Question 1

Diane is married to Bill.  One day, Bill slaps Diane around the head causing permanent deafness.  A few days later he pushes her against a hot oven causing a burn to her forearm and a cut to her hand.  The same night he cuts off a substantial portion of her hair following an argument.  The following week Bill says that unless Diane can get him £1000, the sum of money he owes to Cliff, he will break both her legs.  The violence has worn down Diane’s resistance.  She becomes depressed, anxious and fearful.  She goes to a designer shop the next day and grabs several expensive leather handbags from an assistant which she sells to passers-by outside a market in another part of town.  She receives only £600 and believes that Bill will be extremely angry that she has not found the full £1000.  At home she explains her actions to him whereupon Bill picks up a hot iron.  In the mistaken belief that this is a threatening gesture, Diane picks up a knife and slashes Bill’s forearm deeply.  Bill shouts that he was merely going to iron a dress for her to wear for an outing with him that evening.

Discuss the criminal liability of Diane and Bill.

Answer guidance

Bill may be charged with non-fatal offences under the Offences Against the Person Act 1861. The burn to her forearm and the cut to her hand are potentially charges of s47 or s20 of the Act, depending on the harm caused and the level of mens rea.  The burn will certainly be actual bodily harm and the question states clearly that his pushing her (a battery) causes her to be burnt. The cut to her hand is a wound (a breaking of the skin – JJC v Eisenhower [1984]. Bill may argue that cutting off her hair is not ABH but is likely to be unsuccessful following DPP v Smith [1986]. There is also an assault under the common law in his threat to break her legs. You should deal with the notion of psychiatric harm. She becomes depressed, anxious and fearful. This is medically treatable and therefore will count (R v Chan Fook [1994]). Diane’s attack on Bill is a wound – section 18 and section 20 Offences Against the Person 1861. The issues of private self defence and mistake should then be dealt with.

Question2

Nigella is in a queue for a bus at Liverpool Street Station. As the bus pulls in, a work colleague, Alana pushes in front and hits Nigella in the ribs. Nigella doesn’t mind because they are friends. The bus pulls away and gets stuck at traffic lights when a black cab parks at the traffic lights.  The bus driver, Fred, yells out to the taxi driver, Adolph, to move his car or he will beat him up. Adolph gets out of his taxi and comes over to Fred and pulls him out of the driving seat of the bus. Adolph starts to hit Fred saying, “I’ll teach you a lesson you won’t forget.” Adolph breaks Fred’s jaw and cracks two of his ribs. Nigella gets up and pulls Adolph away from Fred pushing him to the ground. Nigella hits Adolph with her shopping bag full of cans of lager, cracking his skull. She then stamps twice on his groin area with her 4’ stilettos heels.

Advise on any criminal offences that have been committed.

Answer guidance

A common law battery must be the unlawful application of violence. Unlawful means without consent. As Nigella does not seem to mind being pushed this may qualify as consent. A common law assault requires the unlawful apprehension of violence. Does this apply to Adolph here? The mens rea of these offences must be discussed. The injuries sustained by Fred seem to be serious enough to warrant a charge under the Offences against the Person Act 1861 and will fall into the grievous bodily harm category rather than that of a wound. Nigella’s offences towards Adolph will also be GBH. The mens rea must be considered carefully here.

Question 3

Pedro lost all his savings deposited with Dodgy Bank after it ceased trading.  He joined a campaign group called Action Against Avarice (AAA) whose mission was to make bank managers accountable for the global financial crisis ‘by any means’.  Greg, recently released from prison for armed bank robbery, was the leader of AAA.  Greg approached Pedro and told him that in order to be accepted as a member of the group he must attack Fred, the manager of Floyds Bank, outside the local branch and take photographs of his injuries.  AAA would release these to the press to raise awareness of their cause, without identifying Pedro.  If he completed this task, he would be paid £2000.  Pedro, anxious to recoup some of his savings, but also fearful of Greg’s reputation for violence, agreed.

A few days later Pedro loitered outside the local branch of Floyds until he saw a man in a pinstriped suit leaving the bank. Pedro assumed this was Fred, but in fact it was Humphrey, the manager of Barking Bank, who had just been to Floyds for a meeting with Fred.  Pedro threw an egg at Humphrey, hoping to then wrestle him to the ground.  When the egg shattered on Humphrey’s face, a piece of shell entered his eye, scratching his eyeball.  Unable to see properly, Humphrey tripped over a loose paving stone, falling into the road where he was hit by an oncoming car.  Humphrey suffered a broken pelvis but eventually made a full recovery. When the incident was reported in the press, Greg realised that Pedro had attacked the wrong man and was furious.  He went straight to Pedro’s house to confront him.  He slapped Pedro’s face, unaware that Pedro had a loose tooth.  The tooth was dislodged, got stuck in Pedro’s windpipe and had to be surgically removed.

Discuss the liability, if any, of the parties involved.

Answer guidance

This question concerns non-fatal offences against the person and the defence of duress. The first point to note is that Pedro intended an offence against Fred whereas his offences were mistakenly aimed at Humphrey. The doctrine of transferred malice will apply so as to transfer any intention aimed at one victim over to another within the same type of offence (R v Pembliton (1874)). Assuming that the scratch was minor, P may have committed assault occasioning actual bodily harm (ABH) contrary to s47 Offences Against the Person Act 1861 (OAPA).  In order to successfully prove the offence of ABH, the prosecution must first prove all the elements of either an assault or battery. Clearly, by hitting Humphrey in the face with an egg, Pedro has committed the actus reus of battery defined at common law as any act by which D inflicts unlawful personal violence upon V.  There seems little doubt that Pedro threw the egg at Humphrey intending to hit him with it and therefore the battery will have been directly intended. Humphrey then trips over a loose paving stone, falls into the road and is hit by an oncoming car, breaking his pelvis.  The more serious injury of the fall would amount to GBH defined according to DPP v Smith [1961] as ‘really serious harm’. Mens rea for s20 is ‘malicious,’ being defined as either intention or subjective Cunningham recklessness. 

Pedro may have a complete defence of duress in relation to the offences against Humphrey if he can establish that they were committed as a result of fear due to threats of serious physical harm from Greg. There are two tests: subjective and objective.  A slap is prima facie a battery as described above. No injury arises on the facts and so there can be no question of ABH in respect of this initial offence.  Regarding mens rea for s47, the fact that he did not intend or foresee any harm greater than a battery would not preclude conviction of s47 provided the initial assault/battery was accompanied by mens rea and there existed an unbroken chain of causation in relation to the actual bodily harm. However, in order to be convicted of s20, he needs to have at least foreseen some harm although not really serious harm.  Whether or not he did is unclear and would need to be ascertained before attempting to convict him of this crime. 

Therefore, to conclude, it seems likely that both Pedro and Greg will have committed several offences against the person but it is unlikely that P will be able to defend himself on the basis of duress.