Insanity (Summary)

The defense of insanity is a defense that is available to all crimes. When the judge or the jury finds that the defendant falls under the scope of the defense, the verdict that is to be returned is the verdict of not guilty by virtue of insanity.

Insanity differs from diminished responsibility (which is also a defense on a charge of murder or intending to cause GBH (grievous bodily harm)) in that insanity is caused by inherent factors and diminished responsibility is cause by external, often extenuating circumstances,  for example repeated abuse or aggravating someone who is intolerant of the victim’s actions.

The latter is more in line with the defense of automatism though automatism is usually the result of the excessive consumption of alcohol or the excessive taking of drugs, or a failure to do something that the defendant who is under medication should do, for example taking insulin without eating any food and thus going into hypoglycemia.

All three defenses, while they deal with the inability of the mind to control the impulses, apply to different sets of circumstances. A lot depends on the facts.

In 1831 (York assizes) a lady who was deaf was charged with the killing of her illegitimate child. She was unable to speak and despite trying to use various signs she still wasn’t able to understand the charges against her. She was found mute by “visitation of god” and the jury were required to return a verdict of insane.

It is therefore possible to surmise that in instances and situations where the defendant is unable to understand or comprehend the charges that are directed at him or her, the judge or the jury should return the verdict of not guilty by virtue of insanity.

In R v Pritchard (1836) the defendant was deaf and mute, and it was decided that before the court or a jury can reach a verdict three factors had to be taken into account: –

  1. Whether the defendant is mute of malice

  2. Whether the defendant can plead

  3. Whether the defendant understands or comprehends the charges against him or her – Alderson B.

If the jury finds that they could not communicate with the defendant or the defendant could not understand the charges against him or her than the jury should find the defendant unfit to plead.

At the start of the trial, when the defendant is charged, he is charged on the presumption that he is sane and it up to the defense to rebut the presumption of sanity i.e. to prove that the defendant is not sane.

In M’Naghten (1843) the defendant attempted to kill the Prime Minister, Sir Robert Peel, and instead shot and killed his secretary Edward Drummond. At the time of the killing the defendant was suffering from insane delusions i.e. a false conception of reality.

It was held that in all instances that the jury is to be told that the defendant is presumed to be sane at the time of the crime and this presumption is valid until the defense can prove otherwise and in order for the defense of insanity to be successful it must be clearly proved by way of evidence that the defendant was laboring under such defect of reason due to a disease of the mind that he or she was unable to know the nature and quality of the act.

In 1883 the Trial of Lunatics Act was passed and as per s2(1) of the act: –

“Where in any indictment or information any act or omission is charged against any person as an offence, and it is given in evidence on the trial of such person for that offence that he was insane, so as not to be responsible, according to law, for his actions at the time when the act was done or omission made, then, if it appears to the jury before whom such person is tried that he did the act or made the omission charged, but was insane as aforesaid at the time when he did or made the same, the jury shall return (a special verdict that the accused is not guilty by reason of insanity.)”

With regards to the defense of insanity, a wrongful act is an act that is defined as an act that is legally wrong and not morally wrong i.e. it must be an act that is in breach of either common law or statutory law and as long as the defendant can appreciate or understand that his actions are legally wrong than the defense of insanity would not be  made available to him.

The defense of insanity only comes into play when the defendant is not capable of understanding the nature of his or her act or is not able to comprehend the seriousness of the offence.

In R v Windle (1952) the defendant administered an aspirin overdose to his suicidal wife, who was terminally ill. He was without doubt suffering from a mental condition but during his arrest, he said to the arresting officers “I suppose that they will hang me for this” which implied that the defendant knew that his act was legally wrong, and he was able to understand the seriousness of his act. He was tried and convicted, and the defense appealed.

The appeal was dismissed, and the conviction was upheld. As long as the defendant can appreciate, understand or comprehend the seriousness of his act or actions, the defense of insanity would not be made available to him.

A physical disease of the mind or damage to the brain will, if the circumstances permit, allow the defendant to raise the defense of insanity, and the M’Naghten rule can be extended to cover these type of situations.

In R v Kemp (1957) the defendant who was suffering from arteriosclerosis (a thickening or hardening of the arteries normally caused by old age) assaulted his wife with a hammer and the defendant was charged under section 18 of the Offences Against the Person Act 1861 for causing grievous bodily harm (GBH) to his wife. At the trial the defendant raised the defense of automatism but the trial judge directed the jury on insanity.

It was held that in order to determine if the defense (insanity) would avail itself to the defendant the court has to look into whether the mental faculties of reason, memory and understanding are impaired or absent and the physical state or condition of the mind is irrelevant. If the defendant was not able to comprehend or understand that the result of his actions would lead to dire consequences either to him or the victim than the defense would apply.

Likewise if the defendant is able to comprehend or understand the gravity of his actions, despite suffering from some sort of mental impairment, as in the case of  R v Windle (1952) then the defense would not avail itself or would not be made available to the defendant.

In 1964 parliament passed the Criminal Procedure (Insanity) Act 1964 which takes into account the defendant’s fitness to plead with regards to defendants who suffer from a disability. S. 4 of the act reads as follows:-

Finding of unfitness to plead:-

(1) This section applies where on the trial of a person the question arises (at the instance of the defense or otherwise) whether the accused is under a disability, that is to say, under any disability such that apart from this Act it would constitute a bar to his being tried.

(2) If, having regard to the nature of the supposed disability, the court are of opinion that it is expedient to do so and in the interests of the accused, they may postpone consideration of the question of fitness to be tried until any time up to the opening of the case for the defense.

(3) If, before the question of fitness to be tried falls to be determined, the jury return a verdict of acquittal on the count or each of the counts on which the accused is being tried, that question shall not be determined.

(4) Subject to subsections (2) and (3) above, the question of fitness to be tried shall be determined as soon as it arises.

(5) The question of fitness to be tried shall be determined by the court without a jury.

(6) The court shall not make a determination under subsection (5) above except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved.

With regards to sugar levels in the body, it can be divided into two categories. They are as follows:-

1) Hypoglycemia (a lack of glucose in the body). Hypoglycemia is caused by external factors i.e. the defendant not doing something he should be doing or doing something that he shouldn’t be doing. In such instances, depending on the facts, the defense can raise the defense of automatism

and

2) Hyperglycemia (excess sugar in the body). Hyperglycemia is a condition that occurs naturally and it is caused by internal factors. In such instances, the defense can raise the defense of insanity

In R v Quick (1973) the defendant a male nurse who was a diabetic had taken insulin without consuming any food, and in addition to that had consumed alcohol which aggravated the situation (whisky and rum). He assaulted a patient who was a paraplegic and inflicted injuries that included a broken nose and a black eye.

The defendant was charged under s.47 of the Offences Against Person Act (1861) and the trial judge directed the jury on insanity (automatism that arises naturally). He was convicted and he appealed.

The appeal was allowed and the conviction was quashed. The defendant was suffering from automatism that arose from a failure to consume food after taking insulin or taking excessive insulin and his condition was further aggravated or exacerbated by the fact that he’d been drinking.

It was automatism that arose from external factors i.e. a failure to do something that is required or doing something that the defendant shouldn’t be doing given his condition and the type of automatism that the defendant suffered from fell under the category of intoxication.

Automatism even if it is self induced can be a defense to basic intent crimes i.e. crimes where the mens rea that is required to secure a conviction is either negligence or recklessness).

In R v Bailey (1983) the defendant a diabetic went over to the house of his ex-lover’s new partner (victim), clearly upset over the fact that his ex-girlfriend had moved on. The victim invited the defendant in to discuss the matter, and the defendant who had taken his insulin but had not consumed any food, prior to the visit, felt that he was going into hypoglycemic, a state caused by a lack of glucose in the body and asked the victim for a glass of sugared water and upon drinking the water, the defendant was about to leave. As he was about to step out, he dropped his glove, and the victim bent over to pick it up and while he was doing so, the defendant hit him over the head with an iron bar.

The defendant was charged under s.18 of the Offences Against Person Act (1861) and the defendant countered by stating that he had no control of his actions, having at that stage succumbed to hypoglycemia and raised the defense of automatism. The trial judge ruled that automatism, self-induced or otherwise is not a defense or a mitigating factor when it comes to basic intent crimes and the jury convicted accordingly. The defendant appealed.

The Court of Appeal upheld the conviction and ruled that while there may have been a misdirection, it was not sufficient to render the conviction unsafe.

It was decided that self-induced automatism, other than that due to intoxication, i.e. automatism that arises from excessive drinking or from the use of drugs, may be a defense in basic intent crimes.

With regards to the defense of automatism, in instances of hypoglycemia, it is worth asking the question if the defense should still be allowed, given the fact that medical science has come forward in leaps and bounds and almost everyone on insulin or other types of medication to reduce the sugar level in the body are warned beforehand of what could happen if they take these medication without eating.

A defendant on insulin could always knowingly commit a crime and then seek to rely on the defense of automatism but we have to look at it in light of Sir William Blackstone’s principle i.e. “it is better to let ten guilty persons escape than to let one innocent man suffer”.

It is up to the prosecution on a criminal charge to proof beyond reasonable doubt (burden of proof) that the defendant did indeed commit the crime and all the defense has to do, is to raise reasonable doubt.

Because the courts cannot risk wrongfully convicting someone, the defense of automatism is allowed. To do otherwise might lead to a grave injustice.

In instances where the defendant inflicts some sort or type of harm to another during an epileptic fit (a subtle momentary loss of awareness, which causes the body to jerk and tremble), we once again have to look into the facts to determine which of the following defenses would apply: –

1) Automatism

2) Insanity

When the epileptic fit is brought on by external factors for example from the excessive taking of drugs or drinking the defense that is available is automatism.

When the epileptic fit is brought on by internal factors or inherent factors the defense that is available is insanity.

In R v Sullivan (1983) the defendant in an epileptic fit kicked the victim a 86-year-old man in the head and body. The defendant was charged under section 18 and 20 of the Offences Against Persons Act (1861) and during the trial, the trial judge directed the jury on insanity based on the fact that the epileptic fit that the defendant suffered from was caused by internal or inherent factors. The issue on hand was whether the appropriate defense was insanity or automatism. The defendant appealed.

The appeal was dismissed, and it was held that the trial judge’s direction was correct. The epileptic fit was caused by internal and inherent factors and fell under the scope of insanity i.e. it is classified or categorized as a disease of the mind.

As we’d mentioned earlier when the defendant’s actions are caused by hyperglycemia or an excess of sugar in the body the defense that is available to the defendant is insanity.

In R v Hennessy (1989) the defendant was arrested while driving a stolen car and was subsequently taken to the police station. The defendant’s wife had just left him and as a result the defendant was depressed and had failed to take his prescribed dose of insulin – the defendant was a diabetic.

The defendant was lethargic, drowsy (symptoms of hyperglycemia) and suffered from temporary memory loss. The defendant could not remember taking the car. The defendant raised the defense of automatism, but the trial judge directed the jury on insanity instead. The defendant was convicted, and the defense appealed.

The appeal was dismissed, and the Court of Appeal held that the trial judge had been correct in his direction. Automatism only arises when the defendant’s actions are caused by external factors and in this instance the defendant’s actions were precipitated by internal or inherent factors i.e. a condition that corresponds with a disease of the mind and hence the correct defense to raise was that of insanity.

It is also worth mentioning that temporary memory loss is not a normal symptom of hyperglycemia, though there may be exceptions, each individual is different, but in most instances, those suffering from hyperglycemia would find it difficult to make it to the front door.

When the defendant’s actions are due to post traumatic stress (a mental disorder that is triggered by a horrifying or terrifying event) the defense that is available to the defendant is automatism because despite the seriousness of the illness, it is brought on by external factors and often factors that are beyond the defendant’s control.

In R v T (1990) the defendant was a rape victim who a few days after the incident was involved in a robbery which included causing actual bodily harm as defined by s.47 of the Offences Against Person Act (1861). During the trial the defendant claimed that she was in a dream like state or in another reality and medical evidence showed that at the time she was suffering from post traumatic stress as a consequence or result of which she was in a dissociative state.

The trial judge directed the jury on automatism, in line with the decision in R v Quick (1973) i.e. a disorder that has been brought on by external factors, in this case a horrible and terrifying crime, but the jury convicted nonetheless.

Sleepwalking (somnambulism) is another disorder (behavioral) that can cause the defendant to perpetrate criminal acts. It is caused by internal or inherent factors and as a result the defense that is available to the defendant is insanity.

In R v Burgess (1991) the defendant injured a woman while she was sleeping by hitting her over the head with a whisky bottle and striking her with a video recorder. The defendant was charged under s18 – s20 of the Offences Against the Person Act (1861) for wounding with intention to cause grievous bodily harm.

The defendant had no recollection of the event and his claim was supported by medical evidence. The defendant sought to rely on the defense of automatism but the trial judge directed the jury on insanity instead and the jury found that that the defendant was guilty by virtue of insanity.

The defendant appealed on the grounds that he should have been found not guilty by way of automatism contending that both defenses were a result of a disorder and therefore either of the defenses should be made available.

The appeal was dismissed. Because sleepwalking was a disorder that was caused by inherent or internal factors the correct defense to raise would be that of insanity and the trial judge had nor erred in his direction. The court further went to state that while sleepwalking was common, doing violent things while sleepwalking was not.

When the defendant’s actions are caused by both internal and external factors, the jury should be directed on both insanity and automatism.

In R v Roach (2001) the defendant was suffering from an anti social personality disorder and while working as a caterer he stabbed a colleague in the hand over a missing mop. The defendant was arrested and charged.

During the trial the defendant claimed that he had no recollection of what had transpired and the fact that he was suffering from an anti social personality disorder was supported by medical evidence (internal factor).

At the time of the incident the defendant had also been drinking and taking prescribed drugs (external factors).

During the trial the judge directed the jury on insanity but did not direct the jury on automatism. The jury convicted and the defense appealed on the grounds that the trial judge did not direct the jury on the defense of automatism.

The appeal was allowed and it was held that the jury should have been directed on the defense of automatism. Given the circumstances both defenses should have been made available to the defendant.

With regards to the defendant’s fitness to plead, and with reference to s.4 of the Criminal Procedure (Insanity) Act 1964 (unfitness to plead – s.4 only applies to those with disabilities) whether a defendant is fit to plead or otherwise is determined on a balance of probabilities i.e. the test that is used is the objective test or the reasonable man’s test.

In R v M (John) (2003) the defendant was tried on various sexual offences committed against a minor when she was aged between the ages of 8 – 10. The defendant was her grandfather. According to medical reports the defendant suffered from short term memory loss which was the result of excessive drinking over a prolonged period. The trial judge set a threshold to determine if the defendant was fit to plead, given his circumstance (if the defendant cannot understand the charges against him than he is unfit to plead see R v Pritchard (1836) and the verdict that is to be returned is not guilty by virtue of insanity 1831 (York assizes)). The jury found that the defendant was fit to plead or could understand the charges against him and convicted. The defendant appealed.

The appeal was dismissed. It was decided that the jury could find the defendant unfit to plead if the defense could establish on a balance of probabilities that the defendant was incapable of: –

1) understanding the charges against him.

2) deciding to plead guilty or otherwise

3) exercising his right to challenge jurors

4) instructing solicitors and counsel

5) following the course of proceedings

6) giving evidence

Otherwise the defendant is fit to plead.

In R v Johnson (2007) we look at the defense of insanity as it applies to those who suffer from schizophrenia and if the principle that was set in R v Windle (1952) applies or extends to paranoid schizophrenics or if an exception can be made for those who suffer from the ailment.

As per the rule in R v Windle (1952) the defense will not be made available to the defendant if the defendant knew what he was doing or had cognizance of his actions.

In R v Johnson (2007), the defendant was charged with wounding to cause grievous bodily harm (GBH) as per s18 & s20 of the Offences Against Person Act (1861). He was suffering from paranoid schizophrenia but at the trial the defense of insanity was not made available to him because medical evidence suggested that the defendant knew or was aware of what he was doing.

The defense appealed on the grounds that the defense of insanity should have been made available to the defendant and the issue at hand was whether the scope or the parameters of the defense could be widened to cover those who, despite knowing what they were doing, suffered from acute mental illnesses.

The appeal was dismissed and it was decided that the rule in R v Windle (1952) would apply. The defense would only avail itself to the defendant or be made available to the defendant, if he was not aware, through some disease of mind, of what he was doing.

For those of you who are wondering why the defendant would rather be found not guilty by way of automatism instead of not guilty by way of insanity (see R v Kemp (1957), R v Sullivan (1983), R v Hennessy (1989), R v Burgess (1991) and R v Johnson (2007))the answer is because, if the defendant is found not guilty by way of insanity he or she may have to spend some time in a mental institution (a secure detention facility) as per s.5 of the Criminal Procedure (Insanity) Act 1964.

Whereas, if the defendant is found not guilty by way of automatism, he or she is absolved of all criminal charges and the judge is not empowered to detain the defendant in a mental institution. Therefore, whether the defendant is found not guilty by way of insanity or not guilty by way of automatism becomes crucial, to the defendant, during sentencing.

S.5 of the Criminal Procedure (Insanity) Act 1964 reads as follows:-

Powers to deal with persons not guilty by reason of insanity or unfit to plead etc.

(1) This section applies where—

(a) A special verdict is returned that the accused is not guilty by reason of insanity; or

(b) Findings have been made that the accused is under a disability and that he did the act or made the omission charged against him.

(2) The court shall make in respect of the accused—

(a) Powers to deal with persons not guilty by reason of insanity or unfit to plead etc.

(1)This section applies where—

(a) A special verdict is returned that the accused is not guilty by reason of insanity; or

(b) Findings have been made that the accused is under a disability and that he did the act or made the omission charged against him.

(2)The court shall make in respect of the accused—

(a) A hospital order (with or without a restriction order);

(b) A supervision order; or

(c) An order for his absolute discharge.

(3) Where—

(a) The offence to which the special verdict or the findings relate is an offence the sentence for which is fixed by law, and

(b) The court have power to make a hospital order,

The court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection).

(4) In this section—

  • “hospital order” has the meaning given in section 37 of the Mental Health Act 1983;

  • “restriction order” has the meaning given to it by section 41 of that Act;

  • “Supervision order” has the meaning given in Part 1 of Schedule 1A to this Act.

A hospital order (with or without a restriction order);

(b) A supervision order; or

(c) An order for his absolute discharge.

(3) Where—

(a) The offence to which the special verdict or the findings relate is an offence the sentence for which is fixed by law, and

(b) The court have power to make a hospital order,

The court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection).

Copyright © 2019 by Dyarne Jessica Ward

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Land Law X – Fixtures and Chattels

In Never-Stop Railway (Wembley) Ltd v British Empire Exhibition (1924), British Empire Exhibition entered into an agreement with Never-Stop railway to occupy so much land as might be reasonable for the purposes of constructing, erecting and operating, a railway line, on the exhibition grounds. Once the exhibition was over British Empire Exhibition required Never-Stop railway to remove the structures, but the requirement to do so was never stipulated in the agreement. British Empire Exhibition argued that the requirement to do so was implied.

It was held that when a tenant erects a building or a facility on the land, the building or facility, upon the demise of the lease becomes the property of the landlord, and in such instances and in the absence of any agreement which stipulates to the contrary and if the building or the facility is not erected in contravention of some stipulation in the lease, the tenant is under no obligation to remove the building or the facility upon the completion of the lease.

Copyright © 2019 by Dyarne Jessica Ward

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Land Law IX – Fixtures and Chattels

In Vaudeville Electric Cinema v Muriset (1923), the mortgagor owned and operated a cinema which he’d mortgaged to a bank and he subsequently defaulted on the repayments, and the bank sought to repossess the cinema in lieu of the arrears or the outstanding payments. The issue before the courts was whether four items were to be regarded as chattels or fixtures. The items were: –

  • The cinema screen which was fixed by blocks to the wall
  • Two oil paintings that were on the walls of the hall
  • Four advertising boards fastened outside the walls and attached with screws to the hall post, and
  • 477 plush cushioned, tip-up seats, attached to the floor

It was held that all the items, though removable were to be regarded as permanent features of the building and were part of the ordinary equipment of the building for the purpose which the building was used and therefore were permanent fixtures.

The cinema must have a screen in which to project images on, the paintings form part of the decoration, and the advertising boards outside were attached to the building and form part of the permanent structure. As for the seats, though it is possible to hire them for a short twelve-week period, the seats in question had been in the cinema for a lot longer than that.

Copyright © 2019 by Dyarne Jessica Ward

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Land Law VIII – Fixtures and Chattels

In Pole-Carew v Western Counties and General Manure Co (1920) the defendant set up an artificial manure manufacturing factory on a plot of land that he’d lease. The lease had been renewed three times, and at the time of the first lease, or when he’d initially leased the property, the factory was not set up and was without any chattels.

By the time of the third lease however there was a complete factory, that was fully operational and most of the setting-up was done after the defendant had initially leased the property and from all accounts by the time of the first renewal or the second lease the factory was in place.

During the third lease, there was a fire that destroyed most of the equipment in the factory and the landlord claimed damages for the tenant’s or the defendant’s breach of repair, reinstatement and insurance agreements (covenants) and the defendant argued that the factory and equipment were chattels or “tenant fixtures” (the tenant has a right to remove certain fixtures and these fixtures are known as tenant fixtures. At law tenant fixtures belong to the landlord until the tenant exercises the right to remove them) and that being the case the factory and the equipment fell outside the scope of the agreements (covenants).

It was decided that the entire structure and everything in it or everything that was attached to it formed one single unit and therefore neither the factory nor the equipment could be regarded as chattels. The unit was firmly embedded to the land and that being the case it could not be a tenant fixture and must be regarded as something that was permanently annexed to the freehold or the land i.e., a fixture.

Copyright © 2019 by Dyarne Jessica Ward

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Battery (Summary)

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 resorting to 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”.

Mens Rea

The mens rea (mental element) for battery is as follows: –

  1. An intention to apply unlawful physical force or
  2. Reckless as to whether such force is applied or not.

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.

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 defendant 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 s20. of the Offences Against the Person Act (1861) was subjective and the jury had to establish intent before it could convict under s20. 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: –

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.

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).

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.

Actus Reus

Before a court can convict for battery it has to establish three elements. They are as follows: –

  1. Force was applied
  2. The force was unlawful
  3. It was physical (psychiatric illnesses are classed as assaults see R v Ireland (1997))

Application of physical force

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.

In this instance, the defendant committed the unlawful act by moving his car on to the police officer’s foot, he applied force by not removing the car when directed to do so by the police officer and the type of force that was used was physical.

The force that is used however need not be directly applied. In DPP v K (a minor) (1990) a schoolboy stole some hydrochloric acid from the science room and placed it in the hand dryer in the boys’ toilet. The nozzle was pointing upwards and when the next boy came to use the hand dryer the acid squirted on to his face and caused permanent scaring.

The boy was found guilty and it was held that the force that was used need not be directly applied.

The force must be unlawful

The act must be unlawful i.e. the act must be in breach of either common law or statute but if the defendant has reasonable excuse to use force than the act will not be construed as 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.

In R v Scarlett (1994) the defendant was a publican who was trying to evict a customer who was drunk. The defendant asked the customer to leave and he refused to do so and the defendant believed that the man was about to strike him so he pinned the man’s arms to his back and forcefully took him outside and left him by the wall of the lobby. The man fell backwards, down a flight of 5 steps, hit his head and died as a result. The defendant was tried and convicted for manslaughter. The defendant appealed.

The appeal was allowed and the conviction was quashed. There was no evidence to indicate that the defendant had used excessive force.

“They ought not to convict him unless they are satisfied that the degree of force used was plainly more than was called for by the circumstances as he believed them to be and, provided he believed the circumstances called for the degree of force used, he was not to be convicted even if his belief was unreasonable.”

and

When the defendant is trying to prevent a crime as per s. 3 (1) of the Criminal Law Act 1967. The section 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”.

Can there be consent to battery? The answer in short is yes. In Collins v Wilcock (1984) a police constable tried to arrest a woman as per s. 1 (3) of the Street Offences Act (1959) which reads as follows: –

“A constable may arrest without warrant anyone he finds in a street or public place and suspects, with reasonable cause, to be committing an offence under this section”.

The woman tried to walk away, and the police officer tried to stop her by grabbing her hand. The woman struggled to free herself and in doing so scratched the police officer. The woman was charged with assaulting a police officer.

It was held that the police officer’s actions amounted to battery. He had no power to arrest the woman and her actions were in self-defense.

The court took the opportunity to elaborate on the offence of battery. Battery can be defined as the offence of making physical contact with someone i.e. touching, pulling, elbowing, grabbing etc. without their consent.

However, the courts accept that in the course of everyday life, it is inevitable that people will make some sort of contact with each other for example when they are walking around in a crowd and under such circumstances or in those situations it is deemed that there is implied consent and such physical contact is not actionable. In other words, in these instances there is consent to battery.

The offence of battery per se is the offence of making some sort of physical contact that is not reasonable or does not fall within the scope of generally acceptable codes of conduct. What is acceptable or otherwise depends on the facts of each case.

Police officers are allowed to make contact with others in the course of their duty and not all physical contact made by a police officer will amount to battery. In Donnelly v Jackman (1970) a police officer tapped the defendant on the shoulder to bring his attention to something and the defendant turned around and assaulted the police officer.

The defendant was charged with assaulting a police officer in the course of his duty and the defendant countered by alleging that the police officer’s actions amounted to battery. The court decided that the police officer’s actions did not amount to battery.

Some leeway must be given to police officers to enable them to do their job or to carry out their duties effectively. That scope however is quite narrow.

Physical force or the application of physical force.

In order to be convicted for battery the defendant must have applied some sort of physical force that is unreasonable under the circumstances and does not fall under the scope of acceptable codes of conduct. That physical force however need not be severe and mere touching could amount to battery.

In Faulkner v Talbot (1981) it was held that battery includes the intentional or reckless touching of someone without the consent of that person or without lawful excuse and the act need not be hostile.

The decision in Faulkner v Talbot (1981) however must be compared with the decision in Wilson v Pringle (1986) when one schoolboy sued another for injuries sustained while fooling around in the school corridor. It was decided that in order for the actions of the defendant to amount to battery the act must be hostile.

In short it would be safe to say, as per Collins v Wilcock (1984), that what amounts to battery or otherwise depends on the facts of each case.

Copyright © 2019 by Dyarne Jessica Ward

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Land Law VII – Fixtures and Chattels

In Horwich v Symond (1915) it was established that before a chattel can become a fixture there must be some degree of permanency and that degree of permanency is sometimes measured by the passage of time.

The tenant at a chemist’s shop brought in a display unit, counter, show case and a bottle rack and had them affixed to the floor of the shop with plastic nails. The question arose whether the articles were to be regarded as chattels or as fixtures and the trial judge decided that the items were not fixtures.

On appeal, the court of appeal upheld the decision of the trial judge and added that whether an article or an item is regarded as a chattel or a fixture is a question of fact i.e we have to look at the facts of each case as opposed to just the law or in other words we have to look into the substance rather than just the form.

It could also be a question of fact and law or of both substance and form but we can’t get away from what was said in Holland v Hodgson (1872) in that, the courts have to look into the facts of each case before they can decide if an article or an item is a chattel or a fixture.

Copyright © 2019 by Dyarne Jessica Ward

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Land Law VI – Fixtures and Chattels

In Crossley Brothers Limited v Lee (1908) it was held that the relationship between a tenant and a landlord is similar to the relationship between a mortgagor and a mortgagee.

The tenant purchased an engine which was affixed to the floor with bolts and then defaulted on the rent. The landlord took his property back and the question that arose was whether the engine was a fixture or a chattel. If the engine had become a fixture it was a permanent feature of the property and the landlord was entitled to it.

The Divisional Court held that the engine had become a fixture and could not be removed from the property and added that the tenant-landlord relationship is similar to the mortgagor-mortgagee relationship.

The decision may have been made in light of the fact that there may have been an arrears and to allow the landlord to recover some of his losses.

Copyright © 2019 by Dyarne Jessica Ward

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Land Law V – Fixtures and Chattels

In Reynolds v Ashby and Son Limited (1903) the lessee of a property (a 99 year lease or a leasehold property, there are usually two types of properties, freehold and leasehold (properties than are leased for 99 years, normally from the time of construction) erected a factory on the property and purchased some machines under a hire purchase agreement. He had the machines affixed to the floor of the factory with bolts.

There was evidence to suggest that the machines would have worked even if they were not affixed to the floor but it was better to have the machines bolted to prevent movement caused by vibration.

The lessee then mortgaged the property and defaulted on the mortgage. The question before the courts was whether the machines were fixtures, in which case the mortgagee was entitled to them or if they remained as chattels as per the hire purchase agreement, in which case the owner could take them back.

It was held that the machines had become fixtures. Lord Lindley – “The purpose for which the machines were obtained and fixed seems to me unmistakable; it was to complete and use the building as a factory. It is true that the machines could be removed if necessary, but the concrete beds and bolts prepared for them negative any idea of treating the machines when fixed as movable chattels.”

Copyright © 2019 by Dyarne Jessica Ward

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Land Law IV – Fixtures and Chattels

In Monti v Barnes (1901) we look into whether fixtures, when they are taken out and replaced, by something that is different but serves the same purpose, remain as fixtures or if they are to be regarded as chattels.

According to the facts of the case the mortgagor removed from the house a number of ordinary fixed grates and replaced them with dog grates which were considerably lighter which were not in any way affixed to the freehold and the question before the court was whether the new dog grates were to be regarded as fixtures or as chattels.

In coming to a decision, the court decided that it needed to look into the intention of the mortgagor at the time he replaced the grates or substituted the grates and it was obvious that “he could not have intended for the house to be without grates”.

The question that had to be asked was, having regard to the character of the articles (grates) and the circumstances of the case, whether the articles were intended to be annexed to the freehold or if they were intended to continue as chattels and the court decided that it was the former i.e. that the articles had become a permanent feature of the freehold and were to be regarded as fixtures.

Copyright © 2019 by Dyarne Jessica Ward

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Rule of Law

The rule of law is a doctrine propounded by its exponents that aims to subject all three branches of the government to the prevailing law. The rule of law has to be read in light of the doctrine of parliamentary supremacy or parliamentary sovereignty and while parliament as a collective body is the sole law-maker in the land, with the exception of common law or judge-made law, its members are still subject to the law.

The rule of law requires that all men be governed by acceptable rules rather than arbitrary decisions made by those in positions of authority. It places the law above all else, including lawmakers, and as per the doctrine only then will “men enjoy all the blessings that are showered on the state” – Aristotle.

Its objective is to curb abuses of power. “Power corrupts and absolute power corrupts absolutely” – Lord Acton. The doctrine has three limbs. They are as follows:-

1. Supremacy of the law
2. Equality of the law, and
3. The predominance of the legal spirit

1. Supremacy of the law – “Wherever there is discretion, there is room for arbitrariness and that in a republic no less than under a monarchy discretionary authority on the part of the government must mean insecurity for legal freedom on the part of its subjects.” – A.V. Dicey.

No man should be punished or should be made to suffer except for a breach of the law. A person can only be fined either in the form or monies or in terms of goods and can only be deprived of his liberty or his right to live as a free man for a breach of the law and nothing else. Everyone has a right to liberty and security of person and no man shall be deprived of his liberty save for the breach of the law – Article 5 European Convention of Human Rights.

2. Equality of the law – “Equality before the law and equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts” – A. V. Dicey.

No man is above the law and all men are equal in the eyes of the law. Regardless of one’s status in life or the office that one holds, as far as the rule of law is concerned, all men are equal. Any power that is exercised, discretionary or otherwise, must be power that is granted by the law.

3. Predominance of the legal spirit – Common law or judge-made law is the best instrument or mechanism to protect the rights of individuals. The rule of law is better served when a matter is brought before the courts and decided on its facts as opposed to say for example a bill of rights.

The law itself has to change with time in order to better serve the people and emphasizing on a set of rules or an enshrined bill of rights, that may become outdated with the passage of time, will make the law overly rigid and deprive it of much needed flexibility, without which, neither the state nor the people would be able to progress.

Copyright © 2019 by Dyarne Jessica Ward

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