The circumstance in which this act must have taken place needed to have been unlawful. It is proved that the act was indeed unlawful, as Reena had no valid consent or was not acting in any form of self-defence. Neither was she justified by statutory authority or by the principles of necessity. She was also not disciplining a child (C, C & J, Criminal Law, 2001, p169)).
The consequence of her actions has to be that the victim is wounded or inflicted upon any GBH.
I have found that all elements of the AR have been satisfied. The act carried out, of unscrewing the screws on the chair, is sufficient to cause the consequence from happening, even though there was no direct physical contact. As mentioned above, an indirect act resulting in the same consequence will suffice. This proves the AR of this offence under s.20 of the 1861 Act for Reena.
As the AR is proved, we must now look at the Mens Rea for the offence.
The mens rea in the definition of the s.20 offence is: Maliciously. This means intention OR recklessness.
Lord Diplock has defined malicious in R v Mowatt. In his judgement, talking about the meaning of malicious he said:
"In the offence under section 20 … the word "maliciously" does import upon the part of the person who unlawfully inflicts the wound or other grievous bodily harm an awareness that his act may have the consequence of causing some physical harm to some other person … It is quite unnecessary that the accused should have foreseen that his unlawful act might cause physical harm of the gravity described in the section, i.e. a wound or serious physical injury. It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result."
Consequently, the MR of the offence is intent or recklessness as to some unlawful bodily harm upon any other person.
To assess the MR of the offence, I will consider intent and recklessness.
Intent ~ as to some unlawful bodily harm upon any other person
There are two distinct types of intention in moral philosophy (C, C & J, Criminal Law, 2001, p63), which I will discuss here.
- Direct Intention
This type of intention can be generalised as the ‘aim’ of an act. When a person directly intends a consequence, it is his primary aim or purpose to achieve that consequence through an act. In a simple way, it is ‘a decision to bring about a certain consequence’.
In this case, for Reena to have direct intention she would have needed to do her act, unscrewing the screws of the chair, in order to ‘bring about a certain consequence’ (Mohan) and in this case it was not her specific aim to wound or cause some unlawful bodily harm. For that reason, direct intent is not satisfied and we must move on to another type of intention.
- Oblique Intention
The House of Lords found in Moloney that foresight of virtual certainty is not seen as intention. The view before Moloney was that foresight of virtual certainty was in-fact intention and this view was overruled. Although the ‘old’ view was overruled, the House of Lords held that the jury were entitled to infer intention ‘if it was proved that the accused foresaw a consequence of his act’ (C, C & J, Criminal Law, 2001, p65).
In Nedrick the Court of Appeal stated that for the jury to be entitled to infer intention, foresight of virtual certainty is required and that ‘…the decision is one for the jury to be reached on a consideration of all the evidence’. (Nedrick)
The House of Lords in Woolin supported this view but added to the ‘rules’ for entitlement of the jury to infer intention. It was held that a consequence was to be actually virtually certain to result from an action in order for entitlement to infer intention. Also held was that the wording of the judgement in Nedrick referring to the entitlement ‘to infer’, was to be changed to ‘to find’.
To apply oblique intention into the present case, for the jury to find any intention by Reena as to the relevant consequence, it must have been virtually certain that Chloe would sit on the chair first (applying Woolin) instead of Belle and Reena must have had foresight of virtual certainty of that happening (applying Moloney & Nedrick), which she did not have.
Accordingly, there is no evidence for intention to be found by the jury, and so the mens rea of intention is not satisfied or proved.
As there is no intention as to the consequence, we must move on to recklessness as it is the other part of the mens rea malicious.
Recklessness ~ as to some unlawful bodily harm upon any other person
Recklessness is a state of mind, which relates to the taking of an unjustified risk (C, C & J, Criminal Law, 2001, p74).
For recklessness to suffice in an offence the accused must foresee a risk of his actions and the risk was possible to actually happen. It must also be unreasonable for him to have taken that risk. This type of recklessness is known as subjective recklessness or Cunningham recklessness.
After G in 2003, the House of Lords overruled Caldwell recklessness, leaving only Cunningham.
To apply [subjective] recklessness into the present case, for Reena to have been reckless as to the consequence, she must have foreseen some unlawful bodily harm as a possible result and that it was an unreasonable risk to take.
Reena did not foresee the consequence of her actions and therefore could not have realised that the risk was unreasonable. Consequently, she was not reckless as to the consequence; neither did she have any intent to it. This means that she did not act maliciously to wound or inflict GBH so Reena does not satisfy the mens rea, thus not liable. However, in a real case, this would be left for the jury to decide after analysing all evidence.
Criminal liability for Reena, in respect of Miles
Under the Offences Against the Person Act 1861, Reena can be charged under section 23 in respect to the event which involved Miles.
S.23 states:
“Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of an offence, and being convicted thereof shall be liable…to imprisonment for any term not exceeding ten years…”
The actus reus words of this offence are: Unlawfully…cause to be administered to or taken by any other person any poison or…destructive or noxious thing…to endanger the life or…to inflict…any grievous bodily harm
These are the AR words of this offence because they show every part of the definition of the offence, except any references to the mens rea required or any defence.
As we have already defined the main words such as unlawful, inflict and GBH I will not define them again, however I will recall that GBH includes psychiatric illness.
A noxious thing is something that is harmful or very unpleasant and in this case the noxious thing is the smoke canister.
Reena sets the smoke canister off without any legal reasons, and so her action was unlawful. By doing this, she caused to be administered a noxious thing and therefore this proves the actus reus of this offence.
As the AR is satisfied, we must look at the mens rea.
The mens rea in this offence is malicious. I have already analysed the meaning of malicious above.
Intent
- Direct Intent – Reena did not directly intend the consequence of injuring Miles, as it was not her specific aim or target to do so.
- Oblique Intent – Reena did not act obliquely intent, as it was not actually virtually certain that Miles would get badly injured and Reena did not see this as a possible result.
This shows that Reena did not act intentionally as to the consequences. We must now consider recklessness.
Recklessness
In order for Reena to be subjectively reckless as to the consequence, she must have foreseen a risk that someone could be have been injured while trying to escape the gas which the smoke canister releases. She knew what the gas canister was and what it does so she knew the nature of the risk she was taking. Subsequently, because she knew the nature of the gas canister, it was unreasonable for her to take the risk of setting it off.
Therefore, Reena is reckless as to unlawfully…causing to be administered a noxious thing to cause GBH.
GBH is caused to Miles, as he has a nervous shock and goes into ‘severe depressive illness’, a psychiatric state that he may never recover from. As mentioned above, any psychiatric conditions are classed as GBH.
Criminal liability for Eric, in respect of Reena
The action of Eric, when he draws his finger across his throat, establishes a threat to kill the person who that particular action is aimed at. In this case, Reena is the target for that threat and subsequently Eric could be charged under section 16 of the Offences Against the Person Act 1861, which states:
“A person who without lawful excuse makes to another a threat, intending that the other would fear it would be carried out, to kill that other or a third person, shall be guilty of an offence and liable on conviction on indictment to imprisonment for a term not exceeding ten years”
The actus reus of this offence is:
- Without lawful excuse make to another a threat…to kill that other or a third person
In this case, Eric has no lawful excuse for his action. He is merely doing it, as he is angry with Reena for causing his partner, Miles to suffer from his illness. Emotion such as this does not count as a lawful excuse. The drawing of his finger across his throat almost certainly implies that he is going to kill her and so has threatened her of this.
The actus reus is therefore proved by Eric’s actions.
We must now consider the mens rea of the offence, which is:
- Intending that the other would fear
For the mens rea to be satisfied, Eric could have been directly intentional or obliquely intentional.
Direct Intent – A person is directly intentional when it is his main aim or purpose to bring about a consequence (Mohan). In this case, it was Eric’s main and specific aim to make Reena believe that he would kill her by drawing his finger across his throat.
This shows that Eric was directly intentional to bring about a consequence. Therefore, Eric satisfies the mens rea element of the offence and can be found guilty of the offence.
Word Count (Excluding case/text book references): 2, 305
Bibliography
Statutes
Offences Against the Person Act 1861
Text Books
Card, Cross & Jones, Criminal Law (2001), 15th Edition, Butterworths
Cases
- Moriarty v Brooks (1834) 6 C & P 684
- R v Ireland; Burstow [1997] 4 All ER 225
- R v Wilson [1984] AC 242
- DPP v Smith [1961] AC 290, [1960] 3 All ER 161
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R v Mowatt [1968] 1 QB 421
- Mohan [1976] QB 1, [1975] 2 All ER 193
- Moloney [1985] AC 905, [1985] 1 All ER 1025, HL
- Nedrick [1986] 3 All ER 1 [1986] 1 WLR 1025, CA
- Woolin [1999] AC 82, [1998] 4 All ER 103, HL
- Cunningham [1957] 2 QB 396, [1957] 2 All ER 412, CCA
- Stephenson [1979] QB 695, [1979] 2 All ER 1198, CA
Moriarty v Brooks (1834) 6 C & P 684
R v Ireland; Burstow [1997] 4 All ER 225
DPP v Smith [1961] AC 290, [1960] 3 All ER 161
Card, Cross & Jones, Criminal Law (2001), Fifteenth Edition, Butterworths, p169
Mohan [1976] QB 1, [1975] 2 All ER 193 at pp. 198 & 200
Moloney [1985] AC 905, [1985] 1 All ER 1025, HL
[1986] 3 All ER 1 [1986] 1 WLR 1025, CA
[1999] AC 82, [1998] 4 All ER 103, HL
Cunningham [1957] 2 QB 396, [1957] 2 All ER 412, CCA
Stephenson [1979] QB 695, [1979] 2 All ER 1198, CA
Oxford Dictionary 2001, Oxford University Press
