A2 LAW – ANSWER TO ASSIGNMENT 3.12
a) Aswina threw a dish at Celia breaking one of her teeth. The most likely charge here would be assault occasioning actual bodily harm (ABH), under S47 Offences Against the Person Act 1861 (OAPA). ABH is a triable either way offence that could be tried in either the magistrates or Crown court. It carries a maximum punishment of 5 years in prison. The actus reus is either that the defendant committed the actus reus of assault or battery and that the assault or battery caused actual bodily harm. Assault is a common law offence, the actus reus of which is causing the victim to fear unlawful force. Therefore, if Moby saw the fist coming and thought he would be hit the actus reus would be satisfied for assault. Even if he did not see it coming the actus reus of battery (also common law) would appear to be satisfied i.e. the application of unlawful force. For battery there is no need to prove harm or pain. In this case Moby struck Cyril on the head and therefore harm which means he is likely to be charged with the more serious statutory crime of ABH. In Miler (1954) the definition of ABH includes ‘hurt or injury calculated to interfere with health or comfort’ which in this case refers to this present case. The mens rea for ABH is an intention or subjective recklessness (judged by the defendant rather than the reasonable man) to cause assault or battery. Note that it is not necessary for any mens rea to be required for the harm aspect of ABH. This can be illustrated in Savage & Parmenter (1991). The defendant was in a pub and saw her husband’s new girlfriend. She only intended to throw beer over her but the glass flew out of her hand and cut the girl. She claimed she lacked the mens rea for ABH as she only intended to throw the beer. However, the court held that it was only necessary for her to have the mens rea for assault or battery and if harm resulted that would suffice for proof of ABH. It would appear therefore that Aswina has the actus reus and mens rea for ABH. However, she may be able to raise the defence of intoxication through alcohol. The success of such a defence however depends whether the intoxication was voluntary or involuntary. In both cases the court would firstly consider whether the intoxication took away the mens rea. In Kingston (1994) the defendant was attracted to young boys but controlled it. His friends spiked his drinks and set him up with a young boy to blackmail him. Kingston indecently assaulted the boy but at his trial stated that although he intended to do it he would not have done it had he not been drunk. The House of Lords however, upheld his conviction and refused his defence as he had intent and drunken intent was still intent and therefore he had the mens rea. In Aswina’s case she would be claiming involuntary intoxication and therefore has the evidential burden which means she must bring in some evidence of the involuntary intoxication and its effect on her mens rea. The legal burden then passes to the prosecution to disprove her claim beyond reasonable doubt. Involuntary intoxication, if successful, is a complete defence to all crimes and can be incurred in one of three ways: -
unforeseen side effects of prescribed drugs
sedative drugs which have unexpected effect
Aswina is likely to claim that her drink was laced with alcohol. For this defence to be successful however, she must be totally unaware that she was drinking alcohol. As Aswina had not tasted alcohol before it would appear she would have a complete defence provided the court accepts it took away her mens rea.
Brian was afraid that Dilip might harm Celia and has swung a punch at Dilip but missed and hit Celia instead. As there is no mention of harm, the charge is likely to be battery. Battery is a common law, summary only offence which would be tried in the magistrates court and is punishable with a maximum of 6 months in prison and/or a...
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