Harassment, Assault and Negligence Scenario

Criminal liabilities in a scenario including harassment, assault and negligence

Question

When Drake split up with Martha he was devastated. He tried to win her back by sending flowers and gifts but she refused to accept them. He started phoning her hoping to talk her around. However, every time that she picked up the phone he would stammer a quick hello and hang up – he was too emotional to speak to her. One day he followed her from her family home to her work, intending to beg her to give him another chance, but when she saw him she called the police and Drake was arrested. When Drake’s brother, Jeremy, heard about what had happened he was very angry and stormed round to Martha’s house. Martha’s elderly father Aaron answered the front door and Jeremy pushed him aside rushing into the kitchen where Martha and her mother Rhianna were having a cup of tea. He started to shout at Martha and when Rhianna intervened he grabbed the cup of tea Rhianna was carrying and threw it all over her. Unfortunately, the cup slipped out of his hand and shattered in Rhianna’s face: she was badly cut and scalded. Aaron came rushing in and tried to grab hold of Jeremy who threw the old man against the kitchen table. Aaron sustained a broken leg and a deep cut to his arm. Jeremy fled but was arrested shortly afterwards. Aaron meanwhile was taken to hospital for treatment. The arm was stitched and leg was set, but unfortunately Aaron was severely allergic to the antibiotic prescribed for him by Dr Smith and he began to have difficulty breathing. A nurse tried to bring this to Dr Smith’s attention but he was eager to get back to watching the rugby in the rest room and he didn’t think that the reaction was likely to be serious. Shortly afterwards, Aaron died.

Consider the offences that may have been committed by Drake, Jeremy and Dr Smith and any defences that might be available to them.

Answer

The most appropriate manner in which to deal with the issues that are raised by this scenario is to consider the potential liability of each of the individuals in turn. This process will inevitably result in the possibility of some repetition, but this will be kept to a minimum and where a particular element is better dealt with in respect of the facts surrounding a later character, this point will be specifically mentioned.

Drake

It may appear strange on the facts, but the starting point in respect of Drake’s liability rests with whether he will be found to have assaulted Martha. This is because common assault does not require there to be any physical contact between the victim and defendant: all that is required is that the defendant causes the victim to apprehend the imminent application of unlawful force.^[1] The result of this is twofold. In the first instance, there is no mens rea element to the offence. It does not matter whether the defendant intended to put the victim in fear of violence.^[2] All that is relevant is whether the victim feared it. Secondly, because it is the fear of violence that is relevant, the extent of the defendant’s actions are not limited. In other words, Drake’s telephone calls to Martha may be sufficient to satisfy the actus reus of the offence and his arrival at her work may also be sufficient despite the distance between him and Martha.^[3]

If Martha is able to assert that she feared that Drake would be violent towards her, the only limiting factor on Drake’s liability will be whether the violence that Martha feared could be considered imminent. In this respect imminent does not mean immediate, but it must be anticipated to occur within a relatively close period of time to the acts.^[4] On the facts here, it does not appear that Drake’s telephone calls and flower sending caused Martha to fear violence because she did not react to them. However, the fact that Martha called the police when Drake followed her to work may be found to have had the required effect. The issue in this context is clearly Martha’s state of mind and cannot be ascertained from the facts.

This is not the end of Drake’s potential liability however. This is because under the provisions of the Protection from Harassment Act 1997 a person commits an offence if they undertake a course of conduct that amounts to the harassment of another and the person knows or ought to know that their behaviour has that effect.^[5] The actus reus element of the offence is in two parts. The first, the course of conduct, requires harassing conduct to occur on at least two occasions,^[6] with harassment itself (whilst lacking a full statutory description) relating to actions that cause alarm or distress.^[7] In this context, it seems clear that Drake’s continued and unwanted conduct towards Martha would be deemed harassing^[8] and, since it is clear that Drake’s acts, although different, are linked in the context of the situation,^[9] it seems reasonable to suggest that they constitute a course of conduct. In this respect it seems that Drake will be liable for this offence.

Jeremy

The list of potential offence for which Jeremy will be liable begins when he pushes Aaron aside as he enters Martha’s house. When doing so he inflicts unlawful violence on Aaron and, as such, satisfies the actus reus of battery.^[10] As with common assault there is no specific mens rea element to this offence.

Common battery is clearly a relatively minor offence in respect of those that may face Jeremy, but before going on to consider the other assault type offences for which he may be liable and, admittedly slightly tenuously, an initial further offence must be considered. Under section 9(1)(b) of the Theft Act 1968 a person commits a burglary if they enter a building as a trespasser and whilst in the building inflicts grievous bodily harm on any person therein. It is clear from the facts here that Jeremy entered Martha’s house and did not do so with permission and was therefore a trespasser.^[11] It is also clear that he knew or ought to have known that he was a trespasser and will therefore satisfy the mens rea element of the first part of the offence.^[12] The issue as to Jeremy’s liability for burglary therefore lies in whether he can be found to have inflicted grievous bodily harm on any person whilst in the property.

Section 20 of the Offences Against the Person Act 1861 provides that a person will be guilty of an offence if they maliciously wound or inflict grievous bodily harm on a person. The actus reus element of the offence falls into two parts. The first of these is the harm itself. For these purposes grievous bodily harm is nothing less than really serious harm.^[13] This is a question of fact and will therefore be considered in more detail below, but it is clear that a number of minor injuries taken collectively can meet the necessary level of harm.^[14] Wounding requires both layers, dermis and epidermis, of the skin to be broken.^[15]

In terms of Rhianna’s injuries, the facts that she was badly cut by the broken cup would mean that she was wounded for these purposes. Additionally, it seems probable that serious scalding would also fall within the definition of really serious harm. In a similar manner, Aaron’s injuries appear to satisfy both elements of this offence in that his arm was clearly wounded and a broken leg would constitute grievous bodily harm.

The second actus reus element requires Jeremy to have inflicted harm on both victims. Although, in a technical sense, there may be distinction between the uses of the word inflict and cause in some circumstances,^[16] in the current circumstance the distinction is irrelevant and Jeremy will inflict harm if he causes it.^[17] In this respect therefore, it seems clear that Jeremy’s actions will satisfy the actus reus element of inflicting grievous bodily harm.

The mens rea element requires the harm to have been inflicted maliciously by the defendant. Maliciousness in this context requires the defendant to have acted with intent or been reckless.^[18] Both elements require some consideration in this context.

Intention in its simplest form requires a defendant to desire a particular consequence to follow as a result of their actions.^[19] It is important to note in the context of this offence that it is not the ultimate level of harm that is the consideration. A defendant who intends or is reckless to the infliction of a minor level of harm, will be liable if the actual harm is worse than anticipated.^[20] Therefore, the fact that Jeremy may not have intended to cause significant scalding to Rhianna’s face does not automatically remove his liability if it can be found that he intended some degree of harm when throwing the tea. This point can be taken a step further in that if it can be found that the result of Jeremy’s actions, even if not directly desired, were virtually certain from them, he may be found to have intended the result.^[21] It is submitted, that whilst scalding from throwing tea may be sufficiently certain to give rise to intention in this context, it is not a consideration that requires any proper discussion. This is because, as mentioned, a defendant’s recklessness as to the harm sustained will also render them liable in this context.

In order to be reckless, a defendant must foresee a risk and go on to unreasonably to take it.^[22] In this context the issue is the level of risk perceived by the defendant and the reasonableness of running it.^[23] Although this kind of recklessness is subjective in the sense of the defendant’s foresight of the risk, it is still a matter for a jury to decide and therefore it could be suggested that an objective element is inevitably included.^[24] This is because, on these facts, Jeremy would undoubtedly hold that he had not foreseen that the tea would be hot or that the cup might slip and smash or indeed that Aaron would be injured by the push. If a jury decides to believe him on all of these points he will not be liable, but it seems unlikely that this will be the case because, on these facts, he was likely to have foreseen some injury from his actions in respect of both victims.

The result of this is that Jeremy will be liable for inflicting grievous bodily harm on both Aaron and Rhianna and, as a result, burglary. This is not the end of the matter in respect of Aaron however because he ultimately dies as a result of Jeremy’s actions. The question in this context is whether Jeremy will be found to have caused Aaron’s death.

Causation falls to two types. Factual causation, whereby the result would not have occurred but for the defendant’s actions,^[25] is easily satisfied on the facts here. The second type of causation, legal causation, is more complex. In this respect, an individual will only be liable if their actions remain an operating or substantial cause of the victim’s harm.^[26] Unfortunately for Jeremy on this particular point, Dr Smith’s actions will not remove Jeremy’s liability because even a minor contribution to a result is sufficient to find liability.^[27]

Where Dr Smith’s actions become relevant is if they are considered sufficient to break the chain of causation; they are a novus actus interveniens. Once again, whilst incorrect medical treatment may be sufficient to break a chain of causation,^[28] it seems highly unlikely that they will do in circumstances where the complications that cause the death result from the natural consequences of the defendant’s act.^[29] Here, the administration of an antibiotic is a natural consequence of a cut. On this basis, it seems that Jeremy will be liable for Aaron’s death and because, as mentioned, he did not intend to cause grievous bodily harm, he cannot be liable for murder.^[30] He did however, carry out an unlawful act that resulted in the death and could reasonably be foreseen as causing harm and therefore will be liable for Aaron’s manslaughter.^[31]

Dr Smith

There is no doubt that Dr Smith’s actions caused Aaron’s death. It is not his administration of the antibiotics that is relevant in this context, but rather his refusal to consider Aaron’s allergic reaction as anything serious. There is little doubt that Dr Smith’s actions would be considered negligent and therefore he may be found liable for Aaron’s death criminally if this negligence is considered so gross that it ought to result in a criminal conviction.^[32] That is, he will be liable for manslaughter by gross negligence. Whether Dr Smith’s negligence meets the required level to render him liable is a question of fact for a jury,^[33] but it seems on these facts and on the basis that he would rather watch the rugby than treat his patient, he is likely to be liable.

Footnotes

^[1]R v Ireland [1998] AC 147

^[2] Ibid

^[3] Op cit at n 1

^[4]R v Constanza [1997] 2 Cr App R 492

^[5] ss. 1 & 2

^[6] s. 7(3)(a)

^[7] s. 7(2)

^[8] See R v Curtis [2010] 1 Cr App R (S) 193

^[9]R v Patel [2005] 1 Cr App R 440

^[10] Op cit at n 1

^[11] See R v Liang [1995] Crim LR 395

^[12]R v Collins [1973] QB 100 D

^[13]DPP v Smith [1961] AC 290

^[14]R v Birmingham [2002] EWCA Crim 2608

^[15]R v Smith (1837) 8 C & P 173

^[16] See R v Clarence (1888) 22 QBD 23

^[17] Op cit at n 1 and R v Dica [2004] QB 1257

^[18]R v Cunningham [1957] 2 QB 396

^[19] Hooper, A & Ormerod, D Blackstones Criminal Practice 2015 (Oxford University Press 2015) at A2.4

^[20]R v Mowatt [1968] 1 QB 421

^[21]R v Hancock [1986] AC 455

^[22] Op cit at n 18

^[23]R v G [2004] 1 AC 1034

^[24] See R v Majewski [1977] AC 443

^[25]R v White [1910] 2 KB 124

^[26]R v Smith [1959] 2 QB 35

^[27]R v Warburton [2006] EWCA Crim 627

^[28]R v Jordan (1956) 40 Cr App R 152

^[29]R v Cheshire [1991] 1 WLR 844

^[30] Op cit at n 19 at B1.12

^[31]R v Church [1966] 1 QB 59

^[32]R v Bateman (1925) 19 Cr App R 8

^[33]R v Adomako [1995] 1 AC 171