Battery is not defined in any statue but is charged under 5.39 of the Criminal Justice Act 1988. The actus reus of battery is the application of unlawful force on another. The mens rea of battery is the application of unlawful force or subjective recklessness as to whether unlawful force is applied to another. Examples of battery include punching, slapping, kicking pushing, hitting someone with a stick, stone or other missile or it could be an indirect action such as a booby trap which hits the victim. In DPP v. K (1990) a schoolboy set a booby trap in the air dryer of the boy’s toilet. This is an example of subjective recklessness as the boy was aware of the risk but went ahead and did it anyway, it shows how no direct force was needed and no immediate fear from the victim as the boy was charged with battery. The boy had the intention to cause injury and the act was committed causing injury to a person. No assault element is required to find the defendant guilty of battery nor need the victim be aware that they are going to be attacked. An example of how the mens rea and actus reus of the crime must coincide is shown in Fagan v. Metropolitan Police Commissioner (1969) where the defendant accidentally drove his car on to a policeman’s foot but refused to remove it when told. There was no intention at first until the defendant reused to remove his car which meant the intention then existed and there was sufficient overlap for the crime to be complete. In reality, attackers may commit both offences so close together that they are referred to as ‘assault and battery’. Section 40 refers to common assault which covers assault and battery as one offence, not as separate offences.
Assault is covered in section 39 of the Criminal Justice Act 1988. The actus reus of assault is the apprehension of immediate unlawful violence. The mens rea of assault is the intention to put the victim in fear of immediate unlawful physical harm or subjective recklessness as to whether they would fear immediate unlawful physical harm. There is no need for contact, the actus reus is committed when the defendant does any act which causes the other person to believe that unlawful force is about to be used against them. Examples of the act include threatening with a fist or a cane or any other weapon, throwing a stone or other missile or pointing a loaded gun with someone at rage. There is no assault if the victim if it is obvious to the victim that the defendant is unable to carry out the threat of violence, however if violence is possible then the fact that the defendant is on the other side of a window or door does not prevent his actions from being an assault. This example was shown in Smith v. Chief Superintendent, working police station (1983). The sentence for assault is up to six months in prison and a fine of up to £5000. Assault can be in form of a physical threat where someone may be put in fear when another person approaches them in a violent manner possibly armed with a weapon or an indirect threat such as a telephone call, a text message or even an e-mail, even silent phone calls could be considered as assault. An example of a case where the defendant was failed to be found guilty of assault was in Tuberville v. Savage (1669) where the defendant said ‘If it were not assist time I would run you through with my weapon. There was no assault because the victim knew nothing was going to happen to him immediately because of the words spoken by the defendant, assize time was when all the judges visited the town and he would therefore refrain from committing the act. The intention was there but there was no act, the mens rea must exist or be proven for the defendant to be found guilty. Another example is R v. Light (1857).
The actus reus for murder is the same for both types of manslaughter, an unlawful act that causes the death of another human being who is under the Queen’s Peace and anything which is not alive or where the body is kept maintained but will nether function independently again, this immediately rules out enemy soldiers in war, a person who is brain stem dead or a foetus. In R v Malcherek (1981) Malcherek repeated stabbed his wife who was kept alive on a life support machine. The doctors turned off the machine but it was said that the chain of causation was not broken and that Malcherek was accountable for the murder. There is an exception in the actus reus for involuntary murder where three possible defences could be used to reduce the sentence from a mandatory life sentence to possibly a total discharge depending on the circumstances. The three grounds for defence include provocation, diminished responsibility and a suicide pact. The defence of provocation is void unless there was a sudden and temporary loss of self control in the defendant. The jury is left to decide whether a reasonable man would have reacted to the provocation in the same way as the defendant. If both of these criteria are met the defence can be used. Example of where the defence of provocation was used but failed is in R v Sara Thornton (1992) and in R v Ahluwalia (1992). However both of the cases were successful when the defence of diminished responsibility was used as the two women had not reacted immediately or had a sudden loss of self control so provocation could not be a defence. Diminished responsibility was accepted because the women had been abused by there husbands which ‘substantially’ affected their mental responsibilities for their acts. They did not have an abnormality of mind nor a state of mind so different from any else’s which could also be used for diminished responsibility. Being part of a suicide pact where the defendant genuinely believed that both of the people attempting to commit suicide were going to die and that his survival was an accident, then he will only be charged with voluntary manslaughter. Suicide is no longer a crime but helping another to commit suicide is still illegal and punishable with up to 14 years imprisonment. Self defence is also a ground of defence for a defendant, which, depending on the circumstances is not murder. The actus reus for murder could be a positive act such as a shooting or stabbing or an omission but there must be a duty of care involved and the omission must be deliberate. An example is shown in R v. Gibbons and Proctor (1908) where the seven year old daughter was allowed to starve to death.
The mens rea for murder and voluntary murder is the same, malice afterthought which concentrates on the level of intention. The mens rea for involuntary manslaughter is quite different as there is no intention by the defendant to kill or to cause grievous bodily harm (GBH), there was no malice afterthought. If a defendant is convicted of involuntary manslaughter the sentence is at the discretion of the trial judge and jury and can range between a mandatory life sentence and an absolute discharge, the mens rea will either be gross negligence or an unlawful act. For there to be gross negligence there must be a duty of care and a serious breach of that duty which is beyond a matter of mere compensation which has possibly lead to serious damage or even the death of someone. The breach must have been fairly serious. An example is shown in R v. Adomako (1994) where a anaesthetist failed to notice that the supply of oxygen to the patient had stopped during an operation for almost five minutes. Only when the alarm went off was the problem noticed. The anaesthetist was charged with gross negligence, there was a serious breach in the duty of care he owed to his patient and I believe that the punishment was fair. A duty of care rightfully exists between doctors and patients, teachers and pupils, parents and children and other such groups. Unlawful act manslaughter is committed when the defendant has caused the death of a person by an unlawful and dangerous act. To establish this type of manslaughter it had to be proven that the accused had committed the unlawful act, the act was dangerous so even a reasonable man would have recognised it carried some risk of harm, that the act was the substantial cause of death and that the accused intended to commit the act as distinct from intending its consequence. An example of this type of manslaughter is shown in DPP v Newbury & Jones. The boys appealed against there charge of manslaughter but failed as the House of Lords dismissed their appeal on the grounds that the act was objectively dangerous in the eyes of a reasonable man so they knew there was a risk but continued anyway, it was unlawful, and it resulted in death. It was only necessary to prove that the boys had the necessary mens rea for the act which was criminal damage that caused the death but it was not necessary to prove whether the defendant knew that the act was unlawful or dangerous. The mens rea for unlawful act manslaughter is that the defendant need not realise the risk of causing harm, as long as the reasonable man in his position would have realised.
The most important element in distinguishing between murder and the various types of manslaughter is the mens rea.
