Advise the Parties as to their criminal liability, adding critical comment where you think the law is unsatisfactory.
It is apparent that the issues of Transferred Malice, Grievous Bodily Harm, and defences such as Self-defence and mistake in elation to Intoxication are relevant to Charles liability. Indeed, it is purported that neither Albert or Bessie have done anything they could be criminally liable for. It is also suggested, that Charles’ Intoxication is voluntary.
It seems that the potential greatest offence that Charles may be liable for is Grievous Bodily Harm under section 18 of the Offences against the Person Act 1861. Indeed the actus reus of the offence states the defendant must ‘wound or cause any grievous bodily harm... unlawfully’. Indeed the badly gashed head of Bessie could constitute a wound under the ‘continuity of the whole skin be broken’ rule found in Eisenhower. ‘Really serious bodily harm’(DPP v Smith ), is suggested to be the technical meaning of GBH, and it be argued to reflect the wounding of a badly gashed head. This however would be a question for the jury to decide.
The mens rea of such a defence requires that the act be done ‘maliciously’ and with ‘intent’. It is likely that Charles would fall under section 18 rather than section 20 of the act, which does not require intent. One could argue that by smashing a bottle over someone’s head, harm was indeed intended. With such a case, it is first important that to note that the harm was not actually directed at Bessie but Albert. Nevertheless due to the common law principle of Transferred Malice, it is apparent that if the intent to harm Albert is found, and the act occurred i.e. Bessie’s injuries, both elements would have been formed, and so create a whole offence. This was the case in Latimer whereby the defendants intentions to swing a belt at a man, but who actually hit another women, was liable in the words of Lord Coleridge C.J ‘if a person has a malicious intent towards one person, and in carrying...he injures another person, he is guilty’.
Transferred Malice has been the topic of much criticism by academics and Judges alike. A J Ashworth suggests the doctrine ‘results in criminal liability for consequences which would in ordinary language be described as an accident’. Especially in the context of Charles’ liability, one could purport that he should not be liable for injury to Bessie, when in fact he was seemingly trying to help her. Indeed the English criminal system is heavily based on trying to find someone culpable for the harm done to another, but in such a case as Charles where his intention is questionable anyway, it seems somewhat ‘unjust’. Nevertheless, The Law Commission and many other academics like Clarkson and Keating are happy with its present form, and thus suggests it will be an inherent form of the English Criminal Law.
The use of ‘maliciously’ in both the mens rea of section 18 and the ratio of Latimer, is however important in analysing Charles liability. In Cunningham, the Court of Criminal appeal interpreted malicious as to mean that the defendant had to see that such harm would be done by his actions, and still went on to take the risk. One could argue that Charles must have foreseen that using such an object as a glass bottle over some ones head would constitute serious harm. This would however be a decision for the jury to decide, and may be rectified by some of the defences Charles may have.
It is important to note that Charles was ‘very inebriated’ when the offence occurred, and although this may stand as a defence in its own rights, the area of intoxication fundamentally affects other types of defences that Charles would plee in order to lessen or free him from liability. In what appears to be voluntary intoxication on Charles behalf, there will usually be no defencebut in certain circumstances it may act as a partial defence.
If we are to take possible defences under the actus reus of such an offence, it could be argued that Charles did not undertake the violence ‘unlawfully’. Charles may argue that his actions were that to protect Bessie from any harm, and was thus acting in self defence. Although the fear of attack was not directed at Charles, after rulings such as R v Rose and other common law examples, it is apparent that Charles may act in self defence of another. Furthermore, it is believed that if a defendant makes a mistake about the circumstances in which force is used, they are entitled to be judged on the facts as they believed them to be (R v Scarlett 1993). However, the fact that Charles was intoxicated changes his use of such a defence, especially because self-defence will invariably act as a total defence. Those like Clarkson and Keating argue that alcohol increases ‘defensive activity’ and thus increases the interpretation of non-threatening behaviour to be more so than is actually true.
The courts have taken a stance that however genuinely believed, a drunken mistake in self defence is no defence to a criminal charge. Such examples are R v O’Grady where the defendant who woke from a drunken stupor found his friend hitting him, and acting in intoxicated ‘self-defence’, killed his friend through several blows. Indeed Lord Lane C.J in the defendants appeal claimed that if ‘the mistake was caused by voluntarily induced intoxication, the defence must fail.’ In Charles case, it is possible that this defence would fail, considering that it appears his intoxication was voluntary. His alcohol consumption would have inevitably impaired his perception of what he believed was Albert’s threatening and potentially deadly behaviour towards Bessie.
Due to the strict approach to intoxication and self defence, Charles may try to use intoxication as evidence to disprove the mens rea of the offence. Indeed if he did not form the malicious intent due to mistake, he did not form the mens rea of the defence and would therefore be acquitted or charged with a lesser offence. It is first important to note that ‘intoxication’ in its legal definition is only concerned with drunkenness or drug use that is sufficiently severe. In Stubbs it was stated that the intoxication needed to be ‘very extreme’. In Charles case it is apparent that he is ‘very inebriated,’ and could possibly suggest such severity as illustrated in Stubbs. This would however, be a question for the jury to decide based some higher accounts of burden of proof from the defendant that he was ‘intoxicated and on the attempts of the prosecution to illustrate that this drunkenness did not negate his mens rea.
It is first important to establish that intoxication will only act as a defence to specific crimes, as displayed in Majewski who committed assault and whose intoxication was not taken into consideration because it was a crime of basic intent. This has been thought to be due to the fact that those who cannot be charged with specific intent, can then be charged with the ‘lesser’ crime. This can not necessarily be the case with basic intent crime. However, it was held in the earlier case of Sheehan that a ‘drunken intent is nevertheless an intent,’ and therefore Charles could still be liable. However one could argue that in such circumstances as Charles that his intent to be ‘violent’ is differential to the others, considering it was for the seeming purpose of defending someone else. Also if Albert were to die as a result of his injuries however, the judgement of O’Connor suggests that in cases of murder, consideration of the forming of the specific intent may be taken into account, transferring the liability to manslaughter.
There has been much controversy over intoxication, as to whether criminals should be charged with offences under the influence of Sheehan. Lord Birkenhead suggests that ‘where a specific intent is an essential element in the offence...and the accused (is) incapable of forming such an intent (it) should be taken into consideration’. Indeed although the Caldwell recklessness has been somewhat weakened recently, Charles did take a risk by becoming intoxicated, and would thus be blameworthy for this actions. Whilst others like Lord Elywyn-Jones LC suggest that ‘if a man of his own violition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally.’ Such is the argument that the general principle of intoxication and criminal liability are not unethical or contrary to the principle of natural justice. Fundamentally the argument between principle (that such defendants often lack the mens rea requirement of the offence) and policy, whereby the interest of the public take precedence against self-induced violent behaviour, has created need for reform.
Those like the law reform have proposed that a new special offence of causing harm whilst deliberately intoxicated. Through this reform the issue of fair labelling would be irradiated and sentencing would be more lenient. Indeed, Charles’ potential liability would not only result in being labelled with an offence akin to murder, but could also potentially serve a life sentence under section 18, for trying to help in what he believed to be a fatal attack. Studies in Australia and New Zealand who regulate law on the topic much the same as the proposed reforms, have shown that there are no more acquittals or weaker public interest under such a charge.
In conclusion, it would seem that Charles’ actions contrary to section 18 may only be partially defended by will of the jury. If they believe the mens rea requirement is not wholly satisfied, it is likely that he would be charged under section 20 (that requires a more ‘basic’ intention). The use of the word ‘cause’ in section 18 is also ‘wider’ than the infliction of harm needed in section 20, which would still constitute the causation of Bessies harm through transferred malice and also cover the Grevious Bodily Harm of Albert.
CMV Clarkson & HM Keating, Criminal Law ‘Text and Materials’, Fifth Edition, 2003
A.J.Ashworth, ‘Transferred Malice and Punishment for Unforeseen Consequences’ (1978) pp 77, 84-89
Lord Birkenhead LC’s historical survey of intoxication and the courts
C v Eisenhower 1984
DPP v Smith 1961
R v Latimer L.R 17 Q.B.D 359
R v Cunningham  2 Q.B 396;  All E.R 412, CCA
R v Rose (1884) 15 Cox C.C 54 0
R v Scarlett  4 All E.R 629 ; (1994) 98 Cr. App, R 290
R v O’Grady  Q.B 995 CA (Crim.Div)
R v Stubbs (1989) 88 Cr. App. R 53 (1988) 10 Cr. App. R (S.) 97
R v Majewski  AC 443;  2 All ER 142 (HL)
R v Sheehan (1975) 60 Cr App R 308;  2 All ER 960 (CA)
R v O’Connor  Crim. L.R 135, CA
Offences Against The Person Act 1861
Draft Criminal Law Bill 1993, cl. 32 (Law Com. No. 218, 1993)
 C v Eisenhower 1984
 DPP v Smith 1961
 Offences Against The Person Act 1861
 R v Latimer L.R 17 Q.B.D 359
 A.J.Ashworth, ‘Transferred Malice and Punishment for Unforeseen Consequences’ (1978) pp 77, 84-89
 Draft Criminal Law Bill 1993, cl. 32 (Law Com. No. 218, 1993)
 CMV Clarkson & HM Keating, Criminal Law ‘Text and Materials’, Fifth Edition, 2003
 Offences Against The Person Act 1861
 R v Cunningham  2 Q.B 396;  All E.R 412, CCA
 R v Rose (1884) 15 Cox C.C 54 0
 R v Scarlett  4 All E.R 629 ; (1994) 98 Cr. App, R 290
 CMV Clarkson & HM Keating, ‘Criminal Law, Texts and Materials’, 2003
 R v O’Grady  Q.B 995 CA (Crim.Div)
 R v Stubbs (1989) 88 Cr. App. R 53 (1988) 10 Cr. App. R (S.) 97