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S.47 of the Offences Against Person Act (1861) (Summary)

S.47 of the Offences Against Person Act (1861) reads as follows:-

“ Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable  . . . (to imprisonment for a term not exceeding 7 years) . . . ; and whosoever shall be convicted upon an indictment for a common assault shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding (two years).”

Actual bodily harm per se is defined as minor injuries including cuts, bruises, lacerations, or any other harmful act that causes the victim to suffer from some form of injury and it does not only include physical injury but also includes psychiatric injury see R v Burstow (1997) and R v Ireland (1998)

Assault is a prerequisite to obtaining a s47 conviction. Assault  is defined as  the act of intentionally or recklessly causing the victim to apprehend immediate and unlawful violence i.e. it is an offence that can be committed intentionally or an offence that can be committed without giving due thought to the impact that it would have on the victim.

In order to convict for assault the prosecution does not have to proof or establish physical injury and therefore it stands to reason that in order to obtain a conviction under s.47 of the Offences Against the Person Act (1861) the prosecution does not need to proof or establish physical injury either and it gives the prosecution some scope to convict defendants for causing or precipitating psychiatric illnesses.

A conviction under s47 of the Offences Against Person Act (1861) is more serious that a conviction for assault (assault is a summary offence). The maximum sentence for a s.47 conviction is 7 years whereas the maximum sentence for an assault is only 6 months.

However a s.47 offence is considered a less serious offence when compared to a s18 or a s20 offence of the Offences Against Person Act (1861). Whether an act will amount to an assault or otherwise depends on the facts see R v Wilson (1955).

It is also possible to substitute a s.20 conviction of the Offences Against Person Act 1861 with a s.47 conviction see R v Bollom (2004).

Mens Rea

The mens rea (mental element) for a s.47 offence is either –

  1. Intention
    or
  2. Recklessness

The test to determine whether the defendant intended to cause the victim some harm or was reckless as to whether some harm was caused or not is objective and the defendant need not foresee the consequences of his actions. It suffices that the injuries that resulted were a natural and probable consequence of the defendant’s actions.

In R v Roberts (1971) the defendant and the victim met at a party. Once the party was over the defendant offered to give the victim a lift in his car which the victim accepted and while they were on the road the defendant made sexual advances at the victim which the victim spurned or rejected. When the defendant did not stop the victim jumped out of the moving car and sustained cuts, bruisers, and other minor injuries. The defendant was charged with assault occasioning actual bodily harm and sexual assault. He was convicted for assault occasioning actual bodily harm and found not guilty of sexual assault. The defendant appealed on the grounds that he did not foresee or could not foresee the consequences of his actions or the victim’s reaction.

It was held that foresight of consequences is not a prerequisite to obtaining a conviction for a s.47 offence. It suffices that the victim’s reaction was a natural and probable consequence of the defendant’s actions.

In R v Venna (1975) the defendant and his friends were causing a ruckus, shouting, yelling, and banging trashcan lids together at 3 am in the morning. Their conduct caught the attention of a police officer who ordered them to stop but they refused. The police officer then proceeded to arrest them, but the defendant resisted, and the police officer called for backup. The defendant continued to resist arrest, and it eventually took three police officers to restrain the defendant who was pulling away, lashing out with his hands, and kicking wildly.

While arresting the defendant one of the police officers was injured as a result of the defendant’s actions and a bone in his hand was fractured. The defendant was charged and convicted.

The defendant appealed on the grounds that recklessness in itself was not sufficient for a conviction and the prosecution must establish intention i.e. a deliberate act that was done to injure the police officer citing R v Lamb (1967), where two boys got their hands on a revolver and one boy pointed the revolver at the other not realizing that there was a bullet in the chamber and pulled the trigger. The boy was tried for unlawful act manslaughter and the court held that there was no unlawful act.

The facts of R v Lamb (1967) can be distinguished from the facts in R v Venna (1975). In R v Lamb (1967) both the defendant and the victim were minors and in R v Venna (1975) both the defendant and the victim were adults. Some exceptions may be made for minors.

Secondly the boys were clearly fooling around, and their actions can be construed as frivolous or horseplay, though that in itself is not a defense on a charge of involuntary manslaughter, where the defendant points the gun and pulls the trigger see R v Jones (1874).

However, as a general rule in order to convict for unlawful act manslaughter the act must be above something that is construed as frivolous or horseplay see R v Church (1965).

In R v Venna (1975) it is clear that the defendant was not fooling around, and he did intent to resist arrest and did so by pulling away, lashing out with his hands and kicking and while doing so or while trying to resist arrest he injured a police officer.

The conviction was upheld, and it was decided that the defendant need not intend to harm the victim or cause him or her some form of injury. It sufficed that the injury was a likely and probable consequence of the defendant’s actions.

In R v Spratt (1990) the accused fired his air gun from an open window without thinking that there might be others in the vicinity, the thought never occurred to him. Two of the bullets that were fired from the air gun hit a young girl who was playing in the courtyard and the accused was charged with causing actual bodily harm (ABH) as per s47 of the Offences Against Person Act (1861). The question before the court was whether a) the accused intended to cause actual bodily harm or b) whether his conduct was so reckless that intention could be implied. The accused pleaded guilty and was sentenced. The accused appealed the sentence.

On appeal, the prosecution relied on the Caldwell test and sought to obtain a conviction on the grounds that the accused had either not given any thought to the possibility of there being any such risk or had recognized that there was some risk involved but had nonetheless gone on to commit the act. His conviction was quashed, and the judge decided that in order to convict for Caldwell recklessness the accused must have some appreciation of the risk.

It is clear that the Caldwell test is too broad and widens the scope of liability and the judge in R v Spratt (1990) recognizing the dangers of the Caldwell test has tried to limit or restrict its scope by looking at the accused’s state of mind at the time he committed the act.

Actus Reus

The actus reus (physical element) that needs to be established to obtain a conviction for a s47 offence is usually assault and battery but assault per se would suffice as long as it was done repeatedly and done with the intention to intimidate the victim see R v Burstow (1997) and R v Ireland (1998).

Battery is a summary offence i.e. an offence that is tried at a magistrate’s courts. It is an offence that in most instances follows an assault. The defendant first verbally abuses or intimidates the victim and soon after carries out his or her threat by using some form of physical violence.

Section 39 of the Criminal Justice Act 1988 gives us an idea of the offence. The section reads as follows: –

“Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both”.

However in order for the defendant to be guilty of battery the act must be unlawful. A defendant has a valid excuse to use force:-

When he or she is trying to defend himself or herself. At common law anyone is allowed to use reasonable force to protect himself or herself.

When the defendant is trying to prevent a crime as per s.3 (1) of the Criminal Law Act 1967. The act reads as follows:-

“A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large”.

What amounts to reasonable force is a question of fact and it is for a court or a jury to decide.

While the victim can be found guilty of causing or precipitating a psychiatric illness under s47 of the Offences Against Person Act (1861) see R v Burstow (1997) and R v Ireland (1998) he or she cannot be found guilty under s47 of the Offences Against Person Act (1861) for causing nervous shock for example in situations like that of Bourhill v Young (1943).

In R v Chan Fook (1994) the defendant had accused the victim of stealing his fiancé’s ring. The defendant after striking the victim several times, locked him in a second-floor room. The victim fearing that the defendant might return and hit him again, tried to escape through a window and as a result sustained injury. The defendant was charged under s47 of the Offences Against Person Act (1861) for causing him fear and panic. According to the direction given by the trail judge (first instance) to the jury, ABH or actual bodily harm includes inducing panic and hysteria. The defendant was convicted and appealed the conviction.

On appeal in was decided that panic and hysteria or inducing or, precipitating a situation that sends the victim into panic and shock, for example where the victim suffers from shock after witnessing a terrible accident, do not fall under s47 of the Offences Against Person Act.

Psychiatric illness is different from nervous shock in that the victim succumbs to a psychiatric illness after being constantly and repeatedly harassed  by the defendant whereas with nervous shock there is no harassment involved and the victim succumbs to nervous shock after witnessing  what is often a horrible and terrible accident, and it normally occurs on the spot or just after the mishap see Alcock v Chief Constable of South Yorkshire (1992) and White v Chief Constable of South Yorkshire (1998).

For the purposes of s47 of the Offences Against the Person Act (1861) actual bodily harm is defined as any act that causes a break in the continuity of the skin see JJC v Eisenhower (1984), any acts that precipitate or induce a psychiatric illness see R v Burstow (1997) and R v Ireland (1998) and it also includes any act that falls within the ordinary meaning of the term “actual bodily harm” which includes causing cuts, bruises, lacerations etc. to another.

It also includes acts that may seem trivial to others but impacts the victim’s emotional well-being for example the cutting-off of the victim’s hair without the consent of the victim.

In DPP v Smith (2006) the defendant went over to his ex-girlfriend’s house and cut off her pony tail with a pair of kitchen scissors and while there was no physical injury or there was no break in the continuity of the skin, the victim was distressed, and the defendant was charged with occasioning actual bodily harm. At first instance the magistrate concluded that there was no actual bodily harm (ABH) and the DPP appealed.

On appeal it was decided that the cutting-off of another’s hair, without the person’s consent, does constitute an offence that falls under s47 of the Offences Against the Person Act (1861).

As long as it is regarded or considered to be part of the body regardless of whether it is on the surface of the skin or beneath the surface of the skin, on the head or on the scalp, regardless of whether the tissue is alive or dead, any damage to it will fall under s47 of the Offences Against the Person Act (1861).

Furthermore, a person’s hair is regarded as an integral part of a person’s identity and it is intrinsic to who the person is and how that person wants to be perceived by others and to cause damage to it (the hair) is to cause damage to not only the person but also to the person’s identity.

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S.18 and S.20 of the Offences Against Person Act (1861) (Summary)

The offences of wounding and causing GBH (grievous bodily harm) are to be found in S. 18 and S. 20 of the Offences Against Person Act (1861). The sections read as follow: –

S. 18 “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 felony, and being convicted thereof shall be liable . . .  to be kept in penal servitude for life . . .”

S. 20 “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 a misdemeanor, and being convicted thereof shall be liable . . .  to be kept in penal servitude . . .”

Between the two, S. 20 is the lesser offence and S. 18 is the more serious offence and an offender if convicted under S. 18 can be kept in prison for life.

The mens rea (mental element) to obtain a conviction under S. 20 is as follows: –

  1. Intention

  2. Recklessness

The test to obtain a conviction under S. 20 of the Offences against Person Act (1861) is subjective see R v Savage (1991).

In R v Savage (1991) the defendant threw a glass of beer at her husband’s ex-girlfriend, but the glass slipped from her hand and resulted in serious injury to the victim. The defendant was tried and convicted for maliciously causing grievous bodily harm to another under S. 20 of the Offences Against the Person Act (1861). The victim appealed on the grounds that the word malicious required intent and the defendant had not intended to cause the victim the kind of harm or injury that resulted from her actions.

The trial judge had failed to inform the jury that the test to convict under S. 20 of the Offences Against the Person Act (1861) was subjective and the jury had to establish intent before it could convict under S. 20. However, given the facts it was possible to convict under S. 47 of the Offences Against the Person Act (1861), if the defendant could foresee that some harm would result from her actions albeit not the exact type of harm or injury that resulted. The matter was referred to the House of Lords.

The matter before the House of Lords was whether: –

  1. It was possible to substitute a S. 20 conviction for a S. 47 conviction when there was no intent, or the subjective test was not satisfied? The answer is yes, and it is possible to substitute a S. 20 conviction with a s.47 conviction on a count of causing grievous bodily harm (GBH) when the element of intent cannot be satisfied.

  2. A conviction under S. 47 simply required Actual Bodily Harm (ABH) i.e. minor injuries, bruises, cuts and wounds and proof of an assault. Silence can constitute an assault see R v Ireland (1997) and recognized psychiatric illnesses are also classed or categorized as physical injury see R v Ireland and Burstow (1997).

  3. In order to convict under S. 20 the defendant must foresee the consequences of his or her actions regardless of the severity of the harm or injury that resulted.

In R v Parmenter (1991) the defendant was convicted on four counts of causing grievous bodily harm to his infant son. The types of injuries included bruises, broken bones and aberrations. The judge directed the jury to convict under S. 20 of the Offences Against Person Act (1861) if they believed that the defendant ought to be aware (objective) or should be aware that his actions would cause his infant son some form of injury. The jury convicted, and the defendant appealed on the grounds that in order to convict under S. 20 the defendant must have foresight of the consequences (subjective) or must be aware that his actions would harm his son (subjective).

The defendant’s argument was that he did not know that the manner in which he handled his son would cause him physical injury or was unable to appreciate that his manner of handling his son would cause him physical injury.

The court held that the test to convict under S. 20 of the Offences Against the Person Act (1861) was subjective i.e. the defendant must be able to foresee the consequences of his actions and substituted the conviction for a conviction under S. 47 of the Offences Against Person Act 1861 (a lesser offence) where it sufficed that the defendant foresaw or could anticipate some form of harm.

The mens rea (mental element) to convict under S. 18 of the Offences Against Person Act is as follows: –

1. Intention to cause GBH (grievous bodily harm)

and/or

2. With intent to resist or prevent the lawful apprehension or detainer of any person.

s.18 convictions are reserved for more severe or serious offences which is made evident by the penalty that is imposed.

The test to determine intention is provided in Section 8 of the Criminal Justice Act (1967) – proof of criminal intent. A court or jury, in determining whether a person has committed an offence –

(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but

(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

In order to obtain a conviction under S. 20, the prosecution needs to satisfy the four components that make up the actus rues (physical element). They are as follows:

1. The act must be unlawful

2. Wounding

or

3. Inflicting/Causing grievous bodily harm (GBH)

4. On another person.

1. The unlawful act:-

In Fagan v MPC (1969) the defendant was in his car when he was approached by a police officer who told him to move his vehicle. The defendant did so and reversed his car onto the foot of the police officer. The police officer somewhat forcefully told the defendant to move the car off his foot and the defendant swore at the police officer, switched off the engine and refused to do so. The defendant was tried and convicted for assault and appealed the decision. The appeal was dismissed.

With reference to children any punishment that is imposed must only be to the extent that it is reasonable and anything beyond that may lead to criminal charges.

In R v Hopley (1860) the defendant was a schoolmaster who was charged with causing the death of one his pupils which was brought about or precipitated by excessive punishment.

It was held that a parent or a guardian may punish a child provided that it doesn’t go too far and it is done with the intention of correcting the child and not for the gratification of passion or rage

S. 58 of the Childrens Act 2004 elaborates further on the subject-

Reasonable punishment

(1) In relation to any offence specified in subsection (2), battery of a child cannot be justified on the ground that it constituted reasonable punishment.

(2) The offences referred to in subsection (1) are—

(a) An offence under section 18 or 20 of the Offences against the Person Act 1861 (wounding and causing grievous bodily harm);

(b) An offence under section 47 of that Act (assault occasioning actual bodily harm);

(c) An offence under section 1 of the Children and Young Persons Act 1933 (cruelty to persons under 16).

(3) Battery of a child causing actual bodily harm to the child cannot be justified in any civil proceedings on the ground that it constituted reasonable punishment.

(4) For the purposes of subsection (3) “actual bodily harm” has the same meaning as it has for the purposes of section 47 of the Offences against the Person Act 1861.

(5) In section 1 of the Children and Young Persons Act 1933, omit subsection (7).

Section 1 (1) of the Children and Young Persons Act 1933 reads as follows:-

If any person who has attained the age of sixteen years and has responsibility for any child or young person under that age, willfully assaults, ill-treats, neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated, neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement), that person shall be guilty of a misdemeanor, and shall be liable—

(a) On conviction on indictment, to a fine . . . or alternatively . . . or in addition thereto, to imprisonment for any term not exceeding ten years;

(b) On summary conviction, to a fine not exceeding £400 pounds, or alternatively . . . or in addition thereto, to imprisonment for any term not exceeding six months.

2. Wounding is defined as a break in the skin. In Moriarty v Brookes (1834) a publican tried to evict a customer who was causing a disturbance and refused to leave. The publican put his arm around the man’s shoulders and tried to evict the man and in doing so injured him below the eye (there was a cut in the skin which resulted in bleeding).

‘If the violence which occurred took place in an endeavor by the defendant to turn the plaintiff out of the house, the third plea is proved. However, this plea does not profess to justify any wounding; therefore, if there was a wound, the plaintiff is entitled to recover for that. It is proved that the plaintiff was cut under the eye, and that it bled; and I am of opinion that, that is a wound.’

The publican was found guilty and was deemed to have used too much force or excessive force.

If there is no break in the skin for example there is only a rapture of internal blood vessels, then as far as s. 18 of the Offences Against Person Act (1861) is concerned, it will not amount to or be classed or categorized as a wounding.

In JJC v Eisenhower (1984) the defendant, a minor, fired multiple rounds with an air-gun at a group of people and another minor in the group sustained injuries when he was hit by a pellet from the air-gun in the face and it caused the blood vessels below the surface of the skin to rupture. The defendant was charged under s.18 of the Offences Against Person Act (1861) and the question before the court was whether a s. 18 wounding requires a break in the skin.

The court decided that a conviction under s.18 of the Offences Against Person Act (1861) requires actual wounding i.e. a break in the continuity of the skin and even a scratch, for that matter, would not suffice.

Likewise a defendant cannot be found guilty of causing or precipitating a psychiatric illness under s. 18, because while psychiatric illnesses are recognized as physical injuries there is no break in the continuity of the skin but the defendant can be convicted under s. 47 of the Offences Against Person Act 1861 see R v Ireland (1998).

3. Grievous Bodily Harm. Grievous bodily harm is defined as serious harm to another person or harm that is above or more serious than actual bodily harm (ABH).

In DPP v Smith (1961) – Smith had stolen some goods and loaded it to the back of his car. A policeman ordered him to stop but he drove off instead and the policeman jumped on to the back of the car in order to stop him. The policeman was subsequently throw off from the back of the vehicle, into the path of other oncoming vehicles and died as a result. The defendant was tried and convicted. The defendant appealed.

The House of Lords unanimously upheld the conviction. In doing what he (Smith) did, he must, as a reasonable man have contemplated that serious harm was likely to occur. Hence, he is guilty of murder.

The test in DPP v Smith (1961) is as follows: – If the jury is satisfied that he (Smith) must as a reasonable man have contemplated that grievous bodily harm (GBH) was likely to have resulted to the policeman from his actions and such harm did in actual fact occur, then the accused is guilty of murder. On the other hand, if the jury is satisfied that he (Smith) could not have contemplated that the policeman would incur grievous bodily harm (GBH) as a result of his actions then the verdict would be guilty of manslaughter.

The test in DPP v Smith (1961) was supplanted by Section 8 of the Criminal Justice Act (1967) – Proof of criminal intent.

A court or jury, in determining whether a person has committed an offence –

(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but

(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

When assessing whether the injuries amounted to GBH or otherwise the jury is entitled to take into account the characteristics peculiar to the victim including his or her age. In R v Bollom (2004) the defendant inflicted injuries on his partner’s seventeen-month old baby and while the injuries would not have constituted grievous bodily harm (GBH) if inflicted on an adult, the same injuries when inflicted on a child could constitute grievous bodily harm (GBH). The jury took into account of the fact that the victim was a baby and convicted the defendant for causing grievous bodily harm (GBH).

The defendant appealed on the grounds that when deciding whether any injury (injuries) constituted grievous bodily harm (GBH), the jury should not take into account the age and characteristics of the victim.

The court of appeal held that when deciding whether an injury (injuries) amounts to grievous bodily harm (GBH) the jury is entitled to take in account the victim’s age, sensitivities, and characteristics. However, because not all the injuries that were sustained by the victim were a result of the defendant’s actions the conviction was substituted for a S. 47 conviction or actual bodily harm (ABH). It is possible to substitute a S. 20 conviction with a S. 47 conviction see R v Savage (1991) and R v Parmenter (1991). The test to determine whether a defendant is guilty of a S. 47 offence is objective.

It also worth keeping in mind S. 58 (4) of the Childrens Act 2004 – For the purposes of subsection (3) “actual bodily harm” has the same meaning as it has for the purposes of section 47 of the Offences against the Person Act 1861”.

S. 58 (3) of the act reads as follows: –

“Battery of a child causing actual bodily harm to the child cannot be justified in any civil proceedings on the grounds that it constituted reasonable punishment”.

When assessing the nature of the injury (injuries) the jury is to take into account all factors and whether the injury (injuries) amount to GBH or otherwise is to be determined by taking into account ordinary standards of usage and experience and this direction is in line with Section 8 of the Criminal Justice Act (1967).

In R v Brown and Stratton (1997) the defendant and his cousin were embarrassed by the defendant’s father who was undergoing a gender reassignment and turned up at the defendant’s workplace wearing a dress. Both the defendant and his cousin after a drinking bout, went over to the where the defendant’s father was staying, and assaulted her inflicting numerous injuries including a broken nose, a concussion and knocked out several teeth. The defendants pleaded guilty to causing actual bodily harm as per S. 47 of the Offences Against Persons Act (1861) and not grievous bodily harm (GBH) as per S. 18 of the Offences Against Person Act (1861).

The trial judge directed the jury to consider the injuries from the perspective of the victim and if the victim would consider the injuries that she’d sustained as serious and the defendants were accordingly convicted for causing grievous bodily harm (GBH) under S. 18 of the Offences Against Persons Act (1861). The defendants appealed.

It was held that while there was a mis-direction (the direction to the jury), it did not by itself render the conviction unsound.  Taking into account the fact that the defendants were intoxicated at the time the S. 18 conviction was substituted for a S. 20 conviction of the same act.

Grievous Bodily Harm includes psychiatric illnesses. However an action for causing a psychiatric illness is best brought under S. 20 of the Offences Against Person Act (1861) because a S. 18 conviction of the same act requires a break in the continuity of the skin see JJC v Eisenhower (1984)

In R v Ireland and Burstow (1998) the defendant and the victim were in a brief relationship which the victim unexpectedly ended. Unhappy with the victim’s decision, the defendant harassed the victim for several months making repeated phone calls, sending her threatening letters, turning up unexpectedly and speaking to her neighbors. The defendant’s actions caused the victim to succumb to a psychiatric illness (severe depression).

It was decided that: –

  1. Words are sufficient to constitute an assault. In fact, silence alone for example in instances where the caller calls the victim and remains silent can constitute an assault – the proposition … that words cannot suffice is unrealistic and indefensible. With reference to phone calls – that fact that the caller calls and remains silent to cause fear and intimidation is sufficient to constitute an assault – Lord Steyn see R v Ireland (1998)

  2. Psychiatric illness (injury) does fall under the scope of bodily harm or can be classified or categorized as bodily harm (whether it is actual bodily harm or grievous bodily harm most likely depends on the severity of the offence, keeping in mind that it is possible to substitute a S. 20 conviction for a S. 47 conviction)

  3. Inflict – the word inflict includes both direct and indirect harm and it could either be intentional or due to the defendant’s recklessness. In R v Martin (1881) the defendant shut the doors at a theater and placed a crossbar across the door. He then switched off the lights on a staircase and yelled “fire”. His actions caused a panic and some of those that were in attendance were injured when they rushed out.

It was held that the defendant, regardless of the fact that he was merely playing a prank, must be deemed to have intended the consequences of his actions and he was found guilty accordingly.

In R v Wilson (1984) the defendant hit a pedestrian (the victim) with his vehicle and a heated argument subsequently ensued during the course of which the defendant punched the victim.

It was held that ‘grievous bodily harm may be inflicted, either where the accused has directly and violently ‘inflicted’ it by assaulting the victim, or where the accused has ‘inflicted’ it by doing something, intentionally, which, though it is not itself a direct application of force to the body of the victim, it does directly result in force being directly applied violently to the body of the victim so that he suffers grievous bodily harm’

With regards or reference to psychiatric illnesses, inflict is construed as causing or precipitating the illness and does not require proof of assault or battery and nor does it require direct or indirect force. The defendant’s persistent and often repeated actions can be construed as inflicting, when the psychiatric illness does occur.

In R v Burstow (1997) the defendant and the victim were in a brief relationship which the victim unexpectedly ended. Unhappy with the victim’s decision, the defendant harassed the victim for several months making repeated phone calls, sending her threatening letters, turning up unexpectedly and speaking to her neighbors. The defendant’s actions caused the victim to succumb to a psychiatric illness (severe depression).

The questions before the courts were as follows: –

  1. Are words alone sufficient to constitute an assault and

  2. Does psychiatric illness (injury) fall within the scope of S. 18, S. 20 and S. 47 of the Offences Against the Person Act 1861 and can it be defined as bodily harm.

It was decided that on: –

  1. Words are sufficient to constitute an assault.

  2. Psychiatric illness (injury) does fall under the scope of bodily harm or can be classified or categorized as bodily harm.

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Tort cases: Blyth v Birmingham Waterworks Co. (1856) (Court of Exchequer)

In Blyth v Birmingham Waterworks Co. (1856) (Court of Exchequer)  – The defendants were a body incorporated by statute to supply the town of Birmingham with water. According to s 84 the company should at the time of laying down any main pipe or any other main pipe on the street, fix at the time of laying down of the pipe a proper and sufficient fire-plug (a hydrant for a fire hose) in each street.

According to s 87, pipes were to be eighteen inches beneath the surface of the soil and according to s 89 the mains were at all times to be kept charged with water.

The defendants derived no profit from the maintenance of the plugs distinct from the general profits of the whole business, but such maintenance was one of the conditions under which they were permitted to exercise the privileges given or granted by the Act.

On February 24, a large quantity of water escaped from the neck of the main and forced its way from the ground into the plaintiff’s house. The plaintiff sued for damages. The case was tried before a jury and the County Court Judge found in favor of the plaintiff. The defendants appealed.

Baron Anderson – “The defendants might have been liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done” – verdict to be entered for the defendant.

Negligence is the act of doing something, which under the circumstances, a reasonable or a prudent man, guided by the considerations that normally regulate the conduct of human affairs, would not do or the act of not doing something, which under the circumstances, a reasonable and a prudent man, guided by the considerations that normally regulate the conduct of human affairs, would do.

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Zingiber Zerumbet

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Diminished Responsibility (Summary)

The defense of diminished responsibility is raised when an accused is tried for murder and the defense puts forward the argument that at the time the accused committed the act he or she had lost, albeit temporarily, his or her ability to think and reason. It could either be due to a permanent illness see R v Smith (Morgan) (2000) or it could be due to an illness that makes itself obvious or apparent in temporary fits and seizures see R v Campbell (1997).

In R v Dunbar (1958) the accused entered a room occupied by an 84-year-old lady while she was sleeping to steal some money. The lady woke up and the accused fearing that the lady would recognize him picked up a bottle of lemonade that was close by and hit her with it and the injuries that she sustained subsequently led to her death. The accused was tried and convicted for murder.

At the trial, the accused raised the defense of diminished responsibility and he appealed on the grounds that the trial judge had misdirected the jury on the standard of proof required to raise the defense of diminished responsibility. His appeal was successful and it was held that the standard of proof required to establish diminished responsibility was “a preponderance of probability”.

Intoxication or the state of being drunk is not sufficient to raise the defense of diminished responsibility. In R v Di Duca (1959) the accused for a conviction of murder raised the defense of diminished responsibility contending that the state of being drunk had reduced his capacity to think and reason. The judge refused to accept that drunkenness fell under the category of diminished responsibility and the jury convicted accordingly. The accused appealed and the appeal was dismissed. The accused was sentenced to death.

In R v Byrne (1960) the accused strangled a young woman to death in the YMCA. After killing her he mutilated her body. At his trial, evidence was submitted that the accused suffered from an impairment of the mind that induced sexual perverseness. He had been suffering from the condition since a young age. The jury convicted for murder and the accused appealed.

The appeal was allowed. Abnormality of the mind covers all areas and aspects of the mind and it need not be equated to or does not need to correspond with madness. The mind is vast, and to date science has not yet uncovered its full potential and neither has it been able to provide a complete and exhaustive list of mental illnesses. Therefore, a lot depends on the facts. The burden of proving or establishing diminished responsibility lies with the defense.

S. 2 of the Homicide Act (1957) sheds more light on the subject. S. 2 (1) A person (“D”) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which –

(a) arose from a recognized medical condition,

(b) substantially impaired D’s ability to do one or more of the things mentioned in subsection (1A), and

(c) provides an explanation for D’s acts and omissions in doing or being a party to the killing.

(1A) Those things are—

(a) to understand the nature of D’s conduct;

(b) to form a rational judgment;

(c) to exercise self-control.

S.2 (2) On a charge of murder, it shall be for the defense to prove that the person charged is by virtue of this section not liable to be convicted of murder and S. 2 (3) a person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter.

In R v Rose (1961) (Privy Council) the accused was a prisoner who stabbed a supervisor for refusing to give him the key to the gates. He was tried and the judge directed the jury in accordance with the rules for insanity (the M’Naghten rules). The accused was convicted and the accused appealed.

The appeal was allowed. It was decided that an accused may well be able to appreciate the gravity and consequences of his act and may know that the act was wrong but despite that he is unable to control or curb his actions.

This type of mental impairment (R v Rose (1961) (Privy Council)) is similar to that of those who suffer from impulse control disorders. Kleptomaniacs for example are unable to stop themselves from stealing despite the fact that they know the act is wrong and more often than not they are afraid of getting caught but despite that they continue to steal.

In R v Lloyd (1966) the accused strangled his wife. The accused was arrested and charged. At the trial, the defense brought to light the fact that the accused suffered from a mental abnormality but there was no evidence to indicate that the mental abnormality that he suffered from would impair his ability to reason.

The trial judge directed the jury to the effect that they should decide based on the evidence that was presented to them if the mental abnormality constituted substantial impairment or otherwise. If the jury found that that the mental impairment was substantial then they should convict for manslaughter, otherwise they should convict for murder.

The jury convicted for murder and the accused appealed on the grounds that “abnormality of mental functioning” as per S. 2 (1) of the Homicide Act (1957) meant that the mental impairment should be more than trivial and not substantial in the ordinary sense of the word. His appeal was based on the premise that the level of mental impairment that was required to escape a conviction for murder need only be more than trivial and that the trial judge had erred in his direction to the jury.

The appeal was dismissed and it was decided that the trial judge had not erred in his direction. The jury is to decide whether the mental impairment that the accused in a murder trial raises on a charge of murder is substantial or sufficient to allow the accused to successfully raise the defense of diminished responsibility based on the evidence that is presented.

Now what if the killing is done out of love or compassion? If the accused suffers from a long-term mental illness like depression than that is sufficient to raise the defense of diminished responsibility and the accused will not be guilty of murder but rather manslaughter.

In Price (1971), The Times, 22 December 1971, the accused allowed his terminally ill son to drown. The accused was arrested and charged but he was convicted not of murder but of manslaughter and the killing of his son was not seen as murder because the accused had allowed him to drown out of compassion and the accused’s decision was linked to his long-term depression. This type of killing is known as mercy killing or killing on compassionate grounds.

Is this type of killing different from infanticide in cases where the mother knows for certain that the child will not have a good life ahead or will have a life that is filled with hardship, especially when the mother suffers from depression which is an extremely common illness? That is for a court to decide.

Earlier on we had said that excessive drinking or consumption of alcohol alone while it may impair the accused’s ability to think and reason clearly will not fall under the category of diminished responsibility but what if the accused suffers from depression and commits murder while he or she was drunk or after he or she had been drinking excessively?

In R v Fenton (1975), the accused after he’d been drinking heavily shot a policeman and drove off in his car to a club where he shot and killed more people, 3 more to be precise. The accused was charged with murder and raised the defense of diminished responsibility.

Under S. 2 of the Homicide Act 1957 excessive drinking will only be a defense if “it either causes damage to the brain or produces an irresistible craving so that consumption is involuntary”.

In situations where the consumption of alcohol will not give rise to a defense but the defendant suffers from some type of mental impairment the court will ignore or set aside the fact that the accused had been drinking and look solely at the mental illness to determine if that mental illness was substantial enough to constitute an abnormality of mind that would give rise to a defense. In this instance, it was decided that it would and the accused was convicted of manslaughter.

In Walton v The Queen (1978) (Privy Council) the accused shot and killed a passenger in a car. The accused was charged and convicted of murder and the accused appealed. The appeal was dismissed and the court held that the accused was guilty of murder.

The jury when deciding whether to convict for murder or otherwise is entitled to take into account not only the medical evidence that is submitted by the doctors but also of all the facts surrounding the death and the jury can if it chooses, ignore the medical evidence if it finds that the medical evidence is not entirely convincing.

Medical evidence in most instance is conclusive, in this day and age anyway, but a jury can if it chooses to, ignore it, especially if it feels that the medical evidence may have been tampered with.

In R v Vinagre (1979) the accused suspected that his wife was having an affair with a plainclothes policeman though there was no evidence to suggest that they were having an affair and in a fit of jealousy the accused stabbed his wife 34 times thereby killing her.

The accused was charged and the trial judge accepted the plea for diminished responsibility and hence his life imprisonment was reduced to 7 years. Overall however unfounded jealousy is not a defense and it only becomes a defense under diminished responsibility when it creates a clear mental imbalance.

In addition to that jealousy can only be raised as a defense in an existing relationship or in a relationship that is very much alive. It is almost impossible to plead jealousy if the relationship had ended and the accused is still for some reason or other possessive of his former girlfriend or ex-partner.

In R v Sutcliffe (1981), the case concerns the trial of Peter Sutcliffe the Yorkshire ripper. There was overwhelming medical evidence that was presented to corroborate the contention of the defense that the accused was a paranoid schizophrenic. The judge however ruled in line with the decision in Walton v The Queen (1978) (Privy Council) that the jury were entitled to disregard the medical evidence and the jury accordingly returned a verdict of guilty of murder or guilty of multiple murders.

R v Gittens (1984) reaffirms the decision R v Fenton (1975). In R v Gittens (1984) the accused who was suffering from depression, beat his wife to death after which he returned home and killed his stepdaughter. At the time, he’d been drinking while he was, at the same time, on medication for his depression and often the two don’t agree i.e. anti-depressants don’t go well with alcohol and can easily raise the level of intoxication.

The accused was held to be guilty of manslaughter and the test to be applied was whether the mental illness was sufficient to drive the accused to kill without the consumption of alcohol.

Diminished responsibility and insanity are not the same thing see R v Rose (1961) (Privy Council). In R v Seers, the accused suffered from chronic depression and stabbed his wife. The accused was charged with murder and at the trial the judge directed the jury that they should only find the accused guilty of manslaughter if his depression bordered on insanity. The accused appealed on the grounds that the judge had erred in his direction and the court in line with R v Byrne (1960) held that in order for the defense of diminished responsibility to be raised the accused had to establish abnormality of mind as per S.2 of the Homicide Act (1957). The accused was found to be guilty of manslaughter.

It is normally a good idea to produce medical evidence when raising the defense of diminished responsibility and while the jury may refuse to take into account or consider the medical evidence, they can do so if they find that the medical evidence has been tampered with see Walton v The Queen (1978) (Privy Council) or if the interests of the public are better served by a conviction see R v Sutcliffe (1981), they would normally take into account the medical evidence that is presented.

In R v Reynolds 1988 the accused was suffering from post-natal depression, after she’d had a baby without the knowledge of her family and during an argument with her mother, she clubbed her mother to death with a hammer. At the trial, the accused raised the defense of diminished responsibility and the defense produced medical evidence to support her claim. The accused was convicted of manslaughter instead of murder and her defense was successful.

R v Tandy (1989) once again supports the presumption that excessive drinking or alcoholism in itself is not sufficient to raise the defense of diminished responsibility in a murder trial unless the excessive drinking has induced an abnormality of mind within the meaning of S. 2 of the Homicide Act (1957).

In R v Tandy (1989) the accused strangled her 11-year-old daughter to death after she complained to the accused that she had been sexually abused by her stepfather. The accused had been drinking heavily just prior to the incident and at the time of the incident she was very drunk. The accused was tried and convicted for murder. The accused appealed but the appeal was dismissed.

In assessing whether the defense of diminished responsibility can be successfully raised there are two principles to be considered. Firstly, if there are no other factors to be considered, unequivocal and un-contradictory medical evidence favorable to the accused should be accepted and the direction to the jury should be as such and secondly when there are other factors to be considered the medical evidence though unequivocal and un-contradictory should be considered in light of those factors or those circumstances as per R v Sanders (1991).

In R v Sanders (1991) the accused killed his wife with a hammer because she was having an affair with another man. The accused was a diabetic and because of his illness had lost sight in one eye which caused him to sink into depression. The accused was tried and convicted and the accused appealed on the grounds of diminished responsibility. The appeal was dismissed and the accused was held to be guilty of murder based on the principles stated above.

In R v Egans (1992) we once again examine if killing a person while in a state of drunkenness will allow the accused to raise the defense of diminished responsibility. The accused entered a home with the intention to rob and stumbled across an elderly widow. He attacked her and she died as a result of the injuries sustained. He had been drinking heavily prior to committing the act and the accused suffered from an inherent mental disability that was similar to a development disorder.

The court applied the test in R v Gittens (1984) and decided that the question that was to be asked is if the mental illness was sufficient to constitute an abnormality of the mind without taking into account the fact that the defendant had been drinking and would that abnormality of the mind have driven the accused to kill without the influence of alcohol? It was decided that the abnormality of the mind would not have led the defendant to kill and the fact that he was drunk at the time was not sufficient to raise the defense of diminished responsibility.

In R v Ahluwalia (1993), the accused was constantly abused by her husband. The type of abuse included beating her daily and taking her money. In addition to that he was also having an affair with another woman. On the night of the incident, after subjecting his wife to verbal abuse, the accused threatened to beat her up the following morning.

Once the victim was asleep the accused doused her husband with petrol and set him alight. She was arrested and tried for murder. She raised the defense of provocation but the defense of provocation in line with the decision in R v Duffy (1949) was denied. The accused was convicted for murder and the accused appealed raising the defense of diminished responsibility. The appeal was allowed on the grounds of diminished responsibility however the judge did stress that under normal circumstances both defenses should be raised in the first instance otherwise the defense might exhaust one defense before attempting another. It was decided that the accused was not guilty of murder and a retrial was ordered.

In R v Sanderson (1994) the accused hit his girlfriend over the head with a wooden stave. At the trial the defense adduced evidence to show that the accused suffered from acute paranoia, in addition to being a drug user, and the paranoia coupled with the drugs had prompted the accused to kill his girlfriend. The accused was tried and it was held that the accused was guilty only of manslaughter and despite the fact that he was on drugs the accused’s abnormality of mind was inherent and something that he had suffered from as a child and regardless of the fact whether he was on drugs or not, the abnormality of mind, under the circumstances, would have most likely have caused him to act or react in the manner that he did.

In R v Hobson (1997) we once again consider the implications of BWS or Battered Women’s Syndrome. At the initial trial the accused was charged with killing her husband. Her husband was an alcoholic and he often abused his wife while he was drunk. The accused stabbed him with a knife and during her trial she raised the defense of provocation and self-defense. The defense of provocation was rejected as was the defense of self-defense and the accused was convicted of murder.

The initial trial was in 1992. In 1994 BWS or Battered Women’s Syndrome was recognized as a mental illness in Britain and the accused appealed. Her appeal was successful. A retrial was ordered and the accused’s conviction for murder was substituted with that of manslaughter.

Where the accused commits murder because of the side-effects of drug taking the accused cannot rely on the defense of diminished responsibility. In instances where the accused suffers from a mental illness or an impairment of the mind and further aggravates the situation by taking drugs and other illegal substances the situation is similar to that of the accused who suffers from a mental illness and then goes on to kill another while he or she is drunk see R v Connell (1997).

The question that is to be asked is if the mental illness was sufficient to constitute an abnormality of the mind without taking into account the fact that the defendant had been drinking and would that abnormality of mind have driven the accused to kill without the influence of alcohol? see R v Egans (1992).

The test in R v Egans (1992) however was reversed in R v Dietschmann (2003). The accused who was very close to his aunt received news that she had died while he was in prison. He reacted badly to the news and attempted suicide and was put on medication. Following his release from prison, still unable to come to terms with his aunt’s death he started drinking heavily and two weeks after his release he was drinking with some friends when an argument broke out and the accused rather brutally kicked the victim, one of the friends who was drinking with him, to death. The accused was charged and convicted for murder. The accused appealed.

It was held that being drunk does not give rise to the defense of diminished responsibility and it only does so if the alcohol has caused some sort of permanent damage to the mind. However, it is also possible to say that the defendant would not have killed had it not been for the alcohol and while alcohol does not cause an abnormality of the mind unless there is permanent damage done as a result of excessive drinking, it does alter the characteristics of the accused. The appeal was allowed and a retrial was ordered.

In R v Hendy (2006) the accused a 16-year-old had without doubt some sort of mental impairment as a result of a head injury that he suffered from as a child. He was callous and reckless and gave little though of his own safety and at times had endangered his own life. On the night of the incident the accused had been drinking heavily and had attempted to take his own life but he was stopped by friends. That night once he’d returned home, still drunk, he walked out into an alley with a knife and stabbed a man to death. The accused was arrested.

At the trial it was held that the accused did not have to show that the mental impairment would have caused him to kill, under the circumstances, as per R v Egan and the court followed the decision in R v Dietschmann (2003). In addition to that if the accused satisfies the conditions of S. 2 of the Homicide Act 1957 the verdict that would be returned is that of manslaughter.

When it comes to diminished responsibility the more bizarre the crime the higher the chances or the probability that the accused will have a conviction of murder reduced to that of manslaughter and the reason for this is that a normal man or an ordinary man or a reasonable man for the matter will not be able to envisage these crimes, let alone commit them and therefore it stands to reason that the accused was most likely suffering from some sort of mental impairment or damage to the mind, at the time he or she committed the act:-

In R v Byrne (1960) the accused strangled a young woman to death at the YMCA. After killing her he mutilated her body. At his trial, evidence was submitted that the accused suffered from an impairment of the mind that induced sexual perverseness. He had been suffering from the condition since a young age. The jury convicted for murder. The accused appealed and the appeal was allowed.

In R v Fenton (1975), the accused after he’d been drinking heavily shot a policeman and drove off in his car to a club where he shot and killed more people, 3 more to be precise. The accused was charged with murder and he raised the defense of diminished responsibility. Because the accused was suffering from an inherent mental disability he was convicted for manslaughter instead of murder.

Someone who suffers from a mental illness or other conditions like acute depression can also raise the defense of diminished responsibility if the killing was done on compassionate grounds. In Price (1971), The Times, 22 December 1971, the accused allowed his terminally ill son to drown. The accused was arrested and charged but he was convicted not of murder but of manslaughter and the killing of his son was not seen as murder because the accused had allowed him to drown out of compassion and the accused’s decision was linked to his long-term depression.

In R v Sanderson (1994) the accused hit his girlfriend over the head with a wooden stave. At the trial the defense adduced evidence to show that the accused suffered from acute paranoia, in addition to being a drug user, and the paranoia coupled with the drugs had prompted the accused to kill his girlfriend. The accused was tried and it was held that the accused was guilty only of manslaughter and despite the fact that he was on drugs the accused’s abnormality of mind was inherent and something that he had suffered from since he was child

The defense of diminished responsibility is different to the defense of insanity and the former is reliant on satisfying the conditions of S2 of the Homicide Act 1957 while the latter is reliant on the M’Naghten rules as per R v Rose (1961) (Privy Council).

In R v Rose (1961) (Privy Council) the accused was a prisoner who stabbed a supervisor for refusing to give him the key to the gates. He was tried and the judge directed the jury in accordance with the rules for insanity (the M’Naghten rules). The accused was convicted. The accused appealed and the appeal was allowed.

Finally, Battered Women’s Syndrome (BWS) is a mental illness that was recognized as such in Britain in 1994 and an accused who commits murder while suffering from BWS can successfully raise the defense of diminished responsibility see R v Hobson (1997).

Copyright © 2019 by Dyarne Jessica Ward

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