Homework. End of Unit Assessment 13D 13A
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1 PRINCIPLES OF CRIMINAL LIABILITY 2: Mens Rea By the end of this unit, you will be able to (AO1): Understand what is meant by the term mens rea and the different states of mind that this evolves Explain what is meant by intention in the criminal law, and the development of the law on oblique intent Describe the meaning of recklessness in the law and the evolution of the test. Describe the doctrine of transferred malice and its limits. Understand what is meant by coincidence, and it interpretation by the courts You will also be able to evaluate (AO2): The development of the law on oblique intent, and the proposals for reforming it. How objective and subjective approaches have affected the law on recklessness The development of the rules on transferred malice and coincidence Homework 13A 13D Complete homework sheet 1, to consolidate your understanding of actus reus and causation. Due on Friday Write up the essay on omissions which we planned in class, to demonstrate your understanding of this key topic. Due on Thursday End of Unit Assessment Once we have finished this unit you will be given one week to revise for a DRAG test on everything we have covered this term. In addition, you will complete the following past question in timed circumstances: Wayne belongs to a terrorist organisation. He telephones the police to say that he has placed a bomb in a van on Westminster Bridge and confirms that it is timed to explode in fifteen minutes. The police telephone operator mistakenly thinks that Wayne has said fifty minutes and immediately communicates this information to his superior officer. The bridge is closed and people and vehicles are cleared within ten minutes leaving only one van with no driver. Fifteen minutes after the original telephone call, Martin, a bomb disposal expert approaches the van wrongly believing that the bomb will not explode for at least thirty minutes, but is killed instantly when the bomb explodes. Wayne claims that he was only trying to cause disruption and that he never wanted to harm anyone. Consider Wayne s potential liability for the death of Martin 1
2 Mens Rea: Introduction Mens rea literally means guilty mind. It is generally the most important element in allocating blame and justifying any future punishment and generally refers to Ds state of mind at the time of the offence. It is often called the fault element of the crime and is normally the element that can turn an innocent act into a guilty one! Silly Task: Look at the three pictures below. Can you tell their guilt from their actions? and each crime may have more than one element of MR. If this is the case all the elements need to be proven. Example: Theft Element One: Element Two: Not all crimes require the same level of fault. Generally speaking, the more serious the crime the higher the level of fault expected from D. Murder Involuntary Manslaughter Mens Rea 2
3 What about Motive? Is it important in the criminal law? It certainly is in the criminal law programmes on the TV more that whodunit, we want to know whydunit but the court has a rather different approach! R v Steane 1947 (CA) Facts: Ratio: Lord Goddard: A man is taken to intend the natural consequences of his acts but the motive of a man s act and his intention in doing the act are, in law, different things 3
4 Types of Mens Rea 1 Intention Whilst you could intend to commit any offence, no matter how minor, here we are focused on crimes which require intention as part of their proof e.g. theft, murder. These tend to be the more serious crimes, with the more serious fault element reflecting this. Thinking: What do you think intention is? What words could we use to describe it? Remember: The law is rarely straight forward, and here there are at least four types of criminal intention! Specific Direct aka express Basic Oblique aka indirect In deciding whether D has the intention necessary or not we tend to look at the foresight he had of the consequences. Task: Look at the grid below. Put each of the scenarios under one of the boxes, then highlight the box at which you think that D should be liabile for any harm that occurs as a result Impossible Unlikely Possible? Probable Highly Probable Virtually Certain Certain 1. A man fires a shotgun out of the window of a remote farmhouse 2. A man fires a shotgun which he is holding directly at the head of his victim 3. A man fires a shotgun out of the window of a shop in the high street 4. A man fires a shotgun in the direction of a bus queue twenty feet away 5. A man fires a shotgun into the air on the moon (no other astronauts around) 6. A man fires a shotgun at the head of someone stood in his doorway. 7. A man fires a shotgun at a bus queue six foot away. 4
5 Direct Intent [or Express] Simply put, this means you both foresee and intend the consequence which occurs. e.g. I pull a gun, point it at you and say, You re dead. I then pull the trigger. This is the case in the majority of cases, although I may not even need to say the words! It has been described as the courts as a wish, hope, desire etc. The test for intent is subjective. This means that it is based on what D, in those circumstances thought, not what the reasonable person would think. R v Mohan 1975 Facts: Ratio: a decision to bring about, in so far as it lies within the accused power( the prohibited consequence), no matter whether the accused desired that consequence of his act or not 5
6 Oblique Intent *This is a really complicated area and probably one of the worst ones we will do!* What does it mean? This is where D intends one consequence (e.g. arson) but another occurs (e.g. murder). Clearly we can t say that he has a direct intent to kill, but could he have known that this might be another outcome and therefore impliedly intend it? The answer hinges on whether the death was foreseeable and indeed, just how foreseeable something has to be to be intended in the law. Why is it so important? Well if we can prove oblique intent, then we can convict D of murder or s.18 GBH. However, if it cannot be proven, then the most they can be convicted of is manslaughter or s.20 GBH so it can make a big difference to D! Scenario: What if I am sick of a pupil and decide to blow up E52, knowing that the student will be in there during lesson time. The classroom blows up, killing the rest of the class as well. Did I intend to kill the others? What argument could you make to justify my intent, and therefore ensure that I am found guilty? What if I become remorseful and phone the police with a warning? For the cases we look at, you need to be confident: Describing the facts and the ratios of the cases [AO1] Understanding how the court came to that conclusions, and why they did. You should also be able to spot problems with their reasoning, and comment on the consistency (or lack!) in their decisions. [AO2] 6
7 How do we prove oblique intention? Foresight of Consequences Because proving what is on someone s mind is an incredibly difficult thing to do, we have to look for evidence of their intentions. This normally comes as a result of their actions, and we can then use it as evidence of a possible intent. Important Point: This is just evidence, not clear proof of an intent! Why was there a problem? DPP v Smith (1961) FACTS: D involved in a robbery, V was a policeman and tried to stop him by clinging to the bonnet. He was shaken off into the path of another vehicle and killed. D was charged with murder. Was he guilty? 1. Why was this outcome unfair to Mr Smith? 2. Why could the House of Lords not simply just change their minds and change the law? Because the judges wouldn t change the law, the government had to step in and they passed Criminal Justice Act 1967 s.8 which sets out the legal test for proof of intent. A court or jury, in determining whether a person has committed an offence: a. shall not be bound in law to infer that he intended or foresaw a result of his actions by reasons only of its being a natural and probable consequence of those actions: but b. shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences as appear proper in the circumstances. So what does this mean? Evidence of intention is a question of, and so is left to the to decide on the basis of any evidence they feel is relevant. This means that foresight of consequences is only of intention, and the jury can if they want ignore it. The section makes it clear that D must foresee it as more than and, but does not say how much more they must foresee it by. This is left to the rest of the cases, and the courts! 7
8 Hyam v DPP (1975) Development of the Foresight of Consequences test FACTS: The court said the test for foresight was: D must have foreseen that death or GBH was a highly probable result. What do you think? How might you develop your AO2 in critical comment with this case? R v Moloney (1985) What happened next...? FACTS: Ratio: The House of Lords ruled that foresight of the consequences is only evidence of intention. (It is not enough to form intention in its own right) and the probability must be overwhelming This next section has been overruled by later cases Bridge LJ set down a two stage test (to decide whether consequences were foreseen) to be put before juries: 1. Was death or really serious injury a natural consequence of the defendant s act? and 2. Did D foresee that consequence as being a natural result of his act? 1. Look at the test, and then back s.8. What had Lord Bridge forgotten? 2. Should oblique intent have even been an issue here? 8
9 R v Hancock & Shankland (1986) FACTS: DD were miners who were on strike & trying to stop another miner going to work. They dropped a concrete clock from bridge intending to block the taxi carrying the miner. It hit the taxi, killing the driver. Ds were charged with murder, and convicted after the trial judge used the Moloney direction. R v Nedrick (1986) FACT: *Key case* CA The CA decided to use this case to clarify the rules and set an easy to understand test for the jury: 1. How probable was the consequence which resulted from D s voluntary act? and 2. Did D foresee the consequence? Those consequences should be a virtual certainty. If all this can be proven, then the jury can infer intent from the circumstances. 1. What do you notice about the two branches of this test? 2. How might this test have changed the outcome for D in Hyam v DPP? 3. Why might the word infer be so important here? 9
10 *KEY CASE* R v Woollin [1998] UKHL 28 LORD STEYN The case in a nutshell The appellant lost his temper and threw his three-month-old son on to a hard surface. His son sustained a fractured skull and died. The appellant was charged with murder. The issue was whether the appellant had the intention to cause serious harm [and was liable for murder]. The appellant denied that he had any such intention. Subject to one qualification, the Recorder of Leeds summed up in accordance with the guidance given by Lord Lane, C.J. in Nedrick... [T]owards the end of his summing up the judge [at first instance] directed the jury that if they were satisfied that the appellant "must have realised and appreciated when he threw that child that there was a substantial risk that he would cause serious injury to it, then it would be open to you to find that he intended to cause injury to the child and you should convict him of murder." The jury found that the appellant had the necessary intention and they convicted the appellant of murder. counsel for the appellant argued that by directing the jury in terms of substantial risk the judge illegitimately widened the mental element of murder. It is plain that a direction [to the jury which uses the words] "substantial risk" of causing serious injury is wider than a direction framed in terms of appreciation of a "virtual certainty. If Lord Lane correctly stated the law in Nedrick, the judge's direction in terms of substantial risk was wrong. in Nedrick the Court of Appeal felt compelled to provide a model direction for the assistance of trial judges [on oblique intent] Lord Lane observed: "When determining whether the defendant had the necessary intent, it may therefore by helpful for a jury to ask themselves two questions. (1) How probable was the consequence which resulted from the defendant's voluntary act? (2) Did he foresee that consequence? "Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case. Student Task: Read the extract and answer the following questions in as much detail as you can 1. Summarise the key facts of the case. 2. Do Woollin s actions amount to the AR of murder? 3. Can you spot the mistake made by the trial judge? 4. What does Lord Steyn think of the Nedrick test? Do you agree? 5. Is the Nedrick test absolute? Why/ why not? In other words, if the jury is able to say yes to both branches, do they have to find that he has the intention and convict him of murder? "Where a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be irresistible that he intended that result, however little he may have desired or wished it to happen. The decision is one for the jury to be reached upon a consideration of all the evidence." (My emphasis added) 10
11 over a period of twelve years since Nedrick the test of foresight of virtual certainty has apparently caused no practical difficulties. It is simple and clear. It is true that it may exclude a conviction of murder in the often cited terrorist example where a member of the bomb disposal team is killed. In such a case it may realistically be said that the terrorist did not foresee the killing of a member of the bomb disposal team as a virtual certainty. That may be a consequence of not framing the principle in terms of risk taking. Such cases ought to cause no substantial difficulty since immediately below murder there is available a verdict of manslaughter which may attract in the discretion of the court a life sentence. I am satisfied that the Nedrick test, which was squarely based on the decision of the House in Moloney, is pitched at the right level of foresight. It follows that judge should not have departed from the Nedrick direction. By using the phrase "substantial risk" the judge blurred the line between intention and recklessness, and hence between murder and manslaughter. The misdirection enlarged the scope of the mental element required for murder. It was a material misdirection In my view the conviction of murder is unsafe. The conviction of murder must be quashed. The status of Nedrick In my view Lord Lane's judgment in Nedrick provided valuable assistance to trial judges. The model direction is by now a tried-andtested formula. Trial judges ought to continue to use it. [Criminal professors have] observed that the use of the words "to infer" may detract from the clarity of the model direction. I agree. I would substitute the words "to find." LORD HOPE OF CRAIGHEAD My Lords, I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Steyn. I agree with it, and I wish to add only these brief comments. 6. What modification do they suggest to the Nedrick decision? 7. What happens to D s conviction for murder? Why? Stretch yourself! The test which is confirmed by the House of Lords in Woollin would have been enough to convict him of murder if the judge had got the direction right. Can you explain why this statement is right in the law?. I attach great importance to the search for a direction which is both clear and simple. It should be expressed in as few words as possible. That is essential if it is to be intelligible. A jury cannot be expected to absorb and apply a direction which attempts to deal with every situation which might conceivably arise. I think that the Nedrick direction, fulfils this requirement admirably. But the substitution of the word "find" for "infer" is an improvement, in the interests of clarity, and I also would make this change to it. 11
12 Why are terrorists now guilty of murder under this ruling? A terrorist plants a bomb. He phones the police, telling them where it is and giving them long enough to deal with it. However, something happens and the bomb disposal officer is killed. Following the decision here, the terrorist is not liable for murder in the death of the bomb disposal officer. Why? So, where does that leave us? The most recent statement on the law from the Court of Appeal (and a local case MK!). R v Matthews & Alleyne (2003) FACT: Grounds of appeal: the trial judge told the jury that if drowning was a virtual certainty and [the appellants] appreciated that hey must have had the intention of killing him. DD appealed on the basis that the direction went beyond what was permitted by Woollin and equated foresight with intention Hmm... what do we think? What issues might there be with this decision? What does it seem to say about foresight of consequences? 12
13 Consolidation In your pair: 1. Sort out the cards and match the case, the ratio and the facts. 2. Complete the grid on the key cases below, using this information. Name Facts Test/ Point of Law Verdict (outcome of appeal) DPP v Smith (1961) HL Criminal Justice Act 1967 D set fire to the house of her love rival, by pouring petrol through the letterbox,, killing two children inside. a. was death or really serious injury a natural consequence of D s act? And b. did D foresee that consequence or injury as a natural result of his act? If yes to both, jury find D had the necessary intent. Foresight of consequences is only evidence of intention, it is not enough to be intention on its own. R v Nedrick (1986) CA Due to the misdirection of the judge, D s conviction for murder was replaced with one for manslaughter. DD robbed the defendant, who told them he could not swim. They then pushed him in the River Ouse and he drowned. 13
14 Type of Mens Rea [2] Recklessness This area is a little clearer [thankfully!!!]. This is currently defined as: The conscious taking of an unjustifiable risk. What does this mean? D need only have a small awareness of the risk to be found criminally liable. Recklessness is sometimes implied in the phrase maliciously, especially when it appears in statutes (well... mostly). Offences which have recklessness as some form of their mens rea include assault and battery, criminal damage and actual bodily harm. The main debate of this topic is whether the test for recklessness should be objective or subjective. Objective means: Subjective means: R v Cunningham (1957) FACT: The court quashed his conviction, holding that the test for recklessness was: Whether D realised that there was a risk of the outcome occurring, and went ahead anyway. This is a test, and was the standard case for years, until the following controversial decision by House of Lords. This caused huge upset and confusion 14
15 R v Caldwell (1981) FACT: The court decided that liability through recklessness could occur in two situations: 1. D realised the risk and went ahead; or 2. D had not thought about the possibility of any risk but went ahead What are the implications of this decision? Hmmm... let s stop a minute. On your desk you have a card. The card is a point of criticism regarding Caldwell. In your pairs, explain why this is a criticism. Each group will feedback, so that we have a whole list of points! Point Explanation This has changed the test for recklessness completely. It is too general and doesn t take account of D s characteristics It has been expanded to other offences such as manslaughter The reasonable man is always reasonable. It makes the law unclear for both the courts and the defendants. It reduces the amount of risk D needs to foresee. 15
16 So were the consequences of the decision in Caldwell really that bad? Elliot v C (1983) FACT: D Why was this decision unfair morally and legally?... and eventually, the House of Lords used the to overrule Caldwell R v G (2003) FACT: How much damage can I do with a pile of papers under a wheelie bin? HL used the Practice Statement to overrule Caldwell the test is: Did D realise that there was a risk and go ahead anyway? DD s convictions were overturned, and the decision was followed in the later case of Cooper (2004). A*- B Recklessness Extension: Read Storey & Lidbury Criminal Law pp Add to your notes on this area, and use this to find the facts and ratios of the following cases. What do they illustrate about the problems in this area of the law? Lawrence Spratt Seymour 16
17 The meaning of intention in criminal law has now been clearly settled by decisions of the courts and there is no longer any need for Parliament to legislate upon the matter. Critically consider whether you agree with this statement Jan [50 Marks] Criminal intent is one of a number of mens rea that can be use when convicting a defendant, other areas of mens rea like recklessness or negligence have been defined much more clearly, while intent remains dangerously precarious in definition. This seems extremely unfair when it is taken into context that criminal intent is used as the mens rea in murder case, and a conviction holds a mandatory sentence of life. One of the largest problems with the definition of criminal intent is its breadth, as both direct and oblique intent can be used. Direct intent is said to be a true desire to bring about a consequence and oblique intent is stated as a state of mind where the defendant appreciates his conduct is virtually certain to lead to a particular conclusion (even if that conclusion was not desired), however oblique intent is not always defined in this way and used to include the foresight of highly probable causes, as in the case of R v Smith 1961, which would now be a manslaughter case, so if oblique intent is difficult to define then the whole concept of criminal intent seems impossible. The mens rea of murder also complicates the issue of a clear and satisfactory definition of criminal intent, lord Coke (who stated the only definition of murder we hold today) wrote that intent for murder was malice aforethought either by express or implied intent which significantly widens the area of interpretation. Express intent in murder is said to be a true desire to kill while implied intent is the more shaky area of intent to cause really serious harm (GBH) again these areas are widened by the fact that both of these carry the direct and oblique interpretations as well, which makes a definition problematical. The definition of criminal intetn as it stands now is defined in the case of Matthews and Alleyne which included indirect intention, the judge directed the jury to find him guilty if they thought that the defendants saw a virtual certainty of the victim drowning. This case overturned the precedent set by Moloney, Nedrick and Woollin and defined criminal intention as direct and oblique intent, a much wider category. This definition however is far from clear and satisfactory, firstly although direct and oblique intention have been defined it seems that in certain crimes or circumstances different rules apply (Matthews and Alleyne) this leaves the law inconsistent and any definition is therefore opaque and illogical. And secondly, is it fair clear or satisfactory to convict a defendant on the same charge as both intent to kill and the virtual certainty that the defendant s actions will lead to really serious harm? Virtual certainties are a dangerous area to try and define. The question is can parliament make a statute that is able to define criminal intention, a statute that is clear, simple, fair and effective or will they simply make a clouded matter much more unclear. In the Criminal justice Act of 1967, parliament defined the proof of criminal intent in section 8 of the act. It reads that a court or jury, in determining whether a person has committed an offence: a. Shall not be bound in law to infer that he intended or foresaw a result of his actions by reasons only of its being a natural and probable consequence of those actions; but b. Shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances. This was the last attempt that parliament gave upon trying to define intention, and it included oblique intention, which was overturned by R v Moloney 1985 and followed by Nedrick and Woollin. The fact that it stated that the jury could find the defendant guilty if they think the evidence infers it was enough for the statute to be easily overturned with the common law. The act gave the jury the option, which would mean the judgement law with them and that as it didn t define it properly, it was left to the interpretation of the judiciary, which it eventually was in the House of Lords who went against the direction in the act, and since it was plainly vague (i.e. infers) it was easy to do. The definition of criminal intent as it stands is far from clear and certainly not satisfactory, although its definition is much better than it has been in the past, for example changing from highly probable to virtual certainty it still holds too many inconsistencies and maybe has too much breadth (e.g. implied oblique intent). There is also the problem of the case variations, although a consistent decision is needed, different cases have different circumstances (the difference between the intent of Moloney and that of Matthews and Alleyne) and different interpretations are needed sometimes. Would it be a good idea to have a statute that pull all diverse into a few pigeonholes? This may cause more judicial problems than is solved, not to mention the face that a statute would be subject to the judge who interpreted it; with the different ways of interpretation (literal, mischief) it would be difficult to have a consistent decision and would depend completely on all judges interpreting the statute literally. The act of 1967 made little impact why would this one unless it closed more doors than it opened making sure everything was followed tightly to the letter. If a new statute was introduced, then other areas of mens rea should be taken into account, like provocation, the Homicide Act 1957 has an impact on intention and was written at a time when the penalty for a murder conviction was much more serious (the death penalty) so mens rea was taken into a much broader context in order to save those who had a more distorted view of the crime, maybe a statute should be introduced laying down at least a minimum of more modern principles of intention and leaving certain areas of the law as they are now, a mix of both the present definition and a new contemporary ideal of intention which would reflect are society and culture. 17
18 But I meant to hit Bob! Not Harry! So, I haven t got a mens rea, and you ve got to let me go haven t you? Transferred malice Meaning: Example: The mens rea of a crime can be transferred from the intended victim to the actual victim. Fred decides to kill Wilma by pushing her out of the window. She falls into Pebbles, causing her to fall out of the window and die as a result of her injuries. Under the doctrine of transferred malice, he would still be liable for her death as Fred s intent to kill Wilma is transferred to Pebbles. Problem: This is a slightly controversial area of the law, and some argue that it should be abolished. Why? R v Latimer 1886 FACT: D was a soldier in a pub and aimed his belt at X intending to hit him, because he had insulted him. Instead he hit a woman, V, in the face. A more recent example... R v Mitchell 1983 FACT: D pushed into a queue at the Post Office. X (age 76) reprimanded him, and D hit him. X fell into V (aged 94) who fell and eventually died as a result of her injuries. D was charged with unlawful act manslaughter Bonus Question: What s the unlawful act? 18
19 Are there any limitations on this? Can you spot any issues with this, if there were no restrictions? R v Pemblition 1874 Limitation One: Must be the same offence! FACT: Outside a pub, D was involved in a riot. He threw a rock, intending to hit X, but smashed a window in the pub. Limitation Two: How many times can it transfer? Attorney-General s Reference No. 3 of 1994 (1997) FACT: 19
20 So we ve looked at the issues affecting actus reus and mens rea, now we need to look at the theories which explain why they need to meet... and what happens if they don t (the courts have developed a couple of really sneaky clever solutions!). Coincidence This is also known as contemporaneity This may sound obvious, but generally speaking, to be liable for the offence, the mens rea must be present at some time whilst the actus reus is taking place. R v Miller 1983 Facts: You know these! Lord Diplock confirmed the existence of the theory 1. When did D develop the MR of arson under s. 1(1) and (3) of Criminal Damage Act 1971? 2. Why do you think the courts developed this rule? Problem: The courts seem to look for contemporaneity when it seems that none really exists based on the facts! R v Church 1965 FACTS: A different way to explain the same thing? Series of Acts Thabo Meli v R 1954 FACT: The courts confirm that MR may be present at any time until the act is complete, and under the series of acts doctrine, D was liable as he had committed one of a series of acts leading to D s death, and had the MR when he committed that act. 20
21 Continuing Act What if you develop the mens rea after the actus reus has begun? Meaning: In continuing act, if D develops MR at any point before the AR is complete, then D will be liable. R v Kaitamaki 1985 Facts: D had sex with V, during which he realised that she did not consent. Law: He continued, and when charged with rape, argued that he did not have the MR at penetration the key AR element of rape. Fagan v MPC What are the facts of the case? *KEY CASE* 4. What was the crucial question in this case? 2. Was Fagan convicted or did he lose his appeal? 5. Did D commit an act or an omission? 3. What offence was he charged with? 6. Do you agree with the outcome of the case? Why/why not? Stretching yourself: Look at Bridge s argument. Can you work out why he argues that there was no assault in the case? Do you agree? 21
22 Fagan v MPC 1969 (QBD) Facts: A police constable (V) wishing to question the defendant driver (D) directed him to park his vehicle at a precise space against the kerb, whereupon the defendant drove his car on to the police constable's foot. After V had repeated several times, "Get off my foot!" D said "Fuck you, you can wait." The appellant then turned off the ignition or at least the engine stopped running. V then said to the D several times. "Get off my foot!". As a result of the appellant's act or omission V s left big toe was injured. The toe was swollen and slightly bruised. Judgment: JAMES J. The appellant, Vincent Martel Fagan, was convicted by the Willesden magistrates of assaulting David Morris, a police constable, in the execution of his duty on August 31, The sole question is whether the prosecution proved facts which in law amounted to an assault. Mr. Rant for the respondent (P) argues that the first mounting of the foot was an actus reus which act continued until the moment of time at which the wheel was removed. During that continuing act, it is said, the appellant formed the necessary intention to constitute the element of mens rea and once that element was added to the continuing act, an assault took place. In our judgment the question arising, which has been argued on general principles, falls to be decided on the facts of the particular case.. Although "assault" is an independent crime and is to be treated as such, for practical purposes today "assault" is generally synonymous with the term "battery" and is a term used to mean the actual intended use of unlawful force to another person without his consent. On the facts of the present case the "assault" alleged involved a "battery." Where an assault involves a battery, it matters not, in our judgment, whether the battery is inflicted directly by the body of the offender or through the medium of some weapon or instrument controlled by the action of the offender [the car!]. An assault may be committed by the laying of a hand upon another, and the action does not cease to be an assault if it is a stick held in the hand and not the hand itself which is laid on the person of the victim. For our part we see no difference in principle between the action of stepping on to a person's toe and maintaining that position and the action of driving a car on to a person's foot and sitting in the car whilst its position on the foot is maintained.... For our part we think the crucial question is whether in this case the act of the appellant can be said to be complete and spent at the moment of time when the car wheel came to rest on the foot or whether his act is to be regarded as a continuing act operating until the wheel was removed. In our judgment a distinction is to be drawn between acts which are completethough results may continue to flow-and those acts which are continuing. Once the act is complete it cannot thereafter be said to be a threat to inflict unlawful force upon the victim. If the act, as distinct from the results thereof. is a continuing act there is a continuing threat to inflict unlawful force. If the assault involves a battery and that battery continues there is a continuing act of assault. For an assault to be committed both the elements of actus reus and mens rea must be present at the same time. It is not necessary that mens rea should be present at the inception of the actus reus: it can be superimposed upon an existing act. On the other hand the subsequent inception of mens rea cannot convert an act which has been completed without mens rea into an assault. In our judgment the Willesden magistrates and quarter sessions were right in law. On the facts found the action of the appellant may have been initially unintentional, but the time came when knowing that the wheel was on the officer's foot the appellant (1) remained seated in the car so that his body through the medium of the car was in contact with the officer, (2) switched off the ignition of the car, (3) maintained the wheel of the car on the foot and (4) used words indicating the intention of keeping the wheel in that position. For our part we cannot regard such conduct as mere omission or inactivity. There was an act constituting a battery which at its inception was not criminal because there was no element of intention but which became criminal from the moment the intention was formed to produce the apprehension which was flowing from the continuing act. We would dismiss this appeal BRIDGE J. I fully agree with my Lords as to the relevant principles to be applied. No mere omission to act can amount to an assault. Both the elements of actus reus and mens rea must be present at the same time, but the one may be superimposed on the other. It is in the application of these principles to the highly unusual facts of this case that I have, with regret, reached a different conclusion from the majority of the court. I have no sympathy at all for the appellant, who behaved disgracefully. But I have been unable to find any way of regarding the facts which satisfies me that they amounted to the crime of assault. This has 22
23 not been for want of trying. But at every attempt I have encountered the inescapable question: after the wheel of the appellant's car had accidentally come to rest on the constable's foot, what was it that the appellant did which constituted the act of assault? However the question is approached, the answer I feel obliged to give is: precisely nothing. The car rested on the foot by its own weight and remained stationary by its own inertia. The appellant's fault was that he omitted to manipulate the controls to set it in motion again. Neither the fact that the appellant remained in the driver's seat nor that he switched off the ignition seem to me to be of any relevance. If one man accidentally treads on another's toe or touches him with a stick, but deliberately maintains pressure with foot or stick after the victim protests, there is clearly an assault. But there is no true parallel between such cases and the present case. It is not, to my mind, a legitimate use of language to speak of the appellant "holding" or "maintaining" the car wheel on the constable's foot. The expression which corresponds to the reality is that used by the justices in the case stated. They say, quite rightly, that he "allowed" the wheel to remain. With a reluctantly dissenting voice I would allow this appeal and quash the appellant's conviction. Appeal dismissed. 23
Principles of Criminal Liability 2: Mens Rea
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