Adam could consider claiming that he was acting negligently. The Criminal Law book “texts and materials” describes a person as negligent when “he fails to exercise such care, skill or foresight as a reasonable man in his situation would exercise”. This describes the position of Adam in one light.
The case of Fletcher (1998) placed emphasis on involuntary acts and provided that if something was to get into the way of, or if it were to influence the possible outcome of a certain action the ensuing consequence of the act would be involuntary.
In relation to Adam’s position, one could advise him to claim that his act was involuntary in the sense that he could not control the subsequent action of the brick, or the victim when the brick was thrown, and was suspended in mid air. Adam could claim that after throwing the brick he could not stop the action of the brick, especially if the victim decided to make a swift movement towards the brick that would make the risk of being hit and wounded more probable. Adam’s intention was to frighten Eve therefore according to the concept of assault and or battery he is criminally liable for frightening her, because assault is when one puts another into a state of fear. This is seen in Constanza (1997), even a few simple words can amount to assault. However one assumes that the “reasonable man” would not just throw a brick at another human being, as this act is not regarded as reasonable force and could cause harm. However the question presented here is why the reasonable man would throw a brick at another person. Therefore one has to consider and or examine, the reasoning behind Adam throwing the brick. On one hand, one has to bear in mind that Adam may have had the intent to cause actual bodily harm as the trial judge indicated, however he may have been impelled to act as he did, due to fear of either death or serious injury against himself or his family. In this instance it would be advisable for Adam to claim self-defence, which would make the burden of proof rest on the prosecution, therefore consequently encouraging the judge to direct the jury to consider the defence. Adam could also be advised to claim duress of circumstance (as shown in Willer and or Conway, especially if there was a threat to his life; that is if that is the reason behind the Actus Reus as Adam could also have been in the same situation as Bird (1985). The Authority of the Shimmen (1986), which stands as the Caldwell loophole, could also pose as a suitable authority with which Adam can use as a defence for throwing the brick. Shimmen made a miscalculation and therefore caused criminal damage, henceforth Adam can claim that he miscalculated the way in which he would throw the brick in order to frighten Eve. However we must remember that Caldwell recklessness is an authority used for criminal damage whilst Cunningham recklessness can be applied to wounding.
The Authority of Cunningham (1957), highlights that one must have foreseen the possibility or chance of the consequence occurring, and the risk taken must have been one that was unjustifiable or unreasonable. Here we understand that Adam’s action may not have been unjustifiable and maybe the reasonable man would have done the same if in the same position. This is however once again dependent on what made him throw the brick and whether it was on reasonable grounds using reasonable force.
It would not be advisable for Adam to claim automatism as the act he committed was not fully involuntary. Furthermore he could not claim insanity, as he, unlike Stephenson (1979), is competent of foreseeing or appreciating the risk and consequence of committing the Actus Reus.
One could say that Adam has been convicted for a crime of basic intent through wounding.
When looking at section 20 of the Offences against Persons Act 1861, we come to understand that the actus reus is described as either wounding or grievous bodily harm. Wounding in this context, means a complete break in the skin, therefore a wound in the form of a graze would be an insufficient wound. Consequently it would be advisable to look in to the gravity of the wound, and examine whether there is broken skin. However one must be careful about this stance because the act also mentioned grievous bodily harm which can be referred to as serious bodily which constitutes psychiatric harm.
It would be advisable for Adam to put into consideration the importance of his age in this case. This is because, for example, it has been stressed that very young children should not be held responsible for their actions. The age of criminal liability is 10. The only time a child under this age can be prosecuted is if the prosecution can prove the child knew what he was doing had a grave consequence.
All in all it is advisable for Adam to place strong emphasis on his intent. All the arguments here are suitable. However he did commit the act and one still had to find out if the consequence, the wound, was grave or just a minor graze. Therefore it is advisable for Adam to claim his innocence on the grounds of his intent. However his intention would be guilty disregard less of his intent.
Offences Against The Person Act 1861, Ch. 100, s. 20 (Eng.)
Offences Against The Person Act 1861, Ch. 100, s. 18 (Eng.)
Wilson v Pringle [1986] 2 All ER 440
Willer (1886) 83 Cr. App.R.225
Conway (1989) 88 Cr.App.R.159
C.C. of Avon & Somerset Constabulary v. Shimmen (1986)