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Showing posts from August, 2019

Crime CXI – Self Defense I

Self defense is an entrenched common law defense. A person may use reasonable force to:-
1.Stop/prevent an attack on himself or herself 2.Stop/prevent an attack on another person see R v Duffy (1967) 3.Stop/prevent and attack on his or her property see R v Hussey (1924)
The type of force that is to be used or that is allowed is reasonable force and what amounts to reasonable force is a question of fact for the court or the jury to decide after taking into account all the evidence that is available.
In Moriarty v Brookes (1834) a publican tried to evict a customer who was causing a disturbance and refused to leave. The publican put his arm around the man’s shoulders and tried to evict the man and in doing so injured him below the eye (there was a cut in the skin which resulted in bleeding).
‘If the violence which occurred took place in an endeavor by the defendant to turn the plaintiff out of the house, the third plea is proved. However, this plea does not profess to justify any wounding; th…

Crime CX – s.47 of the Offences Against Person Act (1861) VII

For the purposes of s47 of the Offences Against the Person Act (1861) actual bodily harm is defined as any act that causes a break in the continuity of the skin see JJC v Eisenhower (1984), any acts that precipitate or induce a psychiatric illness see R v Burstow (1997) and R v Ireland (1998) and it also includes any act that falls within the ordinary meaning of the term “actual bodily harm” which includes causing cuts, bruises, lacerations etc. to another.
It also includes acts that may seem trivial to others but impacts the victim’s emotional well-being for example the cutting-off of the victim’s hair without the consent of the victim.
In DPP v Smith (2006) the defendant went over to his ex-girlfriend’s house and cut off her pony tail with a pair of kitchen scissors and while there was no physical injury or there was no break in the continuity of the skin, the victim was distressed, and the defendant was charged with occasioning actual bodily harm. At first instance the magistrate con…

Crime CIX – s.47 of the Offences Against Person Act (1861) VI

While the victim can be found guilty of causing or precipitating a psychiatric illness under s47 of the Offences Against Person Act (1861) see R v Burstow (1997) and R v Ireland (1998) he or she cannot be found guilty under s47 of the Offences Against Person Act (1861) for causing nervous shock for example in situations like that of Bourhill v Young (1943).
In R v Chan Fook (1994) the defendant had accused the victim of stealing his fiancé’s ring. The defendant after striking the victim several times, locked him in a second-floor room. The victim fearing that the defendant might return and hit him again, tried to escape through a window and as a result sustained injury. The defendant was charged under s47 of the Offences Against Person Act (1861) for causing him fear and panic. According to the direction given by the trail judge (first instance) to the jury, ABH or actual bodily harm includes inducing panic and hysteria. The defendant was convicted and appealed the conviction.
On appeal…

Crime CVIII – s.47 of the Offences Against Person Act (1861) V

The actus reus (physical element) that needs to be established to obtain a conviction for a s47 offence is usually assault and battery but assault per se would suffice as long as it was done repeatedly and done with the intention to intimidate the victim see R v Burstow (1997) and R v Ireland (1998).
Battery is a summary offence i.e. an offence that is tried at a magistrate’s courts. It is an offence that in most instances follows an assault. The defendant first verbally abuses or intimidates the victim and soon after carries out his or her threat by using some form of physical violence.
Section 39 of the Criminal Justice Act 1988 gives us an idea of the offence. The section reads as follows: –
“Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both”.
However in order for the defendant to be guilty of battery the act mus…

Crime CVII – s.47 of the Offences Against Person Act (1861) IV

In R v Spratt (1990) the accused fired his air gun from an open window without thinking that there might be others in the vicinity, the thought never occurred to him. Two of the bullets that were fired from the air gun hit a young girl who was playing in the courtyard and the accused was charged with causing actual bodily harm (ABH) as per s47 of the Offences Against Person Act (1861). The question before the court was whether a) the accused intended to cause actual bodily harm or b) whether his conduct was so reckless that intention could be implied. The accused pleaded guilty and was sentenced. The accused appealed the sentence.
On appeal, the prosecution relied on the Caldwell test and sought to obtain a conviction on the grounds that the accused had either not given any thought to the possibility of there being any such risk or had recognized that there was some risk involved but had nonetheless gone on to commit the act. His conviction was quashed, and the judge decided that in or…

Crime CVI – s.47 of the Offences Against Person Act (1861) III

In R v Venna (1975) the defendant and his friends were causing a ruckus, shouting, yelling, and banging trashcan lids together at 3 am in the morning. Their conduct caught the attention of a police officer who ordered them to stop but they refused. The police officer then proceeded to arrest them, but the defendant resisted, and the police officer called for backup. The defendant continued to resist arrest, and it eventually took three police officers to restrain the defendant who was pulling away, lashing out with his hands, and kicking wildly.
While arresting the defendant one of the police officers was injured as a result of the defendant’s actions and a bone in his hand was fractured. The defendant was charged and convicted.
The defendant appealed on the grounds that recklessness in itself was not sufficient for a conviction and the prosecution must establish intention i.e. a deliberate act that was done to injure the police officer citing R v Lamb (1967), where two boys got their h…

Crime CV – s.47 of the Offences Against Person Act (1861) II

The mens rea (mental element) for a s.47 offence is either -
1.Intention or 2.Recklessness
The test to determine whether the defendant intended to cause the victim some harm or was reckless as to whether some harm was caused or not is objective and the defendant need not foresee the consequences of his actions. It suffices that the injuries that resulted were a natural and probable consequence of the defendant’s actions.
In R v Roberts (1971) the defendant and the victim met at a party. Once the party was over the defendant offered to give the victim a lift in his car which the victim accepted and while they were on the road the defendant made sexual advances at the victim which the victim spurned or rejected. When the defendant did not stop the victim jumped out of the moving car and sustained cuts, bruisers, and other minor injuries. The defendant was charged with assault occasioning actual bodily harm and sexual assault. He was convicted for assault occasioning actual bodily harm and fo…

Crime CIV – s.47 of the Offences Against Person Act (1861) I

s.47 of the Offences Against Persons Act (1861) reads as follows:-
“ Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable  . . . (to imprisonment for a term not exceeding 7 years) . . . ; and whosoever shall be convicted upon an indictment for a common assault shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding (two years).”
Actual bodily harm per se is defined as minor injuries including cuts, bruises, lacerations, or any other harmful act that causes the victim to suffer from some form of injury and it does not only include physical injury but also includes psychiatric injury see R v Burstow (1997) and R v Ireland (1998)
Assault is a prerequisite to obtaining a s.47 conviction. Assault  is defined as  the act of intentionally or recklessly causing the victim to apprehend immediate and unlawful violence i.e. it is an offence that can be committed intentionally or an offence that can be comm…

Crime CIII – s.18 and s.20 of the Offences Against Person Act (1861) IX

3. Inflict – the word inflict includes both direct and indirect harm and it could either be intentional or due to the defendant’s recklessness. In R v Martin (1881) the defendant shut the doors at a theater and placed a crossbar across the door. He then switched off the lights on a staircase and yelled “fire”. His actions caused a panic and some of those that were in attendance were injured when they rushed out.
It was held that the defendant, regardless of the fact that he was merely playing a prank, must be deemed to have intended the consequences of his actions and he was found guilty accordingly.
In R v Wilson (1984) the defendant hit a pedestrian (the victim) with his vehicle and a heated argument subsequently ensued during the course of which the defendant punched the victim.
It was held that ‘grievous bodily harm may be inflicted, either where the accused has directly and violently 'inflicted' it by assaulting the victim, or where the accused has 'inflicted' it by …

Crime CII – s.18 and s.20 of the Offences Against Person Act (1861) VIII

Grievous Bodily Harm includes psychiatric illnesses. However an action for causing a psychiatric illness is best brought under s20 of the Offences Against Person Act (1861) because a s18 conviction of the same act requires a break in the continuity of the skin see JJC v Eisenhower (1984)
In R v Ireland and Burstow (1998) the defendant and the victim were in a brief relationship which the victim unexpectedly ended. Unhappy with the victim’s decision, the defendant harassed the victim for several months making repeated phone calls, sending her threatening letters, turning up unexpectedly and speaking to her neighbors. The defendant’s actions caused the victim to succumb to a psychiatric illness (severe depression).
It was decided that: –
1.Words are sufficient to constitute an assault. In fact, silence alone for example in instances where the caller calls the victim and remains silent can constitute an assault – the proposition … that words cannot suffice is unrealistic and indefensible. W…

Crime CI – s.18 and s.20 of the Offences Against Person Act (1861) VII

When assessing the nature of the injury (injuries) the jury is to take into account all factors and whether the injury (injuries) amount to GBH or otherwise is to be determined by taking into account ordinary standards of usage and experience and this direction is in line with Section 8 of the Criminal Justice Act (1967).
In R v Brown and Stratton (1997) the defendant and his cousin were embarrassed by the defendant’s father who was undergoing a gender reassignment and turned up at the defendant’s workplace wearing a dress. Both the defendant and his cousin after a drinking bout, went over to the where the defendant’s father was staying, and assaulted her inflicting numerous injuries including a broken nose, a concussion and knocked out several teeth. The defendants pleaded guilty to causing actual bodily harm as per S. 47 of the Offences Against Persons Act (1861) and not grievous bodily harm (GBH) as per S. 18 of the Offences Against Person Act (1861).
The trial judge directed the jur…

Crime C – s.18 and s.20 of the Offences Against Person Act (1861) VI

When assessing whether the injuries amounted to GBH or otherwise the jury is entitled to take into account the characteristics peculiar to the victim including his or her age. In R v Bollom (2004) the defendant inflicted injuries on his partner’s seventeen-month old baby and while the injuries would not have constituted grievous bodily harm (GBH) if inflicted on an adult, the same injuries when inflicted on a child could constitute grievous bodily harm (GBH). The jury took into account of the fact that the victim was a baby and convicted the defendant for causing grievous bodily harm (GBH).
The defendant appealed on the grounds that when deciding whether any injury (injuries) constituted grievous bodily harm (GBH), the jury should not take into account the age and characteristics of the victim.
The court of appeal held that when deciding whether an injury (injuries) amount to grievous bodily harm (GBH) the jury is entitled to take in account the victim’s age, sensitivities, and characte…

Crime XXXXXXXXXIX – s.18 and s.20 of the Offences Against Person Act (1861) V

2. Grievous Bodily Harm. Grievous bodily harm is defined as serious harm to another person or harm that is above or more serious than actual bodily harm (ABH).
In DPP v Smith (1961) – Smith had stolen some goods and loaded it to the back of his car. A policeman ordered him to stop but he drove off instead and the policeman jumped on to the back of the car in order to stop him. The policeman was subsequently thrown off from the back of the vehicle, into the path of other oncoming vehicles and died as a result. The defendant was tried and convicted. The defendant appealed.
The House of Lords unanimously upheld the conviction. In doing what he (Smith) did, he must, as a reasonable man have contemplated that serious harm was likely to occur. Hence, he is guilty of murder.
The test in DPP v Smith (1961) is as follows: - If the jury is satisfied that he (Smith) must as a reasonable man have contemplated that grievous bodily harm (GBH) was likely to have resulted to the policeman from his actio…

Crime XXXXXXXXXVIII – s.18 and s.20 of the Offences Against Person Act (1861) IV

1. Wounding is defined as a break in the skin. In Moriarty v Brookes (1834) a publican tried to evict a customer who was causing a disturbance and refused to leave. The publican put his arm around the man’s shoulders and tried to evict the man and in doing so injured him below the eye (there was a cut in the skin which resulted in bleeding).
‘If the violence which occurred took place in an endeavor by the defendant to turn the plaintiff out of the house, the third plea is proved. However, this plea does not profess to justify any wounding; therefore, if there was a wound, the plaintiff is entitled to recover for that. It is proved that the plaintiff was cut under the eye, and that it bled; and I am of opinion that, that is a wound.’
The publican was found guilty and was deemed to have used too much force or excessive force.
If there is no break in the skin for example there is only a rapture of internal blood vessels, then as far as s.18 of the Offences Against Person Act (1861) is conce…

Crime XXXXXXXXXVII – s.18 and s.20 of the Offences Against Person Act (1861) III

In order to obtain a conviction under s. 20, the prosecution needs to satisfy the four components that make up the actus rues (physical element). They are as follows: - 1.The act must be unlawful 2.Wounding Or 3.Inflicting/Causing grievous bodily harm (GBH) 4.On another person.
The unlawful act: -
In Fagan v MPC (1969) the defendant was in his car when he was approached by a police officer who told him to move his vehicle. The defendant did so and reversed his car onto the foot of the police officer. The police officer somewhat forcefully told the defendant to move the car off his foot and the defendant swore at the police officer, switched off the engine and refused to do so. The defendant was tried and convicted for assault and appealed the decision. The appeal was dismissed.
With reference to children any punishment that is imposed must only be to the extent that it is reasonable and anything beyond that may lead to criminal charges.
In R v Hopley (1860) the defendant was a schoolmaster who…

Crime XXXXXXXXXVI – s.18 and s.20 of the Offences Against Person Act (1861) II

The mens rea (mental element) to convict under s18 of the Offences Against Person Act is as follows: -
1.Intention to cause GBH (grievous bodily harm) and/or 2.With intent to resist or prevent the lawful apprehension or detainer of any person.
s.18 convictions are reserved for more severe or serious offences which is made evident by the penalty that is imposed.
The test to determine intention is provided in Section 8 of the Criminal Justice Act (1967) – proof of criminal intent. A court or jury, in determining whether a person has committed an offence –
(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but (b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.
Copyright © 2019 by Dyarne Ward

Crime XXXXXXXXXV – s.18 and s.20 of the Offences Against Person Act (1861) I

The offences of wounding and causing GBH (grievous bodily harm)  are to be found in s.18 and s.20 of the Offences Against Person Act (1861). The sections read as follow: -
s.18 “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, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony, and being convicted thereof shall be liable . . .  to be kept in penal servitude for life . . .”
s.20 “Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanor, and being convicted thereof shall be liable . . .  to be kept in penal servitude . . .”
Between the two, s.20 is the lesser offence and s.18 is the more serious offence and an offender if convicted under s.18 can …