Question

Sunita and Barbara share a flat. One night Sunita finds Barbara kissing Sunita’s boyfriend, Yuri. Sunita picks up a paperweight, raises it in the air and shouts at Barbara, "I’m going to kill you, you whore!" She then throws the paperweight at Barbara who ducks to avoid being hit. Barbara hits her head on a cupboard door, cutting her forehead.

Yuri is so angry that he pushes Sunita, who falls backwards over a stool onto the floor and is knocked unconscious for a few seconds. When Sunita recovers consciousness, she is still dizzy and stumbles towards Barbara, knocking her on to the floor. Barbara suffers a fractured arm.

Later that evening, when Sunita is sleeping, Barbara takes a pair of scissors and cuts off Sunita’s hair.

She then takes Sunita’s stash of heroin out of spite. When Sunita wakes up she asks Barbara to return the heroin but Barbara refuses and leaves the house.  When Barbara returns she finds Sunita suffering from severe withdrawal symptoms, including abdominal cramps, vomiting and sweating. Sunita pleads with Barbara to return the heroin.  Barbara takes pity on her and does so. However Sunita is shivering so violently that she is unable to inject herself so Barbara does it for her.  Barbara then calls an ambulance.  She is taken to hospital where she later recovers without ill effects.

Discuss the potential criminal liability of Sunita, Yuri and Barbara for the above incidents. Do not consider the law of theft.

Introduction

This is a paper to advise Sunita, Yuri and Barbara of their potential criminal liability in relation to various events that took place over one evening. In order to properly identify the relevant issues and advise of the potential liability, we will examine the list of points below.

1.      Sunita’s threat to Barbara

2.      Barbara’s head injury

3.      Yuri’s push that leads to Sunita’s injury

4.      Sunita knocking Barbara causing causes Barbara to fracture her arm

5.      Barbara cutting off Sunita’s hair

6.      Potential liability

7.      Administration of heroin

The above is largely centred around the Offences Against the Person Act 1861 (OAPA 1861), on which, to be found guilty of an offence the defendant would need to be found guilty beyond all reasonable doubt, that is, the criminal law burden of proof.

1. Sunita’s threat to Barbara

Sunita, on arriving home finds Barbara kissing her boyfriend Yuri. Sunita then raises a nearby paperweight and shouts “I’m going to kill you, you whore” to Barbara. We know that an individual can be guilty of the offence of assault (also referred to as ‘Common Assault’). An assault is committed when the accused ‘intentionally, or recklessly, causes another person to apprehend immediate and unlawful personal violence’, this is laid down in Fagan v M.P.C. [1969] 1 QB 439 and the House of Lords confirmed this definition of the offence in the case of R v Ireland, Burstow [1998] AC. For this to be proved we must identify that Sunita held both the necessary actus reus and mens rea to commit the crime of assault.

Assault

This offence is a common law offence defined as; ‘Any act by which the defendant intentionally or recklessly causes the victim to apprehend unlawful immediate personal violence’ and has the penalty prescribed in s39 Criminal Justice Act 1988 of a “fine not exceeding level 5 [£5000]” and “imprisonment for a term not exceeding six months”.

Actus reus

From the above definition we can identify that the necessary actus reus of assault consists of the accused performing actions pertaining to causing the victim to ‘apprehend immediate unlawful violence’. This can be seen in R v Lamb [1967] where it was decided that the defendant, who had recklessly killed the victim, was not guilty of assault due to the victim not perceiving that the firearm that killed him was in fact loaded. Moreover, the threat of violence must be unlawful and this is satisfied as she had said “I’m going to kill you, you whore”. The treat is also immediate. Barbara must believe that immediate violence will be inflicted upon her, and we can say there is an element of ‘immediacy’.

Mens Rea

The necessary mens rea is that the accused must have either intended to cause the assault or have acted recklessly as to whether an assault would be committed. This is seen in R v Venna where it was held by the Court of Appeal that: “We see no reason… why a person who recklessly applies physical force to the person of another should be outside the criminal law of assault”. The intention is the proof that the accused had intended to cause the necessary actus reus for assault; the alternative is that the accused had acted in a way that would constitute the recklessness defined by the rules set out in R v Cunningham.

In this instance we can speculatively confirm that Sunita, in her word and action, had satisfied the necessary actus reus; similarly, her words would indicate that Sunita had also satisfied the necessary mens rea to commit the crime of assault however if doubted we can deduce that, at the very least, she would have acted recklessly as to whether or not Barbara had feared immediate personal violence.

2. Barbara’s head injury

Following the above-suggested assault, Barbara instinctively avoided the paperweight thrown by Sunita, however in doing so suffered a cut on her forehead from a cupboard, when trying to avoid the paperweight. We can see that this is a potential assault/battery which occasions actual bodily harm (ABH). For a person to be convicted of a ABH they would need to have been found to cause an act, either through intent or reckless, of unlawful personal violence toward another.

Battery/Assault

There must be an ‘assault’. This has been interpreted to mean that there must be either an assault or battery (DPP v Little [1992] QB 645 (DC) and Ireland; Burstow [1998] AC 147). Both the actus reus and the mens rea of either an assault or battery must be established.

Actus reus  

The difference in battery to assault is that to be guilty of an offence in battery one must satisfy the actus reus and be proved to have applied personal violence upon a victim; this need not be to cause any injury but merely ‘touch’ or make physical contact to another. It is most important to note that as in this case, the violence need not be directly inflicted. This can be seen in Haystead v Chief Constable of Derbyshire where it was held that the defendant was guilty of battery for, through assault, causing a woman to drop her baby, it was decided that he had caused battery to the baby. From this we can see that Sunita had caused the injury to Barbara’s head and so would be liable to a charge of battery; this would then lead to occasioning actual bodily harm.

Occasioning

The assault or battery must ‘occasion actual bodily harm’. In other words, the assault or battery must result in actual bodily harm being caused to the victim. Normal principles of causation apply. In DPP v Santana-Bermudez [2003] EWHC 2908 (QBD), the respondent was convicted of assault occasioning actual bodily harm. A police officer asked the respondent if he had any needles or ‘sharps’ on him. The respondent replied ‘No’. The officer then searched the respondent’s jacket pockets, where her finger was pierced by a hypodermic needle. Although the respondent had not done an act which had directly caused the injury, the Divisional Court applied R v Roberts and R v Miller and held that he had created a danger (by exposing the officer to a risk), which he had failed to avert. Similarly Sunita by throwing the paperweight has created a dangerous situation which has caused Barbra to move suddenly to doge the hurtling paperweight and has as a result hits her head on a cupboard door, cutting her forehead.  

Actual bodily harm

In R v Miller [1954] 2 QB 282, the definition of actual bodily harm was said to include ‘any hurt or injury calculated to interfere with the health or comfort of the victim.’ It was said that the hurt need not be serious or permanent but must be more than transient and trifling. According to the Prosecution Charging Standards, typical injuries amounting to A.B.H. may include loss or breaking of teeth, temporary loss of sensory function, extensive or multiple bruising, broken nose, minor fractures or minor cuts requiring stitches, although cuts requiring stitches are technically wounds. In C (a minor) v Eisenhower [1984] QB 331, the court said that for there to constitute a wound there must be a break in the continuity of both layers of the skin. Both the dermis and epidermis must be broken. It is important to realise that if there is proof of a wounding, the actual injury need not be severe; any breaking of the skin will suffice. In practice, however, minor wounds would be charged under section 47. Applying this to our scenario under section 47 no mens rea is required for the actual bodily harm. All that is required is that Sunita has the mens rea for the assault or the battery. In R v Savage, R v Parmenter [1992] 1 AC 699, Lord Ackner stated: “The verdict of assault occasioning actual bodily harm may be returned upon proof of an assault together with proof of the fact that actual bodily harm was occasioned by the assault. The prosecution are not obliged to prove that the defendant intended to cause some actual bodily harm or was reckless as to whether such harm would be caused.”

3. Yuri’s push that leads to Sunita’s injury

Yuri, in anger, pushes Sunita back over a stool and onto the floor; on impact she is knocked unconscious for a few seconds. We know that a momentary loss of consciousness is sufficient to amount to the s47 OAPA 1861 crime of actual bodily harm (ABH). This can been seen in T v DPP [2003] where it was decided by the Court of Appeal that the defendant was guilty of ABH due to inflicting the only attack that directly caused the loss of consciousness to the victim. The actus reus and mens rea is equal to that of battery and so we can be assured that Yuri, in his action, had caused Sunita to lose consciousness and thus committed the crime of ABH.

Again we must consider the circumstances when such contact by Yuri may be justified. A possible claim that can be made by Yuri is that he acted in self-defence to protect Barbara. At common law a complete defence is available to those who use force to defend themselves or another. By s3 Criminal Law Act 1967: “…A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.” Thus Yuri may have a defence if he can show that him pushing Sunita used such force as is reasonable in the circumstances and he believed them to be, whether the belief is reasonable or not.

4. Sunita knocking Barbara causing causes Barbara to fracture her arm

When Sunita stands, she is still dizzy and stumbles into Barbara; this causes Barbara to fall and fracture her arm. We know that if Sunita is proved to have met the aforesaid actus reus and mens rea then, based on the injuries suffered by Barbara, she could be convicted of ABH. According to the Prosecution Charging Standards, typical injuries amounting to A.B.H. may include minor fractures.

Actus rea

The actus rea of ABH is the same as that of assault and battery, that is, for Sunita to have ‘applied personal violence upon a victim’. It is clear that the act in itself has satisfied the aforesaid necessary actus reus by Sunita making physical contact with Barbara to cause her fall. In Collins v Wilcock [1984] 3 All ER 374 Goff L.J stated: “The fundamental principle, plain and incontestable, is that every person’s body is inviolate…. Any touching of another person, however slight may amount to a battery”

Required mens rea

ABH is a state of fact, defined in Miller [1954] as ‘any hurt or injury calculated to interfere with the health or comfort of the victim’; the required mens rea is therefore the same as that necessary for assault. While we can be satisfied that it is unlikely that Sunita had intentionally inflicted the injury to Barbara. It cannot be said he was reckless in a state of dizziness and thus lack mens rea. However, it is possible that looking at everything as a single unifying event that Sunita had acted recklessly in her instigation of her initial assault towards Barbara. Thus the original paperweight throwing posed a danger which was obvious to see could cause injury. After all, ‘but for’ the chain started by Sunita, Barbara would not have fractured her arm. It would be for Sunita’s lawyers to prove that the chain of causation had been broken.

Further to this, there is also potential liability for Yuri. As we know, where a person through their act of assault and battery is the cause of a further concurrent act, they to will be found liable of an offence. This can be seen in Haystead v Chief Constable of Derbyshire [2000] where the defendant was found guilty of battery to a baby; this was due to causing the baby to fall to the floor through punching the woman who was holding the baby. It was said “There is no difference in logic or good sense between the facts of this case and one where the defendant might have used a weapon to fell the child to the floor, save only that this is a case of reckless and not intentional battery”. From this we can see that Yuri is likely to be found liable of recklessness causing ABH to Barbara, resulting in her fractured arm, if he cannot avail from the defence of self-defence i.e. that he was trying to protect Barbara.

5. Barbara cutting off Sunita’s hair

That evening, while Sunita sleeps, Barbara uses a pair of scissors to cut off Sunita’s hair. We know that damage to hair from a person’s scalp would satisfy the necessary actus rea for conviction of ABH. This can be seen in DPP v Smith [2006] where the Divisional Court decided that the defendant was guilty of ABH for cutting off his ex-girlfriend’s hair.

However the court held that despite the fact that the defendant’s actions left no mark on the body or break of the skin and that essentially he had cut ‘dead tissue’, it was still part of the body, which by cutting had amounted to an assault. As Sir Igor Judge stated: ‘Even if, medically and scientifically speaking, the hair above the surface of the scalp is no more than dead tissue, it remains part of the body and is attached to it. While it is so attached…it falls within the meaning of “bodily” in the phrase “actual bodily harm”. It is concerned with the body of the individual victim.’ From this we can establish that Barbara had the necessary actus reus, of actually cutting the hair, and had obviously intended to do so, thus would be found guilty of ABH for cutting off Sunita’s hair.

6. Potential liability / conclusion

From our above analysis we can see that each of the parties will hold some form of liability. Firstly, it is likely that Sunita would be found guilty of assault and battery for her actions towards Barbara. For Yuri’s role in pushing Sunita over a stool, leading to her unconsciousness, would lead to his conviction for ABH. If Yuri can convince the court or Jury that he acted with reasonable force to protect Barbra he may escape this charge. If not further to this, his action is the likely cause of Barbara’s fractured arm, and thus leads to the further conviction of causing ABH to Barbara. Finally, Barbara’s act of cutting off Sunita’s hair would find her guilty of ABH to Sunita.

7.      Administration of heroin

Sunita is shivering so violently that she is unable to inject herself so Barbara does it for her. s. 24 Offences Against the Person Act 1861provides:“Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, with intent to injure, aggrieve or annoy such person, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for not more than five years.”

In R v Kennedy [2007] UKHL 38, the House of Lords stated that s.23 (and, presumably, s.24) their Lordships offered the following examples of how these offence may occur. It is committed where D administers the noxious thing directly to V, as by injecting V with the noxious thing. Barbra has administered the heroin to Sunita.  In R v Cato [1976] 1 All ER 260 the court considered whether heroin could be a noxious thing. The court decided that heroin was a ‘noxious thing’ even where it is administered to a person with a high tolerance to whom it is unlikely to do any particular harm. Heroin is ‘noxious’ because it is ‘liable to injure in common use’. Although the proposition is given in the negative, the suggestion is that for a substance to be classified as a noxious thing for section 23 it must be inherently dangerous. This case was distinguished for s24 offences in R v Marcus.

Mens rea

The only mens rea requirement is that he Sunita administered the substance intentionally or recklessly. Recklessness is to carry the Cunningham definition. Note that there is no requirement for the prosecution to prove that Sunita intended to endanger life, or was reckless as to the endangerment of life of Barbra. However, it will be sufficient for the prosecution to prove that Sunita intended to injure, aggrieve or annoy either by the effects of the administration itself or by some ulterior motive.

Barbra will argue she administered the heroin to Sunita to relive her from her withdrawals. She can even argue that Sunita consented. R v Cato [1976] 1 All ER 260, CA Two heroin users D and V injected one another several times during the course of one night, and V died in the morning. D was convicted of manslaughter, and the Court of Appeal upheld his conviction even though his acts were not "directed against" anyone, his friend having freely consented. The unlawful and dangerous act, said Lord Widgery CJ, was administering a noxious substance, to which the victim's consent was no defence.