The Offences against the Person Act 1861 - Essay Example

? Non-Fatal Offences Against the Person The proposition in question relates to theoffence of battery and assault as set out in the Offences against the Person Act 1861 (hereon referred to as OAPA 1861), and also elements of common assault, the general principles of which are governed by a selection of criminal and civil cases as per development of the common law regime with regard to its criminal system. However, a number of rules regarding these offences do also derive from civil cases as the civil torts of assault and battery are closely linked in definitive nature to those of a criminal essence. In this particular case, nonetheless, Billy’s actions against Hilda and the nurse shall be assessed for any criminal charges that may be issuable against him. Any civil claims cannot be brought up whilst the case is in charge of the Crown Prosecution Service, which is strictly a criminal prosecution service. To begin with, it is necessary to see that Billy’s actions caused Hilda to suffer harm to an extent that she had to be taken to the hospital. These circumstances make it clear that the harm suffered by Hilda was aggravated in nature. She has been hit on the head by a chair leg and is in a condition that she is not allowed visitors. These evidential circumstances bring the harm caused into the ambit of a grievous nature which is governed by section 20 of the OAPA 1861. Section 20 of the OAPA states that: “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 an offence and liable to imprisonment for five years.” (Jacqueline, Chris 2011, pp 113-116) It is clear from the section that a few elements will need to be proven against Billy before a case under Section 20 can be made out. The first of these has to be the actus reus. For the purposes of Section 20, the actus reus, or the guilty act, has to consist of wounding which amounts to grievous bodily harm and has been inflicted by the defendant. The requirement of ‘wounding ‘ as defined in the case of Moriarty v Brookes ((1834) 6 C&P 684) states that the continuity of the skin as a whole should be disrupted. It is here to be noted that if the blow of the chair which was enough to land Hilda in a hospital whereby she was unavailable for visitors is a sign that the damage caused to her head would well have caused blood to flow, as might any such act where the impact is so harsh do so. As also mentioned in Section 20, the requirement that a weapon or instrument may have been used also stands proved as Billy used a chair to inflict harm onto Hilda’s person. More essentially, Hilda must prove that the harm caused was of the category of grievous bodily harm as set out in the OAPA 1861. It has been roughly defined as harm which ‘seriously interferes with health or comfort’ (Ashman, 1858 1 FF 88). Judges have also later refined this definition further in cases like Smith ((1961) AC 290), that the definition need not be confined in any sense; the jury and judge alike must take into account the totality of injuries caused and must consider liability for it accordingly. Here, it is clear that a woman who had to be admitted to the hospital had indeed suffered serious harm which cannot be taken lightly and is does qualify fully the requirement laid down in Section 20 of the infliction of grievous bodily harm. Further, it is necessary to prove that Billy has indeed ‘inflicted’ the injuries on Hilda for which he is to be held liable. It is expressly believed that in legal terms, infliction takes place when either the defendant directly and violently inflicts the injury by assaulting the victim or, more widely, where he does something which indirectly applies force on the victim’s person to cause injury. Under this definition, Billy has clearly been direct and violent in using force against Hilda as he hit her on the head with a chair leg and hence, infliction also stands proven. The next crucial issue is that of mens rea. It is clear from Section 20 that the intent necessary is that characterized by ‘malice’. This has been described by Lord Ackner (Baird, Fonda and Luckham (2007) p. 140) as foresight on the defendant’s part that ‘some physical harm to some person, albeit of a minor character, might result.’ It has been deemed unnecessary that the defendant should know the extent of the harm that he may be causing in the near future, or that he foresee that it may be serious bodily harm. As long as he is aware that he may cause any injury, great or dismissible, he is guilty of possessing the mens rea necessary to bring his actions under the ambit of Section 20. It is clear that Billy being a grown up of sound mind would know that his act of hitting another person on the head with a chair would have enough force to cause some hurt; in fact it is clear from the fact that he raised a chair and brought it down upon Hilda’s head that he meant, in fact, to meaningfully hurt her in some way. For Hilda’s case, it is quite clear from the above discussion of Section 20 of the OAPA 1861 that the CPS can prosecute Billy quite successfully for the alleged assault against her. The maximum penalty set out for an offence under this section is that of imprisonment for a term of five years, though this may be lessened in case of Billy successfully pleading any mitigating circumstances. This may not include the fact that he did not foresee that such a serious injury might have been caused by hitting her on the head with a chair, as such detailed foresight is not at all required for a case to be made under this particular section. Quite clearly, Billy is currently looking at any term of imprisonment under five years to be served. Now that Hilda’s situation has been settled, the circumstances of any claims the nurse might have against Billy are to be considered. As far as she is concerned, it is more a matter of common assault as no aggravating factors are present. Common assault and battery are summary offences as set out in Section 39 of the Criminal Justice Act 1988. For the nurse’s case, it is the definition of battery that is crucial to look at. As defined in the case of Ralfe ((1936) Cr App R 4), a person commits a battery if he intentionally or recklessly inflicts immediate unlawful violence on another person. To prove a wholesome case, each element of this definition needs to be applied to the nurse’s situation. To begin with, the actus reus of battery has to be recognized as the immediate unlawful violence on another person. It follows as of course that any amount of force applied is sufficient and there is no need to prove that any injury was caused. Such frail instances as that of taking a person’s fingerprints without consent have been known to be held as battery as it was in Callis v Gunn ((1964) 1 QB 495). It can thus be imagined the extent to which English law commands that a person’s physical form be protected from unlawful and needless interferences regardless of whether they cause any harm or not. Also, it has been suggested quite clearly that though everyday touching will rarely amount to battery, any contact that may be hostile, in the sense that it is more than can be acceptable in an ordinary, layman perception as being normal, will be treated as battery. This was expressed by Lord Goff in Re F ((1990) 2 AC 1). In the light of this judgment, it is clear that Billy’s action was hostile; he slapped the nurse. A slap is body contact that two strangers might find acceptable as a matter of course in their meeting with each other. Hence, the slap qualifies as violent for the purposes of battery, and it was a voluntary action that Billy imposed on the person of the nurse. With the actus reus having been established, one needs to now consider whether Billy had the necessary mens rea in order to be found guilty of common assault. The mens rea has been defined as intention or recklessness. This means that the defendant ‘must either clearly intend to cause or be aware of the risk of causing the victim to apprehend the application of immediate, unlawful violence’ as stated in Venna ((1976) QB 421). This definition is quite strict in its requirement that the victim should be caused to apprehend the application of force; it needs to be proven in a subjective sense that the defendant knew that his victim would indeed be caused to fear such a thing. If the jury is left with any doubt as to whether the defendant foresaw it or not, he must be acquitted. This was set out quite clearly in Savage and Parmenter ((1991) 4 All ER 698). To apply these principles to the given circumstances, one would have to prove beyond doubt that Billy knew he would cause the nurse to apprehend the application of force. It is necessary to note here, that Billy had stopped over for an hour at ‘Two Ducks’, which by the nature of the products available, seems to be a bar or pub of some sort. Hence, it can be assumed that Billy must have been drunk to some extent when he arrived at the hospital and not entirely in his senses. This may cast a shadow of doubt in the mind of the jury; would Billy, in a more or less inebriated state, realize what his actions may or may not cause the nurse to apprehend? It is very likely that he did not. Unlike the case of Hilda against Billy, the nurse’s case does not seem to be strong enough to warrant the pressing of charges against him for it. Nonetheless, it is crucial that the purposes of legal developments of common assault be kept in mind whilst considering this; the purpose has long been a relentless struggle, through definition and redefition, to preserve the sanctity of a person’s safety from physical invasion and unwarranted contact which a person may not want to welcome or view as downright hostile. In the nurse’s case, if a purposive approach were adopted, this is the case. In an equitable sense, if one is to move away from the stringent literalism of common law, the nurse may have an open and shut case whereby Billy slapped her, and by instinct should have known that it is not a very well mannered or acceptable sort of force to apply to a stranger who in his or her capacity is actually doing him a public service. Nonetheless, the requirement of mens rea is not an easily dismissible one and it is more than necessary that it should be proven before Billy may be punished for it. The criminal legal system also views the liberty of its subjects very seriously, and no defendant may be made to suffer for a crime that he did not intend. In light of this argument, it might just be so that Billy might be acquitted for common assault in the case of the nurse. To conclude and summarize Billy’s position and as to whether the CPS should prosecute him for the alleged assaults, it is clear that they should do so in Hilda’s case as under Section 20 of the OAPA, as a very strong case can be made. In Hilda’s case, though prosecution may be warranted, it is highly likely that he will be acquitted for lack of mens rea. Bibliography REDRESS (2000). Challenging imprints for torture: a manual for bringing criminal and civil proceeding in England and Wales for torture committed abroad [London], The Redress Trust. MARTIN, J., TURNER, C., (2011). Key Cases Criminal Law. Hodder Education. GREAT BRITIAN (2006). A new homicide act for England and Wales? A consultation paper. Norwich Stationery Office. ORMEROD, D.C., SMITH, J.C., & HOGAN, B., (2005). Smith and Hogan criminal law. Oxford, Oxford University Press. WOLF, D., NOTH, C., HILL, S., & ORBACH, J. (1999) Law and Order. Universal City, CA, Wolf Films/Universal. BAIRD, N., FIONDA, J., LUCKHAM, M., (2007) Criminal Law. University of London, University of London Press. BATTERY. www.e-lawresources.co.uk/Battery.php Cases cited: Moriarty v Brookes (1834) 6 C&P Ashman, 1858 1 FF Smith (1961) AC 290 Ralfe (1936) Cr App Callis v Gunn (1964) 1 QB Re F (1990) 2 AC Venna (1976) QB Savage and Parmenter (1991) 4 All ER Read More