Offence Against the Person - Essay Example

Criminal Law At first let's describe the offences that took place disregarding defendant's mental It will help us to choose the acts that regulate the corresponding offences. In the first case the defendant caused grievous bodily harm that inflicted permanent brain damage of the victim. Since actus reus of battery "is the infliction of unlawful force by one person upon another1" here is a plain case of battery. According to Offences Against the Person Act 1861 there is a difference in sentencing that depends on the presence of intent. Section 20 of the Act mentioned above states that the accused "shall be liable to imprisonment for five years" and according to section 18 the lifelong imprisonment expected if the accused had an intention "to do some grievous bodily harm to any person". Mens rea of battery requires the presence of intention or recklessness of the accused. Actus reus of murder (and manslaughter) is the unlawful act that's done deliberately and is a significant cause of death of some person. If the court is able to prove that the defendant had intention to kill (that is, mens rea) then it is murder, not manslaughter. Running from home in panic, Joe pushed his brother who hurt himself when hit the ground. Later his brother went home and died at night from head trauma. Joe can be accused both of battery and manslaughter. Since there is an ambiguity about the term "touching" concerning battery (e.g., the Court of Appeal in Wilson v Pringle [1986] 2 All ER 440 stated that to prove battery "the touching must be proved to be a hostile touching"), we will analyze the third case later. Post-traumatic stress disorder is "an anxiety disorder in which a particularly stressful event, such as military combat, rape, or a natural disaster, brings in its aftermath intrusive mental images of experiencing a traumatic event, emotional numbness and detachment, estrangement from others2" etc. One of the common responses of people with PTSD is uncontrollable behaviour that can be expressed in fits of anger (Chemtob et al., 1997) towards other persons or even assault on them. According to Mental Health Act 1983, there are different kinds of PTSD patients' treatment, e.g., hospitalisation, guardianship, supervision and treatment. The story tells us nothing about it, but since it will be essential later, we assume two probable situations: there was no medical treatment and control of Joe's disorder; there was medical supervision and treatment, but Joe was considered harmless at that time as there were no more measures provided. Having had flashback caused by victim's actions, Joe had lost the sense of reality and behaved according to his traumatic experience. The victim screamed and it caused Joe to have an imaginary return in the traumatic situation and probably to treat the victim as an enemy soldier. Joe's mind has created a delusive situation in which ex-soldier believed that his actions are correct: such belief in moral and legal rightfulness is the first reason to plead diminished responsibility (see Bratty v AG for Northern Ireland (1963) AC 386 at 409). The second factor is total loss of control. Since there were cases when partial loss of control didn't make an acquittal (e.g., in Broome v Perkins (1987) Crim LR 271), the defendant must prove that he had no possibility to control his actions, for the burden of proof in the case of insanity lies with the defendant. Then we must prove that either insanity or automatism took place. The factor that triggered flashback was external that should prove automatism, but Joe's reactions were atypical because of his mental illness that is the inner factor. There is an opinion that "if the defendant loses control because of an illness, that is, some internal factor, he can only plead insanity" (Hill v Baxter (1958) 1 QB 277). But there is the external factor in our case, the victim's scream. We should point that Joe's reaction was atypical and unexpected, and also can refer to the case of R v Rabey (1997) (Canadian case), in which defendant battered his girlfriend because she rejected him. The defendant argued that the rejection was an external factor, but was found guilty because "the ordinary stresses and disappointments of life" cannot be considered as external causes. If the insanity raised as a defence will be rejected the defendant should plead automatism. These two verdicts are regulated by the same act, Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. Section 1 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 provides that a jury shall not return a special verdict "the accused is not guilty by reason of insanity" except on the written or oral evidence of two or more registered medical practitioners. At least one of them should have special experience in the corresponding science. The jury still may decide between conflicting medical evidence. If there are facts or surrounding circumstances, which in the opinion of the court, justify the jury in coming to a conclusion different from that of experts, their verdict will be upheld3. The acti rei of murder and manslaughter are the same. In the case of killing his father the defendant did the act that is unlawful, deliberate, and a significant cause of death. Mens rea of murder is the presence of intention, or "malice aforethought", intention to kill or to cause grievous body harm. The defendant side can refer to s3 Homicide Act 1957 which determines the procedure of provocation ascertainment. It is said that "the jury shall take into account everything both done and said according to the effect which in their opinion, it would have on a reasonable man" (Homicide Act 1957), moreover, the jury shall take into account mental health of the accused, who is "irritable and unpredictable". We expect that Joe's father also knew about the diagnosis and should have been aware of consequences of his rude speech. If court agrees that Joe's insanity due to stress factor is not temporary but permanent, then according to Criminal Procedure (Insanity Act) 1964 there are no penitentiary measures against the defendant but Joe is likely to be hospitalised for life. Joe hit his brother without an intention to kill him. Here we should use sine qua non test: for the question "But for what the defendant did would his brother have died" the answer is unambiguous - "no". There was a chain of consequences, and Joe surely couldn't foresee that his brother would fall after his punch and there would be a dangerous trauma as a result. Medical treatment would save brother's life, but he refused to take it. Anyway he died not because of some Joe's actions, there was other substantial factor of death. To avoid the charge of manslaughter the defendant side has to disprove, according to establishment of the type of manslaughter in R v Mitchell (1983) 2 WLR 938, following items: the accused committed an unlawful act; the act was dangerous; the act was a substantial cause of death; the accused intended to commit it. It is clearly seen that Joe acted automatically to push his brother out of the way, had no intention to cause harm and the act was not dangerous as defined in R v Mitchell: "a sober and reasonable person would inevitably recognise that it carried some risk of harm". There is no mens rea in this case and the defendant should not be liable. It should also be noted that Joe because of his father's abusive remarks could be temporarily insane at that time and couldn't control his actions. For the defendant. In the first case, plead insanity. In the second case, if the defence of insanity failed, argue that an act of provocation took place and plead diminished responsibility according to s3 Homicide Act 1957. In the third case, no defence but the proof needed that Joe's actions towards his brother weren't dangerous, plus that Joe believed his brother wasn't hurt seriously. For the prosecutor's side. In the first case, acquit. In the second case, charge with murder. In the third case, acquit. REFERENCES Chemtob, C.M. et al. 1997, Anger regulation deficits in combat-related posttraumatic stress disorder. Journal of Traumatic Stress, vol. 10(1), 17-35. Criminal Justice Act 1988 Criminal Procedure (Insanity) Act 1964 Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 Homicide Act 1957 Mental Health Act 1983 Offences Against the Person Act 1861 Read More