There are six identifiable offences and resultant offences committed in this problem and I will deal with each in chronological order. The first is that of battery committed by Ross on Monica, namely a push. The actus reus of battery is the intentional infliction of force upon another. This can range from a head butt to a kiss, outlining where the use of the word 'force' can mislead. Generally it is said that D must have done some act and that it is not enough that he stood still and obstructed P's passage like an inanimate object, a ruling taken from Innes v Wylie1.
There is however the issue of consent arising from normal contact in everyday life, this was dealt with in the ruling of Collins v Wilcock2, 'Generally speaking, consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact.
So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is (within reason slapped). Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life.
' However if we also consider that a WPC placing a hand on a woman's shoulder in Collins v Wilcock, was classed as a battery, it would be logical to assume that Ross' push comes under this heading too. This moves me to the mens rea of the offence. Battery shares the same mens rea as assault when taken from the Cunnigham3 and subjective perspectives, these being intentionally or recklessly causing the victim to apprehend force.
Both are present in Ross' case, as he did intend to push Monica due to his resent for her telling him what to do and recklessness in that he should have foreseen the push constituting an application of violence. As this was a primary act there is little hope that Russ could use self-defence as there was no necessity in the situation, furthermore there was no consent from Monica either. Finally is there a defence of 'intoxication', as the problem states, 'All goes well, although a lot of alcohol is consumed…
The simple answer to this is no. Assault and Battery are classified as offences of 'basic intent' so that it is no defence that D had no mens rea because of voluntary intoxication. Now to the problem of Monica responding by 'hitting Ross with a cast iron serving dish she has in her hand', we are also informed that 'Ross falls to the floor with blood pouring from his head and slips into unconsciousness'. For the answer to this, one needs to look at offences classed under s. 20 OAPA and s. 18 OAPA.
The actus reus under these offences can either be wounding or causing/inflicting grievous bodily harm. 'Wounding' is classified as the breaking of the continuity of the skin however more than a scratch (which would probably be dealt with under battery). Broken limbs, where the skin is not broken, are not classified as wounds. They do however come under GBH defined in DPP v Smith4 as 'really serious harm'. This is completely different from an 'interference with health and comfort', a test for ABH.
In Ross' case we have the existence of both as we are told that blood gushes from a wound to his head and the fact that he falls unconscious is sufficient to indicate some form of internal damage/shock. The question now however is which section Monica falls under and this is determined by the mens rea of her act. s. 20 OAPA applies to 'Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm… ', s. 18 OAPA applies to 'Whosoever shall unlawfully and maliciously… wound or cause any grievous bodily harm… with intent to do some grievous bodily harm…
Breaking these down into simpler terms, for s. 20, it must be proved that the defendant intended or risked harm, in Savage5 it was stated that 'The defendant must at least of foreseen some harm – albeit not serious harm. ' For s. 18 however it must be shown that there was an ulterior intent, not only must the defendant cause GBH, he must do so with the intention of causing it in the first place. As was demonstrated in Belfon6 mere foresight of injury is not enough, there must be a specific intention to cause really serious injury.
This is why s. 18 carries a possible sentence of life as opposed to five years. Now if we apply all this to Monica's case the simple fact that she retaliated 'instinctively' would lead me to opt for s. 20, however this would be a case for the jury to decide on. The question one is now faced with is that of defences open to Monica. The defence of intoxication is open to crimes requiring 'specific intent' whether the drink was taken voluntarily (as is the case here) or involuntarily. The principles do not apply where the defendant is charged with a crime not requiring specific intent and the drink was taken voluntarily.
In DPP v Majewski7 the House of Lords confirmed the rule, unclearly sated in Beard8, that evidence of self-induced intoxication negativing mens rea is a defence to a charge of a crime requiring a specific intent but not to a charge of any other crime. This leads me to the question of self-defence must be asked. As it is stated, Ross pushed Monica first. Indeed in English Law there is no general duty to retreat but was Monica's reaction proportional to the threat she perceived from Ross and would the reasonable person have acted in the same way?
Of course these are all questions for the jury again, however one can identify possible excessive force. The fact that she hit Ross with a cast iron serving dish, an implement of quite some weight, could reasonably compare to the '4th shot' as seen in the verdict of Clegg9. This again is a question for the jury, Monica may claim that she thought Ross was going to follow up on his earlier attack, but alas I do not want to embellish too much on the information given to me. The next legal problem is that of the events that took place between Joey and Phoebe when in their bedroom. It is stated,
'Meanwhile, next door, Joey and Phoebe are in bed arguing. Joey tries to calm the situation by becoming romantic. Phoebe shoves him away, but Joey persists and has sexual intercourse with her despite her protests. ' Prima facie there has been a possible offence of rape committed, however the elements of the crime must be explored. This will be made considerably easier for the courts with the passing of the new Sexual Offences Bill published by the House of Lords on 29th January 2003. It clarifies what amounts to a rape in any circumstance, an area exploited by certain lawyers over the years.