Legal Analysis of Criminal Liability in the Case of Joseline and Max in the United Kingdom

In relation the abovementioned case study herein, concerning Joseline and Max, we could find several kinds of crimes that have been committed by Max and that the liability of Max shall be of in several different criminal categories herein. In this answer, we shall critically consider and analyse the circumstances of Joseline and Max and consider under which criminal statue of United Kingdom, Max shall be held liable and for Joseline’s current situation where she have undergone anxiety disorder due to such stressful interaction with Max, in which ways Joseline can sue Max for the criminal acts committed by him herein.

Thus, after a careful consideration and critical analysis of the abovementioned case herein, it can be said that Max has committed the act of catfishing Joseline by establishing a fake identity through online portals and Social Medias herein. Secondly, Max has sexually manipulated Joseline in providing him with a private video which he later used as a form of threatening and blackmailing Joseline herein. Thirdly, as Max knew every personal details of Joseline, he broke and enter Joseline’s apartment on the night when she was intoxicated and stole the original records of the Joseline herein. In the light of the abovementioned analysis, the liability of Max in the instant case study can be categorized under three criminal acts –

Whatsapp

Obtaining pornographic material by manipulation – Protection from Harassment Act, 1997

Revenge Porn – Criminal Justice and Courts Act, 2015

Threatening and blackmailing – Public Order Act, 1986

Acts of catfishing – Catfishing Liability Act, 2016 and Fraud Act, 2006

Breaking and Entering, Burglary – Theft Act, 1968

Herein, we shall discuss each of the liabilities of Max and how his acts shall be incriminated under the abovementioned Acts herein.

Obtaining Pornographic Material by manipulation

After critically analyzing the abovementioned case scenario, it can be seen that, after finding Joseline beautiful and attractive, Max, being in a position to manipulation, used his boss’s Social Media account to talk to Joseline and thus created a fake image and promised her of a music contract and thereby asked for a private video which he claimed was in connection of the abovementioned music video herein. Therefore, he obtained the abovementioned private video and thereby forced and pressured her for more of such videos and images which she refused. In answer to such refusal and ignorance, Max sent many misogynistic slurs to Joseline and also called her and played the video in order to intimidate her.

Thus, as per Protection from Harassment Act, 1997 herein, Joseline shall reserve the right file complaint before the Police as Max regularly intimidated her by replaying the video he obtained by manipulation and thus, under Protection from Harassment Act, 1997, she can use the term of having greater fear that violence shall be used if she refuses to comply with the request of Max herein. In the case of Green v DB Group Services, it was held that a prolonged workplace bullying by intimidating the victim shall come under this Act and the accused shall be held liable for a criminal offence herein.

Revenge Porn

The concept of revenge porn is of modern nature and recently this particular concept has been seriously considered by the Criminal Justice and Courts Act, 2015 herein in the United Kingdom. According to a 2016 Crown Prosecution Service (CPS) report, it was held that more than 200 people were prosecuted under the definition of revenge porn on the year the term revenge porn had been added in the abovementioned Act herein.

In relation to the abovementioned case herein, Max is in possession of a private video of Joseline which he obtained by manipulation and catfishing and thus, Joseline can report the act under the category of revenge porn under the Criminal Justice and Courts Act, 2015 herein. Although, in the abovementioned case study, Max did not explicitly leaked the abovementioned private video to any online portal or Social Media but Joseline could request for an early inspection of such revenge porn and file a complaint with the police for the purpose of taking actions to retrieve the abovementioned private video of Joseline herein.

Threatening and Blackmailing

Protection From Harassment Act, 1997, s.4

Ibid

Green v DB Group Services (UK) Ltd [2006] EWHC 1898

CPS (2016); “Violence against Women and Girls crime report 2016-2017”, 10th edition.

After critically analyzing the abovementioned case study herein, it can be held that Max used potential threatening and blackmailing to obtain more of such nude images and videos from Joseline and also threatened her with the abovementioned video for the purpose of talking to her. He intimidated her repeatedly with the help of the abovementioned video herein and such act of Max violates section 5 of the Public Order Act, 1986 which states that if the accused uses any “threatening words, slurs, abusive or malicious words” in order to cause the victim distress of any kind or “any visual representation, writing or behavior” likely to cause harassment to the victim, it shall come under the purview of a criminal offence under the Public Order Act of 1986. Also, section 5 of the Public Order Act, 1986 shall also form a part of cyber bullying as well. In the case of Holloway v DPP, it was held by the judge that for the purpose of enabling section 5 of the abovementioned Act, it is necessary that the accused has used any threatening or abusive words in order to intimidate the victim and whether the measure of distress caused to the victim shall not be held to be a measure herein. The ipso facto act of the accused shall be enough for the purpose of incriminating the accused under this act herein.

Thus, Max used several slurs and used the video of the abovementioned nature against Joseline to cause her immense distress and thus he shall be held liable under section 5 of the Public Order Act 1986 herein.

Catfishing

Although it is of controversial nature whether the act of catfishing shall be held illegal under the ambit of the United Kingdom law, the act of catfishing through Social Media or online portals has been regarded as of serious nature in bringing an injunction against the accused person herein and the person can be prosecuted under the Catfishing Liablity Act, 2016. If the person commits any act of fraud while catfishing, the same act or criminal breach of trust shall be prosecuted under the Fraud Act, 2006 herein as well.

Thus, in the terms of the abovementioned case, Max has used his boss, DJ Mimi’s account to catfish Joseline herein. Joseline, being a huge fan of DJ Mimi, caught under the trap and talked

Holloway v DPP [2004] EWHC 2621

Adam Lusher, ‘MPs urged to pass law against online ‘catfish’ imposters tricking women into sex’ (Independent, 17 Jul 2017) < https://www.independent.co.uk/news/uk/home-news/catfish-catfishing-dating-websites-fake-dating-profiles-sex-online-predators-mtv-legal-illegal-law-a7846011.htm l> accessed 8th June, 2021

and shared private information to Max, believing him to be DJ Mimi. Also, under the impression of DJ Mimi, Max has promised Joseline to provide her with a music contract which in turn caused Joseline to cancel all her other contracts as well. Thus, under the circumstances as mentioned herein, Max shall be held liable under the Catfishing Liablity Act of 2006 where Joseline can move before the courts of England for the purpose of getting an injunction against Max. Also, for the purpose of breaching the trust of Joseline, she can also move under the Frauds Act, 2006 in civil nature and ask for compensation for the distress Max had caused her by false promise and also for the other music contracts she lost due to the false promise made by Max herein.

Burglary

In the last part of the abovementioned case study, it was stated that Max knew various information about Joseline including her address. One night, when he knew that Joseline would be unconscious and drunk, he chose to break and enter the apartment of Joseline herein and steal the original records of Joseline from her possession herein.

Thus, under the purview of section 9 of the Theft Act, 1968, Max shall be held liable for Burglary as he fulfills all the essential features given under this section herein. While Joseline was unconscious, he entered into her apartment illegally which shall constitute breaking and entering and he stole all the original music records which Joseline possessed. In the case of R v. Brown, it was held that it does not matter from where the defendant had entered the building, it shall constitute as breaking and entering under the Theft Act, 1968. Under section 26(2) of the Criminal Justice Act, 1991 which substitute the Theft Act, 1968, Max can be subjected to a prison sentence of 10 years and fine.

Conclusion

Thus, herein we have discussed all the potential criminal liability under which Max can be prosecuted for the acts he committed as have been described in the abovementioned case study. Also, Joseline can hold him liable under the Communication Act, 2003 and Computer Misuse Act, 1990 as well.

R v. Brown, (1985) 71 Cr App R 15

Theft Act, 1968, s. 9(3)

Bibliography

Articles

CPS (2016); “Violence against Women and Girls crime report 2016-2017”, 10th edition.

Adam Lusher, ‘MPs urged to pass law against online ‘catfish’ imposters tricking women into sex’ (Independent, 17 Jul 2017) < https://www.independent.co.uk/news/uk/home-news/catfish-catfishing-dating-websites-fake-dating-profiles-sex-online-predators-mtv-legal-illegal-law-a7846011.htm l> accessed 8th June, 2021

Legislations

Protection from Harassment Act, 1997

Theft Act, 1968

Case laws

Green v DB Group Services (UK) Ltd [2006] EWHC 1898

Holloway v DPP [2004] EWHC 2621

R v. Brown, (1985) 71 Cr App R 15

Introduction

The concept of morality in the core of Criminal law or Criminology is of utmost importance. Morality is inherent in criminology. The legal concept of crime is highly based on the topic of morality of a society collectively. What does constitute as a crime? A criminal act or a crime should be an act committed by a person who has violated a particular group moral or custom or an act which is despised by the society as a whole. The tie between morality, society and the recognition of crime in a society is of high value and it demands a serious thread of discussion. Herein, we shall discuss the inherent effect of morality on the concept of crime and how socialcontext influences the concept of consent, harm and responsibility/accountability under the criminal law referring one offence in the nature of assault and one sexual offence herein.

Crime, morality and society

Since the inception of time and framing of the legal statues, the concept of morality has been injected in the framing of the criminal codes. With the shifting social contexts, the law has evaluated from time to time and provided us with amended criminal statues to deal with several types of criminal acts that are prevailed within the State herein.

Although it seems true enough from the surface that the concept of criminal act and the notion and perception of crime inevitably arises from the concept of morality but in reality, society plays a much bigger role in controlling crime than anything else. The social context of each and every crime is extremely important and it is not just morality that evenly governs all the acts herein. The social context can be called the shifting sands of opinion and it changes with each and every case, depending on the social context of that particular case and how it has been applied in a particular case herein. Immorality and criminal law do not always go hand in hand and these two words are not of similar meaning. However, with the social context in work, the immorality slips away with the applied social context and roots that has fogged the minds of the jury. Thus, it can be well assumed that, when a particular social context is on working, crime and morality plays at a length and everything is judged from the standpoint of the particular social context and morality often takes the backseat in such cases herein.

We shall discuss the concept of morality, social context and the framing of criminal responsibility in reference to one assault and one sexual offence herein.

The Concept of consent in Sexual Offence

Sexual offences Act, 2003 of United Kingdom defines and deals with the sexual offences of the State and consent has been defined under Act with two presumptions – one, where there has

Jonathan Jackson and Ben Bradford; “Crime, policing and social order: on the expressive nature of public confidence in policing” (2009); LSE Research Online, 60(3), p. 493-521

Chris Ashford, Alan Reed; “Lived Experiences,Bodily Autonomy and theFraming of Criminal Responsibility” (2020); The Journal of Criminal Law, 84(6) p. 523

Richar C Fuller; “Morals and Criminal Law” (1942); Journal of Criminal Law and Criminology, V. 32. Issues 6, p. 624-630

Sexual Offence Act, 2003, s.74 & 75

been a chance of providing with express consent and second, where the victim has been under a state where she could not express any consent of whatsoever form. This Act expressly takes recognition of rape and assault by penetration in different forms and provides a lot of explanation for the purpose of providing clear definition on the subject of sexual offence.

However, the Sexual Offence Act, 2003 also faces various criticisms in respect to the definition of consent which is inconclusive and uses words like “freedom” and “choice” has been regarded as problematic to provide with a conclusive end when the case goes to the court. And among such several criticisms, one of the most important parts of this Act is the intoxicated consent and sexual offence done in the state of intoxication and how this Act almost does not take any recognition to that effect.

Rape and assault in the nature of penetration – Intoxicated Consent

The subject of intoxicated consent is one of the drawbacks of the Sexual Offence Act, 2003. A slight version of intoxicated consent in rape or penetrative assault has been given under section 72(2)(f) of the Act of 2003 herein which states that consent shall not be accepted only if the consent has been given by the victim in a “state of overpowered/subdued” and such consent shall only be invalid if the substance has been administered in their body “against their will”

In the case of R v. Bree, the subject matter of intoxicated consent or in colloquial language, drunken consent in rape cases was explored and challenged however, it does not provide much scope for the reformation of the law herein. The Court of Appeal established that “drunken consent is still consent”. Thus, as rape has been defined under Part –I of the Sexual Offence Act, 2003, the concept of actus rea has been established yet in the part of establishing the mens rea , it lacks substance. Consent in the drunk state or intoxicated consent in rape is still considered a valid form of consent which might match the law of morality but from the social context of the subject, it is inadequate and provides less importance to gender crimes. The same concept of consent was followed in the case of R v.

Ibid, Part - I

Ibid, s.2

Sexual Offence Act, 2003, s.75(2)(f)

[2008] Q.B. 131

Bromwich, where the court heavily relied on the morality of the girl’s action to invite a boy to her house for a drink and her intentions afterwards and prevailed the fact that intoxicated consent shall be regarded as a consent as the previous actions of the victims shows clear intentions

Again, in the case of R v. Hysa, the complainant was intoxicated with marijuana and she did not remember consenting to a sexual intercourse. However, the judge ruled in the favour of the accused stating that no clear case of “consent not been given” could be found herein.

Thus, from the above discussion, it is clear that rape in the state of intoxication where the victim was intoxicated on her own will, shall not be regarded as a sexual offence herein.

The Concept of Harm in assaults

The concept of several types of assaults has been included in the statue of Offences against Persons Act, 1861 which deals with a series of various homicides, sexual offences and assaults. While this Act is outdated and the definitions under this particular act have many problematic aspects, here we shall discuss with one of such assaults.

Assaults occasioning Actual Bodily Harm

Assault occasioning actual bodily harm or ABH has been defined under Offences Against Persons Act, 1861 as when the accused causes an assault or battery in the nature as much as it causes an actual bodily harm to the victim herein. However, in respect to morality and social context in the recent times, the term “bodily harm” mentioned in the instant type of assault is problematic from the perspective of medical terminology. As it has been reported by the reports of the Law Commission of the United Kingdom herein, the assaults mentioned under section 47, 18 and 20 of the Offences against Persons Act, 1861 only includes bodily harm as physical harm and completely overlooks the mental or psychological harm caused by such assault or battery herein.

[2012] EWCA Crim 673 [12].

Order Now

[2007] EWCA Crim 2056

Offences Against Persons Act, 1861, s.47

CONSENT AND OFFENCES AGAINST THE PERSON A Consultation Paper (1994); Law Commission Report, No. 134

In the case of R v. Ireland, the mental injury caused by an ABH is considered and it has been said that the development of a psychological injury cannot be expected from a statue of 1861. Again in the case of R v. Burstow, it was held by the judges that the notion of section 47 of the instant Act of 1861 is of Victorian notion herein.

Conclusion

Thus, criminal law and morality might have a strong ground if we consider from the standpoint of evaluating a statue and other notions of criminal act but the social context and the changing status of customs or morality cannot be ignored. The changing notion of morality might not be visible and it can only be traced in respect of the social opinion and how the social opinion is changing from the perspective of the social notions. Society and morality as a group activity is not something static and it needs amendments from the changing mindset of the people and the Victorian concept of criminal law which has been instructed from the clear standpoint of just morality cannot be accepted and injected in the acts of crime anymore.

[1998] AC 147

[1997] UKHL 34

Bibliography

Journal

Jonathan Jackson and Ben Bradford; “Crime, policing and social order: on the expressive nature of public confidence in policing” (2009); LSE Research Online, 60(3), p. 493-521

Chris Ashford, Alan Reed; “Lived Experiences,Bodily Autonomy and theFraming of Criminal Responsibility” (2020); The Journal of Criminal Law, 84(6) p. 523

Richar C Fuller; “Morals and Criminal Law” (1942); Journal of Criminal Law and Criminology, V. 32. Issues 6, p. 624-630 CONSENT AND OFFENCES AGAINST THE PERSON A Consultation Paper (1994); Law Commission Report, No. 134

Legislations

Sexual Offence Act, 2003

Offences Against Persons Act, 1861

Case Laws

R v. Bree, [2008] Q.B. 131

R v. Hysa, [2007] EWCA Crim 2056

R v. Bromwich, [2012] EWCA Crim 673 [12].

R v. Ireland, [1998] AC 147

R v. Burstow, [1997] UKHL 34

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