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Published: Fri, 02 Feb 2018
First term criminal assignment
For the evaluation of what offences have been committed in a crime there should be a clear presence of actus reus and mens rea, for the prosecution to prove the existence of both elements of an offence beyond reasonable doubt. Actus reus is the guilty act, whereas mens rea is the guilty mind, both of which are required for criminal liability. In the given problem question, the most possible defendant could be Tom and the most possible claimants could be Dave, Edward and Simon. Tom, can be liable of battery to the extent of inflicting grievous bodily harm, under s.20 of the “Offences against the Person Act 1861”, for assault occasioning actual bodily harm under s.47 of the same Act and for common assault. Edward and Dave can be proved liable for battery.
To begin with, the most serious offence committed in the problem question is that of Tom against Dave and is battery to the extent of inflicting grievous bodily harm found in s.20 of the “Offences against the Person Act 1861”, “whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without a weapon or instrument, shall be… liable to … five years’ imprisonment”. The actus reus of the offence that applies to the problem question is the unlawfully and maliciously inflicting of grievous bodily harm introduced in DPP v Smith  AC 290 for ‘‘no more and no less than really serious harm”. The word ‘inflict’ historically meant injury caused by a common assault or a battery but after Clarence this requirement has been relaxed. The mens rea that applies is the recklessly wounding or inflicting grievous bodily harm based upon subjective recklessness in Mowatt. Tom while being careless and uncontrollable (mens rea), hit Dave in the stomach (battery), rupturing his spleen and causing him to need blood transfusion (unlawfully infliction of GBH). The injury of Dave is considered as GBH according to the CPS Charging Standards- ‘‘injuries that cause a substantial loss of blood, usually necessitating a transfusion”.
The next more serious offence is that committed by Tom against Edward and is: assault occasioning actual bodily harm under s.47 of the ‘‘Offences against the Person Act 1861”, ‘‘whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be liable… to imprisonment for any term not exceeding five years”. This offence requires both assault and battery and its only difference is the greater level of physical harm than battery/assault with a vague definition in R v. Donovan  2 KB 498 ‘Any harm which, although not permanent, is more than merely transient and trifling’. The actus reus that applies in the case is battery with actual bodily harm and is satisfied by bruises. The mens rea is often called as ‘half mens rea’ because it relates only to battery and not to the actual bodily harm. This means that the mens rea of s.47 is identical to the mens rea of battery and is found in R v. Savage  1 AC 699 when the House of Lords dismissed the appeal holding that ‘‘the mens rea of s.47 required attention or subjective recklessness in relation to the common assault or battery only … and no intention or foresight in respect of the injury caused by the assault or battery”. There is no requirement that the defendant intends to cause ABH or he foresees the possibility f causing ABH. In the problem question, Tom’s action, actus reus, to hit and break the nose of Edward is considered as a direct physical contact (battery) with an actual bodily harm, The level of harm experienced by Edward allows this offence to distinguish from battery in reference to the CPS Charging Standards (1996) for ‘extensive or multiple bruising’ and enables prosecution under section 47. The mens rea of the offence binds the mens rea of Tom in the sense that he got involved in the fight intending to hit Edward causing him to suffer from at least some actual bodily harm.
Another serious offence is that of battery experienced on Tom by Edward and Dave. ‘Battery is an act which a person intentionally or recklessly inflicts unlawful personal violence on another”, as stated in the Law Commission (1993) ‘Legislating the Criminal Code”. The actus reus that applies in the case is based on direct physical contact with another, there must be a minimum contact with the victim-‘even a mere touch of the clothes may suffice” R v. Thomas (1985) 81 Cr App R 331. The line between battery and s.47 is particularly important if consent is involved, it is only the level o harm that is different between the two offences. The mens rea is satisfied by either intention to make physical contact with the victim or by subjective recklessness as to such contact. With reference to the problem question, the actus reus was the direct physical contact of Edward with Tom when he punched him, but clearly noted that didn’t cause any harm to him at all. Therefore, Edward can only be proved liable for battery and not for assault occasioning ABH, s.47. The mens rea is satisfied as Edward’s intention was clearly to make physical contact with Tom. In addition, Dave can be proved liable for battery, to an extent. Dave definitely made a direct physical contact with Tom when fighting, but there is no evidence on the harm that he caused to him. The mens rea of the offence was binding as Dave, like Edward, had a clear intention to make physical contact with Tom. Thus, Dave can be proved liable for battery but with less certainty than Edward due to lack of evidence of harm on Tom.
A less serious offence can be evaluated from the case, that of the common assault, which may be used to prove Tom liable for his act against Simon. Common Assault is ‘an act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful personal violence’ as defined in the Law Commission (1993) ‘Legislating the Criminal Code’. The three elements of actus reus for the common assault that need to be established are: an act, an apprehension, immediate and unlawful violence. There must be a positive act, ‘to constitute the offence… some intentional act must have been performed…’ as stated in Fagan V MPC  1 QB 438, or words ‘ I would… reject the proposition that an assault can never be committed by words’ as the House of Lords held in R v. Ireland  4 All ER 225. Apprehension does not mean fear but expectation – a person may apprehend violence without being fearful. The House of Lords confirmed that only apprehension of immediate violence can suffice for an assault in R v. Ireland ‘what, if not the possibility of imminent personal violence, was the victim terrified about?”. The mens rea of the common assault is the intention to cause apprehension of immediate violence or subjective recklessness thereto – ‘the defendant must at least foresee a risk that his words/conduct will cause the victim to apprehend immediate unlawful violence”, as stated in the House of Lords in DPP v. Parmenter  1 AC 699. In the problem question the actus reus is established when Tom made a positive act and apprehended immediate violence by waving his fist at Simon and threatening to hit him. The mens rea of the offence was clearly shown by the intention of Tom to use immediate violence against Simon in case he did not go away. Simon apprehended the immediate unlawful violence and left the scene. As long as the three elements of actus reus and the mens rea were established, Tom can certainly be liable for common assault.
When examining the offences especially against Tom, some defences arise that may merely reduce the offences to lesser ones even if the actus reus and mens rea have been established.
Consent may be a valid defence to an extent. Consent can negate the unlawfulness of force. In R v. Donovan it was held that consent cannot apply to GBH but only to battery, ‘It is unlawful act to beat another person with such a degree of violence that the infliction of bodily harm is a probably consequence and when such act is proved, consent is irrelevant”. With reference to the problem question Tom may argue that Edward and Dave consented to his challenge to fight and to their injuries, like in R v Brown  1 AC 212 where the sado-masochistic homosexual defendants were charged with battery, s.47, s.20 and argued that the victims had consented to the activities and to infliction of injuries. However, consent may not have succeeded as a defence as the judges and jury are not flexible over these offences in order to protect the society against violence.
Another possible defence that Tom may refer to is intoxication where the defendant has ingested alcohol in that amount in which he is not able to control his actions. Then the defendant is to blame for his inability to form mens rea and the law may take account of his intoxication. In the problem question, although there is some reference to Tom drinking in the night club, there is no clear evidence of the amount of the alcohol taken and of the condition of Tom.
In case Dave did not agree to blood transfusion, Tom would be liable of reckless manslaughter. This offence would have been established when Tom caused death to Dave with awareness that his conduct carried a risk of causing death or serious harm. The liability arises due to the thin-skull rule which provides that a defendant is liable for the full extent of the victim’s injuries even those that were not foreseeable at the time of the commitment of the offence. That is based upon the principle that you ‘get the victim as you find him’. Therefore, Tom could have been proved liable for the death of Dave, even that this was not foreseeable and may not have been intended when he punched him in the stomach. As long as he committed the unlawful act, he should have been liable to any consequences that could arise.
Considering the examination of criminal liability in the given problem question can be concluded that Tom is more probable to be proved liable for the most serious offences and Edward and Dave for battery. It is up to the discretion of the judge to decide; therefore we can only refer to the liability of offences with probabilities until taken to court. Tom can most probably be proved liable under s.20 of the “Offences against the Person Act 1861” for grievous bodily harm against Dave, under s.47 of the ‘‘Offences against the Person Act 1861” for assault occasioning actual bodily harm against Edward and for common assault against Simon. Edward and Dave can be proved liable to an extent for battery against Tom. As to the defences of consent and intoxication for reducing the offences of Tom to lesser ones, not much can be argued due to the reluctance of the judges to reduce offences for the protection of the society.
‘Legal Skills A Guide’, School Of Law, Uni Reading, September 2008 pages 76,78
Lecture Handouts 2008-2009 by Steve Banks pages 66-75
Law express for Criminal Law 2007 pages 74-116
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