Liability Assault Injury
This assessment asks to consider the possible charges that may be brought against S and M2 and to consider what defences that may be available to them. Therefore, the scenario will not be repeated in it entirety, but will only be used as a point of reference with regard to the possible liability of the two persons mentioned earlier.
When M2 lashes out at J one should consider the offence of assault and sets off a chain of events that results in J stumbling down a step bank breaking his ankle, it maters not that she never intended to cause this type of injury and due to the seriousness of the injury one should consider an assault under s.47 of the Offences Against the Person Act 1861.
There are two elements of the actus reus and both must be proven. That there must be an assault by M2 on J and that assault has caused actual bodily harm, the word “harm” means injury and “actual” indicates that the injury need not be permanent, but should not be trivial or insignificant. The Mens rea is that M2 must intentionally have put J in fear of the apprehension of violence or intentionally used unlawful force or was subjectively reckless to either of these propositions, but there is no need to prove that M2 had any state of mind with regards to causing the type of harm.
The issues related to an assault have been much debated in Spratt Parmenter and Savage where all three cases where heard in the same week at the Court of Appeal, the Hose of Lords approved of the reasoning in Savage and it was summarised by Lord Akener in Savages appeal, “where the defendant neither intends nor adverts to the possibility that there will be any physical contact at all, then the offence under s.47 would not be made out this is because there would have been no assault”.
Therefore, can it be said that M2 intended to put J in the fear of the apprehension of violence? The answer must be no, so can it be said that she was reckless by causing injury to J? One must say yes because Lord Akener confirms the point that liability under s.47 depends upon M2 having the mens rea of assault or battery towards J, including recklessness, if she has one or the other, and actual bodily harm results from her actions, then it is irrelevant whether she did or did not intend and/or foresee the consequences. But one must also consider causation, “But for M2 actions would the injury and/or the assault have occurred?
The sequence of events must be given full weight in considering whether M2 should be responsible for a culpable act, she was a diagnosed diabetic and had taken her normal dose of insulin that evening but had refused to eat anything, consequentially she experienced the affects of low blood sugar and the prospect of a hypoglycaemic attack. In cases of assault, if the M2 knows that her actions or inaction are likely to make her aggressive, unpredictable or uncontrolled with the result that she may cause some injury to others and she persists in the action or takes no remedial action when she knows it is required, it will be open to find that she was reckless.
Here, it the subject reckless test in Cunningham that must be considered and making it clear that recklessness is being used in a sense which refers to a negligent failure to take care, that the prosecution must prove that the accused intentionally did the act complained of by refusing to take a meal, and that her state of mind at the time is one of awareness as to a risk that exists or will exist. It must further be shown that in the circumstances known to her it is unreasonable for the defendant to take the risk. This is to say that M2 knowing that there was a risk of her acting in a particular way as a result of failing to eat after taking her insulin.
Clearly, M2 would be liable and would have to answer to the charge of s.47 assault causing actual bodily harm; however would she have a defence of automatism? This defence arises when an accused conduct is not voluntary, but impaired or reduced control is insufficient to rely on this defence. The law continues to impose stringent restrictions on the defence and that being startled, or hearing a sudden noise or being stung by a swarm of bees which results in a reflex action may suffice. Moreover, Atomatism should not be self-induced by drink and/or drugs, or as in M2 case the abstinence of food.
LJ Lawton had this to say in respect of a similar situation in R v Quick “A self-induced incapacity will not excuse … nor will one which could have been reasonably foreseen as a result of either doing, or omitting to do something, as, for example, taking alcohol against medical advice after using certain prescribed drugs, or failing to have regular meals while taking insulin …” Thus, the fact that automatism is self-induced is a bar to the defence for M2 but only if she was at fault to the degree required by the particular offence charged.
In respect of the conduct demonstrated by S in the scenario is in my opinion not dissimilar to that of M2, the offence committed is once again an assault and the whole chain of events from the tying of the hands of O, there are two offences of assault and will be treated differently. Notwithstanding that the end result is much the same in respect to the offence s.47 By S on O, and the same principles apply as in M2 case.
Where the situation changes is when O insists the S ties his hands to prevent him from escaping which availed consent as a defence to an assault.
The first point and which is present in the instant case, is that consent to have his hands tied was given freely without force or fear, “Where consent is in issue, the burden of disproving it must always lie on the prosecution. The two principal questions which arise in this context are: (1) Did the alleged victim indeed consent (expressly or by implication) to the physical contact or force complained of; and (2) if so, is that consent deemed to be valid in the circumstances?” There are other forms of consensual risk-taking concerns ‘rough and undisciplined horseplay’ which would apply to the whole of this problem. Individuals may lawfully engage in rough horseplay only where there is at least a genuine belief that the ‘victim’ consents, and only where no injury is intended. The problem that arises in S situation is that an individual is unable to consent to Actual Bodily Harm, furthermore, the conduct of S towards O when pushing him is a malicious act and amounts to at least recklessness with regard to section 47 assault and S negates the available defence on the basis of Novus Actus Intervenions.
“The accused may break the chain of causation if it is free, deliberate and informed, and provides the immediate cause of the event in question Another way of stating this principle is that, ‘voluntary conduct acts as a barrier in any causal enquiry in criminal law; by and large, D’s voluntary conduct will usually be regarded as the cause of an act or omission if it was the last human conduct before the result”
In conclusion the acts of both M2 and S are different but the results are the same, both would be charged with assault under s47 of the offences against the person act.
There are arguments for the merits on all the defences mentioned but following case law in respect of each they are unlikely to be successful, unless in M2 case, and she would have the burden of proof thrust upon her to prove that she had no knowledge that by not eating would case her to suffer a hypoglycaemic attack. This may be possible if she was recently diagnosed and had not been advised and/or had not experienced such effect before.
Further, the defences of intoxication have not been addressed with any reference to most of the party consuming large quantities of alcohol on this evening as self-induced intoxication is no defence to a crime, and only operates as to negate intention and would not apply to offences where mens rea could be established recklessly.
Thus there is no evidence that any of these individuals could rely on a defence with the possible exception of S who could negate the offence of assault in respect of the rope burns to O on the basis of consent. However the prosecution would charge at the highest point and it is likely that the rope injuries would not be in issue except that it was instrumental in O receiving the more serious injuries charged under s.47.
Bibliography
- Ashworth,P (1996)Criminal Law Review Aug p595.
- Padfield, N (2004) Criminal Law, 4th Ed, Oxford University Press.
- Reed, A(2002) Criminal Law, 2nd Ed, Sweet & Maxwell.
- Stone,R(1999) Offences Against The Person, Cavendish.
- Stone,R(1992) Reckless Assaults after Savage, 12 OJLS p 578-582.
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