Criminal Law Problem Based Question

The problem-based question raises a number of factual and legal issues. Martha allegedly jumped in front of William and pointed a knife at him with the motive to obtain food. This set of circumstances raises the question whether Martha is criminally liable for non-fatal offences against the person in accordance with the Offences Against the Person Act 1861. In light of the above, it is possible that Martha may have committed a range of offences including assault, battery and actual bodily harm, which is relevant for law dissertation help. Battery is defined by Lord Steyn in R v Ireland as the ‘unlawful application of force by the defendant upon the victim’. The physical element of battery requires that there be an application of unlawful physical force on a person. Judicial precedent from English courts indicate that the application of physical force need not be direct. In Fagan v MPC, the act of the defendant driving onto a policeman’s foot and refusing to move was considered to an indirect application of physical force and a continuing act. In the current scenario, Martha pushed William aside to escape from the police and this action amounts to application of physical force.

However, the application of physical force by Martha must be unlawful for there to be battery. It would have been lawful if William had consented to the application of physical force. In this case there was neither consent nor was the application of physical force legal. The courts have interpreted physical force in the context of battery to mean the slightest touching of another person without their consent and it does not necessarily have to be aggressive or hostile. As a result the act of pushing William aside is sufficient to prove the use of physical force on him by Martha. The mental element of battery is the requirement that there be an intention to apply physical force or being reckless as to whether force is applied. While it may be argued that Martha did not actually intend to apply physical force on William, she was reckless in her actions thus causing force to be applied on him. The test as to whether Martha was reckless is a subjective one as stated in R v Pamenter. Therefore, Martha may be criminally liable for the offence of battery which attracts imprisonment term of up to six months under section 39 Criminal Justice Act 1988.

Regardless of the pushing and unlawful application of physical force on William, Martha may also be criminally liable for the offence of common assault. Just like battery, common assault has no clear underpinning in statutes but has been extensively been set out in judicial precedents that outline the definition and fundamental elements. In that regard the House of Lords has defines assault as, ‘as that which is committed where the defendant intentionally or recklessly causes the victim to apprehend immediate unlawful personal violence’. To prove the commission of the offence, it must be shown that the William apprehended immediate unlawful personal violence at the time of the incident. On the element of apprehension, it is not necessary to show that William was in fear but rather that he was aware that he was about to be subjected to violence. Martha approached William carrying a knife and whispered that he should hand over the shopping to her. Taking into account the fact that William was an old man probably incapable of defending himself, he must have feared or believed that unlawful personal violence would be visited upon him if he failed to comply. In fact, it is immaterial that she whispered or was hungry at the time of the incident. However, is mandatory that William must have apprehended immediate unlawful personal violence, and if he didn’t then there will be no assault.

Be that as it may, the conduct or words of the defendant must cause the victim to apprehend immediate unlawful personal violence. The importance of the above element is demonstrated by the case of R v Ireland where the court held that the making of repeated silent calls to different women amounted to an assault. Nevertheless, it must be taken into account that there are scenarios when the defendant though threatens the victim, is incapable of carrying out the said threat. In contrast, Martha had a knife and the possibility of stabbing or wounding William cannot be ruled out entirely. Hence, the law requires that the threat must be immediate as established in R v Constanza where the act of sending threatening letters was found to amount to immediacy. As regards unlawful personal violence, it is enough to show that Martha did not have any justification or consent to use force against William and that the victim simply apprehended that force may be used against him. A combination of the above physical elements is supplemented by the presence of intention to cause William to apprehend immediate personal violence. Alternatively, Martha’s recklessness as to whether her actions caused such apprehensions would still suffice. Effectively, Martha wanted to use a threat of force to make William surrender his shopping, which he was about to do when the police arrived.

In a bid to get away from the police, Martha pushes William aside and recklessly wounds him with her knife thus causing a deep cut on William’s side. In light of the above facts, it is possible that Martha may be criminally liable for causing actual bodily harm to William. Section 47 of Offences Against the Person Act 1861 provides that it is an offence to commit assault occasioning actual bodily harm. The physical element of ABH is assault or battery causing actual bodily harm. Therefore, it must be shown that the defendant committed an assault or battery against the victim. As shown above, Martha committed both assault and battery on William hence meets the requirement for either of the two. Further, the assault and battery proved above must cause ABH. Lynsky J in R v Miller defined actual bodily harm thus: ‘…..includes any hurt or injury calculated to interfere with the health or comfort of the victim’. There is no requirement that the injury occasioned must be permanent, so long as it is shown that it is significant and interferes with the comfort of the victim.

Accordingly, the wound caused by Martha’s knife on William can rightly be categorised as one that interfered with his health and comfort. Further, the wound cannot be considered to be trivial in the circumstances. It follows that the wounding of William fits the definition of ABH. In DPP v Smith the court held that even the cutting of hair is considered to be bodily harm, and a separate case has found that psychiatric injury can also be categorised as bodily harm depending on the circumstances. The mental element of the offence of ABH is the intention or recklessness as to the assault or battery. However, the court has held in R v Roberts that it is not necessary to establish an intention or recklessness as to the level of force used in the assault or battery. Interestingly, other decisions suggest that to prove recklessness in ABH, the defendant is required to have an appreciation of risk. Therefore, it can be shown that although Martha may have not intended to cause ABH to William she was reckless as to her actions which would foreseeably result in injury to the victim.

It is also possible that the incident involving Martha and William could amount to the offence of robbery. According to section 8 of the Theft Act 1968 which provides that a person commits robbery when in the processes of stealing from, he or she uses force or threat of force on a person. Alternatively, it could be a person who assaults another with intent to rob. The element of theft of stealing must be established first for without that the offence of robbery will ultimately fail. According to the provisions of sections 1-6 of the Theft Act 168, stealing entails the act of dishonestly appropriating property belonging to another with the intention of permanently depriving the other person of it. According to R v Ghosh, the test of dishonesty is one of a reasonable person in the circumstances although this has been challenged by Ivey v Genting Casinos which advocate for a subjective test. It is further apparent that Martha wanted to deal with the shopping belonging to William as her own but her efforts were thwarted before they came into fruition. The property in question did not belong to her but to William at the time of attempting to appropriate it.

In addition to this, it must also be shown that there was an intention on the part of Martha to permanently deprive William of his property. The Court of Appeal has extensively discussed the element of appropriating another’s property with intention to permanently deprive and have interpreted it to mean that there must be an ‘intention to treat the thing as his own to dispose of regardless of the other’s rights’. It follows that the intention of Martha was to treat the shopping as her own despite the rights of William over it and she had no intention of returning whatsoever. However, the set of facts do not reveal an offence of theft but rather an attempted theft. Although, there exists the element of threat of force before the attempted theft, the lack of stealing as a fundamental requirement for robbery makes it impossible for the offence of robbery to suffice. Further, the force must be used for purposes of stealing so that if it is used after stealing or attempted stealing then. Consequently, there two possibilities in this scenario: Martha could either be criminally liable for attempted robbery or assault with intention to rob. Attempted robbery is an inchoate offence that simply requires that the Martha took steps in committing robbery but did not succeed because of police intervention.

Martha can rely on the defence of accident against the charge of common assault, battery or ABH. In essence, she will be pleading that she actually did not intend to harm William with the knife but it was out of events beyond her control that she accidentally bruised with the knife. Further, she could indicate that she carries the knife for her own security and at the time of the incident she thought that she could have been attacked. Alternatively, she can plead self-defence by demonstrating that she was defending her against William who had attacked for thinking that she wanted to steal from him yet she was only requesting for assistance in getting food for herself. Section 76 of the Criminal Justice and Immigration Act 2008 provides for the self-defence regarding the use of reasonable force. It follows that Martha could plead self-defence in light of the above circumstances by stating that she was merely protecting herself and in doing so used reasonable force.

In response to the charge of attempted robbery or assault with intent to rob, she could rely on the defence of duress of circumstances otherwise known as necessity. Although a number of case laws shows that hunger or starvation may not be a defence to theft or robbery, this is an opportunity to convince the court and set a new precedent. The case of R v Pommel recognised that defence of duress of circumstances is available to all crimes to the exception of murder and related offences. It means that it can be a defence against attempted robbery or theft. Simon Brown LJ stated in R v Martin that the ‘defence can arise from other objective danger threatening the accused or others’. Martha can therefore argue that starvation was an immediate threat to her life as she would die if she went another day without food. In Italy, it has been held that stealing food out of necessity is not a crime. However, this defence is rarely accepted by the courts and the case Louisa Sewell negates this because she was convicted by a magistrate in 2015 for stealing food. Nevertheless, it can still be argued that the set of circumstance if different to distinguish that case with the present one.

Continue your exploration of A Critical Assessment of Sanders' Freedom Model with our related content.