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.

Copyright © 2019 by Dyarne Jessica Ward

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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.

Copyright © 2019 by Dyarne Jessica Ward

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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.

Copyright © 2019 by Dyarne Jessica Ward

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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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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 is 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 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 s.2(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 had 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 sugar levels in the body is warned beforehand of what could happen if they take these medications 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 dis-associative 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 s.18 and s.20 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 on 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 also 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 anyone who is 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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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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Assault (Summary)

Assault (a non-fatal offence) 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 (recklessly).

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 do 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 that 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.

In order to successfully convict for assault the prosecution must establish both the mental element (mens rea) and the physical element (actus 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.

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 also 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 (omission) 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 mens 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).

As per R v Savage (1991) and R v Parmenter (1991) the type of recklessness that applies to non-fatal offences (s.47 OAPA 1861) is subjective recklessness.

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 the 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 frightened 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.

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 constitutes 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.

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.

What was said obiter 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.

The rule that words alone are sufficient to constitute an assault became firmly entrenched in R v Ireland and Burstow (1997) which further broadened the scope of liability for assault that is committed merely with words and continued along the lines of what was said (obiter) in R v Wilson (1955) and the decision in R v Constanza (1997).

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. Do psychiatric illnesses (injuries) fall within the scope of s. 18, s. 20 and s. 47 of the Offences Against the Person Act 1861 and can they be defined as bodily harm.

s.18, s.20 and s.47 of the Offences Against the Person Act 1861 (OAPA 1861) read as follows: –

s.18 Shooting or attempting to shoot, or wounding with intent to cause grievous bodily harm – 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 Inflicting injury with or without a weapon – 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 . . .

s.47. Assault occasioning actual bodily harm – 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] –

It was decided that on: –

  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 (1997)
  2. Psychiatric illnesses (injuries) do fall under the scope of bodily harm or can be classified or categorized as bodily harm.

The defendant can commit an assault by merely remaining silent. In R v Ireland (1997) the defendant harassed three separate women over a period of three months by continuously making repeated phone calls to them and remaining silent. He was convicted under s.47 of the Offences Against Persons Act (1861) (OAPA 1861). The defendant appealed on the grounds that silence cannot constitute an assault.

The appeal was dismissed, and the conviction was upheld. Silence can constitute an assault when it is done to instill fear in the victim or to intimidate the victim.

“The proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible. A thing said is also a thing done. There is no reason why something said should be incapable of causing an apprehension of immediate personal violence, e.g. a man accosting a woman in a dark alley saying, “come with me or I will stab you.” I would, therefore, reject the proposition that an assault can never be committed by words.” – Lord Steyn

On whether psychiatric illnesses fall under the scope of bodily harm –

“In my view the ruling in that case was based on principled and cogent reasoning and it marked a sound and essential clarification of the law. I would hold that “bodily harm” in sections 18, 20 and 47 must be interpreted so as to include recognizable psychiatric illnesses.” – Lord Steyn

   2. The fear must be immediate: –

In R v Larkin (1942) the accused was brandishing a razor intending to frighten his mistress’s lover in the presence of his mistress. His mistress, who was drunk at the time, stumbled while the accused was brandishing the razor and her throat was cut. The woman died as a result. The accused was tried and convicted for constructive manslaughter and the defense appealed.

It was held that the fact that there was an assault directed at his mistress’s lover i.e. to put him in fear of his life, was an unlawful act and it was sufficient to establish constructive manslaughter. The act need not be directed at the victim.

  1. The act must me unlawful: –

In R v Arobekieke (1988) the accused was chasing the victim and the latter ran into a train station and got on board a stationary train. The accused peered into the carriage doors in search of the victim and the victim, in fear, jumped out off the train and onto to the railway tracks and was subsequently electrocuted. The accused was arrested, charged and convicted for constructive manslaughter or unlawful act manslaughter. The accused appealed.

The appeal was allowed and the conviction was quashed. While the victim was in fear; the actions of the accused were not unlawful. Peering into the open doors of a stationary train may instill fear in the passengers but the act in itself is not unlawful –  while the victim did apprehend an imminent danger or was in fear for his safety, the actions of the accused was not sufficient to constitute an assault.

  • It is also not an assault if the victim is acting in self-defense for example when a would-be victim is abusive towards his or her attacker to prevent some harm from coming to him or her and
  • When one party is abusive towards another to prevent a crime.
  1. The victim must apprehend personal violence or violence towards himself or herself i.e. the victim must apprehend fear of immediate violence to his or her person: –

If the victim does not take fear and is injured or dies because of some other inherent cause or causes, the defendant’s actions may not be construed as an assault.

In R v Dawson (1985) the defendant attempted to rob a petrol station armed with a gun and an axe-handle. The defendant pointed the gun at the attendant but did not in any way attempt to use the gun or the axe-handle. The attendant pressed the alarm button and as soon as the alarm rang the defendant ran away.

Unknown to the defendant, the attendant suffered from a serious heart condition and once the defendant had fled the attendant had a heart attack and collapsed. He died soon after. The defendant was tried and convicted for constructive manslaughter and the defense appealed. The conviction was quashed.

Children more than adults are the most likely victims of an assault and the law recognizes this fact and makes it an offence to willfully assault a child.

S.1 of the Prevention of Cruelty to Children Act, 1894-

“If any person over the age of sixteen years, who has the custody, charge or care, of any child under the age of sixteen years, willfully assaults, illtreats, neglects, abandons, or exposes, such child, or causes or procures such child to be assaulted, illtreated, neglected, abandoned, or exposed, in a manner likely to cause such child unnecessary suffering, or injury to its 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”.

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Equity Summary

The origins of the law of equity date back to the period just after the Norman conquest of England in 1066. Prior to that the only law that existed, as far as the courts were concerned, was common law, and it strictly adhered to the principle of Stare Decisis, a Roman legacy which established the system of judicial precedent which is based on the principle that like cases should be decided in like manner.

Strict adherence to the doctrine however deprived the law of any sort of flexibility, and it resulted in some unfair decisions, and equity, which in the normal sense of the word means fairness, stepped in to mitigate the harshness and the rigidity of the common law system and to make the law more flexible.

Litigants who were denied justice started petitioning the king and the king would hear their pleas and make a decision based on his conscious, setting aside the common law, if he had to, in that particular instance. Equitable decisions do not create a binding precedent.

In time the number of cases began to increase and the king delegated the task to the Lord Chancellor who decided each case on its merits and his decisions were based on what was fair and just, as opposed to previous common law decisions.

That however led to two separate adjudicating mechanisms that ran concurrently and in order to remedy the drawbacks of having a dual court system and to create some sort of uniformity parliament passed the Judicature Acts of 1873 and 1875.

Under the 1873 Act the old higher courts were abolished and a new Supreme Court of Judicature was created consisting of the High Court of Justice and the Court of Appeal. The High Court was divided into five specialist divisional courts based on the old central courts (King’s Bench, Common Pleas, Exchequer, and Chancery), with the addition of the new Probate, Divorce and Admiralty division.

Equity was administered by the Court of Chancery and any litigant seeking an equitable remedy post the implementation of the 1873 and 1875 acts could bring his or her claim before the Chancery Division of the High Court.

In order to facilitate the workings of equity, a set of rules were developed. These rules developed organically, and they became known as equitable maxims. They are as follows:-

1) Equity varies with the length of the Lord Chancellor’s foot. This maxim simply means that equity does not operate on a system of binding precedent and a court of equity does not decide like cases in like manner but rather decides each case on its facts, keeping in mind or taking into account what is fair and just. Therefore there is always the possibility with regards to equitable decisions, that even if the facts were the same in two cases, the decisions might be different.

2) Equity follows the law i.e. it works to mitigate and tamper the harshness of the law. Equity does not overrule common law judgments or decisions but rather acts in personam and equitable decisions effect only those who are party to it and do not affect others. In Re Diplock (1948) for example, the rightful beneficiary was entitled to trace monies that were wrongfully paid to a charity. Despite the fact that the transfer was legal, the beneficiary had an equitable right to it and therefore the beneficiary was allowed to trace (tracing allows the rightful owner to recover property and monies that were wrongly given to another or transferred without the consent of the rightful owner) the monies.

3) The following two maxims are concerned with priorities: –

a) Where the equities are equal the law prevails i.e. when two parties have acted equitably, and there is no evidence of either party acting in bad faith (mala fide) or there is no evidence of fraud, then equity cannot provide a remedy and the law will prevail.

b) Where the equities are equal the first in time prevails. The second maxim is slightly more complicated than the first. When there are two equities i.e. two parties with equal interests than the first party that registered his or her interest or the original equity will succeed as opposed to the later equity. It goes back to the issue of notice and at times when there is an equitable interest involved it is best to give notice to others that such a right or interest exists.

4) Equity looks at substance rather than form. Equity looks into the subject matter and decides on the facts rather than merely complying with the legal formalities. In Parkin v Thorold (1852) Lord Romilly (MR) recognized the fact that equity will distinguish between what is a matter of form and what is a matter of substance. If the court finds that by looking at the form or by merely adhering to formalities, the substance will be defeated, then equity will go further and look into the substance of the matter.

5) Equity will not permit a statute to be used as an instrument of fraud. If a court finds that by insisting that the provisions of a statute be complied with will facilitate or permit fraud then equity will intervene on behalf of the aggrieved party. In Banister v Banister (1948) Mrs. Banister inherited two cottages upon the death of her husband and she sold both cottages to her brother in law for £150 less than the market value on the promise that she could live in the cottage that she was occupying for the rest of her life.

Upon the completion of the sale her brother in law sought to evict her, and Mrs. Banister claimed that she had a beneficial life interest that arose when her brother in law gave her an oral undertaking that she could remain in the property for life.

Her brother in law sought to rely on s. 53 (1) (b) of the Law of Property Act 1925 which reads as follows:- “a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will;”

Because the undertaking was not evidenced in writing as per s 53 (1) (b) of the Law of Property Act (1925) her brother in law was of the belief that he could legally evict Mrs. Banister.

It was held that Mrs. Bannister held the cottage on constructive trust and she could remain there rent free for the rest of her life. A valid trust had been created despite the fact that s. 53 (1) (b) of the Law of Property Act 1925 had not been complied with.

6) Equity imputes an intention to fulfill an obligation: – Where a person has an obligation and the person acts, towards fulfilling the obligation or in furtherance of fulfilling the obligation, whether intentionally or otherwise, equity will deem that the person has intended to fulfill his or her obligation.

7) Equity regards what ought to be done as done. This maxim applies to remedies like specific performance i.e. where the courts will compel a party to perform its stipulated duties.

In Nutbrown v Thornton (1805) the plaintiff entered into a contract with the defendants to purchase some machines. Subsequently the defendants refused to deliver the machines and because the defendants were the sole vendors for that type of machines, the plaintiff brought an action against the defendants and sought specific performance as a remedy. The court granted specific performance and compelled the defendants to perform their duties as stipulated by the contract.

8) Equity acts in personam. Equity acts against a person as opposed to acting in rem i.e. acting against a thing or acting over something that the court does not have jurisdiction over or acting against the world at large. Hence equity does not interfere with common law but rather acts in tandem with it or alongside it to ensure that justice is done. When acting in personam, the courts generally will not interfere with land or titles abroad, or decide on matters which do not fall within the scope, ambit or jurisdiction of the court.

9) Equity will not suffer a wrong to be without a remedy i.e. where there is a wrong equity will intervene to right the wrong. Equity will intervene to remedy the defects of the common law and this maxim is in line with the Latin legal maxim ubi jus ibi remedium (“where there is a wrong, there must be a remedy”).

10) He who seeks equity must do equity. As per the maxim, an applicant or a litigant who is relying on equity must have acted equitably himself or herself before he or she can petition a court of equity to intervene on his or her behalf. If the applicant’s or litigant’s actions are tainted with fraud or malice then a court of equity certainly would not intervene on his or her behalf.

Whether a court of equity chooses to intervene or otherwise is entirely at the discretion of the court and a court of equity will be reluctant to intervene or will be hesitant to intervene if it finds that the actions of the applicant or the litigant are tainted with fraud and malice.

In Haywood v Cope (1858), it was decided that, as per Lord Romilly MR, – the discretion of the Court must be exercised according to fixed and settled rules; you cannot exercise a discretion by merely considering what, as between the parties, would be fair to be done; what one person may consider fair, another person may consider very unfair; you must have some settled rule and principle upon which to determine how that discretion is to be exercised.

According to the rules and established principles (equitable maxims), mentioned above, a court of equity will only be prepared to intervene if they find that the applicant or the litigant has acted equitably himself or herself.

11) He who comes to equity must come with clean hands. As per the maxim any applicant or litigant who seeks the aid and assistance of a court of equity must do so with clean hands i.e. his or her actions cannot be tainted with fraud or malice and there cannot be a hidden agenda behind the scenes. He or she cannot have acted unfairly or unjustly, oppressively or arbitrarily prior to seeking the aid and assistance of a court of equity.

12) Delay defeats equity. The Limitation Act 1980 lays down a limitation period after which time the applicant or the litigant may not be successful. For example, Section 22 and 23 of the Act read as follows: –

Section 22 Time limit for actions claiming personal estate of a deceased person.

Subject to section 21(1) and (2) of the Act—

(a) no action in respect of any claim to the personal estate of a deceased person or to any share or interest in any such estate (whether under a will or on intestacy) shall be brought after the expiration of twelve years from the date on which the right to receive the share or interest accrued; and

(b) no action to recover arrears of interest in respect of any legacy, or damages in respect of such arrears, shall be brought after the expiration of six years from the date on which the interest became due.

Actions for an account

Section 23 Time limit in respect of actions for an account.

“An action for an account shall not be brought after the expiration of any time limit under this Act which is applicable to the claim which is the basis of the duty to account”

13) Equity will not allow a trust to fail for want of a trustee – the maxim speaks for itself and as far as a trust is concerned, it takes precedence regardless of whether the settlor has appointed a trustee or not and in the absence of a trustee, whoever has legal title will be considered or regarded as a trustee or the court will appoint someone to act as trustee and in instances where the appointed trustee is dead, the court will step in to appoint a new trustee.

14) Equity is equality. When there is nothing to indicate otherwise equity will divide any funds equally among all those who are entitled to it. In Burrough v Philcox the testator left the proceeds of his trust to any relative his child should nominate, and his child died without nominating any relatives and when the matter was brought before the courts it was held that the proceeds should be divided equally among all those who are entitled to it.  However, if such a division was not possible then the proceeds would not be divided because it is clearly not what the settlor would have intended see McPhail v Doulton.

15) Equity will not assist a volunteer. A volunteer in this context is a person who has not given consideration. In Currie v Misa (1875) it was held that consideration from the perspective of the law may consist of some right, benefit, interest or profit accruing to the party or some loss, sufferance, detriment, or responsibility incurred by the party.

16) Equity will not perfect an imperfect gift. With regards to gifts unless some form of consideration has been given equity will not intervene or compel the donor or his estate to make good on a gratuitous promise. There are however certain exceptions to this maxim for example the rule in Strong v Bird (1874) – where the donor intends to pass his property to another and maintains that intention until his death but for some reason or other fails to make the transfer during his lifetime, the property becomes vested in the intended donee as the donor’s executor, and the vesting of the property is deemed to be or is seen as completing the gift.

17) Equity is a shield and not a sword. As per the maxim equity is a defensive mechanism and not an offensive mechanism and an applicant seeks an equitable remedy when the applicant is deprived of something the applicant is genuinely entitled to and not otherwise for example when the doctrine of promissory estoppel is invoked. According to the doctrine, when one party makes a promise to another party and the second party relies on the promise and acts to his or her detriment than that promise is a valid promise and is a promise that is enforceable at law.

Copyright © 2019 by Dyarne Jessica Ward

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Equity XXIX

17) Equity is a shield and not a sword. As per the maxim equity is a defensive mechanism and not an offensive mechanism and an applicant seeks an equitable remedy when the applicant is deprived of something the applicant is genuinely entitled to and not otherwise for example when the doctrine of promissory estoppel is invoked. According to the doctrine, when one party makes a promise to another party and the second party relies on the promise and acts to his or her detriment than that promise is a valid promise and is a promise that is enforceable at law.

Copyright © 2019 by Dyarne Jessica Ward

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Equity XXVIII

16) Equity will not perfect an imperfect gift. With regards to gifts unless some form of consideration has been given equity will not intervene or compel the donor or his estate to make good on a gratuitous promise. There are however certain exceptions to this maxim for example the rule in Strong v Bird (1874) – where the donor intends to pass his property to another and maintains that intention until his death but for some reason or other fails to make the transfer during his lifetime, the property becomes vested in the intended donee as the donor’s executor, and the vesting of the property is deemed to be or is seen as completing the gift.

Copyright © 2019 by Dyarne Jessica Ward

 


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