UK SUPREME COURT REMEMBER THAT YOU CAN ARGUE ON PUBLIC

POLICY GROUNDS
INTRODUCTION
May it please your Lordship, my name is JARVIS GO and I appear in this case
with my learned senior appellant FRANZISKA KAHR on behalf of the appellant,
DAMIEN DRYDEN.
My learned friends ISABELLA NUBARI

and HELEN WILLIAMS appear on behalf of

THE CROWN, OR REGINA, as the respondent.

Before contending the grounds of appeal, would your Lordship appreciate a brief
reacquaintance with the facts?

FACTS OF THE CASE:

There are two issues at hand here. One, I shall helpfully label the EXORCISM
issue, and the other the FOOTBALL MATCH issue.
EXCORCISM:
Respondent is the pastor at Munchester Church of the Holy Crown. On the
morning of Sunday 15th April last year, Dryden officiated at an exorcism during
the service. The person being exorcised was Miss Mary Meek (Meek), one of his
parishioners who had been possessed by the Devil and had voluntarily put
herself forward for exorcism. Dryden was assisted by his two associates, who
held Meeks arms and legs while Dryden repeatedly sat on the chest and
stomach of the woman, throttled her, and shouted at the Devil to be gone. Meek
was seen to struggle violently, but these were assumed by Dryden and his
helpers merely to be the signs of the Devil being driven out. After five hours,
Meek died from strangulation and internal bleeding.
FOOTBALL MATCH:
Dryden plays in defence for the Munchester Manlychests, an amateur Sunday
League football team. That same afternoon, Dryden played in the regular
football match at 3pm for the Munchester Manlychests. During the match Dryden
was involved in an unfortunate incident, which involved him tackling an opposing
striker, Harry Flashhart (Flashhart), high up the legs, resulting in Flashharts
leg breaking at the knee.

CONVICTION:
Later that day Dryden was arrested by police on two counts: manslaughter by
constructive (unlawful act) manslaughter, and for maliciously inflicting grievous
bodily harm, pursuant to SECTION 20 OF THE OFFENCES AGAINST THE PERSON
ACT 1861.

At first instance, Dryden was convicted of both counts. He appealed to the Court
of Appeal (Criminal Division) on the basis that the judge, Grudge J had erred in
his directions to the jury in two of his instructions: (1) where death or grievous
bodily harm occurs, consent can never be a defence; and (2) even if consent
may exceptionally be a defence even in instances of death or grievous bodily
harm, both incidents involved inherently criminal violence and as such could not
be lawfully consented to.

The Court of Appeal held that the Court of First Instance had not erred in its
judgment.

The respondent thus appeals to the Supreme Court of the United Kingdom on the
following grounds:

Then go on to introduce your grounds of appeal:

My Lords, in the current case there are two grounds of appeal,
the first is that English law does not specifically exclude the defence of consent
where the victim dies or suffers grievous bodily harm. All cases depend on the
particular facts;
and the second concerns the fact that neither exorcism (as a recognised religious
practice) nor rough sports are inherently unlawful and as such consent is a good
defence provided that the harm was not inflicted deliberately (which is was not)
and that the victim consented (which they both did).

My Lords, I will be contending the second ground since my learned senior has
argued so eloquently and logically for the first
In relation to the second ground your Lordships, I have 3 submissions to make.

Firstly, dealing with the question lawfulness, I submit that both exorcism and
rough sports are inherently lawful, exorcism and rough sports were not in the
special category of actions that was treated as fundamentally unlawful even with
consent.

I further submit that there is a strong public policy incentive to

continue to treat these acts as lawful.

Secondly, that the injuries suffered by both the exorcism victim and the football
match victim were NOT inflicted deliberately. I submit that in the exorcism, it any
injuries were in fact, NOT intended, and was the unforeseen and unwanted effect
of an intention to heal, rather than harm.
I submit that in the football match, the injury was directly a result of normal
activity within a football match, and that it fell comfortably within the reasonable
standards of play.
And thirdly, that the victims validly consented to the type of harm expected in
both the EXORCISM and the FOOTBALL MATCH.

MAIN ARGUMENT:
1st submission

In English law at present, there are two methods of determining what activities
fall under the lawful and unlawful categories.
THE GENERAL RULE DOCTRINE AND THE REVERSE DOCTRINE.

GENERAL RULE DOCTRINE SET OUT IN R V BROWN

There is a basic position, which I would call the general rule doctrine set out in
Regina and Brown [1993] in the UK HOUSE OF LORDS 19.
(WOULD YOUR LORDSHIPS REQUIRE A BRIEF REACQUAINTANCE WITH THE
FACTS?)

START OF ARGUMENT:
LORD JAUNCEY OF TULLICHETTLE referred to a general rule established by Justice
Cave in Regina and Coney: As a general rule, although it is a rule to which there
are well established exceptions, it is an unlawful act to beat another person with
such a degree of violence that the infliction of bodily harm is a probable
consequence, and when such an act is proved, consent is immaterial."
He goes on to quote Justice Swift in that He went on to consider exceptions to
the general rule that an act likely or intended to cause bodily harm is an unlawful
act. Such exceptions included friendly contests with cudgels, foils or wrestling
which were capable of causing bodily harm, rough and undisciplined sports or
play where there was no anger and no intention to cause bodily harm and
reasonable chastisement by a parent or a person in loco parentis also have
added necessary surgery
with the result that consent of the victim is no answer to anyone charged with
the latter offence or with a contravention of section 20 unless the circumstances

fall within one of the well known exceptions such as organised sporting contests
and games, parental chastisement or reasonable surgery.
Both Lord Templeman and Lord Lowry follow the same guidelines, establishing
that the general assumption was that activities causing actual bodily harm was
assumed to be unlawful, except for several exceptions, justified on public policy
grounds.
LORD TEMPLEMAN in R v Brown: Even when violence is intentionally inflicted
and results in actual bodily harm, wounding or serious bodily harm the accused is
entitled to be acquitted if the injury was a foreseeable incident of a lawful
activity in which the person injured was participating. Surgery involves
intentional violence resulting in actual or sometimes serious bodily harm but
surgery is a lawful activity. Other activities carried on with consent by or on
behalf of the injured person have been accepted as lawful notwithstanding that
they involve actual bodily harm or may cause serious bodily harm. Ritual
circumcision, tattooing, ear-piercing and violent sports including boxing are
lawful activities.

FOOTBALL MATCH AND EXORCISM FALLING UNDER THE EXCEPTIONS MADE OUT
IN THE R V BROWN DOCTRINE.
FOOTBALL MATCH
I submit that following this general rule doctrine, it is the activities in the
FOOTBALL MATCH easily fall under the ambit of exceptions to the inherent
unlawfulness of violence. This is supported by RATIO from the case REGINA AND
BARNES [2004] ENGLAND WALES COURT OF APPEAL Crim 3246, [2005] 2 All ER,
where it was decided that contact sports, including the sport of football (which
was the issue in this case), fell under inherently lawful activities which might
involve violence.
EXORCISM
I submit that equally so for EXORCISM, would qualify as an exception to the
general rule doctrine.

Exorcism as a recognised religious practice, and with recognised use in the 21 st

century, is likened to medical treatment it is done with the intent to heal and to
ease suffering and pain on the person it is conducted on.
I submit that would qualify as an exception based on the criteria set out by Lord
Templeman. Demonic possession can be seen as an ailment or injury afflicting
the patient, Miss MARY MEEK. Miss MEEK voluntarily sought treatment for her
ailment, approaching the qualified pastor Dryden. All Mr Dryden was doing, was
performing in his role as a qualified pastor, trying to bring comfort and solace to
Ms Meek through the action of exorcism. All these facts are very analogous to a
surgeon operating on a consenting patient. To quote Lord Templeman: Surgery
involves intentional violence resulting in actual or sometimes serious bodily harm
but surgery is a lawful activity..
Exorcism in this context could not be further away from the sadomasochism that
was held as inherently unlawful. Pleasure was not derived from the pain inflicted.
The pain and injuries inflicted on Ms Meek was but a means to an end, and the
intention was to heal, rather than hurt her. The injuries were, as such, incidental
and exorcism could not be likened to sadomasochism.

PUBLIC POLICY GROUNDS:

There are also strong public policy grounds to support the inherent lawfulness of
exorcism. With the introduction of Article 9 of the European Convention on
Human Rights which provides a right to freedom of thought, conscience and
religion. This includes the freedom to manifest a religion or belief in worship,
teaching, practice and observance, subject to certain restrictions that are "in
accordance with law" and "necessary in a democratic society".
Viewed in context with the shift away from the paternalistic philosophy used in
Brown to a philosophy that favours individual rights and autonomy in the UK, I
submit that modern UK society would do well in allowing such religious activities
to be inherently lawful unless proven otherwise.

In light of the shift away from paternalistic tendencies in the court,

there has been an embracing of the autonomy principle. The reverse
doctrine as mentioned earlier, is proof of that.

MOVING ONTO THE REVERSE DOCTRINE AS ESTABLISHED IN WILSON

AND DICA:

IN REGINA AND WILSON 1997 QUEEN BENCH 47

LORD JUSTICE RUSSELL AT PAGE 128, PARAGRAPH B STATES THAT : Does public
policy or the public interest demand that the appellant's activity should be
visited by the sanctions of the criminal law?
AND THAT
LORD JUSTICE RUSSELL AT PAGE 128, PARAGRAPH D STATES THAT: In this field, in
our judgment, the law should develop upon a case by case basis rather than
upon general propositions to which, in the changing times in which we live,
exceptions may arise from time to time not expressly covered by authority.

AND IN REGINA AND DICA [2004] ENGLAND WALES COURT OF APPEAL Crim 1103
LORD JUSTICE JUDGE IN Paragraph [51] The problems of criminalising the
consensual taking of risks like these include the sheer impracticability of
enforcement and the haphazard nature of its impact.
As well as in paragraph [52]
[52] In our judgment, interference of this kind with personal autonomy, and its
level and extent, may only be made by Parliament.

I submit however, that the general doctrine is outdated, and has been replaced
with the reverse doctrine, especially when one looks at current case law. As
such, it is justifiable to assume that all activities are inherently lawful, before
examining them for any signs of criminality.

MINI CONCLUSION
Football matches as a rough sport easily fall under the criteria of lawfulness, the
more contentious one is exorcism, but as we shall see, exorcism clearly falls

under the ambit of lawful acts that might cause injury, in good company with
Ritual circumcision, tattooing, ear-piercing and violent sports including boxing
as mentioned by LORD TEMPLEMAN IN REGINA AND BROWN.
Along with the general shift in how the law treats violent acts, there has been a
greater emphasis on autonomy and the presumption that all acts with consent
are inherently lawful unless proven otherwise.
THUS, it is strongly submitted that both exorcism and the football match are not
inherently unlawful activities, and can be treated as lawful unless proven
otherwise.

2nd submission:
IRAC:

ISSUE: WAS THE HARM INFLICTED DELIBERATELY? INTENTION, IS IT

DELIBERATE MENS REA?

RULE: WHAT CONSTITUTES A DELIBERATE INTENTION IN THE CONTEXT OF
OFFENCES AGAINST A PERSON

DELIBERATELY INFLICTED: consciously and intentionally, on purpose.

However, in the context of these two cases:
Deliberate harm was not inflicted for the purposes of harming the victims. In
both cases, injury is a by-product, a phenomenon that would have been gladly
avoided by Dryden if possible. Injury was incidental to the end objectives that
Dryden intended to achieve. As such it was not intended ON PURPOSE, rather, it
was a side effect of the main purposes of Drydens intention, to heal the victim in
the EXORCISM CASE, and to wrest possession of the ball in the FOOTBALL MATCH
CASE.

WE TURN TO SLINGSBY FOR MORE AUTHORITY:

Slingsby [1995] CrimLR 570; w
MARKED A ON SLINGSBY:
The difficulty with this submission was that the sexual activity to which both the
deceased and the defendant agreed did not involve deliberate infliction of injury
and harm and but for the coincidental fact that the defendant happened to be
wearing a signet ring, no injury at all would have been caused or could have
been contemplated. The question of consent to injury did not, in fact, arise
because neither anticipated or considered it. At the time, all they were
considering was this vigorous sexual activity.

There is a test of coincidence present in the Slingsby case.

FOOTBALL MATCH:
It can be seen that one must assume that the intention in

APPLICATION: APPLY TO FACTS OF THE CASE

CONCLUSION: NOT DELIBERATE INTENTION

3rd submission:
IRAC:

ISSUE: WAS THE CONSENT REAL AND VALID

RULE: WHAT ARE THE RULES FOR A REAL AND VALID CONSENT?

Deemed consent: acceptable limits of social, sporting and professional

interactions
there is helpful ratio in the Barnes [2004] EWCA. Crim. 3246 that set the level
of what constitute actual consent, consent sufficient enough to be a defence to
violent activities and conduct that led to unintended actual bodily harm or
grievous bodily harm.
In Barnes, it was held that The fact that participants in, for example, a football
match implicitly consented to take part in a game assisted in identifying the
limits of the defence; if what occurred went beyond what a player could
reasonably be regarded as having accepted by taking part in the sport, that
indicated that the conduct would not be covered by the defence
Chief Justice Lord Woolf helpfully defined what the player could reasonably
regard as acceptable: The type of sport, the level at which it was played, the
nature of the act, the degree of force used, the extent of the risk of injury and
the state of mind of the defendant were all likely to be relevant in determining
whether the defendants actions went beyond the threshold.
I thus submit that when applying these rules to the present case of the
FOOTBALL MATCH, where the victim, in agreeing to take part in the FOOTBALL
MATCH, had implicitly consented to the risks (up to a reasonable standard)
inherent in an amateur football match. As a striker himself, the victim should not
be surprised to find that the defender and the appellant Dryden, would tackle
him in such a way that might cause actual bodily harm or even grievous bodily
harm. Such actions would comfortably fall within the standards set by Lord Woolf
in Barnes. I submit that the actions of Dryden , in tackling Mr Flashart, did not
constitute as an action that was outside the reasonable scope of activities
defined in Barnes. Despite the fact that it was high up in the legs, the action
was normal to the game of football. Defenders frequently misjudge their tackles
and end up impacting the opposing strikers legs, one need only look at the

amount of injuries sustained by players in normal play in the Premier League of

England ; even at the highest level of football, such accidents are bound to
happen, and must be accepted by all the players consenting to play in the game.
THIS CAN BE CONTRASTED WITH THE POINT BY MY LEARNED FRIEND, THE
JUNIOR RESPONDENT. IN BRINGING UP THE CASES OF REGINA AND BILINGHURST
AND REGINA AND LLOYD, THESE CASES CAN BE DISTINGUISHED BY THE FACT
THAT THE ACTIONS (PUNCHING A PLAYER UNPROVOKED) TAKEN BY THE RUGBY
PLAYERS IN THESE CASES WERE BALTANTLY AND OBVIOUSLY OUTSIDE THE RULES
OF THE GAME UNLIKE BARNES, WHERE TACKLING IS A RECOGNISED ACTIVITY
IN WRESTING CONTROL OF THE BALL.

EXORCISM:
Following Dica, where the Court of Appeal ruled that consent to the risk of
transmission through consensual sex is a valid defence to a charge of reckless
transmission. Consent to the risk of infection, however, would not provide a
defence in cases of deliberate infection or spreading of HIV with intent to cause
grievous bodily harm.
Thus, considering that ratio in parallel with the current case,
I would submit that the victim in the exorcism, Miss Meek, had full and informed
consent, and voluntarily put herself up to the task, knowing fully the potential
implications and injuries that might be sustained in the conduct of the exorcism.
It is wide knowledge that exorcism CAN BE a violent procedure, with the demonic
spirit causing convulsions and vigorous movements by the victim and possibly
restraining actions by the people conducting the exorcism. I submit that the
appellant D did nothing to conceal the true implications or potential injuries of
the exorcism to the victim.

APPLICATION: APPLY TO THE FACTS OF THE CASE

CONCLUSION: YES, CONSENT IN BOTH WAS REAL AND VALID

CONCLUSION:
How to conclude a moot:
Therefore your Lordship/Ladyships/Lordships, to conclude, I submit that (then
outline your main
submissions). Unless your Lordships have any further questions that concludes
my submissions on this
ground of appeal
To thank a judge: I am much obliged My Lord/My Lady or I am grateful try
and avoid thank you if you can!

RELEVANT MOOTING LANGUAGE:

WHEN ANSWERING A QUESTION:

My lord I know my time is expiring. I wonder if I can take a brief

extension to respond to your Lordships question

CANNOT ANSWER: I regret I am unable to assist your Lordship on that

issue
The appellant submits that it is not so, my Lord/Lady, for 3 reasons,
first ..

ADMITTING ERROR OR MISTAKE:

If I might clarify a point I made earlier my lordship

Offences Against the Person Act 1861, section 20:

Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily
harm upon any other person, whether with or without any weapon or instrument,
shall be guilty of an offence...