“Advise the parties as to their criminal liability, if any”.

Topics: Criminal law, Grievous bodily harm, Tort law Pages: 6 (1759 words) Published: November 9, 2013
The first issue to deal with here a possible common assault by Simon. An assault was defined in the case of Fagan v Metropolitan Police Commissioner as when the defendant causes the victim to apprehend immediate and unlawful personal violence. The mens rea of an assault is to intentionally or recklessly cause the victim to apprehend immediate and unlawful personal violence.

In this scenario it is stated that Simon screamed abuse and picked up a knife, attempting to throw it at his wife Rachel, which would have put her in fear of immediate unlawful personal violence. Simon did so intentionally meaning that he would most likely be found guilty of a common assault.

The next issue in terms of Simon’s liability is battery . A battery was defined by Lord Steyn in the case of R v Ireland as an ‘unlawful application of force by the defendant upon the victim’. The mens rea of battery is intention to apply unlawful physical force or being reckless as to whether such force is applied. In this scenario Simon threw a knife which hit Moira and although he did not intend to hit her he still intended to hit Rachel, therefore the intention was still there and he has the neccessary mens rea required to constitute a battery.

The other issue in relation to Simon throwing the knife is the subject of transferred malice. The doctrine of transferred malice applies where the mens rea of one offence can be transferred to another, as in the case of R v Saunders , where it was held that the defendant was liable for the murder of his daughter because his intention to kill his wife was transferred to the daughter.

There are similarities between the Saunders case and the scenario here with Simon. Simon’s intention to throw the knife at Rachel is transferred to Moira meaning he is liable for the injuries sustained by Moira.

The question does not actually state the injuries which Moira herself sustained, it merely states that the foetus was injured. If Moira’s injuries had been scratches, bruising, superficial cuts - that is relatively minor harm - then Simon could be liable for Actual Bodily Harm under section 47 of the Offences Against the Person Act 1867.

The case of R v Miller defined ABH as ‘any hurt or injury likely to interfere with the health or comfort of the victim’. The actus reus of ABH is essentially the same as for assault or battery, with the addition of the required consequence of actual bodily harm. The mens rea required for a section 47 offence is the same as for as an assault or battery, that is the intention to apply force or recklessness as to the application of force to another. By throwing the knife at Moira Simon has the requirement neccessary for ABH section 47.

However, if Moira has sustained more serious injuries as a result of the assault, such as a substantial loss of blood or a permanent visible disfigurement, then Simon could be liable for Grievous Bodily Harm under section 20 of the Offences Against the Person Act 1867. The case of DPP v Smith established that GBH refers to ‘really serious harm’.

Section 20 of the Offences Against the Person Act provides the following definition for GBH: ‘whoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without a weapon or instrument , shall be guilty of an offence…’

As for the mens rea, the defendant must act maliciously in the Cunningham reckless sense; it must be proved that the accused foresaw some harm but still went ahead with the act regardless of this. The mens rea for GBH is therefore intention and/or recklessness. It can be said that by throwing a knife Simon did foresee some harm and, depending on the severity of Moira’s injuries, Simon could be charged with section 20 Grievous Bodily harm under OAPA.

Simon in his defence may argue that he experienced and a loss of self-control when he threw the knife (case needed)

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