Criminal Law Discussions - Coursework Example

Topic: Criminal Law Style: Oxford Referencing System Language Style: English (U.K Grade: 1st Answer: This question requires a discussion of the Non-fatal offences against the person in the context of the acts committed by Stan and Oliver while they were on their way back from a football match. There have been two potentially offending actions on behalf of Stan (S) and Oliver (O) and in addition advice is also required if there is a subsequent death of the victim Coach (C). The cardinal issues arise from technical assault, assault, battery and homicide. I will advise separately on each scenario where there will be a brief discussion of the law relating to offences against the person. For the purposes of the Offences Against the Person Act 1861(OAPA 1861), it should be noted first and foremost that the person who may be the victim of any of these offences is a human being and does not include foetuses or corporations.1 In order to answer it need to know about actus reus and mens rea. A Latin maxim encapsulates the principle – actus non facitreum, nisi mens sit rea the act itself does not constitute guilt unless done with a guilty mind. The conduct or state of affairs, which a particular offence prohibits, is called the actus reus and the state of mind which the accused must be proved to have had at the time of the conduct or during the existence of the state of affairs is called mens rea. In order to answer this question it is necessary to discuss actus reus & mens rea of Stan and Oliver. Criminal Liability of Stan: Secondly under the OAPA 1861 following the case of Fagan v Metropolitan Police Commissioner2, S may be guilty of assaulting Helen (H) when he picks up a broken bottle and throws it at her face, which causes her to cut her face badly. However, assault means any unintentional touching of another person without the consent of that person and without lawful excuse. The broken glass has cut her face rather badly and has resulted in her needing several stitches to her face. Although S said that he intended to frighten her. It will be consider to deciding to have the necessary mens rea for the crime. This act of S would qualify as an Assault as well as a Battery, although the separate existence of these two offences has been confirmed by s-39 of the Criminal Justice Act 1988 which are both summary trial offences. Since H has actually suffered from cuts on her face S can either be tried under the offences of assault or battery. Assault has been defined as “where the accused intentionally or possibly recklessly causes another person to apprehend immediate and unlawful personal violence.”3[Michael J. Allen, Criminal Law, 7th edition, (2003), chapter: Non-fatal offence]. It is clear from the facts that S has committed battery upon H as Lane CJ in R v Venna4 pointed out that, an assault (and battery) is an intentional touching of another person without the consent of that person and without lawful excuse. It need not necessarily be hostile, or rude, or aggressive, as some of the cases seem to indicate. In R v Venna5 the mens rea of battery was indicated as satisfied by proof that the defendant intentionally applied force to the person of another. Therefore it can be concluded at this stage that S may be found guilty of Assault/Battery upon Helen. It is also apparent from the facts that H has suffered serious injuries, so there is a chance that S may be charged for aggravated assault. However to be guilty of an aggravated assault he has to be guilty of assault/battery first.6His liability for simple assault has already been discussed so he may be charged under of the three varying degrees of Assault under the OAPA 1861 and there are separate punishments for them. The first is Assault Occasioning actual bodily harm under s.47 of the OAPA 1861, which makes assault occasioning actual bodily harm as an offence punishable by five years. This offence co exists with the offence of s 20 of the same Act also punishable by with a maximum of five years (maliciously inflicting grievous bodily harm (GBH)). However it is unlikely that S will be charged by either of these but to see whether S can be found guilty under s.18 OAPA, which is an ulterior intent crime, the relationship between these three offences should be seen as pointed out by Smith and Hogan (2002:438) “A charge of causing GBH with intent contrary to s.18 has been held to include a charge of inflicting GBH contrary to s.20 which in turn includes a charge of assault occasioning actual bodily harm contrary to s.47.The effect is that on an indictment for the Section 18 offence, the jury may find D guilty of an offence under section 20 or under s.47”7 [M J. Allen, Criminal Law, 7th edition, 2003, chap: non fetal offence] From the above it can be stated that S will be guilty of s.47 on the basis of “occasioning”8 actual9 bodily harm10 to H. where only the mens rea of assault is required not an intention or recklessness towards the actual harm that occurs.11 However, to prove actus reus of the offence of s. 20 OAPA 1861 of this offence it need the whole skin must be broken (Moriarty v Brookes12) but there need not be any profusion of blood one drop would be sufficient. That means a single drop of blood is sufficient, but it must fall outside the body. S can also be found guilty of the more serious offence under section 20, which is malicious infliction of grievous bodily harm or wounding. Wounding has been defined as an injury where both the dermis and epidermis of the skin has been broken13. Since s. 20 is narrower than s.18 because it requires infliction other than causing as in the s.18 then there has to be some sort of directness involved14. On the facts S did hit her with a broken bottle (wounding her face with cuts) and therefore is likely to be held guilty of a S.20 infliction of GBH. Of course the higher and much ulterior offence would be section 18. The mens rea of s. 20 of OAPA 1861, is prescribed by the word ‘maliciously’. The HL in Savage; Parmenter (1991) has confirmed that this entails either an intention to cause harm or subjective recklessness as to some harm. It is not sufficient to establish that D gave no thought to an obvious risk of harm, Caldwell objective recklessness being inapplicable. Similarly there is no need to prove that D intended or foresaw any risk of grievous bodily harm (GBH) or wounding even though one or the other is needed for the actus reus (R v Mowatt (1967) confirmed by Savage v Parmenter15). [Heaton: Criminal Law Textbook, reference 5] Coming to the mens rea issues here which will ultimately decide whether there is a conviction for s.20 or s.18, it seems likely that S will have conviction under s.20. This is because s.18 is a specific intent crime and S will have to be proved to intend causing her face to get cut by the bottle.16 For s.20 it will be sufficient to prove that S foresaw some harm resulting to H17. Alternatively he may be charged under s.47, which is much easier to prove, as it requires the mens rea of an assault or of battery. Criminal Liability of Oliver: Now coming to the actions of O who loosened one of the wheels of the team Coach’s car, which went out of control and crashed into another car causing several people to be badly injured. Here there have been injuries on behalf of the coach and several other people involved in the accident. Even if Oliver is to be found guilty of assault, there will issues of mens rea. It will be seen whether Oliver foresaw the potential harm when he loosened the wheels of the car or specifically intended it. In the light of the discussion of the law under the liability of S it can be seen that Oliver is not guilty of an indirect assault here but can also be found potentially liable under s.47 and s.20. Evidently O had the foresight of slight bodily harm required in s.20 and therefore he may be found guilty under s. 20 or even under s.47 (which merely requires mens rea of assault and makes the prosecution’s task much easier with the same punishment.) Smith and Hogan (2002:437) have proposed the elimination of s.47 or s. 20 or a wise amalgamation of the two as they have the same punishments. Section 18 OAPA 1861 provides: ‘Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any GBH to any person… with intent… to do some… grievous bodily harm to any person with intent to resist or prevent unlawful apprehension or detainer of any person, shall be guilty of an offence and shall be liable to imprisonment for life.’ Here Oliver maliciously loosened one of the wheels of the team Coach, so Oliver may be liable under s.18 of OAPA 1861. The last corollary of the question asks if my answer would differ would your answer differ if the Coach had been killed as a result of the accident. In this case O would be found guilty of homicide. Homicide includes both murder and manslaughter. Murder is a specific intent crime and requires a clear intention to kill the victim or intent to cause grievous bodily harm. A person will be liable for murder if he unlawfully killing a reasonable person who is in being under the Queens Peace with intention to kill [Moloney1, Cunningham2, Vickers3] or intention to cause grievous bodily harm [DPP v Smith4], [Saunders5]. Murder is unlawful homicide committed with malice aforethought with the penalty of mandatory life imprisonment. Malice aforethought describes the mens rea for a conviction of murder. Here it is necessary to consider that Drew had no malice aforethought to killing Sam, who delivers the parcel, which consists of a letter bomb. Sam and a pedestrian was the victim of the bomb explosion. In Draft Criminal Code (Law Com. No. 177), the Law Commission recommended a change in the law. Clause 54 provides that a person is guilty of murder if he causes death of another intending to cause death or intending to cause serious personal harm and being aware that he may cause death. Homicide involves the killing of a person with in the Queens peace and until the passing of the Law Reform Act 1996 the common law rule was that the death had to occur within a year and a day of the defendants act. Murder is Homicide with malice aforethought (Smith and Hogan 2002). This malice aforethought includes the intention to cause death or GBH to another person 18. The jury might infer that O intended to kill or cause GBH to C if it appears that the accused foresaw such death/GBH as an “overwhelming probability”19. On the facts it is unlikely that there will a charge of murder for Oliver due to the high standards of foresight required for GBH and intent to Murder. There is a greater chance of him being convicted of unlawful act /constructive manslaughter. This is because he has killed C as a result of meddling with his property with the intent of harming or assaulting him20. In R v Dawson 27 in judging whether this act was sufficiently dangerous, the CA applied a test based on the "sober and reasonable". However the court disagreed in R v Watson 28 in which the victims approximate age (he was 87 years old) and frail state would have been obvious to a reasonable person. It is foreseeable that the victim is at risk of suffering some physical harm 24 from such a punch and that is sufficient. Physical harm includes shock. The court held that the deceaseds death was not caused by injuries that were a foreseeable result of the affray. The assault by the second defendant was an unlawful act causing death. Now it needs to consider the defence of Oliver. Oliver may say that he was provoked. However, in order to establish the liability of Oliver it is necessary to consider few recent cases. In R v Faqir Mohammed 29there are two elements to this defends which, for the purposes of simplicity, may be identified as: a) Whether the D lost his or her self-control and if so: b) Whether s/he should reasonably have controlled him or herself The Defendant, a devout Muslim, stabbed his daughter to death. She had, he said, brought shame upon the family. He had discovered a man leaving her bedroom. The D had suffered from depression since the death of his wife and said that what had happened had caused him to lose his self control. The jury had to considered whether his other characteristics of strongly held religious beliefs and depression provided a sufficient excuse to reduce murder to manslaughter. The defendant was convicted to murder and appealed on the ground that the evidence brought by the prosecution of his previous violence to his wife and children was inadmissible and prejudicial. The Privy Council over ruled the decision of Luc Thiet Thuan30, R v Smith31. In Smith, defendant gets a defence under s 3 of the Homicide Act 1957. In case A-G for Jersey v Holly 32held that Smith (Morgan) was not an accurate statement of English Law. In R v James and R v Karmi 33 the CA upheld the decision of Holly. So from the above discussion it can be said that Oliver cannot exclude liability of murder or manslaughter of Coach. Homicide is a common law offence. It is Judges Discretion to impose liability upon Oliver. From this fact it seems that Oliver invoked self-defence under s 3(1) of the Criminal Law Act 1967 for his serious crime. In R v Williams (Gladstone) 34and R v Owino 35 it appears that an objective concept of reasonableness was to be applied in the context of a subjective interpretation of the circumstance. But he will not be succeeding because only reasonable force may be used in self-defence. Therefore since the unlawful act is present here in this case, it should next be seen that it does not have to be directed at C.21 Therefore O will also be liable for the deaths or injuries of all those other passengers involved in the accident. Whether or not O was committing a dangerous act in this regard will be measured objectively22, i.e. whether an ordinary reasonable person would have seen the loosening of those wheels as dangerous. It is more likely to be decided that such a prank was dangerous and O has a greater chance of being tried under the offence of Unlawful act manslaughter. In conclusion it can be said that they will be liable for murder or manslaughter, its judge discretion because it is common law crime and jury will decides the facts of the case. Bibliography: 1) JC Smith & B Hogan, Criminal Law, Cases & Materials, D Ormerod, 4th edition, Butterworths Lexis Nexistm UK, 2005 2) M J. Allen, Criminal Law, 7th edition, Oxford University Press, 2003 Pg. 227-380 3) JC Smith & B Hogan, Criminal Law, 11th edition, D Ormerod, Oxford University Press, 2005 4) Ashworth, A. Principles of Criminal Law, 4th edition, Oxford University Press, 2003 5) Heaton: Criminal Law Textbook, available at < http://www.oup.com/uk/orc/bin/9780199272839/01resources/qa/heaton_qsv2.pdf > accessed on 27/12/2007 Table of Cases: 1. See AG’s Reference (No 3 Of 1994) (1997) 3 All ER 936,943 2. Fagan V Metropolitan Police Commissioner [1969] 1 QB 439, 3. R V. Lamb [1967] 2 All ER 1282 4. R V Wilson [1955] 1 All ER 744. 5. Blackburn V Bowering [1994] 3 All ER 380 CA 6. Mandair (1994)99 Cr App Rep 250, 7. Wilson (1984) AC 242(1984), 8. Maxwell (1994) Crim LR 848 9. R V Chanfook (1994) Crim LR 32. 10. R V Savage; R V Parmenter (1991) 3 WLR 914 11. C (A Minor) V Eisenhower [1984] QB 331 12. Wilson 1984 Ac 242 and Taylor [1869] LR 1 CCR 194. 13. Re Knights Appeal [1968] FLR 81 14. Mowatt [1968] 1 QB 421 1967 15. R V Moloney [1985] AC 905 16. R V Hancock And Shankland [1986] AC 455 And R V Nedrick 1 WLR 1025 17. DPP V K [1990] 1 All ER 331 18. R V Goodfellow [1986] 83 Cr App R 23 19. R V Mitchell 1983 2 WLR (1983)2 WLR 938. 20. R V Ball [1989] Crim LR 730 21. R v Lamb [1967] 2 QB 981 22. DPP V Newbury [1977] AC 500 23. R v Dawson (1985) 24. R v Watson (1989) 1 WLR 684 25. R v Faqir Mohammed (2005) Crim 1880 CA 26. Luc Thiet Thuan [1997] AC 131, 27. R v Smith (2001) AC 146 HL 28. A-G for Jersey v Holly [2005] UK PC 23 29. R v James and R v Karmi [2006] EWCA 30. R v Williams (Gladstone) (1984) 31. R v Owino (1995) 32. Moriarty v Brookes [1834] 6 C & P 684 33. Cunningham (1982) 34. Vickers (1957) 35. DPP v Smith (1985) 36. Saunders (1985) Table of Statutes 1. Offences Against The Persons Act 1861 2. Criminal Justice Act 1988 3. The Criminal Law Act 1967 Read More