The Law for Non-Lawyers: Analysis of Billy - Case Study Example

Law for Non Lawyers: Scenario Introduction The law is an important instrument for enhancing orderliness and peaceful co existence within the community. Relative rules play an important role in shaping and guiding behaviour accordingly. They provide benchmarks for shaping the behaviour of the populations in a bid to ensure that these are within the expectations of the society. For those who violate important legal provisions, the penal code facet of the law provides for the punishments that respective individuals should be exposed to. Essentially, there are laws governing criminal offences as well as civil offences. In addition to underscoring the punishment that the offenders should be accorded, the laws offer principles that need to be put in consideration before the suspects are justified to have committed the alleged offences. In this consideration, law is an instrument of furthering justice and ensuring that all individuals are treated equally. Offences related to assault are defined to be criminal by the law. This is due to the fact that they expose the individual to harm or danger that compromises their life. Put differently, assault is a criminal offence that compromises the life of a victim. It exposes the victim to danger and/or instils a demeaning sense of fright. Usually, the legal implications of assault are immense. For this reason, it is important for the prosecutors to weigh the options and establish that the offense actually occurred. It would be unfair to prosecute a person if it has not been clearly established that the offense actually happened. It is against this background that this paper explores the guidance and general principles that need to be put in consideration when making the decisions regarding whether to prosecute Billy for the alleged assault. Generally, assault is defined as any act, as opposed to a simple omission, in which an individual recklessly or intentionally causes the other to apprehend unlawful and immediate violence. As in R v Burstow; R v Ireland (1998) 1 AC 147, fear is an inherent factor of assault. In addition, assault does not necessarily constitute physical contact with an individual that alleges to have been assaulted. In light of Barwick CJ in The Queen v Phillips (1971) 45 ALJR 467 at 472, the mere instillation of fear amounts to assault (Loveless 42). With reference to the case study, Billy assaulted the youngsters psychologically. Arguably, the two children were filled with fear when their mother was hit in their presence. In this sense, Billy is liable for the offence of assault. The principle of recklessness is also important in establishing the charge of assault. In instances where the crown relies on recklessness to make the vital decisions and where physical force is not applied, Monaghan indicates that it is essential for one to prove that the accused was aware that the complaint is likely to fear that s/he would at that particular point in time be subjected to unlawful and immediate force (64). Regardless of this knowledge, the accused went ahead to take the respective risk. In instances where physical force is applied, the crown needs to prove that the accused was sure that the complaint would actually be exposed to unlawful force, however minimal, as a result of what he was just about to do, but still took the risk that the respective incident might happen. A classic exemplification of this is by R v Savage; DPP v Parmenter [1992] 1 AC 699 (Monaghan 65). With reference to the case study, Billy clearly knew the implications of hitting his wife with a leg of a chair on her head. It has not been indicated whether he was under the influence of alcohol at that particular time. Presumably, he also knew that this incident would instill fear in the children. Nonetheless, he still went ahead to hit Hilda in full view of the children. As a result of the injuries, his wife was taken to hospital. In his encounter with the nurse however, he was under the influence of alcohol. Although he could have slapped her unconsciously, he knew he was going to hospital to see his wife but still proceeded to take alcohol. From this point of view, his actions cannot be justified. Furthermore, intoxication is not a complete defense unless it resulted to temporary insanity. Hostile intent is another important element of any form of assault. In this respect, Slapper and Kelly postulate that any intentional application of any form of force towards the complainant need to be motivated characterized by hostile intent or positive hostility for it to qualify to be an assault. Relative hostile intent or hostility may nonetheless change what may be unobjectionable as being reasonably necessary into assault. As in Boughey v The Queen (1986) 161 CLR 10 at 27, this is possible if justification of rescue or assistance is made. In the preceding case study, the element of hostile intent is apparent. Presumably, when Billy hit his wife, either the neighbors or the wife herself sought rescue. This can be used to explain why she was taken to hospital. At the hospital incident, the police was called after Billy slapped the nurse. In this respect, the purpose of the police was to provide assistance and rescue the nurse from Billy’s hostility. From this point of view, it can be deduced from the fore-goings that Billy is actually liable for the offence of assault. Another important fundamental principle of assault pertains to the recognition that the respective act or conduct needs to have taken place without the complainant’s consent. In this respect, the accused simply decides to hit or inflict pain in the complainant without his or her consent. With reference to the preceding scenario, Billy hit and inflicted physical pain in the nurse and his wife without consent. If they would have consented to this, it is unlikely that the police would have been involved. The psychological pain that was inflicted in the young children who witnessed this event was also not consented. Thus from this consideration, Billy is liable for the offence of assault. In his research, Foster argues that before deciding to file charges for assault, it is important for the law enforcement officers or the prosecutor to examine the seriousness of the injuries as well as the sentence that the court is likely to pass (65). This is attributable to the fact that the implications of such charges are severe. In addition, in serious assault cases, including attempted murder or infliction of grievous bodily harm, it would be important to review the degree of intent that is inherent or respective acts. In instances where no injuries were caused or where the injuries were not serious, such an assault is categorized under common assault. In light of the case study, the second case where Billy hit the nurse can be accorded the common assault case. Unlike in the first case, this second scenario is not characterized by serious injuries. Although it causes so much pain, a slap does not cause serious injuries that can attract medical attention. Based on this, Billy is criminally responsible for the offense of common assault. In instances where the injuries that the victim suffers exceed those that can be reflected under the common assault charge, these are preferred under the actual bodily harm charge. Any form of assault that culminates into actual bodily harm is also legally provided for under the offence of assault. In their review, Carr, Carter and Horsey define bodily harm to be all encompassing including any form of hurt that is likely to interfere with the health of a victim or which undermines the comfort of the respective victim (72). As indicated in R v Donovan 25 Cr. App. Rep. 1, CCA, although such harm need not be permanent, it should be more than trifling and transient (Carr et al 74). Normally, such injuries tend to be serious. In justifying that the respective injuries are indeed serious, there are relevant factors that need to be put into consideration (Elliot and Quinn 52). These are wide and varied and include occurrence of any permanent effects or presence of significant medical cover. With regards to medical intervention, relative cases may include the need to apply a number of stitches to the victim or require the same to undergo an anaesthetic medical procedure. With reference to the case study under review, the assault that Hilda was exposed to is that of actual bodily harm. Seemingly, the injuries that she sustained are beyond those that can be considered under the charge of common assault. Compared to the injuries that the nurse sustained, hers were more and the degree physical harm was also higher. Ideally, being hit by the leg of a chair by an adult culminates in intense physical pain. Subsequently, this led to her being taken to hospital to undergo medical treatment. In this respect therefore, Billy is liable for the offense of causing actual bodily harm to his wife. Notably, the legal provisions for the offense of assaulting the nurse are provided for under the assaults on public workers and emergency servants’ facet. This is entailed in the Emergency Workers Act of 2006 (Carroll 69). Any offence that is committed against an emergency or public worker is treated seriously by the law enforcers. Public and emergency workers under these provisions are numerous including prison or police officers, social welfare and health professionals, providers of public transport services, and members of emergency services amongst others. With respect to the case study, the nurse falls under the category of health professionals and therefore qualifies to be covered by these legal provisions. Also worth mentioning is the critical aspect of intent that needs to be inherent to the act of assault. According to Foster, factors that indicate the existence of a specific intent include a planned or repeated attack, making of prior threats, and deliberate adaptation of an object to be used for causing the attack, kicking the head of the victim or using an offensive weapon against the respective victim. In the preceding case study, the intent to cause actual bodily harm is apparent in the first scenario (72). In this respect, Billy deliberately took the leg of the stool and hit his wife with it. In this respect, he demonstrated the intention to assault his wife. It would also be important for the crown to establish whether the victim consented to this assault. In this respect, consent is an acceptable defence of the offense of common assault. For this reason, it needs to be considered before any decision to prosecute is made. Usually, the presence of consent is established by the victim of the offence as illustrated by CPS v Shabbir [2009] EWHC 2754 (Admin) (Carr et al 86). In cases where there is grievous or actual bodily harm, consent can only be used as a defense when accompanied by a convincing explanation from both the accused and the victim. With regard to the case under review, there is not explicit consent that is given by both the nurse and Billy’s wife. Due to the seriousness of the offence and the conduct of the accused, the crown cannot imply that any consent was sought before the offense was committed. Having reviewed all possibilities, it remains that Billy can be prosecuted for the offense of common assault. Another defense that can be used in the court of law pertains to the fact that in the second assault, Billy was under the influence of alcohol. In this respect, it can be argued that he committed the second offense unknowingly. The crown at this point in time would need to review the history of the conduct of the offender. As indicated earlier, Billy was sure that he was going to hospital but still went ahead to consume alcohol. In most instances, Loveless indicates that this defense is used in criminal charges and requires the offender to have been given alcohol or any poisoning substance without his knowledge. Committing an offence under the influence of alcohol that has been administered without the knowledge of the accused justifies his or her actions. In the current case however, it can be established that Billy knowingly consumed alcohol. For this reason, this cannot be used as a defense. Conclusion In conclusion, the offense of assault has far reaching implications on the accused. It is therefore important for the crown to evaluate all guidelines and principles in order to ensure that the decision to prosecute is based on informed thought. As it has come out from the analysis, assault is all encompassing and has distinctive elements. The offense is classified into common assault and assault causing actual bodily harm. Under common assault, the seriousness of the injuries is minimal. In light of Billy’s case study, it can be contended that he qualifies to be prosecuted for both forms of assault. Notably, he did not only assault the nurse by assumedly assaulted the young children as well as his wife. Unlike the nurse and the wife who suffered physical injuries, the children suffered significant psychological harm. This is because they were present when their mother was being hit by the object. The intent to commit assault has been justified accordingly. Most importantly, there is no defense that justifies the actions of Billy. Therefore, the crown can proceed to launching prosecution against the accused. Works Cited Carroll Alex. Constitutional and administrative law. London: Longman, Print. Carr Helen, Carter Sarah and Horsey Kirsty. Skills for law students. Oxford: University Press. Print. Elliot Catherine and Quinn Frances. Criminal law. London: Pearson, 2012. Print. Foster Nigel. EU Law directions. Oxford: University Press. Print. Holland James and Webb Julian. Learning legal rules. Oxford: Oxford University Press, 2010. Print. Loveless Janet. Complete criminal law: Text, cases and materials. Oxford: University Press, 2012.Print. Monaghan Nicola. Criminal law directions. Oxford: University Press, 2012. Print. Slapper Gary and Kelly David. English Law. London: Routledge- Cavendish, 2009. Print. Read More