Criminal Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB criminal law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).
These were the best Criminal Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highest...
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Prior SOA 2003 & transition
Problems with consent
Lack of a definition beyond “not mere submission”
D could escape conviction from an unreasonable belief in V’s consent
Too few sexual convictions due to
Decision in Morgan, where Lord Hailsham held rape to consist in having sex with a woman by force, fear or fraud
Judge/jury biasess
“Genuinely” to “Reasonably”
D now liable for an objective failure to take due care to ascertain consent
D believing that V has consented, without good justification, no longer exonerates him
D must not only have reasonably believed in V’s choice to agree to the sexual activity, but also V’s capacity to consent
Out of step with the march of subjectivists which has led to MR for serious offences requiring a culpable state of mind rather than an objective failure
However, parliament considered change carefully and clearly intended it
Justification
Cost to D of taking reasonable steps to ascertain V’s state of mind is less than the effect on V of D’s failure to do so
General elements
**Three possible ways for culpability
D knows V does not consent
D gives no thought to whether V consents
D considers whether V consents, but simply does not care whether or not she does
Case law
D would not reasonably believe V was consenting if D was relying on information given by another – would not meet the bar of reasonable belief
S.1-4 of SOA – whether a belief is reasonable is determined having regard to all circumstances, including any steps D has taken to ascertain whether V consents. Jury likely to consider –
How long have D & V known each other, have they had a sexual relationship in the past, and have they discussed possibility of sexual relations?
Where D has sex with V thinking V is X, or if V is asleep, did D take further step to ascertain consent?
*Question is not whether reasonable person think V might be consenting, but whether V is consenting
If reasonable person would conclude “I think V is consenting, but I can’t be sure” – no RBC
One issue is whether the jury should take into account characteristics of D, and if so, which characteristics. Protecting the Public states – reference to what an objective third party would think; Herring – imagining a reasonable person in D’s shoes – CoA provided obiter support in R v B(MA)
**Intoxication and reasonably believed
D’s voluntary intoxication isn’t something the jury can take into account when deciding whether belief in consent is reasonable – otherwise, open to a convenient defence for D
Whitta – D climbed into a bed and digitally penetrated with V, the mother of a girl he’s with – and said that he wouldn’t have made the mistake had he been sober. CoA held that the test is simply whether a sober person could have had reasonable belief in consent, and upheld the Conviction; principle upheld in Grewal
**Mental disorder & reasonable belief
Takes meaning in Mental Health Act – learning disability to serious personality disorder, broad term
R v M(M) – D had delusional beliefs – some kind of psychosis, believing that he could cure, and that V should be having sex with him, whether she wanted to or not. Court say medical evidence couldn’t possibly have supported a finding of reasonable belief, but in obiter that there is however room for such an issue to be raised – reasonably believed looser than reasonable man test
A person (A) commits an offence if –
he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
B does not consent to the penetration, and
A does not reasonably believe that B consents
Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents
Sections 75 and 76 apply to an offence under this section.
A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life
Contours of offence
Basic definition
AR – D penetrated V, A or M of V with his penis & V did not consent to penetration (SOA s1)
MR – (1) D intended to penetrate V, A or M of V, & (2) D did not reasonably believe that V consented (SOA s1)
Clarifications
Only a man can commit rape – offence requires penetration by penis. If woman forces man to engage in sexual intercourse, it will be sexual assault
A husband can rape his wife – after 1994 amendment to the SOA 1956, which put into statutory effect the HoL decision in R v R (1991!!)
A man or woman can be V of rape – s.79(3) of SOA 2003 makes it clear that a surgically constructed V is included within definition of V, applying to transgender individuals
Penetration – whether AR of rape is complete once penetration takes place, or it continues so long as there is penetration – relevant to AR MR coincidence rule
Nature of rape – what is the wrong?
Sexual autonomy
People have the right to decide with whom to have sexual relations – therefore harmed caused even if D has sex with an unconscious V who suffers no physical or emotional harm (Herring)
Reubenfield – D’s self-determination not fulfilled if law does not allow him to sleep with V, V’s refusal to have sex with D can cause D acute suffering
R1 – respect for autonomy gives us reason to leave someone alone to their self-actualisation – does not require us to fulfil everyone’s desires (Herring). Hence, the law treats rights to bodily integrity as key to this dilemma – if D has sex with V he has imposed his wishes on her body. If V refuses to have sex with D she has imposed nothing on his body and has not interfered in his rights
R2 – misstates the principle of autonomy – you must not exercise autonomy in a way that unjustifiably harms another
Ashworth says a sexual offence constitutes a wrong in that it invades a deeply personal zone – gaining non-consensually what can only be shared...
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Criminal Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB criminal law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).
These were the best Criminal Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highest...
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