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Published: Fri, 02 Feb 2018

Both the Actus Reus and the Mens Rea will have to be proven

As with any criminal offence there has to be two parts to the crime, the Actus Reus and the Mens Rea. The Actus Reus is all the elements of a situation including different circumstances and consequences; however it does exclude the mental element of the crime. However to be able to convict the accused of their conduct their actions have to be voluntary. The Mens Rea therefore is the mental element of the crime and requires proof that the defendant was in a guilty state of mind before the defendant can be convicted of a crime. There are three types of Mens Rea; direct and oblique intention, recklessness and negligence. Direct intention is when a person’s actions are desired, oblique intent is when it is possible to foresee any consequences that may come from any actions. Recklessness is the taking of an unjustified risk and negligence is consequences caused by the actions of a person that fell below the standard of a reasonable person.

The first offence I have pointed out is assault which is one of the non fatal offences against a person. Other non fatal offences include battery, Actual bodily harm, malicious wounding and grievous bodily harm. An assault is any action which causes the victim to fear an immediate infliction of violence. No actual physical contact is needed between the parties but as long as the victim is sufficiently scared then the assault could be as simple as raising a fist. Battery is the use of unlawful force; a single touch can qualify for battery however it has to be a hostile touching. Sometimes this touching can be seen as unavoidable in such situations as social intercourse or accidental touching in a busy street or shop. Actual bodily harm is as it says; a malicious wounding is any break in the skin that breaks the dermis and the epidermis layers of skin. Grievous bodily harm is similar to actual bodily harm but is a lot more serious.

The stone that Charlie threw was intended to scare his ex-girlfriend. Depending on whether his ex-girlfriend was sufficiently scared, Charlie may have caused an assault. If Charlie’s ex-girlfriend was not scared then there was no assault committed, but if she was scared then Charlie would have committed an assault. This could be enforced by the courts following the case of Logdon v DPP [1976] crim LR 121. In this case the defendant held a gun to the victim who was terrified until the defendant handed the victim the gun and told them it was only a replica. The court held that this was in fact an assault as the victim was sufficiently scared. [1] 

The second offence committed was the blinding of a shopper because of the stone Charlie threw. This could amount to battery or even amount to grievous bodily harm. For this to amount to battery it must be proven that the defendant has inflicted unlawful force which Charlie has done by throwing the stone. Charlie also has the mens rea for battery as he recklessly applied this force to the passing shopper. This was reckless as he did not intend to hurt anyone he only meant to frighten his ex-girlfriend. Charlie should have realised there was a risk that the stone could have injured someone or caused damage to property, therefore Charlie was taking an unjustified risk. The courts today may apply the Caldwell test also known as the objective recklessness test opposed to the subjective recklessness or Cunningham test. This test was established in MPC v Caldwell [1982] AC 341. [2] This test is to see if a reasonable man would be able to realise the risk if he thought about it. In my opinion if a reasonable man thought about this I think it would be easy to see that if a stone was thrown in a street then there is a risk that it may miss the intended target and hit either passersby or nearby property. On this decision Charlie would be classed as acting recklessly, however there is a loophole that enables there to be a way around the Caldwell principle. This lacuna or loophole is allowed only in some situations when the defendant has given enough thought to the risk but came to the wrong conclusion as to how significant the risk is. However I do not think that in this scenario the Caldwell loophole will not apply as Charlie was intoxicated and it is unlikely that Charlie would have given the amount of thought needed to be able to use the loophole.

In my opinion I think that it is more likely that Charlie will have caused grievous bodily harm. I think this is serious harm as the shopper has lost sight in one eye. The meaning of grievous bodily harm was made in the case DPP v Smith [1961] AC 290. [3] Grievous bodily harm can be made directly or indirectly. In this case it was made directly, and I think that in this situation I think it will follow the case of R v Wilson [1984] AC 242. In this case it was proven that there does not have to be an assault for there to be grievous bodily harm. [4] 

The final offence was the killing of the shopper due to the armed police. This could possibly amount to manslaughter; the manslaughter in this scenario is involuntary as the person shooting does not have the mens rea for murder. The police officer did not have the intention to kill or cause grievous bodily harm. As he only meant to stop Charlie it can class the offence as manslaughter instead of murder. In the case of R v Dalby [1983] 2 WLR 425 the defendant supplied drugs to the victim. The victim overdosed on these drugs and died. It was held that the defendant was guilty of manslaughter not for the actual killing of the victim but for providing the means for the victim to die. [5] That along with the defendants act being unlawful provided the necessary requirements for the defendant to commit manslaughter. As with this scenario the police shot at Charlie hoping to wound him but killed the shopper. This supports this case as the police did not have the intention to kill him just provided the means to die.

However there may be a way for the police to pass the criminal liability on to Charlie. In the case of Pagett [1983] Crim LR 393 the defendant was using his pregnant girlfriend as a shield; he fired shots from a shotgun at two officers who then returned fire. The officer’s shots hit the defendant’s girlfriend and killed her. It was held that the defendant was guilty of manslaughter, his appeal was dismissed. [6] This can also apply hear as the police was just doing his duty and as the shopper was killed it was because of Charlie. This can place the liability on Charlie. If this is true then Charlie can be prosecuted for manslaughter.

However this offence may amount to murder. But there may be a way that Charlie can release his liability for the murder of the shopper by pleading diminished responsibility. Diminished responsibility had been defined in section 2(1) of the homicide act 1957.

Where a party kills or is party to killing of another, he shall not be convicted of murder if he was suffering from such abnormality of the mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. [7] 

As Charlie had been drinking he may be able to claim he was acting under an abnormality of the mind. This is true as alcohol alters the mental state of any consumer. However if a defendant is drunk at the time of a murder it alone will not constitute to diminished responsibility. However when the consumption of alcohol becomes a problem for the defendant and they develop chronic alcoholism then this may be a sufficient factor. Diminished responsibility may also stand if any other disease has emerged from a large or constant consumption of alcohol or drugs. Diminished responsibility will stand if the actions in question are induced by disease. If Charlie was able to show that he had no control over his drinking at any point from when he started until the incident in question then he will be able to plead diminished responsibility. However if he cannot present this proof then the court may follow the case of R v Tandy [1989] 1 All ER 267. In this case an alcoholic tried to plead diminished responsibility for strangling his 11 year old daughter. It was held that he was in control of his drinking when he started and as a result of him failing to stop when the alcohol consumption got out of control his plead for diminished responsibility will be dismissed. [8] 

Diminished responsibility is just one of the defences defendants can use. These defences include provocation and suicide pact. A suicide pact is outlined by section 4 of the homicide act 1957 where there is an agreement between parties for one to kill the other. [9] Suicide pact will not apply to this scenario. However although it may be unlikely it may arise that the defendant may plead provocation. According to section 3 of the homicide act 1957:

Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man. [10] 

However in this case I do not think that this defence will stand as I do not think that a reasonable man would act the way Charlie did if there partner had cheated on them. Although he accused his ex-girlfriend of being unfaithful it has not been proven true and due to Charlie’s drinking may have been blown out of proportion. Loss of control can be ruled out due to section 55 subsection 6 paragraph c of the coroners and justice act 2009. Subsection 6 states ‘in determining whether a loss of self-control had a qualifying trigger-‘, followed by paragraph c ‘the fact that a thing done or said constituted sexual infidelity is to be disregarded.’ [11] This rules out the possibility of any loss of control as the whole reason Charlie acted the way he did is because he accused her of cheating.

For any criminal matters there are different courts that different cases will be heard in. Smaller criminal cases such as criminal damage will be heard in the magistrates’ court. More serious crimes such as murder will be heard in the crown court. Any appeals to the rulings in these courts will be heard in the court of appeal criminal division or in some cases the House of Lords or now known as the Supreme Court. Any appeals from the court of appeal are also heard in the Supreme Court. In Charlie’s case I think his case will be heard in the crown court as the crimes committed are more serious.

Overall I think that Charlie will lose his case and may be charged with assault, grievous bodily harm and manslaughter. I think that Charlie does not have any defences he can rely on to keep him from being charged with the above. There is no defence he can use in relation to assault as he intended to do it. He cannot claim any defence to show he did not commit grievous bodily harm as the amount of damage done is very serious as the shopper will never be able to regain sight had he not been killed. There are also no defences he can use to avoid manslaughter as demonstrated in the Pagett case. [12] The police officer however following the Pagett case [13] can pass the criminal liability onto Charlie. In my opinion I think that the police officer will not be charged but Charlie will be found guilty of assault, grievous bodily harm and manslaughter.

Table of cases

DPP v Smith [1961] AC 290

Logdon v DPP [1976] Crim LR 121

MPC v Caldwell [1982] AC 341

Pagett [1983] Crim LR 393

R v Dalby [1983] 2 WLR 425

R v Wilson [1984] AC 242

R v Tandy [1989] 1 All ER 267

Table of Statutes

Homicide act 1957

Coroners and Justice act 2009

Books and Articles

Jacqueline martin and tony storey, unlocking criminal law (3rd edn Hodder Education, Italy 2010) 41


–, http://www.legislation.gov.uk/ukpga/Eliz2/5-6/11, 16/02/2011

–, http://0-www.lexisnexis.com.brum.beds.ac.uk/uk/legal/search/runRemoteLink.do?langcountry=GB&linkInfo=F%23GB%23AC%23year%251961%25page%25290%25sel1%251 961%25&risb=21 _T11259511458&bct=A&service=citation&A=0.4628368190945127, 16/02/2011

–, http://www.legislation.gov.uk/ukpga/2009/25/section/55, 17/02/2011

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