R. V. David Harris

R v David Harris

ADVICE TO A CLIENT

This advice is directed to my client, Mr David Harris, on account of two criminal charges put against him. The first charge is for assault occasioning actual bodily harm contrary to s. 47 of the Offence Against the Person Act 1861 The second charge constitutes of wounding or causing grievous bodily harm (GBH) with intent, contrary to s. 18 of the OAPA 1861. The initial part of this advice relates to Mr David 's first charge; of assault against his sister, Florence. With regards to the first charge, we will firstly discuss your liabilities and possible defences against s 47 of the OAPA 1861 , in relation to your sister, Florence 's injury. Firstly we will take into account the actus
reus; your action , which is when you "pulled" Florence "out of the way". This does not necessarily signify causing harm as it can be seen in light with somebody rushing to work and accidently pushing and hurting somebody in a bus. Such cases could be charged with tortuous liability and not a criminal charge . Secondly the mens rea; your mental element behind your action , shows clearly that your state of mind at the time was bent on leaving the house and not on harming Florence. Your lack of acknowledgement of her injury at that time can support that. Since both these elements are required to convict your criminal liability , it seems you may not be criminally liable for harming Florence because you did not have any element of mens rea; you did not intend to cause her harm, which in turn could acquit your act of mistakenly causing Florence 's ankle sprain.

Another defence could be, since you mentioned, to prove that your sister actually did not sprain her ankle. This will help reduce if not remove your liability completely since that would mean that she suffered no "actual bodily harm" (ABH). This is because according to Miller ABH constitutes of “Any hurt or injury calculated to interfere with health or comfort”, and since her sprain interferes with her comfort this could support your prosecution. Also according to W (a minor) v Dolbey , if we could prove that your sole intention when pulling Florence was to remove her from the door and not hurt her, then you could successfully defend yourself on grounds of recklessness as against your charge, which involves malice. However, proving so will be difficult, based on the actus reus of battery, because of your knowledge of the amount of force you used to remove Florence. The prosecutor could argue that you were aware that the force you used could hurt Florence, and therefore limit your defence. Secondly we will discuss your liabilities towards Mr Abdul 's injuries under s.
18 of the OAPA 1861 . Firstly the actus reus is that you "picked up a half a brick and hurled it at the window." Based on this it can be shown to your defence that you never actually intended to harm Abdul but wanted only to break the window, thus his injuries were caused by a non-intentional act. Therefore, your mens rea analysis also shows that your intention was to break the window of the shop and not harm Abdul. Again when examining both actus reus and mens rea elements of the case it seems you may not be liable under s. 18 of the OAPA 1861 since your act was not malicious towards Abdul nor was it intentional to harm him. However, in lines with voluntary manslaughter , where a defendant could be charged solely based on his actus reus without much regard to the mens rea behind his action, you could still be charged solely based on your actions; throwing the brick. Furthermore, since the looters saw you arguing with Mr Abdul, prior to his accident, it may seem to the jury that your action to injure him was intentional and this may go against your defence. Also, according to R v Ireland which states even silence can communicate threat, you may be found guilty for not acting towards Abdul’s benefit after you injured him. Although, you may argue as this being an omission, which is not criminally liable in UK, you could still be charged with GBH according to s 20 of the OAPA 1861. Still, you should be aware that even if we successfully defend you against this charge, you can still be charged with burglary; s 9 of the Theft Act 1968 , and for liability based on the Civil Law concept of negligence under contributory negligence of the Law Reform Act of 1945 . Also according to R v Cunningham , you, could be found guilty of causing GBH to Abdul even though your action was unintentional because this case held that even if recklessness causes a victim to suffer GBH, the defendant is guilty.
However if you could prove that you were intoxicated at the time and lacked the mens rea of violence due to intoxication based on DPP v Majewski , could support your case. Nonetheless on the grounds of Cunnigham , you could face prosecution without much defence.

Therefore, from the given facts, it seems you may be able to successfully defend yourself against Florence’s injury but may be convicted for Abdul’s injuries.

Word count: 998

Bibliography:
Books:
N Haralambous, Criminal Law, Oxford University Press, New York, 2010
J Herring, Criminal Law: Texts, Cases and Materials, Oxford University Press, Oxford, 2010
M Allen, Textbook on Criminal Law, Oxford University Press, Oxford, 2009
Journals:
D Garland, Criminology, Culture, Critique A Review of Jock Young, The Criminological Imagination, New York University Press, New York, 2011
Cases:
R v Cunningham [1981] HL
R v Ireland [1998] AC 147 HL
R v Miller [1954] 2 WLR 138
W (a minor) v Dolbey [1983] 88 Cr. App. R. 1
Websites:
www.lexisnexis.co.uk (Last accessed – 19th January 2012) www.westlaw.co.uk (Last accessed – 20th January 2012) www.criminal-law.co.uk (Last accessed – 11th January 2012) www.sweetandmaxwell.co.uk (Last accessed – 19th January 2012)