The penalty if found guilty of battery has been set to a fine not exceeding level five and/or a custodial sentence not greater than six months. Monica hitting Ross with the dish : Several charges and defences may arise from this scenario. The Offences Against the Person Act9 186110 states that a person has committed an offence if they : 'unlawfully and maliciously wound – or cause any grievous bodily harm with the intent to do some grievous bodily harm – shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for life. ' The actus reus requires either 'wounding' or 'grievous bodily harm'.
Lord Lyndhurst stated11 that wounding is: 'an injury to the person, by which the continuity of the skin is broken and there is bleeding… ' Grievous bodily harm can be classified as , 'really serious harm12' and has been held to include'injuries resulting in permanent disability or loss of sensory function, broken or displaced limbs, injuries which cause substantial loss of blood. '13 It could be argued that Ross' injuries constitute serious harm as it is clear that the bleeding indicates that the continuity of skin has been broken. 'Pouring blood' also suggests a substantial loss of blood.
The mens rea requirement is that the act must be committed both 'maliciously' and with 'intent'. 14 'Maliciously requires the defendant to have the intention to do the particular kind of harm that was in fact done. 15' In these circumstances, intention can be taken to mean the same as for the offence of murder16. When considering this scenario, it is necessary, in the application of the Woollin test17, where intention is unclear, to ask two questions: Was the death or grievous bodily harm a virtual certainty barring some unforeseen intervention? Did the defendant realise that?
It can be argued that Monica would have foreseen as a virtual certainty, that by hitting Ross over the head with a cast iron dish, she would cause him serious harm. As Monica has used the dish, it supports the argument that she maliciously intended to cause Ross grievous bodily harm. The defences of intoxication and self-defence may be available to Monica. The consumption of alcohol gives rise to the defence of intoxication18. If argued successfully, Monica may only be answerable to a lesser charge19. Successful use of a defence of self defence would lead to an acquittal but this is for the jury and no-one else to decide.
Self Defence is a common law defence which allows a defendant to: 'Use reasonable force to protect himself, others and to defend his property. ' It is also a statutory defence20 but there is no notable difference in the workings of this defence regardless of it's origin. Both the common law and statutory defence act in the same way and to the same requirements, in that the response to force must be necessary and proportionate. This was confirmed by the House of Lords21. This defence is available only within strict limits. The defendant must have acted in response to an imminent threat.
The defence will not be valid if there was a route of escape or retreat. It could be argued that Monica was merely protecting herself from the risk of further attack and not taking revenge22. It could be argued that she acted only to prevent another imminent threat further to Ross assaulting her23. This is, of course, a matter for the jury to decide. Another factor to take into consideration is that of a retaliatory nature. Simple retaliation cannot amount to self defence. Where an act has been for the sole purpose of protection, it must also be an act proportionate to the threat24.
'A person may use such force as is objectively reasonable in the circumstances as the defendant subjectively believes them to be. '25 Any act in response to force must be proportionate and balanced. For example, a push answered with a push. Any response that is not balanced may be argued to be excessive. It could be argued that striking a person about the head with a cast iron dish is not proportionately balanced to a mere push. It is strongly suggested that this viewpoint may be a popular one but it should not be guaranteed as this, again, is a matter for the jury to decide.
An unsuccessful conviction26 may lead to a different charge27. This was held to be allowed by the House of Lords28. A failure to convict under section 20 could lead to a charge under section 47. It is arguable as to whether Monica intended to hit Ross with the dish rather than her being reckless as to her actions. It is necessary to show that injury suffered, though not necessarily permanent, is more than trivial. It could be said that a head wound serious enough to leave a man unconscious is more than trivial, constituting serious harm, but this is yet another matter for the jury to decide.