HARASSMENT
It seems rather evident that there was an element of Harassment which Alexandra is liable for. Section 2 of the Protection from Harassment Act 1997 (PHA) makes it an offence to cause any form of harassment.
Harassment is as defined in section 7(2) that a harassment includes any action causing ‘alarm or distress’. It is worth noting there is no clear definition of harassment, and even a lack of transparent evidence would not invalidate a claim for harassment, as seen in the case of DPP v Ramsdale [2001].
For the Actus Reus to be fulfilled, the course of conduct must have been shown to cause the said harassment, and the conduct must have been done in two separate occasions as per section 7 of PHA. Applying this, Alexandra made persistent phone calls and emails in a duration of a year. Thus, fulfilling the Actus Reus.
The Mens Rea of harassment is at the time of acting, ‘D must have known, or ought to have known, that her course of conduct would result in harassment’. This can be satisfied through an objective test; this is asking the question whether a reasonable person ought to have known that the acts amounted to harassment, as seen in the case of Colohan [2001]. Applying the facts, a ‘reasonable person’ would have definitely known that sending numerous emails, and the making of telephone calls would amount to harassment.
It is likely that Alexandra would also be liable for stalking under section 2A PHA which carries the same Actus Rea and Mens Rea of harassment. Alexandra followed David on multiple occasions back home from work, and even spied on him in a bush, thus it is rather clear that offence of stalking is proven as well.
There may even be a valid claim of aggravated stalking, which is an addition to the requirements of stalking. To be liable, the conduct must have caused David to fear violence, serious alarm or distress. The conduct must also have had an affect on the daily life of David. Thus, applying the facts, David dropped out of school and sought psychiatric attention, with that in mind, it is more than likely that David was in a serious state of alarm, which disrupted his ability to attend school, hence resulting him in dropping out and seeking psychiatric attention.
ASSAULT
There may be a case of assault against Alexandra under section 39 of the Criminal Justice Act 1988. Assault is any conduct that ‘intentionally or recklessly, causes the victim to apprehend imminent unlawful personal violence’. ‘Unlawful personal violence’ is now as defined in R v Ireland [1997] as any action no matter serious or not that causes David to expect violence. The violence must also be imminent. This requires a subjective look into the mind of David, and whether he expected imminent danger by Alexandra hiding in the bushes.
It may be argued by Alexandra that there was no ‘imminent danger’, as she was outside David’s house. However, in Smith v Chief Superintendent, Working Police station [1983] the victim spotted the defendant standing in her garden, hence making the victim fear imminent danger. The courts ruled that the defendant was liable for assault even though the victim was safely locked inside her house. Thus, applying this case, it is unlikely that argument would stand.
Furthermore, in R v Ireland and Burstow [1997], it was ruled by the court of appeal that it was not necessary for there to by physical proximity, as long as there is an immediate fear of danger by the defendant. Thus, it is more than likely the Actus Reus of assault is fulfilled.
The Mens Rea, as per case facts, is that David intends to causing the result. David must have intended to cause Alexandra to apprehend ‘imminent unlawful violence’, as per established in the case R v Venna [1976]. On the facts, it is clear that Alexandra intended to be in the premises of David’s house as she was hiding in the bushes.
SECTION 47 OAPA 1861
There may be a case of Section 47 under Offences Against Persons Act (OAPA) against David; this is assault occasioning actual bodily harm. However, first there must be a base offence of either assault or battery. However, in this instance, Battery would be looked as there was physical contact.
The next step is whether the battery caused an Actual Bodily Harm (ABH). ABH has been described in R v Miller [1954] to include any ‘hurt or injury calculated to interfere with health or comfort’, hence with this definition, one may not classify cutting of her as ABH. However, it is clear in DPP v Smith [2006] that even the cutting of hair can constitute as ABH. Thus, applying this, it can be clearly seen that by David cutting Alexandra’s hair, he had indeed caused some form of interference with her health or comfort, resulting in some hurt or injury.
The Mens Rea of a section 47 offence is that David must have intended to making contact with Alexandra. Under R v Roberts [1972] it is confirmed that there is no need for the defendant to foresee the chance that his actions caused ABH. Applying this, there seems to be no doubt that since David brought the scissors out, he indeed intended to cause ABH to Alexandra, thus Mens Rea is clearly established.
There may be a claim against Alexandra for Psychological Injury under S.47. In the case of Miller [1954], it was accepted that ABH can include psychological injury. Said ABH must also be a clinically recognisable condition and not just include ‘mere emotions’ as per R v Chan- Fook [1994]. Applying this, the fact that David had to be psychiatrically treated, and dropped out of school seems likely that ‘nervous wreck’ comes under the definition of a recognisable psychiatric illness.
Mens Rea is easily established because Alexandra sent many emails, phone calls, and stalked him back home on multiple occasions. All this must have been done with intent. Thus it is likely Alexandra is found guilty for psychiatric harm towards David under S.47.
Section 20 OAPA 1861
There may be a claim under section 20 OAPA 1861 for the wound sustained by Alexandra as a result of her fainting and falling.
Section 20 of the OAPA 1861 criminalises ‘malicious wounding and/or inflicting GBH, with at least foresight of some bodily harm’. GBH has been confirmed in DPP v Smith [1961] to be interpreted as its ordinary and natural meaning, which simply means ‘ serious harm’. However said harm need not be life threatening. It may be argued the act of ‘fainting’ does not come under ‘serious harm’, however, the case of Hicks [2007] proves otherwise. In this case the defendant hit the victim with a single blow, knocking him down unconscious. The court of appeal classified the state of unconsciousness as part of GBH.
In order to constitute a wound, the victim’s skin must be broken. Applying to the facts, when Alexandra fell to the ground, she cut her head on a rock, thus easily fulfilling the definition of wound.
It is evident, that because David cut Alexandra’s hair, she fainted (causing GBH), sustaining a cut from a rock in the process (wounding). Thus the Actus Reus of this section is satisfied.
The Mens Rea criterion of this offence is described by the word ‘maliciously’, which in R v Cunningham [1957] was defined to be ‘intention or recklessness’. However, as established in R v Mowatt [1967], there need not be any intention to recklessness to causing the GBH or wounding, just that the act could have been foreseen to cause some physical harm. Applying the facts, it can be foreseen by David that grabbing hold of Alexandra and cutting her hair could result in a reaction by her causing GBH and Wounding.
An argument by David would be that he may have not foreseen any actual harm at all to occur. It can be highlighted that in Director of Public Prosecutions v A [2000] the court ruled that the defendant is only required to foresee harm might occur, not that it would occur, thus invalidating the argument.
MURDER
There may be an element of murder against David for killing Kevin. Murder requires the defendant to unlawfully kill another person under the Queen’s peace, and to do so intending to kill or cause GBH.
The Actus Reus of murder is satisfied when D unlawfully kills another person under the Queen’s peace. The conduct can be of anything that cause the result (death). Thus, unlawfully pulling out a rifle and shooting Kevin clearly satisfies this element.
Perhaps a more difficult element to establish would be one of Mens Rea. The current law only requires the defendant to have an intention to kill or cause GBH. The test for ‘intention’ is a subjective one based n virtual certainty. David may argue an objective test to be used as per DPP v Smith, however it has since been regarded bad law and is unlikely to be applied.
There seems to be direction intention to cause GBH, as David only intended to shoot Kevin in the leg. Shooting someone in the leg is clearly a GBH, as it qualifies under ‘serious harm’. However, a possible argument for David would be that he thought it was Alexandra climbing over the offence, and not Kevin, thus he had no intention to wound Kevin. This argument is unlikely to hold up in court as Kevin did intend to cause GBH to Kevin, regardless whether he thought he was Alexandra or not.
David may be able to bring forward two defences. First being an argument for Temporary Loss of Self Control as person section 3 of the Homicide Act 1957. If this partial defence is valid, it would reduce the offence from a murder to voluntary manslaughter. First element is that David must have loss self control. ‘Loss of self control’ is seen to although not be defined under statute, to mean ‘emotion/loss of rationality’. There could be a valid claim here as David has been described as a ‘nervous wreck’, and may have acted irrationally on Kevin.
Next element is that there must be qualifying trigger. David must have have feared serious violence from the intruder. It can be said that because of preceding events of harassment, and having feared harm from her before, that he indeed feared harm from whom he thought was Alexandra. David must have also had a sense of being seriously wronged by things said or done. This seems easily established as he was harassed my Alexandra and felt seriously wronged by it, thus even a reasonable man must have felt seriously wronged by it.
Last element, is whether a ‘reasonable man’ would have reacted the same way. Given the previous accounts of stalking and harassment, it is likely that a ‘reasonable man’ may find it quite alarming that the harasser/stalker is approaching his house, and in light of that acted in the way he did. In conclusion, it is up to the Jury whether they find a defence of loss of self control, however it seems likely that there indeed was.
The next defence although the less likely would be Protection of Property under Section 76 Legal Aid, Sentencing and Punishment of Offenders Act 2012. This defence will only stand if there is apparent evidence that David thought he was gonna be killed by Kevin ( whom he thought was Alexandra). However this is unlikely to succeed as Kevin had no weapon with him.