Criminal law.

   The second type of intention is oblique intention.  Foresight of virtual certainty of a consequence: a) if a consequence is virtually certain to result from the defendants conduct and is foreseen by the defendant as virtually certain, this is not intention as to that consequence but the jury may find from this that the defendant intended that consequence. This is supported by Matthews and Alleyne. Reena would have been virtually certain that the act of removing the screws would result in Chloe suffering some harm. The second interpretation is if a consequence is virtually certain to result from the defendants conduct and is foreseen by the defendant as virtually certain, this is in itself intention (oblique intention) as to that consequence. This is supported by Re A (children) (conjoined twins: surgical Separation).  For the reasons above, Reena fulfils the mens rea and the actus reus so she would be guilty of assault.

   Miles twists his ankle and is so alarmed that he suffers a nervous shock. Consequently he develops a severe depressive illness, which he may never recover from.  Reena could be found guilty under section 18 of the Offences against the Person Act 1861. This section provides- “Whosoever shall unlawfully and maliciously by any means wound or cause any grievous bodily harm to any person, with intent to resist or prevent the lawful apprehension of detainer of any person, shall be guilty of an offence…” The actus reus of this offence is an act resulting in the unlawful wounding of another or the act must have resulted causing unlawful grievous bodily harm on him.  In this case, only the latter part of the actus reus is of concern. The House of Lords in DPP v. Smith defined grievous bodily harm as meaning ‘really serious harm’. Reference to ‘serious bodily harm’ will also suffice.

‘Bodily harm’ does include the mind. This was demonstrated in Ireland and Burstow. The House of Lords held that bodily harm includes any recognizable psychiatric injury. Hobhouse LJ in Chan-Fook claimed ‘mere emotions such as distress or panic which are not sufficient, and states of mind that are… evidence of some identifiable clinical condition’, which may be sufficient if supported by psychiatric injury was ‘really serious’. Where psychiatric injury is concerned, it can be more difficult to prove that Reena intended to cause really serious harm of that sort. If the prosecution failed to establish intention then Reena’s liability would be lesser. As Miles suffers from a severe depressive illness this satisfies the actus reus of section 18 of the Offences Against the Persons Act 1961. The mens rea for this act is the Reena must have intended to do unlawful grievous bodily harm (GBH). Reena only intended to cause some harmless fun. It was not Reena’s aim or purpose to cause GBH, for that reason she does not have direct intention. For Reena to have oblique intention she must have foresaw that the consequence (Miles suffering from a severe depressive illness) was virtually certain to result from her act of setting off a smoke canister. It is very doubtful that Reena would have known this so she does not fill the requirement of the necessary mens rea for this act. The reasonable person would not have known this. Reena does have the actus but not the mens rea so she could not be charged under section 18 of the Offences against the Persons Act 1861.

   Reena could be charged under section 20 of the Offences Against the Person Act 1861 which provides that “Whosoever shall unlawfully and maliciously wound or inflict any GBH upon any other person, either with or without any weapon or instrument, shall be guilty of [an offence], and being convicted thereof shall be liable to imprisonment for not more than five years”.  It is triable either way. The actus reus of this offence is the unlawful infliction of GBH on Miles. The House of Lords said in Burstow ‘an offence of inflicting GBH under s20 can be committed where no physical violence is applied directly or indirectly to the body of the victim.  As this includes psychiatric injury Reena has the necessary actus reus for this act. The mens rea is if Reena unlawfully and maliciously inflicted GBH upon Miles.  For Reena to be malicious she must have intended her act to result in some unlawful bodily harm or she was reckless as to the risk that her act might result in such harm. Reena did not intend her act to result in some bodily harm, as it was just some harmless fun to her.. A person is reckless if a) she/he has not given any thought to the possibility of there being any such risk; or she/he recognised that there is some risk involved and has nevertheless persisted in his/her conduct. This was expressed by Lord Diplock in Caldwell. The definition of fault was widened by the case Mowatt: “there is no need to prove recklessness as to wounding or grievous bodily harm, so long as the court is satisfied that D was reckless as to some physical harm to some person, albeit of a minor character”. Consequently, Reena has the required mens rea and the actus rea so she would be criminally liable under s20 of the Offences Against the persons Act 1961.

   Reena could be guilty under Section 47 of the Offences Against the Person Act 1861 is an assault occasioning actual bodily harm (ABH). There has to be ABH, which is caused by an assault. The actus reus is the actus reus of assault which caused bodily harm. This was shown in Miller and Chan Fook. Eric panicked and was scared so this would constitute an assault therefore the actus reus is satisfied. Section 47 does not express any requirement of mens rea but it is not an absolute offence or one of strict liability.  The mens rea is that of assault or battery. The authority for this is Roberts  and Savage; DPP v Parmenter.  Bodily harm does not have to been intended or foreseen as a risk by the accused. Reena did not intend Eric to suffer from or a severe depressive illness nor could she have foreseen this happening. She does not fulfil the mens rea so she is not guilty under s47

 

   Eric made a threatening call to Reena. There is no evidence of any harm here so assault will be considered first. A person is guilty of assault if they intentionally or recklessly cause another person to apprehend the application of immediate unlawful force to his body. The actus reus of assault is if a person causes another person to apprehend the application to his body of immediate unlawful force. It can be carried out by an act or words or a combination of both. The consequence is that another person apprehends immediate application of unlawful force to his body.  Words alone can constitute an assault if they cause the victim to apprehend immediate unlawful force. The cases Ireland and Burstow support this. When Reena was threatened this may have frightened her enough to form an assault. In Constanza it was held that an assault can occur even if the victim cannot see the defendant if they threatened them over the phone. The threat of force must be immediate. Eric is on the other platform so the force is not likely to be immediate. “Clearly, if there are circumstances are such that there cannot possibly be any fear that the threats will be carried out immediately, as where a person on a rapidly moving train shakes his fist at someone who is standing on a station platform, there is no assault.  However, there is some ambiguity about the extent of how immediate the threat has to be.  This was demonstrated in Smith v. Chief Superintendent, Woking Police Station. A woman was frightened when she saw the defendant through window at 11pm and anticipated immediate application of force. Even though there was physical proximity between the defendant and her. As Eric was on the opposite platform, Reena was unlikely to apprehend any immediate force being applied. Therefore, Eric does not fulfil the actus reus of assault. As there is no actus reus there is no need to into the mens rea.

 Word count

1935

Bibliography

Ashworth A,

Principles of Criminal Law

Fourth Edition

Oxford University Press.

Card, Cross and Jones,

Criminal Law

Fourteenth Edition

London, Butterworths 2001

Dobson P,

Criminal Law

Fifth Edition

Sweet & Maxwell

Molan M T

Criminal Law

Fourth Edition

Old Bailey Press

---