This can never suffice, is unrealistic andThis can never suffice, is unrealistic and

This essay will consider the charges that Jerome and Talia might incur,whether the elements of the offences satisfy the facts of the case, possiblelegal defence raised by both Jerome and Talia and policy reasons behindthe new Act. This essay will then conclude all the charges that might goto trial.For the assessment of what offences have been committed in a criminalact, there should be a clear presence of both actus reus and mens rea. Andit is in the hands of the prosecution to prove the existence of both theelements beyond a reasonable doubt. According to the Oxford Dictionaryof 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 havehad at the time of committing the crime in order to secure a conviction”.2The less serious offence that Jerome may be charged with is commonassault, contrary to section 39 of the Criminal Justice Act 1988.3According to Fagan v MPC (1969), the House of Lords set the definitionof assault as “an assault is committed where the defendant intentionallyor recklessly causes the victim to apprehend immediate unlawful personalviolence.”4 The actus reus of assault is any act that causes the victim toapprehend immediate application of force by the defendant. It is clear thatphysical gestures such as raising a fist or pointing a knife at the victimwould suffice. However, Jerome did not apply any physical force towardsTalia. He just screams at her using abusive language. The question here iscan mere words boil down to assault? In R v Ireland (1997), the1 Edited by Jonathan Law, Oxford Dictionary of Law (8th edition) 152 Edited by Jonathan Law, Oxford Dictionary of Law (8th edition) 3953 Accessedon 20 February 20164 Fagan v MPC 1969 1 QB 439defendant made repeated silent telephone calls to three different womenand as a result the women suffered psychiatric illness.5 The court heldthat the silent telephone calls could amount to an assault. Lord Steynstated that, “The proposition that a gesture may amount to an assault, butthat words can never suffice, is unrealistic and indefensible. A thing saidis also a thing done”.6 In that case, Jerome did assault Talia althoughthere was no unlawful use of violence. The abusive language he used wasenough for Talia to fear an immediate attack towards her. So, the actusreus of assault is present according to the facts of the case. The mens reaof assault is having the intention either intentionally or recklessly causethe victim to apprehend the infliction of immediate force. The mens reaof assault is also present because Jerome did intend to cause suchapprehension. According to the Cunningham test of recklessness in R vCunningham (1957), Jerome is most likely to have been subjectivelyreckless since he did foresee the harm that in fact occurred or might haveoccurred from using abusive language towards Talia but neverthelesswent ahead regardless of the risk.7The defence can raise a few legal arguments if the case goes to trial. Thefirst thing that can be anticipated is that the defense might try to negateassault by mentioning that words alone without action cannot amount toassault. In Tuberville v Savage (1669), the court held that a conditionalthreatening statement, without any impeding violence does not amount toassault.8 The defence could argue that in the case of Jerome, abusivelanguage without any imminent threat of harm cannot constitute assaultsince he later calms down and explains his actions. So, there was no5 R v Ireland 1997 AC 1476 R v Ireland 1997 AC 147 (Lord Steyn)7 R v Cunningham 1957 2 QB 3968 Tuberville v Savage 1669 86 ER 684reason for Talia to fear any immediate unlawful harm from Jerome. Next,Jerome could argue that his actions can be justified under ‘generaldefences’. John Gardner states that, “in providing a justificatory defencethat law nevertheless concedes that one may sometimes have sufficientreason to perform the unlawful act, all things considered.”9 If the defencewere to apply this to the case at hand, Jerome had, at the time of hisprima facie wrongful action enough of a reason to carry on with hisactions. This can be proven when he calmed down and explained to Taliathat he does it for her and Alice’s good. There was no reason for Talia tofear any immediate force towards her since Jerome did immediately calmhimself down and explained his actions. Since the actus reus of commonassault requires immediacy and if the defence can prove that Talia had noreason to fear any immediate force because Jerome did immediately calmdown, then there is a lack of evidence to prove that Jerome did assaultTalia.The more serious offence that Jerome could be charged with is assaultoccasioning actual bodily harm (ABH) under s.47 of the OffencesAgainst the Person Act (OAPA) 186110. To prove the actus reus for thisoffence, three conditions must be satisfied. First, there must be anexistence of either an assault or a battery. In this case, there is there is alack of evidence to show that at that time, Jerome did assault Talia.Jerome saying ‘Go ahead, nobody will believe a psycho like you’ doesnot 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), 10710 Offences Against the Person Act 1861, s.47. This Act states that whosoever shall beconvicted on indictment of any assault occasioning actual bodily harm shall beliable… to be imprisoned for any term not exceeding five years.Since Talia is suffering from anxiety disorder, the actions of Jeromemight not be the reason why Talia did her cut arms with a razor or causeher to fall into serious depression. In R v Roberts (1971), the court heldthat “only where the victim’s actions were so daft or unexpected that noreasonable man could have expected it would there be a break in thechain of causation”.11 The question here is, were Talia’s actions to use arazor to cut her arms and her falling into depression because of Jerome’sbehaviour so daft and unexpected? Since she has previous medicalhistory, this might break the chain of causation. Thirdly, the assault mustalso 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 Inthis case, there was ABH present, since Talia sustained physical injuries(cutting of her arms) and psychological harm (severe depression). In R vBurstow (1997), the victim tolerated eight months of endless stalking andas a result of that suffered from severe depressive illness.13 The court heldthat psychiatric injuries could be classified as bodily harm. This provesthat not all the conditions of the actus reus is satisfied. The mens rearequired for the offence under s.47 is the same as the requirement ofmens rea for common assault. According to R v Savage (1991), there wasno necessity for the defendant to prove any additional mens rea in respectto degree of harm inflicted.14 It is difficult to prove mens rea in this casebecause there is a lack of evidence that Jerome did assault Talia. It isunclear that Jerome could foresee any harm as a consequence of hisstatement at that time. Since the elements of the offence are not satisfiedbased on the facts of the case, a prosecution would not be brought againstJerome under s.47 of the OAPA 1861.11 R v Roberts 1971 56 Cr. App. R 9512 R v Miller 1954 2 QB 28213 R v Burstow 1997 UKHL 34, 1997 AC 14714 R v Savage 1991 1 AC 714Jerome can also be charged with controlling or coercive behaviour unders.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 wascontrolling or coercive. Jerome did in fact exercise tight controls overTalia. After Jerome suspected that she used drugs, he prohibited her fromgoing out. Although the legislation itself does not explain what amountsto controlling or coercive behaviour, the Home Office definition could bea useful guide in interpreting the meaning. The Home Office definesdomestic violence and abuse as “Any incident or pattern of incidents ofcontrolling, coercive, threatening behaviour, violence or abuse betweenthose aged 16 or over who are or have been intimate partners or familymembers 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. Althoughwe are not given a timeline of how long Jerome has been controllingTalia, it is safe to say that Jerome’s behaviour was indeed repeated orcontinuous. The prosecution must also establish that there is a “seriouseffect” on the victim. The actions of Jerome must be serious enough tohave caused Talia major distress that affects her day-to-day activity. Thiscondition is satisfied when Talia is not only prohibited from going out ofthe house, she also used her phone and social media in a controlledmanner. She did fall into severe depression and this is a seriousconsequence of Jerome’s actions. The victim and defendant must also bepersonally connected and in this case, Jerome and Talia are in a threeyearrelationship and Jerome is the main carer of Alicia. The conditions15 Serious Crime Act 2015, s.7616 Home Office circular 003/2013 Accessed 21 February 2016to prove actus reus are satisfied. The mens rea of this offence can beestablished under s.76 (1)(d). The sections states that if the defendanteither possess the knowledge that the prohibited behaviour will have aserious effect on the victim or the defendant ought to have knowledge ofit, then the mens rea is satisfied.17 Using Tuerkhiemer’s approach, whenJerome in this case intentionally exercised tight controls over Talia, hereasonably should know that ‘that such conduct is likely to result insubstantial power or control’.18 So, the mens rea element is satisfied here.Jerome can defend himself by raising the “best interest” defence. Unders.76 (8), Jerome can say that he believed that he was acting in Talia’s bestinterest he had reason to believe that his behaviour was reasonable.19Since Talia did suffer from anorexia nervosa and anxiety disorder,Jerome has been chosen as the main carer of Alicia. Jerome can arguethat he thought his actions were justified because he was concern for bothTalia and Alicia’s safety since Talia suffers from depression. However,this defence is not available if the actions of Jerome caused Talia to fearthat there would be violence used by Jerome against her. The defence hasto prove that there was no reason for Talia to fear any violence againsther in order to use that defence.The Crime Survey of England and Wales revealed that the intimateviolence suffered most frequently in both men and women is partnerabuse (non-sexual).20 The Serious Crime Act 2015 does not only classify17 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 102019 Serious Crime Act 2015 s.76 (8)20 23.8% women and 11% men. Office for National Statistics, Crime Statistics,Focuson Violent Crime and Sexual Offences, 2012/13, Chapter 4: Intimate PersonalViolence and Partner Abuse (ONS: London, 2014) 4.physical violence as domestic abuse, the Act also includes psychologicalabuse as part of domestic violence. The benefits that come with the newAct is that there is now fair labelling. It shows a difference betweenviolence committed by random strangers and the wrong committed in adomestic relationship and in doing so identifying the latter is moresignificant. The creation of a specific offence under the new Act wouldalso serve an important educative function in communicating the’seriousness and pattern-based nature’ of domestic violence to those bothinside and outside the justice system, encouraging better practice fromthose within it.21 The new offence can also be used to protect the minoritysince it can be said that the state has a moral obligation to do so.Sometimes the victims themselves do not identify dangerous patterns ofbehaviour in domestic abuse especially when it involves psychologicalharm. Therefore, a specific offence can impact the responses to domesticabuse in a more positive way. However, the new offence has also beenheavily criticised. Some people argue that the criminal law is not thecorrect way to tackle this issue. Identification of the gendered nature ofdomestic violence means that wider culture, as well as the criminal law,must also be the subject of critical focus.22 Although creating a newoffence under the criminal law alone would not get rid of violence againstwomen, in my opinion it is huge step that has been taken to achieve thisgoal. This indicates that the new offence is in fact necessary in the legalsystem since this reflects the reality of the actual harm that domesticviolence can cause.Talia might be charged with assault to the extent of inflicting grievous21 Jennifer Youngs, ‘Domestic Violence and the Criminal Law: ReconceptualisingReform’ 2015 79(1), Journal of Criminal Law at 6522 Jennifer Youngs , above n.20 at 66bodily harm (GBH) under s.20 of the OAPA 1861.23 To satisfy the actusreus of the offence, the must be wounding or infliction of GBH.According to Moriarty v Brookes (1834), a wound is a break in thecontinuity of the skin.24 We are only told that Jerome sustains a 3cm cutto his wrist but we are not told which part of his wrist and how serious isthe injury sustained. Was it just a minor cut or did it require medicaltreatment? According to the Crown Prosecution Service (CPS) ChargingStandards, GBH should only be charged when the wounding isconsidered to be “really serious”.25 In this case, although there is a 3cmcut 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 casesince there is a lack of information to show that the cut on the wrist canbe considered as “really serious” according to the CPS ChargingStandards. The mens rea element of s.20 can be satisfied if the actions ofTalia were “malicious”. According to R v Savage, the House of Lordsheld that “malice” includes “recklessness as to whether such harm shouldoccur or not (i.e. the accused has foreseen that the particular kind of harmmight be done and yet has gone on to take the risk of it)”.26 AlthoughTalia recklessly injured Jerome, but by grabbing a kitchen knife sheshould have foreseen that some kind of harm might happen and continuedtaking the risk of grabbing the knife. So, the mens rea element issatisfied.23 Offences Against the Person Act 1861 s.20. The Act states that whosoever shallunlawfully and maliciously wound or inflict any grievous bodily harm on any otherperson, either with or without a weapon or instrument, shall be guilty of an offencepunishable up to a term not exceeding five years’ imprisonment24 Moriarty v Brookes 1834 172 ER 141925 Accessedon 20 February 201626 R v Savage 1991 1 AC 714The defence could raise Talia’s mental illness as her defence. It could besaid that since Talia suffers from severe depression, she was not able tohave the same mentality as a reasonable person during the time shedecided to grab a kitchen knife and threaten Jerome to leave the housewith Alicia. The M’Naghten Rule questions whether when the crime wascommitted; did the defendant understand the nature of the crime? In thiscase it is unclear because there is a lack of evidence to show how seriousher depression was.27 Can her depression be serious enough that itinhibited her from recognizing right from wrong?It can be concluded that Jerome is more probable to be proved liable forcommon assault and controlling or coercive behaviour. It is unlikely thatJerome will be charged with ABH since there is a lack of evidence. Taliamay be charged with GBH unless the defence can prove that herdepression is serious enough for her not to understand the nature of thecrime. However, we can only refer to liability of all the offences withprobability since it up to the discretion of the judge to decide.(2500 words)27 R v McNaughten 1843 8 ER 718BibliographyBooksEdited by Jonathan Law, Oxford Dictionary of Law (8th edition)J. Gardner, ‘Justifications and Reasons’, in A.P. Simester and A.T.HSmith (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 andCriminal Justice (Routledge, 2014).V. Bettinson and C. Bishop, “Is the creation of a discrete offence ofcoercive control necessary to combat domestic violence?” (2015) 66(2)Northern Ireland Legal Quarterly 179-97Journal ArticlesD. Tuerkheimer, ‘Recognising and Remedying the Harm of Battering’2004 94(4) Journal of Criminal Law and Criminology 959Jennifer Youngs, ‘Domestic Violence and the Criminal Law:Reconceptualising Reform’ 2015 79(1), Journal of Criminal Law 55-70Vanessa Bettinson, ‘Criminalising Coercive Control in DomesticViolence Cases: Should Scotland Follow the Path of England andWales’? 3, Criminal Law Review 165-180Parliamentary DocumentsParliamentary discussion on the legislation (from column 168) DocumentsHome Office circular 003/2013 for National Statistics, Crime Statistics, Focus on Violent Crimeand Sexual Offences, 2012/13, Chapter 4: Intimate Personal Violence andPartner Abuse (ONS: London, 2014) 4.Crown Prosecution Services Guidelines for Domestic Abuse. This can beaccessed at: Prosecution Services Charging Standards for Grevious BodilyHarm. This can be accessed at: v MPC 1969 1 QB 439R v Ireland 1997 AC 147R v Cunningham 1957 2 QB 396Tuberville v Savage 1669 86 ER 684R v Roberts 1971 56 Cr. App. R 95R v Miller 1954 2 QB 282R v Burstow 1997 UKHL 34, 1997 AC 147R v Savage 1991 1 AC 714Moriarty v Brookes 1834 172 ER 1419R v McNaughten 1843 8 ER 718LegislationOffences Against the Person Act (OAPA) 1861Serious Crime Act 2015