The criminal law does not try to punish individuals for their vicious thoughts; it acts upon the rule of innocent until proven guilty. The crime should be able to prove that the suspect is responsible for the behavior or the presence of a situation banned by the law before responsibility emerges. Regardless, of whether liability rises will depend on the defendant’s state of mind at the time; generally, recklessness or intention is required1.
This scenario raises issues of non-fatal and sexual offences. However, the main aspects in order to create a contract are offer and acceptance as shown in Carlill v Carbolic Smoke Ball Co (1893) 2. Sarah did have the intention to create a contract between her, Mike, Jody, and Frank as shown in the case Adams v Lindsell (1818)3, which is an example of a verbal/ informal contract. As soon as Sarah took money from them she was in a binding contract. Sarah committed to paying the money back within a month, she breached the verbal contract, thus is liable for a criminal liability as shown in R v Pittwood (1902)4.
There are four different parties involved in this scenario. Sarah is the Claimant whereas Mike, Jody and Frank are the defendants. As the claimant refused to have sexual interaction with the defendants (Mike and Jody) this falls under the Sexual Offences Act 2003 section 775, which includes section 1-4 whereby the defendant (Mike) intentionally penetrated, his penis into the vagina. Even though Mike committed the rape Jody implies with subsection 3 whereby she is intentionally touching Sarah and the act is sexual. Additionally, subsection 1 of the SOA 2003 sets out the Mens rea and the Actus Reus of rape, as the defendant not only intended to rape the claimant he acted upon it, in reference with R v Olugboja (1982)6, where Dunn LJ stated: that there should be direct contact of giving consent7, she did not give consent to any of Mike and Jody’s actions. Moreover, in the case of R v Bree 20078, the court of appeal upheld B’s appeal and stated that under Section 74 of Sexual Offences Act 2003, this defines the word consent ‘the victim should be given the freedom and capacity to make the choice’. Due to Sarah’s refusal to the sexual interactions, the defendants may be liable for rape and could be prosecuted to imprisonment for life.
A crime has been committed with the intent to hurt in the most punishing way possible. In criminal law a crime has two aspects; the intention to commit the crime and the actions taken place when committing the crime. Actus Reus and Mens Rea both were present in this scenario. An Actus Reus is the conduct or the action (the guilty act) which is an element that states the physical aspect of a crime and Mens rea dictates the intention of an act as shown in the case R v Inglis (2011)9, in which a mother became obsessed with her sons illness thinking he is in pain, when the doctors were in good hope he will recover, she gave him a Lethal injection with intention to kill him, later on he died. The court of appeal upheld her appeal of her conviction. However, in this scenario Mike, Jody and Frank committed a guilty act whilst having a guilty state of mind. Mike and Jody’s act was of a voluntary act rather forced, as explained in R v H (2005), where Lord Woolf CJ held the defendant knew his actions, they were sexual due to purpose and circumstances. Similarly, in the case Bratty v AG for Northern Ireland (1963)10, Lord Denning stated that the ‘requirement that it should be a voluntary act is essential, not only in a murder case but in every case’. Whereas, Mens Rea, where the defendants conduct is the Actus Reus of an offence is usually found guilty only if he had the required Mens Rea.
According to the Criminal Justice Act 198811 section 13912 the Mens Rea and Actus Reus of all three defendants is that they had the intention to intimidate Sarah, also they agreed with Mike to take a knife as a possession but they will not hurt her (their agreement), later we discover that their intentions had changed and were off extreme behaviour, such as shown in R v Moloney (1985)13. You cannot rely on defence as Mike had no reason to be taking that knife, as they were only going to negotiate with Sarah. Even if we see then Mike and Jody also Frank knew that Sarah did not consent to anything yet, no one said or did anything about further is shown in the case of R v Cunningham (1957) 2 QB 396 or in the case of R v Linekar (1995)14.
Where the defendant is charged with a result crime, it is essential to prove that his omissions or actions caused the prohibited consequence15. Seeing in the case R v White (1910)16, where Court of Appeal held the defendant liable for his intention but not act, similarly, Mike can be convicted for having the Mens rea at the very moment when the conversation heated up and Jody supported him and raping Sarah. ‘But for’ instant if Sarah did not breach her contract would it lead Mike, Jody and Frank raping Sarah? In court it must be proven that the loss was suffered was by the defendant, to help the court they use the ‘But for’ test. ‘But for’ would the claimant still suffer the loss, even after the defendant’s actions? If it is a no, the defendant is liable, if yes, then the defendant is not liable as shown in Barnett v Chelsea & Kensington Hospital (1969)17. Not that what Mike, Jody and Frank did were justified ‘but for’ Sarah can also be the reason for her loss.
Roper Devlin J quoted that there are three degrees of knowledge, Actual knowledge, wilful knowledge and constructive knowledge18. Wilful knowledge is the same as substantial recklessness, which demands proof to accomplish that Mike, Jody and Frank had the vital knowledge about the crime they are committing. Shown in the case of Westminster City Council v Croyalgrange Ltd (1986)19 or in the case of Gatto (t/a AG Avvovati Gatto) v Allianz S.p.a (2017)20. Both cases are similar to the defendants knew the crime they were committing yet they purposely chose to ignore it.
A leading case R v Cunningham (1957)21, the court of appeal held, Malicious means either an actual intention to do the crime, whether such harm should occur or not for example, the defendant had foreseen the risk, but still continued with the act. This case rose to Cunningham recklessness, and in particular, the question was asked whether an objective test shall be applied or subjective test. Recklessness offers the baseline for the liability for most crimes. Mike was in recklessness as stated by the law commission in the Criminal Code cl. 18 ‘a circumstance the defendant is aware of any risk existing or will exist’22. So Mike, Jody and Frank’s actions would come under the objective test as it was a reasonable reaction.
All parties to a crime are partners. According to s. 8 of the Accessories and Abettors Act 186123, Mike’s Actus Reus, then Jody assisting/ joining with Mike and Frank not assisting or stopping, all fall under the same crime committed.
There is a fundamental distinction when it comes to who accompanied the crime. Mike was the primary offender, Jody and Frank were the secondary equivalences to this crime as to intimidating Sarah and agreeing with Mike to take a knife when there was no need. Moreover, Jody held Sarah whilst she let Mike undress her first touch her private parts then sexually penetrate her, then Jody joined Mike too, keeping Sarah immobilised this shows that all defendants were equally liable for the crime committed. Moreover, there are two types of participation in any crime, Assisting or encouraging the primary offender such as aiding and abetting shown in the case of Wilcox v Jeffery (1951)24 or the case of National Coal Board v Gamble (1959)25 where Devil J stated that- a person selling a gun B to kill C knowingly and with intent to aid, he abets, it is therefore, guilty of abetting and aiding. However, Section 44 of the Magistrates Court Act 198026, provides with related provision for this summary of offences. Consequently, joint enterprise is when two people or more act out the crime, yet one of them commits a further offence, for example, went there to negotiate yet having an illegal weapon on top of that raping Sarah, it was one crime leading to another crime, further shown in the case of R v Gnango (2011)27, where it started with a fight, then they started to fire at each-other which hit C who was passing by and he died.
However, the Actus Reus of assault by Mike and Jody when they held the knife against Sarah keeping her immobilised and raped her was an assault under the common law, thus the Section 39 of the Criminal and Justice Act 198828 has given the courts the permission to fine a person with assault with £5000 fine either six month jail. According to Fagan v MPC (1969), where it defines the term assault, Even in R v Ireland (1997)29 whereby, Lord Steyn said ‘it is to assault in the form of an act causing the victim to fear an immediate application of force to her that I must turn’. However, battery is an unlawful force upon the victim, as shown in Fagan v MPC (1969)30 or the case of Faulkner v Talbot (1981), where Lord Lane CJ defined unlawful physical force as ‘any intentional touching of another person without the consent of that person and without lawful excuse’.
Firstly, it has been proven that Mike and Jody did rape Sarah. This case would fall under the indictable offences and tried by the Crown Court. As seen in this scenario there are sexual and non-sexual offences committed. The main sentence given for rape is 10 years associated with other crimes committed, such as sexual assault gives minimum 10 years of sentence. Thus, Frank could be liable under omission as seen in this case of R v Pittwood (1902)31, where the defendant was liable for the death of the claimant as it was his contractual duty to shut the gates, so the secondary party is convicted just as the principle party would (Mike), similarly failing to stop the crime Mike was committing when it was possible to do so could be an encouragement as shown in Tuck and Robson (1970)32. However, this is a struggle for the court because they would have to consider as how much Frank contribute towards the crime with Mike and Jody. Frank may be liable for a different offence then Mike as a principle party Howe (1987)33 considering the duty Frank had he still did not have much contribution to the crime, whereas on the other hand a mere presence at the scene of the crime is insufficient for Frank to be an accessory as shown in Allan (1965)34, but you can also argue that a voluntary presence can amount to encouragement in some cases such as Wilcox v Jeffery (1951)35. All in all the scenario is broken down into civil and criminal law.
1J. Allen, M. (2015). Criminal Law. 13th Ed. Great Clarendon Street: Oxford University Press, p.18.
2 Carlill v Carbolic Smoke Ball Co (1893) 1 QB 256
3 Adams v Lindsell (1818) 106 ER 250
4 R v Pittwood (1902) TLR 37
5 Sexual Offences Act, s 77
6 R v Olugboja (1982) Q.B. 320
7 Michael J. Allen, Criminal Law (13th edn, Oxford University Press 2015).
8 R v Bree (2007) EWCA Crim 256
9 R v Inglis 2011 1 WLR 1110 Court of Appeal
10 Bratty v AG for Northern Ireland (1963) AC 386
11 ‘The Criminal Justice Act 1988 (Offensive Weapons) Order 1988’ (Legislation.gov.uk, 2018)
12 ‘Criminal Justice Act 1988’ Section 139 (Legislation.gov.uk, 2018)
13 R v Moloney (1985) AC 905
14 Jonathan Herring, Criminal Law (7th edn, Palgrave Macmillan 2017) p xIiii and 332.
15 Michael J. Allen, Criminal Law (13th edn, Oxford University Press 2015).
16 R v White (1910) 2 KB 124
17 ‘Barnett V Chelsea & Kensington Hospital 1969 1 QB 428’
18 Michael J. Allen, Criminal Law (14th edn, Oxford University Press 2017).
19 Westminster City Council v Croyalgrange Ltd (1986) 3 All ER 353
20 ‘Gatto (T/A AG Avvocati Gatto) V Allianz S.P.A.’
21 R v Cunningham (1957) 2 QB 396 Court of Appeal
22 Elizabeth, Q. (n.d.). ‘Legislating the Criminal Code offences against the person and general principles’.
23 Accessories and Abettors Act 1861 2018.
24 Wilcox v Jeffery (1951) 1All ER 464.
25 National Coal Board v Gamble (1959) 1 QB 11
26 Magistrates Court Act 1980, s 44
27 ‘R V Gnango 2011 UKSC 59’
28 Criminal and Justice Act 1988 s. 39
29R v Ireland (1997) 3 WLR 534 House of lords
30 Fagan v MPC (1969) 1 QB 439
31 R v Pittwood 1902 TLR 37
32 Tuck and Robson (1970) 1 WLR 741
33 R v Howe & Bannister 1987 2 WLR 568 House of Lords
34 Allan (1965) 1 QB 130
35 Wilcox v Jeffery (1951) 1 All ER 464