Question on OAPA:

Roxanne asks her partner, Sameet, a tattoo artist, to permanently tattoo onto her
forehead ‘police are scumbags’. He refuses at first but then does so reluctantly
when Roxanne threatens to end the relationship. Roxanne‘s father, Imran, is
furious when he sees the tattoo. Imran confronts Sameet and challenges him to a
fight. Sameet agrees. Because he feels so guilty about what he has done, he
makes no attempt to defend himself and allows Imran to punch him repeatedly.
This results in Imran knocking Sameet over, causing him to fracture his skull. The
police are called and try to arrest Imran. Imran pushes Gilou, one of the police
officers, in the chest in an attempt to get away. In an effort to save himself from
falling, Gilou stretches out his arm which goes through a shop window resulting in
a serious cut.

(a) If you were a prosecutor, what would be your preferred charge in relation to
Sameet, in the matter of the tattoo?

(b) Give reasons for your choice in (a) above

(c) If you were Sameet’s defence counsel, what arguments would you advance in
favour of the proposition that the tattoo was lawful by reason of Roxanne’s
consent?

(d) If you were prosecuting counsel, how would you respond to the defence
counsel’s arguments in (c) above?

(e) If you were prosecuting counsel, what would be your preferred charge in
relation to the attack on Sameet by Imran?

(f) Give reasons for your choice in (e) including an explanation as to why you
chose as you did rather than choosing a different charge.

(g) If you were Imran’s defence counsel, what arguments would you raise in
answer to the charge raised in (e) above?

(h) If you were prosecuting counsel, how would you counter the arguments raised
in (g)?
(i) If you were prosecuting counsel, what would be your preferred charge against
Imran in the matter of the attack on Gilou?

(j) Give reasons for your choice in (i), including an explanation as to why you
chose as you did rather than choosing a different charge.

(k) If you were defence counsel, what arguments would you raise in response to
the charge in (i) above?

Answer:

According to facts, it is evident that this is a question on OAPA 1861 and now we
will discuss the question as per scenarios given. We will see whether prosecution
will be successful or defense will take the lead in regard to Sameet. We will
discuss liability of Imran as well.

a) As a prosecutor, I would charge Sameet under S.47 of OAPA 1861 in the matter
of the tattoo.

b) As a prosecutor, I have charged Sameet under S.47 because three things are
required to establish this offence. Common assault, actual bodily harm, and there
should be a causal connection occasioning between the assault and the harm. To
secure a conviction under S.47, the prosecutor has to prove an unbroken causal
chain linking the victim’s injury with the defendant’s assault or battery. In our
case Sameet was subjectively reckless and permanently tattooed on Roxanne’s
forehead. Under S.47, prosecution will held him liable because the defendant
does not have to intend any harm or even realise the risk that any harm could
occur for an offence to be committed. Actual bodily harm was defined by Swift J in
Donovan as “any hurt or injury calculated to interfere with the health or comfort
of the (victim). Such hurt or injury need not be permanent, but must be more
than merely transient and trifling.” As facts suggest that the tattoo was more than
merely transient and trifling, hence prosecution will charge actual bodily harm on
Sameet. In the case of Savage, D threw a pint of beer in V’s face. The glass slipped
and cut v. The House of Lords held that it is not necessary for the prosecution to
prove actual foresight of harm for D to be guilty under S.47. As a prosecutor, it is
not necessary for me to prove actual foresight of harm committed by Sameet. She
was in a relationship with Sameet and given her consent and even threatens him
that she will end this relationship if he does not follow what she says. Consent
was present but we are not told what her age is hence, assuming that she is a
minor then her consent is invalid and not acceptable. In Burrell v Harmer, a
tattooist was declared guilty of common assault for tattooing of 12 and 13,
consent notwithstanding. Hence, presuming the same in our case Sameet will be
held liable for S.47.

c) As prosecution has raised one point that age is not given in this scenario and
they presumed that Roxanna was minor. But what is the probability that the
assumption of prosecution is right. Assuming the fact, that she is not minor and
rendered her consent for tattoo. This consent is valid and acceptable because she
did not lack mental capacity. Tattooing, ear piercing and other forms of body
piercing and body alteration may also be consented to if it is reasonable (Brown).

d) The defense is relying only on one thing that is probability. Prosecution have
provided solid arguments based on law. Sammett was subjectively reckless, it is
said in the my above arguments as well that it is not necessary that defendant
would have intended any harm but it is said that no matter whether defendant
has realised the risk that any harm could occur for an offence to be committed.
Chain of causation is not broken in this case and Sammett will be held liable for
both factual and legal causation. The mens rea of S.47 states that it is not
necessary to prove D intended or foresaw injury (Roberts).

e) As a prosecuting council, my preferred charge in relation to the attack on

Sameet by Imran would be S.18 of OAPA.

f) Prosecution has charged S.18 on the grounds that Imran intended to wound or
cause any grievous bodily harm. The actus reus of S.18 is wounding (break in the
continuity of the skin) Eisenhower or cause any grievous bodily harm (Serious
injury Smith Case) which will be decided by the Jury (Janjua) and can rely on
guidelines of CPS (Bollom’s). Imran was furious to see tattoo on Roxanne’s
forehead and challenged Sameet to fight. He was in guilt and accepted his
challenge and he made no effort to save himself from Imran’s punches and while
he was punching Sameet fell down and fractured his skull. Skull was fractured
hence it will amount to grievous bodily harm because fracturing skull is a serious
injury. After proving Actus reus, prosecution have to prove mens rea of S.18
which is maliciously, with intention to do some grievous bodily harm or prevent or
resist lawful arrest. Facts suggest that Sameet’s skull was not fractured due to
Imran’s punches but he was knocked down and fractured his skull. It shows that
prosecution might not be able to prove S.18 beyond reasonable doubt because
the offence of S.18 specifically requires direct intention, but it can be argued that
Sameet’s skull was not fractured directly by Imran’s punches and hence an
alternative charge S.20 can be brought up because the offence of S.20, maybe
committed recklessly or indirectly. Actus reus of both the charges are same. The
preferred charge of prosecution would be S.18 because it gives the severe
punishment of life imprisonment for the offence committed. However, alternative
charge can also be brought up for Imran’s offence which is S.20. The only
difference between S.20 and S.18 is wording. In S.18 it is said that “unlawfully by
any means whatsoever wound or cause any grievous bodily harm to any person.”
And in S.20 it is said that “Unlawfully and maliciously wound or inflict any
grievous bodily harm.” In S.18 it is said “to cause” and in S.20 it is stated “inflict”.
The term ‘inflict’ was thought to be narrower than ‘cause’. The term ‘inflict’
compels the vision of some of application of force that delivers the harm such as
knife cutting someone or shooting someone with a gun. In the case of Clarence, it
was held that “a husband gave gonorrhea to his wife during consensual
intercourse was not guilty under S.20. The reason was he had caused GBH but not
inflicted. Clarence was disapproved in Burstow. In the case of Parmenter, it was
held that “prosecution need to prove only that D intended or foresaw the risk of
some harm.” In our case, Imran foresaw that punches may lead to some harm.
Hence, Imran would be liable under S.20.

g) Defense council will argue that Sameet has given his consent for this fight in his
senses. Sameet might have envisaged the harm but still gave his consent and
hence the fight was consensual.

h) Defense is relying on consent but the consent was taken under duress because
Sameet was in guilt and he became emotional and rendered his consent.
However, even if Sameet would have given consent without any sort of duress
still this consent would have been vitiated. In A-G’s reference, it was held that
“consent is a defense to a kiss, a tap, a tickle or a slap, but it is not a defense to a
private physical fight to settle an argument”. Lord Lane CJ said “it is not in the
public interest that people should try to cause, or should cause, each other actual
bodily harm for no good reason. Minor struggles are another matter. Consent is
not valid for major OAPA offences and secondly consent is vitiated in street fights.

i) As a prosecutor, my preferred charge would be S.18 against Imran in the matter

of the attack on Gilou.

j) As a prosecutor I have charged S.18 because when police came to arrest Imran
he resisted and pushed Gilou, and he was saving himself from falling, and
stretches his arm which goes through a shop window that resulted in a serious
cut. The law of S.18 is already set out above, the cuts would be considered as
wounding. It is evident that Imran tried to prevent or resist a lawful arrest which
is an offence under S.18. Prosecution has not charged him under S.20 or S.47. The
reason is S.47 is charged when the offence is not that serious and in this case
there were some serious cuts and prosecution has not charged him under S.20
because the area of “prevent and resist an lawful arrest” does not come into this
offence and it is covered in S.18 that is the reason prosecution have charged him
under S.18.

k) As a defense council, I would argue that Imran did not intend to cause or inflict
any harm and it was unintentional. Gilou could not balance himself and cut his
arm it was coincidence. There is no valid point that may prove that he had an
intention to cause any harm.