Offence Assault Victim
Criminal Law Essay
Part A
In the interests of logic and analysis, the offences for each of the above parties may be liable shall be considered in turn.
Baumatose
As a result of the injuries inflicted on Adebola, Baumatose could be charged under both Sections 20 and 47 of the Offences Against the Person Act 1861. There are two acts that fall for consideration here. In the first instance, the act of tightening a belt around Adebola's neck can be said to be an assault. Section 47 of the Offences Against the Person Act provides that it is an offence to commit 'any assault occasioning actual bodily harm'. An offence under section 47 of the OAPA 1861 will usually involve an assault or battery and it must be established that either of these two occasioned Adebola actual bodily harm. A battery involves the use of unlawful force upon the victim and such force must be such as to cause the victim actual bodily harm. Actual bodily harm has been defined as any injury which is calculated to interfere with the health and comfort of the [victim]'.
In this case we are told that Baumatose tightens a belt around Adebola's neck, an act that was designed to excite him. It however happens that Adebola suffers headaches and distorted vision and needs treatment. The act of tightening a belt around Adebola's neck will satisfy the actus reus requirements of the section 47 offence as it can be said to involve the use of unlawful force which has caused the victim pain and discomfort. The mens rea required to prove the offence under section 47 is the same as that required to prove an assault or battery. There is no additional mens rea required in relation to the actual bodily harm. An assault or battery must be committed intentionally or recklessly, and recklessness in this context refers to Cunningham recklessness. This means that the defendant had to intend a technical assault or battery, or be reckless as to the application of unlawful force.
It would therefore not be a defence for Baumatose to claim that he had not intended to cause Adebola any actual bodily harm. In the case of Savage and Parmenter, it was held that there was no need to prove that the defendant intended or was reckless as to causing actual bodily harm. It was sufficient that they intended to apply unlawful force.
The next offence for which Baumatose will be charged is that of wounding or inflicting grievous bodily harm. For this offence, Baumatose will be charged under section 20 of the Offences Against the Person Act 1861 which states, whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person either with or without any weapon or instrument shall be guilty of an offence The actus reus of this offence can be proved by showing either unlawful wounding or the infliction of grievous bodily harm. Grievous bodily harm was defined by the House of Lords in DPP v Smith as meaning really serious harm. The scope of grievous bodily harm is quite wide and it is thought that the harm need not be life threatening or permanent or have lasting consequences or even require treatment. On the other hand, wounding requires the breaking of the continuity of the whole of the skin (dermis and epidermis) or the breaking of the inner skin within the cheek, lip or urethra.
In the case of R v McReady, it was held that where there is evidence of a serious wound, the offence ought to be charged as wounding rather than an inflicting grievous bodily harm. In this case, we are told that Adebola has suffered serious burns, which has necessitated the need for skin grafts. The need for skin grafts suggests that Adebola suffered serious wounds as a result of Baumatose's actions. It would therefore be the case that the offence for which Baumatose would be charged is wounding.
The mens rea for an offence under section 20 is defined by the word maliciously in the case of Cunningham it was stated that for the purpose of the 1861 Act maliciously meant 'intentionally or recklessly' and reckless is used in the Cunningham sense.
In the case of R v Mowatt, it was established that there is no need to intend or be reckless as to causing GBH or wounding, it will be sufficient that the defendant intended or was reckless that his acts could have caused some physical harm. Applying this decision to the present set of facts, it must thus be proved that Baumatose intended his act to result in some unlawful bodily harm to Adebola, albeit of a minor nature, or was reckless as to the risk that his act might result in such harm.
The next issue that falls for consideration is the defences available to Baumatose. It is the case that Baumatose will seek to establish a defence of consent in order to negate liability for the offences for which he has been charged. The principal questions which will arise in the context of pleading consent as a defence are: (1) Did Adebola 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?
As to the first question, this is a simple question of fact which can be easily be determined by the testimony given by Adebola. As to issue (2) this may be more problematic as the consent may be invalid on grounds of public policy, even where the victim knows exactly what he consenting to. In the case of R v Brown, the House of Lords upheld convictions for offences under section 20 and 47 of the Offences Against the Person Act 1861 in respect of a group of homosexual sado-masochists, who had engaged in acts of consensual torture with each other for the purpose of sexual gratification. It was held that consent was irrelevant unless it could be shown that it was in the public interest to permit the intentional causing of actual bodily harm in the course of sado-masochistic practices, and there were several reasons why it should not do so. The European Court of Human Rights upheld this decision on the grounds that the facts of the case were necessary in a democratic society for the protection of health and morals.
In the case of R v Wilson, the Court of Appeal appeared to relax the decision in Brown by stating that consensual activity between a husband and wife in the privacy of the matrimonial home was not a proper matter for criminal investigation, let alone criminal prosecution. However in the case of R v Emmett, the law was further clarified and restated according to the principles enunciated in R v Brown. In this case, the defendant had on one occasion tied a plastic bag over the head of his girlfriend during sexual intercourse, and on another occasion, had poured lighter fuel on the woman's breast and set light to it. The defendant was convicted on two counts of assault occasioning actual bodily harm. His defence was that the woman had consented to the activities. It was held that such consent was invalid. The Court of Appeal held that dangerous and sado-masochistic games (involving suffocation and burning) were not exempted by the Wilson principle, even where carried out consensually in what was effectively a husband and wife relationship.
Following from the decision in R v Emmet, it would be the case that Baumatose would not be able to rely on the defence of consent in order to negate liability for the offences with which he has been charged.
Adebola
We are told that following the end of the relationship between Adebola and Baumatose that Adebola pursues Baumatose for over a year with a campaign of letters, calls and cards designed to restore the relationship. Baumatose becomes anxious and nervous as a result of Adebola's actions. He has since given up his job as a result of not being able to cope.
First of all, Adebola's actions can be deemed to amount to stalking under the Protection from Harassment Act 1997 (hereafter referred to as the PHA). Section 1(1) of the PHA states that A person must not pursue a course of conduct - (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other.'
Under Section 2(1) of the PHA, it is an offence to pursue a course of conduct in breach of the prohibition on harassment in s.1. There must be a course of conduct which must amount to harassment. In the case of Lau v DPP it was held that for there to be a 'course of conduct' there must be a 'conduct' on at least two occasions in order to find a case of harassment. Section 7 of the PHA states that incidents of harassment include alarming the person or causing the person distress. Harassment or distress do not require the victim to fear for his personal safety. The mens rea for the offence is that the accused knows or ought to know that the course of conduct amounts to harassment of the other.
Adebola's actions, we are told, does indeed cause Baumatose anxiety and nervousness to the extent that he has had to give up his job, this would suggest that he must have been alarmed and anxious about the state of affairs so as to fall into a state of nervousness whenever he was contacted by Adebola. This, in my opinion, would suggest that Baumatose was actually distressed as a result of Adebola's actions. It is therefore likely that Adebola would be found to be in breach of section 1 of the PHA 1997.
In addition to the criminal liability under section 1 of the PHA, it is also possible for Baumatose to initiate civil proceedings under section 3(1) of the PHA 1997 against Adebola based on the anxiety and distress that her actions have caused him. On such a claim, Baumatose may be granted an injunction against Adebola restraining her from pursuing any conduct which amount to harassment. Furthermore, damages may be awarded to Baumatose for any anxiety caused by the harassment and also any financial loss resulting from the harassment.
Part B
As a result of Billy's part in Shaun's death, he will be charged with involuntary manslaughter. A person who causes the death of another is guilty of involuntary manslaughter if he does so: (1) by an act which is unlawful and dangerous; (2) with gross negligence; (3) with recklessness as to the risk of death ore serious bodily harm. The ambit of this question excludes consideration of the last two types of involuntary manslaughter.
Where a person kills another as a result of an unlawful and dangerous act, such an act is otherwise known as constructive manslaughter. This is because liability is based on another offence in the course of which the death occurs. In order to found a conviction on a constructive manslaughter charge, the prosecution must prove three things. Firstly, the commission of an unlawful act; secondly, that that act caused death; and thirdly, that that act was dangerous, in the sense that it was likely to cause harm to another.
In the first instance, it must be shown that Billy's act was unlawful, in that it constitutes a criminal offence independently of the fact that it caused Shaun's death. In this case, the criminal offence that will constitute the unlawful act is the offence of administering a noxious thing under section 23 of the Offences Against the Person Act 1861. In the case of R v Cato, two drug addicts injected each other several times during the night with heroin. Each man made up his preferred mixture of the powder and loaded the syringe and then passed it to his friend to perform the injection. Cato's friend died, while he survived and he was subsequently charged with his friend's manslaughter. While the court accepted that what he had done was not an unlawful act under the Misuse of Drugs Act 1971, it was held that there was a sufficient proximity between the offence of possession and the injecting of the heroin that it was sufficient to constitute the actus reus of manslaughter by an unlawful and dangerous act.
Furthermore in the recent case of R v Rogers where the defendant held a tourniquet around the victim's arm while the victim self-injected heroin, with fatal effect, the Court of Appeal upheld the defendant's convictions for manslaughter on the basis that the defendant was a perpetrator of the administration offence under section 23 and, since the death had resulted from that unlawful act, a perpetrator of constructive manslaughter. The court went on to explain its reasoning further; it stated that it was artificial and unreal to consider the holding of the tourniquet in isolation from the act of injection; by applying the tourniquet, the defendant was playing a part in the mechanics which caused death.
Applying the rationale developed in the case of Rogers, it would be the case that Billy's act of supplying and preparing the heroin mixture for Shaun may be sufficient to amount to an unlawful act.
Secondly, it must be shown that the unlawful act was dangerous or was such that was likely to cause bodily harm to another. In the case of R v Church, it was held that an unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm. Applying this decision to the present set of facts, it is the case that a sober and reasonable person would recognise that Billy's act would result in some form of bodily harm to Shaun.
Billy could seek to negate liability by stating that the unlawful and dangerous act was not aimed at Shaun. It has, however, been suggested that the unlawful and dangerous act need not be aimed at the victim. In the case of R v Dalby, the court held that that the unlawful act had to be directed at the victim and likely to cause immediate injury, however slight. In the case of R v Goodfellow, the Court of Appeal held that the unlawful and dangerous act did not necessarily have to be aimed at somebody. It was sufficient that it caused death.
Finally it must be shown that the unlawful and dangerous act caused the death. In the case of R v Watson, it was held that the fact that an accused has done an unlawful and dangerous act and someone concerned in the events has died is not enough to without a proven causal link. In this case, Shaun, having injected himself with the heroin cocktail prepared by Billy, also consumes alcohol and amphetamines. Shortly after the lethal combination, Shaun died. The question that will have to be determined is whether the consumption of alcohol and amphetamines were sufficient enough to break the chain of causation so that Billy's act was not the cause of death.
In the recent case of R v Finlay, it was held that there was a chain of causation from when the defendant handed the victim the syringe and that the self-injection was not sufficient to break the chain of causation. However if it can be shown that the lethal concoction of amphetamines and alcohol did break the chain of causation then it would be impossible to show that Billy, by his act of preparing the syringe, caused Shaun's death, as there would be a break in the chain of causation.
If however, it is established that the chain of causation has not been broken, then the prosecution in addition to proving the three requirements above, would have to show that Billy had the requisite mens rea at the time of committing the offence. The mens rea of constructive manslaughter is simply that of the crime of constituting the unlawful act.
In this case the unlawful act is the administration of a noxious thing contrary to section 23 of the Offences Against the Person Act 1861. In order to satisfy the mens rea requirement for this offence, it must be shown that the administration of the noxious thing was done 'maliciously'. Maliciously has the same meaning attributed to it as in section 20 of the Offences Against the Person Act 1861. This means that Cunningham or subjective recklessness is required as to the administrating, and presumably also as to the circumstances that the thing is 'noxious'.
BIBLIOGRAPHY
1) Richard Card, Card, Cross & Jones Criminal Law, 2001, 16th edition, Butterworths, London.
2) Andrew Ashworth, Principles of Criminal Law, 2003, 4th edition, Oxford Press, Oxford.
3) Blackstone's Criminal Practice 2001, Blackstone Press, London,
4) Nicola Lacey & Celia Wells, Reconstructing Criminal Law, 1998, 2nd edition, Butterworths, London.
5) Catherine Elliott & Frances Quinn, Criminal Law, 2001, 3rd edition, Longman, London.
6) Michael .J. Allen, Textbook on Criminal Law, 2003, 7th edition, Blackstone Press, London.
CASES AND STATUTES LIST
CASES
Miller [1954] 2 QB 82
R v Roberts (1978)
Savage and Parmenter [1991] 4 All ER 698
DPP v Smith 1961] AC 290, [1960] 3 All ER 161, HL
Smith (1837) 8 C & P 173
Waltham (1849) 3 Cox 442
Moriarty v Brookes (1834) 6 C & P 684
R v McReady [1978] 1 WLR 1376
R v Mowatt [1968] 1 QB 421; [1967] 3 All ER 47
Jones (1986) 83 Cr App Rep 375, CA
R v Brown [1994] 1 AC 212
R v Wilson [1996] 2 Cr App R 241.
R v Emmett (1999) Times, 15 October CA
Lau v DPP [2000] Crim LR 580
Baron v Crown Prosecution Service (13 June 2000 unreported).
R v Cato [1976] 1 WLR 110
R v Rogers [2003 1 WLR 1374, CA
R v Church [1966] 1 QB 59
R v Dalby [1982] 1 WLR 425.
R v Goodfellow (1986) 83 Cr App R 23.
R v Watson [1989] 2 All ER 865; CA 73, 74.
R v Finlay [2003] All ER (D) 142 (Dec), CA.
STATUTES
Offences Against the Person Act 1861
Protection form Harassment Act 1997
Misuse of Drugs Act 1971
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