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Miscellaneous Offences Against the Person 

Miscellaneous Offences Against the Person
Chapter:
Miscellaneous Offences Against the Person
Author(s):

Paul Connor

DOI:
10.1093/law/9780198806103.003.0010
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Subscriber: null; date: 15 August 2018

1.10.1 Introduction

In addition to the offences examined in the previous chapter, there are further offences against the person that, while not as prevalent, are nevertheless important.

1.10.2 Torture

Torture is a criminal offence under s. 134 of the Criminal Justice Act 1988 (see para. 1.10.2.1). There is a statutory defence of ‘lawful authority, justification or excuse’ to the offence of torture but it is important to note that, irrespective of the prevailing circumstances, there can be no derogation from the rights enshrined in Article 3 of the European Convention on Human Rights, which states that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. However, in a case where a French police officer kneed a prisoner, causing a ruptured testicle, the European Court of Human Rights accepted that general exceptions to criminal offences such as self-defence (see chapter 1.4) can apply (Rivas v France [2004] Crim LR 305).

1.10.2.1 Human Rights—Torture

Article 3 of the Convention states:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Keynote

Article 3 has two ‘arms’ to it, namely, the duty of the State not to inflict torture etc. upon an individual and the correlative duty to prevent others from doing so.

The behaviour envisaged by Article 3 therefore goes far beyond the traditional image of ‘torture’ and its three features can be identified as having the following broad characteristics:

  • Torture—deliberate treatment leading to serious or cruel suffering.

  • Inhuman treatment—treatment resulting in intense suffering, both physical and mental.

  • Degrading treatment—treatment giving rise to fear and anguish in the victim, causing feelings of inferiority and humiliation and debasing the victim

(Ireland v United Kingdom (1979–80) 2 EHRR 25).

Article 3 may be breached, not only by the deliberate application of pain and suffering to an individual, but also by a range of other behaviour. Oppressive interrogation techniques such as sleep deprivation, exposure to continuous loud noise and forcing suspects to adopt uncomfortable postures for prolonged lengths of time have been held to fall within the second and third categories of inhuman and degrading treatment (Ireland v United Kingdom). In each case, it must be shown that the prohibited behaviour went beyond the ‘minimum level of severity’. In determining whether the behaviour did go beyond that level, and under which particular category that behaviour falls, the courts will take into account factors such as the age, sex, state of health and general life experience of the victim.

It has been held by the European Commission on Human Rights that causing mental anguish without any physical assault could be a violation of Article 3 (Denmark v Greece (1969) 12 YB Eur Conv HR special vol.).

Where an individual was alleged to have been punched and kicked by police officers and pulled along by his hair, the Court found that there had been a violation of Article 3 in the form of inhuman and degrading treatment (Ribitsch v Austria (1996) 21 EHRR 573).

The government’s positive duty to prevent individuals from suffering torture or inhuman and degrading treatment has been raised against proceedings to extradite a murder suspect to the United States where it was argued that he would face a long period awaiting the death penalty (Soering v United Kingdom (1989) 11 EHRR 439). It has also been used to prevent the deportation of a political activist to India where it was argued that he would be subjected to inhuman treatment by the authorities (Chahal v United Kingdom (1996) 23 EHRR 413). In each of these cases, the reasonable likelihood of ill-treatment at the hands of the State was held to be capable of giving rise to the positive obligation of the United Kingdom to prevent the extradition/deportation.

1.10.2.2 Offence of Torture

Offence Torture—Criminal Justice Act 1988, s. 134

  • Triable on indictment

  • Life imprisonment

The Criminal Justice Act 1988, s. 134 states:

  1. (1) A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties.

  2. (2) A person not falling within subsection (1) above commits the offence of torture, whatever his nationality, if—

    1. (a) in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another at the instigation or with the consent or acquiescence—

      1. (i) of a public official; or

      2. (ii) of a person acting in an official capacity; and

    2. (b) the official or other person is performing or purporting to perform his official duties when he instigates the commission of the offence or consents to or acquiesces in it.

  3. (3) It is immaterial whether the pain or suffering is physical or mental or whether it is caused by an act or an omission.

Keynote

This offence can be committed anywhere in the world and by anyone (whatever their nationality). ‘Severe pain or suffering’ can be mental as well as physical and can be caused by omission.

The consent of the Attorney-General is needed before bringing a prosecution under s. 134. This offence could be committed by police officers in the course of their duties, and may have significant implications for Custody Officers.

1.10.2.3 Defence

The Criminal Justice Act 1988, s. 134 states:

  1. (4) It shall be a defence for a person charged with an offence under this section in respect of any conduct of his to prove that he had lawful authority, justification or excuse for that conduct.

1.10.3 Poisoning

Offence Poisoning—Offences Against the Person Act 1861, s. 23

  • Triable on indictment

  • 10 years’ imprisonment

The Offences Against the Person Act 1861, s. 23 states:

Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of [an offence]…

Keynote

In R v Kennedy (No. 2) [2008] 1 AC 269, the House of Lords held that s. 23 creates three distinct offences:

  1. 1. Where D administers the noxious thing directly to V, as by injecting V with the noxious thing, holding a glass containing the noxious thing to V’s lips, or spraying a noxious thing (e.g. CS gas or ammonia) in V’s face. This might include the use of CS spray by police officers but the ‘administering’ would also have to be shown to be both unlawful and malicious.

  2. 2. Where D does not directly administer a noxious thing to V but causes an innocent third party (T) to administer it to V. If D, knowing a syringe to be filled with poison, instructs T to inject V, when T believes the syringe to contain a legitimate therapeutic substance, D would commit this offence.

  3. 3. Where the noxious thing is not administered to V but is taken by him/her, provided D causes the noxious thing to be taken by V and V does not make a voluntary and informed decision to take it. If D puts a noxious thing in food which V is about to eat and V, ignorant of the presence of the noxious thing, eats it, D commits the offence.

The administering must be unlawful. Consent will normally negate unlawfulness, but not where it is procured by deception or where considerations of public policy invalidate that consent. A person cannot, for example, validly consent to being injected with a dangerous drug, such as heroin, unless this is done for bona fide medical reasons (R v Cato [1976] 1 WLR 110). This offence would certainly cover the administering of a controlled drug to another or inducing another to take a controlled drug.

Other than the requirement for ‘malice’ (which means subjective recklessness), this offence is mainly concerned with the consequences caused to the victim and not the defendant’s intentions (the consequences being that a person’s life was endangered or the infliction of grievous bodily harm).

‘Causing to be administered’ would cover indirect poisoning or even inducing someone to poison him/herself.

Whether a substance is poisonous, destructive or noxious will depend on both its quality and quantity. Some substances may become poisonous or noxious only in large amounts whereas others may be so per se.

An example of this offence can be seen in R v MK [2008] EWCA Crim 425 where a 23-year-old offender pleaded guilty to the offence under s. 23. He had given a three-year-old child in his care a teaspoon full of methadone and planned to obtain a urine sample from the child, which would be free from Class A drugs but positive for methadone. The child suffered a life-threatening illness as a result. The offender did not admit to the doctors treating the child what he had done, so the child’s suffering was prolonged; he was sentenced to four and a half years’ imprisonment.

1.10.3.1 Poisoning with Intent

Offence Poisoning with Intent—Offences Against the Person Act 1861, s. 24

  • Triable on indictment

  • Five years’ imprisonment

The Offences Against the Person Act 1861, s. 24 states:

Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, with intent to injure, aggrieve, or annoy any such person, shall be guilty of a misdemeanour…

Keynote

The actus reus of this offence is similar to that under s. 23 (administering etc.) but with this offence there is no requirement to prove any consequences of a defendant’s actions although the intent to injure, aggrieve or annoy must be proved.

Examples of this offence include:

  • giving a woman a drink which contained a large quantity of a Class C drug causing her to fall into a deep sleep for a day;

  • allowing two young boys to inhale isobutyl nitrate so that they became dizzy and unwell;

  • throwing a mixture of chilli, black pepper and turmeric into the face of a victim, causing permanent damage to her eyes.

Section 24 has been used successfully to prosecute defendants who ‘spike’ their victims’ drinks with drugs such as ecstasy (R v Gantz [2004] EWCA Crim 2862) or who ply children with such drugs for improper purposes. The overstimulation of a victim's metabolism that such action is intended to cause can be viewed as a type of injury (R v Hill (1986) 83 Cr App R 386 where the offender administered slimming pills to young boys in order to keep them awake).

There is a further, more extreme offence of using noxious substances to cause harm or intimidation under the Anti-terrorism, Crime and Security Act 2001, s. 113. This offence, which carries 14 years’ imprisonment on indictment, occurs where a person takes any action which:

  • involves the use of a noxious substance or other noxious thing;

  • has or is likely to have an effect set out below; and

  • is designed to influence the government or to intimidate the public or a section of the public.

The effects are:

  • causing serious violence against a person, or serious damage to property, anywhere in the world;

  • endangering human life or creating a serious risk to the health or safety of the public or a section of the public; or

  • inducing in members of the public the fear that the action is likely to endanger their lives or create a serious risk to their health or safety.

1.10.4 False Imprisonment

Offence False Imprisonment—Common Law

  • Triable on indictment

  • Unlimited maximum penalty

It is an offence at common law falsely to imprison another person.

Keynote

The elements required for this offence are the unlawful and intentional/reckless restraint of a person’s freedom of movement (R v Rahman (1985) 81 Cr App R 349). Locking someone in a vehicle or keeping him/her in a particular place for however short a time may amount to false imprisonment if done unlawfully. An unlawful arrest may amount to such an offence and it is not uncommon for such an allegation to be levelled at police officers against whom a public complaint has been made. On the other hand, making a lawful arrest will mean that the person was lawfully detained and no offence would be committed in such circumstances.

In R v Shwan Faraj [2007] EWCA Crim 1033, the court stated that there was no reason why a householder should not be entitled to detain someone in his house whom he genuinely believed to be a burglar; he would be acting in defence of his property in doing so (a lawful detention of the person). However, a householder would have to honestly believe he needed to detain the suspect and would have to do so in a way that was reasonable.

1.10.5 Kidnapping

Offence Kidnapping—Common Law

  • Triable on indictment

  • Unlimited maximum penalty

It is an offence at common law to take or carry away another person without the consent of that person and without lawful excuse.

Keynote

The required elements of this offence are the unlawful taking or carrying away of one person by another by force or fraud (R v D [1984] AC 778). Force includes the threat of force (R v Archer [2011] EWCA Crim 2252). These requirements go beyond those of mere restraint needed for false imprisonment. Parents may be acting without lawful excuse, for instance, if they are acting in breach of a court order in respect of their children (see chapter 1.13). The ‘taking or carrying away’ need not involve great distances as a short distance (just a few yards/metres) will suffice (R v Wellard [1978] 1 WLR 921).

The taking or carrying away of the victim must be without the consent of the victim. If the victim consents to an initial taking but later withdraws that consent, the offence would be complete. If the consent is obtained by fraud, the defendant cannot rely on that consent and the offence will be made out (R v Cort [2003] EWCA Crim 2149). In R v Hendy-Freegard [2007] EWCA Crim 1236 the defendant was a confidence trickster who pretended to be an undercover agent working for MI5 or Scotland Yard. He told his victims that he was investigating the activities of the IRA and that his investigations had revealed that they were in danger. This allowed him to take control of their lives for years and in doing so to direct them to move about the country from location to location. The defendant was eventually arrested and convicted of kidnapping on the basis that the offence of kidnapping had occurred as his victims had made journeys around the country which they had been induced to make as a result of the defendant's false story. The defendant successfully appealed against the kidnapping conviction, with the court stating that causing a person to move from place to place when unaccompanied by the defendant could not itself constitute either taking or carrying away or deprivation of liberty, which were necessary elements of the offence.

The state of mind required for this offence is the same as that for false imprisonment, indeed the only thing separating the two offences seems to be actus reus (R v Hutchins [1988] Crim LR 379).

1.10.6 Hostage Taking

Offence Hostage Taking—Taking of Hostages Act 1982, s. 1

  • Triable on indictment

  • Life imprisonment

The Taking of Hostages Act 1982, s. 1 states:

  1. (1) A person, whatever his nationality, who, in the United Kingdom or elsewhere—

    1. (a) detains any other person (‘the hostage’), and

    2. (b) in order to compel a State, international governmental organisation, or person to do or abstain from doing any act, threatens to kill, injure or continue to detain the hostage, commits an offence.

Keynote

The consent of the Attorney-General is needed before bringing a prosecution for this offence. To be guilty, a defendant must detain a person and threaten to kill, injure or continue to detain him/her with the intentions outlined under s. 1(1)(b). It is therefore an offence of ‘specific’ intent (see chapter 1.1).