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Consider the possible criminal liability arising in the above circumstances.

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Introduction

Mick and Steve are keen bodybuilders and regularly work out at the gym. One method they adopt in order to strengthen stomach muscles is for one of them to lie on a bench while the other drops a heavy ball onto his stomach. Reggie, the gym manager, has warned them that he considers this to be a potentially dangerous activity. Tony, a new member at the gym, is told by Mick that he has to undergo an initiation ceremony. Tony reluctantly allows himself to be held down on a bench by Mick and Steve then produces the heavy ball which he proceeds to drop onto Tony's stomach. This activity causes Tony an internal rupture. Realising that Tony is injured, Mick and Steve lift him up to carry him to a car to get him to hospital. At this point, Reggie, the gym manager, arrives from the pub somewhat the worse for wear with drink. He thinks that Mick and Steve are physically forcing Tony to engage in what he considers to be their dangerous activities. ...read more.

Middle

Hence, s. 20 or s. 47 OAPA 1861 seem the more likely bases for liability. The mens rea of either offence requires the harm to be committed 'maliciously', which mean intentionally or subjectively recklessly. This would require Steve to have foreseen a risk of some physical harm to Tony, albeit not necessarily the more serious harm, which is in fact, caused (Mowatt [1968], approved in Savage & Parmenter [1991]). Steve could plead the defence of consent. In addition, Attorney-General's Reference (No. 6 of 1980) [1981], the Court of Appeal said that "...it is not in the public interest that people should try to cause or should cause each other actual bodily harm for no good reason...", but added that, "Nothing we have said is intended to cast doubt on the accepted legality of properly conducted games and sports". Presumably harm incurred during intensive fitness training, as well as sport per se, which involves a risk of injury, may be consented to. Similarly, in Aitken [1992] the Courts-Martial Appeal Court appeared to accept that injuries incurred during initiation ceremonies involving "robust games" may also be consented to. ...read more.

Conclusion

Any offence which may be committed recklessly does not involve specific intent (according to a majority of the House of Lords in Caldwell [1982]). Neither of these offences require such an intent (Majewski [1977] itself involved several counts of s. 47 actual bodily harm), and hence the jury should be instructed to disregard any evidence of intoxication in assessing whether Reggie foresaw the consequences of his actions. If Reggie had been sober he may have been able to plead s. 3 of the Criminal Law Act 1967, which provides inter alia, that "a person may use such force as is reasonable in the circumstances in the prevention of crime". Where the defendant mistakenly thinks that force is required to prevent a criminal offence, it has been held that what is reasonable is assessed on the facts as the defendant honestly believed them to be (Gladstone Williams (1984); Beckford [1988]). Provided this belief was honestly held it need not, objectively speaking, be reasonable. However, where the defendant was intoxicated, then this defence is denied (O'Grady [1987], O'Connor [1991]). Thus it would seem that Reggie has no defence and faces liability for s. 47 actual bodily harm at least. ...read more.

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