Criminal Assignment.

Criminal Assignment

Dick should be advised that he could be liable for Indecent Assault. Although no force was used against the boy, creating fear is sufficient and the boy may have been frightened of Dick. However, Dick will be strictly liable under the Indecency with Children Act 1960. By s.1 of this statute “any person who commits an act of gross indecency with or towards a child under the age of fourteen, or who incites a child under that age to such an act with him or another, shall be liable”. Dick could not argue consent because under this act the boy is too young. Speck (1977) 2 ALL ER 859. There is no requirement that the victim, for example, accepts the accused’s invitation to handle his penis. The offence is committed even when the child does nothing. The offence is one of strict liability as to the age of the victim B v DPP (1998) 4 ALL ER 465 (DC).

Dick may also be liable under s.47 of the Offences Against the Person Act 1861 for Actual Bodily Harm and Battery. Dick has demonstrated an unlawful display of force against Jasmin which caused her to apprehend immediate and unlawful violence (the requirement for actual bodily harm) with the consequence of a broken nose. In Miller (1954) 2 QB 282 it was defined as, any hurt or injury likely to interfere with the health or comfort of the victim (the hurt or injury need not be permanent or serious but must be more than trifling). Dick did not have Jasmin’s permission to touch her, which is an element of battery. Battery can be defined as “any intentional touching without the consent of that person and without lawful excuse. It need not necessarily be hostile, rude or aggressive” per Lord Lane CJ in Faulkner v Talbot (1981) 1 WLR 1528. When Dick Punched Jasmin to the floor, his actions were reckless, he may argue that he never intended to break Jasmin,s nose but based on the case of R v Roberts (1978) Crim LR this would be an unsuccessful argument. In this case the defendant gave a lift in his car to a girl. During the journey he made unwanted sexual advances, touching the girl’s clothes. Frightened that he was going to rape her, she jumped out of the moving car, injuring herself. This act had caused her to suffer actual bodily harm. The defendant argued that he lacked the Mens Rea of the offence, because he had neither intended to cause her actual bodily harm, nor seen any risk of her suffering actual bodily harm as a result of his advances. This argument was rejected, the court held that the mens rea for battery was sufficient in itself, and there was no need for any extra mens rea regarding the actual bodily harm. This point was confirmed in Savage and Parmenter (1991) 1 AC 699. The only defence available to Dick would be self –defence and the prevention of crime – “reasonable force”. It is a question for the jury, would a reasonable man have used the same force in the circumstances? In my opinion it is unlikely that a reasonable man would have used the same force.

Dick could also be liable for the offence of child destruction rather than murder, because murder is the unlawful killing of a human being, the victim must be a reasonable person who is in being “rerum natura”. In the eyes of the law “a foetus does not become a human being until it is fully expelled from the womb” Poulton (1832) 5 C&P 329. Enoch (1832) C&P 539 – The after-birth and umbilical cord need not have been expelled from the mother. Att-Gen’s Reference (no 3 of 1994) (1997) 3 ALL ER 936 – held that it could not be murder ...

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Jasmine should be advised that she could be liable for battery “the actual infliction of unlawful force on another person” Robert Geoff j in Collins v Wilcock (1986) 1 WLR 1172. Touching a woman on her shoulder was held to be battery. Jasmin has applied unlawful force on Dick, she has also touched Dick without his consent so could also be liable for assault. This would depend on whether or not Dick was put in fear of immediate and personal violence, if Jasmin hit him from behind he could not have apprehended the act.

Under s.47 of the Offence’s Against the Person Act Jasmin could be liable for actual bodily harm. As stated in Miller (1954) the hurt or injury caused need not be permanent or serious. Jasmin has intentionally applied force to the man in the park by hitting him with a stone. The victim cannot have been put in immediate fear of personal violence because Jasmin hit him from behind but her actions were reckless. Chan Fook (1994) 2 ALL ER 552 (CA) the accused suspected the victim of theft of his fiancee’s ring. The victim felt humiliated and abused. The accused dragged him upstairs and locked him in a room. The victim, in fear of being assaulted, climbed out of the window and down a row of knotted sheets. He fell fracturing his wrist and dislocated his pelvis. The Court of Appeal found “Actual” meant not so trivial as to be wholly insignificant. “Harm” was injury which goes beyond interference with the health or comfort of the victim, in other words harm requires injury. “Bodily” is not limited to harm to skin, flesh and bones, but includes injury to the nervous system and brain such as psychiatric harm, but not “mere emotions or states of mind which are not themselves evidence of an identifiable clinical condition”. Taylor v Granville (1978) Crim LR 482 states that actual bodily harm covers any harm, however slight. It covers bruises, grazes, black eyes and burns. Jasmin may have the defence of mistake depending on whether or not her mistake is seen as reasonable of negligent. Tolson (1889) 23 QBD 168 – where there is a relevant mistake, it was stated that the accused did not have a defence unless his mistake was made reasonably. If he made a mistake unreasonably in that he was careless, he had no defence. A careless defendant will not have a defence. “The criminal law is designed to punish the vicious, not the stupid or the credulous” Bray CJ Brown (1975) 10 SASR 139. This shifts the question of mens rea to negligence. Jasmin does not seem to have a defence in mistake because her actions were careless, resulting in negligence.

Clark should be advised that he could be liable murder, he has unlawfully killed a human being and had the necessary intent. There are three mitigating circumstances which reduce murder to manslaughter:-

At common law provocation would reduce a charge of murder to manslaughter.
Under Statute, the 1957 Homicide Act provides that a killing is now manslaughter and not murder, where the defendant is suffering from diminished responsibility
Where defendant kills I pursuance of a suicide pact.

For provocation to be successful the accused must suffer a sudden and temporary loss of self control, “so as to make him or her for the moment not master of his mind”. Devlin J in R v Duffy (1949) 1 ALL ER 932. The loss of control must be sudden. The more time the defendant has to think about his action, the more likely it will be seen as premeditated. R v Ibrams & Gregory (1981) 74 Cr App R 154 – Held :- Provocation could not be relied upon as the act was premeditated “they were still masters of their own minds” Lawton J. Clark had time to think abut his actions and therefore the defence of provocation would not apply. Diminished responsibility does not apply as he has not suffered from a disease of the mind and is not insane. Another defence available to Clark is automatism on the grounds that he is a diabetic. He could say he was suffering from a disease of the mind or temporary insanity. In Quick (1973) QB 910 at the time of the alleged assault he was suffering from hypoglycaemia, judge ruled it was a disease of the mind within the McNaghten Rules. On appeal, the defence argued that a temporary and reversible condition was not a disease of the mind. Bailey(1983) 2 ALL ER 503 – The accused while suffering a hypoglycaemic episode, hit his girlfriends lover with an iron bar. The Court of Appeal said obiter that even though his mental failure was due to his own act i.e self induced, in the sense that he could have avoided blacking out by having a meal:

Self induced automatism exculpated the accused from a crime of specific intent. Therefore the accused could not be convicted of wounding with intent.
In crimes of basic intent the rule relating to self – induced incapacity was a rule of drunkenness as a defence, not of automatism. Therefore it does not apply to insulin.

Marison (1996) Crim LR 909 CA – The accused new that he was liable to hypoglycaemic episodes. He had an attack, his car crashed into an oncoming vehicle, and the driver was killed. He did not have the defence of automatism because he knew that his driving was dangerous when he was undergoing a diabetic attack. The accused has no defence if he was reckless in getting into the state of automatism. The distinction between hypoglycaemia and hyperglycaemia was confirmed in Bingham (1991) Crim LR 433 CA. Taking too much insulin is an external factor. Automatism is a possible defence. Taking no insulin is an internal factor, which means that automatism is not available. Not enough sugar (hypoglycaemia) is automatism, hyperglycaemia (too much) is insanity. Therefore Clark has no defence under automatism. He may have a defence in insane automatism Charlson (1955) 1 ALL ER 859. Although Clark did not intend to kill Naomi he could still be liable on the grounds of transferred malice. Latimer (1886) 17 QBD 359 the accused quarrelled with a person in a pub. He removed his belt and aimed a blow at him. The blow struck the victim, who was standing nearby. She was badly injured. The Court held that he was guilty of unlawfully and maliciously wounding the victim. He had the actus reus and mens rea of the crime and the law held him guilty under the doctrine of transferred malice.

Clark could also be liable for conspiracy “an agreement by two or more to do an unlawful act or do a lawful act in an unlawful way”. Mulcahy v R (1968) LR 3 HL 306. Clark is the principle offender, it is possible that Alan is the secondary offender but because he communicated his revocation to Clark it is unlikely that he would be a secondary party.

Alan should be advised that he could be liable for conspiracy, since conspiracy is a continuing offence, the defendant is guilty because the conspiracy is complete at the time of the making of the agreement. The accused must give “clear warning” that he has withdrawn from the criminal enterprise: Becerra (1976) 62 Cr App R 212 CA. In Baker (1994) Crim LR 444 (CA) the words “I’m not doing it” were held to be equivocal. In Perman (1996) 1 Cr App R 24 in a joint enterprise the accused could not withdraw once the criminal activity had begun (the statement was obiter).

Finger’s O’Rourke should be advised that he could be liable for aiding, because he supplied Clark and Alan with plastic explosives. Under present law an aider is an accused who assists the principle offender e.g by supplying a gun. The aider gives help or support to the principal such as occurs where the accused drives the principal to the scene of the crime. Aiding can take place before or during the crime. Devlin J in NCB v Gamble and Lord Lowry in the Northern Ireland Court of Criminal Appeal (1959) QB 11, adopted similar definitions.

Brian should be advised that generally there is no liability for a failure to act. However the accused is sometimes guilty when he fails or omits to do something. Such as Miller the accused had created a dangerous situation by putting acid into a hand dryer, he had then failed to remove it or warn that it was there. Professor Ashworth (1989) 105 LQR 424 argues in favour of assistance. In his view life is such a basic value that it must be preserved and that public good should outweigh the public good of liberty not to act. Making people liable for omissions would encourage others to interfere in matters which do not concern them.

Bibliography

Crimminal Law – Michael Jefferson

Crimminal Law – Elliot and Quinn