The test that should be applied to determine this matter was explained by Stephenson LJ in the Court Of Appeal decision in R v Roberts (1971).
If the defendants had not place the bucket on the door the victim would not have suffered a fracture of the skull, or suffer from nervous symptoms. I could be argued that the defendants did not have the intention to cause a fracture to her skull, but in the ‘but for’ test it does not require a intention only that the defendants are the cause in fact of the injury.
1.1.c Actual bodily harm
Actually bodily harm was defined by Lynskey J, when addressing a jury at Hampshire Assizes in R v Miller [1954]. He explained that the expression covered any hurt or injury likely to interfere with the health or comfort of the victim. In R v Miller [1954] (above), the actual bodily harm was grazing and concussion. On the facts of the same case the jury concluded that including a nervous hysterical condition in the victim came within the definition. Molly definitely suffered from actual bodily harm, not only because of the fracture on her skull but also from the concussion and the nervous symptoms.
1.1d Battery
The actus reus of battery consists of an intentional and hostile touching of, or contact with, one person by another. As in civil law the merest touching of another without his consent is a battery, and may be direct or indirect. The actus reus can be counting act Fagan v Metropolitian Police Commissioner [1969].
Mens rea of battery is a basic intent requiring either intention or recklessness as in assualt.
1.1.e Summery
This shows that both defendants have the Actus reus for the Non-fatal offence against the person act 1861. There is proof of the three elements:
* the victim suffered the immediate physical violence, that is required in assault.
* If the defendants had not place the bucket on the door the victim would not have suffered a fracture of the skull, or suffer from nervous symptoms. The ‘but for’ test that is required in Causation.
* The victim suffered from actual bodily harm, not only because of the fracture on her skull but also from the concussion and the nervous symptoms.
1.2 Mens Rea
The Mens rea of the offence is intention to cause another to apprehend immediate physical violence, or recklessness as to whether they do so. It was made clear in the Court Of Appeal decisions in R v Venna [ 1975] , that the type of recklessness involved was subjective , or Cunnigham recklessness, in that the defendant had to be aware of the risk of causing another person to apprehend harm. However it should be noted that a defendant does not have to foresee any actual bodily harm occurring to the victim, it is sufficient that the defendant foresees a risk that the victim will apprehend immediate physical violence.
Since the defendants ‘planed’ the criminal act they obviously had the intention to cause the victim physical violence.
2. Offences Against The Person Act 1861
Section 20
‘…malicious wounding…’:and
‘…maliciously inflicting grievous bodily harm…’
2.1 Malicious wounding
2.1.a Actus reus
A wounding requires there have to been a break in the surface of the victim’s skin. The dermis and the epidermis must have been broken. The victim in this case has a fracture of the skull because of the metal bucket falling onto molly’s head.
2.1.b Mens rea
The mens rea required for the offence is explained by the word ‘ malicious’. In R v Cunnigham [1957] , the Court Of The Appeal held that this required proof of either an intention on the part of the defendant to bring about the prohibited consequence, or recklessness as to whether the prohibited consequence would be involved on the part of the defendant. The later definition given by Diplock LJ in R v Mowatt [1968] , illustrates the key elements of the mens rea. His Lordship stated that the defendant must be proved to have foreseen the possibility of some physical harm occuring to the victim, albeit slight. As with s47, it should be noted that there is no requirment that a defendant should have foreseen the actual harm referred to in the actus reus.
The subjective nature of the recklessness involved in this offence has recently been reaffirmed by the courts in both W v Dolbey [ 1983] and R v Grimshaw [1984].
2.2 Maliciously inflicting grievous bodily harm
2.2.a Actus reus: grievous bodily harm
Grievous bodily harm was defined by the House of Lords in DPP v Smith [1961] as ‘really serious harm’. Following the more recent Court of Appeal decision in R v Sauders [1985], it is sufficient for a trial judge to direct a jury that grievous bodily harm simply means ‘serious harm’. A fractured limb will thus satisfy the definition, as would permanent disablement of the victim, a fractured skull, or the rupturing of internal organs. It could be argued that since the defendants caused a fracture of the skull of the victim, there is actus reus for grievous bodily harm.
2.2.b Actus reus: ‘inflicting’
The question here arises to what extent, if at all, this involves proof of more than simply causation. In R v Clarence [1888] the majority of the court was of the opinion that ‘inflict’ required proof of some direct assault. The term ‘inflict’ should generally be treated as simply requiring proof of causation.
2.3 Mens rea
The mens rea requires proof that the defendant acted maliciously, see 2.1.b.
3. Offences Against The Person Act 1861
Section 18 of the act provides:
‘Whosoever shall unlawfully and maliciously… wound or cause any grievous bodily harm to any person… with intent to so some grievous bodily harm to any person, … shall be guilty of an offence…’
3.1 Actus reus
The actus reus of the offence, wounding or causing grievous bodily harm, has already been explained above.
3.2 Mens rea
The main factor separating s18 and s20 is the mens rea required. Again the defendant must be malicious, but in addition he must be proved to have had further specific intent, in that it must have been the defendants intention to do some grievous bodily harm to the victim. The principal authority on this point is the Court of the Appeal’s decision in R v Belfon [1976]. The defendant in this case had planed to humiliate the victim but they did not have the intention to do some grievous bodily harm to the victim.
4 Defences
There are several defences that could be applied. I am going to deal with mistake and Caldwell recklessness.
4.1 Mistake
Mistake is not a defence in the true sense, it is often dealt with, and overlaps with, other defences. If the mens rea required is either intention or Cunnigham recklessness, then any mistake Which means that the defendant did not intend an element of actus reus or did not subjectively realise the risk involved, will be one which negatives mens rea Morgan [1976].The defendants did not intent to cause the victim any bodily harm, the fact that the bucket fall onto Molly’s head causing a fracture was an accident. However, they did intent to humiliate the victim in front of the class, which by it self is a crime. The defendant can argue that they never considered the thought of the bucket falling onto the victim’s head.
4.2 Caldwell recklessness
According to Caldwell a person is reckless if he does not give any thought to a risk when a reasonable person would have realised the risk. Would a reasonable person realise the risk of putting a metal bucket over the door? Yes I would think that a reasonable person would have think about that.
5 Conclusion
In conclusion, I believe that both Anna and Zerina are guilty to Offence against the person act 1861 s47, s20 and they could also be guilty to s18. Since they have necessary mens rea and actus reus for the act. However they could try to use the defences of mistake, diminished responsibility, even though the law is reluctant to recognise it.
Bibliography
Offences Against The Person Act 1861 s47
Offences Against The Person Act 1861 s20
Offences Against The Person Act 1861 s18
Criminal Law – Cases and materials – fifth edition – Smith and Hogan
Criminal Law – Seventh Edition – Smith and Hogan
Criminal Law – Third Edition – F.R Sampson and John Herrman
Criminal Law – Third Edition – Marianne Giles
Criminal Law – Nicola Padfield
Criminal Law – Michael T. Molan
