Consider whether Barry might be liable if charged under section 47 Offences Against the Person Act 1861

The House of Lords held that in order to prove gross negligent manslaughter there must be a risk of death, a duty of care, a breach of that duty and gross negligence as regards that breach, which must be sufficient to justify criminal liability.

Transferred Malice can exist whereby the mens rea can be transferred from the intended victim to the actual victim. But it must be noted that with this, the AR and MR must be for the same crime e.g. A throws a brick at a window and it misses and harms someone, you can't transfer MR from criminal damage to assault, it can’t therefore be a s18 assault but could be s20 as A was probably reckless in the first place!

It is also essential that AR and MR must coincide – Fagan v Metropolitan Police Commissioner 1969.

The relevant cases of authority on ABH are as follows, in Chan Fook [1994] the victim claimed he felt abused, humiliated and frightened, although the accused was convicted of assault occasioning ABH, the Court of Appeal said that psychiatric injury was part of ABH, but emotions such as fear, distress and panic were not.  The conviction was quashed, as there was no evidence from experts to determine that psychiatric injury had actually occurred or not.

In Roberts [1971] the defendant had assaulted a victim who was a passenger is his car, in fear she jumped out and was injured. Thus he was convicted of ABH as it was decided that the victim’s actions were a natural consequence of the appellant’s actions.

R v Ireland [1997] charged the defendant with assault occasioning ABH, as even though he had not physically attacked anyone his silence made his victims fear the risk of immediate personal violence. Also it was decided that his purpose in making those calls was as malicious as it was deliberate.            

Miller [1954] showed ABH included any hurt or injury, which interferes with the health or comfort of the victim however as divorce petitions had no effect in law the defendant could not be guilty of raping his wife at that time.

Having now identified, what both section 47 states and the actus rues and mens rea for it we can now decide whether Barry is liable for this charge or not and why.  The evidence suggests that Barry would be liable under section 47 as he had the actus reus, by carrying out the treatment. He caused ABH, by the injuries and discomfort incurred by Peter where his skin has become inflamed pain was suffered for the next 2 months.  It can also be argued that Barry has the mens rea of assault, as well as the mens rea of battery.  This is because Barry knows that he is not a qualified doctor, and that his training has not been complete.  Therefore he should be aware that any treatment he prescribes could be wrong and cause more harm to the patient than good.  The mens rea is again apparent as Barry knowingly lied about his qualifications, continuously from the first meeting with Barry till the end of the treatment.  He has also been reckless in applying force to the body. Cunningham recklessness is shown here as to whether the side effect could occur, and because he is a medical student he should have asked a qualified doctor for their opinion beforehand and should really have foreseen the side effect.  He has continued to take the risk in carrying out the treatment.

But it could be argued that Barry lacks the mens rea in one sense as it intention was never to cause any harm to Peter, but just to alleviate the pain he was suffering from his skin disease.  But then, it must be said that Barry should be aware that what he is doing is unethical, as Peter honestly believed Barry to be a qualified doctor and put his trust in to that.

Barry will try and argue that Peter gave his consent to the operation.  With this, it will be revoked by saying that Peter was mislead into believing Barry to be a qualified doctor.  Also, Barry failed to give Peter information about the side effects, as he did not know them.  Though Peter gave his consent to the operation, he believed a qualified doctor was conducting the operation and not a student.  And, Peter did state, that had he known that a student was prescribing the treatment, he would not have gone ahead with it.  So, in this scenario Peter’s consent is not valid as it was given under false pretences.  

The cases of R v Tabassum and R v Richardson can be used here.  The first case saw deception being used by the defendant in the name of Breast Cancer.  He fondled the breasts of some patients who honestly believed him to have been qualified, which he was not at all.  In R v Richardson a stuck-off dentist continued to practice on her patients.  This scenario provides a mixture of these two cases, as Barry does have some knowledge in the medical field but is not a qualified doctor as yet.  These cases help to reiterate the fact about valid consent.  

The Counsel for Tabassum submitted that the lack of medical qualifications on the part of Tabassum did not change the nature and quality of the act, which was exactly what the complainants had consented to. The judge ruled against that submission and Tabassum was subsequently convicted. On appeal, Counsel for Tabassum submitted that the judge’s ruling was wrong and used the cases R v Linekar [1995] QB 250 and R v Clarence (1888) 22 QBD 23 to support the view, that the ‘victims’ did consent to the nature of the act, therefore who was doing it should not be of any importance.  This opinion can be used to in some cases, but in this instance, when a more serious offence than breast fondling occurs - laser treatment causing pain and discomfort as well as inflammation to the skin it is very important who conducts the treatment, and that the patient is aware that either a doctor or medical student is prescribing the treatment.     

Barry’s possible defence to the charges of section 47 and section 20 would come under consent. The application of force to another may be lawful where consented to by the victim. In Attorney-Generals reference (no 6 of 1980), it was found that it is an assault if ABH is intended or caused unless there was a good reason for the harm being risked or caused. Here consent would be a defence to assault. But the counter-argument to this is that consent cannot be given to section 47 and 20 offences, as they are too serious.  Therefore, again Barry and his lawyers cannot use the consent argument.  

The overall evidence suggests that Barry would be liable if charged under section 47 Offences Against the Person Act 1861.      

2. Consider whether Barry might be liable if charged under section 20 Offences Against the Person Act 1861

Section 20 OAPA 1861 refers to "Grievous Bodily Harm Or Unlawful Wounding".  Under this section it is an offence to unlawfully and maliciously cause or inflict grievous bodily harm (e.g. broken bones, cut of the skin). Life imprisonment is the maximum sentence.

This is an Arrestable Offence.  The AR of section 20 is that there must be a wounding or infliction of grievous bodily harm (GBH), by wound it is referring to the continuity of the whole skin, which must be broken. Its technical meaning is basically serious bodily harm, which can also include very serious psychological harm.  GBH has to be inflicted and until 1983 it was necessary to prove that technical assault or battery had occurred.

Following the case of Cunningham, the MR of section 20 became primarily concerned with the word “maliciously”.  This meant the defendant had to foresee that harm may be caused but still went on to take the risk of it occurring, and also must have been aware of the risk that he was taking.

The AR of Malicious Wounding (s20 OAPA 1861) is identified as being unlawful and malicious wounding or inflicting grievous bodily harm.  The cases of C v Eisenhower 1984 and R v Smith 1961 show this.  The MR is defined as being intent or subjective recklessness to cause some harm.  R v Mowatt 1968 is a good example of this.

Section 20 differs from Section 18 Wounding With Intent as the AR is unlawful and malicious wounding or causing grievous bodily harm and the MR is intent to cause some harm.  Barry would definitely not be liable under s18, as he did not intend any harm to come to Peter, but just to help him cure a serious skin disease.

The case of R v Savage [1992] where the appellant threw a pint of beer over the victim and the glass slipped, broke and cut the victim found the defendant was guilty of causing GBH namely unlawful wounding contrary to section 20 of the 1861 Act. However the court of appeal partially allowed her appeal and substituted a verdict of assault occasioning ABH contrary to section 47. Although she hadn’t considered that the injuries would be very serious, thus not causing serious bodily harm, she was still guilty because she had foreseen that some physical harm would occur despite it being of a minor nature.  A similar decision was reached in the case of R v Parmenter [1991] and these cases can be used in Barry’s defence, that he was not aware that such serious side effects would occur.

From the evidence presented above, Barry did not have the actus reus for section 20 OAPA. Although he has indirectly inflamed Peter’s skin by conducting the treatment he has not caused GBH, as the continuity of the whole skin has not been broken, it has merely been inflamed. It could also be argued that he lacks the mens rea for GBH, as he is not a qualified doctor and therefore would not have foreseen the side effect.

The discussion Barry had with his fellow students shows that he was unaware of the possible risks and therefore would not have been able to foresee the harm of administering the treatment. Barry would not be liable under section 20 but definitely section 47.  Barry would have learnt a very important lesson from this.

With regard to medical treatment a person’s consent to surgery is valid where the operation is for a necessary purpose, this covers treatment although treatment may involve harm, providing the operation’s benefits outweigh the possible harm from the operation or the failure to perform it.  Fraud can contradict consent where it relates to the nature of the act concerned or the persons identity who is actually conducting the act, but not if it relates to the surrounding circumstances in which the act was performed.  This would therefore work against Barry, as though he had some medical training, his true identity was hidden.

In conclusion consent would not be a possible defence for Barry and he would only be liable under section 47 not section 20 OAPA as he lacked the actus reus and mens rea for GBH.  Barry would be liable to imprisonment up to 5 years.  This decision came from the evidence presented above, and it is possible that a different judgement would be reached if presented in a different way and using different cases to a different judge/jury.

   

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Appendix A

Actus reus is defined as meaning a guilty act or wrongful conduct.  This can include:

• Conduct
• Circumstances
• Consequence

This can consist of an act, an omission, or a state of affairs; though an act is the most common form or actus reus.

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Appendix B

Mens rea fundamentally means a guilty mind and refers to the state of mind of the accused at the time the actus reus is committed.  Mens rea tries to identify whether the crime was done deliberately and with the aim to cause the actus reus.  Thus mens rea and actus reus must exist at the same time.

There are many types of actus reus (AR) as defined in the various offences; there are only 3 types of mens rea (MR).  These are:

• Intention
• Recklessness (subjective or objective)
• Gross negligence

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Bibliography

Books/Textbooks:

1. TEXTBOOK ON CRIMINAL LAW (6TH EDITION, 2000) Blackstone Press

ALLEN, M J

                 

2. PRINCIPLES OF CRIMINAL LAW (2ND EDITION, 1999)

ASHWORTH

                                 

3. RECONSTRUCTING CRIMINAL LAW

LACEY AND WELLS

        

4. CRIMINAL LAW (2ND EDITION) Butterworth Publishers

PADFIELD, N

 

5. CRIMINAL LAW (9TH EDITION, 2000)

SMITH AND HOGAN

Cases:

R v Richardson (Diane) [1999] QB 444

R v Tabassum [2000] 2 Cr App R 328

R v Linekar [1995] QB 250

R v Clarence (1888) 22 QBD 23

R v Sullivan [1981]

R v Burstow [1997]

R v Savage [1992]

R v Parmenter [1991]

R v Mowatt [1968]

Statutory Provisions:

• Section 47 Offences Against the Person Act 1861
• Section 20 Offences Against the Person Act 1861
• Section 18 Offences Against the Person Act 1861

Websites:

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