CRIMINAL SAMPLE EXAMINATION QUESTION –OFFENCES AGAINST THE PERSONS ACT 1862

Fred and Marcus had fought because Marcus was angry with Fred for having carved the letter ‘F’ on
to Livia’s arm using a penknife. Livia is Marcus’s 14-year-old daughter, who begged Fred to do this
as she was in love with him.

Fred had reluctantly agreed. The wound was not serious, although it did require one stitch. Fred
and Marcus decided to settle their differences by having a fight. Fred had punched Marcus, knocking
him over and causing him to fracture his skull. Fred ran away when the police were called.

As Fred was making his way home, a beggar, Beryl, who was carrying a baby in her arms,
approached him and asked him for money to feed the baby. This incensed Fred who hated beggars.
He sprayed after-shave cologne in Beryl’s face causing her to drop the baby which bruised it
slightly. The police then caught up with Fred. PC Bill tried to arrest him. Fred pushed PC Bill out of
the way in an attempt to get away, causing PC Bill to stagger.

In an effort to save himself from falling, PC Bill put his arm out and pushed it through a shop window,
sustaining severe cuts to his arm.

Discuss the possible criminal liability of Fred.

Suggested answer / [not an exhaustive account just a guide]

There are a number of issues to be considered as you answer this question and you should ensure
that you consider them separately.

What follows are points to note to help you construct your answer to the question.

Remember to relate what you say to the facts of the question and always provide an authority
(case/statute) for your propositions. When, in relation to any given set of facts, you need to
consider more than one offence you should consider the most serious offence first.
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Fred and Livia - Consider:
a. Malicious wounding contrary to S20. OAPA
(i) Actus reus: 'Wounding'. A wound is a break in the continuity of the whole skin (Moriarty v
Brooks [1834] and Eisenhower [1983]).The facts of the question indicate that the actus reus is
established.

ii) Mens rea: 'Maliciously'. It must be proved that Fred aware that his conduct carried a risk of
wounding or causing some harm, albeit not serious harm (Mowatt [1967], Savage and Parmenter
[1991]). If (as is likely from the facts of the question) Fred was aware of such a risk then the mens
rea is established. Burrell v Harmer.

b. Assault occasioning actual bodily harm contrary to s.47 OAPA

(i) Assault: The actus reus of assault is committed where the defendant causes another to
apprehend the application of immediate unlawful violence (Fagan v MPC [1969], Savage and
Parmenter [1991], Venna [1975] , Ireland [1997]). It makes no difference that Livia was not
frightened: it would be enough that she apprehended the immediate violence. The mens rea is
intention or recklessness on the part of John as to causing Livia to apprehend .
(ii) Battery: The actus reus of battery is the infliction of unlawful violence and the mens rea is
intention or recklessness as to that infliction (Rolfe [1936]). The facts of the question indicate that
this offence is established.

(iii) Actual bodily harm: This is harm which is more than transient or trifling and includes any
injury likely to interfere with the health or comfort of Livia (Miller [1954]). Her injury is likely to
amount to actual bodily harm.

(iv) Occasioning: It must be proved that the common assault caused the actual bodily harm. No
foresight is required to be proved on the part of the defendant (Roberts [1971]).
c. The defence of consent- You should now consider whether Livia’s consent to the injury is likely
to negate Fred criminal liability. Although Livia's consent was real and not induced by fraud or
duress there are limits on the operation of the defence of consent. You should deal with the cases
of Attorney General's reference (No. 6 of1980) and Brown [1993] (HL) where it was decided that,
subject to public policy exceptions, consent will not operate where actual bodily harm is likely or
intended. It is unlikely that a public policy exception would be made here. Although in Wilson
[1996], consent to branding by a husband on his wife was a defence, Livia is only 15 and even
though it was not done for sexual pleasure but, presumably, for personal adornment, an analogy
is more likely to be made with the Tattooing of Minors Act 1969 which provides that the
apparent consent of a child to a tattoo will never be valid.

In Court of Appeal in Attorney-General’s Reference (No 6 of 1980) Lord Lane CJ said:

‘’It is not in the public interest that people should try to cause, or should cause, each other bodily
harm for no good reason. Minor struggles are another matter . So, in our judgment, it is
immaterial whether the act occurs in private or public; it is an assault if actual bodily harm is
intended and/or caused. This means that most fights will be unlawful regardless of consent.’’

Fred and Marcus

Consider:
a. Causing grievous bodily harm with intent to do grievous bodily harm contrary to s.18

i. Actus reus: Causing grievous bodily harm. GBH is (very) serious harm (Smith )
ii. Saunders [1985], Janjua and Choudhury [1999]). A fractured skull is likely to amount
to grievous bodily harm.
ii. Mens rea: Intention to cause grievous bodily harm. The prosecution would therefore need to
prove that it was either

(a) Fred’s purpose to cause grievous bodily harm or, if it was not his purpose, the jury may find
intent where it is proved

(b) that he knew that grievous bodily harm was a virtually certain consequence of his act (Bryson
[1985]). If the jury are not satisfied beyond reasonable doubt that Fred committed the actus reus
of the offence with the requisite mens rea then they must acquit. In practice, the jury’s task is
made easier by the filtering mechanism of the Crown Prosecution Service charging standards

b. Maliciously wounding or inflicting GBH contrary to S20

Note that even if the prosecution has not charged Fred with this offence, the House of Lords held
in Mandair [1995] that a judge is entitled to leave to the jury a conviction under s.20 as an
alternative to s.18 because the term 'causing' is wide enough to include 'inflicting'.
i. Actus reus: As for s.18 (above). ii. Mens rea: 'Maliciously'. It would need to be proved that Fred
was aware that his conduct carried a risk of causing some harm, albeit not serious harm (Savage
and Parmenter approving Mowatt [1967]).

If the jury is not satisfied beyond reasonable doubt that Fred committed the actus reus of the
offence with the requisite mens rea then they must acquit. In that case they might consider:

c. Assault occasioning actual bodily harm contrary to s.47

The elements of this offence are discussed above.

d. The defence of consent

If actual bodily harm was likely or intended, John will not succeed with this defence (Attorney
General's reference (No. 6 of198o) and Brown [1993] (HL)). It would be contrary to public policy
to allow this defence in the case of a street fight (Attorney General's Reference (No. 6 of 1980)).

Fred and Beryl

Consider: a. Battery and possibly an assault if Carly apprehended the push The elements of these
offences are considered above in relation to Fred and Livia.

Fred and the baby

Consider: a. Battery: See above
Also Haystead. Provided the actus reus and mens rea for assault and/or battery against Beryl can
be proved, John could be guilty of battery in respect of the baby.

Fred and PC Bill - Consider:

a. Maliciously wounding or causing grievous bodily harm with intent to resist arrest contrary to
s.18

Actus reus: Wounding and grievous bodily harm are defined above. There is a wound. The
question states that the cut is severe so it might amount to GBH.
Mens rea: 'Malicious' in relation to the wounding in addition to the ulterior intent to resist arrest.
Morrison [1989] where it was held that 'malicious' bears its subjective meaning so the jury
should be directed to consider whether Fred foresaw a risk of some harm. Although the question
clearly states that Fred had the ulterior intent to resist arrest, if the jury is not satisfied beyond
reasonable doubt that he foresaw a risk of some harm then they must acquit.
b. Maliciously wounding with intent to cause grievous bodily harm contrary to s.18 (see above).
c. Malicious wounding or inflicting grievous bodily harm contrary to s20 (see above)
d. Assault occasioning actual bodily harm contrary to s.47.

Note that in all of the scenarios there was the likelihood of the offence of battery and possibly
assault. In those situations where the s.47 offence was considered there would be no need to
specifically point this out as assault and/or battery would need to be considered in relation to the
s.47 offence. In addition, in this question common assault arises more than once because, as well
as being an offence in itself, it is also a constituent element of another offence. Therefore once
you have explained the offence, you do not need to explain the basic elements again. It is
appropriate to refer to your previous explanation.
 However, where a new point requires discussion (as in Fred and the baby) you must ensure that
you point this out. The same applies to any offence which appears more than once in the same
question.