Ultimately Miles develops a severe depressive illness, thus psychiatric harm. This is regarded as quite serious harm as the facts tell us that his psychiatrist is not sure 'when if ever he will recover'. In the process of escaping Miles also suffers nervous shock and twists his ankle, both moderate injuries. From this we can state that it may be possible to charge Reena with an offence of aggravated assaults under section 47 of the Offences Against the Persons Act (1861). This crime is not limited to an assault in its strictest sense but includes a battery as well.
From the facts there is no suggestion that Miles or anyone else in the club was threatened with any kind of unlawful attack therefore it would rule out any charges involving assault. The Actus Reus of an assault is to cause the victim to apprehend application of unlawful force. In this case Miles fears an attack of fire not of any personal attack thus Reena's conduct cannot be one of an assault. As the House of Lords made it clear in Ireland, an assault involves a perceived threat of immediate and unlawful violence, not just conduct that upsets or frightens the victim. The second offence under s.
47 is that of a battery resulting in actual bodily harm. It was decided in Miller by Lynskey J that ABH meant any hurt or injury that interfered with the health or comfort of the victim. The injuries caused would constitute as ABH. The Court of Appeal decided in Chan-fook that 'harm' was a synonym for 'injury' thus meant the same and 'actual' indicated that the injury need not be permanent but not so trivial as to be wholly significant. It was also decided that 'bodily harm' was not limited to the skin, flesh or bones but included parts such as the organs, brain and nervous system.
It was also held that ABH included psychiatric harm as well except that of panic or any hysterical or nervous condition. The HL in Ireland; Burstow confirmed these decisions. From this precedent it can be concluded that only the twisted ankle and the depressive illness suffered would suffice as ABH not the nervous shock. This would only be possible if the Actus Reus of a battery as already discussed can be proven. From the facts it is clear that there is no application of unlawful force to the body of Miles, direct or indirect.
Thus her conduct would not constitute as an indirect battery either therefore she cannot be charged with any offence under s. 47. The only other charge that may be bought upon her is that of unlawfully inflicting 'grievous bodily harm'. A severe depressive illness would be regarded as quite serious harm thus GBH. It was decided in Ireland; Burstow that the application of force is not required in order to 'inflict' harm. As a result of this decision, any act which causes serious bodily harm constitutes as inflicting such harm.
Given this very wide meaning now attributed to 'inflicting' it is possible to argue that Reena inflicted Miles' severe depressive illness. It would be no defence for Reena to say that she was unaware of Miles' previous injury in a fire due to the notion of taking your victim 'as you find them'. The Mens Rea requirement is much less than that of s. 18 although it comprises of the word 'maliciously'. In other words the prosecution would only have to prove that the accused intended some unlawful bodily harm or that they foresaw the risk that some unlawful bodily harm may occur to anyone.
There is clearly nothing to suggest that Reena intended to cause anyone any injury thus ruling out any charges under section 18 and the Mens Rea of intent. Reena here sets off a smoke canister. In an ordinary setting this may cause a person to panic and try to escape thus causing similar injuries as Miles. However it is important to note that this was done in a club where there already is smoke from cigarettes and other set off canisters thus it seems unlikely that she could have foreseen anything of the kind. This is a fact for the jury to decide, as there is not enough information to answer it.
It is not as if Reena barred the exits or turned out the lights in contrast to the case of Martin who did both. In conclusion it is unlikely that Reena will face any conviction in respect to the harm suffered by Miles. The facts do not tell us that Reena suffered any sort of harm or injury they only describe the conduct of Eric therefore it may not be possible to convict him on any grounds. However for the matter of discussion the only thing that Eric may be liable for is that of an assault but only if it is proven that Reena felt threatened in any way by his conduct.
Fagan v Metropolitan Police Commissioner clearly establishes that a mere omission to cause such apprehension would not suffice for liability. However the act in question is that of calling Reena and threatening her as well as drawing the fingers across the accused's throat. We are not told in the facts exactly what Eric to Reena says only that he threatens her, provided that she apprehends an immediate, unlawful attack then this act will suffice for an assault as the leading case of Ireland; Burstow provides that an assault can be committed by words alone.
In respect of Eric's second conduct although he is on a completely different platform opposite to the victim and the fact that there is a train dividing the space between them is irrelevant. Eric can still be convicted following on from the case of Smith, where there was a whole glass window separating the victim from the accused so long as Reena apprehends an immediate attack by Eric.
The case of Constanza especially demonstrates how the courts have stretched the term 'immediate' to mean an apprehension of force sometime in the near future thus making certain changes in the requirement of the apprehension on immediate force. In Ireland this term is stretched even further to allow an assault if the victim feared any 'possible' immediate force. Immediacy in itself originally meant without delay however these cases demonstrate how the nature of the word has been changed to be imminent, meaning liable to happen soon.
It can be found that there is a clear direct intent to make Reena feel threatened given the fact that he is Miles partner and that it was her conduct that led to the developing of the illness. It would clearly be a way of stating that he has not forgiven her for her previous conduct and would want to see her suffer also. If Eric's conduct causes Reena to apprehend any application of unlawful force then he can be convicted on the basis that he satisfies the Mens Rea of intentionally or recklessly causing her to feel as such.