Assualt, Battery,Mens rea, Actus reus

'The Throwing of the Bottle"

George, returning home after several pints of beer believes along with Harold and Ivor that he is witnessing an attack and throws a bottle into the darkness. The bottle hits a wall and then hits Harold briefly knocking him unconscious. George has the requisite actus reus to be convicted of any of the following; battery; an assault occasioning actual bodily harm, under section 37 of the offences against the persons Act and Grievous Bodily Harm under section 20 of the Offences Against the Persons Act. The actus reus for battery consists of applying unlawful force to another, and the force can be applied indirectly as in the case of Fagan v Metropolitan Police Commissioner 1 and a mere touch can be sufficient - R v Thomas. 2 The maximum penalty carried here is six months 3 . The knocking down of Harold with the bottle however would seem t o be of greater gravity then a mere battery, and would be more likely to constitute the actus reus of actual bodily harm, which requires that the actus reus of assault or battery be shown, but in addition that the actual bodily harm includes hurt or injury calculated to interfere with health or comfort,4. and that the injury should not be so trivial as to be wholly insignificant.5 The maximum penalty here is five years.6 As it is for the offence of grievous bodily harm,7 however for George to have the relevant actus reus the harm must be really serious harm,8 and in order to inflict, again there need not be any actual direct application of force as can be seen from the case of R v Ireland and Burstow. 9. In order for the wounding to constitute the relevant gravity it must be shown that Harold received a breaking of the skin, though there need not be bleeding as grazing is sufficient, strangely internal bleeding will not constitute grievous bodily harm as shown in the case of C (a minor) v Eisenhower,10 which as Elliott and Quinn point out is somewhat strange as a pin prick that draws blood would constitute sufficient harm. 11

Does George have the requisite mens rea to be guilty of any of the offences? In regards to battery there must be an intention or Cunningham Recklessness as to apply unlawful force. In regards to an offence under section 47 the test is the same but to cause actual bodily harm. It is likely that the court would hold that throwing a bottle per se was intended to cause unlawful force or actual bodily harm, or that if George did not intend it he must have known the risk of unlawful force or actual bodily harm being caused (Cunningham Recklessness). So, yes it is likely that the behaviour of George will constitute a conviction for battery and ABH, however this is of course subject to possible defences that shall be discussed in due course. In regards to an offence under section 47 the mens rea is defined by the word maliciously. In the case of the Director of Public Prosecutions v A 12 it was stated that the defendant need not have intended or foresaw that some harm would occur (sufficient to amount to GBH or not), only that some harm might occur. GBH Again, subject to the degree of harm caused the conduct of George would be sufficient (subject to defences) to bring a successful prosecution for GBH.

What possible defences can George raise? It must be said that George bears the evidential burden, so must produce some evidence to support his claim, and upon production of such evidence than the burden of proof passes to the prosecution to disprove the defence. The strongest defence would be that of public defence under section 3 of the Criminal Law Act 1967. This section allows a person to use such force as is necessary to prevent a crime.

In order for George to raise the defence he must show that there was a necessity for action. Here the Court will look at three factors, the possibility of retreat, whether the threat was imminent and finally whether the defendant made some mistake which caused them to think that the action was justified. In R v McInnes 13 it was judged that the failure to make a retreat will not prevent the defence from been used, but rather it is simply evidence which can be used to judge whether or not it was necessary to use force. In this case there is little doubt that retreat was a viable option for George as he was acting in the defence of another, so it would seem that this would not preclude him from raising the defence. Was there then an imminent threat? A defendant will only be justified in reacting to a threat, which is imminent; in Attorney General's Reference (No. 2 of 1983)14 a shopkeeper has prepared petrol bombs ready to defend hi shop where there had been extensive rioting in the surrounding area. This was held to be sufficiently imminent. Therefore it is very likely that the Court will view the mistaken threat here as imminent. Does the fact that George was probably mistaken as to the threat preclude him from raising the defence? The case of R v Williams (Gladstone) 15 a man punched a person who he thought was attacking a youth. He man was, unbeknown to the defendant, trying to stop a mugging of a woman in the street by the youth. The defendant was found not guilty of ABH, and the Court held that this was because in allowing the defence the Court should look at the facts as the defendant honestly thought them to be, whether the mistake was reasonable or not. However in the case of R v O'Connor 16 it was held that if a mistake is introduced by intoxication then the mistake must be ignored I relation to the defence. If the court holds on the facts that the mistake was due to the intoxication of George then he will be precluded from using the defence. On the facts this seem unlikely as all three seem to have been under the impression of an attack, however much will rely on the amount of drink consumed.

As well as showing a necessity for action George must show that he used reasonable force. Here the amount of force used will be compared to the harm that was sought to be prevented. If the force is seen as excessive then the defence will fail. The defendant is not expected to perform precise calculations in the heat of the moment.17 It must be stated that the test for mistake as to degree of force is not likely not preclude the defence here. As was unequivocally stated to in the cases of Williams and of R v Anthony Martin 18, the test is an objective one, and makes no allowances for the mistake of the defendant as to what he believed was reasonable force. However two types of cases should be distinguished. Where the defendant is not mistaken as to the facts, but uses what he sees as reasonable force, and under the objective test this is viewed not to be, then he will be precluded from the defence, as in Anthony Martin. If, however as in Williams, he is mistaken as to the facts and then uses force, he will be judged on the facts that he though existed and hence the force that was reasonable, on those facts, under an objective test. In my view if George's mistake is not found to be due to intoxication he will therefore raise the public defence successfully.

George will not be able to raise the defence of intoxication as from the case of DPP v Majewski 19 the defence is only available to crimes of specific intent, this was held to be two types of offences, those that can only be committed intentionally (i.e. without recklessness for example) or those crimes where the required mens re goes beyond the actus reus. GBH, ABH and battery are all crimes of basic intent, as they can be intended with some other form of mens reas as well as intentionally.

George could raise the defence of duress, but since R v Symonds 20 the court has held that this defence should not be preferred to self defence or defence of another in offences against the person as George is likely to be charged with. The defence of necessity is also not really a viable option as public defence is seen as a form of necessity.21

George would not be found guilty of murder or manslaughter of Bella because of the reasonably foreseeable test which will be discussed in due course.

[1969] 1 QB 439[^ Return]
[1985] 81 cr App R 331[^ Return]
The Criminal Justice Act 1988, s 39.[^ Return]
R v Miller [1954] 2 QB 282[^ Return]
R v Chan-Fook [1994] 2 All ER 552[^ Return]
Offences Against the Person Act 1861 s 47.[^ Return]
Offences Against the Person Act 1861 s 20.[^ Return]
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[1997] QB 114[^ Return]
[1984] QB 331[^ Return]
Elliott, C. and Quinn, F. Criminal Law 4th ed Longman pg 117[^ Return]
[2000] 164 JP 317[^ Return]
[1971] 1WLR 1600[^ Return]
[1984] AC 456 CA[^ Return]
[1987] 3 All ER 411 CA[^ Return]
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[1977] AC 443[^ Return]
[1998] Crim LR 280 CA[^ Return]
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