The potential criminal liability
Discuss The Potential Criminal Liability Of Mo And Bill Under The Offences Against The Persons Act 1861 And Under The Criminal Damage Act 1971 As Appropriate.
The scenario raises two separate questions of whether Mo has committed an offence under the OAPA 1861, and if Bill destroyed property under the CDA 1971. Two elements, the actus reus (acts of the accused) and mens rea (state of the accused mind) must be determined to find criminal liability. Mens rea looks at the mental side to see if there is an intention to commit the unlawful act. In this scenario the actus reus of Mo is his swinging of the watch causing Anya's eye injury. Bill's is his omission to act, as his creation of danger, puts a duty to act upon him. Mo's liability will be discussed in relation to s18, 20 and 47 of the OAPA, while Bill's offence will be in relation to s1 of the CDA.
A person is guilty under s18 if they ‘wound or cause any GBH… with intent… to do some…GBH. A person must have the intention to cause GBH to satisfy s18 and is not on wounding. GBH is defined as ‘really serious bodily harm' but can mean ‘Serious injury', as the use of ‘really' is at the judges discretion. A wound is an injury which ‘breaks the continuity of the skin' and where blood must fall outside the body. The eye injury Anya sustained does not indicate whether there was a breaking of the skin, or if there was blood, and therefore may not satisfy the definition of a wound since ‘a bruise or internal rupturing of blood vessels is not a wound'. The current law on intention is the Woolin Direction which stipulates that a jury are entitled to find intention only if serious injury was a virtual certainty from the defendant's act and the defendant appreciated this fact. The courts stress that foresight of virtual certainty is not intent, but evidence from which the jury may find intent, as it is subjective and only evidence of a state of mind. However, a second interpretation of Woollin is that proof of foresight of virtual certainty is proof of intention (oblique intention) itself. However, there is an argument that a moral threshold should be passed before the jury to find intention on foresight depending on the wickedness of his motives. Intention in English criminal law is incompatible with the philosophy of the ECHR and its principle of the presumption of innocence. Mo states that he never intended to hurt anyone, but at worst cause slight injury, which shows he had foresight. Although medical evidence indicates serious eye injury as a virtual certainty from the swinging of a watch of that velocity and size, Mo may not have appreciated that it was a virtual certainty and may not satisfy Woollin. Since intent is objective, the jury could find appreciation of this virtual certainty from the perspective of a reasonable man. Mo did not intend serious harm, and although serious injury was a result it would be difficult for the prosecution to find Mo liable as to satisfying the requirements of GBH and a wound.
Under s.20, a person is guilty if they ‘maliciously wound or inflict grievously bodily harm'. It is similar to s18, but intention to cause GBH is not required. Intention here is to mean ‘Maliciously' which under Mowatt states:
“…It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result.”
Mo satisfies Mowatt as he had expected some harm if he misjudged his swinging (Savage). Maliciousness can be defined in terms of Recklessness under Cunningham. Recklessness is subjective and defines maliciousness as having foresight that harm might be done yet gone on to take that risk. Mo can therefore have been reckless as he foresaw a possibility of harm, yet decided to take the risk. Although Mo's actus reus and mens rea was aimed towards Bill, but resulted in Anya being hurt, transferred malice can apply as the actus reus and mens rea is the same for Anya as it was for Bill (Latimer). A conviction could be found here, as Mo appears to fulfil the mens rea requirement here, but the oblique intention is for the jury to find, and as previously mentioned, her eye injury may not be what is legally defined as a ‘wound'.
S47 deals with assault occasioning bodily harm, which can take the form of either assault or battery. Assault is any act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful personal violence; battery being any act by which a person, intentionally or recklessly inflicts unlawful personal violence upon another. Violence was inflicted upon Anya, causing a serious eye injury and would be classified as battery. Transferred malice also applies here (Mitchell). Bodily harm is seen as any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Mo has caused an eye injury to Anya, and is seen as bodily harm and could affect her eyesight or cause pain. Foresight is not required within s47 as long as there is intention to do some harm. Mo expected a slight injury to occur at worst, which shows intention to do harm, and Anya's injury satisfies the definition of bodily harm. Therefore it can be considered that a conviction is more likely under s47.
In relation to Bill's liability, s1 states that a person is liable if they destroy or damage property without lawful excuse with intent or by being reckless, and under s1(3) damage by fire will be charged as arson. Bill's recklessness in this context is through his omission of not acting upon the creation of danger. Through this, he is negligent because he had a duty to act once he was aware that the book fell onto the carpet and would create a fire, and should have taken steps to remove the danger as in Miller. Following Miller, Bill must have been aware of his action before the resultant damage was complete, which he was, since he knew the book had fallen out of the fire but decided to leave it. Following Woollin, the burning book would result in a fire and ultimately cause destruction, which Bill must have foreseen as a result, but may not have intended this and is evidence for the jury to find intention. Negligence under causation is subjective through the reasonable man, in which he would have taken steps to remove the danger which Bill omitted to do. Bill may also be charged under s1(2)(b) for being reckless as to endanger the life of another as two neighbours were only saved at the very last moment from the burning building, subject to the jury finding intention. Bill may be convicted for recklessness (R v G) as he was aware and would have foreseen that a fire would result, and is negligent through his omission.
To find liability, it must be determined if the defendant caused the harm which links the actus reus to the mens rea. This involves a two-tier process of factual and legal causation. Factual causation involves a ‘but for' test where it is asked would the result have occurred ‘but for' the defendant's act. It is apparent that Anya would have not sustained an injury if Mo had not swung his watch around. With Bill it is evident that the destruction of the house would not have occurred if he had not failed to deal with the burning book. Legal causation is where the offence was a ‘substantial and operating cause' and ‘does not have to be the sole or main cause, it being enough that it contributed significantly'. The judge can direct the jury if there is no conflict in applying the evidence to the law (Blaue). In the scenario, Mo's swinging of the watch caused Anya's injury, showing a significant contribution. With Bill, his failure to deal with the burning book on the carpet caused the burning of the house, showing he had contributed significantly to the final result and Pagett would be applied.
Finally, for criminal liability to arise, the actus reus and mens rea must coincide in time, which it does in the scenario, but will be subject to if the jury find intention.
Mo would more likely be convicted under s47 for causing Anya's injury, although s20 could be satisfied, depending on if Anya's eye injury could be seen as a wound. Bill seems likely to be criminally liable under all three sections for his recklessness in property destruction, and possibly for the endangering of lives. However, it is still a matter for the jury as it is part of the law of evidence for them to find intention and ultimately, a conviction.
Card, Cross & Jones Criminal Law (18th ed. Oxford University Press, Oxford 2008)
J Herring, Criminal Law (6th ed. Palgrave Macmillan, Hampshire 2009)
P J Mitchell, Archbold: criminal pleading, evidence and practice 2009 (Sweet & Maxwell, Thomas Reuters, 2009)
A W Norrie ‘After Woollin'  Crim LR 532
A Khan ‘Intention in Criminal Law: time to change?' Stat. L.R 2002, 23(3), 235-239
DPP v Smith  A.C. 290
Fagan v Commissioner of Police of the Metropolis  1 Q.B. 439
JCC (a Minor) v Eisenhower  Q.B. 331
R v Blaue  61 Cr App R 271
R v Cheshire  1 W.L.R 844
R v Cunningham  AC 566
R v G  1 A.C. 1034
R v. Janjua and Choudhury  1 Cr. App. R. 91
R v Latimer  17 QBD 359
R v Miller  2 AC 161
R v Mitchell  2 All ER 427
R v Mowatt  1 Q.B. 421
R v Pagett  76 Cr. App. R. 279
R v Saunders  Crim LR 230
R v Savage  1 A.C. 699
R v William Hood and James McMahon  1 Mood CC 278
R v Woollin  1 A.C. 82
Criminal Damage Act 1971
Offences Against the Persons Act 1861