Malicious Wounding

Section 20 of the OAPA:.

"unlawfully and maliciously wounds or inflicts any grievous bodily harm, either with or
without a weapon or instrument, upon any other person".

Conduct elements include wounding and inflicting Grievous Bodily Harm . Remember conduct elements are actions that must be present if one was charged with Malicious wounding. So the individual must maliciously wound or inflict GBH. Remember a wound requires the penetration of both skin layers. So if (A) shoots (V) with a nail gun and the nail pierces his arm, then one can be charged under section 20 of OAPA ( Offences Against the Person Act). But why can't this individual be charged under section 18? (A) definitely wounded (V) because the wound pierced both skin layers, however in section 18 one is required to prove "intent" to cause grievous bodily harm. Specific intent is required in Section 18.

So if my understanding serves me correctly, one can wound an individual without intending to cause serious harm. Or maybe his intention is to cause serious harm but proving the intention is sometimes too difficult and so  an individual gets charged under section 20 instead. GBH must also be "inflicted". The word inflict denotes that a motion or action must be transferred from the offender's body that translates into a degree of physical assault rendered to the victim . However, after R v Wilson (1984) GBH under section section 20 does not require a physical assault. (A) can dig a hole with the hope that (V) will fall in and seriously injure themselves and A could be charged with malicious wounding under section 20. If (V) were to fall and break his leg and arm, (A) can still be charged under section 20. Though he did not actually physically assault (V), the digging of the hole with the intention of causing harm to (V) and the consequent falling of (V) into the pit and breaking of his limbs would be considered as inflicting grievous bodily harm.

So folks before you decide to beat someone up or do something malicious that will result in serious wounds, think of the 5 years in prison that will ensue when convicted.

The Rule of Law

I often wonder how did humanity develop a need for what is called Law? How did society develop to a point where we were able to discern that which was morally unsound and unjust and construct a set of rules which served as a catalyst for preserving a high quality social fabric? What is the purpose of Law? If "Law" is to be a deterrent for behavior that is considered unethical, then it is obviously not doing a very good job, because society is pusillanimously fighting to remain less demonic and unethical than the demons themselves, and it seems as though, it is a fight that they are sadly loosing. So If Law cannot and is not preventing moral decay what is it's purpose and why is it existing?

Here is where my studies took me to a concept called the "Rule of Law". Lord Bingham, a former Master of the Rolls and Lord Chief Justice in England and Wales, highlighted what is considered 8 sub rules to help define the term "Rule of Law". The 8 sub rules are as follows:

1. The Law Must be accessible and so far as possible intelligible, clear and predictable.
2. Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.
3. The laws of the land should apply equally to all, save to the extent that objective differences require differentiation
4. Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly for the purpose of for which the powers were conferred without exceeding the limits of such powers and not unreasonably.
5. The law must afford adequate protection of fundamental rights.
6. Means must be provided for resolving without prohibitive cost or undue delay, bona fide civil disputes which the parties themselves are unable to resolve.
7. Adjudicative procedures provide by the state should be fair.
8. The rule of Law requires compliance by the state with its obligations in international law as it is national.

What?!!!!!

What is Lord Bingham saying. Are these sub rules really helping me dissect this concept of the "Rule of Law"? My head hurts!!! Let's see; 

So whatever "the Law" is, it must be accessible, for a number of reasons. If one cannot access the law or these rules made law", how can one ascertain what actions carry penalties? This of course does not mean that everyone will know all the laws. If that were the case, there will be no need for lawyers, but thankfully, (at least for the purpose of me being a law student), not everyone knows all the laws. Not even Lawyers themselves, but they understand how it works and can better guide you, when you have been told by the authorities that you have broken a law. So feel free to check with your lawyers for more legal advice. For the purpose of keeping the article short I will not go into all the reasons why accessibility is important. Those who are under the penalty of the Law must understand the Law itself. It must be clear to the subjects of its' rule. In this instance I do not believe that we will ever achieve rule of law clear enough. Firstly because clear is relative to one's understanding and secondly, if law was sufficiently clear then there would be no need for judges to "interpret" the clear law. 

If law is to serve its true purpose, then it should be able to assist in the resolution of matters pertaining to liability and rights.  The Law cannot be for one set of individuals only. It is often felt by some that in a lot of developed countries, celebrities usually go unscathed when they break the law, and individual who do not fall within the peripherals of financial obesity, and influence, get the harsher treatments before the law. That should never be the case when we all stand before the rules made law.  

Some consider the rule of law to be "content free. This  means that the rule of law has to deal with the form that the law takes, and the process by which laws are constructed. That was a concept identified by a legal writer named Joseph Raz who identified 8 basic principles that encapsulates this approach. The other concept is the content rich concept of the rule of Law. This concept is very different and is associated with identifying that humanity has basic rights as it relates to each other and the state. These "rights" by virtue of their nature and the fact that they are perpetually extant and present wherever human beings are present, make up the rule of law. That is in summary the concept of the content rich rule of Law. So I hope you are no longer as clueless as I am with regards to what is the rule of law. It is a complex area of the law, especially because there are varying opinions as to what exactly is the nature of the rule of law. If there are questions as to the nature of something, defining it will always be a  rather complex matter. 

 

 

Grievous Bodily Harm and Wounding with Intent

We will discuss non-fatal offences and how the process by which such offences are dissected. In the UK, the act which primarily deals with such offences are the OAPA (Offences Against the Person Act 1861). We will begin with Section 18: Wounding with intent.

Section 18 states “Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, with intent, to do some 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 to be kept in penal servitude for life”.

In this case, the unlawful act is intending to cause any grievous bodily harm, if the individual is found guilty could spend up to life in prison. There are two aspects that would be taken into consideration when deciding such cases. One is the nature of the “wound” and two is the intent behind the wounding. It is important for one to understand and appreciate definitions. A lot rest on the definitions of certain word paramount in establishing the charge. Mcloughlin 1838 defines a wound as a penetration of dermis and epidermis, the two layers of the skin. Internal ruptures do not count as a wound.

Grievous bodily harm has received definitions through case law. In DPP V Smith, the term was substituted for serious harm or injury.  I think one can argue that this term leaves room for relativism to come to the fore. And lastly in determining whether one is guilty of such a charge, the intent of the defendant should be the determined. Did the defendant intend to cause grievous harm to the victim? If the facts prove beyond the shadow of a doubt that when, an individual took a knife and slashed the face of the victim, he did it with the intention to cause the victim to bleed and cause the break the continuity of the skin of the individual, then it is possible for him to be indicted and charged. However if the defendant was trying to chase a really poisonous insect from the face of the victim, and in realizing that his hand was too short and would not give him sufficient leverage to chase the insect, he decided to use the knife and in shock of the defendants rapid use of the knife the victim turned his face resulting in a slash to the face if those facts could be proven, the defendant will not be charged under section 18 because the intention to cause grievous bodily harm does not exist.

Rape

The Legal information in this blog is based on the England and Wales Jurisdiction. Please note that it may apply to some commonwealth nations.


The Sexual offences Act of 2003, Section 1 Rape declares

1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with
his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.

(2) 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.

(3) Sections 75 and 76 apply to an offence under this section.
(4) A person guilty of an offence under this section is liable, on conviction on indictment,
to imprisonment for life.

In order for one to be guilty of Rape certain elements must have been present. We will begin with what is called in the legal circle as conduct elements. These are actions that are usually a prerequisite in the establishment of the actus reus. The wrong act(actus reus) of Rape involves the penetration o the mouth, anus of vagina of a man or a woman by a man's penis. Thus it might come as a surprise to some that in English Law prior to the Criminal Justice and Public order act, Rape could have only been committed by a man, since only a man carry's a penis. However since the Public order act of 1994, any non consensual penetrative act of the vagina, mouth or anus constitutes the act of Rape.

How does one determine whether of not an individual has given consent. I can safely assume that due to the patriarchal nature of certain societies in the "olden days", men would usually have the benefit of the doubt with regards to consent from a woman.Thus husbands could not have been guilty of raping their wives in England many years ago. Matthew Hale a juror, stated in the History of the please of the crown that a "husband cannot be guilty or rape because  hath given up herself in this kind to her husband, which she cannot retract". In the modern day we have heard many people talk about their idea of a woman's or man's consent. To prove beyond a reasonable doubt that someone did or did not consent can be a pain staking task, both for the prosecution and the defense. In the absence of apparent signs of a struggle or some form of violence, jurors were more inclined to acquitting individuals who had been charged and indicted in this regard.As you can imagine victims were forced to bear the shame of having answer to allegations of promiscuity, but moral infidelity as well.

Here is how the Sexual offences act of 2003 defines consent; a person consents if he agrees by choice, and has the freedom and capacity to make that choice . One cannot downplay the importance of establishing consent in such circumstances, but as the University of London subject guide suggest, such a definition raises some serious philosophical questions. In Olugboja 1982 Lord Justice Dunn rendered,  that " There is a difference between consent and submission; every consent involves a submission, but it by no means follows that a mere submission involves consent" To help curb this hurdle English law has constructed two presumptions which are considered Conclusive and Evidential presumptions.


Conclusive presumptions can be found in Section 76 of the SOA 2003. Please read thoroughly so you can gain a greater understanding of the themes briefly in this article mentioned this piece of statutory information. Simply put, If the defendant intentionally lies as to the purpose of the intercourse and if the defendant intentionally causes an individual to consent by impersonating somebody who the victim knows, like a twin brother or something of that sort, then it is conclusively presumed that the victim did not consent to the act.

The second presumption is what is know as evidential presumption. This is found in Section 75 of the SOA 2003 which indicates that if there is evidence to suggest that if the defendant  used violence, drugged the complainant,  to a point where the complainant is stupefied, and penetrates the  complainant then the complainant would not be considered to have consented to the act. These are some examples of evidential presumptions. Finally as in all criminal cases, one must consider whether the person who committed the act was mentally sound and mentally capable of committing the crime. The courts would attempt to determine the mens rea or the "guilty mind" of the individual. It is said that  a belief in consent is not enough. Whether or not one's belief is "reasonable" is a matter for the jury or the judge to decide.

References :University of London criminal Law Subject guide.