Essay on "Legal Precedent for a Situation"

Essay 4 pages (1120 words) Sources: 8

[EXCERPT] . . . .

However, case law[footnoteRef:6] does hold that battery is a statutory offence. The decision was highly criticized and, in addition, the Divisional court expressed the obiter opinion that battery should continue to be considered a common law offence[footnoteRef:7]. [3: R. v. Venna [1976] QB 421.] [4: R. v. Woollin [1998] 4 All ER 103.] [5: R. v. Cunningham [1957] 2 QB 396.] [6: DPP v. Taylor, and DPP v. Little [1992] 1 QB 645, 95 Cr App R. 28.] [7: Haystead v. DPP 164 JP 396, DC.]

The Offences against the Person Act 1861 does not contain a definition of assault or battery, however, non-fatal offences against the person are derived from this law. Common assault includes both assault and battery together, and results in bodily harm that ranges from "transient and trifling"[footnoteRef:8] to wounding to grievous bodily harm. For the more serious kinds of battery, a defendant may be more culpable for their behavior than under other circumstances. That is to say that, in the case of most offenses against the person, recklessness is sufficient for offences against the person, but recklessness is insufficient for crimes of intent since a defendant will have foreseen the risk of injury without having intended for the risk to be manifested. [8: Offences against the Person Act 1861]

A maximum penalty of six months in prison is associated with a Common Assault offense. Assault with Bodily Harm is generally charged when the overriding circumstances and the seriousness of the injuries suggest that the offence merits more than the standard six months of imprisonment and where the prosecution is intending to represent the case as suitable for summary trial.

Although Perry could be charged with a count of attempted murder, but the courts are likely to be highly critical of such a charge absent clear evidence that an intention to kill was held by the defendant. Section 6(3) of the Criminal Law Act 1967 applies when possible alternative verdicts may be available to a jury in addition to -- or other than -- an allegation of attempted murder. The trial judge at the Court of Appeal has been known to let the jury determine an alternative count of causing grievous bodily harm with intent[footnoteRef:9]. The rationale was that the defendant could not intend to kill the victim absent the intent to also cause grievous bodily harm. [9: R. v. Morrison [2003] 1 W.L.R.1859.]

Perry exhibited a strong emotional response to the anticipated kidnapping of his daughter by his wife. As such, distress or fear or panic can establish the psychological harm that results in assault with bodily harm. If Perry were to assert that psychiatric injury is the basis for the assault with bodily harm, this would need to be admitted by the defence and it should also entail evidence to that fact submitted by an expert that is called by the prosecution[footnoteRef:10]. [10: R. v Chan-Fook 99 Cr. App. R. 147, CA.]

In summary, Perry's assault on his wife, Naomi, in front of his child and his brother, was an impulsive act driven by his acute psychological state, the catalyst of which was anticipated loss of contact with his daughter in the foreseeable future. Moreover, Naomi died as a direct result of her family's decision to remove her feeding tube, despite the fact that she was… READ MORE

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