Shorter
ARticle
ASPECTS
OF GRAVE AND CRIMINAL ASSAULT
Cyril Whelan
1 A recent judgment of the Jersey Court of
Appeal in the case of Hill v Att Gen provides a rich seam of learning which
advances understanding. In it, Sir William Bailhache, JA, who delivered the
judgment of the court, provides a closely reasoned and thoughtful analysis of
the concepts of assault in its various forms, of unlawfulness, and of consent.
2 First, the facts: the appellant was tried by a
jury on seven counts. Of those counts, numbers 3, 4 and 5 are our concern.
Count 4 which charged grave and criminal assault resulted in a conviction, as
did Count 5 (which was a specimen count of rape on an occasion other than Count
3), and Count 3 which also charged rape. As will be seen in due course, the key
to the part played by Count 3 in this appeal is that there was an acquittal on
that count (as there was on all other counts save 4 and 5). The appeal was
therefore on Counts 4 and 5, the only convictions secured by the prosecution. But
one needs to keep an eye on the Count 3 acquittal nonetheless.
3 The case was about two young persons, the man (“A”)
a couple of years older than the young woman (“B”). Both were above
the age of consent. They were in a consensual sexual relationship. On occasions,
it was said, the appellant put his hands around B’s throat—with her
consent—during intercourse.
4 Count 4 asserted that on the occasion charged,
the appellant had used unreasonable force during that kind of intercourse,
causing B to lose consciousness—hence grave and criminal assault. The
essence of the successful appeal on this count was that the Bailiff had not
directed the jury on the significance of consent, and the relevance of any loss
of consciousness on the part of B.
5 Starting with the loss of consciousness: it was
an issue of fact in the trial. Had loss of consciousness been established by
the prosecution, then naturally it would have been impossible for B to consent
to anything while unconscious. That was the prosecution’s basis for the
charge of grave and criminal assault. Although consent can sometimes provide a defence to forms of assault, that need not detain the court
here because in all logic she could not have consented to anything—she
was insensible. That can have been the only basis of conviction.
6 This is where the acquittal on Count 3 comes
in. It charged rape on the same occasion as the grave and criminal (hands
around the throat) assault. The acquittal of rape means that the jury cannot
have been persuaded to the necessary standard of proof that the intercourse on
that occasion was without her consent—put another way, they considered
that she may have been able to give consent and therefore logically could not
have been unconscious.
7 That being so, it was inconsistent for the jury
to convict of the grave and criminal assault—to which consent might have provided a defence—on the basis that B was incapable of giving
consent because unconscious; yet to acquit of rape on the same occasion
representing a jury finding that B may have been conscious. If she was
conscious, she may have consented to the use of force inherent in the grave and
criminal assault count, in accordance with the defence
put forward.
8 The Bailiff had not directed the jury on the
matters of grave and criminal assault in these circumstances, nor on the
factual issue of partial choking, its bearing on the specimen rape charge at Count
5 of which the appellant had been convicted, nor of the possible impact of
consent on the partial choking charge at Count 4, of which he had also been
convicted.
9 In its most limited sense, this is a judgment
about inconsistent verdicts. But it is so much more, as will become apparent
after a discussion of the other conviction, that on Count 5, the specimen count
of rape on occasions other than that charged at Count 3, of which the appellant
had been acquitted.
10 Count 5 was a specimen count of rape, to the
effect that on various occasions the appellant, following a consensual outset
to the intercourse, had not stopped and withdrawn when B had asked him to do
so. It gave rise to matters different from those discussed already.
11 The evidence of B on this count is described
as “ambiguous and possibly tenuous.” The submission of no case to
answer might have succeeded had that evidence stood alone but the Bailiff was
wrongly persuaded that the evidence was properly bolstered by messages sent to B
by the appellant on social media. “Wrongly” because the messages, although
admitting to not withdrawing and so being a “rapist,” did not refer
to any specific occasions, and could not of themselves
found a complaint when neither the messages nor B provided evidence of anything
which was not covered by the rest of the indictment. It was not reasonable for
the Bailiff to conclude that it was proper for a jury to convict in these
circumstances. The appeal was therefore allowed and the appellant was
discharged.
12 Again, in its most limited sense this was a
judgment about nothing more than sufficiency of evidence but the judgment
provides a big bonus, namely a painstaking, methodical analysis of key areas of
the criminal law of Jersey.
13 It begins with the assault-based offences
charged in Jersey. From the first edition of Aspects of Sentencing in the Superior Courts of Jersey nearly three
decades ago, the author has remained grateful to a former colleague and mentor
for preserving and pointing me towards the summing-up to a jury in 1974 by
Deputy Bailiff Ereaut, as he then was, in the
otherwise unremarkable case of Att Gen v Vaughan.
It is set out extensively in other parts of this work.
14 Although only a summing-up, it has provided
valuable groundwork for an appreciation of the essential forms of assault
charged in Jersey. It speaks of grave and criminal assault and of (common)
assault and offers examples of both. It provides the reminder that assault in
Jersey comprehends both assault (the threat and apprehension of immediate harm)
and battery (the actual infliction of the violence). Assault and battery are
English usages and are amalgamated into the single concept of “assault”
in Jersey. There is no charge of battery here. Whether the facts require a
charge of grave and criminal assault, or the lesser (“common”)
assault is one of degree; the degree of injury may be one determinant, but not
the only one. See, for example, the facts and outcome in Att Gen v Bardwell—a
case of distress and trauma where the accused had followed his victim late at
night for a considerable period before attacking her. He used no weapon and her
physical injuries were slight but the facts were found to be capable of
founding a conviction for grave and criminal assault.
15 Having dealt with Vaughan, the court in Hill moves
on to note that intention is not the only form of mens rea in the assault-based
cases—recklessness can also provide mens rea.
16 The court next turns to the question of “unlawfulness”
and first reviews English law on the point, in particular the forms of offence
found in statute—Offences Against the Person Act
1861. The court notices s.18 (shorthand, “unlawful GBH [grievous bodily
harm] with intent”), s.20 (“unlawful GBH without the need to show
specific intent”, s.47 (“ABH”[actual
bodily harm]). In each case, the actus reus of the offences must be
done “unlawfully”.
17 The mens rea of these offences, it is said, can encompass Cunningham recklessness,
and the mens rea of s.47 (“ABH”)
is the same as that for common assault not causing actual bodily harm.
18 The court reads across the Jersey facts to the
English law, and concludes that, in the instant case, if B lost consciousness, then,
things being equal, the s.47 offence would be made out because of the loss of
her sensory functions. On the other hand, if there had been no loss of
consciousness then again, things being
equal, the case would be one of common assault. The injury would have been
trifling and transient no matter how
dangerous the outcome might have been.
19 The court adverts incidentally that an English
prosecution on these same facts would now be affected by s.75A of the Serious
Crime Act 2015
which creates the offence of strangulation, without the need to prove actual
bodily harm: maximum penalty 5 years’ imprisonment, as in the case of
s.47 above. Consent is a defence, but not where the
complainant suffered serious harm and where the accused intended or was
reckless as to whether serious harm would be suffered. The court also makes
relevant mention of s.71 of the Domestic Abuse Act 2021 which provides that
consent to the infliction of serious harm for the purposes of sexual
gratification is no defence, whereas it could provide
a defence to a charge of common assault.
20 The court is led inevitably to R v Brown,
the case of consensual extreme sadomasochism between homosexuals. The accused
were charged with various offences of s.20 GBH and s.47 ABH. Was consent to the
behaviour a defence? The
majority view of the House of Lords was that consent was no defence
to either charge. Put at its broadest for the purpose of brevity, the decision
was based on considerations of public policy.
21 As to s.47 ABH the judgment in the instant
case adverts to R v Wilson,
a case in which the accused branded the buttocks of his wife with her consent.
The defence of consent succeeded. Again, the decision
was based on public policy and a refusal to intrude into consensual activity
between husband and wife in the privacy of the home. In that case there was no
aggressive intent and no evidence of significant harm. Her consent therefore
provided a defence. She had instigated the behaviour and the court was prepared to equate what had
happened with tattooing or body piercing. Specifically, Brown was not authority for the proposition that consent had no use
as a defence in the ABH cases. Consent could provide
a defence even in the face of actual bodily harm.
Crucial to the success or otherwise of such a defence
will be the injury actually or potentially sustained. Where the evidence
reveals a realistic risk of more than transient or trivial injury the
opportunity for a successful defence falls away.
22 The court distils the cases: consent can be a defence to assault (e.g.,
boxing); thereafter, the questions to be confronted concern the extent to which
the criminal law should be concerned with consensual activity, and in
particular sexual activity in private; and consideration, necessarily, of the
extent to which these are matters for the courts rather than the legislature.
23 Having performed that review of the English
position, the court turns its attention to Jersey and first remarks that
(absent certain specifics in the Sexual Offences (Jersey) Law 2018) the consent
of a person over 16 is a defence to any charge
alleging sexual impropriety. Equally, consent in Jersey is a defence to a charge of common assault.
24 What of grave and criminal assault? There has
to be a limit to the defence of consent to the
infliction of serious injury. Further definition of the actus reus is given
by the court as follows:
“an unlawful application or threat of force by the
Defendant on the victim which causes or risks substantial injury to the victim,
or otherwise is committed in circumstances which the judges of fact consider to
be more serious than would be reflected in a conclusion of common assault . . . causing or risking psychological
injury would be as much part of the offence as causing or risking bodily injury.”
25 As to mens rea :
“The mens rea includes the intention to apply unlawful force, or
recklessness as to whether it is so applied (see paragraph 66 of the judgment
of this Court in de la Haye).”
26 The view of the jury is vital; they decide
whether consent was given; they decide whether the circumstances are such as to
warrant a charge of grave and criminal assault.
27 Whether the application of force is lawful
will, says the court, probably depend on whether absence of a hostile intent
indicates there to have been a legitimate reason for the act (the example of
grabbing at a child for its own safety is given, supposing the child to have
been injured nevertheless).
28 In this case the court concluded that the
directions to the jury on questions of consent and of unlawfulness in the
instant case were inadequate or non-existent, the convictions set aside and the
prisoner was released.
29 The court goes on to provide helpful guidance
as follows:
“(1) Consent
is always available as a defence to common assault.
(2) If the jury
determines that an assault reached the ‘grave and criminal’
threshold, other factors may be relevant to the question as to whether the defence of consent is available. We share the difficulties
expressed by Lord Mustill in Brown of arriving at any ‘general theory of violence and
consent’ but make the following observations.
(3) There are some
types of activity (e.g. surgery, tattooing and contact sports) potentially
giving rise to grave and criminal assaults but to which the issue of consent is
potentially relevant and may (depending on the individual facts and
circumstances) be a defence.
(4) In our judgment,
however, there will be certain types of activity where it would be contrary to
public policy for a defence of consent to be
available to the jury. That will be the case, in particular but not
exclusively, when the nature of the injury or attack, inflicted or threatened,
is particularly egregious or grievous. A trial judge will make an assessment as
to whether such a direction should be given to a jury on the facts of the
particular case, and if necessary that will be tested on appeal to this
court.
(5) In between such
areas, a particularly anxious area may be that of sexual activity, as to which
the circumstances before us in the present case allow us to offer the following
guidance:
A) The possibility that
consent may properly be raised as a defence to grave
and criminal assault, during sexual activity not amounting to rape, will emerge
where the nature of the injury sustained or threatened (or the lack of
substantial injury) make consent a possible defence.
The availability of the defence of consent will
depend upon the nature of the particular activity that has given rise to the
complaint and upon alleged consent having been given in circumstances showing
that it was free and fully informed.
B) We do not consider,
however, that a defence of consent could in any
circumstances be left to the jury in circumstances where an act of choking
during sexual activity resulted in a loss of consciousness, with its obvious
and inherent risks of long-term incapacity if not also death. Manifestly those
risks make it improper, as a matter of policy, to countenance that a
right-minded individual—of whatever level of aspiration for sexual
gratification—would give consent. Equally, as it seems to us, it might be
said that there was an irrebuttable presumption that
such alleged consent could not have arisen from a mental engagement both free
and fully informed.”
30 The judgment casts helpful light on areas of
previous uncertainty, and is greatly to be welcomed. The multiplicity of
circumstances falling within the offence of grave and criminal assault in
Jersey has previously been accepted by the Jersey Court of Appeal and helpful
guidance also given as regards factors to be taken into account when
sentencing.
31 Although not referred to in the judgment, Sir
Christopher Pitchers previously reviewed the ambit of the grave and criminal assault
offence in contrast with its equivalents under the Offences Against
the Person Act 1861. Whilst he acknowledged
the efficiency and practicality of the Jersey offence, he also referred to its
lack of “fair labelling” and the scope for disputed issues of fact
to remain unresolved when it comes to sentencing.
32 The court’s further definition of the actus reus and mens rea of the
offence of grave and criminal assault in this case may reflect a desire to bolster
its ambit when faced with the challenges of the more unusual categories of
conduct which fall to be charged within the broad offence. The judgment certainly illustrates the
need for specific and additional directions when dealing with such cases, as
was also made clear by the Court of Appeal in Harrison v Att
Gen.
Cyril Whelan is an
advocate of the Royal Court, a consultant at Baker and Partners, and has held
several public offices, including Commissioner at the Jersey Financial Services
Commission.