COURSE NOTES CRIMINAL LAW

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1 Model Answers to Potential Exam Questions Chapter 9 Damien and his brother Lee went to Kelly s house to collect money she owed them. The brothers were armed with weapons because Kelly s new boyfriend Spike was a security guard and all four of them had fallen out over the matter. Damien burst into Kelly s house first, followed by Lee. Damien swung at Kelly with his baseball bat but missed. He pinned her against the wall and demanded his money before Spike appeared. Kelly punched Damien in the face and burst open his bottom lip. Lee ran upstairs to look for the money and ran into Spike. Spike took Lee s hammer off him and threatened to hit Lee with it if he didn t leave. Lee punched Spike in the face giving him a black eye. Spike swung for Lee with the hammer and cracked Lee s head open. Damien, Lee, Kelly and Spike have all committed non-fatal offences. Notwithstanding any defences they may use, explain in detail the offence(s) that each party will be charged with. According to the facts presented above, the non-fatal offences to be explored are as follows: Damien swung a baseball bat at Kelly and pinned her against a wall. This is assault and battery. Kelly punched Damien and burst open his lip. This is malicious wounding. Spike threatened Lee and cracked his head open with a hammer. This is assault and grievous bodily harm. Finally, Lee punched Spike giving him a black eye. This is actual bodily harm. These offences will be explored in turn. Damien swung a baseball bat at Kelly. Assault is a common law offence defined by case law. However, it is charged under s.39 of the Criminal Justice Act 1988 which states: Common law assault shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5, to imprisonment for a term not exceeding six months, or both.. The actus reus of assault was defined by in Collins v Wilcock (1984) by Goff LJ: An assault is an act which causes another person to apprehend the infliction of immediate, unlawful force on his person. The key words in the definition are as follows: act, apprehend, infliction, immediate and unlawful. The starting point is to note that contact is not required for an assault a genuine apprehension of force will suffice as held in Lamb (1967). There must, however, be

2 an act to cause this apprehension as confirmed by Collins v Wilcock (1984). Damien committed such an act when he swung the baseball bat at Kelly. Immediate can include looking through a window according to Smith v Woking Police (1983). In Ireland (1997), the defendant made a silent telephone call and Lord Steyn said: He intends by his silence to cause fear and he is so understood. She may fear the possibility of immediate personal violence, [this] will depend on the impact of the caller s potentially menacing call on the victim. As a result of Smith and Ireland, a threat can be immediate even if it is not possible for the defendant to hurt the victim at the material time. An empty threat, however, will not constitute an assault, as held in the very old case of Tuberville v Savage (1669). A threat will constitute an assault if in conjunction with a weapon, as held in Light (1857). Damien s threat of harm was immediate because he swung the baseball bat at Kelly with the intention of hitting her at that moment. The bat could also constitute a weapon, making his act particularly threatening. The mens rea for assault is intention or recklessness, as established in Venna (1975). The recklessness is subjective (i.e. defendant sees a risk of apprehension of force and goes ahead anyway). The jury may find, when applying these rules to Damien, that he saw the risk of harm when swinging the baseball bat at Kelly, but took that risk anyway. They are free to find that Damien has both the actus reus and mens rea for assault regarding his swing of the baseball bat. Damien pinned Kelly against a wall. Battery is also a common law offence defined by case law and charged under s.39 of the Criminal Justice Act 1988: Common law battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5, to imprisonment for a term not exceeding six months, or both. The actus reus of battery was also defined in Collins v Wilcock (1984) by Goff LJ: A battery is the actual infliction of unlawful force on another person. The key words in this definition are: infliction, unlawful force, and on another person. Contact is required for a battery and this can include physical restraint. In Collins v Wilcock (1984) Goff LJ confirmed that: It has long been established that any touching of another person, however slight, may amount to battery. Everybody is protected not only against physical injury but against any form of physical molestation. Touching a victim s skirt was equivalent to touching the victim in Thomas (1985). However, as trivial as this may seem, the touching must be hostile as established in Wilson v Pringle (1986). If the touching was unlawful, it is more likely to be hostile. This may sound odd, but a battery can be lawful if the victim consents to it, as held in

3 Brown (1993). The jury might like to find, when looking at the facts, that when Damien pinned Kelly against the wall this was hostile touching. It is also unlawful, because Kelly did not consent to this contact. The mens rea for battery is also intention or recklessness as held in Venna (1975). The recklessness is subjective for a battery as it is for an assault (i.e. defendant sees a risk of inflicting unlawful force and goes ahead anyway). The jury may find, through Damien s act of pinning Kelly against the wall, that he intended to do this unlawful act. They are free to find that Damien has both the actus reus and mens rea for battery regarding his pinning of Kelly against the wall. Kelly punched Damien and burst open his lip. Moderately serious injuries are charged under s.20 of the Offences Against the Person Act 1861) This offence is commonly known as malicious wounding and is defined as follows: 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 guilty of an offence and shall be liable to imprisonment for not more than five years. The actus reus of malicious wounding clearly requires an unlawful infliction of either a wound or grievous bodily harm. The key words here are: unlawful, wound, and inflict. The word inflict does not require an assault, as established in Beasley (1981), MPC v Wilson (1984) and Burstow (1997). A wound must break through all the layers of the skin but it does not include internal bleeding according to JCC v Eisenhower (1983). The phrase grievous bodily harm in the s.20 definition means really serious harm, but does not have to be life-threatening according to DPP v Smith (1961). The jury can simply be directed as to serious harm as was held in Saunders (1985). In Bollom (2003), a baby suffered bruising and abrasions to her body, arms and legs. This would not be grievous bodily harm to an adult. However, the courts held that age, health and other factors relating to the victim can be considered when determining whether the injuries amounted to grievous bodily harm. A jury will be very likely to come to the conclusion that when Kelly punched Damien and burst his lip open, she met the actus reus of malicious wounding. The act of punching can be defined as an infliction, and his wound broke through all the layers of his skin. The mens rea of malicious wounding is the word maliciously, which features in s.20 of the OAPA 1861) This word has since been defined as intentionally or recklessly by Cunningham (1957), and either one will suffice. The defendant must therefore intended or been reckless as to some physical harm, but she does not have to foresee that it will be grievous according to Mowatt (1967) and Parmenter (1992). In Mowatt (1967), Lord Diplock said: the word maliciously does import an awareness that his act may have the consequence of causing some physical harm to some other person... it is quite

4 unnecessary that the accused should have foreseen the gravity described in the section i.e. a wound or serious injury. The jury may therefore find that Kelly, when punching Damien, either intended some harm or was reckless as to whether some harm was inflicted upon him. They are free to find that Kelly has both the actus reus and mens rea for malicious wounding regarding her punching of Damien and bursting his lip open. Spike threatened Lee and cracked his head open with a hammer. The threat, as described above, will constitute the actus reus of assault if it was immediate and unlawful. Lee is, according to the facts, immediately threatened, and it is very unlikely that Lee consented to the threat to make it lawful. If Spike carried out this threat with intention or reckless as described above, the jury may find that Spike has the actus reus and mens rea for assault. The most serious non-fatal offence against the person is grievous bodily harm with intent. It is found under s.18 of the Offences Against the Person Act 1861: Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, with intent to do some grievous bodily harm to any person [or with intent to resist or prevent the lawful apprehension or detainer of any person] shall be guilty of an offence. The main difference between malicious wounding (s.20) and grievous bodily harm (s.18) lies in the mens rea (explored shortly). The actus reus of grievous bodily harm (s.18) is the same as malicious wounding (s.20) in that it requires an unlawful infliction of either a wound or grievous bodily harm. The jury may find that when Spike hit Lee with a hammer and cracked his head open, he caused grievous bodily harm. The act of hitting with a hammer can be defined as an infliction, and his wound broke through all the layers of his skin. The mens rea for s.18 is slightly different to that of s.20. The word maliciously once again refers to intention or recklessness as held in Cunningham (1957), but there must be a specific intent to do grievous bodily harm. Therefore, the word maliciously has been disregarded by Mowatt (1967). The defendant s foresight of consequences is evidence of intention, not intention itself, but the jury can use this evidence to find intention if they are inclined, according to Moloney (1985). The grievous bodily harm must therefore be a virtual certainty and the defendant must realise that this was the case, as held in Woollin (1998). The jury may find that Damien, when hitting Lee in the head with a hammer and cracking his skull open, intended some grievous bodily harm. They are free to find that Spike has both the actus reus and mens rea for grievous bodily harm regarding his hitting of Lee in the head with a hammer. Before Lee was harmed in this way, he punched Spike and give him a black eye. When an assault or a battery causes injury, the defendant is charged with actual bodily harm. This is an old statutory offence under s.47 of the Offences Against the Person Act 1861:

5 Whosoever shall be convicted of any assault occasioning actual bodily harm shall be liable to imprisonment for five years. Definitions as to actus reus and mens rea are enshrined in subsequent case law. Regarding the actus reus, all that is required is an assault or battery (as examined above). However, the assault or battery must cause any hurt or injury calculated to interfere with the health or comfort of the victim according to Miller (1954). This includes bruising, scratching, grazing, fractures and concussion. Psychiatric injury will also suffice according to Chan Fook (1994), in which the Court of Appeal said: The body of the victim includes all parts of his body, including his organs, his nervous system and his brain. Bodily injury therefore may include injury to any of those parts of his body responsible for his mental and other faculties. There must be a recognized psychiatric illness as held in Burstow (1997). The jury may find that Lee performed a battery by punching Spike, as this was hostile touching without consent, and this led to an injury that interfered with Spike s comfort when he sustained his black eye. Actual bodily harm does not have its own mens rea it simply borrows the mens rea of the assault or battery that was inflicted as confirmed in Savage (1991). As a result, if a defendant performs the actus reus and mens rea of battery and it happens to lead to injury, he will have all the elements in place for a charge of actual bodily harm as held in Roberts (1971). In Savage and Parmenter (1991), the case which established this rule, Lord Acker said: The verdict of assault occasioning actual bodily harm may be returned upon proof of an assault together with proof of the fact that actual bodily harm was occasioned by the assault. The prosecution are not obliged to prove that the defendant intended to cause some actual bodily harm or was reckless as to whether such harm would be caused. The jury may find that Lee either intended or was reckless as to the hostile touching of Spike. The harm inflicted beyond this is incidental. The jury are therefore free to find that Lee has the actus reus and mens rea for actual bodily harm regarding his punching of Spike in the eye. Course Notes Criminal Law Published by Routledge Lisa Cherkassky 2012