Reena might have been reckless if she was aware of the risk of her actions, but decided nonetheless to take the unjustified risk.
However, the more serious consequence which Reena has caused by removing some screws from the chair is the bruises and scratches on Chloe’s body, and as a result, she will face charges under the OAPA 1861.
The most serious non-fatal violence is that specified in s.18 of the OAPA:
‘Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person with intent to do some grievous bodily harm to any person………shall be guilty of an offence.
Did Reena unlawfully and maliciously, by any means whatsoever wound or cause any GBH to Chloe?
The Court of Appeal in C (a minor) v Eisenhower held that a wound means a breaking of the whole skin, the breaking of the inner and outer skin, and scratching, bruising, burning or breaking alone without tearing the skin do not constitute wounding. If Chloe’s bruises and scratches tear her skin then, this can constitute wounding.
Grievous bodily harm (GBH) was defined by the House of Lords in DPP V Smith as meaning serious harm. In my opinion, Chloe’s scratches and bruises do not constitute serious harm, so Reena is not likely to be charged with an offence contrary to s.18 of the OAPA.
Next down the ladder of seriousness is s.2o of the OAPA 1861. Unless the bruises and scratches tear Chloe’s skin, then Reena could be charged with s.20:
Whosoever shall unlawfully and maliciously wound or inflict any GBH upon any other person, either with or without any weapon or instrument, shall be guilty of an offence.
If Chloe’s injury constitutes a wound, then Reena could be charged with s.20 because her act was unlawful and malicious. In Cunningham, where the charge concerned the malicious administering of a noxious thing under s.23 of the OAPA, the Court of Appeal interpreted ‘malicious’ to mean that the defendant had to foresee the particular kind of harm that might be done and he nevertheless went on to take the risk of it occurring. However, in Mowatt, it was held that it was unnecessary for the defendant to foresee a wound or GBH. It was enough that some physical harm albeit of a minor character was foreseen.
On the other hand, if it is concluded that the scratches and bruises do not constitute a wound; can Reena be charged with s.47 of the OAPA?
S.47 of the OAPA is assault occasioning actual bodily harm (ABH). Under s.47, it is necessary to establish the actus reus of an assault or battery, and that the assault or battery caused ABH.
In the case before us, Reena did not assault Chloe because we are not told that she apprehended an immediate application of force to her body. However, Reena commits a battery because she applied unlawful force to Chloe’s body (although indirectly). The battery was clearly, the cause of the ABH to Chloe, as Lynskey J in Miller stated:
‘ABH 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. It is enough to show that pain or discomfort has been suffered, even though no bruising is evident.’
The mens rea required to be proved is that for battery, which is intention or recklessness. According to the Court of Appeal’s decision in R v Roberts, bodily harm to another does not have to have been foreseen as a risk by the accused.
Reena’s criminal liability in respect of Miles
By setting off a smoke canister, Reena causes Miles to panic. This is an assault, the intentional or reckless causing of an apprehension of immediate unlawful force.
The essence of this offence is that the victim fears the direct application of force, no touching is necessary.
The question is not whether Miles is immediately put in fear, but whether Reena’s conduct causes Miles to fear immediate unlawful force. Clearly, Reena’s conduct causes Miles to fear the application of unlawful force, and she has the intention, as her ‘aim or purpose’ was to cause some ‘harmless fun’, hence, satisfying the mens rea of the offence.
When Miles tries to escape and twists his ankle, Reena could be charged with s.47 of the OAPA: assault occasioning ABH. As stated above in Miller, ABH means any hurt or injury that interferes with the comfort of the victim, and it is enough to show that pain or discomfort has been suffered, even though no bruising is evident.
In my opinion, Reena satisfies the mens rea of s.47 because it was her ‘aim or purpose’ to cause some harmless fun, and she does not need to intend or foresee any injury as a result of her conduct.
In R v Chan-Fook, the CA held that ‘bodily harm’ is not limited to harm to the skin, flesh and bones of the victim. The body of the victim includes all parts of his body; including his organs, nervous system and brain. However, ABH is capable of including an identifiable psychiatric injury but not panic or an hysterical or nervous condition.
If nervous shock does not constitute ABH, then Reena may not be charged with s.47.for the nervous shock Miles suffered, neither can she be charged with s.18 or s.20, as nervous shock is not a wound or GBH.
On the other hand, the fact that Miles subsequently develops severe depressive illness could suffice as ABH, since it is an identifiable psychiatric injury.
Reena could also be charged with s.20: unlawfully and maliciously inflicting GBH upon any other person. In DPP v Smith, the House of Lords emphasised that GBH is a phrase that should be given its ordinary and natural meaning, which is simply, ‘really serious harm’, and in R v Ireland and Burstow, it was recognised that a really serious psychiatric injury can amount to GBH.
I believe Miles’ severe depressive illness is a serious psychiatric injury, as his psychiatrist stated that he is not certain, if he will ever recover.
Did Reena inflict GBH on Miles?
In R v Wilson, the HL stated that the word inflict simply required force being violently applied to the body of the victim, so that he suffers GBH. Thus, it was thought that under s.20, GBH had to be caused by the direct application of force. However, following the decisions in R v Ireland and Burstow, the word, inflict no longer implies the direct application of force, so following this decision, Reena inflicts GBH on Miles, as the HL stated that s.20 could be committed where no physical force had been applied (directly or indirectly) on the victim.
The mens rea required for s.20 is maliciousness, which was defined in Cunningham for the purpose of the OAPA as intention or recklessness.
Reena must either intend some unlawful bodily harm or foresee that some bodily harm might occur as a result of her conduct. It is enough that she should have foreseen some physical harm to some person, albeit of a minor character, might result.
Eric’s criminal liability in respect of Reena
Eric could be charged with common assault contrary to s.39 of the Criminal Justice Act 1988 for the threats he made over the phone to Reena. As stated earlier, an assault is causing the victim to apprehend the immediate application of unlawful force. In this case, we are not told whether or not Reena apprehends any fear of unlawful force, but if she did, then Eric can be charged with assault.
In R v Wilson, Lord Goddard stated that the words, ‘get out the knives’ in themselves could constitute an assault even if they were not accompanied by a threatening gesture. Similarly, in R v Constanza, the CA upholding the accused’s conviction under s.47 rejected the submission that an assault cannot be committed by words alone without a physical action. Eric’s threats can constitute an assault, as an assault can be committed by words alone. Also, his threats were accompanied by a gesture: drawing his finger across his throat, which to a layman could mean, ‘I’ll slit your throat’ or ‘I’ll kill you’. This gesture also constitutes an assault.
The actus reus of assault requires the victim to apprehend an immediate violence. In R v Constanza, the court held that the Crown must prove that the victim feared violence ‘at some time not excluding the immediate future’ and rejected the submission that a person cannot have a fear of immediate violence unless they can see the potential perpetrator.
If the circumstances are such that there cannot possibly be any fear that the threats will be carried out immediately, there is no assault.
Since we are not told whether Reena apprehended an immediate unlawful force, seeing Eric on the other side of the platform might make Reena fear that he might attack her (especially after drawing his finger across his throat).
However, Eric could argue that being on the other side, and with the train pulling into the station, he couldn’t have attacked her immediately. This argument might be rejected, as Constanza shows that the victim can fear unlawful force at some time in the future.
The mens rea of assault is intention or recklessness. If Eric’s aim or purpose is to make Reena apprehend the application of unlawful force by threatening her, then he satisfies the mens rea element of common assault.
WORD COUNT: 1,989.
BIBLIOGRAPHY
- Jefferson, M, Criminal Law (2003), Longman.
- Douglas, G, Questions and Answers: Criminal Law (2003), Oxford University Press.
- Card et al, Criminal Law (2001) London: Butterworths.
- Clarkson, C.M.V. and Keating, H.M., Criminal Law: Text and Materials (2001), London: Sweet and Maxwell.
- Padfield, N, Criminal Law (2002), London: Butterworths.
Fagan v Metropolitan Police Commissioners [1969] 1 QB 439.
Card et al, Criminal Law (2001), London: Butterworths, p 169.
Clarkson, C.M.V. and Keating, H.M., Criminal Law: Text, Cases and Materials (2001), London: Butterworths, p 596.
According to Oxford English Dictionary, a smoke canister is a canister (a cylindrical storage container for holding dry foodstuffs or cooking ingredients) whose contents can be ignited to produce smoke.
As observed in Chan-Fook.
Card et al, Criminal Law (2001), London: Butterworths, p 165.
