Determining any criminal liability

In determining any criminal liability that may be placed on Jim or Bertrand as a result of their actions, The most relevant area of law in this scenario is that of 'non-fatal offences against the person'. The majority of these offences are contained in the Offences against the Person Act 18611, which was passed in order to classify crimes such as 'Actual Bodily Harm', and 'Grievous Bodily Harm' as well as many others. It has created much confusion on the subject and gained much criticism over the years, and has been described as "…

a rag-bag of offences brought together from a wide variety of sources with no attempt, as the draftsman frankly acknowledged, to introduce consistency as to substance or as to form"2. Jim has knocked Fiona's bag from her hand whilst he was in a hurry to catch up with Phillip. To be deemed liable for this, certain factors need discussion. The only likely crime that Jim could be charged with due to this action is a battery, generally known as in conjunction with assault as 'common assault' and is explained by common law rules, with the sentencing being set out in the Criminal Justice Act 1988 S. 39.

The commonly accepted definition of Battery is where 'the accused intentionally or subjectively recklessly applies unlawful force to another' could be liable for the offence, and as the Act tells us3 triable by summary procedure with the Maximum sentence being 6 months imprisonment, or/and a fine 'not exceeding level 5 on the standard scale'. The Mens Rea of battery is 'intention or subjective recklessness'. The Actus reus of Battery therefore is the 'infliction of unlawful personal force'4. In this scenario then we need to ask the question of whether Jim has inflicted unlawful force to Fiona.

Some relevant cases that help us predict any criminal liability for Jim are that of Collins v Wilcock5 which tells us that "… any touching of another person, however slight, may amount to a battery"6. Therefore the amount of force applied is irrelevant in searching for liability for a battery. Other relevant factors are that in R v Thomas7 which tells us that the touching of clothes can amount to battery and Day8 where the slashing of clothes was enough for the offence, despite neither of these cases the defendant actually touching the victims 'person'.

Also, the force need not be direct, in Martin9 the defendant locked shut the exit to a theatre with a metal bar, turned off the lights and shouted "fire" was convicted on a s. 20 offence (which required an actual assault/battery at the time). In K (a minor)10 a schoolboy placed acid in an upturned hand dyer which was sprayed into the face of the next user amounted to an assault/battery. On these authorities, it seems that by knocking Fiona's bag out of her hand a battery may have occurred, made more likely by applying the principle in Thomas11 from the touching of clothes to the touching of a bag.

Nevertheless it seems unlikely that any 'unlawful' force for the purposes of the offence has been applied. This will be because of the issue with battery concerning implied consent, which if found will simply make the force in question lawful. This covers every day situations, Lord Goff tells us in Wilcock12 "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" and his most relevant comment for the purposes of this scenario "…

so nobody can complain of the jostling which is inevitable from his presence in… An underground station". This should suggest to us that Jim is unlikely to have any responsibility for his actions towards Fiona because of the likelihood of implied consent. However, Jim was rushing at the time thus not acting in a normal way then perhaps this type of action cannot be impliedly consented to.

The second type of offence that may have occurred is that of a technical assault by Jim chasing Philip through the station, the accepted definition of which is 'the accused intentionally or subjectively recklessly causes another to apprehend immediate force to his person'. Therefore Jim would have the relevant actus reus for a technical assault if he caused Philip to apprehend that immediate force was about to be used against him (Logdon13 and Lamb14), with the mens rea element being the same as discussed earlier with regards to battery.

Any possible liability owed by Jim for his next set of actions concerning the Bruising he caused to Phillips arm and shoulder will be concerned with Jim 'hitting him'. An assault/battery charge seems most likely (as discussed above) because of the court's reluctance to categorise such injuries within the S47 spectrum, due to it carrying a maximum of 5 years imprisonment, as opposed to the 6 months carried by assault/battery. In order to predict any responsibility for this harm the CPS joint-charging standards would be of use in categorising this offence.

They tell us that any "extensive or multiple bruising" will be enough to amount to a section 47 offence of the offences against the person Act 1861, 'Actual bodily harm' (ABH). The actus reus of this is an assault or battery (such as discussed earlier) that occasioned the victim actual bodily harm. This type of harm was originally defined as "any hurt or injury calculated to interfere with the health or comfort of the victim"15. For Jim to be convicted of a S47 offence the mens rea elements as discussed earlier need be proved.

Accordingly the requisite mens rea would be that Jim intended or was subjectively reckless as to whether or not he might threaten or touch Philip. Jim will not need to have foreseen or intended to cause actual bodily harm to Philip (R v Savage and R v Parmenter16). In light of the joint charging standards it may seem unlikely that Jim has committed ABH, mainly because bruising must be 'extensive or multiple' to satisfy this category, although these facts suggest minor bruising, which fits more easily into the assault/battery category.