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Offences against the person act
The scenario in question is focusing on the Offences Against the person Act (OAPA) as well as the area of consent. There are a variety of offences which may have been undertaken these will be considered throughout. The possible offences to be acknowledged include: S.39 of the Criminal Justice Act which looks at common assault and battery which are seen to be ‘summary offences', as well as the relevant sections of the OAPA which include S.47 dealing with actual bodily harm, S.20 grievous bodily harm and malicious wounding as well as S.18 GBH with intent to wound. These offences will all be looked at in order to see precisely which, offences have been committed.
Assault is a key element which must be focused upon, an assault has many definitions one of which is stated by Loveless as ‘Any act by which the defendant intentionally or recklessly causes the victim to apprehend unlawful immediate personal violence.' The case of Collins v Wilcock looked at the issue of assault. In order for there to be an assault a person must have a ‘genuine fear' that they are about to be subject to one occurring. The actus reus of an Assault must be considered, this looks at an ‘unlawful apprehension of immediate or unlawful personal violence'. The constant silent phone calls as well as the threat can be seen to be enough to satisfy the criteria for an assault.
It must be considered whether the phone calls that Sally received would satisfy the actus reus of assault. It must be established whether the likelihood of the ‘apprehension' is enough to lead Sally to believe that she is about to be subject to unlawful force immediately as supported by the case of R v Constanza where ‘the Court of Appeal held that fear of harm at some time not excluding the immediate future was sufficient.' The case of R v Ireland looked at assaults by use of words, Lord Steyn expressed that ‘…There is no reason why something said should be incapable of causing an apprehension of immediate personal violence...' Therefore arguably Sally has a valid fear that the threats may be followed with an immediate attack.
The mens rea of an assault will be satisfied if it is clear that ‘the defendant intended or was reckless that the victim would apprehend imminent unlawful force.' Therefore arguably the threats expressed by Dave may satisfy an imminent threat of unlawful violence upon Sally as they may quite possibly follow the threat. The case of R v Venna confirmed the need for there to be such ‘intention' or ‘recklessness' present which would put the victim in fear of ‘imminent unlawful violence.' This view was also agreed upon in the House of Lords decision of R v Savage and Parmenter.
A further area to investigate is as to whether a battery has taken place. A battery can be defined as ‘Any act by which the defendant intentionally or recklessly inflicts or applies unlawful personal violence or force upon the victim.' The actus reus of battery is the ‘application or infliction of unlawful and personal violence.' The mens rea is described as having ‘intention' or to be ‘subjective Cunningham reckless.' There is a possible element of a battery present upon on Sally where Boris is kissing her toes. The case of Faulkner v Talbot illustrates that a battery can be the slightest touch which ‘need not be hostile' or a battery can be any ‘unwanted physical contact' such as that which has been carried out by Boris will amount to a battery.
With regards to the scenario, s.47 of the OAPA must also be considered, this section referring to ‘an assault occasioning actual bodily harm (ABH).' The actus reus involves either an ‘assault or battery the mens rea is seen to be the same requirement as that of assault and battery'. It must be considered as to whether Sally's ‘anxiety' and ‘depression' can amount to an assault. Where any such condition is recognised by someone of a ‘medical profession' in this case being her GP, it could therefore be a valid medical condition.
The case of Chan-Fook expanded the meaning of ‘bodily harm.' It draws a closer focus on ‘psychiatric injury' rather than a physical one. However, in the case it was expressed that ‘bodily harm does not cover mere emotions such as fear, or distress or panic.' Therefore whether Sally's ‘anxiety' and ‘depression' are covered as a ‘psychiatric injury' is arguable. The case of Morris ‘held that ‘sleeplessness, tearfulness, tension and anxiety were not actual bodily harm.' However in sally's case as her condition is diagnosed by specialist the reactive depression may arguably be a valid condition.
There is also the issue of a consent which must be looked at with regards to the actions of Boris, consent may arise as a defence by Boris and if successful it would indeed lead to an acquittal. It is up to Sally to prove that the consent was illegitimate to the nature of the offence and that she had only consented to examination in belief that Boris was a qualified therapist.
Although Sally may well have consented to take part in the research this does not mean that she would have consented to do so had she known that Boris had been suspended from his therapist role. The case of R v Richardson looked at whereby fraud as to identity was not of an issue where a person had knowledge of the role of the accused and went ahead with an examination.
However, the case of R v Tabassum looks at the nature of fradulant identity a case which is quite similar to the scenario in which the defendant too tried to misguide his patient to believe they were part of a research project. The appeal in Tabassum was dismissed it was stated that: ‘...The complainants gave consent because they mistakenly believed that the appellant was medically qualified or had relevant training and that in consequence the touching was for a medical purpose…' Therefore had it been obvious in this present scenario, Sally would perhaps have not consented to being examined by an illegitimate therapist.
It must be established what offence Ian has committed this could quite possibly fall into either s.20 or s.18 of the OAPA. S.20 of the act looks at ‘unlawful and malicious wounding or infliction of GBH with an instrument or weapon.' Therefore it can be presumed that the glass can be deemed to be a weapon as it is used to throw at Boris with such use in mind.
The actus reus of s.20 is the ‘wounding or infliction of GBH' the mens rea element being 'malicious' as to carrying out the act. Whilst looking at ‘maliciouness' there must be a ‘foresight of the risk of some harm.' The case of R v Mowatt looked at the issue that ‘only some physical harm needs to be foreseen by the defendant.' Arguably therefore it could have been foreseen by Ian that throwing the glass even slightly at Boris would have led to some harm.
The case of C (a minor) v Eisenhower led to the conclusion that a wound was not satisfied even where there was a ‘rupture of a blood vessel.' Therefore it may be argued that although the glass has caused a loss of sight it may not be enough to satisfy the requirements of a wound.
If it can be proved that Ian had an intention then he would most definitely satisfy the criteria for s.18 which looks at the same aspects as s.20 however, with a heavier focus on the element of ‘intent'. The actus reus is again seen to be the ‘wounding or causing GBH.' The mens rea is a proof of a stronger reliance on ‘intention' with regards to committing an offence of GBH. It can quite possibly be argued that there was a possible ‘intention' in Ian's mind having been told by sally what had occurred which would have triggered the act of throwing the beer glass into Boris's face rather than it being that of an accidental nature.
In conclusion it can quite clearly be argued that Dave can be held liable for assault under S.47 of the OAPA with regards to the series of calls he makes along with the threatening letters. It is also possible that Boris would be liable under battery as well as S.47 of the OAPA with regards to the reactive depression that Sally has incurred due to his unlawful actions. Finally as for Ian he can be seen to be liable under S.18 of the OAPA as it can quite clearly be seen that he has the required ‘intention' with signs of ‘malice' as to throw the glass into Boris's face leaving Boris with the loss of sight in one eye.
Word Count Excluding Bibliography and Table of cases and statutes = 1471
Herring. J, Criminal Law Text, Cases, and Materials (3rd ed, 2008, Oxford university Press).
Jefferson. M, Criminal Law (8th ed, 2007, Pearson-Longman).
Loveless. J, Criminal Law, Text, Cases and Materials ( 1st , 2008, Oxford University Press)
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