January 2013 Application Questions

Vlad was driving his car, which was fitted with foreign registration plates. He was lost and drove down a dead-end road, when he noticed Wayne. As Vlad started to get out of his car to ask directions, Wayne ran towards the car shouting “We don’t want your sort here!” Wayne then tried to slam the car door shut and, in doing so, crushed Vlad’s fingers. Vlad then drove off, turned the car round and then accelerated hard towards Wayne who was still standing in the road. Frightened, Wayne jumped out of the way, just as Vlad swerved to avoid him. Wayne did not suffer any injury Later, Vlad went to hospital where X-rays showed that he had three badly broken fingers. As a result, Vlad now has a permanent disability

Discuss the criminal liability of Vlad for the injuries suffered by Vlad - S.20 OAPA – Wounding or Grievous Bodily Harm Identify: Wayne may be liable for inflicting Grievous Bodily Harm (GBH) to Carl Define: GBH is from S.20 Offences Against the Persons Act 1861 and is defined as to “Unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument” Explain: The first element of S.20 OAPA is that there must be an unlawful wounding or unlawful infliction of GBH. In this case we would be looking at GBH. GBH is defined in Saunders as serious harm. The infliction of GBH must also be unlawful which will usually mean without consent or lawful excuse. Apply: We are told that Vlad has three badly broken fingers and now has a permanent injury which is clearly serious harm. There is also no consent from Vlad and no lawful excuse for the infliction of GBH, therefore this part of the AR is satisfied. E – The MR for S.20 is that the wounding or GBH must be done maliciously. In Cunningham it was held that maliciously means D must intend to inflict the harm or be subjectively reckless as to whether such harm will occur, which was confirmed in Savage. In Mowatt it was established that D only needs MR for some harm, not serious harm. A – it may be difficult to show that Wayne had direct intent for any harm as his words “we don’t want your sort here!” followed by the slamming of the car door may show that his intent was to not talk to Vlad. However, he must have been aware that to slam a car door shut as someone is getting out would carry a risk of at least some harm and he clearly took that risk anyway, so would be at least subjectively reckless and therefore have the MR for S.20 GBH

Discuss the criminal liability of Vlad for the incident when he drove the car at Wayne - Assault Identify: Vlad could be liable for the offence of assault Define: Assault is a common law offence although it is recognised in S.39 Criminal Justice Act as a summary offence. Assault was defined in Ireland as when D intentionally or recklessly causes the victim to apprehend immediate and unlawful violence Explain: We first need to establish that there has been an act which can be actions, gestures, words or silence Apply: In this case Vlad’s act was to drive his car towards Wayne E – we then need to consider whether this act caused Wayne to apprehend immediate unlawful violence. Considering apprehension first, Wayne does not need to fear unlawful violence only to apprehend which means an expectation or anticipation. A –we are told that Wayne was “frightened” and “jumped out of the way” so was clearly apprehending unlawful violence caused by Vlad driving his car towards him E – We then need to establish whether the violence that Wayne apprehended was immediate. This has been given a wide interpretation under Smith v Chief Superintendent of Woking Police Station and immediate does not need to be instantaneous A – As Vlad was “accelerated hard” towards Wayne who felt the need to “jump out of the way” clearly Wayne was apprehending immediate violence E – Next we must establish that the violence that Wayne apprehended was unlawful violence A – the violence Wayne was apprehending was being hit by a car which was intentionally accelerated towards him, which is clearly unlawful violence E – The mens rea for assault is intention or recklessness to cause the victim to apprehend unlawful and immediate violence (Savage) A – By “accelerating hard” towards Wayne who was stood in the road (and therefore presumably visible to Vlad) we can assume that Vlad must have intended to make Wayne apprehend the unlawful violence of Vlad driving into him. It is not important that Vlad clearly did not intend to drive into him as seen by the fact that he swerved to avoid hitting him. C- It would appear that Vlad would be liable for assault.