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Published: Fri, 02 Feb 2018

Assessment of criminal liability of three incidents


Tom has been involved in an incident at a party and requires his criminal liability to be assessed. There are three potential incidents, all of which involve non-fatal, non-sexual, offences against the person. Therefore, for each incident the law will be considered and then the facts applied to the law.


The first incident concerns a push on Paul who fell into Sally. Dealing first with Paul, there is no description of the injuries caused which indicated that the focus should be on assault and battery. For the actus reus of assault to be established it would have to be shown that Paul apprehended the possibility of force being applied[1]. Paul expressly states that he did not fear such force and so the actus reus of assault is not satisfied.

The actus reus for battery was determined in Collins v Wilcock[2] as being the infliction of unlawful force. Although there is no indication of lasting injuries the force applied made Paul stumble backwards and so there is an indication that unlawful force was inflicted.

The mens rea for battery is an intention or recklessness as to the likelihood of causing the force. In this case it is clear that the target was Paul. The reasons for wishing to push him are irrelevant for the purpose of establishing a mens rea as was demonstrated by R v Calhaem[3].

It is likely therefore that the prosecution would be able to establish both the actus reus and mens rea for battery against Paul.

Concerning the bruise caused to Sally, assault can be discarded for the same rationale as it was for Paul; Sally could not have feared harm on the facts.

Because of the injury that was caused; a small bruise, it is possible to consider a charge of assault occasioning actual bodily harm under Section 47 of the Offences Against the Person Act[4]

In R (T) v DPP[5] a brief loss of consciousness was held to be actual bodily harm. In R v Chan Fook[6] the Court of Appeal stated that all that as required was any hurt to “the skin, flesh and bones”. In this case it appears that the bruising that has been sustained would be sufficient to constitute the actus reus of this offence.

Tom could conceivably argue that he did not cause the injury to Sally as he did not hit her in any form. However the doctrine of transferred malice would appear to belay this argument. In Haystead v CC of Derbyshire[7] a child was injured after the Defendant punched the woman holding him. The conviction was upheld. Likewise in R v Latimer[8] the Defendant lashed out and missed his target, accidentally hitting the victim. Regardless of the accidental nature, the doctrine of transferred malice rendered the nature irrelevant.

Therefore it is likely that Tom will have the potential to be charged with Assault Occasioning Actual Bodily Harm in regard to this incident with Sally.


Jim kissed Sally against her will. At the time she he was drunk. On the facts that have been provided it is impossible to give a specific analysis of the possible liability. If force was present then there may be a charge of battery. If there are any injuries then there may be a charge for ABH under the principles invoked above.

On a sexual note it is probable that Tom could be charged with sexual assault under Section 3(1) of the Sexual Offences Act[9]. All that is required for this is the sexual touching of another person and the absence of consent, both of which clearly occurred in this case.

The existence of alcohol could only be useful if it provided a defence to the issue of consent. In R v Fotheringham[10] the court ruled in a rape case that self-induced intoxication was no defence as it made the belief in consent unreasonable. The same situation would likely apply in this case unless he can point to another indication that he can rely on to demonstrate consent.


Jim was punched in the face following an approach by the victim holding a water gun. He bled copiously because of a medical condition and serious illness followed. There are therefore two issues; does the particular condition limit the liability and can Tom rely on self-defence?

Tom only intended to cause minor injury but it is clear that the effect of the punch was to cause significant injury. Grievous Bodily Harm under Sections 18 and 20 of the OAPA requires “really serious harm” following DPP v Smith[11] and the need to be taken to hospital suggests that it might be possible to establish the actus reus. Further the sections cover another offence, that of wounding. The actus reus is simply a break in the skin.[12].

The issue of Jim’s medical condition is quickly dealt with. It is enshrined in law that the Defendant must take his or her victim as he or she finds him or her. In R v Martin[13] the victim was in bad health before the attack by the Defendant. This did not exonerate the Defendant following her death. On the wounding charge, the cut appeared before the condition became relevant and so that can also be charged.

On the question of mens rea it is clear that there was intent to cause only minor injuries which evades the section 18 charge that requires specific intent.

Section 20 on the other hand merely requires recklessness to cause “some harm”. It is clear from Tom’s own statement that he intended to cause some harm.

The final issue is self-defence. This has been codified by Section 3 of the Criminal Law Act[14] although the common law is still relevant. The issue according to Re A[15] is whether the Defendant reasonably believed that the force used was necessary. It is then required to show that the force used was reasonable. This is supported by R v Beckford[16] where a pre-emptive strike was allowed.

Tom would have to convince a jury that he actually believed that it was a real gun. If this is shown then the force used would likely be reasonable. If not, then it would likely not be reasonable.

In conclusion it is probable on the facts that Tom will be liable for battery as against Paul, assault occasioning actually bodily harm and sexual assault as against Sally, and will not be liable for the punch thrown against Jim on the grounds of self-defence.


In re. A (co joined twins) (2000)EWCA Civ 254

R v Beckford (1988)AC 130

R v Calhaem [1985]1 QB 808

R v Chan Fook (1994)2 All ER 552

Collins v Wilcock (1984)3 All ER 274

DPP v Smith (1961)AC 290

Fagan v Metropolitan Police Commander (1968) 3 All ER 442

R v Fotheringham (1989)88 Cr App R 206

Haystead v CC of Derbyshire (2000)Crim LR 758

JCC v Eisenhower [1983]3 All ER 230

R v Latimer (1886)17 QBD 359

R v Martin (1832)5 C & P 128

R (T) v DPP [2003]Crim LR 622

R v Tower (1874)12 Cox 692

‘Unlocking Criminal Law’‘J Martin, T Storey’

Published by Hodder & Stoughton

Archbolds Criminal Practice (2006)

Blackstones Criminal Practice (2006)


[1] Fagan v Metropolitan Police Commander (1968) 3 All ER 442)

[2] (1984) 3 All ER 274

[3] [1985] 1 QB 808

[4] (1987) (hereafter OAPA)

[5] [2003] Crim LR 622

[6] [1994] 2 All ER 553

[7] (2000) Crim LR 758

[8] (1886) 17 QBD 359

[9] 2003

[10] (1989) 88 Cr App R 206

[11] (1961) AC 290

[12] JCC v Eisenhower [1983] 3 All ER 230

[13] (1832) 5 C & P 128

[14] 1967

[15] Re A (Co joined twins) (2000) EWCA Civ 254

[16] 1988 AC 130

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