Skeleton Argument

Skeleton Argument











ON BEHALF OF THE APPELLANT               ________________________________________________________________


  1. This is an appeal against the decision of the Court of Appeal to uphold the conviction of Mr Dryden.


First Ground of Appeal


  1. English Law does not specifically exclude the defence of consent where grievous bodily harm under Section 20 of the Offences Against the Persons Act 1861 is concerned. This principle is seen in the exceptions outlined in the obiter dicta of R v Brown (Anthony Joseph) [1993] 2 W.L.R. 556 under which consent may be considered as a defence.


  1. Consent is available as a defence to grievous bodily harm caused during sport (inter alia) as in the case of R v Barnes (Mark) [2005] 1 W.L.R 910, providing the conduct or risk of injury in within the rules of the game. The defence is only to be denied where the conduct is “sufficiently grave” to be properly categorised as criminal. Other exceptions include Horseplay as in R v Jones (1986) 83 Cr. App. R. 375.


  1. Consent is available as a defence where death (in particular unlawful act or constructive manslaughter) is concerned. As in the case of R v Slingsby (Simon) [1995] Crim LR 570.


  1. The availability of consent as a defence where the victim dies or suffers grievous bodily harm under Section 20, depends on particular facts. Although persuasive, R v Lee [2006] 3 NZLR 42 illustrates similar facts to that of the Defendant’s and therefore consent should be available as a defence.


Second Ground of Appeal


  1. In order to satisfy the requirements of constructive manslaughter, the defendant must first have committed an unlawful act as in R v Mitchell [1983] 2 W.L.R 938, though neither exorcisms nor rough sports are inherently unlawful under English law.


  1. As ritual circumcision and religious mortification are amongst exceptions outlined in R v Brown (Anthony Joseph) [1993] 2 W.L.R 556, exorcisms should fall within these parameters, seen in R v Lee [2006] 3 NZLR 42. When considering religion, the court should interpret previous precedent in line with the Human Rights Act 1998, particularly Article 9 and Section 13.


  1. Distinction must be made between deliberate infliction of injury and consent to lawful activity in which injury was accidentally caused R v Slingsby (Simon) [1995] Crim LR 570.


  1. Injury must go beyond what a player can reasonably be regarded as having accepted when participating in a sport in order for it to become unlawful R v Barnes (Mark) [2005] 1 W.L.R. 910. Respect must be paid to the social utility of such sports.


  1. Again, it is important to consider the intention of the defendant regarding the s20 offence as in R v Slingsby (Simon) [1995] Crim LR 570.