Mid-Term Examination Cover Sheet

Criminal Law (LAW1025)

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Deadline: Friday, 20 March 2009, at noon. Delays will be penalized unless a

very good reason for the delay has been given in advance. Essays submitted
late will lose 5 marks each day. After five days the essay will receive a mark of
zero. Penalties will also be applied where assignments exceed the stipulated
word limit by more than 10%. If the excess is between 10% and 20% the
deduction will be 5 marks; if it is between 20% and 30% the deduction will be
10 marks; an excess of more than 30% will suffer a deduction of 30 marks.

Certification: Please tick the following box to certify that the attached work is entirely
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Date:20/03/2009

Criminal Law Take Home Assessment 2009

The case presented to us involves four men who took part in an organised gang fight.

By the end of the series of events which we are given one of the four is dead and

another is very seriously injured.

The first of the four men to commit a serious crime was Ned. He and Benny had

started the fight while Maurice and Alfred looked on. Prior to turning up for the fight

Ned and Maurice had gone to a pub and had 10 shots of vodka each and were

therefore still intoxicated during the fight. During his fight with Benny, Ned knocked

him to the ground, cutting his cheek. This is a clear common assault, I.e. technical

assault and battery, on Benny.

In order to satisfy the actus reus of technical assault, Benny had to apprehend

immediate and unlawful personal violence on his person1. Benny therefore simply had

to anticipate forthcoming violence, or battery, from Ned. During the fight it is clear

that Benny anticipated such violence. Moreover the mens rea for technical assault is

an intention to cause the victim to apprehend such unlawful personal violence,2 which

Ned clearly had when entering into a fight with Benny. In order to fulfil the

requirements to be considered battery, this violence did not have to be serious or

hostile but simply, “intentional touching of another person without the consent of that

person and without lawful excuse”3. It is clear that in order to knock Benny to the

ground with enough force that he cut his cheek, Ned must have had to exert a sizeable

amount of force upon Benny therefore he is clearly guilty of common assault. With

technical assault and battery established, it is also possible that Ned could be guilty of

assault occasioning actual bodily harm under section 47 of the Offences Against the

Person Act 1861. This depends on the severity of the cut sustained by Benny. The
1 Fagan v Metropolitan Police Commissioner [1969] 1 QB 439
2Venna [1976] QB 421
3 Faulkener v Talbot [1981] 3 All ER 46
Crown Prosecution Service set out that in order for a cut to constitute actual bodily

harm4, it must require medical attention, therefore if Benny’s cheek would have

required medical attention after the fight, Ned was guilty of assault occasioning actual

bodily harm.

Ned may claim that he is not guilty due to the fact that Benny consented to this

injury by agreeing to fight him, however claims such as this have already been

dismissed by the court as invalid. Lord Lane CJ stated that “It was not in the public

interest that people should try to cause or should cause each other actual bodily harm

for no good reason,”5 and it is therefore not suitable to qualify for consent. Moreover

in Brown6 it was proved that it is impossible to claim consent to assault. It is also

possible that he may claim that he had diminished responsibility due to the amount of

alcohol he had consumed prior to the fight, once again this argument is invalid. In

order for this argument to qualify, the intoxicated party must have consumed the

alcohol involuntarily, as it was down to Ned’s own free will that he drank before the

fight, he can not argue this.

Despite Benny having died he is still criminally responsible for his part in the

events of that night. After Ned pushed him to the ground, cutting his face, Benny

became angry and threw a rock at Ned, knocking him over backwards and causing

minor bruises. This act of anger makes it possible that Benny was also guilty of

common assault. He clearly fulfils the criteria for technical assault, in that the

throwing of the stone was both intended to, and did cause Ned to apprehend the

application of physical force7, despite it being through the means of a rock. However

it is questionable whether he can be guilty of battery due to the wording of the

4 harm need not be serious but must be more than transient or trivial- Miller [1954] 2 QB 282
5 ATTORNEY-GENERAL’S REFERENCE 1980 (No 6 of 1980) [1981] AER 715
6 R v Brown [1993] 2 All ER 75
7 N.1 Above
definition of battery which often including the words “touching of”. However it has

been proved on a number of occasions that battery can also be brought about through

the use of other objects and the indirect touching of people, as long as it causes

unlawful personal violence upon the victim. Martin8 shows that the application of

force to the victim need not be direct9, but can be through an object for the actus reus

of battery to be fulfilled. Benny also had the mens rea for battery to be proved in that

he clearly meant to apply unlawful force to Ned through the throwing of the rock.

However, unlike Ned, Benny cannot be guilty of assault occasioning actual bodily

harm. The case presented to us clearly states that the injuries sustained by Ned were,

“minor bruises” which are not sufficient grounds to be considered actual bodily harm,

therefore Benny’s only crime was common assault on Ned and it is possibly to argue

that this action was in self defence.

After seeing Benny throwing a rock at Ned, Ned’s friend Maurice stepped in in a

fit of rage, still intoxicated, and rushed over to Benny picking up an empty beer bottle

on his way. He then preceded to beat Benny over the head with the bottle ten times,

shouting “Go to hell, Benny!” until he lay unconscious and bleeding. It was not until

the ambulance had picked Benny up that this action turned into a homicide as he died

on his way to the hospital. As long as it was proved that Benny died due to the head

wounds he sustained as a result of Maurice, it is clear that Maurice fulfils the required

actus reus for his crime to be considered a homicide. In 1597 Coke defined a

homicide as, “Unlawfully killing a reasonable person who is in being and under the

King’s Peace, the death following within a year and a day”10, and despite some

amendments this definition is very similar to that held as the actus reus in today’s

courts. Seeing as the actus reus for all the crimes covered by the label of homicide it

8 Martin (1881) 8 QBD 54

9 Allen, M., Textbook on Criminal Law (9th ed., Oxford: Oxford University Press, 2007) P. 357
10 Coke, 3 Inst 47
is therefore necessary to establish Maurice’s mens rea in order to find out which of

these crimes he is guilty of.

Due to the fact that Maurice picked up a bottle before attacking Benny, coupled

with the fact that he shouted “Go to hell” while he was attacking him, suggests that he

made his attack with malice aforethought, and certainly suggests he intended to kill

Benny. Due to the mens rea for murder being a homicide committed with malice

aforethought, I.e. an intention to kill or an intention to seriously injure with the

knowledge of risk of death,11 Maurice is therefore guilty of murder and should be

sentenced to a life term in prison. Once again it might be possible to plead that

diminished responsibility on account of the alcohol which he had consumed and

possibly get his sentence down to that of second degree murder of manslaughter,

however this would involve proving that he consumed the alcohol involuntarily. He

also may be able to plead that Benny provoked him by attacking Ned, however this

issue would be left up to a judge in order to ascertain whether an ordinary man would

have reacted in the same way.

Finally, Alfred charged at Maurice reaching into his pocket to get his knife.

Maurice thinking he had a gun, leapt from the train platform from where they were,

onto the tracks. A train then passed and amputated Maurice’s leg. It is possible that

Alfred is guilty of assault occasioning actual bodily harm. In order to fulfil this either

technical assault or battery must first be proven. In charging at Maurice, Alfred

certainly led him to believe that he was going to apprehend immediate personal

violence.12 Added to this that he was reaching into his pocket for a knife in order to

cause said violence, fulfils both the required actus reus and mens rea for technical

assault. With technical assault established it is then necessary to prove that Alfred

11 N.9 above Pg. 313

12 N.1 Above
caused actual bodily harm to Maurice. Actual bodily harm is seen as any hurt or injury

calculated to interfere with the health or comfort of the victim. Maurice’s leg being

amputated certainly constitutes actual bodily harm. Therefore Alfred is guilty of

assault occasioning actual bodily harm and can be sentenced to a maximum sentence

of five years.

It could be argued that Maurice jumped in front of the train himself of his own

free will. However it is clear that he was provoked and acted in such a way as he

thought would preserve his life in a way that any reasonable man would.

Bibliography

Allen, M., Textbook on Criminal Law (9th ed., Oxford: Oxford University Press, 2007)
Chapters 2, 3, and 10.