Section 20 Offences Against the Persons Act 1861
S.20 OAPA penalises ‘Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm...(GBH)’. It must be proved that the defendant intended or risked harm. As you can see from R v. Mowatt (1967) 3 WLR 1192, it is foresight of some harm that is required, not necessarily serious harm. This was upheld in R v. Savage {1992} 1 AC 699.
ACTUS REUS: Causing a wound or inflicting grievous bodily harm
The Actus Reus is the same for this section as it is for section 18. Moreover, as stated Jack dos have the Actus Reus.
MENS REA: Intention to harm or recklessness (R v. Cunningham (1957) 3 WLR 76 or subjective recklessness Savage)
Jack would be liable if he intended or was reckless as to the causing of some harm (R v. Parmenter {1991} 2 WLR 408). This seems highly likely on the facts. Jack may be charged with inadvertent manslaughter. The prosecution must prove a duty and a high degree of lack of care to be present in the accused's actions. Those actions must create a serious and obvious risk of death or serious bodily harm. Jack has caused the death of his father James.
Defences
Jack may be able to claim provocation, as this is a defence to murder. In serious offences, the concept of blame must depend on the subjective state of mind of the accused and not on objective test using hypothetical state of mind of a
Reasonable man. The court and jury need to decide what Jack’s state of mind actually was {R v Nedrick (1986) 1 WLR 1025 in Court of Appeal: D might intend a result albeit not desiring it}. {R v. Smith {2001} 1 AC 146} The issue in the case was the relevance of the reasonable person's assessment of the situation. Byrne in the Court of Appeal was very clear - if a reasonable person would have appreciated the risk and thus intended the consequences, and then the jury was entitled to infer that the defendant did likewise. But in all the circumstances of the case, if that was not the correct inference (i.e. if there was evidence that the accused did not intend those consequences) then that inference should not be drawn. In other words, the ultimate test was the subjective state of mind of the accused - one could draw inferences about that by using common sense objective standards but such inferences were always rebuttable by evidence that the defendant was not, for example, a reasonable person! {R v. Woollin (1998) LR 890: House of Lords approve Nedrick but simplifies: jury are not entitled to find necessary intent unless consequence was ‘virtual certainty’ and D appreciated that this was the case}.
Jack was clearly reckless in his intensions. R v. Adomako {1995} 1 AC 171 introduces yet another mental element to those employed by the criminal law - intention, foresight, inadvertent recklessness and now (and only for manslaughter) gross negligence. Adomako applies to all killings. R v. Seymour {1983} 2 AC 493 and Kong Cheuk Kwan are overruled. The word 'reckless' can be used but in the 'ordinary connotation of the word' (Atkin). It is unnecessary to give any detailed directions regarding 'reckless'.
Provocation
Provocation is a defence only to a charge of murder, which Jack should successfully pleaded, would reduce his offence to voluntary manslaughter. It is a defence under s.3 of the Homicide Act 1957.
If there is any evidence that the accused lost self-control in consequence of some provocation, however slight it may appear to the judge, the issue must be left to the jury – R v. Doughty (1986) 83 Cr. App. R 319. However there must be some words or deeds - mere circumstances are not enough.
Jack had a sudden and temporary loss of self-control. This is a purely subjective test and on the fact, (R v. Humphreys (1995) 4 ALL ER 1008, the case confirmed that for the subjective test cumulative provocation could be taken into account
And that a time gap between the last provocation and the attack was not necessarily fatal as long as there was still a loss of self-control). it appears to apply here. The question states that Jack was enraged by the text message on him mobile phone and immediately Jack has a sudden flashback to all the years of torment he has suffered at James' hands (The concept of delay in retaliation has also to be reconsidered in the light of R v. Ahluwalia {1992} 4 ALL ER 889 - although there must be a 'sudden and temporary loss of self-control', that can
Occur after a period as a result of the cumulative effect of continuous violence. This can be referred to, as the 'slow-burn' effect, which can lead to a sudden loss of control and the delay, does not lead to an exclusion of the defence). In a sudden rage, he rushes into the lounge where James is sleeping and stabs James in the chest with the knife, killing him.
The jury must be satisfied that a reasonable person sharing such of Jack’s characteristics(R v. Morhall {1996} AC 90. That if a characteristic was relevant to the provocation it should be given to the reasonable man regardless of the fact that it was not a characteristic you would expect a reasonable person to have.) as are relevant would have been provoked and reacted as Jack did. The reasonable person is the same age and sex as Jack (R v. Camplin (1978} AC 705. However, he will always have a reasonable power of self-control (R v. Lesbini {1914} 3 KB 1116) and is not drunk {Newell (1980) 71 Cr. App. R. 331}. He will also be given any other characteristic, which is relevant to the provocation (the cases of R v. Dryden (1995) 4 All ER 987; R v. Thornton (no.2.) (1996) 2 All ER 987). Applying that law to this situation, the reasonable person would definitely be a 'short, fat pig' Jack is enraged by a remark about his weight and size. Following the House of Lords decision in Smith the jury should ask themselves weather the circumstances were such as to make the lost to self control sufficiently excusable to reduce the gravity of the offence to manslaughter. The jury are entitled to take into account the effect of any characteristics of the defendant in deciding weather he had matched up to the standard reasonably required of him. The question for the jury then becomes would the reasonable ('short fat pig' suffering from PTSS, It is clear that post-traumatic stress syndrome ('battered wives syndrome') has the potential of being treated as a relevant characteristic) man have been provoked and reacted in the way in which Jack did.
The defence of provocation is therefore likely to succeed.
A high proportion of assaults and homicides occur in situations where the victim precipitates the event by words or deeds. Where people are physically or sexually abused, taunted or jeered at and then react with violence towards the aggressor, though it might not be considerd provocation as to justifying the conduct, It could be seen as reducing the blame to be attached to the act and as a partial and limited excuse.
Jack’s Assault on Gail.
Section 47 (assault occasioning actual bodily harm)
ACTUS REUS: A common assault or battery, which causes actual bodily harm.
The central element here is the victim’s sensation that she is about to be attacked. Gail felt that Jack was about to rape her. In {Fagan v. Metropolitan Police Commissioner (1969) 1 QB 439} the court talked of an act, which causes
A person to apprehend immediate unlawful and physical violence. There is no need to prove fear – Gail might be confident of her ability to fight back successfully. Nevertheless, she must be aware of and believe in the imminence of an attack
In R v. Ireland {1997} 4 ALL ER 225 and R v. Burstow (1997) 3 WLR 534, there were phone calls, which sometimes were silent, and others abusive. The victims developed anxiety disorder and depressive disorders. The first defendant was charged under s.47 - assault or battery occasioning ABH.
The second defendant was charged under s.20 - inflicting grievous bodily harm. There’s no need for a predendent assault or battery so the question was simply whether the psychological damage could be ‘grievous bodily harm’, even though there is no physical direct violence. The House agreed that this was the case. The course of action pursued by Ireland and Burstow is also covered by the Protection from Harassment Act 1997 and the Telecommunications Act 1984 s.43.
MENS REA: Intention or recklessness to commit a common assault or barratry.
The mens rea is either the intention to cause the victim to fear personal violence or recklessness as to whether such fear is caused. Furthermore many of the offences under the Offences Against The Person Act 1861 use the word ‘maliciously’ to signify the mens rea. This is certainly to be interpreted in the Cunningham sense and it would be wrong to distinguish common law assault from these related statutory crimes. The Court of Appeal in DPP v. K {1990} 91 Cr. App. R. 23, were dealing with assault occasioning ABH under s.47 Offences Against the Person Act 1861 and applied R v. Caldwell {1982} AC 341, but that was overturned by R v. Spratt (1990) 1 WLR 1073, and confirmed by the Lords in R v. Savage (1991) 3 WLR 914 . The mens rea is thus intent to cause fear or awareness that your acts are likely to cause fear. Jack was full aware of the fear he had caused in Gail as she was screaming and she tries to pull away but Jack put his hands over her mouth and pins her to the wall. Clearly showing the mens rea for this offence
Defences
Jack may be able to rely on the fact that he was intoxicated. Voluntary intoxication can negate the mens rea for a specific intent offence (DPP v. Beard (1920) AC 479, R v. Sheehan and R v. Moore (1975) 1 WLR 739). However, if the defendant, despite his intoxicated state, still has the necessary mens rea, then he is guilty of the offence. (A-G for Northern Ireland v Gallagher (1963) AC 349). However, where the offence charged is one of basic intent, intoxication is not a defence. 'It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea' (R v. Majewski (1977) AC 443, Metropolitan Police Comr v Caldwell (1982) AC 341).
It can be said that Jack did have the necessary mens rea as Gail screams and tries to pull away but Jack put his hands over her mouth and pins her to the wall. He says, Stop it you bitch, I have had a terrible day, I need you to make me feel better'. Jack would be guilty under section 47 of OAPA 1861.
Gail’s Assault on Jack
Section 47 Assault Occasioning Actual Bodily Harm
ACTUS REUS: An act, which causes the victim to apprehend immediate unlawful personnel violence.
The harm suffered must be “actual and bodily”, though slight bruising is sufficient for this. However in R. v. Miller {1983} 2 AC 161, the accused threw the wife down on three occasions and there was evidence that she was in a hysterical and nervous condition. The trial judge, Lynskey J., directed the jury that the term included ‘...any hurt or injury calculated to interfere with the health or comfort of the prosecutor...’ and clearly felt that hysterics came within this. The courts have accepted very minor hurt as ‘actual’. This is especially concerning since the maximum sentence is the same as under s.20 OAPA, malicious wounding. However, R v. Chan-Fook (1994) 1 WLR 689, and Ireland make it clear that s.47 is capable of covering psychiatric illnesses such as anxiety disorders or depressive disorders which have been caused by an assault or battery.
MENS REA: Intention to cause the victim to apprehend such violence or recklessness (Cunningham).
The mens rea is that required for common assault - once the intention or recklessness with regard to the assault has been proved, then there is no need to prove mens rea as to the actual bodily harm - the section speaks of ‘occasioning’ and this is simply a question of causation as to whether it flows from the assault (R v. Roberts 1971) 115 SJ 809. The idea of recklessness is Cunningham recklessness -this is upheld in Savage -victim was cut by broken glass. Charged
Under s.20, she was convicted under s.47 - there was a battery (deliberately throwing beer) and there was no requirement to show that she foresaw the risk of any actual harm.
Gail has assaulted Jack and caused him actual bodily harm (the cut above his left eye) She also has the necessary mens rea as she clearly intended to hit Jack. She does not have to foresee the risk of harm.
Defence
As Gail thinks that Jack is going to rape her she may argue that she used reasonable force in preventing a crime and that she was acting in self-defence.
She is judged on the facts as she honestly believed them to be (Gladstone Williams). However, according to the case of R v. O’Grady {1987} QB 995, she cannot rely on mistaken view of the facts if this was caused by her voluntary intoxication. The question is therefore, assuming Jack was going to rape Gail, whether the force that Gail used by throwing a stone at Jack’s head was reasonable. It certainly seems reasonable in those circumstances for Gail to fight him off. However, when she picked up the stone to throw at Jack arguable she has already prevented the crime and her conduct looks as if it is an attempt to punish Jack for what he had done. This would amount to excessive force and could result in Gail being convicted unless she could show some justification such as the need to prevent jack from coming after her.
Gail would therefore be guilty also of section 47 of OAPA 1861.