Jonas was not murdered therefore his attacker has committed a non fatal offence which is dealt with in either the magistrates court or the crown court depending on the severity of the crime. Jonas’s attacker could be charged with a number of non fatal offences ranging from the lowest non fatal offences which are common assault and battery under the Criminal Justice Act 1988, to the higher offences assault causing actual bodily harm and grievous bodily harm under the Offence Against the Person Act (1861).
In order for the attacker to be charged within the criminal courts, the prosecution must prove the crime is ‘beyond reasonable doubt’ (Charman, 2010: 211). The jury must be certain the accused is responsible for the crime. If the attacker is guilty he will be sentenced by the judge, in order for the judge to rule a guilty verdict the crime must consist of two elements; the mens rea and the actus reus. The attacker must be found guilty of both in order to be sentenced. Jonas’s attacker could be charged with the following non fatal offences.
The attacker could be charged with common assault under the s39 of the Criminal Justice Act (1988), being a summary crime he would be trailed in the magistrates court. If found guilty he would receive a maximum of six months imprisonment and/or fine. For the attacker to be found guilty of the actus reus of assault ‘the defendant must intentionally or subjectively cause another person to fear immediate unlawful personal violence’ (Martin 2010:167). There are two elements to the actus reus of assault, the acts, words or both.
Jonas does not have to be psychically harmed by the attacker in order for his attacker to be found guilty, the victim must ‘fear immediate violence'(Currer, 2008:180). An example of where there has been no physical harm to the victim, however the act alone was enough to cause immediate fear can been seen in Smith v Chief Superintendent of Working Police Station(1983). The defendant frightened the victim by looking through her bedroom window late at night. The victim a policewoman was terrified, the Court of Appeal said: ‘[S]he did not know what the defendant was going to do next….. her state of mind was not only terror, which they did find, but terror of some immediate violence’ (Elliot, C & Quinn, F: 2005:142).
The defendant was found guilty. This shows the victim can feel real immediate fear with just actions alone, no touching is necessary. The second element is words alone can constitute an assault. The attacker did not have to physically act upon Jonas, words alone or even silence can be assault. An example of where they words alone caused the victim to fear immediate force is in R v Ireland(1997). The defendant made a series of silent telephone calls over three months to three different women. He was convicted under s.
47 Offences Against the Person Act (1861). He appealed contending that silence cannot amount to an assault and that psychiatric injury is not bodily harm. Lord Steyn states “he caused the victim to suffer psychiatric illness”(Molan:2005:224). The fear was immediate therefore if Jonas attacker used words to cause immediate fear he may be found guilty of assault. In order for the attacker to be found guilty of assault he must also be guilty of the mens rea. It is the intention to cause someone to fear that they would receive unwanted force or subjective recklessness know as Cunningham’s recklessness(1957).
Recklessness itself can been seen in R v Cunningham(1957). The defendant tore a gas meter from wall to attempt to steal money from it, gas seeped through the wall, where the victim was partially asphyxiated. He was charged under s 23 of the Offences Against the Person Act (1861) which provides ‘Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony….
‘(Dobson:2007:87)The trial judge directed the jury that malicious meant wicked. The jury convicted the defendant. Jonas’s attacker could also be charged with Battery by s39 of the Criminal Justice Act (1988) within the magistrates court. Battery as with assault is a summary offence, the attacker could face up to six months imprisonment and/or fine. The actus reus of battery is the application if unlawful force on another. An example of this can be seen in Fagan v Metropolitan Police Commissioner(1969) Fagan was parking his car when a police officer saw a spot in which he would like Fagan to park.
While directing Fagan, Fagan rans over the officer’s foot. The officer requested Fagan move the car, but Fagan refused and the car was shut off. Eventually Fagan started the car and moved off the officer’s foot. As a result of this incident, Fagan was charged and convicted, the justices agreed he ‘knowingly, provocatively and unnecessarily allowed the wheel to remain on the foot after the officer said, Get off, you are on my foot'(Molan:2005:221). Jonas does not have to prove injury or pain, Jonas could of had the slightest ‘direct’ application of force(Dobson:2007:83).
The attacker can also cause force indirectly and be found guilty, an example of this is in DDP v K(a minor) (1990). A 15 year old school boy took some acid from a science lesson. He placed it into a hot air hand drier in the boys’ toilets. Another pupil came into the toilet and used the hand drier. The nozzle was pointing upwards and acid was squirted into his face causing permanent scars. The defendant was charged under s. 47 the Offence Against the Person Act (1861). The mens rea is again, like assault the intent to cause someone unlawful force or recklessness either subjectively or objectively.
Jonas attacker could also be charged with Assault Causing Actual Bodily Harm (ABH), under Section 47 of Offence Against the Persons Act (1861). This is a crime requiring a particular outcome in order for the courts to decide the sentencing of Jonas attacker. This offence is triable either way, that is, in either the magistrates court or the crown court, depending on the seriousness of the injury. Section 47 of the Offences Against the Person Act (1861) states ‘Whoever shall be convicted on indictment or any assault occasioning actual bodily harm shall be liable to be imprisoned for any term not exceeding five years’ (Currer:2008:183).
There is a difficulty interpreting the meaning of actual bodily harm, “it is a ‘very wide’ term and covers injuries such as bruises, scratches and any other injury…… ,’any hurt or injury calculated to interfere with the health or comfort of the victim’. (Martin:2010:199). . Even thought the term assault is used it has been interpreted with either assault or battery, actual bodily harm must have caused them.
There does not have to be any actual bodily harm in order for Jonas’s attacker to be charged with ABH, Hobhouse LJ states “The word ‘actual’ indicates that the injury(although there is no need for it to be permanent) should not be so trivial as to be wholly significant”(Elliot, C & Quinn, F:2005:145). This can be seen in T v DPP(2003), the victim was chased by the defendant and lost consciousness following a kick on the head. On an appeal by way of case stated, the court ruled that a momentary loss of consciousness was sufficient to make out an assault occasioning actual bodily harm.
The attacker could also be found guilty of ABH by causing psychiatric injury to Jonas. Chan-Fook(1994) the court stated ‘ it also includes psychiatric injury, but not mere emotions such as fear distress or panic’ ( Currer:2008:183). An Example of a case where the defendant was charged of actual bodily harm by causing psychiatric injury is R v Miller(1954). The defendant had thrown her to the ground on three occasions and she was in a hysterical and nervous condition as a result of his actions. He was charged, Lynskey J stated “ if a person caused injury or hurt….
an injury to her state of mind…. that is within the definition of actual bodily harm. (Molan:2005:226). In order for the attacker to be charged of actual bodily harm the attacker must be convicted of both the actus reus and mens rea of actual bodily harm. The mens rea is similar to assault and battery with the exception of causation, no mens rea is required as to the causing of actual bodily harm. In Savage(1991) the case was heard in the House of Lords. The defendant threw a glass of beer at her victim, the glass slipped from the defendant’s hand and the victims hand was cut by the glass.
The defendant was found guilty, “the prosecution does not have to prove that the defendant intended or foresaw and bodily harm”(Dobson:2007:88). Jonas attacker could be charged with actual bodily harm, even if he did not intentionally set out to harm Jonas, causing it could be sufficient enough for the mens rea of the offence. Jona’s attacker could be charged with the most serious offence grievous bodily harm under the Offence Against the Persons Act of (1861).
There are two serious offences section 20 and section 18 the actus reus is almost identical, the main difference lies in the mens rea of the offence. The actus reus for s20 and s18 of the statute states “Whoever shall unlawfully and maliciously wound or inflict and grievous bodily harm upon any person, either with or without any weapon or instrument, shall be guilty of an offence… ”. This offence is triable either way, either in the magistrates court or the crown court, depending on the seriousness of the injuries. The attacker could face a five year sentence under s. 20 and a maximum of life under s18.
The term wounding has a wide meaning, in order for the attacker to be found guilty Jonas wound must be “an open wound, usually with blood loss”. (Currer:2008:184). If Jonas did not have a breakage of the skin, his attacker might not be charged. An example of a previous case can be seen in C(a minor) v Eisenhower (1984), a pellet gun was fired at the victim. The bullet ruptured blood vessels above his eye, causing his eye to fill with fluid. Lord Justice Robert Goff said the rupturing of blood vessels is an internal wound, only the breaking of whole skin would warrant a wounding charge.
Under s20 the attacker must have “inflicted really serious harm” (Currer:2008:184). The word inflict can also mean psychiatric injury on Jonas. The attacker could be charged “under s. 20 without any physical violence being applied to the victims body directly or indirectly”(Dobson:2007:20). This can be seen in R v Burstow (1997), the defendant made silent telephone calls, abusive telephone calls, he appeared at her house, took photos of her, distributed offensive cards to her neighbours and hate mail. As a result she suffered a severe depressive illness. He was convicted of maliciously inflicting grievous bodily harm.
In order for Jonas attacker to be charged under S18 the attacker must ’cause’ Jonas grievous bodily harm under the actus reus element of s. 18 however, after the above decision there seems to be little, if any difference between causing and inflicting it. In order for the attacker to be trailed under s. 20 of the Offence Against the Persons Act of 1861 he must be guilty of both the mens rea and the actus rea. In order for the courts to ensure Jona’s attacker is trailed under the correct section, it is important to the distinguish the level of intent of the mens rea.
The meaning of ‘maliciously’, must be determined. In R v Mowatt(1967) The defendant was convicted under s20 following an attack, during which he had hit the victims face and banged his head on the floor. The court of appeal stated, “there was no need to intend wounding or grievous bodily harm… but that is was enough to have foreseen that some physical harm to some person, albeit of a minor character, might result”. (Charman: ????????? 230). He had certainly foreseen the risk of such consequences, but it had not been proved that he had the specific intent required for the more serious offence.
In order for the attacker to be trailed under s. 18 of the Offences Against the Persons Act of (1861), we must find “the intention either to do some grievous bodily harm to the victim or to resist or prevent a lawful arrest of detention”. (Currer:2008:185). In order for Jona’s attacker to be charged with section 18 of the Offence Against the Persons Act (1861) it must be proved he had specific intent to do grievous bodily. In Belfon (1976) the defendant slashed his victim with a razor, causing severe wounds to his face and chest.
“ References to the defendant foreseeing that such harm was likely to result or that he had been reckless as to whether such harm would result, would be uinsuffiecent” (Currer:2008:185). Section 18 has the maximum sentencing of life imprisonment, therefore it is extremely important that Jonas attacker most certainly intended to cause Jonas grievous bodily harm. It has been shown, therefore that Jonas attacker, depending on the extent of his crime could face imprisonment from six months up to life, under the Offence Against the Persons Act (1861).
The Act is 152 years old, the non Fatal offences contained within it use archaic language and words of which modern understanding of them has changed since it was passed, such as assault and battery. The structure of the offences can also be criticised. There is no statutory definition of assault or battery and there are no clear boundaries between the offences which Jonas attacker could have committed. Similarly there is no clear boundary between ABH and GBH it is for the jury to decide what amounts to really serious harm and different juries will differ in their opinions.
Non-fatal offences is an area of the law that has attracted much criticism and it is unanimously accepted that it is in need of reform. This could avoid absurd decisions within the courtroom, endless appeals and unjustified sentencing. In order for both Jonas and his attacker to have a fair trail, changes are necessary. Bibliography Currer J, et all, AQA Law, London, Nelson Thornes Ltd, 2008 Elliot, C & Quinn, F, English Legal system, London, Pearson education limited, 2005 Martin, J, AQA Law, Abington, Hodder Education, 2010 Molan, M Cases & Materials on Criminal Law, 3rd Ed, Cavendish Publishing, 2005.