If the victim doesn’t fear immediate unlawful force, then it can’t amount to an assault. It was argued in Venna (1975) that common assault should be a specific intent crime. The mens rea of assault is either intention or subjective recklessness; this will suffice for the mens rea of assault. The defendant must have realised the victim would fear the immediate and unlawful force.
The defence of Battery is defined under S.39 along with assault; this is the next most serious offence. The actus reus of a Battery is the use of unlawful force against another person. When proving that the defendant is guilty of a Battery there’s no need to prove that physical harm was intended, only that the harm was unlawful. In the case of Haystead v DPP (2000) the defendant had punched a woman twice in the face, whilst she was holding her three-month-old baby, causing her to drop the child. The baby hit his head on the floor and the defendant was convicted of the offence of a Battery against the child. The defendant appealed against this and it as said that the force could be the simple touching of clothes. This was seen in the case of Thomas (1985). To determine the mens rea for a Battery, all the defendant needs to have is the intention.
I am now going to look at whether Ann, should be guilty of ABH or GBH for the injuries to Ben. Ben was hit in the face by Ann, whilst she was holding a glass. She stated that she didn’t realise that she was holding one. The glass broke and cut him so badly, that he did indeed lose his sight in one of his eyes during the attack. The first defence that I am going to look at for this type of injury will be ABH.
To be able to argue this defence, it must be proven that there was an assault and/or Battery. In other words an assault or a Battery must be present in order to establish this offence. this is the minimal defence Ann would be guilty of for the injury caused to Ben. This offence requires that there must be more than bruising, minor fractures and/or nosebleeds.
Under section 47 of the Offences against the person Act 1861 it states that; Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable… to imprisonment for five years.
ABH is a crime that can be triable either way and if the defendant is found guilty he/she is then liable to a maximum sentence of five year’s imprisonment.
Firstly I am going to look at the actus reus of the offence. When committing this offence, the defendant must have committed an assault or a Battery. The first necessity is therefore, to prove the actus reus of an assault or a Battery. Then the prosecution must then prove whether or not the assault and/or Battery caused ABH. In the case of Ann and Ben, the attack was more than a simple assault or Battery. In Miller (1954) the court stated: ‘Actual bodily harm includes hurt or injury calculated to interfere with health or comfort. It was also accepted that ABH included not just physical harm, but also psychological injury will only count as ABH; if it is a clinically recognisable condition.
“The defendant, in R vs. Chan-Fook aggressively questioned a man who he suspected of sealing his fiancée’s jewellery. He then dragged him up stairs and locked him in to a room. The victim by this point was frightened of what the defendant would do on his return. The victim soon after attempted to escape through the window, but injured himself when he fell to the ground”.
“The defendant went in to a local pub, where she spotted her husband’s new girlfriend having a drink with some friends. She went up to the table where the group were sitting, intending to throw a pint over the woman. On reaching the table, she said ‘Nice to meet you darling’ and threw the beer but, as she did so, she accidentally let go of the glass, which cut the woman’s wrist. The defendant argued that she lacked adequate mens rea to be legally responsible for a section 47 offence because her intention was to only throw the beer, and she had not seen the risk that her actions might injure the girl friend. This was rejected because she intended to apply unlawful force.
I think although Ann’s case is surprisingly similar to that of Savage and Parmenter, she did cause Ben to lose sight in one of his eyes. This injury in my opinion these injuries are more serious than simple ABH. I am now going to see if she would be guilty of a section 20 offence.
I am now going to look at the defence of Grievous Bodily Harm (GBH). Ann should be convicted of GBH because; this case has quite similar circumstances to that of Eisenhower (1984). GBH is the next most serious offence after ABH. This defence is also known as “maliciously wounding “although there doesn’t have to be a wound and the D can, be charged with causing GBH.
It is stated under Section 20 that:
Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument shall be guilty of an offence triable either way, and being convicted thereof shall be liable for imprisonment for five years.
I am now going to discuss the actus reus of this offence. In order to find the defendant/ s guilty, the prosecution must prove that the defendant did, indeed, inflict GBH or wound the victim. The definition of GBH was found in the case of DPP vs. Smith. There is only one main difference relating to actual bodily harm (S.47) and grievous bodily harm, which is that GBH, is the more serious injury. For a defendant to be guilty of wounding the victim, the wound would have broken both layers of the skin, the dermis and epidermis. After both layers have been broken bleeding must result from the injury. This can be seen in Eisenhower (1984) where the victim was shot in the eye by a shotgun pellet and did not break the skin therefore there was no GBH. However unlawful wounding would constitute GBH as for their actions was similar to S.20 for unlawfully wounding a person.
When the defendant acted he/she must have caused the victims injuries. The victim may have not suffered any of the injuries but for how the defendant acted. Also the defendants act/s must be the operative and substantial cause if the unlawful wounding.
Grievous means serious DPP vs. Smith (1961). A jury will decide what kind of harm, amounts to really serious. In the case of Ireland v. Burstow (1997), the word inflict no longer implies the direction of force. In the case Burstow had became obsessed with a female acquaintance. He soon started to stalk her, following her, damaging her car and breaking in to her house he was convicted but after his release from prison he continued too stalk her, followed her and subjected her to further harassment. This included silent phone calls, sending hate mail and putting condoms all over her garden. For behaving in this way he was charged with inflicting GBH under S.20 of the offences against the person act 1861.
On appeal of his conviction the defendant argued that the requirements of the term ‘cause’ had not been satisfied. The court of appeal and House of Lords dismissed the appeal.
The HL stated that:
Section 20 could be committed where no physical force had been applied (directly or indirectly) on the body of the victim.
I am now going to look at the mens rea of the offence. The mens rea for this offence is defined under the word ‘maliciously’.
In Cunningham it was stated that for the purpose of the 1861 Act maliciously meant ‘intentionally or recklessly’ and reckless is used with a subjective meaning. In the case of Mowatt (1967) established that there is no need to intend or be reckless as to cause GBH or wounding. The defendant does only need to intend, to be reckless or his or her acts could have caused some physical harm.
As Lord Diplock said:
“it is quite unnecessary that the accused should have foreseen that his unlawful act might cause physical harm of the gravity described in this section, i.e. wound or some physical injury. It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character might result.” This can be seen in the case of DPP v Parmenter (1992).
To conclude Ann should be convicted of a section 20 offence because.