Appellant V Court Case Summary
IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT
BETWEEN:
BILLY Appellant -and-
R Respondent
__________________________________________
APPELLANT’S SKELETON ARGUMENT
__________________________________________
1. INTRODUCTION
1.1 This is the appellant’s skeleton argument for his appeal. The arguments to quash the conviction under s. 18 of the Offences Against the Person Act 1861 (OAPA) are based on the misdirection’s made by the judge during the trial. There are three main misdirection’s for the appeal, which can render the conviction unsafe, include: Consent, causation and intention. The appellant Billy was convicted under s.18 OAPA of the offences against the person act for causing grievous bodily harm to the victim Anita.
2. BACKGROUND
2.1 Billy and Anita was in a 12-year long relationship and they lived together. Their relationship involved engaging in inflicting pain on each other for sexual gratification. On the occasion in question, …show more content…
Billy was pulling Anita’s hair forcefully, but with clear consent and encouragement.
2.2 However, afterwards Anita suffered a head injury due to falling down the stairs. Billy proceeded to ensure Anita was alright and soon after called an ambulance.
2.3 When Anita arrived at the hospital the doctor “Dr Edwards” failed to properly check the patient notes and left blood building up around her brain, which resulted in a 10-month long coma.
3. SUMMARY OF GROUNDS OF APPEAL
The judge erred by failing to direct the jury in relation to consent. The argument is structured as follows:
(a) The situations where consent is allowed as a defence
(b) The position of the law based on Brown, Emmett and Wilson.
(c) The public interest argument and the privacy issue.
3.2 The next misdirection is regarding Billy’s intentions. The judge erred by failing to direct on the type of intention needed for the s. 18 OAPA offence and failing to leave intention to the jury.
(a) The importance of intention for s. 18 OAPA and the way it was applied
(b) The necessary directions, which should have been made in relation to direct and oblique intention including Woollin. Also, the outcome that would be expected based on the proper application.
3.3 The last ground of appeal is the causation misdirection, as the jury was not directed to the potential issues with the chain of causation.
(a) The judge erred by failing to direct the jury on the case of Chesire.
(b) The judge should have directed the jury to the exceptions, as seen in the case of Jordan, since the doctor failed to do something, which was common procedure.
(c) There was also no direction on the impact of Anita’s actions, leading up to her injury.
4. LIST OF AUTHORITIES
Legal Sources
Offences Against the Person Act 1861
R v Barnes [2004] EWCA Crim 3246
R v Brown [1994] 1 AC 212
R v Cato [1976] 1 All ER 260 (CA)
R v Chesire [1991] All ER 670 (CA)
R v Emmett [1999] All ER (D) 641
R v Jones [1986] 83 Cr App R 375
R v Jordan [1956] 40 Cr App Rep 152
R v Pagett [1983] 76 Cr App R 279 (CA)
R v Roberts [1971] 56 Cr App R 95
R v Taylor [2009] EWCA Crim 544
R v Williams and Davis [1992] CLR 1982
R v Woollin [1999] AC 82
R v White [1910] 2 KB 124
Non-legal sources
Jepsen P, 'Consent and Non-Fatal Offences Against the Person' accessed 12 April 2017
5. GROUNDS OF APPEAL
5.1 Consent misdirection
a. The judge directed the jury that consent is never appropriate. This is simply false, since consent is a recognised defence. This is evident in the case of Jones, when there is a genuine belief of consent to rough play. In sporting activities consent is also a recognised defence, as seen in Barnes. Dr Jepsen argued in “Consent and Non-Fatal Offences Against the Person” that any sexual activity will involve some assault and battery. It is only when consent is absent the law will and should step in. It is inconceivable how the judge concluded consent should always be ignored, as consent must be discussed in some capacity.
b. The judge’s statement is due to the general reluctance towards reliance in cases regarding violent sexual activity. The case of Brown best illustrates this. On that premise, the misdirection is arguably non-influential to the outcome. However, the facts of the current case are significantly different from Brown or Emmett, but also from Wilson where consent was relied upon. In Brown, sexual acts included “Nailing by A of B’s foreskin”. In Emmett, it involved placing plastic bags on the victim’s head and setting her on fire. It is unreasonable to compare these horrendously violent acts to that of ‘pulling hair forcefully’. This leads into the potential causation issues, which will be discussed further. Consequently, the result in the current case was more severe, but it was due to substantially differing factors
c. Moreover, it can surely be argued that violence in any form, is not in the public interest. In Wilson, it was held that consensual activity’s in a matrimonial home was not for the court to interfere with. This was decided on facts considered only involving cosmetic enhancement. Accordingly, consent could be relied on even though actual bodily harm was occasioned. The acts of Billy, should not be contrary to public interest, as the violent acts occurred in a private capacity. They were carried out by a two people that were practically married except for in the eyes of the law, which the courts should not interfere with, as stated in Wilson. Moreover, Brown was decided on public interest and the defendants were condemned by their acts rather than their result. The judge should have directed the jury correctly regarding consent and of the position of the law. It should then be for the jury to decide whether this is a public interest issue or a private issue as in Wilson.
5.2 Intent misdirection
a.
The judge stated that it was clear Billy had the needed intent. Consequently, there were no directions made in relation to intent, which is vital for s. 18 of the OAPA. The offence’s Actus Reus is the unlawful wounding or causing GBH and the Mens Rea is doing this with the intention to wound or cause GBH. Anita and Billy’s relationship, makes it clear that some harm was intended. However, there is no evidence that the intended harm was anywhere close to that of wounding or GBH. It was established in Taylor that an intention to wound was insufficient. Consequently, this only confirms the intention needed must be to cause truly serious harm to a person. This is simply unreasonable to apply to Billy’s
intention.
b. Thereby, applying the facts, no direct intent can be found. However, the judge should further have directed the jury to oblique intention and Woollin’s Virtual Certainty Test. The result of Anita ending in a coma is incapable of being classified, as a virtual certainty based on Billy’s actions. Furthermore, it would be absurd to say that Billy had any reasonable awareness or foresight of such an event occurring.
c. In truth, the jury potentially would not have looked favourable upon the violent acts carried out by Billy. However, based on the law and the facts stated above, it would simply be unreasonable to convict Billy of a s.18 offence. If the jury had been correctly directed it is very unlikely they would have convicted Billy under s. 18, as saying he had the needed intent would be unreasonable. Thereby, rendering the conviction unsafe. However, there is always the potential argument that intention can never be truly certain, which leads to and requires the last ground of appeal regarding causation.
5.3 Causation misdirection
a. The judge made no directions regarding causation. The jury should have been directed to the two tests for causation. Firstly, the factual causation from White. Secondly, legal causation to examine if Billy’s act was the substantial and operating cause. Furthermore, this should have been done with reference of the ‘de Minimis Principle’ from Cato and the definition of substantial from Pagett. Billy’s actions without considering any mitigating circumstances, will satisfy both these test. However, the jury should then further have been directed to the potential of a Novus Actus Interveniens by medical negligence or Anita.
b. There was no reference made to medical negligence or Chesire. However, as with the causation misdirection, it is unlikely this direction would have changed the outcome of the case. This is due to the limited case law where reliance on medical negligence has been allowed. Furthermore, Chesire set out where medical negligence would amount to a Novus Actus Interveniens. Chesire requires the medical treatment to have been “Palpably wrong or Grossly negligent” making it difficult to satisfy.
c. The main exception to the general position is found in the case of Jordan. Dr Edwards failed to carry out a normal, expected and important examination. Consequently, this left Anita untreated and allowed the condition to severely worsen. This failure by Dr Edwards should have been examined, as to whether it was reasonable to consider this ‘palpably wrong’. It should be mentioned that the exception set out in Jordan, is only in effect if the injury had healed or was otherwise showing clear improvements. Although, this is not specifically the case, the result could potentially have been much less if proper examination and procedure had been followed.
d. Another mitigating factor is Anita’s actions. A victim can break the chain of causation, as established in Roberts and Williams and Davis. Roberts stated that if the victim’s actions were foreseeable, as a reaction to the defendant’s actions it would not break the chain. However, Billy did not force or otherwise push Anita down the stairs. Furthermore, she requested Billy stop because she was feeling dizzy, thereby knowing she could lose her balance if she were to get up. If this had been presented to the jury, they would most likely not have held Billy solely responsible for causing the GBH, but of a lesser offence. This would thereby, render the conviction unsafe.
6. CONCLUSION
Based on the misdirection’s made by the trial judge convicting Billy under s. 18 of OAPA would be inappropriate. It is certainly unlikely the directions on consent and medical negligence would have significantly changed the outcome of the sentencing. However, the misdirections on intent and Anita’s contribution would render the conviction unsafe. Therefore, Billy’s conviction under s. 18 of the OAPA should be quashed.
1. Skeleton Argument Word Count: 1643 2. List of Legal (and Non-Legal) Sources Section Word Count: 132
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT
BETWEEN:
BILLY Appellant -and-
R Respondent
__________________________________________
APPELLANT’S SKELETON ARGUMENT
__________________________________________
1. INTRODUCTION
1.1 This is the appellant’s skeleton argument for his appeal. The arguments to quash the conviction under s. 18 of the Offences Against the Person Act 1861 (OAPA) are based on the misdirection’s made by the judge during the trial. There are three main misdirection’s for the appeal, which can render the conviction unsafe, include: Consent, causation and intention. The appellant Billy was convicted under s.18 OAPA of the offences against the person act for causing grievous bodily harm to the victim Anita.
2. BACKGROUND
2.1 Billy and Anita was in a 12-year long relationship and they lived together. Their relationship involved engaging in inflicting pain on each other for sexual gratification. On the occasion in question, …show more content…
Billy was pulling Anita’s hair forcefully, but with clear consent and encouragement.
2.2 However, afterwards Anita suffered a head injury due to falling down the stairs. Billy proceeded to ensure Anita was alright and soon after called an ambulance.
2.3 When Anita arrived at the hospital the doctor “Dr Edwards” failed to properly check the patient notes and left blood building up around her brain, which resulted in a 10-month long coma.
3. SUMMARY OF GROUNDS OF APPEAL
The judge erred by failing to direct the jury in relation to consent. The argument is structured as follows:
(a) The situations where consent is allowed as a defence
(b) The position of the law based on Brown, Emmett and Wilson.
(c) The public interest argument and the privacy issue.
3.2 The next misdirection is regarding Billy’s intentions. The judge erred by failing to direct on the type of intention needed for the s. 18 OAPA offence and failing to leave intention to the jury.
(a) The importance of intention for s. 18 OAPA and the way it was applied
(b) The necessary directions, which should have been made in relation to direct and oblique intention including Woollin. Also, the outcome that would be expected based on the proper application.
3.3 The last ground of appeal is the causation misdirection, as the jury was not directed to the potential issues with the chain of causation.
(a) The judge erred by failing to direct the jury on the case of Chesire.
(b) The judge should have directed the jury to the exceptions, as seen in the case of Jordan, since the doctor failed to do something, which was common procedure.
(c) There was also no direction on the impact of Anita’s actions, leading up to her injury.
4. LIST OF AUTHORITIES
Legal Sources
Offences Against the Person Act 1861
R v Barnes [2004] EWCA Crim 3246
R v Brown [1994] 1 AC 212
R v Cato [1976] 1 All ER 260 (CA)
R v Chesire [1991] All ER 670 (CA)
R v Emmett [1999] All ER (D) 641
R v Jones [1986] 83 Cr App R 375
R v Jordan [1956] 40 Cr App Rep 152
R v Pagett [1983] 76 Cr App R 279 (CA)
R v Roberts [1971] 56 Cr App R 95
R v Taylor [2009] EWCA Crim 544
R v Williams and Davis [1992] CLR 1982
R v Woollin [1999] AC 82
R v White [1910] 2 KB 124
Non-legal sources
Jepsen P, 'Consent and Non-Fatal Offences Against the Person' accessed 12 April 2017
5. GROUNDS OF APPEAL
5.1 Consent misdirection
a. The judge directed the jury that consent is never appropriate. This is simply false, since consent is a recognised defence. This is evident in the case of Jones, when there is a genuine belief of consent to rough play. In sporting activities consent is also a recognised defence, as seen in Barnes. Dr Jepsen argued in “Consent and Non-Fatal Offences Against the Person” that any sexual activity will involve some assault and battery. It is only when consent is absent the law will and should step in. It is inconceivable how the judge concluded consent should always be ignored, as consent must be discussed in some capacity.
b. The judge’s statement is due to the general reluctance towards reliance in cases regarding violent sexual activity. The case of Brown best illustrates this. On that premise, the misdirection is arguably non-influential to the outcome. However, the facts of the current case are significantly different from Brown or Emmett, but also from Wilson where consent was relied upon. In Brown, sexual acts included “Nailing by A of B’s foreskin”. In Emmett, it involved placing plastic bags on the victim’s head and setting her on fire. It is unreasonable to compare these horrendously violent acts to that of ‘pulling hair forcefully’. This leads into the potential causation issues, which will be discussed further. Consequently, the result in the current case was more severe, but it was due to substantially differing factors
c. Moreover, it can surely be argued that violence in any form, is not in the public interest. In Wilson, it was held that consensual activity’s in a matrimonial home was not for the court to interfere with. This was decided on facts considered only involving cosmetic enhancement. Accordingly, consent could be relied on even though actual bodily harm was occasioned. The acts of Billy, should not be contrary to public interest, as the violent acts occurred in a private capacity. They were carried out by a two people that were practically married except for in the eyes of the law, which the courts should not interfere with, as stated in Wilson. Moreover, Brown was decided on public interest and the defendants were condemned by their acts rather than their result. The judge should have directed the jury correctly regarding consent and of the position of the law. It should then be for the jury to decide whether this is a public interest issue or a private issue as in Wilson.
5.2 Intent misdirection
a.
The judge stated that it was clear Billy had the needed intent. Consequently, there were no directions made in relation to intent, which is vital for s. 18 of the OAPA. The offence’s Actus Reus is the unlawful wounding or causing GBH and the Mens Rea is doing this with the intention to wound or cause GBH. Anita and Billy’s relationship, makes it clear that some harm was intended. However, there is no evidence that the intended harm was anywhere close to that of wounding or GBH. It was established in Taylor that an intention to wound was insufficient. Consequently, this only confirms the intention needed must be to cause truly serious harm to a person. This is simply unreasonable to apply to Billy’s
intention.
b. Thereby, applying the facts, no direct intent can be found. However, the judge should further have directed the jury to oblique intention and Woollin’s Virtual Certainty Test. The result of Anita ending in a coma is incapable of being classified, as a virtual certainty based on Billy’s actions. Furthermore, it would be absurd to say that Billy had any reasonable awareness or foresight of such an event occurring.
c. In truth, the jury potentially would not have looked favourable upon the violent acts carried out by Billy. However, based on the law and the facts stated above, it would simply be unreasonable to convict Billy of a s.18 offence. If the jury had been correctly directed it is very unlikely they would have convicted Billy under s. 18, as saying he had the needed intent would be unreasonable. Thereby, rendering the conviction unsafe. However, there is always the potential argument that intention can never be truly certain, which leads to and requires the last ground of appeal regarding causation.
5.3 Causation misdirection
a. The judge made no directions regarding causation. The jury should have been directed to the two tests for causation. Firstly, the factual causation from White. Secondly, legal causation to examine if Billy’s act was the substantial and operating cause. Furthermore, this should have been done with reference of the ‘de Minimis Principle’ from Cato and the definition of substantial from Pagett. Billy’s actions without considering any mitigating circumstances, will satisfy both these test. However, the jury should then further have been directed to the potential of a Novus Actus Interveniens by medical negligence or Anita.
b. There was no reference made to medical negligence or Chesire. However, as with the causation misdirection, it is unlikely this direction would have changed the outcome of the case. This is due to the limited case law where reliance on medical negligence has been allowed. Furthermore, Chesire set out where medical negligence would amount to a Novus Actus Interveniens. Chesire requires the medical treatment to have been “Palpably wrong or Grossly negligent” making it difficult to satisfy.
c. The main exception to the general position is found in the case of Jordan. Dr Edwards failed to carry out a normal, expected and important examination. Consequently, this left Anita untreated and allowed the condition to severely worsen. This failure by Dr Edwards should have been examined, as to whether it was reasonable to consider this ‘palpably wrong’. It should be mentioned that the exception set out in Jordan, is only in effect if the injury had healed or was otherwise showing clear improvements. Although, this is not specifically the case, the result could potentially have been much less if proper examination and procedure had been followed.
d. Another mitigating factor is Anita’s actions. A victim can break the chain of causation, as established in Roberts and Williams and Davis. Roberts stated that if the victim’s actions were foreseeable, as a reaction to the defendant’s actions it would not break the chain. However, Billy did not force or otherwise push Anita down the stairs. Furthermore, she requested Billy stop because she was feeling dizzy, thereby knowing she could lose her balance if she were to get up. If this had been presented to the jury, they would most likely not have held Billy solely responsible for causing the GBH, but of a lesser offence. This would thereby, render the conviction unsafe.
6. CONCLUSION
Based on the misdirection’s made by the trial judge convicting Billy under s. 18 of OAPA would be inappropriate. It is certainly unlikely the directions on consent and medical negligence would have significantly changed the outcome of the sentencing. However, the misdirections on intent and Anita’s contribution would render the conviction unsafe. Therefore, Billy’s conviction under s. 18 of the OAPA should be quashed.
1. Skeleton Argument Word Count: 1643 2. List of Legal (and Non-Legal) Sources Section Word Count: 132