(a) The preferred charge in relation to Dolly and Gerhardt’s sprained ankle would be that of criminal negligence.
(b) The charge of criminal negligence would be the most appropriate considering the specifications of the case scenario owing to the fact that the dangers of racing down a steep slop while skiing is dangerous in a manner that is both reasonable and foreseeable. Dolly should have preemptively identified the risk involved in racing down the slope and the fact that she partakes in such an activity would amount to reckless and criminal negligence. It is important to note that criminal negligence is not wholly divorced from simple negligence and the difference is that of degree. A relevant case law is that of “Camarata Property v Credit Suisse Securities  EWHC 479” where the charge of gross negligence was extensively discussed in terms of being intended to represent something that is more significant that a simple failure to exercise skill and care (Swarb.co.uk, 2019).
(c) In the context of being Dolly’s defence counsel, the most suitable arguments that could be raised in response to the charge of criminal negligence would be that of contributory negligence. The defence of contributory negligence, although manifesting as a partial defence, is far more likely to succeed in negligence disputes as evident in the case of “Revill v Newbery  2 WLR 239” where the damage suffered was held as a partly due to the fault of the claimant and partly due to the fault of another (e-lawresources.co.uk, 2020). Gerhardt agreed to race down the slope along with Dolly, thus acknowledging the dangers of the activity that were both foreseeable and reasonable. Naturally, any damage that is inflicted due to the activity would impose a certain degree of liability on to Gerhardt as well.
(d) Responding to counter the arguments of contributory negligence, the prosecutor could put forward that Dolly failed to exercise reasonable skill and care as required when skiing down a steep slope since she was the one to lose control of her ski pole and crash into Gerhardt. The collision that took place was solely due to Dolly’s inability to carefully engage in skiing down the slope as a reasonable degree of expertise would be expected since she had agreed to race with Gerhardt.
(e) The preferred charge in relation to Gerhardt and the injuries suffered by Dolly would be that of actual bodily harm as covered under Section 47 of the “Offences against the Person Act 1861” (legislation.gov.uk, 2020).
(f) The choice of actual bodily harm would be appropriate as compared to other charges such as grievous bodily harm and common assault owing to the reckless nature of the activity engaged in by Gerhardt. Specifications of the case scenario presence that Gerhardt tells Dolly to climb into the cupboard after they were intoxicated while playing hide and seek and goes on to lock the door and put the key in his pocket. Cases involving actual bodily harm do not need the defendant to intentionally cause harm to the victim but instead commit the offence in a manner that is deemed reckless (Kamouni, 2018). After Gerhardt remembers to open the cupboard, Dolly is found to be unable to walk due to aggravation of her bad back and is also diagnosed with claustrophobia, thus further solidifying the charge of actual bodily harm that was caused recklessly.
(g) Considering arguments in favour of Gerhardt as his defence counsel, the defence of voluntary intoxication could be relevant since Gerhardt was intoxicated to the extent where he was incapable of forming the mens rea of the offence. It is important to note that the defence of intoxication in this regard would only be applicable to crimes of a specific intent and subject to the caveat that an intent that arises out of drunkenness would still be consider as an intent. A relevant case law in this regard is that of “R v Sheehan and Moore (1975) 60 Cr App R 308” where the key area of consideration was whether the defendant had the requisite intent during the material time of the offence (e-lawresources.co.uk, 2020).
(h) The prosecutor, when responding to the charges entailed in the section above relating to the usage of voluntary intoxication as a defence could argue that the act undertaken by Gerhardt was essentially a mistake arising out of drunkenness and therefore could not be used for any purposes of establishing a defence. A relevant case law in this regard is that of “R v Fotheringham (1989) 88 Cr App R 206” where drunkenness as a defence was not upheld owing to the nature of the offence comprising a basic intent (e-lawresources.co.uk, 2020). The prosecutor could equate Gerhardt’s activity of locking up Dolly with common assault where the mens rea was cuased recklessly.
(i) The preferred charge in relation to Gerhardt and the injuries suffered by Daniel would be that of grievous bodily harm as covered under Section 18 and 20 of the “Offences against the Person Act 1861” (legislation.gov.uk, 2020).
(j) The charge of GBH or grievous bodily harm would be appropriate in the context of Gerhardt stabbing Daniel as the act could be considered as unlawful and malicious since Daniel did not present any verifiable threat to Gerhardt and Dolly. Daniel merely entered the room to complain about the loud noises that were being heard. The fact that Daniel was speaking in a language they could not understand would further solidify the charge of GBH in terms of the particular sensitivities and characteristics that were associated with the victim. A relevant case law in this regard is that of “R v Bollom  EWCA Crim 2846” where the unique circumstances of the victim gained priority as compared to the nature and the severity of the wounds inflicted (e-lawresources.co.uk, 2020).
(k) The aspect of self defence, where Daniel’s barging into the room in an unprecedented manner after knocking on the door could be put forward as an argument as Gerhardt’s defence counsel. It could be argued that Gerhardt apprehended the manner in which Daniel pushed past him and entered the living room as imminent danger and a possible chance of burglary, whereby he used a measure of force that was reasonable and necessary in order to defend himself. The fact that the confrontation was initiated by Daniel by pushing past Gerhardt and barging into the living room would also add to the merit of the argument as a defence for Gerhardt. A relevant case law would be “R v Martin (Anthony)  1 Cr. App. R. 27” where physical characteristics of the defendant and the perceived nature of the threat gained prominence when establishing self defence as a means to prevent a charge of grievous bodily harm (oxbridgenotes.co.uk, 2020).
(l) In response to the arguments covered in the above section relating to self defence, the prosecutor could put forward that the degree of force used by Gerhardt was certainly not reasonable and necessary, especially since the act of stabbing Daniel in the stomach led to a severe internal injury. The basic principles of self defence have been extensively set out in the matter of “Palmer v R,  AC 814” and “R v McInnes, 55 Cr App R 551” where the use of excessive force was upheld as limiting the applicability of self defence as a means to limit the criminal liability of grievous bodily harm (cps.gov.uk, 2020). The fact that Gerhardt did not use any preventive measure such as restraining Daniel and went on to directly stab him in the stomach could negate the utilisation of self defence in this regard and thus add merit to the charge of grievous bodily harm caused intentionally.
Question 3 Compare and contrast the defences of insanity and intoxication
The aspects of insanity and intoxication are some of the most commonly used defences in terms of avoiding criminal liability within the UK. The current law in the country in terms of the applicability of intoxication as a defence towards criminal liability predominantly relates to the defendant being insane during the time when the offence was committed (Dejchai, 2019). Insanity as a defence within the UK manifests in three different ways, where the defendant claims insanity, where the defendant raises the defence of automatism and the judge instead opts for insanity and the defendant claims for diminished responsibility and the prosecution in able to show that insanity would be the appropriate line of action. One of the key fundamentals in utilising the defence of insanity is that the defendant must be able to prove that an underlying condition or disease was in fact present that affected the functioning of the mind.
The underlying condition must also lead to a defect of reason, whereby the ability of the defendant to act reasonably becomes impaired. One of the most important cases in this regard relates to the judgment of “R v Kemp (1957) 1 QB 399” where the defendant was found to suffer from arteriosclerosis that led him to assault his spouse while being in an unconscious state (e-lawresources.co.uk, 2020). The defence of insanity is also applicable during the time of the trial, where the defendant may claim that he or she is unable to defend appropriately owing to insanity. In terms of the criticism of the insanity as a defence, the 1975 report prepared by the Butler Committee is extremely relevant, that stated how the defence of insanity is based on a concept that was extremely limited and restricting (bmj.com, 2020). Furthermore, the fact that the burden of proof lies on the defendant as opposed to the prosecution along with the limited applicability of M’Naghten Rules.
Moving on to the defence of intoxication, it is available as a means to limit the imposition of criminal liability whereby the defendant fails to understand the nature and the implications of an offence owing to the fact that he or she was intoxicated. One of the key fundamentals of deciding the applicability of intoxication as a defence relates to the voluntariness involved within the intoxication (Mullins, 2017). Involuntary intoxication is comparatively easier to prove, whereby the defendant presents that he or she was misled or tricked into consuming the substance leading to the intoxication. Involuntary intoxication is applicable as a defence to both crimes involving basic intent as well as specific intent, where the intoxication limits the reasoning of the defendant to the point where the implications of the actions are completely failed to be understood. Voluntary intoxication, on the other hand, is extremely difficult to prove and can only be applicable in cases of criminal offences involving specific intents. In terms of the criticism entailed, the classification of offences leading to the establishment of intoxication as a defence are a major limitation since the nature of intent may often overlap. Furthermore, the burden of proof in determining that the intoxication was to such an extent that the intent of committing the crime was negated is a highly subjective area, often leading to contradicting judgements based on the factual circumstances involved (Robinson, 2018). Naturally, the lack of a generalised approach limits the scope of coverage of the defence.
bmj.com, 2020. The little used defence of insanity. Available at: https://www.bmj.com/content/bmj/290/6461/56.full.pdf (Accessed: 3 August 2020).
cps.gov.uk, 2020. Offences against the Person, incorporating the Charging Standard | The Crown Prosecution Service. Available at: https://www.cps.gov.uk/legal-guidance/offences-against-person-incorporating-charging-standard (Accessed: 3 August 2020).
Dejchai, Y., 2019. The Insanity Defence Revisited: To Retain or Abolish? The Study from the UK and US Regimes. NITIPAT NIDA Law Journal, 8(2), pp.15-43.
e-lawresources.co.uk, 2020. R v Bollom. Available at: http://www.e-lawresources.co.uk/R-v-Bollom.php (Accessed: 3 August 2020).
e-lawresources.co.uk, 2020. R v Fotheringham. Available at: https://www.e-lawresources.co.uk/R-v-Fotheringham.php (Accessed: 3 August 2020).
e-lawresources.co.uk, 2020. R v Kemp. Available at: https://www.e-lawresources.co.uk/R-v-Kemp.php (Accessed: 3 August 2020).
e-lawresources.co.uk, 2020. R v Sheehan and Moore. Available at: http://www.e-lawresources.co.uk/R-v-Sheehan-and-Moore.php (Accessed: 3 August 2020).
e-lawresources.co.uk, 2020. Revill v Newbery. Available at: https://www.e-lawresources.co.uk/Revill-v-Newbery.php (Accessed: 3 August 2020).
Kamouni, S., 2018. Learn the difference between the terms ABH and GBH, which is most serious and the maximum penalties, The Sun. Available at: https://www.thesun.co.uk/news/3937038/gbh-abh-difference-crime-maximum-penalty/ (Accessed: 3 August 2020).
legislation.gov.uk, 2020. Offences Against the Person Act 1861. Available at: https://www.legislation.gov.uk/ukpga/Vict/24-25/100/contents (Accessed: 3 August 2020).
Mullins, G., 2017. Drunk and Delirious Defences: Intoxication and Insanity in the Criminal Code (WA).
oxbridgenotes.co.uk, 2020. R v Martin (Tony)  1 Cr App R 27. Available at: https://www.oxbridgenotes.co.uk/law_cases/r-v-martin-tony (Accessed: 3 August 2020).
Robinson, P.H., 2018. A brief summary and critique of criminal liability rules for intoxicated conduct. The Journal of Criminal Law, 82(5), pp.381-387.
Swarb.co.uk, 2019. Camarata Property Inc v Credit Suisse Securities (Europe) Ltd: ComC 9 Mar 2011 - swarb.co.uk. Available at: https://swarb.co.uk/camarata-property-inc-v-credit-suisse-securities-europe-ltd-comc-9-mar-2011/ (Accessed: 3 August 2020).
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