CHAPTER 7 CRIMINAL LAW

7.1 Introduction
The term criminal law, sometimes called penal law, refers to various rules whose common characteristic is
the imposition of punishment if one fails to comply with the rules.

In criminal law, a crime is considered as a wrong against the State. A crime may be defined as an unlawful
act or an omission which is unacceptable that causes public condemnation in a form of sanction. Therefore,
a crime is a wrong which affects the public welfare, a wrong for which the State has prescribed a punishment.
It is an act or omission prohibited by law because it is injurious to the public. Examples of crimes are assault,
rape, theft, causing hurt, cheating and robbery.

A person who commits a crime will be prosecuted by the State, usually through the Public Prosecutor in a
court of law. The main aim of criminal law is to punish the offender and does not, as a general rule, provide
compensation to the victim. The victim may recover his losses through a civil litigation.

In Malaysia, definite description of acts constituting a crime and the corresponding penalty are contained in
the Penal Code. The Penal Code has provided about 400 types of offences that may subject one to
punishment if the crimes are committed.

7.2 Objective of Criminal Law

Criminal punishment, depending on the offence and jurisdiction, may include death penalty, imprisonment,
whipping and fine. The punishment for some crimes such as murder is very severe and the penalty is death
sentence. In order to understand how courts invoke punishment, we have, in the first place, to understand
the objective of criminal law.

The courts have over time recognized that there are at least three aims or purposes of sentencing an
offender, namely:
1. Retribution
2. Deterrence
3. Rehabilitation

7.2.1 Retribution
This is most widely accepted goal of punishing an offender i.e. the criminals ought to suffer for his act.
Retribution means punishing the offender to reflect societys disapproval of the crime committed. It may also
show a societys hatred or a desire for vengeance on the person who has committed the crime. Since the
offenders have taken improper advantage upon others and consequently the criminal law will put the
offenders at some unpleasant disadvantage to balance the scales. Thus, one who murders may be
murdered himself.

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Lawton LJ in R v Sargeant (1975) 60 Cr App R 74 said:
The Old Testament concept of an eye for an eye and a tooth for a tooth no longer plays any part in
our criminal law. There is, however, another aspect of retribution which is frequently overlooked: it is
that society, through the courts, must show its abhorrence of particular types of crime, and the only
way in which the courts can show this is by the sentences they pass. The courts do not have to
reflect public opinion. On the other hand, courts must not disregard it. Perhaps the main duty of the
court is to lead public opinion.

In another case, R v Davies (1978) 67 Cr App R 207, Lawton LJ said again :

the Courts have to make it clear that crimes do not pay and the only way they can do so is by
the length of sentences. Sentences show the courts disapproval on behalf of the community, of
particular types of criminal conduct.

7.2.2 Deterrence
Another objective of criminal law is deterrence where punishment is meted out to deter a particular offender
or future offenders from committing the crime by making an example of that particular offender. The aim of
deterrence is to impose a sufficient penalty to discourage the offender from criminal behaviour. General
deterrence aims at society at large whilst individual deterrence is aimed toward the specific offender. By
imposing a penalty on those who commit offences, others are discouraged from committing those offences.

Hilbery J in R v Ball (1951) 35 Cr App R 164 observed:

In deciding the appropriate sentence a court should always be guided by certain considerations.
The first and foremost is the public interest. The criminal law is publicly enforced not only with the
object of punishing crime, but also in the hope of preventing it. A proper sentence, passed in public,
serves the public interest in two ways. It may deter others who might be tempted to try crime as
seeming to offer easy money on the supposition, that if the offender is caught and brought to justice,
the punishment will be negligible. Such a sentence may also deter the particular criminal from
committing a crime again, or induce him to turn from a criminal to an honest life. The public interest
is indeed served, and best served, if the offender is induced to turn from criminal ways to honest
living.

Usually the deterrence sentence is heavy to deter the actual offence and future offenders. It is normally
applied to rampant offenders such as burglary, robbery etc. However studies have shown that the deterrence
purpose has little effect on hardcore offenders. For some offenders, even a light sentence would deter them
from committing the offence again.

7.2.3 Rehabilitation
The purpose of rehabilitation is to try to reform the offender so that he can be transformed into a valuable
member of society. The main aim is to transform the offender so that he is able to resume a normal and
useful role in society. Its primary goal is to prevent further offence by convincing the offender that his
conduct was wrong. The usual way to rehabilitate an offender is to impose community service or to undergo
certain rehabilitation programmes.

However the rehabilitation aim is losing its importance. Studies have shown that the effects of rehabilitative
sentences do not vary much from retributive sentences.

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7.3 Elements of Criminal Liability
The general rule to establish a criminal liability is that the offender must commit an act prohibited by law or
cause a forbidden harm and his actions are accompanied by a blameworthy state of mind. However some
crimes do not require a blameworthy mind and an offender commits a crime once he has committed the
prohibited act. This is known as strict liability offences. One such example is speeding or illegal parking.

Therefore, in order to establish criminal liability, two ingredients must be present:

i. Actus Reus
ii. Mens Rea

7.3.1 Actus Reus

Actus Reus is a Latin word, means guilty act and it is the physical element of committing a crime, such as
killing someone or firing a gun. However sometimes an omission to act may also constitute an actus reus,
for example a parent fails to give food to a young child. There is no crime based solely on having bad
thoughts. Thus A, who is thinking of ravishing a girl, has not committed the offence of rape. Although there is
mens rea, there is no actus reus. Criminal law does not punish a person with only bad thoughts or intention.

An actus reus may be nullified by an absence of causation. For example, a crime involves harm to a person,
the persons action must be the but for cause and proximate cause of the harm. In short, the victims
suffering must have been caused by the offenders action. Thus the prosecution not only has to prove that
the consequence occurred but also that the accuseds conduct was a cause of the consequence. For the
purpose of criminal law all that has to be proved is that the accuseds conduct was one of the substantial
and operative causes of the consequence (R v Smith [1959] 2 QB 35). It does not have to be the only cause.

In R v A (2000) 2 All ER 177, the accused was charged with abduction under the Child Abduction Act 1994.
He argued that although the 15-year-old girl had gone with him to London, he had not induced her to go with
him as she had gone willingly and to some extent at her insistence because she was unhappy at home. This
argument was rejected by the court and held that it was only necessary to prove that the accused was a
cause i.e. one cause, possibly among others. In AG Ref (No 4 of 1980) [1981] 1 WLR 705 CA, the accused
slapped the victim causing her to fall a flight of stairs and hit her head. The accused then dragged her
upstairs with a rope around her neck. He then put her in a bathtub, drained her blood, cut her into pieces and
disposed of them. It was impossible to determine which act caused her death. The court held that where it is
not possible to prove which act caused the death of a victim, the accused may be convicted of murder if the
prosecution proves that he had mens rea in each act.

Elements of actus reus

Actus reus may be divided into 3 components
(a) Acts This is a conscious voluntary movement of muscles, e.g. a physical assault. In Hill v Baxter
[1958] QBD the court held that if defendant (D) is stung by a swarm of bees while driving causing him to lose
control of the car, his act would be involuntary and he would not be driving at that moment. Since there is
no actus reus, there is no criminal liability.

Silence Normally inaction or silence does not give rise to an offence unless the offence can be committed
by omission. Thus words or even silence on the telephone can give rise to an offence of psychic assault.

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Omissions The general rule is that there is no criminal liability for omissions, i.e. for not doing an act,
unless a statute or common law provides that it ia an offence for omitting to act. However there are several
exceptions to the above general rule such as one has a duty to act under common law or statutes. In this
case the common law or the statutes impose a duty to act and failure to do so will attract criminal liability. In
R v Miller (1982) UKHL 6, the defendant fell asleep whilst smoking a cigarette. He woke up later and found
the mattress burning. However he did not put out the fire but moved to another room. The house caught fire
and he was held to be liable for arson.

(b) Consequences and causation this refers to the proscribed result flowing from an act, for example the
actual bodily harm. The prosecution must prove that Ds act or omission caused the prohibited consequence.
For example, in murder the prosecution must prove that the accused, by his act or omission, caused the
death of the victim.

In order to establish factual causation of the prohibited consequence (for example, death in the case of
murder), the accuseds act or omission must be a sine qua non of the death of the death of the victim. It
means that the victims death would not have occurred but for the accuseds act or omission. This is also
referred to as the but for test. Thus the first step is to ask the question: Would the victims death have
occurred but for the accuseds act? If the answer is no, the death would have occurred but for the
accuseds act, then factual causation is established.

In R v White [1910] 2 KB 124 the defendant put some poison in his mother's milk with the intention of killing
her. The mother took a few sips and went to sleep and never woke up. Medical reports revealed that she
died from a heart attack and not the poison. The defendant was not liable for her murder as his act of
poisoning the milk was not the cause of death. However he was convicted of attempted murder.

(c) Surrounding circumstances although most offences require voluntary conduct, some offences do not
require any willed act by D. These offences only have surrounding circumstances as the actus reus of the
offence. This means that no positive act by D or no consequence is required. These are state of affairs
offences such as being in possession of drug. State of affair offences are also offences of strict liability.
The prosecution need not prove any action by the accused or any mens rea.

In R v Larsonneur (1933) 24 Cr App R 74, the defendant, a French woman, was deported against her will,
from Ireland to England, by the Irish authorities. Upon her arrival she was immediately charged with the
offence of 'being found' in United Kingdom and being an illegal alien. Her conviction was upheld despite the
fact that she had not voluntarily come to England but was forcibly brought back against her will.

Thin Skull Rule

This rule is also known as egg shell skull rule. This maxim requires the defendant to take his victim as he
finds him. The term implies that if the victim has a skull as delicate as the shell of an egg, and the defendant
who was unaware of the condition injured the victims head, causing the skull unexpectedly to break, the
defendant would be held liable for all damages and consequences arising from his act. This is so even if the
defendant never foresees such a severe injury and also he never intended to cause such injury. In R v Blaue
(1975) 1 WLR 425, a Jehovahs Witness refused a blood transfusion having been stabled in the lung. As a
result of this refusal she died the next day. The court held that the defendant is guilty of manslaughter
notwithstanding that the victim died because of loss of blood.

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7.3.2 Mens Rea
Mens rea, in Latin, means guilty mind i.e. a blameworthy state of mind. A guilty mind means an intention to
commit some wrongful act, for example intending to kill when firing the gun. It does not mean wickedness in
any moral or general sense. It refers to a number of states of mind (mental elements) which the law defines
as criminal. Each state of mind has a relationship, i.e. they are linked, to an ingredient of actus reus. Only
together they give rise to criminal liability.
The state of mind which can be regarded as part of the mens rea are usually denoted by the words such as
intention, recklessness, malicious, willfulness, negligence and knowledge.

Intention
In many of the most serious offences the mens rea required is that of intention to cause the proscribed
consequence

However, intention under the law must be differentiated from a persons motive. Intention is deliberate
action or deliberately brings about a proscribed consequence. Motive is the reason for doing something. For
example, if Mr. Robin Hood robs from rich Mr. Nottingham because his motive is to give the money to poor
people, his good motives do not change his criminal intention to commit robbery.

Recklessness

Recklessness is unreasonable risk-taking or unjustifiable risk-taking which is not permitted by law. Some
risks may be lawfully undertaken whilst some are not. Whether the risk-taking is justifiable depends on the
social utility of the act. For example, the operation of public transport is inevitably accompanied by risks of
accident beyond the control of the operator, yet it is socially necessary that these risks be taken. Dangerous
surgical operations must be carried out in the interest of the life and health of the patient, yet the taking of
these risks is socially justifiable.

In determining where the risk-taking is justifiable, the court would balance the social utility or value of his acts
objectively against the risk he took. Thus if a surgeon performs a risky operation to save a life of a person, it
is unlikely the court would find that he acted recklessly. However, if a bank robber fires his gun at a wall and
the bullet ricochets from the wall and injures a customer, the court would most likely find that the bank robber
acted recklessly.

7.4 Burden of Proof and Standard of Proof

It is a fundamental principle of English criminal law that a person is presumed innocent until proven guilty.
This is sometimes referred to by the Latin expression Ei incumbit probatio qui dicit, non qui negat. The
United Nations incorporated this doctrine in its Declaration of Human Rights in 1948 under Article 11,
Section 1. The maxim also found a place in the European Convention for the Protection of Human Rights in
1953 [as Article 6, Section 2] and was incorporated into the United Nations International Covenant on Civil
and Political Rights [as Article 14, Section 2].

It is a legal right of an accused for this principle to be applied in a criminal trial. The burden of proving that a
person is guilty of a criminal offence lies on the prosecution. The prosecution has to collect and submit to the
court sufficient compelling evidence to convince the trier of fact, whether judge or jury, who is required by law
to consider only actual evidence that is legally admissible, that the accused is guilty of the offence.

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As for the standard of proof, the prosecution has to prove that the accused is guilty beyond reasonable
doubt. It is not beyond a shadow of doubt, nor beyond any doubt, nor beyond all doubts, nor 100% guilty. If
there is a reasonable doubt about his guilt, the accused shall be acquitted.

The above two rules were clearly laid down by the House of Lords in Woolmington v DPP (1935) AC 462. In
this case the accused was charged with murder with his wife and his defence was that he had wanted to
commit suicide but the gun had gone off accidently killing his wife. The trial judge ruled that the case was so
strong against Woolmington that the onus was on him to show that the shooting was accidental. At trial the
jury deliberated for an hour and 25 minute and eventually the accused was convicted and sentenced to
death. Upon his appeal, the House of Lords held that the direction to the jury was wrong and the accused is
presumed innocent until proven guilty. It was for the prosecution to prove his guilt and not for the accused to
disprove it. The appeal was allowed and Woolmington was released three days before his scheduled
execution date.

In making the ruling, Viscount Sankey LC made his famous "Golden thread" speech:

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is
the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the
defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of
the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the
prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution
has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or
where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the
common law of England and no attempt to whittle it down can be entertained. When dealing with a
murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b)
malice of the accused.

Therefore the burden of proof lies on the prosecution who has to prove beyond reasonable doubt:

i. the elements (i.e. actus reus and mens rea) of the crime; and
ii. to disprove or rebut any defences raised by the defendant.

7.5 Types of Crime

Crimes can be classified into three types:

i. Offences against a person

This type of crime includes offences directed against the safety, privacy and health of people. These crimes
infringe a persons most basic right of personal safety. Such crime normally results in the most severe
penalty under the law.

The main offences under this category are:

Murder

Assault

Rape

Causing bodily harm

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ii.Offences against property

These offences are committed against property owned by the victim. The main offences are:

Robbery

Theft

Burglary

Criminal damage

iii. Offences against public order

These offences when committed will threaten and disturb the public order and the peaceful life of public.
Such offences include:

Traffic offences

Immoral offences (e.g. prostitution)

Drug offences

7.6 Defences in Criminal Law

Even if an offence was committed, there are a variety of conditions that will negate elements of a criminal
liability, known as defences. Generally, the burden to prove that the defendant commits a crime lies on the
prosecution and the accused may raise the defence to negate the accusation.

Main defences that are commonly used are shown below.

7.6.1 Insanity
Where a defendant has acted with mental incompetence, he can raise a defence of insanity. But he cannot
raise the defence that his mind was elsewhere or that his mind was not working in top gear. In R v Isitt
(1978) 67 Cr.App.R. 44, CA D was involved in an accident whilst drunk. He then sped away with the police
in pursuit. D claimed that he knew he was trying to get away from the scene of the accident but he was
totally unaware of speeding and moral obligations. He raised psychiatric evidence claiming that the original
accident had caused 'an hysterical fugue' leading to memory loss: his subconscious mind had taken over so
that he did not appreciate what he was doing when he was driving. The court held that he was guilty of
dangerous driving although his mind was shut to any moral obligations presumably due to alcohol.

This is a complete defence to all crimes. If the accused person is successful in proving insanity, then he will
be released as not guilty, notwithstanding that he did actually carry out the actus reus. However, he will be
sent to a mental hospital for treatment.

The defence of insanity originates from common law in the case of M'Naghten 1843 10 C & F 200. The
court in that case formulated the famous The MNaghten Rule which stipulates that every man is presumed
to be sane, and possesses a sufficient degree of reason to be responsible for his crimes, until the contrary is
proved. To establish a defense of insanity, it must be clearly proved that, at the time of the committing of the
act, the party was labouring under a defect of reason, from the disease of the mind, as not to know the
nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was
wrong.
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Situations where one is able to claim the defence of insanity due to disease of mind are:
(1) Hyperglycaemia (high blood sugar level) : R v Hennessy (1989) 1 WLR 287
(2) Sleepwalking : R v Burgess (1991) 2 WLR 1206 D attacked his girlfriend whilst sleepwalking
(3) Epilepsy : R v Sullivan (1984) AC 156 D injured a person during an epileptic seizure
(4) Arteriosclerosis : R v Kemp (1957) 1 QB 399 D attacked wife with hammer

7.6.2 Automatism
In order to attract criminal liability a defendants conduct must be voluntary, that is, it must be a willed bodily
movement or lack of action where he is under a duty to act. Lord Denning in Bratty v AG for Northern Ireland
(1961) 3 All ER 523 HL held

No act is punishable if it is done involuntarily: and an act in this contextmeans an act which is
done by the muscles without any control by the mind such as a spasm, a reflex action or a
convulsion; or an act done by a person who is not conscious of what he is doing such as an act done
whilst suffering from concussion or whilst sleepwalking

Automatism is a situation where the muscles act without any control by the mind; or with a lack of
consciousness, i.e. that ones bodily movements were unwilled and involuntary. One may suddenly fall ill,
into a dream like state as a result of post traumatic stress and go into automatic spell. Some examples of
such automatism are uncontrolled reflexes, sleepwalking and hypoglycemia (low blood sugar).

Automatism is a complete defence for all offences as the defendant is deemed not to be in any way to be
blamed for what happened. In R v T (1990) Crim LR 256 T took part in a robbery and was charged with
robbery and causing ABH. She raised the defence of automatism since at the time of the offence she was in
a dissociative state, suffering from Post Traumatic Stress Disorder caused by the trauma of rape. The court
held that the rape constituted an external factor and therefore the non-insane automatism was open to the
jury despite the fact that Post Traumatic Stress Disorder is generally perceived as being a condition of the
mind.

However if the automatism is self-induced (for example by taking drink or drugs voluntarily) then it is not a
defence to the offence committed.

7.6.3 Intoxication
Intoxication refers to situation where the accused committed an offence while he was intoxicated by drugs or
alcohols. In some cases, intoxication will provide a defence because it would mean that the accused did not
have the necessary mens rea for the crime.

There are two types of intoxication: involuntary intoxication and voluntary intoxication.

Involuntary intoxication arises where the accused did not know he was taking an intoxication substance, for
example, where a soft drink has been laced with alcohol. The person who laces the drink will be the principal
offender acting through an innocent agent. Thus the intoxication is not voluntary and was caused by
malicious or negligent act of another person.

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Voluntary intoxication occurs where the accused intentionally consume substance that he knew will cause
intoxication, for example, taking heroin intentionally. In AG for Northern Ireland v Gallagher (1961) UKHL 2
D intended to kill his wife and bought a knife and a bottle of whisky. He drank the whisky and then killed her.
The House of Lord (Lord Denning) held:

If a man, whilst sane and sober, forms an intention to kill and makes preparation for it, knowing it is
a wrong thing to do, and then gets himself drunk so as to give himself Dutch courage to do the
killing, and whilst drunk carries out his intention, he cannot rely on this self-induced drunkenness as
a defence to a charge of murder, nor even as reducing it to manslaughter.

7.6.4 Necessity
The defence of necessity arises when an accused deliberately commits an offence but alleges that it was
necessary for him to do. This occurs in situations where the defendant commits an offence to avoid greater
evil of death or serious injury to himself or another or to prevent further damage to property. For example,
pulling down a persons building is criminal damage but if the building is on fire and is threatening the other
buildings next to it, then the damage may be justified. Similarly trespassing is an offence, but if the accused
trespasses a property in order to put out a fire, then he is not guilty of trespassing.

Generally, a criminal act can be justified if it is necessary to prevent a foreseeable and greater harm than the
harm created by the act. However traditionally courts have been reluctant to allow extension of the defence
of necessity as it would open the floodgates.

The defence of necessity was pleaded in the controversial case of R v Dudley & Stephens (1884) 14 QBD
273 where the court held that necessity was not a defence to murder of an innocent victim. In Southwark
London Borough Council v Williams (1971) 2 AER 175 the court held that for a charge of theft of food or
clothing, the defence of necessity will not be permitted. Lord Denning said: if hunger were once allowed to
be an excuse for stealing, it would open a door through which all kinds of lawlessness and disorder would
pass.

7.6.5 Mistake of Fact

Sometimes a mistake of fact, if it is genuine, is a defence to some offences. For instance, if John picks up a
bag which he mistakenly thought was his, he is not guilty of theft as he does not have the mens rea to
appropriate the bag dishonestly.

If an offence requires knowledge of surrounding circumstances then an honest mistake can negative such
knowledge. It does not matter whether the mistake is reasonable or not. If the mistake is unreasonable it is
likely that the judge will find that there is no honest mistake. In DPP v Morgan (1976) AC 182, a man told
three friends to have sex with his wife and that she will pretend to refuse just to be stimulating. The House of
Lords held that the accused would not be convicted of rape if he honestly although unreasonably believed
that the woman was consenting to it.

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7.6.6 Self-Defence
Common law allows a person to use reasonable force to protect himself, his property or another person.

Self-defence is some reasonable force taken in order to protect oneself or ones family. Generally, an
offence committed in self-defence will be negated by this defence and no punishment will be imposed.

However, the force used must be proportionate to the threat and not excessive. What amounts to reasonable
force depends on the facts and circumstances of each case. An example of disproportionate use of force for
self-defence is the use of a firearm in response to a non-lethal threat. The case of PP v Dato Balwant Singh
(2002) 4 MLJ 427 is a typical example of self-defence.
In AG Reference No 2 of 1983 (1984) QB 456 Ds shop was in the centre of which extreme riots were taking
place. His shop has been damaged and goods stolen. He was in fear that he and his property might be the
subject of further attack and made 10 petrol bombs to protect himself. He was charged with possessing
explosives without lawful object. The Court of Appeal held that the use of the petrol bombs was reasonable
force in self-defence against an apprehended attack.

7.6.7 Duress
A person who has to act in a certain way because of physical force or threat is known as duress. Generally,
act carried out under duress have no legal effect. Therefore if the defendant is forced by threats from
another person to commit an offence he will not be liable for the offence. The rationale is that a person who
is forced to commit crimes through external threats does not have the mens rea to commit and hence should
not be blamed for the crime.

However, the nature of the threat must be of reasonable fear at the very time of instant death. Therefore, the
duress must involve the threat of imminent peril of death or serious injury operating on the accuseds mind
and overbearing his will. The person threatened must be the accused himself, or a close member of the
defendants family.

The defence of duress is available for all offences except murder, attempted murder and possibly treason. In
R v Howe (1987) 1 AC 417, two defendants tortured and sexually abused a man who was then strangled to
death by one of them. They claimed that they acted under duress under the orders of and through fears of
Murray who, through acts of actual violence or threats of violence, had gained control of each of the
defendants. The House of Lords dismissed their appeals against conviction and held that the defence of
duress is not available to a charge of murder.

7.6.8 Consent
For some offences, consent may be pleaded for not incurring any criminal liability. In this case D can allege
that he has the consent to perform the criminal act such as one has the consent to take away the bag or to
hurt someone. Thus consent is a defence to a charge of common assault or battery.

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Implied consent
Since the merest touching without consent is a battery, the exigencies of everyday life demand that there be
an implied consent to that degree of contact which is necessary or customary in the ordinary course of daily
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.

Touching a person for the purpose of engaging his attention has been held to be acceptable but physical
restraint is not. In Kenlin v Gardiner (1967) 2 QB 510, a police officer who catches hold of a boy, not for the
purpose of arresting him but in order to detain him for questioning, is acting unlawfully. For this purpose
touching the person of the victim includes the clothes he is wearing. In R v Day (1845) 1 Cox CC 207, D
slashed Vs clothes with a knife and the court held that this amounts to battery.

Informed consent

In principle, V cannot consent to some form of conduct without adequate knowledge of its nature, and the
degree of knowledge required should depend on the degree of harm and risk of that harm to which V is
exposing himself. In R v Konzani (2005) EWCA Crim 706, the Court of Appeal confirmed that if D engages in
unprotected sexual intercourse with V, and D recklessly infects V with HIV, any defence of consent will not
be available unless V had made an informed consent to the risk of infection.

Fraud in obtaining consent

In offences against person, the consent may be vitiated if it deceives V as to Ds identity or the nature of the
act. If V agrees to X touching her in a manner amounting to a mere battery, her consent is prima facie
vitiated if D impersonates X and touches her. In R v Williams (1923) KB 340, D a singing teacher had sexual
intercourse with a pupil aged 16 years after telling her it was part of voice training. The Court of Appeal
upheld Ds conviction of rape as the fraud was related to the nature of the act of sexual intercourse and thus
Vs consent was vitiated.

Public Policy
However in some cases public policy requires courts to lay down limits on the extent to which one is allowed
to consent or is to be bound by apparent consent given. English law restricts the validity of consent by
reference to the level of harm and the circumstances in which it is inflicted. Thus, as a matter of public policy,
it is no defence to a charge of murder for D to say that V asked to be killed.

In R v Donovan (1934) 2 KBD 498,D canned a 17 year old girl for sexual gratification. The court held that the
girls consent was irrelevant and said:
No person can license another to commit a crime, if (the jury) were satisfied that the blows struck ...
were likely or intended to do bodily harm ... they ought to convict ...

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In R v Brown (1994) 1 AC 212, a group of 5 men were convicted for their involvement in consensual
sadomasochistic sexual acts, including genital torture, over a 10 year period. They were convicted of
unlawful and malicious wounding. The House of Lord held that consent is a defence to the infliction of bodily
harm where the activity is lawful but ought not to be extended to sado-masochistic acts.

By contrast, in R v Wilson (1996) Crim LR 573, D branded his initials on his wifes buttocks with a hot knife.
She had asked him to do so. Her skin became infected and she sought medical treatment from her doctor.
The doctor reported the matter to the police and the husband was charged with causing actual bodily harm.
The court held that the wifes consent was valid. The branding was more akin to tattooing and cosmetic
enhancement rather than infliction of pain for sexual gratification. The court further held that consensual
activity between husband and wife in the privacy of the matrimonial home was not a matter for the courts.

Statutory rape
Another situation where the consent given by V is not a defence is statutory rape. Having sex activities with a
minor (below 18 years) is an offence and he will be guilty of rape notwithstanding that the minor has
consented to it. Statutory rape laws are based on the premise that until a person reaches a certain age, that
individual is legally incapable of consenting to sexual intercourse. Thus, the law assumes, even if he or she
willingly engages in sexual intercourse, the sex is not consensual. Some critics argue that an age limit
cannot be used to determine the ability to consent to sex, since a young teenager might possess enough
social sense to make informed and mature decisions about sex.

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