Criminal law Study pack

page 109

23 Extract from Judicial Studies Board Specimen Directions

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Reproduced by permission of the Judicial Studies Board.

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This material relates to the Criminal law subject guide, Chapter 10.
page 110 University of London International Programmes

Judicial Studies Board: Specimen Directions

15. Recklessness - Offences Against the Person Act 1861, sections 39 and 47.

‘Maliciously’ – Offences Against the Person Act 1861, section 20.

A. Common assault (section 39): assault occasioning actual bodily harm (section
47)
In most cases of assault it will NOT be necessary to leave the issue of recklessness to
the jury: see R v Nash (1991) The Times, 11 June. This should normally be done only
when the word appears in the count or the circumstances of the particular case plainly
call for such a direction. In many cases a direction on recklessness will only serve to
confuse the jury, and in the event of a conviction will create a potential for difficulty
in sentencing. Naturally, it is preferable that the position be clear before the case is
opened to the jury; but in any event if the judge is of the view that such a direction is
appropriate, or in case of any doubt, it is desirable that the matter be broached with
counsel before closing speeches.

(a) In the (unusual) case where no physical force is actually applied.

The mental element in the offence of assault is established where it is proved that
the defendant intentionally or recklessly caused another to fear that he would be
subjected to immediate and unlawful violence. It is therefore sufficient to prove that
the defendant was reckless as to whether the complainant might fear that he was to
be subjected to immediate and unlawful violence.

To prove recklessness you must be sure that the defendant realised that XY might
fear that he would then and there be subject to immediate and unlawful force and
nonetheless went on and took that risk.

(b) In the case where physical force is actually applied.

The mental element in the offence of common assault is established where it is proved
that the defendant intentionally or recklessly applied unlawful force to another
person. The mental element in the offence of assault occasioning actual bodily harm is
precisely the same. Whether actual bodily harm was ‘occasioned’ (caused) is simply a
question of causation and does not involve any consideration of recklessness, see R v
Savage and DPP v Parmenter [1992] 1 AC 699, HL.

To prove recklessness you must be sure that the defendant realised that XY might be
subjected to unlawful force (however slight) as a result of what he was about to do
and yet took the risk that that might happen.