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This essay will consider the charges that Jerome and Talia might incur,
whether the elements of the offences satisfy the facts of the case, possible
legal defence raised by both Jerome and Talia and policy reasons behind
the new Act. This essay will then conclude all the charges that might go
to trial.
For the assessment of what offences have been committed in a criminal
act, there should be a clear presence of both actus reus and mens rea. And
it is in the hands of the prosecution to prove the existence of both the
elements beyond a reasonable doubt. According to the Oxford Dictionary
of Law, actus reus is defined as “a guilty act”.1 Mens rea is defined as
“the state of mind that the prosecution must prove a defendant to have
had at the time of committing the crime in order to secure a conviction”.2
The less serious offence that Jerome may be charged with is common
assault, contrary to section 39 of the Criminal Justice Act 1988.3
According to Fagan v MPC (1969), the House of Lords set the definition
of assault as “an assault is committed where the defendant intentionally
or recklessly causes the victim to apprehend immediate unlawful personal
violence.”4 The actus reus of assault is any act that causes the victim to
apprehend immediate application of force by the defendant. It is clear that
physical gestures such as raising a fist or pointing a knife at the victim
would suffice. However, Jerome did not apply any physical force towards
Talia. He just screams at her using abusive language. The question here is
can mere words boil down to assault? In R v Ireland (1997), the
1 Edited by Jonathan Law, Oxford Dictionary of Law (8th edition) 15
2 Edited by Jonathan Law, Oxford Dictionary of Law (8th edition) 395
3 http://www.cps.gov.uk/legal/l_to_o/offences_against_the_person/#a07 Accessed
on 20 February 2016
4 Fagan v MPC 1969 1 QB 439
defendant made repeated silent telephone calls to three different women
and as a result the women suffered psychiatric illness.5 The court held
that the silent telephone calls could amount to an assault. Lord Steyn
stated that, “The proposition that a gesture may amount to an assault, but
that words can never suffice, is unrealistic and indefensible. A thing said
is also a thing done”.6 In that case, Jerome did assault Talia although
there was no unlawful use of violence. The abusive language he used was
enough for Talia to fear an immediate attack towards her. So, the actus
reus of assault is present according to the facts of the case. The mens rea
of assault is having the intention either intentionally or recklessly cause
the victim to apprehend the infliction of immediate force. The mens rea
of assault is also present because Jerome did intend to cause such
apprehension. According to the Cunningham test of recklessness in R v
Cunningham (1957), Jerome is most likely to have been subjectively
reckless since he did foresee the harm that in fact occurred or might have
occurred from using abusive language towards Talia but nevertheless
went ahead regardless of the risk.7
The defence can raise a few legal arguments if the case goes to trial. The
first thing that can be anticipated is that the defense might try to negate
assault by mentioning that words alone without action cannot amount to
assault. In Tuberville v Savage (1669), the court held that a conditional
threatening statement, without any impeding violence does not amount to
assault.8 The defence could argue that in the case of Jerome, abusive
language without any imminent threat of harm cannot constitute assault
since he later calms down and explains his actions. So, there was no
5 R v Ireland 1997 AC 147
6 R v Ireland 1997 AC 147 (Lord Steyn)
7 R v Cunningham 1957 2 QB 396
8 Tuberville v Savage 1669 86 ER 684
reason for Talia to fear any immediate unlawful harm from Jerome. Next,
Jerome could argue that his actions can be justified under ‘general
defences’. John Gardner states that, “in providing a justificatory defence
that law nevertheless concedes that one may sometimes have sufficient
reason to perform the unlawful act, all things considered.”9 If the defence
were to apply this to the case at hand, Jerome had, at the time of his
prima facie wrongful action enough of a reason to carry on with his
actions. This can be proven when he calmed down and explained to Talia
that he does it for her and Alice’s good. There was no reason for Talia to
fear any immediate force towards her since Jerome did immediately calm
himself down and explained his actions. Since the actus reus of common
assault requires immediacy and if the defence can prove that Talia had no
reason to fear any immediate force because Jerome did immediately calm
down, then there is a lack of evidence to prove that Jerome did assault
Talia.
The more serious offence that Jerome could be charged with is assault
occasioning actual bodily harm (ABH) under s.47 of the Offences
Against the Person Act (OAPA) 186110. To prove the actus reus for this
offence, three conditions must be satisfied. First, there must be an
existence of either an assault or a battery. In this case, there is there is a
lack of evidence to show that at that time, Jerome did assault Talia.
Jerome saying ‘Go ahead, nobody will believe a psycho like you’ does
not give us enough evidence to prove that there is an existence of assault.
Secondly, the assault must ‘occasion’ in the bodily harm that occurred.
9 J. Gardner, ‘Justifications and Reasons’, in A.P. Simester and A.T.H Smith (eds),
Harm and Culpability (1996), 107
10 Offences Against the Person Act 1861, s.47. This Act states that whosoever shall be
convicted on indictment of any assault occasioning actual bodily harm shall be
liable… to be imprisoned for any term not exceeding five years.
Since Talia is suffering from anxiety disorder, the actions of Jerome
might not be the reason why Talia did her cut arms with a razor or cause
her to fall into serious depression. In R v Roberts (1971), the court held
that “only where the victim’s actions were so daft or unexpected that no
reasonable man could have expected it would there be a break in the
chain of causation”.11 The question here is, were Talia’s actions to use a
razor to cut her arms and her falling into depression because of Jerome’s
behaviour so daft and unexpected? Since she has previous medical
history, this might break the chain of causation. Thirdly, the assault must
also cause “actual bodily harm”. In R v Miller (1954), ABH is defined as
“any hurt or injury calculated to interfere with health or comfort”.12 In
this case, there was ABH present, since Talia sustained physical injuries
(cutting of her arms) and psychological harm (severe depression). In R v
Burstow (1997), the victim tolerated eight months of endless stalking and
as a result of that suffered from severe depressive illness.13 The court held
that psychiatric injuries could be classified as bodily harm. This proves
that not all the conditions of the actus reus is satisfied. The mens rea
required for the offence under s.47 is the same as the requirement of
mens rea for common assault. According to R v Savage (1991), there was
no necessity for the defendant to prove any additional mens rea in respect
to degree of harm inflicted.14 It is difficult to prove mens rea in this case
because there is a lack of evidence that Jerome did assault Talia. It is
unclear that Jerome could foresee any harm as a consequence of his
statement at that time. Since the elements of the offence are not satisfied
based on the facts of the case, a prosecution would not be brought against
Jerome under s.47 of the OAPA 1861.
11 R v Roberts 1971 56 Cr. App. R 95
12 R v Miller 1954 2 QB 282
13 R v Burstow 1997 UKHL 34, 1997 AC 147
14 R v Savage 1991 1 AC 714
Jerome can also be charged with controlling or coercive behaviour under
s.76 of the Serious Crime Act 2015.15 To prove the actus reus, under s.76
(1)(a), the prosecution has to prove that Jerome used behaviour that was
controlling or coercive. Jerome did in fact exercise tight controls over
Talia. After Jerome suspected that she used drugs, he prohibited her from
going out. Although the legislation itself does not explain what amounts
to controlling or coercive behaviour, the Home Office definition could be
a useful guide in interpreting the meaning. The Home Office defines
domestic violence and abuse as “Any incident or pattern of incidents of
controlling, coercive, threatening behaviour, violence or abuse between
those aged 16 or over who are or have been intimate partners or family
members regardless of gender or sexuality.”16 According to the definition,
Jerome’s behaviour does come under controlling or coercive behaviour.
The behaviour of Jerome must also be repeated or continuous. Although
we are not given a timeline of how long Jerome has been controlling
Talia, it is safe to say that Jerome’s behaviour was indeed repeated or
continuous. The prosecution must also establish that there is a “serious
effect” on the victim. The actions of Jerome must be serious enough to
have caused Talia major distress that affects her day-to-day activity. This
condition is satisfied when Talia is not only prohibited from going out of
the house, she also used her phone and social media in a controlled
manner. She did fall into severe depression and this is a serious
consequence of Jerome’s actions. The victim and defendant must also be
personally connected and in this case, Jerome and Talia are in a threeyear
relationship and Jerome is the main carer of Alicia. The conditions
15 Serious Crime Act 2015, s.76
16 Home Office circular 003/2013 https://www.gov.uk/government/publications/newgovernment-
domestic-violence-and-abuse-definition Accessed 21 February 2016
to prove actus reus are satisfied. The mens rea of this offence can be
established under s.76 (1)(d). The sections states that if the defendant
either possess the knowledge that the prohibited behaviour will have a
serious effect on the victim or the defendant ought to have knowledge of
it, then the mens rea is satisfied.17 Using Tuerkhiemer’s approach, when
Jerome in this case intentionally exercised tight controls over Talia, he
reasonably should know that ‘that such conduct is likely to result in
substantial power or control’.18 So, the mens rea element is satisfied here.
Jerome can defend himself by raising the “best interest” defence. Under
s.76 (8), Jerome can say that he believed that he was acting in Talia’s best
interest he had reason to believe that his behaviour was reasonable.19
Since Talia did suffer from anorexia nervosa and anxiety disorder,
Jerome has been chosen as the main carer of Alicia. Jerome can argue
that he thought his actions were justified because he was concern for both
Talia and Alicia’s safety since Talia suffers from depression. However,
this defence is not available if the actions of Jerome caused Talia to fear
that there would be violence used by Jerome against her. The defence has
to prove that there was no reason for Talia to fear any violence against
her in order to use that defence.
The Crime Survey of England and Wales revealed that the intimate
violence suffered most frequently in both men and women is partner
abuse (non-sexual).20 The Serious Crime Act 2015 does not only classify
17 Serious Crime Act 2015 s.76 (1)(d)
18 D. Tuerkheimer, ‘Recognising and Remedying the Harm of Battering’ 2004 94(4)
Journal of Criminal Law and Criminology 959 at 1020
19 Serious Crime Act 2015 s.76 (8)
20 23.8% women and 11% men. Office for National Statistics, Crime Statistics,
Focus
on Violent Crime and Sexual Offences, 2012/13, Chapter 4: Intimate Personal
Violence and Partner Abuse (ONS: London, 2014) 4.
physical violence as domestic abuse, the Act also includes psychological
abuse as part of domestic violence. The benefits that come with the new
Act is that there is now fair labelling. It shows a difference between
violence committed by random strangers and the wrong committed in a
domestic relationship and in doing so identifying the latter is more
significant. The creation of a specific offence under the new Act would
also serve an important educative function in communicating the
‘seriousness and pattern-based nature’ of domestic violence to those both
inside and outside the justice system, encouraging better practice from
those within it.21 The new offence can also be used to protect the minority
since it can be said that the state has a moral obligation to do so.
Sometimes the victims themselves do not identify dangerous patterns of
behaviour in domestic abuse especially when it involves psychological
harm. Therefore, a specific offence can impact the responses to domestic
abuse in a more positive way. However, the new offence has also been
heavily criticised. Some people argue that the criminal law is not the
correct way to tackle this issue. Identification of the gendered nature of
domestic violence means that wider culture, as well as the criminal law,
must also be the subject of critical focus.22 Although creating a new
offence under the criminal law alone would not get rid of violence against
women, in my opinion it is huge step that has been taken to achieve this
goal. This indicates that the new offence is in fact necessary in the legal
system since this reflects the reality of the actual harm that domestic
violence can cause.
Talia might be charged with assault to the extent of inflicting grievous
21 Jennifer Youngs, ‘Domestic Violence and the Criminal Law: Reconceptualising
Reform’ 2015 79(1), Journal of Criminal Law at 65
22 Jennifer Youngs , above n.20 at 66
bodily harm (GBH) under s.20 of the OAPA 1861.23 To satisfy the actus
reus of the offence, the must be wounding or infliction of GBH.
According to Moriarty v Brookes (1834), a wound is a break in the
continuity of the skin.24 We are only told that Jerome sustains a 3cm cut
to his wrist but we are not told which part of his wrist and how serious is
the injury sustained. Was it just a minor cut or did it require medical
treatment? According to the Crown Prosecution Service (CPS) Charging
Standards, GBH should only be charged when the wounding is
considered to be “really serious”.25 In this case, although there is a 3cm
cut to the wrist, we are not sure if that is enough to be categorized as
“really serious”. The actus reus of the offence is not satisfied in this case
since there is a lack of information to show that the cut on the wrist can
be considered as “really serious” according to the CPS Charging
Standards. The mens rea element of s.20 can be satisfied if the actions of
Talia were “malicious”. According to R v Savage, the House of Lords
held that “malice” includes “recklessness as to whether such harm should
occur or not (i.e. the accused has foreseen that the particular kind of harm
might be done and yet has gone on to take the risk of it)”.26 Although
Talia recklessly injured Jerome, but by grabbing a kitchen knife she
should have foreseen that some kind of harm might happen and continued
taking the risk of grabbing the knife. So, the mens rea element is
satisfied.
23 Offences Against the Person Act 1861 s.20. The Act states that whosoever shall
unlawfully and maliciously wound or inflict any grievous bodily harm on any other
person, either with or without a weapon or instrument, shall be guilty of an offence
punishable up to a term not exceeding five years’ imprisonment
24 Moriarty v Brookes 1834 172 ER 1419
25 http://www.cps.gov.uk/legal/l_to_o/offences_against_the_person/#a15 Accessed
on 20 February 2016
26 R v Savage 1991 1 AC 714
The defence could raise Talia’s mental illness as her defence. It could be
said that since Talia suffers from severe depression, she was not able to
have the same mentality as a reasonable person during the time she
decided to grab a kitchen knife and threaten Jerome to leave the house
with Alicia. The M’Naghten Rule questions whether when the crime was
committed; did the defendant understand the nature of the crime? In this
case it is unclear because there is a lack of evidence to show how serious
her depression was.27 Can her depression be serious enough that it
inhibited her from recognizing right from wrong?
It can be concluded that Jerome is more probable to be proved liable for
common assault and controlling or coercive behaviour. It is unlikely that
Jerome will be charged with ABH since there is a lack of evidence. Talia
may be charged with GBH unless the defence can prove that her
depression is serious enough for her not to understand the nature of the
crime. However, we can only refer to liability of all the offences with
probability since it up to the discretion of the judge to decide.
(2500 words)
27 R v McNaughten 1843 8 ER 718
Bibliography
Books
Edited by Jonathan Law, Oxford Dictionary of Law (8th edition)
J. Gardner, ‘Justifications and Reasons’, in A.P. Simester and A.T.H
Smith (eds), Harm and Culpability (1996)
Ashworth and J. Horder, Principles of Criminal Law, 7th edition (OUP:
Oxford, 2013)
M. Burton, Legal responses to Domestic Violence (London: Routledge-
Cavendish, 2009) and N. Groves and T. Thomas, Domestic Violence and
Criminal Justice (Routledge, 2014).
V. Bettinson and C. Bishop, “Is the creation of a discrete offence of
coercive control necessary to combat domestic violence?” (2015) 66(2)
Northern Ireland Legal Quarterly 179-97
Journal Articles
D. Tuerkheimer, ‘Recognising and Remedying the Harm of Battering’
2004 94(4) Journal of Criminal Law and Criminology 959
Jennifer Youngs, ‘Domestic Violence and the Criminal Law:
Reconceptualising Reform’ 2015 79(1), Journal of Criminal Law 55-70
Vanessa Bettinson, ‘Criminalising Coercive Control in Domestic
Violence Cases: Should Scotland Follow the Path of England and
Wales’? 3, Criminal Law Review 165-180
Parliamentary Documents
Parliamentary discussion on the legislation (from column 168)
http://www.publications.parliament.uk/pa/cm201415/cmpublic/seriouscri
me/150120/pm/150120s01.htm
http://www.publications.parliament.uk/pa/ld199798/ldjudgmt/jd970724/ir
land01.htm
http://www.publications.parliament.uk/pa/cm201415/cmpublic/seriouscri
me/memo/sc12.htm
Other Documents
Home Office circular 003/2013
https://www.gov.uk/government/publications/new-government-domesticviolence-
and-abuse-definition
Office for National Statistics, Crime Statistics, Focus on Violent Crime
and Sexual Offences, 2012/13, Chapter 4: Intimate Personal Violence and
Partner Abuse (ONS: London, 2014) 4.
Crown Prosecution Services Guidelines for Domestic Abuse. This can be
accessed at:
http://www.cps.gov.uk/legal/d_to_g/domestic_abuse_guidelines_for_pros
ecutors/
Crown Prosecution Services Charging Standards for Grevious Bodily
Harm. This can be accessed at:
http://www.cps.gov.uk/legal/l_to_o/offences_against_the_person/
Cases
Fagan v MPC 1969 1 QB 439
R v Ireland 1997 AC 147
R v Cunningham 1957 2 QB 396
Tuberville v Savage 1669 86 ER 684
R v Roberts 1971 56 Cr. App. R 95
R v Miller 1954 2 QB 282
R v Burstow 1997 UKHL 34, 1997 AC 147
R v Savage 1991 1 AC 714
Moriarty v Brookes 1834 172 ER 1419
R v McNaughten 1843 8 ER 718
Legislation
Offences Against the Person Act (OAPA) 1861
Serious Crime Act 2015

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