Problem Question: Criminal Law, No. 19

Problem Question

Derek has a history of mental illness and difficulty in controlling his temper. He never drinks in public because he finds it difficult to resist his aggressive urges when he is disinhibited by alcohol. As he rarely drinks, he becomes drunk easily. One evening, in a bar after work, some work colleagues, for a prank, spike his soft drinks with drugs and then with vodka. Derek becomes a little light-headed and has an argument with a complete stranger, Victor. During the argument, he swings a punch at Victor, who evades the punch but falls backwards over a table. Victor reports Derek to the police. Derek is arrested the next day. On hearing about this, Derek’s employer sacks him.

Now lonely and isolated, Derek spends a lot of time on his own. He starts to see Victor everywhere he goes and believes Victor is persecuting him. When he tells his solicitor about this, he is advised to seek medical help. He is diagnosed as suffering from paranoid schizophrenia. However, he fails to take the drugs prescribed to control his symptoms and instead self-medicates with cannabis and other psychoactive substances. One evening after smoking a considerable amount of cannabis, he decides to go out drinking. Leaving a bar, he sees Victor walking towards him carrying what looks like a shotgun, and terrified that Victor is going to kill him, he grabs a chair and hits Victor twice on the head with it. Other customers in the bar overpower Derek, and during the struggle, Derek lashes out with his fists hitting one of the customers, Boris, hard in the face causing a black eye and swelling. It transpires that Derek has attacked Ivan, not Victor, who was carrying a walking stick, not a gun. Ivan suffers permanent brain damage as a result of the blows to his head.

Discuss Derek’s criminal liability for the offences he may have committed.**

Analysis

1. Assault on Victor (or Ivan)

Common Assault and ABH:

• Assault: Derek’s act of swinging a punch at Victor constitutes common assault if it causes Victor to fear immediate violence. Although Victor evaded the punch, the act can still be considered an assault if it caused Victor to apprehend imminent harm.

• ABH (Actual Bodily Harm): Derek's act of hitting Ivan with a chair, which caused Ivan to suffer permanent brain damage, could be charged as ABH or GBH, depending on the severity of the injury

AR and MR:

◦ AR: The act of hitting Ivan with a chair clearly constitutes a physical act causing harm.

◦ MR: The necessary mens rea for ABH is recklessness as to the harm caused. Derek must have foreseen that his actions could cause some level of harm.

• Defences:

◦ Involuntary Intoxication: Derek’s drink was spiked with drugs and alcohol, which led him to become light-headed. In R v Kingston [1994], it was held that involuntary intoxication does not provide a defence if the defendant still has the requisite mens rea. In Derek’s case, even though he was intoxicated, if he still had the requisite intention or recklessness, this defence might not apply.

◦ Automatism: This defence requires a complete loss of control. Derek’s condition—being light-headed rather than experiencing a complete loss of control—does not meet this requirement.

◦ Insanity: While Derek has a history of mental illness, insanity requires that the defendant did not know the nature and quality of their act or that it was legally wrong. Derek’s awareness of the situation, despite his mental illness, indicates that he might not qualify for this defence.

◦ Diminished Responsibility: As Derek has paranoid schizophrenia, it might be argued that his mental condition impaired his ability to understand the nature of his actions or to control them. However, diminished responsibility typically applies in murder cases and is a partial defence that reduces a murder charge to manslaughter.

2. GBH on Boris

GBH:

• AR and MR: The act of hitting Boris hard in the face causing a black eye and swelling constitutes GBH under s.20 of the Offences Against the Person Act 1861 if the injury is serious. The mens rea required is recklessness as to causing some harm.

Defences:

◦ Involuntary Intoxication: As mentioned earlier, involuntary intoxication may not absolve Derek of liability if he still had the requisite mens rea.

◦ Automatism: Again, this defence is unlikely to succeed due to the nature of Derek’s condition.

◦ Insanity: This might be considered due to Derek’s diagnosed paranoid schizophrenia. However, it is unlikely to be a complete defence unless it can be shown that Derek did not understand the nature of his actions or that they were legally wrong.

◦ Diminished Responsibility: Although not typically applicable to non-murder offences, Derek’s mental health might be considered in sentencing.

Summary

• Assault and ABH on Ivan: Derek could be liable for common assault (for the punch at Victor) and ABH or GBH (for hitting Ivan with a chair). His defences of involuntary intoxication, automatism, and insanity are unlikely to fully absolve him of liability due to his awareness of his actions and the nature of his intoxication.

• GBH on Boris: Derek is likely to be liable for GBH as the harm inflicted was serious, and the defences of involuntary intoxication, automatism, and insanity might not fully relieve him of responsibility.