Charlie’s action of throwing the stone may have led him to commit the summary offence of common assault as stated in section 39 of the criminal justice act 1988 rather than battery as he acted intentionally, calculating in his mind to cause fear in the mind of his ex-girlfriend without physical contact as seen in Venna (1975) 3 AER 788. Had he physically contacted his ex-girlfriend Charlie would in all probabilities have been held for battery rather than common assault. However, Charlie’s intentions can be questioned due to his intoxication, as perhaps it can be said that he acted subjectively rather than objectively reckless as to whether such harm would have occurred. As a result, Charlie can be said to have absolute liability due to the fact that no mens rea need be proven as it is a basic intent crime and the proof of the actus reus is all that is required. Whereas if he had committed a crime of specific intent and been strictly liable, here also the proof of the mens rea would not have been required however, only in respect of at least one element of actus reus being present. It can also be argued, that he was acting involuntarily under the influence of alcohol nevertheless; Charlie’s intoxication was self-induced and so will be no defence for a basic intent crime. As seen in the case of DPP v Majewski [1977] AC 142, where the defendant had afflicted assaults upon police officers after consuming large quantities of alcohol and drugs. The trial judge had directed the jury that self-induced intoxication was not available as a defence to these basic intent crimes. This then indicates us to believe that Charlie would not be able to use involuntary intoxication as a defence and is likely to be charged for common assault.
Charlie having thrown the stone and hitting the shopper had transferred malice. He had the mens rea to assault his Ex-girlfriend when acting, but due to his recklessness, Charlie became liable for Gross Bodily Harm (GBH) under Section 20 of the Offences Against a Person Act (OAPA), although the result, in some respects is an unintended one. This also occurs in the case of Latimer (1886) where the defendant got into a fight in a pub with another man. He took off his belt and hit the man with the belt. The belt rebounded off and hit a woman in the face. The court held that the defendant was liable for the injuries inflicted on the woman despite the fact that he did not intend to harm her. The mens rea he had to cause harm to the man was transferred to the woman. In the case of Charlie, he did not have the mens rea to cause GBH to the woman, however, due to his reckless actus reus he can be convicted for causing GBH on the unintended victim, the shopper ad have absolute liability.
Under the OAPA, GBH is stated to be when a person unlawfully and maliciously wounds or inflicts any grievous bodily harm upon another person. Below this, GBH is divided under two separate sections, S.20 and S.18. S.20 represents the less significant offence as it relates to whoever commits GBH without the intention too. They may then be liable to imprisonment of a term not exceeding five years. Whereas S.18 is a more serious offence that recognises that one must have the intention to do some grievous harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person. Such a person would be convicted and liable to an imprisonment up to twenty-five years. The main difference between the offences under s.18 and s.20 relate to the mens rea. Also the offence under s.20 can be tried, whereas the offence of grievous bodily harm under s.18 is indictable. It can be said that Charlie has committed S.20 as he has clearly inflicted GBH to the shopper but in his defence had no ‘intention’ to cause GBH before the transferred malice occurred. Nonetheless, Charlie can still be held for S.20 as in this section, in contrast to S.18, there is no need for the prosecution to establish that there was a mens rea as established in R v Savage [1991] 94 Cr App R 193. [In this case the court held that] it was not necessary to demonstrate the defendant had the mens rea in relation to level of harm inflicted. It was sufficient that they intended or could foresee that some harm will result. Charlie is most likely to be tried in the Crown court for S.20 of the OAPA due to it being an indictable act and is likely to be served with a maximum sentence of five years.
It can be argued that if it had not been for Charlie the shopper may not have been killed. However, the question does arise that ‘but for’ Charlie’s actions, would the shoppers death still have occurred? In solving this question the ‘but for’ principle must be carried out, where D’s behaviour is eliminated from the narrative and it is questioned whether the result would have occurred anyway. If so, in the case of Charlie, he would not be liable. The chain of causation all begins with Charlie attempting to assault his ex-girlfriend and concludes with the death of the shopper. For Charlie to be of any liability there must be a full motion, with no break in causation, which is not the case in this scenario due to a ‘novus actus interveniene’. The police officer in this case broke the chain when firing at the shopper, therefore removing any possibility of Charlie being the cause of the shopper’s death.
The National Archives, ‘Licensing Act 1872’’, (Publishes all UK legislation), < http://www.legislation.gov.uk/aboutus>, accessed 14 February 2011
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--, ‘Law Teacher’, (), < http://www.lawteacher.net/criminal-law/cases/intoxication-cases.php>, Accessed 15th February
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