Criminal Liability and GBH Problem Question

Criminal Liability and GBH Problem QuestionFrom a brief review of the facts it seems that Aisling may be charged for roughshod liability under non-fatal criminal offences against the following Charles, Bernadette Dan. However, Aisling moldinessiness realize that the pursuit would have to prove each and every element of the beyond reasonable doubt, Woolmington v DPP1 which is a very high standard to achieve. S.39 of the Criminal Justice Act (CJA) 19882 defines common assault stamp battery as summary offences, and consequently a somebody proven guilty of either is liable to a fine and/or imprisonment for non more than 6 months. The pursuance, will likely assert that Aislings words effected an assault to Charles. For such a charge to carry any liability, the prosecution will have to prove that Aislings intentional words caused Charles to apprehend impending outlaw(a) force. The House of Lords (HOL) make it clear in Ireland 3, that words can on their own constitute an assaul t as per Lord Stern. Moreover, Aisling cannot take up the defense, that she did not intend to threat Charles, but rather just wanted Charles to leave consequently, her act of saying the words is enough proof for a charge of assault, Logdon v DPP 4.However, in this case, the whole conviction rests on the fact that did the victim apprehend immediate unlawful personal violence? because if Charles did not feel threatened at any moment during his conversation with Aisling, then such a conviction may not stand against the defendant. The court cleared that in situations where an assault to person is not possible, words alone could not suffice to carry any liability Tuberville v Savage 5. Conversely, it is necessary to understand that for a charge of assault, it is crucial to prove that the victim had an appreciation of imminent harm from the defendant it is not enough to show that as the result of the defendants actions the victim developed fear that they mogul be harmed on some time la ter in the future. Thus, it seems unlikely that such a charge would carry any liability under s.39 CJA 1988. Lastly, the prosecution must prove that Aisling either intended or was reckless to the fact that her words could apprehend imminent unlawful violence to Charles Venna (COA)6 affirmed by HOL in Savage and Parmenter 7. This seems quite self-evident given the fact, that she intended to use those words so that Charles would leave the birthday party.As for Aislings criminal liability towards Bernadette she may be charged on two accounts firstly, the injury to the foot, sustained by Bernadette Aisling may be charged under s.20 OAPA for maliciously wounding or inflicting GBH. For such a charge the prosecution must prove that the defendants actions or omissions, wounded the victim and as per the decision in C (a baby) v. Eisenhower8, wounding entails a break in the continuity of both layers of the skin. Both the dermis and epidermis must be broken. However, it is noteworthy to men tion that generally, minor wounds are charged under s.47 OAPA, but considering the evidence that Bernadette lost a lot of blood and required ten stiches, it is fair to assume that this criminal charge will fall under s. 20 OAPA. As far as the Mens rea is concerned, the prosecution must founder that Aisling either intended or was reckless to the fact of causing the injury/ies. Lord Diplock in Mowatt9 made clear the correct interpretation of maliciously and later affirmed by the HOL in Savage Parmenter10 that it does not matter whether the accused foresaw that their unlawful act could not cause harm to such a gravity, i.e. serious harm. All that was essential was that the accused anticipated some physical harm to some person, albeit of a minor character. And from the facts, it is palpable that Aisling noticed the broken glass and the danger it may cause to the guests who were about to play blindfolded, but neglected the danger which she created, anyways. Such heedlessness is covere d by the test laid down by Lord Diplock. And, in Caldwell11 Lord Ackner affirmed that the prosecution must prove the defendants intention or foresight, of his actions causing harm.Aisling second charge will be for the punch, which although was meant for Dan but landed on Bernadette s.47 OAPA Assault occasioning actual sensible harm (ABH) provides for imprisonment for a destination not exceeding 5 years. The prosecution must firstly, establish that there was a common assault, both assault and battery DPP v. Little12 and this assault or battery resulted in occasioning ABH to the victim. Here, Aisling tried to punch Dan, but he ducked and the punch was received by Bernadette, which is battery the actual unlawful force towards the victim, without their consent, Fagan v MPC13. The prosecution must establish that there was an application of force Collins v Wilcock14 Goff LJ stated that every persons body is inviolate. Any touching of another person, however clarified may amount to a battery. ABH is defined in miller15, as including any hurt or injury calculated to interfere with the health or sympathiser of the victim. The 1994 Charging Standards guidelines provides a scale to determine ABH 16.Secondly, the persecution must establish causation that the application of force, occasioned the bodily harmed suffered by the victim. The test to establish jural causation would require the prosecution to prove that Aislings actions i.e. punching, was the operating impregnable cause of the suffering to Bernadette Pagett Cheshire17 which is evidenced by the fact of the eye bruising and discomfort which lasted for 3 days. However, it must be illustrious that Aislings defense cannot rely on the fact that Aisling never had the necessary mens rea of punching Bernadette, as the doctrine of transferred malice will come into play and effectively transfer the mens rea of the offence from Dan to Bernadette Latimer18 where the defendant was held liable for injuries to a ter nary party bystander, when the accused tried to hit the original victim but missed had hit another third party bystander.Aisling intentionally hit Dan with a vase on the head, because of the remarks he passed on her thereby causing head injuries which caused Dan to suffer a coma for several weeks. The prosecution will push for a conviction under s.18 OAPA GBH with intent. They will, first have to prove that Aisling inflicted or caused the injuries to Dan Wilson19, thus it must be proved that was the defendants actions were the operating substantial cause for the injuries sustained by the victim Cheshire20. Secondly, the prosecution will have to establish that the harm suffered by Dan was really serious harm, as per the HOL in DPP v. Smith21. Thus, in Bollom 22, the COA held that the jury must consider the age, health and the entirety of the injuries in deciding whether the injuries sustained were grievous or not. The 1994 Charging Standards provides guidelines to determine GBH in injuries 23. Lastly, the prosecution must establish Aislings necessary mens rea and must prove that she intended to cause serious harm/ GBH to Dan. As it is factually evident that she hit the vase with full force, at Dans head, it is presumable that she must have foreseen some really serious harm coming to Dan. But for a conviction under s.18 OAPA, specific intent to cause grievous bodily harm or to resist arrest is required and recklessness or foresight is not sufficient. Similarly, in Ismail24 the court found the defendant liable for GBH with intent, where he threw acid on the victims face, thereby causing injuries and blinding. Ultimately, it will be up to the jury to decide the question of intention guided by these principles, finding Aislings criminal liability towards Dan.(1301 Words)BibliographyCriminal Law Text, Cases, and Materials By Jonathan Herring, 6th Edition.1 Woolmington v DPP 1935 AC 4622 Section 39 of the Criminal Justice Act (CJA) 1988 http//www.legislation.gov.u k/ukpga/1988/33/section/393 R v. Burstow, R v. Ireland 1997 UKHL 34 1997 4 All ER 225, 1997 3 WLR 534, 1998 1 Cr App R 177, 1997 Crim LR 810.4 Logdon v DPP 1976 Crim LR 121 (DC).5 Tuberville v Savage 1669 EWHC KB J25, (1669) 1 Mod Rep 3, 86 ER 6846 Venna (COA) 1975 3 All ER 788 (CA).7 Savage and Parmenter 1992 1 AC 699, 736, per Lord Ackner.8 C (a minor) v. Eisenhower 1984 QB 3319 R v. Mowatt 1968 1QB 42110 Savage and Parmenter 1992 1 AC 699, 736,11 R v Caldwell 1982 AC 34112 DPP v. Little 1992 QB 64513 Fagan v MPC 1969 1 QB 43914 Collins v Wilcock 1984 3 All ER 37415 R v Miller 1954 2 QB 28216 issue or breaking of teeth, temporary loss of sensory function, extensive or multiple bruising, broken nose, minor fractures or minor cuts requiring stitches. The 1994 Charging Standards http//www.cps.gov.uk/legal/l_to_o/offences_against_the_person/a0317 R v Pagett (1983) 76 Cr App R 279 R v Cheshire 1991 3 ALL ER 67018 R v. Latimer (1886) 17 QBD 35919 R v. Wilson 1984 AC 24220 R v Chesh ire 1991 3 ALL ER 670.21 DPP v. Smith 1961 AC 29022 R v. Bollom 2004 2 Cr App R 6,23 resulting in loss of sensory function, injuries with substantial loss of blood, injuries requiring lengthy treatment or incapacity, severe internal injuries and those resulting in significant disablement of the victim, whether temporary or permanent. The 1994 Charging Standards http//www.cps.gov.uk/legal/l_to_o/offences_against_the_person/a0324 R v Ismail (1991) 13 Cr App R (S) 395, CA