In this month’s newsletter we will look at some non-fatal offences against the person and how to deal with these offences in a problem question in an exam. Please do not read these newsletters as though they are telling you what will come up in these exams but do please read them as advice about the approach to answering criminal law problems, whatever topic you are dealing with.
Something else to think about before we start is when you would need and when you would not need to consider these offences when faced with a problem question. Generally, it is obvious from the facts both when you would and when you would not need to consider one or more of the non-fatal offences against the person. For example, ‘John hits Fred causing Fred to suffer a fractured skull’. I’m sure I don’t need to tell you that, here, you would consider the non-fatal offences contrary to sections 18 and 20 of the Offences Against the Person Act 1861. Note that the facts do not say anything about Fred’s mens rea so you would need to consider both of these offences in the alternative and, if you had time, the offence contrary to section 47 of that Act – after all, if John did not even foresee a risk of some harm (‘subjective’ recklessness) he cannot be guilty of the section 20 offence let alone that contrary to section 18. Where, on the other hand, the facts of the question state that ‘Brian went into a supermarket intending to steal, put a tin of beans in his pocket and left the supermarket without paying’ it is obvious that there is no need to consider offences against the person – at least in relation to that particular scenario.
It is not, however, always so obvious or it seems not to be from many examination scripts I have marked over the years. A common error students make in the examination is where there is a straightforward question on, say, murder is to spend ages considering all of the non-fatal offences which led up to the death of the victim. For example, ‘Wendy and Stanley were a married couple who had grown bored with each other. Over the years, Wendy had taunted Stanley about his lack of sexual prowess and also about how fat he was. One day, Wendy starting taunting Stanley again and he could stand it no longer. Intending to cause her serious harm, he hit her over the head with an iron saucepan. Wendy suffered a fractured skull and died instantly. Consider Stanley’s possible criminal liability.’ Now, we know she suffered a fractured skull and we know from the facts of the question that Stanley intended to cause her serious harm but don’t fall into the trap of discussing the section 18 offence – or any of the other non-fatal offences leading up to the killing. Of course he is guilty of the section 18 offence – we don’t want you to discuss that – there is nothing really to discuss and, in any event you wouldn’t have time. Wendy is dead!! Look at the clues in the question. She taunted him, he couldn’t take it any more and, intending her serious harm, he did something which resulted in her death.
The question is about murder and the defence of loss of control. It is that offence and that defence you should be considering, not a range of non-fatal offences.
Of course, in a question which requires a discussion about constructive manslaughter (manslaughter by unlawful and dangerous act) you are likely to have to consider one of the non-fatal offences in relation to whether the defendant committed an unlawful act. I will deal with homicide in the September newsletter.
Now, to get back to non-fatal offences – always deal with these separately and don’t begin a second one until you have finished dealing with the first. One point to remember is that, although you have probably been taught these offences starting with assault and battery and then going on to consider the aggravated non-fatal offences (that is how the subject guide deals with them) in a problem question the convention is to deal with the most serious offence first and then, where appropriate, the next most serious and so on. The reason you are taught these offences the other way around is because you need to understand the offences of assault and battery before you can even begin to understand the offence contrary to section 47 of the Offences Against the Person Act.
Now let’s look at a short problem to illustrate how you would approach your discussion of these offences. Simon, Bertie and their girlfriends Farah and Nadia were in the local pub. Only Simon was drinking alcohol, the others had soft drinks. Bertie did not like the way Simon was looking at Nadia who was Bertie’s girlfriend and he shook his fist in Simon’s face threatening to break his nose. Simon was unnerved by this and apologised to Bertie and Farah. Farah, who overheard them was cross with Simon for having been looking at Nadia and hit him in the face causing him to suffer a black eye. Simon pulled out a knife from his pocket and stabbed Nadia, intending to cause her serious injury. Nadia, however, sustained only a slight wound. The pub landlord called the police. When Minnie, a police officer, tried to effect a lawful arrest on Simon, Simon hit Minnie intending only to cause slight harm to help him get away. Minnie, however, suffered a fractured skull. Consider the possible liability of the parties. This problem is best treated as a number of small individual problems and this will make it easier for you to deal with. Remember, when actually answering the question, to begin with the most serious offence first although, when planning your answer, deal with the issues as they arise and then sort them for your actual answer. I am going to suggest how you should structure your answer but, rather than actually answering it for you, I will refer you to the appropriate pages in the subject guide from where you can get the information. This, I think, will be much more helpful for you.
So to take the issues as they arise:-
- Bertie shakes his fist in Simon’s face. Here you would need to consider simple assault. Note that Simon was unnerved having been threatened with a broken nose. This clearly indicates that he apprehended the infliction of unlawful personal violence. Assault is dealt with on pages 112-114 of your subject guide. What is the actus reus of assault? Did Bertie commit the actus reus of this offence with the appropriate mens rea? What is the mens rea. This is what you must deal with in your answer. See also activity 10.5(a) for further guidance.
- Farah hits Simon in the face causing him a black eye. Here you would deal with the offence of battery – see pages 114-116 of your subject guide. What is the actus reus of this offence and has Farah committed the actus reus with the appropriate mens rea? You might also consider assault but remember to point out that there would only have been an assault if Simon was aware that Farah was about to hit him and apprehended the infliction of unlawful personal violence. Remember also for battery, the victim does not need to suffer any injury so you would also consider the offence contrary to section 47 of the Offences Against the Person Act 1861 – assault occasioning actual bodily harm. Remember that battery (or assault) is a component of that offence. Is a black eye likely to amount to actual bodily harm? This offence is considered on pages 127-128 of your subject guide. See also Activity 10.5(b) for further guidance.
- Simon pulled out a knife from his pocket and stabbed Nadia, intending to cause her serious injury. Nadia, however, sustained only a slight wound. Here you would need to consider one of the offences contrary to section 18 of the Offences Against the Person Act 1861 and this offence is unlawfully and maliciously wounding with intent to cause grievous bodily harm. The offences contrary to section 18 are considered on pages 133-136 of your subject guide. There are a number of offences within this section. The most commonly charged one – and the one you are probably most comfortable with – is causing grievous bodily harm with intent to cause grievous bodily harm. This is not, however, the relevant offence here so don’t fall into the trap of discussing it. Nadia only suffered a slight wound but Simon intended to cause her grievous bodily harm so it is the offence in bold above that you would consider. See also Activity 10.5(d) for further guidance. Note that in the activity, unlike Simon, the defendant had not been drinking so intoxication is not considered in the feedback. Here you would need to consider intoxication. However, the question tells you that he intended to cause her serious injury (ie GBH) so don’t write at length about basic and specific intent crimes and the rules on self-induced intoxication. It is not necessary. You merely need to point out that a drunken intent is, nevertheless, an intent. What is the authority for this? You would need to point it out in an exam.
- When Minnie, a police officer, tried to effect a lawful arrest on Simon, Simon hit Minnie intending only to cause slight harm to help him get away. Minnie, however, suffered a fractured skull. This little scenario requires consideration of yet another offence contrary to section 18 which is maliciously causing grievous bodily harm with intent to resist arrest. It follows, that in order to be guilty, it must be proved that Simon caused grievous bodily harm (what is grievous bodily harm?), that Simon caused it ‘maliciously’. (What does this term mean and exactly what is it that the prosecution must prove). The ulterior intent for this particular offence is to resist arrest which the question makes clear was the case with Simon. See also Activity 10.5(e) for further guidance. Might Simon’s possible self-induced intoxication be relevant to his lack of mens rea here?
We have taken the issues as they come. Now for actually answering the question, I would recommend that you deal with them in the order 4,3,2 and1.