Crime XXXXXXXIII – Assault V

In order to convict for assault the prosecution must establish that the assault was directed at the person and not at someone else despite the fact that the victim may apprehend immediate fear.

In R v Pembliton, (1874) the defendant was ejected from a pub and became involved in a fight with a group of men in the street. The defendant picked up a large stone and threw it at the men, but the stone missed and crashed through the pub window behind them.

The question that arose was whether malicious intention could be transferred, and it was held that malicious intention to strike a person or the intention to cause some form of injury to a person could not be transferred to breaking a shop window. However, the defendant could be found guilty if his actions were reckless.

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.

The decision in R v Wilson (1955) was followed in R v Constanza (1997). In R v Constanza (1997) the defendant for a period of almost two years followed a female ex-colleague from work, sent her over 800 threatening letters and made numerous silent phone calls to her number.

The victim was eventually diagnosed by a doctor as suffering from clinical depression and anxiety due to fear caused by the defendant’s actions. The defendant was found guilty and the courts reaffirmed that words alone were sufficient to constitute an assault if it caused the victim to apprehend immediate fear.

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Crime XXXXXXXII – Assault IV

In R v Meade and Belt (1823) the defendants surrounded the plaintiff’s house singing menacing and threatening songs. It was held that mere singing alone could not constitute an assault.

It’s worth comparing the decision in R v Meade and Belt (1823) with the decision in Read v Coker (1853).

In Read v Coker (1853) the plaintiff was a paper-stainer who rented a premise from the defendant. The plaintiff fell behind in his rent and the defendant employed a third party to purchase his fixtures (machines, apparatus etc.) and resell them back to the defendant.

Subsequently the plaintiff and the defendant came to an arrangement where the plaintiff could continue to use his fixtures in the employment of the defendant.

The defendant later became dissatisfied with the plaintiff and ordered him to leave. When the plaintiff (Read) tried to return to the premises the defendant had his men surround him and the men threatened to break his neck. The plaintiff filed for assault and was successful.

Whether an act constituents an assault or otherwise depends on the facts.

Words alone are sufficient to constitute an assault. In R v Wilson (1955) the plaintiff was a gamekeeper and he caught the defendant poaching. The defendant punched and kicked the plaintiff when he tried to arrest him and yelled “get out the knives”.

The defendant was found guilty of common assault and as per Goddard CJ (obiter) words alone are sufficient to constitute an assault i.e. the words need not be accompanied or followed by threatening gestures.

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Crime XXXXXXXI – Assault III

The actus reus (the physical element) for assault can be divided into four components. They are as follows:-

  1. The victim must apprehend violence.

  2. It must be immediate i.e. the victim is of the belief that the defendant is going to act or react violently at the time the words were spoken or the threatening gestures were made and not something that is going to occur a day or a week later or something that is going to happen somewhere down the track see Tuberville v Savage (1669).

  3. It must be unlawful.

  4. The victim must apprehend personal violence or violence towards himself or herself.

 

  1. The victim must apprehend violence:-

In Tuberville v Savage (1669) the defendant placed his hands on the hilt of his sword and said to the victim “if it were not for the fact that it is assize-time (the assize judge was in town) I would not take such language from you”. It was held that defendant’s acts and actions did not constitute an assault.

In R v Lamb (1967) two boys got their hands on a revolver. The boys believed that the chamber was empty and started fiddling around with it when in fact there were two bullets in the chamber.

One boy pointed the gun at the other and it went off killing the other boy.

It was held that no assault had taken place. Pointing a gun at someone could constitute an assault i.e. a threat that puts someone in fear of imminent harm but in the given situation neither of the boys were even remotely afraid and the victim did not apprehend fear and therefore there could be no assault.

It is worth comparing the decision in R v Lamb (1967) with the decision in Logdon v DPP (1976).

In Logdon v DPP (1976) the defendant pointed a fake gun at the victim (a replica) who was instantly terrified and would not calm down until she was told that the gun was a fake. It was held that the actions of the defendant constituted an assault because it caused the victim to immediately apprehend violence.

In Smith v Superintendent of Woking Police Station (1983) the defendant terrified the victim by staring through the window of her ground floor flat. It was decided that despite the fact that the defendant was outside the building there was enough evidence to suggest that the victim was terrified and perceived immediate violence. The nature and the type of violence need not be specified and it sufficed that the victim feared immediate violence.

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Crime XXXXXXX – Assault II

In order to successfully convict for assault the prosecution must establish both the mental element (mens rea) and the physical element (actor reus).  The mens rea for assault is the intention to put the victim in fear or cause him or her to apprehend immediate and unlawful violence or recklessly causing the victim to apprehend immediate and unlawful violence.

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.

It was decided that assault per se may not be sufficient to amount to a crime and it is a crime that often goes hand in hand with battery.

Assault is a crime that cannot be committed by omission and in this instance the court decided that the crime was not the fact that the defendant refused to move his car but the fact that he reversed his car onto the police officer’s foot and if we look at it from that perspective we can establish both the men rea (the intention to cause the victim to apprehend immediate and unlawful violence) and the actus rues (the act of driving the car onto the police officer’s foot).

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Crime XXXXXXIX – Assault I

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.

Assault per se does not involve physical contact i.e. the defendant does not have to a lay a finger on the victim. It suffices that the conduct of the defendant (by words or actions) has put the victim in fear of his or her life. However in order to successfully convict for assault the prosecution also needs to establish that:-

  1. the defendant had sufficient capacity or ability to carry out the threat and
  2. the defendant showed  a willingness to carry out the threat.

As per s39 of the Criminal Justice Act 1988 – 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.

Summary offences are offences that are dealt with by the magistrates’ court and are governed by Part 37, Criminal Procedure Rules 2010 and does not require trial by jury i.e. a magistrate can determine what constitutes an assault and what doesn’t.

Is verbal abuse sufficient to constitute an assault? Verbal abuse is defined as inappropriate and improper use of language to undermine someone’s dignity and language which causes another person to suffer from or to succumb to profound and serious psychological injury.

Under normal circumstances in order to convict for assault the defendant needs to display a willingness to carry out the threat, without which the victim would not be successful but the law is changing and humiliating a person with the intention of making him or her feel inferior especially in public may constitute an assault especially if there is medical evidence that suggests that the victim was emotionally scarred because of being repeatedly subjected to verbal abuse.

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Gross Negligence Manslaughter – Summary 3

The decision in R v DPP ex parte Jones (2000) was followed in  DPP v Rowley (2003) and in addition to the four elements that have been mentioned earlier, in the absence of subjective recklessness there may be a fifth element that needs to be satisfied i.e. the element of badness or criminality. In short the conduct of the defendant or his or her omission must be so bad that it is not sufficient that a mere fine is imposed or the victim is compensated but calls for criminal punishment i.e. it amounts to a crime against the state.

If there is no subjective recklessness and the prosecution cannot establish badness or criminality than the chances are that the prosecution will not be able to convict for gross negligence manslaughter.

Even if the victim has made a conscious decision to inflict some harm to his or her person, for example when the victim injects himself or herself with a class A drug, the defendant (the person who supplied the drug) can still be convicted of gross negligence manslaughter for failing to call for assistance or for failing to act in the manner a reasonable man would have especially when it is obvious that the victim is going into an overdose see R v Evans (2009).

The fourth and fifth limbs i.e. that the defendant’s conduct must be so bad that a crime could be inferred and the element of badness or criminality i.e. the conduct of the defendant is so bad that it is not sufficient that a mere fine is imposed or the victim is compensated and amounts to a crime against the state, can sometimes be consolidated into a single element especially in instances where criminal behavior is blatant or obvious.

The doctrine of ex turpi causa non oritur actio or where the act is illegal, a legal remedy is not available, does not necessarily negate the duty of care principle in criminal law see R v Wacker (2002) and R v Willoughby (2004).

Whether the defendant’s conduct amounts to gross negligence or otherwise is a question of fact (it is for a jury to decide) and it is not a question of law see R v Mishra (2005).

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Gross Negligence Manslaughter – Summary 2

R v Adomako (1994) is a significant case as far as gross negligence manslaughter is concerned. According to the facts the defendant an anesthetist failed to monitor the oxygen pipes during a surgery and as a result the pipes got disconnected and the patient died. It was obvious that if the anesthetist was keeping an eye on the pipes he would have been able to prevent the death.

The defendant was convicted on first instance. The defense successfully appealed and the court of appeal quashed the conviction but the House of Lords on further appeal by the prosecution upheld the conviction.

The House of Lords applied the duty of care principle enunciated by Lord Atkins in the landmark civil case (tort) of Donoghue v Stevenson (1932).

The rule that you are to love thy neighbor (Matthew 22:39) becomes in law you must not injure your neighbor. In order to obtain a conviction, the prosecution must establish duty, breach, causation and a fourth element.

The elements that are to be established are as follows: –

  1. The defendant must owe the victim a duty of care
  2. The defendant must have breached that duty of care
  3. The breach of the duty must have caused the death of the victim and
  4. The conduct of the defendant was so bad (gross) that a crime could easily be inferred.

Gross negligence is a strict liability offence and the defendant can be convicted without establishing the mental element or mens rea. In A-G’s ref no 2 of 1999 (2000) it was decided that the defendant can be convicted for gross negligence manslaughter without taking into account his state of mind, though it is easier to do so if it can be established that he was reckless.

In the absence of subjective recklessness, in order to determine if the defendant was reckless or otherwise, the test that is to be used is the objective test or the reasonable man’s test see R v DPP ex parte Jones (2000).

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Gross Negligence Manslaughter – Summary 1

In addition to involuntary manslaughter and reckless manslaughter there is a third category of manslaughter called gross negligence manslaughter. The test that is to be applied in order to determine if the defendant is guilty of gross negligence manslaughter or otherwise is the test in R v Cunningham (1957) and what is required is as follows:-

(1) An actual intention to do the particular kind of harm that in fact was

done; or

(2) Recklessness as to whether such harm should occur or not. It is neither limited to nor does it indeed require any ill will towards the person injured.

However subjective recklessness is not a prerequisite to obtaining a conviction for gross negligence manslaughter if it can be proven that the conduct of the defendant was reckless see  A-G’s ref no 2 of 1999 (2000).

Between R v Cunningham (1957) and A-G’s ref no 2 of 1999 (2000) there were a series of cases that broadened the scope of liability and the restrictive approach in R v Cunningham (1957) was widened in R v Lawrence (1981). The cases dealt with deaths caused by reckless driving.

The court in R v Lawrence (1981) held that in order for a rider or a driver to be guilty of manslaughter the following criteria or requirements had to be satisfied:-

1) The accused was riding or driving in a manner that created an obvious and serious risk to other road users and property.

2) The rider or the driver by riding or driving in the manner he or she did, did not give thought to the risk or having given it some thought dismissed it.

The test in R v Lawrence (1981) has an objective element in it. For example when deciding if the accused was riding or driving in a manner that created an obvious and serious risk to other road users, the benchmark that is to be used to determine whether there was an obvious and serious risk to other road users is that of the reasonable man

The decision in R v Lawrence (1981) was reaffirmed in two other cases. In both cases the deaths were caused by either reckless driving or reckless piloting of a craft . The cases are:-

  1. R v Seymour (1983)
  2. Kong Cheuk Kwan v The Queen (1985)

At that stage the courts had yet to introduce the duty of care principle which was largely applied and limited to civil cases into criminal law and they first did so in the case of R v Adomako (1994).

The facts of the case were different from the facts of R v Lawrence (1981), R v Seymour (1983) and Kong Cheuk Kwan v The Queen (1985) and it is fair to say that the test in R v Lawrence (1981) should be limited to cases involving reckless driving.

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Crime XXXXXXVIII – Gross Negligence Manslaughter X

In R v Mishra (2005) two doctors were charged with gross negligence manslaughter for failing to take proper care of a patient who was recovering from an operation (post-op). The patient died from a wound that resulted from the operation – there was an infection and the patient died from the complications that followed. The test in R v Adomako (1994) was applied and the doctors were convicted.

The doctors appealed on the grounds that the fourth limb in the test in R v Adomako (1994), i.e. that the defendant’s conduct must be so bad that a crime could be inferred was circular and required the jury to set its own level of criminality when what was criminal or otherwise was something that should be decided by the law and not the jury and was in breach of articles 6 & 7 of the European Convention on Human Rights which reads as follows:-

ARTICLE 6

Right to a fair trial

  1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
  2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
  3. Everyone charged with a criminal offence has the following minimum rights:

(a) To be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) To have adequate time and facilities for the preparation of his defense;

(c) To defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) To have the free assistance of an interpreter if he cannot understand or speak the language used in court.

ARTICLE 7

No punishment without law

  1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
  2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by civilized nations.

The conviction was upheld. It was decided that the question for the jury was not whether the defendants conduct was so bad that that it amounted to a crime but rather if it was so negligent or grossly negligent that in amounted to a crime which was essentially a question of fact (something that is to be decided by the jury) and not a question of law.

Copyright © 2018 by Dyarne Ward

Crime XXXXXXVII – Gross Negligence Manslaughter IX

Similarly in R v Willoughby (2004) the fact that the defendant had committed a crime did not prevent the application of the duty of care principle.

R v Willoughby (2004) the defendant, a pub owner was in debt and unable to make enough money to cover his debts, he employed the deceased to set fire to his pub so that he could claim the insurance payout. As agreed the deceased went around to set fire to the pub but while he was doing so there was an explosion and he died as a result. The defendant was charged and convicted for manslaughter. The defense appealed on the grounds that the defendant did not owe the victim a duty of care.

The appeal was dismissed. It was held that once the judge has decided that there was enough evidence to establish a duty of care, whether a duty or care exists or otherwise is for a jury to decide and the jury having so decided and all the other elements satisfied, the conviction must stand.

Copyright © 2018 by Dyarne Ward