Criminal Liability Application Question June 2012

Ignoring liability for any property offences, discuss the criminal liability of Bryan for the incident with the brick (8 marks) Ahmed was sitting in his house when a brick, thrown by Bryan, crashed through his window. Ahmed feared that he was about to be attacked by Bryan’ gang which was noted for racist attacks. In a panic, Ahmed rushed out of his house and jumped into his van. He raced to the police station and reversed wildly into a parking space. He failed to notice that he had trapped Carl behind the van. When he realised what he had done, he decided to leave Carl trapped, as he thought that Carl was one of Bryan’s gang. As a result, Carl suffered permanent damage to his spine. If he had been released immediately, the injuries would have been far less severe.

Offence - Assault Identify: Bryan could be liable for the offence of assault Define: Assault is a common law offence although it is recognised in S.39 Criminal Justice Act as a summary offence. Assault was defined in Ireland as when D intentionally or recklessly causes the victim to apprehend immediate and unlawful violence Explain: We first need to establish that there has been an act. An “act” can be actions, gestures, words or silence Apply: In this case Bryan’s act was to throw a brick through Ahmed’s window E – we then need to consider whether Bryan’s act of throwing the brick through Ahmed’s window has caused Ahmed to apprehend immediate unlawful violence. Considering apprehension first, Bryan does not need to fear unlawful violence only to apprehend which means an expectation or anticipation. A – from the facts of this scenario, we are told that “Ahmed feared that he was about to be attacked by Bryan’s gang” and further that he rushed out of his house in a “panic”. Clearly, Ahmed was apprehending unlawful violence which was caused by the throwing of a brick through his window. E – We then need to establish whether the violence that Ahmed apprehended was immediate. This has been given a wide interpretation under Smith v Chief Superintendent of Woking Police Station and immediate does not need to be instantaneous A – in this case if we are told that Ahmed feared he was “about to be attacked” and rushed out of his house in a panic and jumped into his van. This would suggest that the violence that he was apprehending was immediate E – Next we must establish that the violence that Lionel apprehended was unlawful violence and this can be a mere touch, provided it is unwanted A – the violence Ahmed was apprehending was a racist attack by a gang, which is clearly unlawful violence E – The mens rea for assault is intention or recklessness to cause the victim to apprehend unlawful and immediate violence (Savage) A – By throwing a brick through Ahmed’s window, we could assume that Bryan intended to cause fear, however we are not told about his motives in the scenario. However, we can confidently conclude that Bryan was at least subjectively reckless in throwing the brick through the window as he must have foreseen the risk of causing anyone in the house to apprehend unlawful violence, and clearly took the risk anyway. C- It would appear that Bryan would be liable for assault.

Offence - Assault Bryan could be liable for the offence of assault. Assault is a common law offence although it is recognised in S.39 Criminal Justice Act as a summary offence. Assault was defined in Ireland as when D intentionally or recklessly causes the victim to apprehend immediate and unlawful violence. We first need to establish that there has been an act. An “act” can be actions, gestures, words or silence. In this case Bryan’s act was to throw a brick through Ahmed’s window. We then need to consider whether Bryan’s act of throwing the brick through Ahmed’s window has caused Ahmed to apprehend immediate unlawful violence. Considering apprehension first, Bryan does not need to fear unlawful violence only to apprehend which means an expectation or anticipation. From the facts of this scenario, we are told that “Ahmed feared that he was about to be attacked by Bryan’s gang” and further that he rushed out of his house in a “panic”. Clearly, Ahmed was apprehending unlawful violence which was caused by the throwing of a brick through his window. We then need to establish whether the violence that Ahmed apprehended was immediate. This has been given a wide interpretation under Smith v Chief Superintendent of Woking Police Station and immediate does not need to be instantaneous. in this case if we are told that Ahmed feared he was “about to be attacked” and rushed out of his house in a panic and jumped into his van. This would suggest that the violence that he was apprehending was immediate. Next we must establish that the violence that Lionel apprehended was unlawful violence and this can be a mere touch, provided it is unwanted. The violence Ahmed was apprehending was a racist attack by a gang, which is clearly unlawful violence. The mens rea for assault is intention or recklessness to cause the victim to apprehend unlawful and immediate violence (Savage). By throwing a brick through Ahmed’s window, we could assume that Bryan intended to cause fear, however we are not told about his motives in the scenario. However, we can confidently conclude that Bryan was at least subjectively reckless in throwing the brick through the window as he must have foreseen the risk of causing anyone in the house to apprehend unlawful violence, and clearly took the risk anyway. It would appear that Bryan would be liable for assault.

Q4 – Outline the principle of coincidence of actus reus and mens rea (the contemporaneity rule). Briefly discuss the criminal liability of Ahmed for the serious injury to Carl’s spine (10) The contemporaneity rule state that the AR and MR must occur at the same time, in the same place and by the same person. There are however a couple of exceptions to this. One is continuing Acts. In Fagan v Metropolitan Police Commissioner – D accidently stopped his car on a policeman’s foot. The policeman asked him to remove the car from his food, D replied “F*** off you can wait”. D was guilty of causing injury as leaving the car on the foot was seen as a continuing act and even though he didn’t have MR for the act when he stopped the car on the foot, he did form the MR when he refused to move it and the act of placing the car on the foot (AR) remained. There is also an exception if there are a series of connected events. In Thabo Meli, D hit V over the head intending to kill him. D believed V was dead and threw V over a cliff to make it look like an accident. V later died of exposure and the court held that the MR continued throughout as there was a series of connected events. In this case, Ahmed initially failed to realise that he had trapped Carl behind his van so although he may well have committed the AR of S.20/S.18 OAPA 1861, he did not have MR for the offence at this point. However, when he realised what he had done, Ahmed decided to leave Carl trapped which led to Carl’s injuries. At this point, Ahmed formed the MR for the offence, and as the AR was a continuing act in that Carl was still trapped behind the van (Fagan), there is now a coincidence of AR and MR and Ahmed could be liable for Carl’s injuries.

S.20/S.18 OAPA – Wounding or Grievous Bodily Harm Identify: Ahmed may be liable for inflicting Grievous Bodily Harm (GBH) to Carl Define: GBH is from S.20 Offences Against the Persons Act 1861 and is defined as to “Unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument” Explain: The first element of S.20 OAPA is that there must be an unlawful wounding or unlawful infliction of GBH. In this case we would be looking at GBH. GBH is defined in Saunders as serious harm. The infliction of GBH must also be unlawful which will usually mean without consent or lawful excuse. Apply: We are told that Carl suffers permanent damage to his spine which is clearly very serious harm. There is also no consent from Carl and no lawful excuse for the infliction of GBH, therefore this part of the AR is satisfied. E – The MR for S.20 is that the wounding or GBH must be done maliciously. In Cunningham it was held that maliciously means D must intend to inflict the harm or be subjectively reckless as to whether such harm will occur. In Mowatt it was established that D only needs MR for some harm, not serious harm. A – it would not appear that Bryan had direct intent to cause some harm to Carl as his motive seemed to be to protect himself from attack. However, what is important is whether he foresaw the risk of some harm, albeit not necessarily serious harm, by leaving him trapped there. We can probably assume that Ahmed must have foreseen the risk of some harm by leaving Carl trapped behind his van and he took this risk anyway.

S.20/S.18 OAPA – Wounding or Grievous Bodily Harm Ahmed may be liable for inflicting Grievous Bodily Harm (GBH) to Carl. GBH is from S.20 Offences Against the Persons Act 1861 and is defined as to “Unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument”. The first element of S.20 OAPA is that there must be an unlawful wounding or unlawful infliction of GBH. In this case we would be looking at GBH. GBH is defined in Saunders as serious harm. The infliction of GBH must also be unlawful which will usually mean without consent or lawful excuse. We are told that Carl suffers permanent damage to his spine which is clearly very serious harm. There is also no consent from Carl and no lawful excuse for the infliction of GBH, therefore this part of the AR is satisfied. The MR for S.20 is that the wounding or GBH must be done maliciously. In Cunningham it was held that maliciously means D must intend to inflict the harm or be subjectively reckless as to whether such harm will occur. In Mowatt it was established that D only needs MR for some harm, not serious harm. it would not appear that Bryan had direct intent to cause some harm to Carl as his motive seemed to be to protect himself from attack. However, what is important is whether he foresaw the risk of some harm, albeit not necessarily serious harm, by leaving him trapped there. We can probably assume that Ahmed must have foreseen the risk of some harm by leaving Carl trapped behind his van and he took this risk anyway.