In contrast with the arguement expressed above, there have been cases where the establishment of assault has been ignored. This was confirmed by Lord Roskill in reference to the Australian case of Salisbury [1976] VR 452; '' I am content to accept....that there can be an infliction of grevious bodily harm contrary to section 20 without an assault being committed.'' Therefore, if the respondent's bodily harm is recognised as 'grevious', he may be liable. The facts of the case reveal that as a result of the laser treatment the victim's skin became inflamed and he suffered severe pain for two months. Therefore, the defendant's act agrees with the material words; ''inflict any grevious bodily harm'', as the victim found the consequences of his actions unpleasant and harmful.
When considering the defendant's liability under section 20 of the Offences Against the Person Act 1861, the court must establish the mens rea of the offence; the defendant must have ''maliciously'' caused wounding or inflicted grevious bodily harm upon the victim. The word ''maliciously'' in this sense does not mean 'spitefully' or 'ill-will', but requires evidence that the defendant caused harm to the victim either 'intentionally' or 'recklessly'; which in this context is given its subjective meaning, which requires foresight of the consequences. However, this element of the offence gives way to the critical question; Must the defendant intend or foresee either wounding or grevious bodily harm? The answer to this question was confirmed by the judgment of Lord Diplock in R v Mowatt [1967] 3 All ER 47; '' It is quite unnecessary that the accused should have forseen that his unlawful act might cause physical harm of the gravity in the section, i.e. a wound or serious physical injury.'' Therefore, from this quote one can derive that it is not sufficient that the accused ought to have foreseen harm, but if he did.
Although the defendant 'intended' to carry out the laser treatment on the victim, the facts of the case do not indicate that he 'intended' to cause physical harm to him. Nevertheless, an element of 'recklessness' may be established from the facts of the case. Firstly, the facts describe Peter as having a ''potentially serious skin condition''. Secondly, in a statement made by Barry on the same day that he treated Peter, he claimed; ''I bet that I could cure a skin condition with a laser without any proper training at all.'' From this evidence, the prosecution may derive that as the defendant lacked great experience in the medical field, he created an obvious and serious risk, but gave no thought to that risk. This argument is bound by the case of R v. Caldwell [1982] A.C 341. The defendant set fire to a hotel and was charged with, inter alia, arson contrary to Criminal Damage Act 1971, section 1(2). He claimed that he was extremely drunk, and so the risk of endangering other lives had not occured to him. The question on appeal was if self-induced intoxication was relevant to the charge. In response the court held that it was irrelevant to the charge. Lord Diplock in his judgment claimed that recklessness also includes failing to give any thought to whether there is a risk, when, if thought were given, it would be obvious that there was. Therefore, applying this interpretation, denies the defendant's argument in the present case that his lack of medical experience prevented him from realising a risk. The reason being, if he had given thought to the consequences, it would have been obvious that his inexperience would lead to serious injury.
On the other hand, as section 20 of the 1861 Act applies the subjective meaning of the word 'reckless', this casts a shadow of doubt over the defendant's liability. Opposition could claim that Barry's lack of medical experience prevented him from foreseeing the consequences. This argument is supported by the facts of the case which reveal that, ''any qualified doctor would have foreseen'' the side effect of the laser treatment, indicating that a non-qualified may not. The case of R v. Cunningham [1957] 2 All E.R 412, CA provides authority. The defendant broke into a gas meter to steal the contents. The gas escaped, partially suffocating the victim. The defendant was convicted of ''maliciously'' administering a noxious thing on a direction that ''maliciously'' meant ''wickedly''. The courts allowed the defendant's appeal on the grounds that ''maliciously'' indicates the requirement of evidence, declaring either the intention or recklessness towards the act. This subjective test, means that those incapable of anticipating risks are not reckless. Therefore, in relation to the case on hand, Barry was incapable of realising a risk to the victim, as he lacked medical experience.
Alternatively, the statement made by Barry; ''I bet that I could cure a skin condition with a laser without any proper training at all'', could be interpreted as negligence, and not recklessness. If that is established the defendant cannot be liable contrary to section 20 of the 1861 Act, as it is not a basic ingredient of the offence.
When considering the defendant's liablilty under section 47 of the Offences Against the Person Act 1861 the actus reus must be established, which is satisfied by proof of an assault or battery, which additionally occasioned the 'actual bodily harm'. The meaning of 'actual bodily harm' was confirmed by Lord Lynskey in Miller [1954] 2 QB 282 ; ''Actual bodily harm means any hurt or injury calculated to interfere with the health or comfort of the victim; such hurt or injury does not have to be permanent, but must be more than transient or trifling.'' The mens rea for the offence required to be proved is that of assault or battery. In the case of assault it is sufficient that the accused intended to cause the victim to apprehend immediate application of unlawful force to his body, or was subjectively reckless as to whether the victim might so apprehend. In the case of battery, it is required that the defendant either intended to apply unlawful force, or was subjectively reckless as to whether such force might be applied. Applying these rules to the case on hand, the defendant's liability is weakened as he did not commit an assault. The victim was not made to fear the application of unlawful force upon his body by the defendant's actions.
On the other hand, prosecution may argue that a battery was committed. The actus reus of battery requires the ''application of unlawful force to the body of another.'' ''Application of force'' means strength or energy. The slightest degree of touching will qualify as application of force. In relation to the present case, the nature of Barry's act agrees with the ingredients of the offence. Firstly, the mens rea can be confirmed on the basis that Barry intended to apply unlawful force, in the sense that he lied to Peter that he was a qualified doctor, making his act unlawful, and claimed that he could cure a skin condition ''without any proper training at all'', confirming his intention to apply the force. Secondly, it was his application of force which occasioned the bodily harm, as the victim developed a side effect as a result of the laser treatment practiced by Barry. The case of R v. Vienna [1976] QB 421 provides authority. The defendant was convicted of actual bodily harm, having fractured a bone in a policeman's hand whilst being arrested. He appealed against a direction that recklessness was sufficient mens rea for battery. However, the courts dismissed the appeal as mens rea for battery is satisfied by proof that the defendant intentionally or recklessly applied force to another person.
In response to the conviction under section 20 and/ section 47 of the 1861 Act, the defendant may defend himself on the basis of consent, weakening the prosecution. This is supported by the case of P v. Clarence [1888] 22 QBD 22. The defendant was convicted of inflicting grevious bodily harm and assault occasioning actual bodily harm on his wife, having infected her with venereal disease during consensual intercourse. He appealed on the basis of consent. The courts allowed the appeal.
On the other hand, consent may be dimissed as a defence to an offence. Peter claimed that had he known that Barry was not a qualified doctor, he would never have consented to the treatment. This negates the use of consent as a defence, because the respondent was unaware of the defendant's reality. This interpretation is supported by the case of R v. Tabassum [2000] Crim LR 686. The defendant developed a database in breast cancer. He approached three women, giving them the impression that he was a qualified doctor. The three respondents' charged the appellent with indecent assault. The critical question was; Had the women given real consent? According to Tabassum, he had told the women why he was examining their breasts. However the courts in this case, unlike in R v. Clarence [1888] 22 QBD 22 held a different verdict. They distinguished between acts practiced by a qualified and non-qualified doctor. Therefore, Tabassum's appeal was dismissed because the consent was invalid. The victims', like Peter had consented to the 'nature of the acts' and not the 'quality of the acts'.
In conclusion it may be more likely for the court to find the defendant liable contrary to section 47, O.A.P.A 1861, because although Barry believed that the respondent consented, the consent would be invalid, as Barry would not have intended to apply force, but unlawful force on the basis of the facts. Nevertheless, if this interpretation is incorrect the defendant may liable contrary to section 20, if the mens rea of the offence is established and Peter's skin condition qualifies as wound or grevious bodily harm.
