The Blip Blop Blog (Team Entity)

The rule that words alone are sufficient to constitute an assault became firmly entrenched in the case of R v Ireland and Burstow (1997) which further broadened the scope of liability for assault that is committed merely with words and continued along the lines of what was said (obiter) in R v Wilson (1955) and the decision in R v Constanza (1997). In R v Ireland and Burstow (1997) 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). The question before the courts were as follows: - 1.      Are words alone sufficient to constitute an assault and 2.      Does psychiatric illness (injury) fall within the scope of s. 18, s. 20 and

In order to convict for assault the prosecution must establish that the assault was directed at the person and not at someone else despite the fact that the victim may apprehend immediate fear. In R v Pembliton, (1874) the defendant was ejected from a pub and became involved in a fight with a group of men in the street. The defendant picked up a large stone and threw it at the men, but the stone missed and crashed through the pub window behind them. The question that arose was whether malicious intention could be transferred, and it was held that malicious intention to strike a person or the intention to cause some form of injury to a person could not be transferred to breaking a shop window. However, the defendant could be found guilty if his actions were reckless. 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 t

In R v Meade and Belt (1823) the defendants surrounded the plaintiff’s house singing menacing and threatening songs. It was held that mere singing alone could not constitute an assault. It’s worth comparing the decision in R v Meade and Belt (1823) with the decision in Read v Coker (1853). In Read v Coker (1853) the plaintiff was a paper-stainer who rented a premise from the defendant. The plaintiff fell behind in his rent and the defendant employed a third party to purchase his fixtures (machines, apparatus etc.) and resell them back to the defendant. Subsequently the plaintiff and the defendant came to an arrangement where the plaintiff could continue to use his fixtures in the employment of the defendant. The defendant later became dissatisfied with the plaintiff and ordered him to leave. When the plaintiff (Read) tried to return to the premises the defendant had his men surround him and the men threatened to break his neck. The plaintiff filed for assault and wa

The actus reus (the physical element) for assault can be divided into four components. They are as follows:- 1.      The victim must apprehend violence. 2.      It must be immediate i.e. the victim is of the belief that the defendant is going to act or react violently at the time the words were spoken or the threatening gestures were made and not something that is going to occur a day or a week later or something that is going to happen somewhere down the track see Tuberville v Savage (1669). 3.      It must be unlawful. 4.      The victim must apprehend personal violence or violence towards himself or herself. 1.      The victim must apprehend violence:- In Tuberville v Savage (1669) the defendant placed his hands on the hilt of his sword and said to the victim “if it were not for the fact that it is assize-time (the assize judge was in town) I would not take such language from you”. It was held that the defendant’s acts and actions did not constitute an assault.

In order to successfully convict for assault the prosecution must establish both the mental element (mens rea) and the physical element (actus reus).  The mens rea for assault is the intention to put the victim in fear or cause him or her to apprehend immediate and unlawful violence or recklessly causing the victim to apprehend immediate and unlawful violence. 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. Assault per se may not be sufficient to amount to a crime and it is a crime that often goes hand in hand with battery. Assault is al

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 committed without giving due thought to the impact that it would have on the victim. Assault per se does not involve physical contact i.e. the defendant does not have to a lay a finger on the victim. It suffices that the conduct of the defendant (by words or actions) has put the victim in fear of his or her life. However in order to successfully convict for assault the prosecution also needs to establish that:- 1.      the defendant had sufficient capacity or ability to carry out the threat and 2.      the defendant showed  a willingness to carry out the threat. As per s39 of the Criminal Justice Act 1988 - 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 scal

The decision in R v DPP ex parte Jones (2000) was followed in  DPP v Rowley (2003) and in addition to the four elements that have been mentioned earlier, in the absence of subjective recklessness there may be a fifth element that needs to be satisfied i.e. the element of badness or criminality. In short the conduct of the defendant or his or her omission must be so bad that it is not sufficient that a mere fine is imposed or the victim is compensated but calls for criminal punishment i.e. it amounts to a crime against the state. If there is no subjective recklessness and the prosecution cannot establish badness or criminality than the chances are that the prosecution will not be able to convict for gross negligence manslaughter. Even if the victim has made a conscious decision to inflict some harm to his or her person, for example when the victim injects himself or herself with a class A drug, the defendant (the person who supplied the drug) can still be convicted of gross n

R v Adomako (1994) is a significant case as far as gross negligence manslaughter is concerned. According to the facts the defendant an anesthetist failed to monitor the oxygen pipes during a surgery and as a result the pipes got disconnected and the patient died. It was obvious that if the anesthetist was keeping an eye on the pipes he would have been able to prevent the death. The defendant was convicted on first instance. The defense successfully appealed and the court of appeal quashed the conviction but the House of Lords on further appeal by the prosecution upheld the conviction. The House of Lords applied the duty of care principle enunciated by Lord Atkins in the landmark civil case (tort) of Donoghue v Stevenson (1932). The rule that you are to love thy neighbor (Matthew 22:39) becomes in law you must not injure your neighbor. In order to obtain a conviction, the prosecution must establish duty, breach, causation and a fourth element. The elements that are to

In addition to involuntary manslaughter and reckless manslaughter there is a third category of manslaughter called gross negligence manslaughter. The test that is to be applied in order to determine if the defendant is guilty of gross negligence manslaughter or otherwise is the test in R v Cunningham (1957) and what is required is as follows:- (1) An actual intention to do the particular kind of harm that in fact was done; or (2) Recklessness as to whether such harm should occur or not. It is neither limited to nor does it indeed require any ill will towards the person injured. However subjective recklessness is not a prerequisite to obtaining a conviction for gross negligence manslaughter if it can be proven that the conduct of the defendant was reckless see  A-G’s ref no 2 of 1999 (2000). Between R v Cunningham (1957) and A-G’s ref no 2 of 1999 (2000) there were a series of cases that broadened the scope of liability and the restrictive approach in R v Cunningham

In R v Mishra (2005) two doctors were charged with gross negligence manslaughter for failing to take proper care of a patient who was recovering from an operation (post-op). The patient died from a wound that resulted from the operation – there was an infection and the patient died from the complications that followed. The test in R v Adomako (1994) was applied and the doctors were convicted. The doctors appealed on the grounds that the fourth limb in the test in R v Adomako (1994), i.e. that the defendant’s conduct must be so bad that a crime could be inferred was circular and required the jury to set its own level of criminality when what was criminal or otherwise was something that should be decided by the law and not the jury and was in breach of articles 6 & 7 of the European Convention on Human Rights which reads as follows:- ARTICLE 6 Right to a fair trial 1.      In the determination of his civil rights and obligations or of any criminal charge against hi