Crimminal Law mooting Help, S20 gbh consent HIV Watch

Barbie990
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Hi just wondering if anyone can help me with ideas of what to argue for my moot this is the case and i am the respondent so arguing that the judge did not misdirect the jury

Mr C was diagnosed with syphilis in 2013 He did not get treatment
he met Jess at a party they had unprotected sexual intercourse. Mr C did not tell jess about the syphilis. however they had previously had a relationship in 2009 when he had told her that he had gonorrhoea. Jess had also been told by a mutual friend that she had heard that Mr C had caught syphilis from another sexual partner.
The day after the party Mr C attended the sexual health clinic to start treatment for syphilis.

jess was diagnosed with syphilis and was prescribed a very strong dose of antibiotics. She eventually made a full recovery.

Mr c was charged with unlawfully and maliciously inflicting grievous bodily harm on Jess, contrary to s. 20 of the Offences against the Person Act 1861. It was not disputed that syphilis amounts to GBH and that Mr c was the source of jess infection.

(no problems with causation , or meeting requirements for the offence)

The trial judge, directed the jury that there was no issue as to consent as it was not possible for the victim to give informed consent to the risk of infection when Mr c had concealed his condition and he agreed with the conclusions of the Court of Appeal to the same effect in Dica [2004]

Mr c was convicted and now appeals against conviction to the Court of Appeal. The grounds of appeal are;

1. whether the Judge misdirected the jury by refusing to leave to them the issue of informed consent to the risk of infection,


im struggling to think up ideas because in dica the issue of consent was not dealt with by the jury and that was held to be wrong in law
so what am i supposed to argue?

im thinking of something along these lines
the issue of consent was irrelevant and did not need to be considered by the jury as it provided no defence for Mr c , as jess could not have consented firstly because she was not fully informed, she was consenting to sex but not the risk of getting the disease and secondly because you cant consent to that level of harm (brown) (ag's reference)
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hotliketea
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admission of hearsay evidence irrelevant and should place little weight upon the decision? so you argue that just because she had 'heard from a friend that she had heard Mr C' had syphilis , this shouldn't have been left to the jury to decide if it amounted to informed consent because it was not substantiated with evidence and should not allow Mr C to posit informed consent.

also be careful about saying you can't consent to that level of harm - in Dica on appeal the CoA very clearly said that it should have been left to the jury to decide consent, and thus that perhaps you COULD consent to a s.20 offence of GBH. In Dica they decided that if the women were not aware, they could not have consented to the act in itself, and there appears to be some weight placed on the fact that the truth was concealed over the long-term – they had no reason to ask in order to discover the truth. If the women WERE aware of the risk and continued nonetheless, it was thought this might have availed D of the offence, but should have been left to the jury in terms of deciding if they did consent.

I think maybe you should focus on the policy element; if women were considered to have given informed consent to contracting STDs from their sexual partners because a mutual friend tells her that the defendant has an STD, the defendant is completely relieved from having to state this himself. Moreover, she should not be held to have been fully informed on this basis as unlike in the case of R v Wilson (the case about branding, allowing consent to be a defence to GBH), there was no discussion over the instigation of GBH in this case, and thus there cannot be considered informed consent.

also consider the effect of a prior sexual relationship where she was told he had gonorrhoea; the other side are likely to argue that the prior relationship meant that she consented to the risk this time, as he still may not have been treated etc., so she was informed that she was perhaps running a risk to at least gonorrhoea. you can rebut this by pointing out the difference in years (2009 - 2014), and also perhaps research if there is a substantial difference between gonorrhoea and syphilis such that she may consent to the former but not the latter, and the differences were such that she could not have been informed.

could you bring in the meaning of consent under the sexual offences act as well perhaps (s.74 SOA), so that she may have chosen and consented to sex with the risk of gonorrhoea, but because she was informed before she would expect to be informed this time?

i find it difficult to see how the other side could argue for informed consent on the basis of hearsay from a friend... but there is a significant lack of authority for your side as well :')
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