Criminal law problem question

a) Aswina threw a dish at Celia breaking one of her teeth. The most likely charge here would be assault occasioning actual bodily harm (ABH), under S47 Offences Against the Person Act 1861 (OAPA). ABH is a triable either way offence that could be tried in either the magistrates or Crown court. It carries a maximum punishment of 5 years in prison. The actus reus is either that the defendant committed the actus reus of assault or battery and that the assault or battery caused actual bodily harm. Assault is a common law offence, the actus reus of which is causing the victim to fear unlawful force.

Therefore, if Moby saw the fist coming and thought he would be hit the actus reus would be satisfied for assault. Even if he did not see it coming the actus reus of battery (also common law) would appear to be satisfied i. e. the application of unlawful force. For battery there is no need to prove harm or pain. In this case Moby struck Cyril on the head and therefore harm which means he is likely to be charged with the more serious statutory crime of ABH. In Miler (1954) the definition of ABH includes ‘hurt or injury calculated to interfere with health or comfort’ which in this case refers to this present case.

The mens rea for ABH is an intention or subjective recklessness (judged by the defendant rather than the reasonable man) to cause assault or battery. Note that it is not necessary for any mens rea to be required for the harm aspect of ABH. This can be illustrated in Savage & Parmenter (1991). The defendant was in a pub and saw her husband’s new girlfriend. She only intended to throw beer over her but the glass flew out of her hand and cut the girl. She claimed she lacked the mens rea for ABH as she only intended to throw the beer.

However, the court held that it was only necessary for her to have the mens rea for assault or battery and if harm resulted that would suffice for proof of ABH. It would appear therefore that Aswina has the actus reus and mens rea for ABH. However, she may be able to raise the defence of intoxication through alcohol. The success of such a defence however depends whether the intoxication was voluntary or involuntary. In both cases the court would firstly consider whether the intoxication took away the mens rea. In Kingston (1994) the defendant was attracted to young boys but controlled it.

His friends spiked his drinks and set him up with a young boy to blackmail him. Kingston indecently assaulted the boy but at his trial stated that although he intended to do it he would not have done it had he not been drunk. The House of Lords however, upheld his conviction and refused his defence as he had intent and drunken intent was still intent and therefore he had the mens rea. In Aswina’s case she would be claiming involuntary intoxication and therefore has the evidential burden which means she must bring in some evidence of the involuntary intoxication and its effect on her mens rea.

The legal burden then passes to the prosecution to disprove her claim beyond reasonable doubt. Involuntary intoxication, if successful, is a complete defence to all crimes and can be incurred in one of three ways: -unforeseen side effects of prescribed drugs -sedative drugs which have unexpected effect -laced/spiked drinks Aswina is likely to claim that her drink was laced with alcohol. For this defence to be successful however, she must be totally unaware that she was drinking alcohol. As Aswina had not tasted alcohol before it would appear she would have a complete defence provided the court accepts it took away her mens rea.

Brian was afraid that Dilip might harm Celia and has swung a punch at Dilip but missed and hit Celia instead. As there is no mention of harm, the charge is likely to be battery. Battery is a common law, summary only offence which would be tried in the magistrates court and is punishable with a maximum of 6 months in prison and/or a fine. The actus reus is the application of unlawful force with no need to prove harm or pain. The mens rea is an intent or subjective recklessness as to the application of unlawful force. Brian appears to satisfy both elements. He cannot escape liability by claiming that he had no mens rea for the battery to Celia.

This would be under the concept of transferred malice where as long as a person has the intent or recklessness to apply unlawful force to one person it would be transferred to the actual victim. Brian has the actus reus and mens rea for Dilip which would then be transferred to Celia. For example, in R v Latimer (1886) the defendant aimed a blow at someone with a belt but hit another. The court held that Latimer was liable for maliciously wounding the unexpected victim and therefore the mens rea was transferred. Brian may however have a defence, namely defence of another under S3 Criminal Law Act 1969.

(or also the common law private defence of self defence which has now been embodied in Statute (s76 Criminal Justice and Immigration Act 2008) which says a person can use force which is reasonable in the circs as the person believed them to be) This defence is a general defence and Brian would have the evidential burden. To apply, there must have been an imminent threat perceived and the force used must have been reasonable. Even if the defendant was mistaken the defence would still be available provided it was an honest mistake. In R v Williams (Gladstone) (1987) a man saw a youth rob a woman and grabbed him.

The defendant arrived and tried to help the youth who he mistakenly believed was being attacked. The court held that the defendant had an honest belief that the youth needed help and therefore could use the defence despite the mistake. It would appear therefore that Brian is likely to succeed with this defence provided the court finds the mistake honest and only reasonable force was used. Celia has smashed a plate, severely injuring Aswina. This indicates more serious harm than ABH and therefore the charge is likely to be S20 OAPA or even S18 although the latter is unlikely.

S20 is more commonly known as grievous bodily harm (GBH) which is a triable either way offence punishable with a maximum of 5 years. The actus reus is either the infliction of GBH or malicious wounding. In DPP v Smith (1961) the House of Lords stated that GBH means ‘really serious harm’. Wounding has been defined as a breaking of the skin. Severely cutting a person’s head appears therefore to satisfy the actus reus of S20. The mens rea is an intent or subjective recklessness to cause harm. Note that it is only necessary to have the mens rea to cause harm rather than to cause serious harm as per R v Mowatt (1967).

Therefore, provided the prosecution can prove Celia intended or was reckless as to inflicting harm on Aswina the mens rea would be satisfied. There is also the slim possibility that Celia be charged with S18 which is an indictable offence triable in the Crown Court and which carried a maximum of life. The actus reus is the same as S20 whereas the mens rea is satisfied only by proving intent to cause GBH. In reality, considering the extent of the injury it is unlikely that S18 would be used. Celia may have a possible defence, namely voluntary intoxication.

She cannot claim involuntary intoxication as she recognised the taste of alcohol. However, to be successful it must take away the mens rea as per Kingston (1994). The evidential burden would lie with Celia and it must be pointed out that unlike involuntary intoxication it is only a partial defence. In Majewski (1977) the defendant went on a 24 hour drinking binge and caused damage and attacked police. He claimed he was so intoxicated that he lacked the mens rea. The court held that he was voluntarily intoxicated and therefore could only use this as a partial defence and further could only use it for crimes of specific intent.

As he was charged with crimes of basic intent, voluntary intoxication did not apply and therefore he had no defence. Specific intent crimes are those that can only be proved by intent, for example, S18. Basic intent crimes are those that can be proved by intent or recklessness, for example, S20. Celia is likely to be charged with S20 which is a basic intent crime and therefore she could not use voluntary intoxication as a defence. If she is charged with S18 she could claim voluntary intoxication but it would only serve to reduce the charge to S20. In Lipman (1970) Lipman took a drug which caused hallucinations.

He thought he was being attacked and in attempting to defend himself murdered his girlfriend. In his defence, Lipman claimed that he did not know what he was doing as he was under the influence of the drugs. The court held that the drugs took away his intent in relation to the murder charge, a specific intent crime. It did not however, provide a defence to a charge of manslaughter which is a crime of basic intent. He was therefore convicted of manslaughter. Dilip has chased Celia who has fallen in the pond. He did not touch her and there is no mention of harm. On these facts he is likely to be charged with assault.

The actus reus is to cause another to fear unlawful force and the mens rea an intent or subjective recklessness. It would appear that Dilip has both the actus reus and mens rea of assault and does not have a viable defence. b) Critically consider the role of the Crown Prosecution Service within the criminal justice system. The Crown Prosecution Service (CPS) was set up in 1986 with the four main functions of: -providing advice to the police relating to possible prosecutions; -undertaking a review of prosecutions commenced by police; -preparation of cases for criminal courts and – prosecuting cases in the magistrates and crown courts.

Prior to the Prosecution of Offences Act 1985 the police dealt with the prosecution of offenders. As far back as 1970 the pressure group Justice claimed it was not in the interests of justice that one body investigate and prosecute. They felt it prevented the prosecution process being independent and impartial. The police were too concerned with winning and losing, whereas the aim of the prosecution process should be the truth. There was the very real danger that the police might withhold evidence which could lead to miscarriages of justice.

This is what happened in Judith Ward’s Case in 1974. At her appeal it was discovered that the police had withheld over 5,000 items of evidence which would have pointed to her innocence. In 1981 the government set up a Royal Commission on Criminal Procedure (RCCP) to investigate the process. They too felt there should be an independent prosecuting body. Their report found that the pre 1986 system lacked uniformity, with each of the 43 police force areas having their own rules for deciding whether and how to prosecute. This led to unfair and inconsistent decisions across the UK.

Generally, the system was inefficient, with inadequately prepared cases leading to acquittals which waste both time and money. There was no accountability or control over the system. Following their report the CPS was set up. Originally there were 31 CPS offices dealing with 43 police force areas. This seemed a strange move as it meant there were some offices dealing with more than one police force which often caused confusion. It also went against the RCCP’s report for a regional CPS. The CPS is headed by the Director of Public Prosecutions (DPP), currently,Keir Starmer who is answerable to the Attorney-General, currently Baroness Patricia Scotland.

The CPS review cases passed to them by the police. They do not get to see all the cases, the police still have the initial decision whether to prosecute or caution. This raises the question of whether the CPS have ever been fully independent of the police and whether it would be possible to have a completely independent prosecution service. In a drive to increase efficiency, since 2003 the charge is decided by the CPS rather than the police.

The CPS will look at all the evidence available and assess what charge the evidence will support. The new threshold test will be applied in which the CPS consider whether there is at least a reasonable suspicion that the suspect has committed an offence and if there is, is it in the public interest to charge. The aim is that this will lead to less cases being dismissed for lack of evidence by the court. Once the decision to charge has been made the CPS must decide whether to proceed with the actual prosecution. The DPP has set out a Code for Crown Prosecutors which consists of two tests that must be followed in every case.

The aim of this is to filter out weak cases to improve efficiency and consistency across the UK in the decision to prosecute. The case must pass both tests to continue. Firstly, is there enough evidence to provide a ‘realistic prospect of conviction’? If not the case will be dropped. If there is enough evidence the second question is asked – ‘is the prosecution needed in the public interest? ’ A prosecution is likely to be needed if a weapon was used or violence threatened but may fail if a very trivial first offence or if the defendant is elderly or infirm.

If the case passes the two tests the case will be presented in the magistrates court where the CPS lawyers have full rights of audience. If the case is to proceed to the Crown Court then the CPS lawyer will instruct a barrister. The Access to Justice Act 1999 has widened the scope for CPS lawyers to present cases in the Crown Court. The ideology behind the CPS was and is sound, with the Code to improve consistency and efficiency. However, it suffered from the start and continues to do so. When the CPS was set up the cost was underestimated.

This meant salaries offered were low compared with private practice and therefore attracted the poorer lawyers. The knock on effect of this was twofold. Firstly, they gained a reputation for incompetence and delay and secondly, there was low morale within the service. When surveyed most CPS employees said it was the ‘worst place’ they had ever worked. In addition the relations between CPS and police were strained. The police resented the new service and felt they put too many demands on them in terms of paperwork. By far the biggest criticism of the CPS from both police and public was and is that they discontinue too many cases.

Glidewell felt that many cases were dropped as the CPS did not have the manpower to deal with all the cases, surely not a good reason. This was also linked to the fact that there were too many admin workers and not enough lawyers. Another worrying criticism was that Sir Iain suspected there was too much in the way of “inappropriate downgrading” of charges where suspects charges are lowered in return for guilty pleas. Again this appears motivated by economics rather than justice. Although the CPS may be separate from the police, Glidewell felt they failed to improve upon the police in term of effectiveness and efficiency.

He finished his report by saying that “Our assessment of the CPS is that it has the potential to become a lively, successful and esteemed part of the criminal justice system, but that, sadly, none of these objectives applied to the service as a whole at present. The report went on to look at the organisation of the CPS. The move from 31 to 13 offices was felt to be a mistake as there was too much power in London and confusion as to which office dealt with which police force. As a result of this report several changes have been made which should improve the CPS.

Firstly, there are now 42 CPS offices, one for each police force area. This should help improve efficiency. Criminal Justice Units have also been set up and will improve co-operation between police and CPS. CPS lawyers will now be based full-time at police stations to advise police on successfully taking cases to court. This will work in conjunction with the new fast track system of justice called the Narey system. Under this system lay prosecutors who have been specially trained will review and present straightforward guilty pleas in the magistrates court.

This will free up the CPS lawyers to deal with the more complex cases. All prosecutors will work more closely with police and see files in advance. This should ensure better preparation and mean less files going missing. Although it does bring into question whether the CPS provide the can be seen as independent from the police. Another major change is to the CPS lawyers rights of audience. Under the Access to Justice Act 1999 more CPS lawyers will have the right to present cases in the Crown Court. This will cut costs, as a private barrister will not be needed.

There was also the change outlined earlier, in which the decision to charge move form the police to the CPS. This should have an impact on several of the criticisms of the CPS, getting the charge right should mean less cases are discontinued and lead to greater consistency. In 2008, the former DPP Ken Macdonald stated: “ Having CPS lawyers as the gatekeepers of the courts has improved standards of cases brought to trial: in the past five years, discontinued cases have dropped from 37 to 13 per cent and guilty pleas risen by 30 per cent.

” One of the other problems identified by Glidewell was that the issue of low morale should be addressed. The CPS has been given a cash boost and salaries have increased. This will help boost morale. All of the above changes should improve the efficiency of the CPS. However, independence and impartiality are likely to suffer. As a former Attorney-General, Sir Nicholas Lyell, commented “the CPS and police will have to work extremely closely. ”