellant submitted that he had sought a full recharge in respect of self-defence on the basis that there was a real possibility that there was a misunderstanding by the jury.
[5.5] Counsel for the appellant referred the Court to the law on inconsistent directions to the jury and placed reliance upon the following case law: – The People (at the suit of the Director of Public Prosecutions) v. O’Reilly [2004] IECCA 27; The People (at the suit of the Director of Public Prosecutions) v. Lynch, Court of Criminal Appeal 29th July 2015; The People (at the suit of the Director of Public Prosecutions) v. Bambrick [1999] 2 I.L.R.M. 71; The People (at the suit of the Director of Public Prosecutions) v. Clark [1994] 3 I.R. 289; The People (at the suit of the Director of Public Prosecutions) v. Kelly [2000] 2 I.R. 1; The People (at the suit of the Attorney General) v. Berber and Levey [1944] I.R. 405; and The People (at the suit of the Director of Public Prosecutions) v. Noonan [1998] 2 I.R. 439.
[5.6] Counsel for the appellant placed particular reliance upon the recent judgment in The People (at the suit of the Director of Public Prosecutions) v. Lynch, Court of Criminal Appeal 29th July 2015 in which O’Donnell J. stated at paras. 38 and 39: –
“Even taking this at its lowest point, there is an inescapable possibility that the jury were asking about whether they needed both (proof beyond reasonable doubt of intention to kill or cause serious injury, and disproof of provocation) before returning a verdict of guilty on the murder charge. If this was on their minds, then the response made by the judge was unintentionally but clearly incorrect. There is therefore, at a minimum, an inescapable possibility that the jury were and remained confused as to a central feature of this case. While in this appeal the prosecution sought to maintain the interpretation that both the judge and the jury understood each other and were discussing the requirements of a verdict of guilt of manslaughter, we think, with respect, that it is more likely that the judge and jury were at cross purposes. Again, and at a minimum, the possibility cannot be excluded” and continued at para. 43 that “It is also a fundamental point since if the Court is left with a serious doubt that the jury correctly understood the manner in which they were to approach the defences raised in this case, it follows that the Court cannot be confident as to the fairness of the trial, and the safety of the conviction.”
[5.7] Counsel for the Director of Public Prosecutions submitted that the trial judge’s charge was detailed, purposeful and lengthy and should be considered as a whole. When considered as a whole, it was counsel’s submission that the trial judge did not dilute the requisite subjective elements of the test to be applied.
[5.8] Counsel also submitted that the approach taken by the defence to contend that this was an incident involving the invasion of a home was misconceived as the core of the case was that this was an incident that occurred in the early hours of the morning outside the home of the appellant. Counsel sought to distinguish this case from the circumstances that pertained in The People (at the suit of the Director of Public Prosecutions) v Barnes [2007] 3 IR 13 which involved a burglary.
[5.9] In respect of the trial judge’s charge in relation to the second limb of the test to be applied in assessing whether a person acted in self-defence, counsel for the prosecution placed reliance upon the Court of Appeal decision in The People at the suit of the Director of Public Prosecutions v. Ryan [2006] IECCA 47 and referred this Court to Coonan & Foley’s textbook, ‘The Judge’s Charge’ (Roundhall, Dublin, 2008), paras. 17-22 at p. 349 which states: – “As has already been discussed, a subjective test must be applied into the question of whether the accused believed that the force used was necessary. In contrast, an objective test is to be applied to the question of whether the degree of force used was itself reasonable. The trial judge should instruct the jury that the force used must be reasonable and should remind it of all the factors that will affect its determination of that issue.”
[5.10] Counsel further submitted that the provisions of the Non-Fatal Offences Against the Person Act 1997 does not specify whether it applies only to acts carried out in self-defence and that this aspect is a common law construct. It was submitted that the trial judge’s charge was not inconsistent with the statutory provisions and the trial judge was entitled to say that the level and degree and extent of the force must be proportionate and reasonable. It was counsel’s submission that in the circumstances of this particular case that there was no risk of it being an unfair or unsatisfactory trial in the sense of misdirection when one looks at the judge’s charge as a whole.
[6] Submissions in respect of Appeal Ground (6): Failure to give an accomplice warning
[6.1] The second ground of appeal was based upon the refusal of the trial judge to give an accomplice warning in respect of a number of the prosecution witnesses in circumstances where it was clear that they had an incentive to put forward a certain account of events because to do otherwise may result in their being charged and prosecuted for criminal offences. Three of the injured parties who were prosecution witnesses conceded in cross-examination that they might have been liable to a criminal prosecution. The trial judge took the view that a corroboration warning was not necessary as the prosecution witnesses were not accomplices.
[6.2] Counsel for the appellant acknowledged in the course of written submissions that the witnesses in this case were not accomplices in the strict sense of the word, in that it was unlikely that they could have been charged with assaulting each other or with unlawfully producing a knife. However, counsel argued that they could have been charged with violent disorder or burglary, and as some of them admitted in evidence that it was possible that they could have been charged with a criminal offence, and at the very least, these admissions required the trial judge to give a special warning to the jury about their evidence.
[6.3] It was counsel’s submission that there was persuasive authority for the proposition that to confine the corroboration warning to circumstances where a person happens to be liable to be charged with a precise offence which is before the Court would result in injustice and fails to recognise the mischief that the rule is meant to address and contended that the rationale behind the rule is to alert the jury of instances in which a witness may have a motive to lie. It was the defendant’s case at trial that there was evidence upon which the jury could come to a reasonable conclusion, that the persons who were prosecution witnesses were persons who were involved in entering the appellant’s home in violent circumstances and in circumstances where they were liable to be prosecuted for an offence arising from their conduct and therefore these witnesses had an incentive to put forward an exculpatory description of events in respect of themselves and an inculpatory description in respect of the appellant. It was counsel’s submission that those witnesses may have a defence or an argument to say that one of them was dragged in and the others were helping however it was the situation these witnesses knew at the time they were making their statements to the guards that they could be charged with an offence and that is the justification and rationale for the accomplice warning.
[6.4] Counsel referred to the requisitions made to the trial judge in this regard and her ultimate determination that she would not recharge the jury with an accomplice warning. Counsel for the appellant placed reliance upon the following case law: – The People at the suit of the Director of Public Prosecutions v. Morgan [2011] IECCA 36, Davies v. DPP [1954] AC 378 and McNee v. Kay [1953] VLR 520. Counsel also referred this Court to the case of the AG v. Carney [1955] IR 324 and Dental Board v. O’Callaghan [1969] IR 181.
[6.5] Counsel contended that the warning could be framed in the traditional terms but limited to simply saying it is dangerous to convict on the uncorroborated evidence of an accomplice. In this regard counsel placed reliance upon the judgment of Hardiman J. in the Supreme Court in Cosgrave v. The Director of Public Prosecutions, Ireland and the Attorney General [2012] 3 I.R. 666 and cited the following at para. 124: – “But Irish authority has over a long period of time taken a broader view of who else is included in that category at least for the purpose of attracting a corroboration warning. Thus in Attorney General v. Linehan [1929] I.R. 19 Kennedy C.J. said: – ‘ We do not think that in the case of a rule of caution concerned with the credit of accomplice witnesses and the weight of their uncorroborated evidence, a narrow or precise definition of ‘accomplice’ should be, or indeed can be, laid down.’” The judgment continues at para. 125: – “This echoed criticism of what was seen as an unduly strict English rule in other jurisdictions, on the basis that it focussed on the liability of the witness to prosecution for the very offence with which the accused is charged. This seems unduly narrow and seeks to apply a concept which evolved to deal with the question of culpability to the very different problem of credibility…”
[6.6] Counsel for the Director of Public Prosecutions submitted that it was the appellant’s contention that if on any view of it the relevant prosecution witnesses were themselves engaged in a criminal act they were accomplices inter se and an accomplice warning should have been given in relation to their evidence. Counsel further submitted that the potential offences committed by some of the injured parties who were the witnesses for the prosecution were not connected in any way or of the same nature as the offences committed by the appellant in this matter. In such circumstances, to give such a warning would have been totally superfluous to the issues that the jury had to decide and would have resulted in unnecessary confusion. The jury were directed to consider and decide each of these offences individually and their acquitting the appellant in respect of some of the charges and convicting on others demonstrated that the jury had approached the task in this way.
[7] Remaining grounds of appeal:
[7.1] Neither counsel made oral submissions at the hearing before this Court in relation to the following grounds of appeal but instead elected to rely upon their detailed written submissions in this regard.
Ground 3: the trial judge erred in fact and in law in making various rulings as to the evidence heard by the jury.
[7.2] In respect of (3)(a), that the trial judge should not have restricted the cross-examination of Lee Harte, counsel for the appellant submitted that he was entitled to ask the prosecution witness whether there were objective grounds upon which the appellant could have perceived that his home had been invaded by a large number of people. The trial judge refused to allow that line of questioning on the basis that it was not for the witness to speculate or to place himself into the mind frame of the appellant and what he may or may not have thought. This was a matter for the jury. Counsel for the appellant, in the course of his written submissions, submitted that the ruling of the trial judge was an unjustified curtailment of the appellant’s constitutional right to cross-examine his accusers. It was submitted that, as a matter of law, there is no prohibition on asking a witness to comment on how, based on objective matters within their knowledge, a situation may have appeared to an accused person. Counsel placed reliance upon the Supreme Court decision in Maguire v. Ardagh [2002] 1 IR 385 in this regard. Counsel argued that the proposed question was of crucial importance to the test which the jury would have to apply regarding self-defence as to the perception of the appellant. Counsel drew an analogy with the permitted line of questioning in rape cases wherein it is possible to ask a complainant in a rape case: “Having regard to what you did and said, do you accept that it is reasonably possible that you appeared to the accused to be consenting”; and in a self defence case: “Having regard to what you and your friends did and said do you accept that it could have appeared to the accused that you were all about to attack him?” Ultimately, it was counsel for the appellant’s contention that by closing down this line of cross-examination the trial judge rendered the trial unfair.
[7.3] Counsel for the Director of Public Prosecutions submitted the trial judge’s ruling was correct and that counsel for the appellant’s reliance upon decision in Maguire v Ardagh [2002] 1 IR 385 was irrelevant in this context. Counsel for the Director of Public Prosecutions reiterated the submission which had been made during the trial that the Defence was attempting to enter the realm of asking a witness as to fact how events appeared to some other person. It was submitted that such questioning is inadmissible and irrelevant on two bases, first each person would not have necessarily observed the same events and in the same manner, and secondly how can the witness to some event enter the mind of a stranger to give opinion as to what those events made a stranger think.
[7.4] In respect of (b), that the trial judge had erred in law and in fact by permitting the statement of Robert Ryan to be read back to him and subsequently failing to give an adequate direction regarding the weight to be attached to his evidence.
[7.5] In the course of his examination-in-chief, Robert Ryan was asked to recollect the events on the relevant evening and responded by saying that he could not remember. The witness confirmed that he had read his statement two days previously but that he had forgot to bring it with him that morning and conceded that he had difficulty with reading. Counsel for the Director of Public Prosecutions suggested that the witness might be asked if the statement had been read to him or if he had read the statement and, in the event that neither had happened, that it would be read to him in Court. Counsel for the appellant objected and noted that sworn evidence had been given that the witness did not remember the events and that he had previously read his statement.
[7.6] The trial judge, in acknowledging her discretion to permit a witness to refresh his memory, permitted the witness’s statement to be read to him and the witness proceeded to give evidence. In the course of her direction to the jury, the trial judge reminded the jury that the witness had given evidence after he was sworn in that his mind had gone blank and he couldn’t recall the events of the evening. There was a break in the proceedings and he was allowed to have the statement read over to him in order to refresh his memory and then he resumed giving his evidence. The trial judge directed that the jury must bear this in mind when they were deciding the weight to be attached to this witness’ evidence.
[7.7] Counsel for the appellant submitted that a witness in direct examination should not be allowed to refresh his memory with reference to his statement after being sworn in and having commenced giving evidence unless the statement is a contemporaneous note. There was no evidence to justify a departure from the ordinary practice; and at the time of the ruling, no evidence of the date of the statement(s); there was never any evidence of the timing of the statements or whether the event was fresh in the mind of the witness at the time of making the statement. Counsel for the appellant relied upon an excerpt from Declan McGrath’s book on Evidence (2nd Ed., Round Hall, Dublin, 2014) which states at p.134 that: – “The requirement of contemporaneity between the document and the events recorded in it is crucial because it is only where the document was created at a time when the events in question are fresh in the memory of the person who created or verified the document that the rationale of permitting a witness to use the document to refresh memory will apply. A document can, therefore, only be used by a witness to refresh memory if it was made ‘at the time of the transaction to which it refers, or shortly afterwards when the facts were fresh in his recollection’.”
[7.8] Counsel for the appellant submitted that notwithstanding the warning given in the charge it was unsafe to allow the jury to receive this evidence in circumstances where the witness had given sworn evidence that he could not remember the events despite having read his statement two days previously.
[7.9] Counsel for the Director of Public Prosecutions submitted that the ruling of the trial judge in relation to the reading of the statement was correct and a fair exercise of her discretion and resulted in no prejudice or injustice to the appellant. Counsel noted the particular circumstances within which this arose, namely that the witness was permitted to have the statements read over to him due to his learning difficulties, and in particular his difficulty with reading. This was done prior to any cross-examination. Whilst in the course of the first part of his examination-in-chief the witness repeatedly referenced not being able to remember he also on three occasions referred to his mind going blank, and it was clear that the witness became uncomfortable when questioned about his reading ability. Counsel for the Director of Public Prosecutions concluded that the trial judge took the view, as she was entitled to, that it would not be appropriate to interrogate the witness about his reading levels or intellectual ability.
[7.10] Counsel distinguished this matter and noted that it was not a case of the witness refreshing his memory in the traditional sense.
[7.11] It was submitted by counsel for the Director of Public Prosecutions that reliance upon the case law regarding contemporaneous notes was irrelevant in this context. Furthermore, it was argued that the trial judge gave an appropriate warning worded in favour of the appellant in relation to the matter. It was submitted that during the course of cross-examination, counsel for the appellant actually put most of the statements verbatim to the witness. The jury ultimately acquitted the appellant of the offence alleged on Robert Ryan.
[7.12] In respect of (3) (c), that the trial judge erred in fact and in law by refusing to direct the witness Sharon Joyce to refrain from describing the appellant’s face as “evil”. During the course of the trial counsel for the appellant drew the trial judge’s attention to the fact that the witness had said in her statement that, in the immediate aftermath of the incident, the appellant had looked at her “with a big evil look”. Counsel for the appellant objected to the proposed use of the phrase “big evil look” on the basis that its prejudicial value outweighed its probative value and that, as subjective opinion type evidence, it was inadmissible. Counsel submitted that the trial judge erred in law by permitting the witness to express her opinion in those terms as the phrase “evil” went beyond being merely descriptive and carried with it an opinion in effect on the ultimate issue. It was counsel for the appellant’s contention that the witness could have been invited to give evidence as to what she actually observed rather than the value judgment she attached to her observation. Furthermore, counsel for the appellant argued that in deciding the matter the Court should have applied the test of whether the prejudicial effect of the proposed evidence would outweigh its probative value.
[7.13] Counsel for the Director of Public Prosecutions submitted that there was no error in permitting a witness to give such evidence.
[7.14] In respect of (3) (d), that the trial judge erred in law and in fact in permitting the prosecution to call “rebuttal evidence” arising from the evidence of good character called on behalf of the appellant that five of the six complainants did not have previous convictions. The context within which this application arose at trial was as follows. Prior to the prosecution’s closing speech, counsel for the Director of Public Prosecutions applied for leave to call a Garda to give evidence that five of the alleged injured parties did not have previous convictions. The appellant had been granted leave to call two witnesses to attest to his good character and that one prosecution witness, James Toner Senior, had accepted under cross-examination that he had serious previous convictions. Counsel for the appellant objected and stated that no notice had been given of the application: the prosecution had fully objected to character evidence being called on behalf of the defence but had not signalled an intention to seek to “retaliate” with such evidence. During the application, it was submitted that it was incorrect to characterise the proposed evidence as rebuttal evidence because it had not been suggested to any witness except James Toner Senior that they were of bad character.
[7.15] The trial judge allowed the application and a member of An Garda Siochana was called and confirmed that five of the complainants did not have previous convictions.
[7.16] It was submitted that an application of such an unusual nature should have been preceded by some notice to the defence. It was counsel’s submission that the Court erred in allowing this evidence in circumstances where the defence had not sought to impugn the character of any of the prosecution witnesses. It was further contended that by hearing evidence that five of the complainants did not have previous convictions, the jury may have been left with the impression that they had been given an exhaustive account of the witnesses.
[7.17] No written or oral submissions were made in relation to grounds 1, 5, 8 and 9 however each of these grounds are more general in nature and require this Court to consider at length nonetheless.
[8] Decision
[8.1] This Court has considered at length the grounds of appeal being pursued by the appellant, the detailed written submissions of counsel for the appellant and the respondent and their detailed oral submissions before this Court. The Court will proceed to consider the first two primary grounds of appeal and thereafter will proceed to consider the remaining grounds of appeal.
[8.2] In relation to the ground of appeal concerning whether the trial judge adequately charged the jury in respect of the two-part test to be applied in assessing whether the appellant acted in self-defence, this Court acknowledges that this is a particularly complex and difficult area of law. This ground of appeal in fact involves two-subsections. The first relates to the trial judge’s direction in relation to the second limb of the test to be applied. The second sub-section relates to whether this case gave rise to the necessity to issue a warning to the jury in line with the judgment in The People (at the suit of the Director of Public Prosecutions) v. Barnes [2007] 3 IR 13. Each of these subsections will be considered sequentially.
[8.3] Section 1 of the 1997 Act clearly provides that: “For the purposes of sections 17, 18 and 19, it is immaterial whether a belief is justified or not if it is honestly held.” Therefore it was essential that the jury be directed that both limbs of the test were subjective however in determining the honesty of an asserted belief regard could be had to the presence or absence of reasonable grounds for the belief in conjunction with any other relevant matters. This does not change the overall test which is a subjective one into an objective one. The critical question remains “what were the circumstances as the accused honestly believed them to be.” However, objective criteria may be used, in conjunction with any other relevant matters, in assessing the honesty of the asserted beliefs.
[8.4] Counsel for the Director of Public Prosecutions did not dispute that the trial judge had at times failed to clarify the subjective element of the second limb however it was his contention that when the trial judge’s charge and recharge to the jury on foot of requisitions and questions from the foreman were considered as a whole, no error emerged which amounted to a misdirection. It was also pointed out that at certain parts of her original charge the trial judge had properly described the second limb as being subjective. However, further directions on the point emphasised the objective element to such an extent that this Court is bound to conclude that the jury may have been confused as to the precise test to be applied in considering the defence of self-defence pursuant to the Non-Fatal Offences Against the Person Act 1997.
[8.5] The second aspect of this ground of appeal relates to the question of whether this case gave rise to the necessity to issue a warning to the jury in line with the judgment in The People (at the suit of the Director of Public Prosecutions) v. Barnes [2007] 3 IR 13. This Court wishes to emphasise from the outset that the factual circumstances in which the judgment in Barnes arose were of a particular nature and involved an invasion of a dwelling by way of burglary and a resulting fatality. However, the principal relevance of this judgement to the present case is that it recognises the constitutional protection of the home and the special latitude to be given to those defending their home from attack. In the course of its judgment, the court noted that the special protection of the dwelling house dated back to time immemorial and was also subject to constitutional protection. The court stated at para. 64:
“There are consequences of the special status of the dwelling house and of its importance to the human dignity of its occupants. Amongst the most relevant of these is that, as has been held by the courts of common law for centuries, a person in his dwelling house can never be under an obligation to leave it, to retreat from it or to abandon it to the burglar or other aggressor”.
[8.6] When considering the degree of force permitted in protecting one’s home, the court went on to state at paras. 67 to 69:
“67. We have already held that burglary is an act of aggression by its nature and that a burglar may be met with retaliatory force to drive him off or to immobilise him or detain him and to end the threat which he offers to the personal rights of the householder and his or her family or guests. That is easy to say in general terms, but in individual cases, the question will immediately arise: what degree of force may the householder deploy to those ends?
68. It is of course impossible to lay down any formula with which the degree of force can be instantly calculated. Nor, in our view, would it be just to lay down a wholly objective standard to be judged by the standards of the hypothetically reasonable person.
69. The victim of a burglary is not in the position of an ordinary reasonable man or woman contemplating what course of action is best in the particular circumstances. He may be (and Mr. Forrestal actually was) ageing, alone, confronted with numerous and/or much younger assailants (the applicant was almost 50 years younger than his victim). In almost every case, the victim of burglary will be taken by surprise. The victim will therefore be in almost every case shocked and surprised and may easily be terrified out of his wits. To hold a person in this situation to an objective standard would be profoundly unjust.”
[8.7] The trial judge ought to have brought these matters to the attention of the jury in a more pronounced manner when addressing the defence case in the course of her charge. Accordingly, we also hold with the appellant in respect of this aspect of this particular ground of appeal.
[8.8] In relation to ground (6) and the appellant’s contention that the trial judge erred in not giving an accomplice warning it is abundantly clear to this Court that it was within the trial judge’s discretion as to whether an accomplice warning was required in respect of some or all of the prosecution witnesses. However, it is this Court’s view that it would have been preferable had the trial judge directed the jury to take particular care when considering the reliability of the evidence of those witnesses who conceded they might have been liable to a criminal prosecution. While this type of warning falls short of an accomplice corroboration warning, it would have been sufficient to meet any potential difficulty with that part of the prosecution case. Indeed it would be difficult to see how an accomplice warning would have benefited the appellant in this case since such a warning would have involved the trial judge pointing out to the jury each area of evidence where corroboration could be found in respect of each complaint. There was a considerable amount of evidence in the case where the jury might have found evidence to be corroborative but a detailed warning in these terms in this case risked placing on jurors’ unnecessary burdens when the fundamental issue in the case was the credibility of the witnesses.
[8.9] This Court also notes that it was accepted by counsel for the appellant in the course of his oral submissions, that should either counsel in a criminal trial take the view that there should be an accomplice warning, it should be raised with the trial judge, either before the commencement of the closing speeches and certainly before the trial judge commences his or her charge. Counsel for the appellant had only requested an accomplice warning from the trial judge during requisitions and in the context of a number of other submissions. That said, while we hold that the trial judge properly exercised her discretion in refusing to give an accomplice warning, the trial judge ought to have directed the jury to take particular care in assessing the reliability of those witnesses who conceded in the course of cross-examination that they may have been liable to prosecution for other offences.
The Remaining Grounds of Appeal
[8.10] In respect of ground (3) (a), this Court has considered the trial judge’s ruling to the effect that defence counsel was entitled to put to Mr. Harte whatever his client said had happened, but that it was not fair or appropriate to ask him to enter into trying to place himself in the mindset of the appellant and express a view as to how the appellant understood the situation. In effect, what counsel for the appellant was attempting to do at trial was to get Mr. Harte to express an opinion as to a central fact in issue in the case, namely, the state of mind of the appellant at the time the stabbings occurred. In Declan McGrath’s book on ‘Evidence’ (2nd Ed., Round Hall, Dublin, 2014) he introduces a chapter on opinion evidence with the following quotation from the judgment of Kingsmill Moore J. in A.G. (Ruddy) v. Kenny (1960) 94 I.L.T.R. 185:
“It is a long-standing rule of our law of evidence that, with certain exceptions, a witness may not express an opinion as to a fact in issue. Ideally, in the theory of our law, a witness may testify only to the existence of facts which he has observed with one or more of his own five senses. It is for the tribunal of fact -judge or jury as the case may be – to draw inferences of fact, form opinions and come to conclusions.”
[8.11] The Court considers that the trial judge’s ruling on this matter was correct and accordingly, this ground of appeal fails.
[8.12] In respect of ground (3) (b), it is worth reiterating that a witness is always entitled to have a copy of his or her witness statement and to read over it prior to giving evidence. This Court is satisfied that the trial judge’s decision to allow Robert Ryan’s statement of evidence to be read over to him by the solicitor for the Director of Public Prosecutions in the presence of the appellant’s solicitor was an appropriate ruling in circumstances where it had emerged that he had a problem with reading.
[8.13] This Court has considered ground (3) (c) which contended that there was a risk of unfairness in allowing the word ‘evil’ to be used in the witness’s description of the appellant at the time, and ultimately that the prejudicial value in using this word as a description of the appellant outweighed the probative value. The witness was cross examined regarding her description of the appellant and said in response to a question about this “Well I seen what I seen. I don’t know. I just…that’s what I seen and that’s the way I picked it up.”
[8.14] This Court is satisfied that the witness was describing the appellant as she saw him and not offering any view as to his character. The jury was entitled to hear her account of events as they appeared to her. Accordingly this ground of appeal fails.
[8.15] In respect of ground (3) (d), this Court is of the view that once the appellant put his own character in issue and called witnesses in support of his own good character, counsel for the prosecution was entitled to then call evidence to the effect that five of the injured parties had no previous convictions, evidence of James Toner Snr’s criminal record having already been introduced into the case. It is also noteworthy in this context that, notwithstanding the fact that the appellant had failed to comply with the statutory requirement to put the prosecution on seven days’ notice of their intention to call character witnesses, the trial judge had allowed him to do so.
[8.16] In respect of ground 5(a), this Court notes that following a requisition the trial judge stated:- “if two alternate views of the evidence are available to you, two possible views occur to you and they seem reasonable you should go with the one most favourable to the accused because that’s the only way you can give the accused the benefit of the reasonable doubt which he is entitled to.” This, in so far as goes, is a correct statement of the law and this ground of appeal fails.
[8.17] In respect of ground 5 (b) and (c), inconsistencies in the evidence of the prosecution witnesses emerged in the course of the trial judge’s summary of the evidence and it was not necessary for her to further highlight these inconsistencies nor was there any obligation on her to require the jury to consider the effect of alcohol when assessing the reliability of witnesses. Jurors were correctly advised what their function was regarding the assessment of the evidence and the trial judge was correct to refuse the appellant’s requisition in respect of these two matters. Accordingly, this ground of appeal fails.
[8.18] Finally, the jury can have been in doubt as to what the defence case was. The trial judge summarised the evidence of the defence witnesses and clearly drew the jury’s attention to the fact that the appellant relied on self-defence. Apart from the matters we have considered under grounds (4) and (6) above, the appellant can have no complaint that his defence was inadequately put to the jury.
[8.19] In view of the fact that we have held with the appellant in respect of his submissions on self-defence and have partly held with him in respect of the warning to be given regarding those prosecution witnesses who conceded they might be liable to criminal charges, this Court allows the appeal against conviction and accordingly directs a retrial.
The People (Attorney General) v. Quinn.
Haugh J. [1965] IR 366
Court of Criminal Appeal.
The judgment of the Court of Criminal Appeal was delivered by Mr. Justice Haugh.
HAUGH J. :
The accused was charged with the manslaughter of one, Sean Berkery, and tried before the President of the Circuit Court and a jury at Limerick on Friday, the 18th January, 1963. The trial concluded with a verdict of “guilty” on the following day. The accused was sentenced to twelve months’ imprisonment on the following Tuesday, the 22nd January.
The undisputed evidence clearly showed that the accused struck the deceased one blow with his fist with sufficient force to break his upper denture and to fell him to the ground, causing a fracture to the skull which rendered him unconscious for a short period. Sean Berkery died the following day as a result of brain injury.
When arrested and at his trial the accused sought to justify his action by saying that he struck this one blow in defence of his person from a threatened and immediate attack by the deceased. Such was the sole issue the jury had to consider.
On Tuesday, the 22nd January, as the Judge sat to pronounce sentence, Mr. Kinlen, for the accused, brought a certain matter to the Judge’s notice. This was to the effect that on the previous Friday evening, before the prosecution had concluded and after the Court had adjourned to Saturday morning, a juror, in company with a witness, Martin Tuohy, who had just given evidence, while passing the accused who was standing with his sister in the hall of the Courthouse, speaking to the accused, said:”You should have objected to that jury; do you know who I am?”to which the accused replied, “Yes.” The juror continued:”I am Michael Vaughan; did you not hear the address, O’Brien’s Bridge?”
The accused’s sister said:”You should not be talking to us at all; did you not hear what the Judge said?” The juror and witness then left the Courthouse.
The matter was discussed at some length by the learned Judge and counsel, and in the course of the discussion counsel asked the Court to hold that the matter complained of constituted an irregularity of such seriousness that it justified him in asking the Judge not to pass sentence, but to arrest judgment and direct a new trial.
This application the Judge refused. He sentenced the applicant to twelve months’ imprisonment and granted a certificate to this Court.
This Court is of the opinion that the learned President was correct in acting as he did. A trial Judge has no jurisdiction to set aside the verdict of a jury in a criminal matter.
In the view of this Court the Judge had no option but to proceed to sentence the accused, as he did.
Mr. Kinlen now asks this Court to hold that the trial was unsatisfactory because of the matters complained of in Limerick, which are now supported by two affidavits, sworn by the accused and his sister, Mrs. Mary Kennedy, which this Court allowed to be read.
In support Mr. Kinlen has relied on R. v. Ketteridge (1); R. v. Taylor (2); R. v. O’Neill (3) and The People (Attorney General) v. Heffernan (No. 2) (4).
The principles upon which a trial may be set aside as being unsatisfactory are exemplified in these cases. It is clear that different considerations may arise as regards the nature of the offence and whether it is one for which the judge should keep the jury together during the entire trial as required by s. 63, sub-s. 1, of the Juries Act, 1927, such as murder or treason and lesser offences where the judge has jurisdiction to allow them to separate during the trial.
The alleged misconduct of the juror in this case has nothing to do with his separation from his fellow jurors but relates to an incident which occurred when he was rightly separated from his fellows. For these reasons the cases cited above are of little assistance to this Court.
The case cited by Mr. Kennedy, for the prosecution, R. v. Twiss (5), is more in point to the matters we have to consider.
In this case, accepting the facts as set out in the affidavits opened to us, we see no reason to interfere with the verdict. We feel that there was not the slightest risk of existing prejudice or miscarriage of justice involved in this incidentof which we think more has been made than the facts warranted.
We adopt, however, the passage in Twiss’s Case (1), at p. 859, which is as follows:”In those circumstances it is necessary for us to consider whether what the juryman did was of such a character as to lead us to think that there may have been an injustice done to the prisoner. It is not enough that he spoke to someone, and that the person to whom he spoke was a witness, although it makes it necessary to consider the matter more carefully if the person to whom he spoke was a witness; and I hope that nothing decided in this Court today will incline anybody to think that we hold it to be a laudable practice for jurymen to go out and talk to other persons. They had much better keep their own counsel and not speak to anybody else. If they speak to anybody else about the case, they certainly ought not to speak to a witness, because if they do, their conduct may be open to grave suspicion”:and the passage at the foot of page 860:”We desire to add, as emphatically as we can, that, although jurymen are allowed to go about while the trial is proceeding and cannot be prevented from doing so, and although they are allowed to go home and a case may last several days, nothing we have said is to be taken as encouraging them to discuss the evidence given at the trial.”
Two points arise by way of criticism of the Judge’s charge. We have considered all that Mr. Kinlen has said; we have considered the Judge’s charge as a whole. We are of the opinion that the learned Judge correctly instructed the jury as to what in law constituted manslaughter. He further directed the jury that the defence was one of self-defence. He directed the jury that the burden of proving the commission of the offence by the accused lay at all times on the prosecution. Self-defence is, in the opinion of this Court, a matter of defence. If put forward as a defence it is sufficient if it be established in such a way as to raise a doubt as to the guilt of the accused in the mind of the jury. We are satisfied that the trial Judge charged the jury properly and adequately in this sense.
For these reasons the appeal and the application for leave to appeal will be dismissed.
The Court of Criminal Appeal, being of opinion that the decision involved a point of law of exceptional public importance, granted to the appellant a certificate, pursuant to s. 29 of the Courts of Justice Act, 1924, for leave to appeal to the Supreme Court for the decision of that Court as to”whether if a juror speaks to an accused person or to a witness during the course of a trial about a matter relating to the trial and the matter complained of is not brought to the notice of the trial Judge until after conviction the Court of Criminal Appeal must order a new trial.” At the hearing of the appeal by the Supreme Court (1) the appellant was permitted to include as a ground of appeal, inter alia, the submissions that the trial Judge had misdirected the jury as to the onus of proof in a case of self defence and that the trial was unsatisfactory because of the Judge’s charge.
O’DALAIGH C.J. :
18 Dec.
I have read the judgment of Mr. Justice Walsh and I agree with it.
Mr. Justice Teevan, who is unable to be present, has asked me to state that he also agrees with Mr. Justice Walsh’s judgment.
LAVERY J. :
I also agree except for one point which I shall deal with later.
KINGSMILL MOORE J. :
I also agree.
WALSH J. :
The appellant was convicted of the offence of manslaughter on the 18th January, 1963, by a jury at Limerick and on the 22nd January was sentenced to a term of twelve months’ imprisonment with hard labour by the presiding judge, the President of the Circuit Court.
The charge arose from an incident on the 19th May, 1962, between the deceased and the appellant who up to then had been close friends. On that evening the deceased and the appellant had had a number of drinks together in a public house and then left the public house, apparently to walk home. They were observed to be on friendly terms while they were in the public house. On the way home some disagreement or altercation arose between them on the roadway in the course of which the appellant struck the deceased a blow with his fist on the face which caused the deceased to fall striking his head upon the ground. His skull was fractured by the fall and this caused his death on the following day. A witness present had heard the deceased say to the appellant:”If you don’t bring back that fork I will send up the sergeant to you,” to which the accused had replied:”Michael Burke told me to take . . .”. That was all the witness heard and he next heard the thud of a man’s body falling on the ground. He came back to the scene and found the deceased lying on the road. The appellant’s account is that on the way home the deceased accused him, in effect, of stealing a fork belonging to one, Michael Burke, and that the appellant had told him that he had Burke’s permission to take it and that he then sought to leave the deceased but that the deceased held his arm to detain him, aimed a blow at him with his fist which he, the appellant, avoided by ducking and the appellant then replied with a blow of his fist to the deceased’s face which he maintained was delivered in self-defence. That was the blow which caused the deceased to fall and which led to his death. Before he learned of the death of the deceased the appellant had made a statement to the Civic Guards in which he told the same story, save that there was no mention of the deceased holding his arm to detain him. This statement was in evidence during the prosecution case. In the course of cross-examination by counsel for the appellant the mother of the deceased said that she had been informed by the deceased after his injury that he had had “a bit of a scuffle.” In giving evidence on his own behalf the appellant maintained that he had only struck one blow and that was in self-defence.
The trial began on the afternoon of the 18th January, 1963, and on that afternoon nine witnesses were heard. The trial was then adjourned until the following day when it was completed. Having been found guilty the appellant was put back in custody until Tuesday, the 22nd January, for sentencing. On that morning, before the trial Judge proceeded to pass sentence, counsel for the appellant brought to the Judge’s attention the fact that shortly after 4 p.m. on the 18th January, when the trial had been adjourned, one of the jurymen while leaving the courthouse building stopped in front of the appellant, who was standing with his brother and sister, and said to him:”You should have objected to that jury” and other words which indicated the juryman’s view that he, the juryman, should have been objected to because of the fact that he came from O’Brien’s Bridge which was the neighbourhood in which the appellant lived. The appellant made no reply to this but his sister who was standing by said to the juryman that he should not be talking to them at all in view of what the Judge had said. This was a reference to the fact that the Judge had warned the jurymen that they were not to discuss the case with anybody though they might discuss it among themselves. Nothing further was said and the juryman departed.
When counsel brought this matter to the attention of the trial Judge he did it in support of an application for a stay of the judgment, basing his application on a submission that the words used indicated that the juryman, if not the whole jury, must have already made up their minds in the case even though they had as yet heard only part of the evidence, the suggestion being that the juryman would not have thought it necessary to issue this advice or warning to the appellant unless the result of the failure to challenge the juryman was one adverse to the appellant’s interests. The trial Judge took the view that he was bound by the verdict of the jury and had no alternative but to impose sentence though he drew attention to the fact that the appellant had refrained from bringing the matter to the attention of the Court until after the trial had concluded. In the result, the Judge expressed the view that he had no jurisdiction to do other than pass sentence, which he thereupon did.
He did, however, upon the application of counsel for the appellant, grant a certificate that the case was one fit for appeal to the Court of Criminal Appeal upon the grounds, 1, that the Court, after the jury had delivered their verdict and had been discharged, should have received evidence of the alleged irregularity, 2, that had the Court heard such evidence and accepted it the Court should have granted an arrest of judgment; and 3, that had the Court heard such evidence and accepted it the Court should have ordered a re-trial.
On the 15th February, 1963, the Court of Criminal Appeal allowed the appellant bail and heard the appeal on Wednesday, the 24th April, 1963.
The notice of appeal, in addition to the grounds set out upon the certificate granted by the learned trial Judge, included a ground that the trial Judge had misdirected the jury as to the onus of proof in a case of self-defence and had failed to give a jury a proper explanation of self-defence.
The appeal and application for leave to appeal were refused by the Court of Criminal Appeal, but that Court, nevertheless, being of opinion that the decision involved a point of law of exceptional public importance, certified that it was in the public interest that an appeal from the judgment should be taken to the Supreme Court. The point upon which the certificate was given was “whether if a juror speaks to an accused person or to a witness during the course of a trial about a matter relating to the trial and the matter complained of is not brought to the notice of the trial judge until after conviction the Court of Criminal Appeal must order a new trial.”
In this Court the appellant applied for, and was granted, leave to amend his notice of appeal to this Court to include also the other ground relied upon in the Court of Criminal Appeal, namely, the submission that the trial Judge had misdirected the jury as to the onus of proof in a case of self-defence. The appellant was also permitted to submit that the trial had been unsatisfactory by reason of certain other matters in the Judge’s charge which will be referred to later in this judgment and to a question asked in the cross-examination of the appellant.
In the Court of Criminal Appeal the appellant relied upon the affidavit sworn by his sister, Mrs. Mary Kerney, and upon another affidavit sworn by his cousin, Thomas Quinn, both of whom had been present when the juryman spoke to the appellant. These affidavits contain the evidence of what was said which has already been referred to. On the hearing of this appeal the Attorney General was permitted to file two further affidavits, namely, one from the juryman concerned and one from a State witness who was chatting with the appellant and his sister when the juryman approached. There is no essential difference in the account of the incident contained in these affidavits and in the affidavits filed on behalf of the appellant. The affidavit of the juryman, however, contains one important matter to which possibly nobody else could testify. He says in his affidavit that when he made this remark to the accused he did not hear the accused or anybody else make any reply. It is quite clear from all the other affidavits that a reply was made in the terms already indicated but the juryman’s statement to the effect that he continued walking and did not hear the reply is of particular significance and it is not sought to contradict his statement to that effect. In this Court counsel on behalf of the appellant did not rely upon the conversation in the same way in which it had been relied upon before the trial Judge. In this Court counsel made the point, which was admittedly not made either in the Court of Criminal Appeal or before the trial Judge, that the effect of the reply made to the juryman by the appellant’s sister, namely, that he should not be talking to them in view of the Judge’s warning, should be construed as a snub and a rebuff to the juryman which might well have had the effect of exciting his anger against the accused so that his consideration of the case when it was resumed and fell to be decided might be influenced by such feeling of anger and resentment. This Court is of opinion that this submission is without substance primarily because the fact appears to be that the juryman did not hear the reply at all, and if his possible anger and resentment depends upon his having heard the remark it cannot be said to exist if he did not hear it. Furthermore, the Court takes the view that even if he had heard the remark there is no evidence whatever from any of the other persons who were present to indicate that the juryman was in any way affected by the remark or reacted to it in any particular manner.
It was further submitted by counsel for the appellant that the juror’s approach to the accused, whatever may have been the effect of it (if any) on the individuals concerned, was such a grave irregularity and was such a clear breach of the warning given by the trial Judge that the trial should be regarded as unsatisfactory in that it continued with that juror. He has submitted that if the matter had been brought to the notice of the trial Judge during the hearing he would most probably have discharged that juryman or, indeed, discharged the whole jury. While it is very possible, or even probable, that the trial Judge might have done so as a matter of extreme caution, the fact that he did not do so for the simple reason that he was not aware of the position cannot in itself be a ground for invalidating the trial. The warning given to the jurymen not to discuss the case with anybody save their own fellow-jurymen was an important and a serious warning but it did not prevent the jurymen from speaking to any person connected with the case provided that they did not discuss the case itself with them. Even if one is to assume that the discussion which in fact took place amounted to a discussion of the case that irregularity in itself cannot vitiate the trial unless it can be shown that the conduct in question was conduct which was calculated to prejudice the fair hearing and decision of the case. The conduct here was not such. The Court therefore rejects this ground of appeal.
In the course of his charge to the jury the learned trial Judge in dealing with the question of self-defence quoted to the jury from Archbold a passage from Lindley J. in Rex v. Knock (1) at p. 24:”If a man attacks me, I am entitled to defend myself and the difficulty arises in drawing the line between mere self-defence and fighting. The test is this: a man defending himself does not want to fight and defends himself solely to avoid fighting. Then, supposing a man attacks me and I defend myself, not intending or desiring to fight but still fightingin one sense to defend myself, and I knock him down and thereby unintentionally kill him, that killing is accidental.” This Court is satisfied that that is a correct summary of the legal position. However, the trial Judge then went on to say to the jury:”I mention that because on this question of self-defence the judge has to direct the jury as to what it means. It is quite sufficient if you have a reasonable doubt whether this was a case of self-defence or not. If so, you are entitled to acquit the accused, but the State makes the case contrary, that there is no such evidence in this case, that viewing the evidence as a whole this is the case of a man going home with another man and because of a few words over a fork the man who was killed grabbed the accused and made a blow at him which apparently was not delivered; that he then received a heavy blow which struck him to the ground and resulted in his death. The case for the prosecution is that there is no question of self-defence. They must satisfy you it was manslaughter. The defence need not satisfy you if it was self-defence, if you have a real doubt about it. The State says that you should have no doubt.”The first difficulty which arises with regard to this passage is that the learned trial Judge was in fact putting the defence case as the prosecution case. Notwithstanding the correct statement from Rex v. Knock (1) the effect of this passage might well have left the jury in a position where they sought in vain for the defence case and might well have left them with the impression that upon that evidence there could not be any question of self-defence.
What is not at all clear from the transcript is what was the case the prosecution was making when they invited the jury to decide this issue against the appellant. It does not appear that the jury was being asked to reject the story which the accused told, save in one respect possibly, namely, the accused’s reference to the deceased catching him by the arm before attempting to strike him. Nor is it clear that the prosecution was suggesting that no self-defence was necessary or that the method of self-defence employed went beyond the necessities of the occasion.
Furthermore, the last line of the passage above quoted from the Judge’s charge touched upon the question of the onus of proof. A few lines further on the trial Judge said to the jury:”Are you satisfied it was not lawful or justified that night before the blow was struck?” and further on he says:”It [the taking of life] can be justified in certain circumstances and particularly, as Mr. Kinlen suggest, in certain cases as a matter of self-defence. I think that is the real question here because I do not think there has been too much conflict between the two sides as to that happened. Mr. Kinlen says you must have a reasonable doubt in this question of self-defence, but the State say that you should have no doubtthat this was unwarranted.” Later on in the charge he says:”If you are satisfied he struck the blow and that nothing Sean Berkery did that night justified it you will convict him.” Further on, the trial Judge says:”The legality of the blow cannot be justified at all on any ground except self-defence and that is put forward for the defence. The defence does not have to prove that as a matter of certainty and I have only to tell you again that there is only one count.” That was the concluding line of the charge to the jury.
When the jury had retired Mr. Kinlen submitted to the Judge that his way of putting the question of the onus of proof to the jury might leave the jury under the impression that there was some onus upon the defendant to leave the jury at least in doubt before they could acquit. The learned trial Judge’s reply to this requisition was as follows:”I don’t know. This is a case where the killing was not questioned by the accused in the box and the plea of ‘not guilty’ being justified or supported by the suggestion of self-defence. I tried to convey to the jury that you do not have to prove . . .”.Mr. Kinlen:”But that may be taken as a suggestion that the onus is on me.” Judge:”On the contrary, I said later you do not have to prove it. I may be wrong but I am positive this is a case where the accused himself out of his own mouth has conceded the killing. We often get a case where the killing is denied. There is a plea of self-defence by the accused in this case and I told the jury you didn’t have to prove that.” The Judge did not instruct the jury further on this matter although he re-instructed them on another point. In the opinion of this Court the Judge’s charge to the jury on the question of the onus of proof might reasonably have left them under the impression that while there was no onus upon the defence to establish self-defence beyond reasonable doubt or as a matter of certainty yet there was some obligation to make a sufficient impression in the jury’s mind to create at least a doubt about the State case. The learned Judge’s reply to Mr. Kinlen’s requisition rather suggests that this was in fact his view. This appears also to have been the interpretation put upon his observation by the judgment of the Court of Criminal Appeal when they held that he had charged the jury properly and adequately on this point. In the judgment of the Court of Criminal Appeal the following passage occurs:”He directed the jury that the burden of proving the commission of the offence by the accused lay at all times on the prosecution. Self-defence is, in the opinion of this Court, a matter of defence. If put forward as a defence it is sufficient if it be established in such a way as to raise a doubt, as to the guilt of the accused in the mind of the jury. We are satisfied that the trial Judge charged the jury properly and adequately in this sense.”
In the opinion of this Court the directions of the learned trial Judge introduced such an element of doubt on the question of the onus of proof that the conviction cannot be allowed to stand. As the matter assumes an added importance because of the terms in which the Court of Criminal Appeal approved the Judge’s directions to the jury this Court considers it necessary to state the correct position clearly. In giving the judgment of the Court of Criminal Appeal in The People (Attorney General) v. Keatley (1), at p. 18, Maguire C.J., referring to the defence of self-defence which arose in that case also, said:”The Court feels, however, that mention should be made of two of these matters. One is that expressions were used by the trial Judge in his charge which tended to suggest that some onus of proof or of giving evidence lay on the accused. The other is that the jury were not instructed as to the onus of proof which lay on the prosecution until they were recalled to Court in response to a requisition by counsel for the defence, and even then his direction to the jury contained unfortunate and possibly misleading references to the accused not having given evidence and to the shifting of the onus of proof. These matters constitute a serious criticism of the charge and might well have been a ground for holding, apart from the question already decided, that the trial was unsatisfactory.” See also R. v. Lobell (2) and Chan Kau v. R. (3).
When the evidence in a case, whether it be the evidence offered by the prosecution or by the defence, discloses a possible defence of self-defence the onus remains throughout upon the prosecution to establish that the accused is guilty of the offence charged. The onus is never upon the accused to raise a doubt in the minds of the jury. In such case the burden rests on the prosecution to negative the possible defence of self-defence which has arisen and if, having considered the whole of the evidence, the jury is either convinced of the innocence of the prisoner or left in doubt whether or not he was acting in necessary self-defence they must acquit. Before the possible defence can be left to the jury as an issue there must be some evidence from which the jury would be entitled to find that issue in favour of the appellant. If the evidence for the prosecution does not disclose this possible defence then the necessary evidence will fall to be given by the defence. In such a case, however, where it falls to the defence to give the necessary evidence it must be made clear to the jury that there is a distinction, fine though it may appear, between adducing the evidence and the burden of proof and that there is no onus whatever upon the accused to establish any degree of doubt in their minds. In directing the jury on the question of the onus of proof it can only be misleading to a jury to refer to “establishing” the defence “in such a way as to raise a doubt.” No defence has to be “established”in any case apart from insanity. In a case where there is evidence, whether it be disclosed in the prosecution case or in the defence case, which is sufficient to leave the issue of self-defence to the jury the only question the jury has to consider is whether they are satisfied beyond reasonable doubt that the accused killed the deceased (if it be a case of homicide) and whether the jury is satisfied beyond reasonable doubt that the prosecution has negatived the issue of self-defence. If the jury is not satisfied beyond reasonable doubt on both of these matters the accused must be acquitted.
Two other matters remain to be mentioned and they constitute serious grounds for considering whether this trial was not also unsatisfactory. The accused did not put his character in issue in this case and yet during his cross-examination by counsel for the State it was put to him (at Question 39):”And you are generally known as a pretty tough man?”Witness:”Not that I know of.” Admittedly, this suggestion or question comes in the context which deals with the accused’s weight, which is shown to be two or three stone heavier than that of the deceased, and his athletic prowess. The Court quite accepts the explanation that counsel for the State intended this suggestion to refer only to the accused’s physical prowess but it is undeniable that the words used were quite reasonably capable of conveying an impression to the jury reflecting upon the accused’s character. In a case such as this where the State case was that the accused unnecessarily hit another and a lighter man it would be very damaging to convey to the jury the impression that the accused had the reputation of being a truculent or aggressive person. The other matter is an observation which was made by the trial Judge to the jury during his charge. In speaking of the evidence of one of the witnesses for the prosecution, namely, Seamus Byrne, he said:”Witness went in the Limerick direction and he heard a kind of a thud twenty or thirty yards from the cross-roads. It struck me that there was more to it than the witness actually expressed, that there was more than a stroke, but possibly you will be able to judge what happened.” Speaking of the evidence of another witness, James Rainsford, he said to the jury:”James Rainsford, the next witness, was in the bar with the others and he says he left and was first up the road. ‘I heard a thud and ran back,’ and I venture to suggest when you are dealing with this case, I venture to suggest that there was something more.” These observations of the Judge were somewhat unfortunate as they were likely to convey to the jury the impression that there was something more in this case than the witnesses were revealing, particularly with regard to what happened up the roadway when the blows were exchanged between the deceased and the appellant. The jury was, of course, not entitled to consider anything but the evidence in this case and any observations made by the Judge which might be construed, as these observations could be, as an invitation to speculate may well have influenced the jury in resolving the issue of self-defence against the appellant and cannot but be regarded as an unsatisfactory feature of this trial.
In the result, the conviction will be quashed. A new trial should be directed as in my opinion there is an issue on self-defence which can be decided only by a jury.
LAVERY J. :
I agree with the judgment of Mr. Justice Walsh which he has just read and that the appeal should be allowed and that the conviction should be reversed.
In my opinion this is not a case in which this Court should order a re-trial.
The jurisdiction to make such an order is s. 5, sub-s. 1 (b), of the Courts of Justice Act, 1928, which provides that where the Court reverses a conviction in whole, the Court “shall have jurisdiction to make an order (in this section referred to as an order for a re-trial) authorising the person . . . . to be re-tried for the same offence as that which was the subject of such conviction . . .”
I am aware that it has been usual to direct a new trial in such cases unless the appeal Court finds that the conviction could not be sustained on the evidence for the prosecution. It seems to me that the power was given to meet cases where there had been a technical error in the trial. It is a mere power. In my opinion it should not be exercised unless the Court is of opinion that justice requires a re-trial because the accused has never really been in peril.
I think all the circumstances should be considered in each case.
The unfortunate death of Sean Berkery was certainly on the evidence not only not contemplated but could not reasonably have been expected to result from the blow struck by the accused.
The defence is that the blow was struck in self-defence. If that should fail so as to make the accused guilty of the offence the death of Sean Berkery was not death by misadventure but was nevertheless something not very different.
The parties were good friends; a dispute arose about a trivial matter; the deceased was, on the evidence, the aggressor. There is no direct evidence about the blows struck, except that of the accused.
There is evidence that after the dispute the accused tried to make friends and helped to bring the deceased home. There is the deceased’s own account of what had happened in his statement to his mother that he had had “a bit of a scuffle.”
The accused was, I think, something like three weeks in gaol before he was admitted to bail. He has attended in person before the Court of Criminal Appeal and before this Court. He has been at expense and has lost time, and I am sure has suffered worry.
I certainly do not condone road-side fights and if hurt or death results they must be regarded as serious, as the case has been regarded.
I think enough has been done and suffered and I can see no need for, or useful purpose to be served by, ordering a new trial.
Taking the view that I do, that the power should be exercised where the Court sees reason to exercise it rather than that reason should be found for not exercising it, I would not make an order for a re-trial.
The People (Attorney General) v. Keatley
[1954] IR 14
Maguire C.J. 14
MAGUIRE C.J. :
The applicant was convicted of the manslaughter of one Edward Byrne. The incident occurred during the course of a game of pitch-and-toss in which the applicant and his brother, Peter Keatley, and Edward Byrne, were, with others, engaged. A dispute arose between the deceased and Peter Keatley and led to what was described by one witness as “a bit of an argument” and by other witnesses as “a tussle” between them. According to the account of two of the witnesses, the deceased pushed Peter Keatley against some piece of machinery that was on the spot and then struck him. Thereupon, the applicant, who was either standing behind the deceased or came from behind him, struck the deceased. This blow had the effect of causing the deceased to fall to the ground and, on examination, he was found to be dead. The medical evidence made it more probable that the immediate cause of death was his head striking a stone or other object embedded in the ground rather than the blow struck by the applicant. The skull of the deceased had been fractured, and there was a punctured wound on the side of his head. The whole incident was described by two of the witnesses as being a matter of seconds. All the witnesses who had seen the dispute between the deceased and Peter Keatley had not regarded it as very serious. The only witness who was asked about the force of the blow which the applicant struck the deceased said it was “not a very powerful blow at all . . . a box but not a very powerful one.”
One witness said that, after the deceased struck Peter Keatley, the applicant rushed in and struck the deceased. Another accepted the suggestion that the applicant came to save his brother and ventured the opinion that the applicant”may have thought there was a bigger row going to develop and he came for that reason.” The applicant did not give evidence but, in a statement which was put in evidence, he said that theythe deceased and his brotherwere both standing beside him at the time and he went to take his brother’s part. The brother, Peter Keatley, was younger than the deceased and, apparently, inferior to him in strength and physique. There was evidence that he had at least one of his hands in his pocket and offered little or no resistance to the attack by the deceased.
In these circumstances, it is clear that the applicant had no intention of killing the deceased. It is equally clear that the death of the deceased could not be held to be the natural and probable consequence of the blow struck by the applicant, so that no homicidal intention could be imputed to him. The death was, accordingly, unintended both in fact and in law, and criminal responsibility only arises if it was caused by an unlawful act. The blow struck by the applicant was, at least, a contributing cause of death, and a conviction for manslaughter could be sustainable if that blow was unlawful.
The fundamental question, therefore, was whether this blow was lawful or unlawful. The trial Judge regarded it and described it as an assault and, very early in his charge, he told the jury that the case started with an unlawful act whereby the accused attacked the person of Edward Byrne. Inasmuch as every blow that is struck is not necessarily unlawful, and a so-called “assault” that proves to have been justifiable or excusable cannot strictly be called unlawful, this was a misdirection. It may have given the jury the impression that they had no question of fact to decide as to the lawfulness or otherwise of the use of force by the accused. This misconception could have been corrected later in the charge when the trial Judge explained to the jury the nature of the defence as he conceived it but, in the event, his explanation could hardly have had this effect. This was because the defence which he explained, and which he left to the jury to decide, was a defence which would have been appropriate to the case of an intentional homicide but was not appropriate to the circumstances actually in question. It was that the killing would have been lawful if the blow had been struck by the accused in defending his brother from some felony involving violence or from some forcible and atrocious crime directed against the brother. He stated to the jury that the principle of self-defence did not extend to misdemeanours of any kind and that an assault was a misdemeanour. This must have only confirmed, rather than removed, the mis-conception he had already created in the minds of the jury. It was a further misdirection in the circumstances of the case.
In the Court’s view the evidence was such as to leave open a reasonable possibility that the use of force by the accused was not unlawful. It would have been open to the jury to hold, on the evidence, that this force had been used in the necessary defence of his brother from an assault and that no more force had been used than was necessary; and, if they had taken the view that this was a reasonably possible interpretation of the incident, the accused was entitled to an acquittal.
On the other hand, in order to convict him, they would have required to have been satisfied that this was not the case and that the accused unnecessarily used force or used more force than was necessary or that he was merely acting in a spirit of revenge or retaliation or with a desire to fight. It is impossible to say that, on the evidence, they could not have been so satisfied. The Court is of opinion that it was a defect of the trial and of the charge that these matters were never explained to the jury and the case was left to them on a completely inappropriate and incorrect basis.
In the view of this Court, the correct legal position, applicable to the circumstances of this case, is set out in the following passage from Russell on Crime (10th ed., 1950) at p. 763: “The use of force is lawful for the necessary defence of self or others or of property; but the justification is limited by the necessity of the occasion and the use of unnecessary force is an assault.”
The limitations of this doctrine are further illustrated in this passage on the following page: “If one man strikes another a blow, or does that which amounts to an assault on him, that other has a right to defend himself, and to strike a blow in his defence without waiting until he is struck, but he has no right to revenge himself; and if when all danger is past he strikes a blow not necessary for his defence, he commits an assault and battery.”
It will be noted that the first passage cited is not limited to the defence of oneself but expressly extends to the “neccessary defence of others.” In the older text-books, the right of defence is suggested to be limited to persons in a special relationship to the person charged, such as a wife, child or master; but, even if this were still the case, there seems to be no good reason why the relationship of brothers should not be included. Ifas seems probablethe underlying principle is the right, if not the duty, to prevent a breach of the peace or the commission of an unlawful act, the question of any special relationship between the parties seems irrelevant. It is, perhaps, a recognition of this that has led to the modern view that any such distinction is anomalous. The true position seems to the Court to be correctly stated thus in Salmond on Torts (10th ed., 1945), at p. 334: “It may be safely assumed, however, that at the present day all such distinctions are obsolete, and that every man has the right of defending any man by reasonable force against unlawful force.” There is, of course, implicit in this statement the requirements to be deduced from the passage already cited from Russell on Crime that the use of force is necessary and that no more force than is necessary is used. These two matters are eminently questions of fact to be decided, in a criminal trial, by the jury. As already indicated in the present case, the jury could never have appreciated what their function was in this respect nor could they have considered or decided these fundamental questions.
In the Court’s view, accordingly, there was misdirection of the jury and an unsatisfactory trial. Leave to appeal will be granted and the hearing of this application for leave to appeal will be treated as the hearing of the appeal. The conviction must be quashed and a new trial ordered.
Many matters were raised by the notice of application for leave to appeal, and argued on the hearing of the application, which, in view of the foregoing decision, it is not necessary now to decide. The Court feels, however, that mention should be made of two of these matters. One is that expressions were used by the trial Judge in his charge which tended to suggest that some onus of proof or of giving evidence lay on the accused. The other is that the jury were not instructed as to the onus of proof which lay on the prosecution until they were recalled to Court in response to a requisition by counsel for the defence, and even then his direction to the jury contained unfortunate and possibly misleading references to the accused not having given evidence and to the shifting of the onus of proof. These matters constitute a serious criticism of the charge and might well have been a ground for holding, apart from the question already decided, that the trial was unsatisfactory.
The People (Attorney General) v. Dwyer
[1972] IR 419
O’ DALAIGH C.J. :
19 Dec. 1972
I have read the judgment which Mr. Justice Butler will deliver and I agree with it Mr. Justice Budd, who is unable to be present, has authorised me to say that he concurs in the judgment of Mr. Justice Walsh.
WALSH J. :
The facts of this case are so fully set out in the judgment of Mr. Justice Butler, which I have had the advantage of reading, that it is unnecessary for me to refer to them.
Following the dismissal by the Court of Criminal Appeal of the appellant’s appeal against his conviction for murder, the Attorney General granted a certificate to the appellant enabling him to take this appeal to the Supreme Court. The point of law stated in the certificate is as follows:”Where a person, subjected to a violent and felonious attack, endeavours, by way of self-defence, to prevent the consummation of that attack by force, but, in doing so, exercises more force than is necessary but no more than he honestly believes to be necessary in the circumstances, whether such person is guilty of manslaughter and not murder.”
Section 4, sub-s. 1, of the Criminal Justice Act, 1964, provides that: “Where a person kills another unlawfully the killing shall not be murder unless the accused person intended to kill, or cause serious injury to, some person, whether the person actually killed or not.” Sub-section 2 of the same section provides: “The accused person shall be presumed to have intended the natural and probable consequences of his conduct; but this presumption may be rebutted.”
It is important to note that the effect of the provision is that unlawful homicide shall not be murder unless the necessary intent is established. The onus of establishing this beyond reasonable doubt remains at all times upon the prosecution, and so also does the onus of proving beyond reasonable doubt that the presumption that the accused person intended a natural and probable consequence of his conduct has not been rebutted.
A homicide is not unlawful if it is committed in the execution or advancement of justice, or in reasonable self-defence of person or property, or in order to prevent the commission of an atrocious crime, or by misadventure. In the case of such self-defence, the homicide is justifiable and is therefore not unlawful. In such a case, where the evidence in the trial discloses a possible defence of self-defence, the onus remains throughout upon the prosecution to establish that the accused is guilty of the offence charged: see the decision of this Court in The People (Attorney General) v. Quinn. 28 If the prosecution has not satisfied the jury beyond reasonable doubt that the accused had not believed on reasonable grounds that his life was in danger and that the force used by him was reasonably necessary for his protection, the accused must be acquitted of any charge of unlawful homicide. To put it another way, but without suggesting that there is any reduction in the burden of proof on the prosecution, the homicide is not unlawful if the accused believed on reasonable grounds that his life was in danger and that the force used by him was reasonably necessary for his protection. In such a case he is entitled to a complete acquittal. At one time it was thought that the person attacked was required to retreat so far as he could before resorting to force; this point is considered in R. v. McInnes 29 where Lord Justice Edmund Davies, delivering the judgment of the Criminal Division of the English Court of Appeal, said at p. 1607 of the report that this was too inflexible “and might, in certain circumstances, be regarded as significantly misleading.” He preferred the view expressed by the High Court of Australia in R. v. Howe 30 that a failure to retreat is only an element in the considerations on which the reasonableness of an accused’s conduct is to be judged, and he quoted with approval the statement of the position put in Smith and Hogan’s Criminal Law (2nd ed. at p. 231) that it was “simply a factor to be taken into account in deciding whether it was necessary to use force, and whether the force used was reasonable.”
In the present case the learned trial judge left it to the jury to consider whether the homicide with which the appellant had been charged might be lawful on the grounds that he was acting in self-defence, and the judge directed the jury on the basis I have set out above so that it was left to the jury to decide whether the appellant should be acquitted altogether or should be convicted of murder. In the event the verdict was one of murder.
On the appeal to the Court of Criminal Appeal against this conviction, the point of law which is set out in the certificate of the Attorney General was one of the grounds of appeal; it is based upon the decision in R. v. Howe. 31 In that case the High Court of Australia decided that, where self defence fails as a ground for acquittal because the force used by the accused went beyond that which was reasonable in the light of the circumstances but was no more than the accused honestly believed to be necessary in the circumstances, he is guilty of manslaughter and not of murder. Therefore, according to the Australian authority, what I might call the full defence of self-defence entitles the prisoner to an acquittal, but when one of the ingredients is lacking he may be convicted of manslaughter rather than of murder. The missing ingredient is that the force used was no more than was reasonably necessary. Instead, the Australian High Court has introduced what one might term a more subjective approach, so that the accused might be found guilty of manslaughter if the evidence disclosed that the accused, while being subjected to a violent and felonious attack, used more force than a reasonable man would consider necessary in the circumstances; in other words, that he should be convicted of manslaughter only unless the prosecution could establish beyond reasonable doubt that he used more than he honestly believed to be necessary in the circumstances.
The learned trial judge in the present case did not direct the jury along these lines, nor indeed was he asked to, but the matter was considered by the Court of Criminal Appeal and that court declined to follow the Australian decision on this point.
In England the Privy Council in Palmer v. The Queen 32and the Criminal Division of the Court of Appeal in R. v.McInnes 33 have both declined to follow the Australian judgment. In both cases, however, the view was offered that in such circumstances the verdict might very often be simply one of manslaughter, on the grounds that it might be shown that the accused had acted under provocation and that therefore, although acting unlawfully, he would have lacked the intent to kill or cause grievous bodily harm and thus render the proper verdict one of manslaughter. As I understand it, provocation in English law is tested only by objective standards. In England, s. 3 of the Homicide Act, 1957, provides: “Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.” Therefore, in a murder charge where self-defence has been negatived by the prosecution, the prosecution will, where the necessary evidence exists, also have to negative provocation; but in neither event is there a subjective test in England.
In what I may refer to as the case of full self-defence, an acquittal may be secured even though it was the intention of the accused to kill or to cause serious injury.
I construe the question formulated in the certificate of the Attorney General as one related to voluntary homicide. If it was simply a question of involuntary homicide, none of the present difficulties would arise in respect of the question of whether or not the offence might be manslaughter. Manslaughter in those circumstances may be committed either through a very high degree of negligence or in the case of death resulting from an unlawful act done with the intention of causing physical harm to a human being though not with the intention of causing either death or causing serious injury. In the present case the second of these examples would not arise at all because the evidence, as it appears to me, does not indicate a case of the appellant intending to cause physical harm which was not serious injury or even death. The question of negligence might possibly arise if he honestly believed what he did to be necessary but that was a belief resulting from a grossly negligent over-assessment of the situation.
In the present case the prosecution set out to establish that the appellant had the intention to kill or to cause serious injury. For the purpose of testing the question posed in the certificate, I must assume that it deals with the question of voluntary homicide, namely, that it was the intention of the accused to kill or to cause serious injury but that he did so by way of self-defence but went beyond what a reasonable man would consider necessary in the circumstances.
If an accused person in such a situation only does what he honestly believes to be necessary in the circumstances, even though that involves the use of a degree of force greater than a reasonable man would have considered necessary in those circumstances, the accused has been guilty of an error of judgment in a difficult situation which was not caused by himself. Should he then be convicted of murder? In such a situation it is not contended that he should go free, as if it were a case of what I have described as full self-defence. If a person uses more force than he knows to be reasonably necessary, then he is guilty of murder. This presupposes a situation where he is justified in using some degree of force short of killing or causing serious injury. In the case of full self-defence the accused intends to kill or intends to cause serious injury but he does not commit any offence because the homicide is a lawful one. Therefore, his intention was to commit a lawful homicide or lawfully to inflict serious injury. Under our statute a person who kills another unlawfully as a result of an intention to do so is guilty of murder. Full self-defence permits such a degree of force, up to and including the infliction of death, as may be regarded as being reasonably necessary.
Our statutory provision makes it clear that the intention is personal and that it is not to be measured solely by objective standards. In my opinion, therefore, when the evidence in a case discloses a question of self-defence and where it is sought by the prosecution to show that the accused used excessive force, that is to say more than would be regarded as objectively reasonable, the prosecution must establish that the accused knew that he was using more force than was reasonably necessary. Therefore, it follows that if the accused honestly believed that the force he did use was necessary, then he is not guilty of murder. The onus, of course, is upon the prosecution to prove beyond reasonable doubt that he knew that the force was excessive or that he did not believe that it was necessary. If the prosecution does not do so, it has failed to establish the necessary malice. If, however, at the same time it does establish that the force used was more than was reasonably necessary it has established that the killing was unlawful as being without justification and not having been by misadventure. In those circumstances the accused in such a case would be guilty of manslaughter. For these reasons I am of the opinion that the question raised in the Attorney General’s certificate should be answered in the affirmative.
I wish to make it clear that, in answering the question in the certificate, I am confining myself strictly for the purposes of this case to the actual terms of the question and, in particular, to the reference to the person being”subjected to a violent and felonious attack.” I make this point because I do not wish to be taken to subscribe to all the dicta in the Australian case of R. v. Howe 34 as thedicta in that case appear to indicate a wider area than has been raised in the question before this Court. For example, at p. 460 of the Australian report Chief Justice Dixon speaks of “an attack of a violent and felonious nature, or at least of an unlawful nature, was made or threatened so that the person under attack or threat of attack reasonably feared for his life or the safety of his person from injury, violation or indecent or insulting usage. This would mean that an occasion had arisen entitling the person charged with murder to resort to force to repel force or apprehended force.” I draw attention to this only to indicate that the present case is by its terms confined to the first type of attack mentioned in the passage quoted. I do not say that I would not follow the views of the learned judges of that court in the appropriate case and I express no view upon that; but I am concerned to express the limitations on my present opinion.
For the reasons above stated I am of opinion that the appeal should be allowed and a new trial ordered on the charge of murder. There was ample evidence in this case to sustain a verdict of murder, and there is nothing in the evidence to indicate that a reasonable jury could only have arrived at a verdict of manslaughter or an acquittal on the ground either of the limited self-defence discussed in this case or on the ground of full self-defence.
FITZGERALD J. :
In view of the opinions expressed by my colleagues, I am prepared to say that the question referred to the Court by the Attorney General should be answered in the affirmative.
BUTLER J. :
The appellant was convicted of murder in the Central Criminal Court on the 10th November, 1969, and he was sentenced to penal servitude for life. He had been charged with the murder of Anthony Smith and Philip Ney and had been indicted on two counts. The count relating to Anthony Smith was adjourned. At the trial, part of the defence was a plea that the appellant had acted in self-defence on the occasion of the killing. His application to the trial judge for a certificate for leave to appeal was refused and, accordingly, he applied to the Court of Criminal Appeal for leave to appeal. One of the grounds of that application was concerned with the direction given to the jury in relation to the plea of self-defence. On the 13th April, 1970, the Court of Criminal Appeal granted the application for leave to appeal on a ground unconnected with the plea of self-defence and, having treated the hearing of the application as the hearing of the appeal, that court came to the conclusion that no miscarriage of justice had actually occurred and it dismissed the appeal.
The appellant thereupon applied to that court for a certificate pursuant to s. 29 of the Courts of Justice Act, 1924, that the decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court. The Court of Criminal Appeal refused this application. Subsequently, on the 9th of November, 1970, the Attorney General granted a like certificate under the powers conferred on him by s. 29 of the Act of 1924. The point of law was stated in the certificate as follows:
“Where a person, subjected to a violent and felonious attack, endeavours, by way of self-defence, to prevent the consummation of that attack by force, but, in doing so, exercises more force than is necessary but no more than he honestly believes to be necessary in the circumstances, whether such person is guilty of manslaughter and not murder.”
The events which led to the death of Anthony Smith and Philip Ney took place on the night of the 3rd January, 1969, in Ormond Square and the adjoining streets which are just a short distance from the Four Courts. At about 11 o’clock on that night the parents of Anthony Smith set out from Curley’s public-house in Charles Street to walk the short distance along Ormond Square to their home in East Arran Street. The appellant and a companion, Christopher Fox, had spent the evening in another local public-house, the Four Courts Bar, where they had each had about twelve pints of stout. They left the bar at closing time and walked towards Charles Street where there is a fish and chip restaurant called the Sorrento Café. Their route was also through Ormond Square in the opposite direction to that of Mr. and Mrs. Smith. The appellant and Fox stopped in Ormond Square and Fox was urinating when Mr. and Mrs. Smith came around the corner from Charles Street. Mrs. Smith reprimanded Fox because of his indecent behaviour and they commenced to abuse one another with some heat on both sides and at some length. It is clear that during the exchange Fox used foul language and behaved very offensively. Mr. Smith, who is an invalid, only stayed for the beginning of the row. He spoke to the appellant to remonstrate with him for Fox’s behaviour, but nothing much passed between them and he went on towards home. At the corner of East Arran Street he met Philip Ney who was a near neighbour and friend of his son, Anthony. Anthony Smith and Ney had also spent the evening in the Four Courts Bar where Anthony had acted as a master of ceremonies for the ballad singing. As Mr. Smith was talking to Ney, Anthony came along. Mr. Smith obviously told his son Anthony of the row between his mother and the appellant and Fox, and Anthony threw off his coat and went along Ormond Square in the direction of Charles Street. Meanwhile the altercation had ended and Mrs. Smith was coming on home, while the appellant and Fox had gone into the Sorrento Café at the top of Charles Street across the road from the corner of Ormond Square. Anthony Smith followed them there having passed his mother on the Square without stopping. It seems that Ney came after him and that, at some stage, they were joined by a third friend, Patrick Holmes.
When Anthony Smith came to the door of the café, he looked in and shouted something. As a result Fox and the appellant came out, being followed shortly afterwards by most of the customers from the café. Fox and Holmes almost immediately got into a fight which swayed up and down the street and which ended with Fox being knocked to the ground and kicked in the head by Holmes. Further fighting meanwhile broke out and continued in separate groups; there was great noise and confusion and the screaming of women. It is impossible now to have a clear picture of all that happened but, from a number of accounts including that of the appellant, at some stage one fighting group included the appellant and Anthony Smith and Ney. The appellant says he was caught from behind and hit on the head with some instrument. He saw Fox felled and being kicked on the ground. The appellant himself was afraid of being killed and he took a knife from his inside pocket. He says that he merely brandished the knife. There is other evidence that he struck with it. When the fighting had ended, Anthony Smith and Ney had fallen fatally stabbed. The inference from all the evidence is almost inescapable that the blow which killed Ney was struck by the appellant.
While there was evidence which would justify a jury in holding that the appellant came out of the café unnecessarily and acted aggressively with full knowledge of what he was doing so that a verdict of guilty of murder would be justified, equally there was evidence that he only reacted to being attacked and because he feared serious injury or even death. However, Ney had one arm in plaster and, even if the appellant was being attacked, there was no evidence (apart from his own reference to being hit) that any of his assailants were armed or that he was prevented from making his escape. Consequently, it was clearly open to the jury to find that the appellant used more force than was reasonably necessary for his own protection.
In dealing with the plea of self-defence, the trial judge directed the jury that if the appellant, though acting in self-defence, killed through using more force than was reasonably necessary in the circumstances the verdict should be “guilty of murder.” In the light of this direction the verdict of guilty of murder may mean either that the jury rejected the contention that the appellant acted in self-defence or it may mean that, while accepting that he acted in self-defence, they were of opinion that he used more force than was reasonably necessary in the circumstances. The Court of Criminal Appeal expressly approved of the direction given at the trial. Having referred to the submission that a verdict of manslaughter was the appropriate verdict where an accused person killed while defending himself by way of self-defence from an attack by force and where the accused used more force than was reasonably necessary but no more than was necessary for his protection or what might reasonably be regarded by him to be necessary in the circumstances, the Court of Criminal Appeal went on to say: “Reliance for this submission was placed on R. v. Howe 35 which is one of a number of Australian cases which are said to support the proposition that manslaughter is the proper verdict in such circumstances: see Smith and Hogan, Criminal Law, 2nd edition, p. 233. It does not appear that these decisions have been followed in Ireland or England. On the contrary, this Court has time and again approved as being a correct direction to the jury in a case where the defence of self-defence arises that given by the trial judge in the present case, namely, that if the jury reach the conclusion that if the accused killed through using more force than was reasonably necessary in the circumstances, the verdict should be guilty of murder. Having regard to the fact that this Court has repeatedly accepted such direction as being correct, and the fact that when the legislature amended the law as to malice in the case of murder in the Criminal Justice Act, 1964, it left this matter untouched, we consider that if the restatement of the law requested by counsel for the applicant requires to be made, it should emanate from a source other than this Court.”
At common law, murder is the unlawful killing of a human being with malice aforethought. In the Criminal Justice Act, 1964, the legislature has defined malice aforethought by providing in s. 4, sub-s. 1, that: “Where a person kills another unlawfully the killing shall not be murder unless the accused person intended to kill, or cause serious injury to, some person, whether the person actually killed or not.” Sub-section 2 of that section provides that: “The accused person shall be presumed to have intended the natural and probable consequences of his conduct; but this presumption may be rebutted.”
A person is entitled to protect himself from unlawful attack. If in doing so he uses no more force than is reasonably necessary, he is acting lawfully and commits no crime even though he kill his assailant. If he uses more force than may objectively be considered necessary, his act is unlawful and, if he kills, the killing is unlawful. His intention, however, falls to be tested subjectively and it would appear logical to conclude that, if his intention in doing the unlawful act was primarily to defend himself, he should not be held to have the necessary intention to kill or cause serious injury. The result of this view would be that the killing, though unlawful, would be manslaughter only. This is the view adopted by the High Court of Australia is R. v. Howe 36 where the court upheld the judgment of the Supreme Court of South Australia to the effect that such a case of self-defence was “a case of unlawful killing, without malice aforethought, for although the killer may clearly intend to inflict grievous bodily harm on his assailant, and if necessary, to kill, his state of mind is not fully that required to constitute murder”see p. 465 of the report. It is clear from the judgments that the members of the court considered it reasonable in principle to regard such a homicide as reduced to manslaughter because the existence of an honest belief in the necessity to use the amount of force actually used was inconsistent with the contemporaneous existence of the state of mind required to support a verdict of guilty of murder. In rejecting the arguments on behalf of the appellant based on R. v. Howe, 37 the Court of Criminal Appeal does not appear to have considered the principle involved but seems to have felt bound by previous decisions of that court, and seems to have been influenced by the fact that the view expressed in the Australian case had not been followed in Ireland or England. So far as Ireland is concerned, the point does not appear to have been argued previously in any court. Certainly there has been no judicial rejection of the submission now made on behalf of the appellant.
This Court was referred to the decision of the English Privy Council in Palmer v. The Queen 38 in which the court in terms disapproved of the decision in R. v. Howe. 37However, an examination of the judgment shows that, although the Privy Council refused to admit of the existence of any such rule as is enunciated in Howe’s Case 37where a plea of self-defence is raised on a charge of murder, their reasoning in principle did not materially differ from that of the judges in the Australian case. Indeed, it is explicit in the judgment that, even where a plea of self-defence is rejected because of the strict application of the doctrine that no more force may be used than that which is reasonably necessary in the circumstances, the question of the possible absence of the intention necessary to constitute murder must still be considered by the jury. Thus Lord Morris of Borth-y-Gest, who delivered the judgment in Palmer v. The Queen, 38 says at p. 826 of the report: “If the jury are satisfied by the prosecution that the accused did not act in self-defence and was not provoked then the jury will have to decide whether the accused had the intent that is necessary if the crime of murder is to be proved. If on the evidence in a case the view is possible that though all questions of self-defence and of provocation are rejected by the jury it would be open to them to conclude that though the accused acted unjustifiably he had no intent to kill or to cause serious bodily injury, then manslaughter should be left to the jury.” It is difficult to see any difference in principle or much in expression between this and a rule which says that, where the plea of self-defence cannot avail to secure an acquittal because of the degree of force used, the jury must still consider whether the accused’s primary intent was to defend himself and, if so, he shall be found guilty of manslaughter and not of murder.
Later both Howe’s Case 39 and Palmer’s Case 40 were considered in England by the Court of Criminal Appeal in R. v. McInnes. 41 Again, although the court purported to follow Palmer’s Case 40 in rejecting the existence of the rule in Howe’s Case, 39 it is clear that the court was prepared to apply the same logic as did the Australian judges. The judgment of the court in R. v. McInnes 41 was delivered by Lord Justice Edmund Davies who says at p. 1608 of the report: “But where self-defence fails on the ground that the force used went clearly beyond that which was reasonable in the light of the circumstances as they reasonably appeared to the accused, is it the law that the inevitable result must be that he can be convicted of manslaughter only, and not of murder? It seems that in Australia that question is answered in the affirmative . . . but not, we think, in this country. On the contrary, if a plea of self-defence fails for the reason stated, it affords the accused no protection at all. But it is important to stress that the facts upon which the plea of self-defence is unsuccessfully sought to be based may nevertheless serve the defendant in good stead. They may, for example, go to show that he may have acted under provocation or that, although acting unlawfully, he may have lacked the intent to kill or cause serious bodily harm, and in that way render the proper verdict one of manslaughter.” The last part of this quotation would appear to express exactly the ratio decidendi in the Australian case.
The Court of Criminal Appeal seems to have interpreted the Criminal Justice Act, 1964, as being legislative approval of the form of direction given to the jury in the present case, and as a deliberate omission by the legislature to amend the law in accordance with the principle expressed in Howe’s Case. 42 It is not, of course, permissible to enquire whether or not the matter was present in the mind of the legislature when the bill was passed. The intention of the legislature may only be gathered from an interpretation of the words used in the Act of 1964. Far from petrifying the law and preventing its development on the lines of Howe’s Case, 42 it would seem that the Act of 1964 rather pointed the way to this development by its insistence on the intention to kill or cause serious bodily injury as an essential ingredient in the crime of murder, and by providing that the presumption that an accused person intended the natural and probable consequences of his act may be rebutted.
The matter is one for consideration by the jury in each case and it is for them to find what was the intention of the accused at the time of the killing. It is not in every trial for murder in which the plea of self-defence is raised that an accused person must, at worst, be convicted of manslaughter. The evidence of the words and acts of the accused and the surrounding circumstances, both before and after the killing, may satisfy the jury that the primary intention of the accused was not to defend himself. Indeed on the evidence they may so find in this case. However, where self-defence is open on the evidence as an answer to a charge of murder, the jury must be so satisfied before convicting of that charge, and the accused is entitled to have it left to the jury to consider whether, even if they find he used more force than was reasonably necessary to defend himself, he nonetheless used no more than he honestly believed to be necessary in the circumstances. In the latter case they should be directed to find him guilty of manslaughter, and not of murder.
The point of law raised in the Attorney General’s certificate should, therefore, in my view be answered in the affirmative. The appellant is entitled to have the verdict of murder set aside and, accordingly, it is unnecessary to consider the other grounds advanced on this appeal. As there was evidence which would entitle a jury to reject completely the plea of self-defence, a new trial should be directed on the charge of murder.
DPP v O’Brien
[2016] IECA 146
Judgment of the Court delivered on the 12th day of May 2016 by Mr. Justice Edwards.
Introduction.
1. In this case the appellant appeals against his conviction by a jury at Limerick Circuit Criminal Court on the 30th of January 2015 on a count of assault contrary to s. 2 of the Non Fatal Offences Against the Person Act 1997 (the Act of 1997), and also on a count of making a threat to injure another with a syringe, contrary to s. 6(1)(b) of the Act of 1997.
2. Following his conviction the appellant was sentenced to 6 months imprisonment to date from the 21st of October 2014 in respect of the s.2 offence, and to five years imprisonment, also to date from the 21st of October 2014, in respect of the s. 6(1)(b) offence. The appellant also appeals against the severity of his sentences. However, this judgment is concerned solely with his appeal against conviction.
The evidence in the case
3. The evidence adduced by the prosecution was largely, though not entirely, uncontroversial. The counts in respect of which the appellant was tried related to two separate incidents which occurred on the same afternoon.
4. Count No 1, which charged the s. 2 assault, was preferred in respect of an incident that occurred at Gleeson’s Spar shop at Henry Street, Limerick, on the 10th October, 2013. A Mr. Michael Gleeson and his brother own this shop. The Gleeson family also has another shop at 43, Catherine Street, Limerick.
5. The jury heard that Michael Gleeson was working at his said shop at Henry Street when the appellant entered the premises shortly after 5.00 p.m. on the 10th October, 2013. Having been interrupted in the course of serving another customer by the appellant, who was observed to be behaving aggressively, Mr Gleeson asked the appellant to leave his shop. The appellant started shouting and uttering threats and then, at about 5.04 p.m., he lunged at a Mr. Andrzej Stradomnski who was working behind the counter grabbing him by the neck, and in the course of doing so knocked over a display stand containing chocolate and sweets. The appellant was then forcibly restrained by Michael Gleeson and other members of the staff. He was put out of the premises. The incident was recorded on a CCTV system. Relevant footage was played at the trial.
6. Mr Stradomnski testified in his evidence in chief that he had not offered any provocation to the appellant and had done nothing to cause, or to justify, the appellant in grabbing him. Asked what he did next, i.e., after he had been grabbed, Mr Stradomnski said “Well, I tried to defence me.” It was suggested by the defence that Andrzej Stradomnski had made “a swipe” at the appellant prior to the appellant’s lunge. In the course of being cross-examined, Mr Stradomnski was being asked to comment on the CCTV footage, when the following exchange occurred:
Q. … He has you by the jumper, he hasn’t touched your skin. He has you by the jumper. You pull him into you, isn’t that right? Play it on now, guard. Here comes Mr what you call him, catch him, first of all, around the left-hand side of the neck and now his left hand is there around my client’s neck as well, isn’t that right? Did you see that?
A. I see that.
Q. You saw that and then he pulls him away. Are you sure you didn’t make a lunge for my client because it looks very like it to me, that you made a lunge for him when he was outside the counter, causing him to back off?
A. I just said — excuse me.
Q. You don’t understand?
A. I just said: “Leave the shop.”
Q. You just said: “Leave the shop” you said more than that. You’re leaning across with your hand out there, isn’t that right? In fact you made a swipe at him, didn’t you?
A. Yes.
7. This formed the basis for a claim of self defence advanced at the trial. The defence also complained that excessive force was applied to the appellant when he was being restrained.
8. Count No 2., which charged the s.6(1)(b) offence, was preferred in respect of an incident that occurred at the Gleeson’s other shop at Catherine Street, Limerick, later on the same afternoon.
9. The prosecution evidence was that the appellant entered the shop in Catherine Street and stole a Bounty bar. He left the shop with the Bounty bar. A nephew of the shop owners, a Mr. Seaghan Gleeson and another employee, a Mr Karl Hanley, went outside to confront him. Mr Hanley asked the appellant to return the Bounty Bar. The appellant then produced and brandished a syringe and threatened to kill both Mr Gleeson and Mr Hanley. Mr Gleeson in his evidence in chief testified to the following (inter alia):
Q. Now when he produced the syringe, as you have described it, did he say anything at that time?
A. He was threatening to kill me.
Q. Anything else?
A. Just abusive. I can’t really remember most of what his — what was said. I just remember being frightened and that was it. I — and next — once the syringe was produced, I ran. That was …
Q. What was your reaction?
A. Just one of instant shock. Just one of instant fear.
Q. Fear of what?
A. Of being stabbed with a syringe.
10. The evidence was that, armed with the syringe, the appellant then chased Mr Gleeson along a nearby street. Mr. Gleeson managed to escape his pursuer after he had successfully positioned himself such that there was a car between him and the appellant. Asked about this, Mr Gleeson gave the following further evidence:
Q. You were dodging him using the car?
A. Yes. Yes.
Q. And at the car, was he saying anything to you?
A. More threatening and abusive, just, “I’ll kill you” just was main — main stay of what he was saying to me.
Q. Right. And what were you thinking at that stage?
A. Just hoping that I wouldn’t be hurt.
Q. Yes. Hurt with what?
A. The syringe, be stabbed.
11. The appellant, having been later arrested, claimed in interviews with him conducted by members of An Garda Siochána, that he did not have a syringe but that what he had in his hand was in fact a bookmaker’s biro.
The grounds of appeal
12. The appeal has been advanced on three grounds.
13. The first relates solely to the count charging assault contrary to s.2 of the Act of 1997 (count no 1.), and contends that the trial judge misdirected the jury on the law with respect to self defence, and in particular failed to make clear to the jury that the relevant test is a subjective one.
14. The second relates solely to the count concerning the making of a threat with a syringe, contrary to s 6 (1) (b) of the Act of 1997. It was submitted that a direction ought to have been granted on this count in circumstances where, it was contended, there had been no evidence that the appellant’s victim to perceived a risk of infection with disease.
15. The third relates to the failure of the trial judge to accede to a defence request made in the course of requisitions following the judge’s charge and shortly before 4.00pm on day 3, the jury having initially retired at 3.43pm, to adjourn the trial overnight so that the jury could instead deliberate in a refreshed and rested state on the following morning.
The charge on self defence.
16. The law on self defence in the case of a non-fatal assault is based on s. 18 of the Act of 1997, as amended, which (to the extent relevant to the present case) provides:
18.—(1) The use of force by a person for any of the following purposes, if only such as is reasonable in the circumstances as he or she believes them to be, does not constitute an offence—
(a) to protect himself or herself or a member of the family of that person or another from injury, assault or detention caused by a criminal act; or
(b) to protect himself or herself or (with the authority of that other) another from trespass to the person; or
(c) to protect his or her property from appropriation, destruction or damage caused by a criminal act or from trespass or infringement; or
(d) to protect property belonging to another from appropriation, destruction or damage caused by a criminal act or (with the authority of that other) from trespass or infringement; or
(e) to prevent crime or a breach of the peace.
(2) “use of force” in subsection (1) is defined and extended by section 20 .
(3) [not relevant]
(4) [not relevant]
(5) For the purposes of this section the question whether the act against which force is used is of a kind mentioned in any of the paragraphs (a) to (e) of subsection (1) shall be determined according to the circumstances as the person using the force believes them to be.
(6) [not relevant]
(7) [not relevant]
(8) [not relevant]
(9) [not relevant]
17. Subsection (2) of s.1 of the Act of 1997 is also relevant, in as much as it provides:
For the purposes of sections 17 , 18 and 19 it is immaterial whether a belief is justified or not if it is honestly held but the presence or absence of reasonable grounds for the belief is a matter to which the court or the jury is to have regard, in conjunction with any other relevant matters, in considering whether the person honestly held the belief.
18. The effect of section 18 has been considered in a number of cases that have come before this Court, and its predecessor, the former Court of Criminal Appeal. These have included the following cases on which the respondent in this appeal places particular reliance, namely: The People (Director of Public Prosecutions) v McGinty (unreported, Court of Criminal Appeal, 3rd of June 2003); The People (Director of Public Prosecutions) v O’Reilly (unreported, Court of Criminal Appeal, 30th of July 2004); and most recently The People (Director of Public Prosecutions) v Quinn [2015] IECA 308 (unreported, Court of Appeal, 18th of December, 2015).
19. It is clear from s. 18 of the Act of 1997, as confirmed by this Court and its predecessor, that s. 18 involves applying a two part test. The first limb is concerned with deciding whether the accused may have honestly believed it was necessary to use force for one of the five purposes specified in s.18(1), and in fact did so. The second limb concerns a determination as to whether such force as was in fact used was reasonable in the circumstances as he honestly believed them to be. In respect of both limbs the test is at all stages a subjective one. However, in assessing the honesty of the asserted beliefs, the trier of fact, whether it be a non jury court, or a jury, is required to have regard to the presence or absence of reasonable grounds for those beliefs, in conjunction with any other relevant matters. To that extent, but to that extent only, the assessment as to whether an individual was acting in self-defence contains an objective component. Moreover, where self defence has been raised or asserted, the jury must be told that it is for the prosecution to prove beyond reasonable doubt that the accused did not act in self defence. The accused does not bear an onus of proving that he acted in self defence.
20. In this case, it is accepted by counsel for the respondent that the trial judge’s initial charge contained a misdirection in as much as he incorrectly invited the jury “to examine the accused’s response and decide whether it was reasonable and proportionate in the circumstances”, thereby implying an objective test. However, the trial judge was requisitioned by counsel for the prosecution in respect of that aspect of his charge, and the trial judge was asked to re-charge the jury concerning how they should approach a claim of self defence. Counsel for the defendant supported the prosecution’s request, and the trial judge agreed to re-address the jury on self defence.
21. The jury were then recalled and the trial judge proceeded to tell them, inter alia, that:
“…once you are satisfied that the accused had a genuine belief that he was acting in self-defence at the time, you must take into account the accused’s state of mind and all of the circumstances surrounding the matter and, having taken these into account, you must determine whether the force used by the accused was reasonable and proportionate.”
22. In oral submissions to this Court, counsel for the respondent submitted that the judge’s recharge was to the effect that self defence was to be construed subjectively. It was accepted that the trial judge had used his own formulation, but it was submitted that it was sufficient and appropriate.
23. Counsel for the defendant, the late Mr Nix SC, complained that the re-charge had not been adequate and he raised a further requisition. However, the trial judge refused to re-charge the jury a second time.
24. This Court considers that it is a finely balanced question concerning whether the trial judge’s re-charge on self defence was in fact adequate, given that it reiterated the proposition that the jury needed to “determine whether the force used by the accused was reasonable and proportionate”. That injunction was not expressly qualified, as ideally it ought to have been, by adding the rider “in the circumstances as the accused honestly perceived them to be.” Nevertheless, the trial judge did tell the jury that they “must take into account the accused’s state of mind” and “all of the circumstances surrounding the matter” before proceeding to make their said determination, arguably implying, on one view of it, that their adjudication as to the reasonableness and proportionality of the action taken in purported self defence was to be judged with reference to the circumstances as the accused perceived them to be. However, on balance, we do not consider that the formulation used by the trial judge in recharging the jury fell on the right side of the line between an adequate direction and a misdirection, and we are not convinced that it did in fact serve to make it sufficiently clear to the jury that the test to be applied at all stages was a subjective one.
25. We are therefore disposed to uphold this ground of appeal.
The refusal to direct an acquittal on the count of making a threat with a syringe
26. It is appropriate at the outset, in considering this issue, to set out the terms of s. 6(1) of the Act of 1997:
6.—(1) A person who—
(a) injures another by piercing the skin of that other with a syringe, or
(b) threatens to so injure another with a syringe,
with the intention of or where there is a likelihood of causing that other to believe that he or she may become infected with disease as a result of the injury caused or threatened shall be guilty of an offence.
27. The appellant contends that as there was no evidence before the jury that the alleged injured party, Mr Seaghan Gleeson, perceived a threat of infection with disease, the count charging the offence of making a threat with a syringe contrary to s. 6(1) (b) of the Act of 2010 (count no 2 on the indictment) should have been withdrawn from the jury.
28. In written submissions to this Court, and repeated in oral argument, counsel for the appellant contended that:
“There were no surrounding circumstances established in evidence to provide any basis for drawing an inference about intention or the likely creation of a belief about ‘infection’, such as might for example be established where a syringe clearly has blood contained in it or where an incident takes place in a drug treatment facility or a hospital, This perceived “risk of infection” element distinguishes the offence from, and in fact renders it completely different from, an offence such as threatening to injure someone with an offensive weapon or suchlike. As such, it requires proof of a very specific perception of risk, which cannot be assumed. It cannot be assumed that every person who brandishes a syringe is intending to create an impression about infection, or is creating a likelihood that another person will believe that a risk of infection exists. There must be some evidential basis for this contention, however tenuous, and there was no basis established in evidence in the case at issue. Notwithstanding the personal history of the appellant, there was no evidence tendered that he was visibly a drug addict, or that anyone perceived him to be such.”
29. In response, counsel for the respondent has argued that the argument advanced on behalf of the appellant is based upon a flawed analysis of s. 6(1)(b) of the Act of 1997, and a misunderstanding concerning the ingredients of the offence created by that provision.
30. It was submitted by counsel for the respondent that a correct analysis of the provision at issue reveals the creation of an offence in respect of which the actus reus consists of threatening to injure another by piercing the skin of that other with a syringe, and the mens rea consists of so doing in one of two circumstances. The first circumstance that can constitute sufficient mens rea is where the threat is proffered with the positive intention of causing the recipient of the threat to believe that he or she may become infected with disease as a result of the injury threatened. The second is where the threat is proffered in effect recklessly, i.e., in circumstances where there is a likelihood of causing the recipient of the threat to believe that he or she may become infected with disease as a result of the injury threatened.
31. It was contended by counsel for the respondent that to secure a conviction for an offence contrary to s. 6 (1)(b) of the Act of 1997, it is not in fact necessary for the prosecution to prove that the victim actually perceived a risk of infection with disease.
32. This Court considers that counsel for the respondent’s analysis is correct and that the ingredients of an offence under s. 6 (1) (b) of the Act of 1997 are as he has stated. We are satisfied that it was not in fact necessary for the prosecution to prove that Mr Seaghan Gleeson actually perceived a risk of infection with disease.
33. We further consider that the trial judge was right to allow count no 2 to go to the jury. Although it is true to say there was no evidence of the express utterance by the appellant of a threat in terms that he would pierce the skin of Mr Gleeson with a syringe, there was ample evidence that the appellant had brandished a syringe, that he had done so aggressively, that his demeanour had been threatening and that the words “I’ll kill you” were uttered, and that Mr Gleeson had perceived himself under threat of being stabbed with the syringe that was being brandished. There was also sufficient circumstantial evidence to have allowed a jury, properly charged, to have drawn the inference that the appellant behaved as he did with the intention of causing Mr. Gleeson to believe that he might become infected with disease if so stabbed. Equally, even if they were not satisfied beyond reasonable doubt to draw the inference that the appellant positively had such an intention, there was also sufficient evidence to have allowed a jury, properly charged, to have concluded beyond reasonable doubt that the appellant behaved as he did in circumstances where there was a likelihood of causing Mr. Gleeson to believe that he might become infected with disease if stabbed with the syringe.
34. We are satisfied that the application for a direction on count no 2 was correctly refused, and we are not disposed to uphold this ground of appeal.
The failure to adjourn on the evening of day 3
35. The Court has considered the transcript of the trial and is entirely satisfied that the trial judge’s decision not to accede to defence counsel’s application to adjourn the balance of the case until the following day represented a legitimate exercise of the trial judge’s discretion, and that it did not result in any unfairness.
36. The trial judge in fact dealt with the matter very fairly. His reaction to the request was not an outright refusal. Rather, he said the following:
JUDGE: … just in relation to the jury’s deliberations, I am going to suggest to them that it is late in the day and I am going to give them the option as to whether they want to continue considering their verdict today or whether they would prefer to do so tomorrow; as such, that there’s absolutely no pressure on them in respect of matters, but that if they are feeling in any way tired or anything of that nature that I am quite prepared to allow them to continue their deliberations tomorrow morning.
MR NIX: Very good, Judge.
JUDGE: I intend to approach it that way and I will emphasise the fact that they’re under no rush or no pressure and I don’t want them to feel in any way hurried about matters, given the lateness of the hour. Okay?
MR NIX: Thank you, Judge.
37. The trial judge then said to the jury:
“I know that you’ve had to absorb an awful lot today and that you may be pretty tired at this juncture. I will give you the opportunity if you would rather start – or continue your deliberations in the morning, I am quite happy to do that. Or if you feel that you can approach this case with the clarity and fairness that you’re expected to do in accordance with your oath, whether you’d rather continue with your deliberations today. I don’t know whether you want to have a discussion amongst yourselves or if you would like to retire just for a moment or whatever way you want to do it.
But, Mr Nix has pointed out to me that perhaps people may be a bit tired after a long day today and I just want to give you the option. If you decide to continue deliberations today, that’s fine. If you feel that you might be fresher about it in the morning, that’s fine. But, I leave it to you to decide.”
38. Notwithstanding the trial judge’s invitation, the jury did not avail of the opportunity to break until the morning. It is clear from the trial judge’s remarks that he was assiduous in investigating the concern expressed by defence counsel about the jury possibly being too tired to do justice in the case. There was absolutely no evidence before the court concerning any unfitness on the part of the jury to continue. The jury themselves did not complain in any way.
39. It also requires to be borne in mind that at the point at which the issue was raised it was only mid afternoon. Moreover, the jury were placed under no pressure whatever to return with a verdict that evening. In the event, they returned with a verdict at 6.00pm which, although it was some two hours approximately after they had first retired, was still only early evening. The trial judge was best placed to make a judgment concerning the jury’s fitness to deliberate. In our view, he made appropriate enquiries and we can find nothing to criticise in the manner in which he exercised his discretion.
40. We are not therefore disposed to uphold this ground of appeal.
Conclusion.
41. In circumstances where we have seen fit to uphold one of the appellant’s three grounds of complaint, but have rejected the others we will allow the appeal in respect of count no 1. However, in respect of count no 2 we are satisfied that the appellant’s trial was satisfactory and his conviction was safe. We therefore dismiss his appeal against conviction in respect of count no 2.
People (DPP) v Brannigan
[2017] IECA 72
JUDGMENT of the Court delivered 3rd of March 2017 by Mr. Justice Edwards
Introduction
1. On the 1st December 2015 the appellant was arraigned and pleaded not guilty to each of three counts on an indictment before Dublin Circuit Criminal Court. Count no. 1 charged the appellant with the manslaughter of Jason Saunders on the 18th March 2014. Count no. 2 charged the appellant with assaulting Jason Saunders on the same date contrary to s. 3 of the Non Fatal Offences Against the Person Act 1997 and count no. 3 charged him with producing an article capable of inflicting serious injury, to wit, a golf club during the course of a dispute in a manner likely to unlawfully intimidate another, at the same date and place, contrary to s. 11 of the Firearms and Offensive Weapons Act 1990.
2. On day 5 of the trial, just prior to the commencement of closing speeches, and by agreement between the prosecution and the defence, count no. 2 was severed into two s. 3 assaults. Count no. 2 was amended to charge that “Mr. Brannigan did … assault one Jason Saunders by head butting him, thereby causing him harm” and an additional count was added to the indictment charging that “Mr. Brannigan did … assault one Jason Saunders by striking him with a golf club, thereby causing him harm”.
3. On day 6 of the trial, the appellant was found guilty by the jury in unanimous verdicts on counts nos. 2 and 3 respectively and guilty by a majority verdict on count no. 4. The jury disagreed in respect of count no. 1.
4. The appellant appeals against his conviction in respect of count no. 2 (i.e. assault by head butt) and count no. 4 (i.e. assault by striking with the golf club) on the following grounds:-
(i) The trial judge erred in law in relation to count no. 2 by misdirecting the jury in respect of the application of the principles of self defence to the facts of the case, by removing from the accused any consideration of his subjective view of the threat as he saw it.
(ii) The trial judge erred in law in refusing to allow the jury to consider self defence in respect of count no. 4.
The evidence before the jury
5. A party took place in the appellant’s flat, which was located on Fassaugh Avenue in Cabra, on a section of the street that comprised a number of grocery shops, a Chinese restaurant, a pub and some other establishments. The entrance to the flat was next door to a Spar shop at 70, Fassaugh Avenue. When one entered the street level door to the premises, one went up a stairs and then through a further door to access the flat itself. Various witnesses gave evidence of being at the party and of consuming large amounts of alcohol and it appeared that there were no difficulties or incidents at the party and it was effectively an open house with various people coming and going into the early hours of the 18th March 2014.
6. The court heard further evidence from a number of witnesses who were socialising with the deceased man, Jason Saunders, on the 17th March 2014 at the Autobahn pub in Finglas and that the group were drinking in the pub throughout the day until they left at approximately 8 p.m. and went back to the house of one of the girls in Finglas for a party. The court heard in particular from Darren Mulholland that he met Mr. Saunders for the first time that day, in circumstances where Mr. Saunders was in the company of the cousin of Mr. Mulholland’s girlfriend, and that Mr. Mulholland and Mr. Saunders were “sniffing coke and doing E’s all day”. The court heard that an argument had taken place between Mr. Mulholland and his girlfriend while at the party in Finglas and that Mr. Mulholland and Mr. Saunders left that party at approximately 6 a.m. on the 18th March 2014.
7. After leaving the party in Finglas, the two men were out on the street sharing a bottle of vodka between them and they then crushed an ecstasy tablet on the back of a phone and inhaled it before getting into a taxi and making their way to Cabra, where Mr. Saunders lived.
8. On arriving at Fassaugh Avenue, they went into the door of No. 70 and entered the appellant’s flat. The time at this stage was between 6.30 a.m. and 7.00 a.m.. The court heard from witnesses who were in the flat at the time that Mr. Saunders arrived. The evidence was that Mr. Saunders was drinking from a bottle of vodka and was talking loudly. The appellant turned down the music on a number of occasions and then was overheard telling Mr. Saunders that he would have to leave. The appellant and Mr. Saunders then left the flat through the upstairs door that led to the stairs, which in turn led down to the street. Witnesses had not noted arguments or aggression prior to the two men leaving the flat.
9. A Mr. Kevin Coffey gave evidence that he was working as the store manager of Spar at 72, Fassaugh Avenue on the morning of the 18th March 2014. While he and other staff members were getting ready to open the shop, he heard two people shouting outside the shop. The shouting was loud and unfriendly but he could not hear what was been said. He was some distance back inside the shop at the time and when he heard the shouting he moved towards the door of the shop. He recognised the appellant and Mr. Saunders and saw the two of them having a bit of a scuffle. He saw Mr. Brannigan head butt Mr. Saunders following which Mr. Brannigan “kind of turned to walk away and he then went back to him and proceeded to hit him…well, I didn’t see him hit him with the golf club but he certainly swung it a number of times”. Mr. Coffey’s recollection was that after the initial head butt Mr. Saunders looked as if he was just turning away as though he was going to go home, and Mr. Brannigan headed towards his door. When asked what did Mr. Brannigan do after that he replied “They then…both seemed to turn around and they gave…they went again”. The interaction ended when Mr. Saunders walked away and Mr. Brannigan proceeded back to his door. The incident was partly captured on CCTV and Mr. Coffey acknowledged that he had watched the CCTV of the incident prior to giving his full statement to the gardaí but maintained that he gave his evidence from memory and that it was not coloured by the CCTV recording he had viewed.
10. Under cross examination he acknowledged that he had said in his statement that Mr. Brannigan had a golf club in his hand and was swinging it at Jason Saunders. He had said “He was swinging it like mad. He didn’t seem to have any preference for where he was looking to hit Jason. From what I witnessed I can’t be sure if he made contact with Jason with the golf club. I did see him head butt him though. After this, I saw Jason walk away and I went back into the shop”. He was asked whether he was able to observe whether Mr. Saunders had something with him and he said he couldn’t see it. When pressed on whether Mr. Saunders may have had something with him he replied “He may have but I couldn’t see it”.
11. The jury also heard evidence from Aidan Kenna who was working as the manager of the Centra on Fassaugh Avenue and who saw a taxi pull up and two men get out at a point between 6.30 a.m. and 7 a.m. on the 18th March 2014. He recognised one of the men as Jason Saunders. Mr. Saunders was holding a bottle of vodka in his hand and went into the door leading to the flat at 70, Fassaugh Avenue. The taxi man lingered outside and Mr. Kenna got the impression he had been waiting for his fare. Sometime after that Aidan Kenna was inside his shop when he saw Jason Saunders stumble across the front of the shop window. He had his head down and was heading towards the road and Mr. Kenna was concerned he might get hit by a car. He went out to the door and he saw that Mr. Saunders had fallen face first onto the ground and that a bottle of vodka he had been holding had smashed underneath him.
12. Following Mr. Saunder’s collapse it was apparent to people who went to his assistance that he was in extremis. An ambulance was called and he was taken to hospital but unfortunately he was declared dead on arrival. A post mortem was carried out by Prof. Marie Cassidy. It transpired that Mr. Saunders had died from a very unusual cause. Prof. Cassidy had noted in the course of her post mortem a “tulip shaped abrasion” in the middle of the deceased’s chest. She stated that:-
“This injury was due to a direct blow to the chest. It is likely that such an injury was caused by being struck in the centre of the chest by a blunt instrument. I was shown a golf club and this could have caused the fatal blow to the chest, most likely due to a swipe from the club head.”
13. Under cross examination it was suggested to her that the mark could have been caused in the course of the deceased falling down onto a hard unyielding object. Prof. Cassidy agreed that was possible. Her attention was drawn to a number of photographs of the location where the deceased had fallen. These photographs showed a broken Smirnoff 1 litre vodka bottle. Her attention was drawn to a particularly thick and heavy piece of the broken bottle, what counsel described as “a knuckley bit that goes to the bottom of the bottle”. She stated that those pieces had not been shown to her and she had not given consideration to whether the injury might have been caused by the thick piece of broken glass in the photograph. She agreed that if somebody falls heavily onto something that is projecting it could cause a localised injury “not dissimilar from what we are talking about here”. The direct cause of death was attributed to a condition known as “Commotio Cordis” which is quite rare. It involves a lethal disruption of heart rhythm occurring as a result of a blow to the chest directly over the heart. Samples were taken from the deceased for toxicological analysis and this analysis identified that the deceased had consumed a cocktail of drugs including ecstasy and cocaine. The evidence was that these could have stressed the deceased’s heart and sensitised it to further insult, increasing his risk of a serious and potentially fatal cardiac arrhythmia following a blow to the chest.
14. The appellant did not give evidence at the trial. However memoranda of his interviews with members of An Garda Síochána were read to the jury. In the course of being interviewed he was asked “Can you now tell us in your own words exactly what happened this morning between 7a.m .and 8a.m.”. He answered
“For starters there was a bit of a party in my flat at 70, Fassaugh Avenue. I asked the partygoers to leave, I asked J to leave. I don’t know the time. When J got down to the front door he was kicking off. He was fuelled out of it on cocaine and vodka. Jason said he would come back and either shoot me or stab me one or the other. Then a golf club was there, behind the door, I picked it up. That’s the door of the flat out onto the street beside Spar. When I picked up – when I picked the golf club up I went outside and told him to fuck off. I thought he would just have went. When I stepped out with the golf club in my right hand down by my side, Jason then got in and stuck to me. He got right up in my face. I couldn’t punch him because he was too close to me. I couldn’t swing the golf club so my natural reaction was to head butt him. I head butted him straight into the forehead. Jason lifted up the litre bottle of vodka and was going to hit me with the litre bottle of vodka and that’s why I head butted him. I had no other option. When he went back a bit he went to throw it at me so I turned and ducked away. I went back into my flat then and had a cigarette. I didn’t think too much more of it. I told the lads inside what had happened and when I came back down again the ambulance was then and Jason was been put into the ambulance.”
15. Later in the same interview the appellant said:-
“He told me he was going to shoot me as he going out the main entrance onto Fassaugh. The usual bullshit, shoot, stab, the usual.”
Question: “So you knew he was just making idle threats?”
Answer; “Yeah, I didn’t care about that. I was saying go home sober up but he kept going. The golf club was in behind the door. I thought that when I picked up the golf club and stepped out with it he would run off but instead he went face to face with him. When he went face to face to me, he tried to strike me with a litre bottle of vodka and I head butted him. I only have one arm. It was only self defence. What could I do?”
Question: “So you are saying that out on the path at Fassaugh Avenue that Jason Saunders was carrying a litre bottle of vodka?”
Answer: “Yeah he tried to strike me with it.”
Question: “When you head butted him, what did he do?”
Answer: “He stood back, was going to launch the bottle at me and I got in behind me door and he ran off. I thought nothing more of it. Went up, had a smoke, told the lads what happened and after five minutes went back down and an ambulance was driving off. The fella out of Spar, the manager, approached me and told me I was lucky I didn’t get struck with the bottle.”
16. The appellant was shown CCTV footage in the course of being interviewed and he identified himself in that footage. Sgt. Gavin Ross, one of the interviewers, gave evidence that the interview then took the following course:-
[Mr Brannigan:] “That’s right on the corner. See him going head-to-head with me. That’s when I gave him a loaf and that’s when he ran off down the road”?
Question: “So you can identify yourself from the CCTV?”
Answer: “Yeah, that’s him roaring and shouting at me. He’s standing at the door saying, ‘Blah, blah, blah’ at me. He kept saying this to me. That’s when I ran out with the golf club. He’s at my front door confronting me. Then he walks off shouting, ‘Watch, watch’. The usual. When I went out with the golf club, he stuck it up to me. You can see it. I just pure back down. Remember I was saying we were that close – if I’d swung that I’d hit you with the rubber bit, if even that.”
Question: “Why if you knew he was just mouthing off at you and he had left your flat did you run out to him?”
Answer: “I just tried to scare him. I thought he would have run when he’d seen the golf club”?
Question: “Why did you not just close the front door? He was gone the other side of the path.”
Answer: “That’s on the other side of this room in distance. He did draw me out. I thought he’d run if I stepped out with the golf club. I thought I would have frightened him away. As I say, I don’t drink. I was after putting up with this at that hour”
Question: “So, Paul, again, we will look at this piece of CCTV. Jason Saunders is at the other side of the path away from your door and you have only one good arm. Why didn’t you close the door?”
Answer: “Do you know why? Because I thought he was going to do something spiteful like run up the back lane and smash me windows. They’re sneaky over there. It’s like if they can’t get you one way, they’ll do something sly on me. He already told me that “you have to live over there”, remember that.
Question: “But you think that was enough to make you run out with a golf club?” Answer: “I couldn’t really run out with me hands. I have only one good arm. He’s the kind of person who walks out that road, around the lane and smash all me windows. I thought if I ran out with a golf club he’d fuck off, yeah. I had no intention of hitting him with it. Just for fright. I have no power in this left arm and I did not hit him with it”
Question: “Were you swinging the golf club?”
Answer: “Not that I know. I remember putting it up in the air when he had the vodka bottle. When he held up the vodka bottle, I head butted him. Then he stepped back to throw it and I stepped back and held up the club. I walked back, held up the club and got into my flat”
Question: “You can see that point there when you hit him with a head-butt?”
Answer: “We can all agree on that. You see me hit him with my head, yeah.” Question: “But then you don’t immediately back off. You go forward. What are you doing there? You go forward four or five steps after him with your right arm up. What are you doing there?”
Answer: “I’m trying not to get hit with a bottle of vodka”
Question: “Are you swinging the club to keep him back from you?”
Answer: “I have the club up, to block”
Question: “Did you swing the club at all?”
Answer: No, I put it up”
17. At different later points in the same interview the appellant utters the following further relevant statements.
“And I was like that (shows holding right arm up) to protect myself. At the end of the day I’ve only one arm, there’s a fella coked up full of drugs”
“I tried to tell him enough was enough. It was either get a bottle of vodka in the face or give him a head butt”
“The reason I put the golf club up in the air like that was because he held a bottle of vodka up in the air. I was too close to hit him with the golf club. We were too close together. When Jason leaned back he was going to throw the bottle of vodka at me so I said I was going to throw the golf club at him if he was going to throw the bottle at me. That’s why I held the golf club up in the air.”
“He’s on one side, I’m on the other side, he stepped back to swing a bottle of vodka and I was stepped back. I was swinging the golf club and he was swinging the bottle of vodka. This was after the head butt. He was threatening to throw the bottle of vodka and I was threatening to throw the golf club. I only head butted him”
18. There were then the following further exchanges:
“Question: “Did you hit him with the golf club? Where did you hit him with the club? Did you hit him in the head?”
Answer: “I didn’t hit him with the golf club anywhere at all.”
Question: “Did anyone hit him in the flat?”
Answer: “No, nobody did. There was no fight in the flat.”
Question: “What’s the truth about swinging the golf club? The witness said you swung it like mad so how did you swing it?”
Answer: “I put it back behind my head like I was going to throw it.”
Question: “Did you swing the club in front of you to protect yourself from Jason Saunders with his bottle of vodka?”
Answer: “Yes, I did swing it in front of me to protect myself and keep Jason away from me, but I didn’t hit him and it was after I’d held it up in a threatening manner first. I want to say he was 10 or 15 feet away so I couldn’t hit him anyway.” Question: “Why did you swing it then if he was 10 or 15 feet away?”
Answer: “The reason I swung it was he had a bottle of vodka threatening to throw it at me. I only swung it once or twice after I was holding it up over my head and then I went in.”
Question: “How many times did you swing the golf club in front of you?”
Answer: “Two to three times max.”
Question: “You’ve now changed from one to two and now to three times.”
Answer: “He wasn’t in my range when I was swinging.”
Question: “What if I produced CCTV footage showing the golf club actually hitting him, what would you say then?”
Answer: “Self-defence but I know he’s out of range.”
Question: “Paul, we think this bruise was caused by his being hit with the golf club.” Answer: “I don’t think I hit him with the golf club 100%. He was too far out of my reach.”
Question: “It’s a long thin bruise.”
Answer: “I know.”
Question: “Did you connect at all?”
Answer: “No, I loafed him in the head with my head”
The Judge’s Charge on Self Defence
19. In the course of his charge to the jury, the trial judge discussed the ingredients of the offence of assault causing harm and went on to explain the necessity for the perpetrator to act without lawful excuse, and had this to say:
“The issue that arises essentially in the trial in respect of the concept of assault is whether it can be done with lawful excuse and the law allows for the lawful excuse of the use of force in circumstances where someone is defending himself. It is provided for under the same Act, again, and says that: ‘The use of force by a person for any of the following purposes, if only such as is reasonable in the circumstances as he or she believes them to be, does not constitute an offence.’ And it says: ‘(a) to protect himself or herself or a member of the family of that person or another from injury, assault or detention caused by a criminal act.’ So in the course of the evidence of this case the concept of defence itself arises in respect of count No. 2 on the indictment and on that only. This is the allegation that the accused assaulted Jason Saunders by head-butting him, thereby causing him harm. The defence does not arise in respect of count No. 4 which is the allegation that the accused assaulted Jason Saunders by striking him with a golf club, thereby occasioning him harm because the accused’s defence to count No. 4 is that he never struck with the golf club, he didn’t use the golf club as a weapon of assault and that he did not hit the late Mr Saunders. So, that’s the issue for you there. It is a determination of the facts of the case. In view of all of the evidence, did he strike or did he not? If he did, he’s guilty of the offence; if you’re left with any reasonable doubt in that proposition, well then you’ll acquit him of that offence.
But in coming back to the offence as contained in count No. 2, that of assault of one Jason Saunders by head-butting, here different considerations arise because here the accused tells you in the course of his interview that he did so to defend himself; that the late Mr Saunders faced him off, that he wasn’t in a position to do anything else, that he was in fear of being struck by him, either with or without the bottle, and so he head-butted him. Now, the law says that it is lawful to use force in defence of yourself but it isn’t an open, so to speak, licence. It is subject to certain strictures. The first thing to say to you is that once the issue is raised as a matter of defence on the evidence, the onus rests still on the prosecution to rebut it, to satisfy you beyond reasonable doubt that it couldn’t arise. The standard that the State must, in establishing their facts, is to satisfy you beyond reasonable doubt that the assault by head-butt was done without lawful excuse by the accused and that there is no reasonable defence to it. The defence, on the other hand, in raising it must raise with you the mere possibility of it. If it is possible on the evidence, well then the benefit of the doubt is given to the accused and you must acquit him. So the onus rests on the State to make a tie of it; to disprove it. Secondly, if I am threatened by someone to say, who raises his fists and says: ‘Now I’m going to knock your block off’ or words to that effect, it isn’t a defence to you to pull out your sword and run it through them or pull out a gun and shoot them and say: ‘I’m only defending myself.’ The law says that what you do in response to the threat must be proportionate, must be measured considerably, what threat is presented to you. And in assessing what that threat is, you look at it from the point of view of the accused: what did he see? What’s threatening him at the time? How did it present to him as he believed it? It is open to you to assess that evidence to see if his belief, as he expresses, is reasonable, if it is reasonable, having regard to all of the facts of the case as you know it. And, equally, it is open to you to have regard in that respect as to whether or not there was a need to engage with the assailant, in any event with Mr Saunders, on this occasion, was there a way to escape to avoid contact, to avoid encounter? The obvious other thing to say to you is that if the accused man, in your view, was the instigator of the row, he cannot rely upon the defence of self. So the law doesn’t allow you to start a row and then say: ‘Oh, well, I was only defending myself.’ If you are the instigator, the originator of the fracas, the row, well then you cannot rely upon the defence of self-defence, a defence of the person.”
The alleged misdirection as to the subjective test
20. The appellant complains that the trial judge misdirected the jury in relation to Count 2 in respect of the application of the principles of self defence to the facts of the case by removing from the accused any consideration of his subjective view of the threat as he saw it.
21. In non-fatal offences the test to be applied to self defence is undoubtedly subjective at all stages. S. 18(1) of the Act of 1997 provides:
“The use of force by a person for any of the following purposes, if only such as is reasonable in the circumstances as he or she believes them to be, does not constitute an offence—
(a) to protect himself or herself or a member of the family of that person or another from injury, assault or detention caused by a criminal act;”
22. The critical thing is the subjective belief of the person under attack. The standard by which he or she is to be judged is what was “reasonable in the circumstances as he or she believes them to be”. It does not matter how objectively unreasonable the person’s subjective belief might be, as long as it is an honestly held belief.
23. However, s.1(2) of the Act of 1997 introduces an important nuance. It provides that:
“For the purposes of sections 17, 18 and 19 it is immaterial whether a belief is justified or not if it is honestly held but the presence or absence of reasonable grounds for the belief is a matter to which the court or the jury is to have regard, in conjunction with any other relevant matters, in considering whether the person honestly held the belief.”
24. This does not introduce an objective element into the self defence test. The self defence test remains wholly subjective provided the asserted belief is honestly held. However, in assessing the “honesty” of the asserted belief, a jury can have regard to the presence or absence of reasonable grounds for that belief in conjunction with other matters. This nuance is highlighted in the leading authority, namely The People (Director of Public Prosecutions) v O’Reilly [2004] IECCA 27, which the appellant relies upon.
25. While there is no doubt that the trial judge explained the law on self defence correctly in the first instance, it is the appellant’s contention that he went on to undo that good work and to sow confusion in seeking to develop his theme.
26. In telling the jury that “in assessing what that threat is, you look at it from the point of view of the accused: what did he see? What’s threatening him at the time? How did it present to him as he believed it?” the judge was perfectly correct, and was conveying unambiguously that the test was a subjective one.
27. Unfortunately, he immediately then went on to add that “[i]t is open to you to assess that evidence to see if his belief, as he expresses, is reasonable, if it is reasonable, having regard to all of the facts of the case as you know it.” This suggests the polar opposite to what he had just said, and introduces the idea that the accused’s belief has to be an objectively reasonable one, rather than a belief honestly held regardless of whether it is reasonable or unreasonable.
28. He then further added “[a]nd, equally, it is open to you to have regard in that respect as to whether or not there was a need to engage with the assailant, in any event with Mr Saunders, on this occasion, was there a way to escape to avoid contact, to avoid encounter?” This would have been a perfectly legitimate comment if it had been linked to an instruction that the jury needed to be satisfied that the asserted belief was one that was honestly held, because, as already pointed out, s. 1(2) of the Act of 1997 allows a jury to have regard to the presence or absence of reasonable grounds for an asserted belief in conjunction with other matters, in making that assessment. However, in circumstances where this sentence followed on from a suggestion that the accused’s belief had to be an objectively reasonable one, the appellant contends that it was likely to have been interpreted by the jury as a further elaboration on that incorrect instruction.
29. Counsel for the respondent has sought to argue that the trial judge properly set out the subjective test for the jury. The trial judge had clearly stated that the jury must look at the events from the appellants’ viewpoint. Moreover, after the completion of the judge’s charge no requisition was raised respect of Count No. 2 and the manner in which the judge explained self-defence to the jury. In particular, no complaint was made, to quote the first ground of appeal, that he had misdirected the jury on the “principles of self-defence … by removing from the accused any consideration of his subjective view of the threat as he saw it”. The respondent objects to the point being raised now, and in that regard seeks to rely on The People (Director of Public Prosecutions) v Cronin (No 2) [2006] 4 IR 329.
30. It was submitted that the sentence in which an objective test is seemingly introduced ought not to be viewed in isolation. On the contrary, the passage in which it appears must be read as a whole. It was submitted that the trial judge’s use of the word “reasonable” has to be combined with the words “what did he believe” and “what did he see” and “look at it from his point of view”. In other words he was saying that it was open for the jury to consider self-defence from the appellants’ point of view if his belief was reasonable to him and if the situation was open to him.
31. The Court has little doubt but that the trial judge simply expressed himself infelicitously and that he never intended to convey to the jury that the self defence test in the case of a non-fatal offence was anything but subjective. Regrettably, however, we cannot foreclose on the possibility that the jury were confused or misled by the ostensibly contradictory and incorrect instructions they in fact received.
32. Nevertheless, the Court has been tempted to uphold the Cronin based objection raised by the respondent, in circumstances where no explanation has been proffered for the failure to raise a requisition. However, although we regard the matter as having been very finely balanced, we have decided not to do so, and to allow this ground of appeal to be relied upon, lest a fundamental injustice be done to the appellant. In doing so we have been significantly influenced by the approach of the Court of Criminal Appeal who faced a similar dilemma in The People (Director of Public Prosecutions) v O’Reilly cited earlier. Giving judgment for that court, McCracken J said:
“Counsel for the respondent argues that, as no specific requisition was raised in relation to self-defence, the applicant ought not to be allowed to rely on defects in the charge in that regard. Whilst certainly the failure to make a requisition is a matter which may be taken into account in this Court in considering an appeal, particularly in cases where the failure to requisition may possibly have been a technical decision, in our view such considerations do not apply to the present case. The question of self-defence is absolutely central to the guilt or innocence of the applicant, and if this Court is of the view that a jury may have been under a misapprehension in convicting the applicant then justice requires that the absence of a requisition ought not to prejudice the applicant’s rights.”
33. In adopting a similar approach in this case, we again wish to emphasise that the issue has been a finely balanced one. However, we are convinced that, having regard to the evidence in the trial, possible self defence was the central issue in the case in so far as Count No 2 was concerned. It is the centrality of that issue in the circumstances of the present case which has tipped the scales for us, as it also did for the Court of Criminal Appeal in the O’Reilly case.
34. We will therefore allow the appeal on ground No 1.
Refusal to allow the jury to consider self defence on Count No 4
35. The first thing to be said in regard to this aspect of the case is that possible self defence either arises, or it doesn’t arise, for the jury’s consideration on the evidence that has been adduced. It is for the prosecution to negative self defence where it arises as a possibility on the evidence, and not for an accused to prove that he or she acted in self defence. If self defence arises as a possibility on the evidence, the trial judge must leave the issue to the jury. Unlike in a case where it is sought to rely on a defence of provocation in a murder case, where the trial judge has a discretion as to whether or not to allow that issue to go to the jury, a trial judge has no such discretion in the case of possible self defence.
36. The trial judge in this case was correct in suggesting that there must of course be some evidential basis for contending self defence, and that it cannot be merely asserted as a possibility without at least some evidence to support. However, we are satisfied that the threshold is low in that regard. In this case, in deciding not to allow the jury to consider self defence in respect of Count No 4, the trial judge appears to have been heavily, and counsel for the appellant contends unduly, influenced by the appellant’s asserted belief at interview that although he swung the golf club in Mr Saunders’ direction he never made contact with him. It will, however, be recalled that he was equivocal to the extent that when asked “What if I produced CCTV footage showing the golf club actually hitting him, what would you say then?” he responded: “Self-defence but I know he’s out of range.”
37. The problem with the trial judge’s approach is that it forecloses on the possibility that the appellant may genuinely, but mistakenly, be of the belief that he did not strike the deceased. Quite apart from the appellant’s stated belief as to whether the golf club did or did not make contact with the deceased, there was other evidence from him suggesting that at the material time Mr Saunders was advancing on the appellant in a menacing way while brandishing a Vodka bottle. The appellant said in terms to the interviewing Gardai that “The reason I swung it was he had a bottle of vodka threatening to throw it at me.” Moreover, there was evidence that at the time of the deceased’s collapse he was still holding the Vodka bottle, in as much as the broken remnants of it were found proximate to his body.
38. We are satisfied that on this evidence alone the low threshold for allowing self defence to be considered by the jury was met, and that the trial judge was in error in refusing to allow the jury to consider self defence as a possibility in the context of Count No 4.
39. We would therefore also allow the appeal on ground no 2.
Conclusion
40. In circumstances where we are upholding both of the appellant’s grounds of appeal we will quash his conviction on Count’s 2 and 4 respectively.
41. We will hear submissions concerning whether or not the Court should direct a re-trial on those counts.