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Online Resource Centre Demonstration

Chapter 06

Para 6.12  Gillick v West Norfolk and Wisbech Area Health Authority was applied in respect of medical treatment for sexually transmitted infections and abortions in respect of children in R (on the application of Axon) v Secretary of State for Health [2006] QB 539, Administrative Court (Silber J).

Para 6.26  For a critical assessment of the law relating to the use of force for disciplinary purposes by a parent, see Keating ‘Protecting or Punishing Children: Physical Punishment, Human Rights and English Law Reform’ (2006) 26 LS 394.

Paras 6.31 and 6.39  In Dhaliwal [2006] 2 Cr App Rep 348, the Court of Appeal applied the statements in Chan-Fook [1994] 2 All ER 552, CA, and Ireland; Burstow [1998] AC 147, [1997] 4 All ER 225, HL, to the effect that ‘bodily harm’ for the purposes of the definitions of actual bodily harm and grievous bodily harm includes an identifiable psychiatric injury brought about by psychological factors, i.e. a medically recognized illness (such as post-traumatic stress disorder, or battered wife syndrome, or reactive depression), but not panic or a hysterical or nervous condition. The Court of Appeal declined to hold that a psychological injury not amounting to an identifiable psychiatric injury could constitute bodily harm. It stated that the distinction between an identifiable psychiatric injury and any other psychological condition drawn in respect of the criminal law was consistent with the civil law in respect of claims for damages for personal injury, and that to extend ‘bodily harm’ to cover a medically diagnosed psychological condition not resulting in an identifiable psychiatric injury, as the prosecution had argued, would introduce an element of uncertainty about the true ambit of the relevant legal principle to which the concept of ‘bodily harm’ in the OAPA 1861 applied (which would be compounded by the inevitable problems of conflicting medical opinion in a developing area).

Para 6.42 For an examination of (1) whether actual knowledge of HIV positive status is (or should be) necessary in order to impose liability under the OAPA 1861, s 20 for the reckless transmission of HIV, and (2) whether actual knowledge of the risks of transmission of HIV is (or should be) required for such liability, see Ryan ‘Reckless Transmission of HIV: Knowledge and Culpability’ [2006] Crim LR 981.

Para 6.54 In the second line of the seventh paragraph, the word ‘altered’ should be ‘uttered’.

Para 6.55  The Crime and Disorder Act 1998, s 28(1)(b) covers hostility in a general sense towards members of a racial or religious group, irrespective of whether any such person features specifically in the case. Hostility towards one member of a racial or religious group based on his membership of that group is sufficient to qualify under s 28(1)(b) so long as it forms part of the motivation for the conduct: Taylor v DPP (2006) 170 JP 485, DC.

Para 6.59  The exercise by an individual of his right to freedom of expression under ECHR, Art 10 (in the instant case by flying aircraft with banners referring to the victim) is capable of constituting a breach of the prohibition of harassment provided that all the necessary requirements are satisfied and that the effect on the victim is out of all proportion to the value to be attached to the exercise of that right by the method chosen: Howlett v Holding [2006] All ER (D) 162 (Jan), Eady J.

The instigation of secret surveillance of another is capable of constituting a course of conduct amounting to harassment, provided that all the necessary requirements are satisfied, and this is so even where the actual act of surveillance may not of itself alarm that person because it is secret if that person is aware that it could take place at any moment and thereby cause harassment, alarm or distress: Howlett v Holding.

In Howlett v Holding Eady J thought that the defence of the prevention or detection of crime under the Prohibition of Harassment Act 1997, s 1(3) (see note 302) was framed with law enforcement agencies in mind. He added that, even if a private individual was entitled to avail himself of it, he would have to show that there was, objectively judged, some rational basis for the conduct to be undertaken to prevent or detect crime.