Bodily Harm Defence Criminal Law Research Paper

It would be advisable for Adam to consider what defences of Criminal Law are available for him to use, in order to appeal for his conviction. When looking into the case of Adam, one comes to understand that he is in a very difficult position in regards to his liability, hence his conviction. Adam will have to justify his conduct as a result of the wounds inflicted upon Eve as a consequence of his Actus Reus. Adam has committed what one would automatically refer to as actual bodily harm.

Therefore we understand that a definite act has been committed, one which was unintentional, that could be described as criminal, which would; according to section 20 of the offences Against Persons Act 18611, incriminate him and make him guilty of a misdemeanour. If Adam were to Appeal against his conviction, one would advise him to consider, and place more emphasis on the importance of his Mens Rea at the time the offence was committed.

One can glean from the case that Adam's intention was not in total correlation to his Actus Reus; henceforth he cannot be guilty of grievous bodily harm. This is according to section 182 of the 1861 act as mentioned above, which provides that for the offence of wounding or causing grievous bodily harm, the defendant must act with "intent" to cause grievous bodily harm. This therefore contradicts what the trial judge mentioned about Adam's intentions and how they do not in any way alter his legal position, as Adam's intent was to frighten and not to cause any actual bodily harm.

The issue of intent is reinforced in the case of Wilson v Pringle3, in which judge Croou-Johnson maintains "in our view the conclusion that in battery there must be an intentional touching, in one form or another of the Plaintiff to the defendant". Lord Diplock on the other hand maintains a contrary view, in that he believes that we are responsible for our own intentions, even if they are unintentional. In the case of Miller he emphasised the fact that "There can be no good reason why he should not be guilty of arson.

" This argument would therefore put Adam in a difficult position legally as it totally disregards his intent, which is his main reason for appeal. Adam could consider claiming that he was acting negligently. The Criminal Law book "texts and materials" describes a person as negligent when "he fails to exercise such care, skill or foresight as a reasonable man in his situation would exercise". This describes the position of Adam in one light.

The case of Fletcher (1998) placed emphasis on involuntary acts and provided that if something was to get into the way of, or if it were to influence the possible outcome of a certain action the ensuing consequence of the act would be involuntary. In relation to Adam's position, one could advise him to claim that his act was involuntary in the sense that he could not control the subsequent action of the brick, or the victim when the brick was thrown, and was suspended in mid air.

Adam could claim that after throwing the brick he could not stop the action of the brick, especially if the victim decided to make a swift movement towards the brick that would make the risk of being hit and wounded more probable. Adam's intention was to frighten Eve therefore according to the concept of assault and or battery he is criminally liable for frightening her, because assault is when one puts another into a state of fear. This is seen in Constanza (1997), even a few simple words can amount to assault.

However one assumes that the "reasonable man" would not just throw a brick at another human being, as this act is not regarded as reasonable force and could cause harm. However the question presented here is why the reasonable man would throw a brick at another person. Therefore one has to consider and or examine, the reasoning behind Adam throwing the brick. On one hand, one has to bear in mind that Adam may have had the intent to cause actual bodily harm as the trial judge indicated, however he may have been impelled to act as he did, due to fear of either death or serious injury against himself or his family.

In this instance it would be advisable for Adam to claim self-defence, which would make the burden of proof rest on the prosecution, therefore consequently encouraging the judge to direct the jury to consider the defence. Adam could also be advised to claim duress of circumstance (as shown in Willer4 and or Conway5, especially if there was a threat to his life; that is if that is the reason behind the Actus Reus as Adam could also have been in the same situation as Bird (1985).

The Authority of the Shimmen (1986)6, which stands as the Caldwell loophole, could also pose as a suitable authority with which Adam can use as a defence for throwing the brick. Shimmen made a miscalculation and therefore caused criminal damage, henceforth Adam can claim that he miscalculated the way in which he would throw the brick in order to frighten Eve. However we must remember that Caldwell recklessness is an authority used for criminal damage whilst Cunningham recklessness can be applied to wounding.