Oapa and Consent
Thirteen year-old Tom had recently been playing football and kicked his ball over a fence into his neighbour’s garden. Tom’s neighbour was a cantankerous 70 year-old called Stan who confiscated the ball when he saw it land on his pristine lawn. As a result of this incident Tom decided to play a practical joke on Stan by posting letters through Stan’s letterbox each day on his way to school. Inside the letters were the words: ‘You’ll pay for what you have done old man.’ As a result of receiving these letters every day for a month Stan became scared to leave his house and was diagnosed by his doctor as suffering from depression.
To celebrate the success of his ‘joke’ on Stan, Tom decided to get a tattoo of the words ‘I’m the man’ on his
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The mens rea for a s47 is intention or subjective recklessness for the assault i.e. here for a technical assault – it does not extend to the ABH – Savage and Parmenter . Therefore the defendant (Tom) does not need to have foreseen any harm. The mens rea for a technical assault is to intend or be subjectively recklessness as to causing someone to apprehend the application of unlawful force (see above). It is not clear whether this requirement is made out as Tom is joking. It depends on whether he foresaw that Stan would take the joke seriously and apprehend force. If he has foreseen a risk of this then he is guilty of the offence, if he has not, then the mens rea is not made out.
Injury to Tom
The two possible offences here are a s20 OAPA or a s47 (again no intention for the section 18 offence). The actus reus of s20 includes a wound or the infliction of GBH. A wound was defined in Eisenhower (1984) as requiring a break in both layers of the skin. It is likely therefore that a tattoo will satisfy this requirement. It was once thought that a wound must result from a battery, Taylor (1869) but this was rejected in Savage and Parmenter. The requirements for a wounding are likely to be made out. Some serious wounds may also satisfy GBH – however, it is unlikely here that the wound would be serious enough to constitute GBH.
Despite this, the Hepatitis C may well constitute GBH as it is serious harm – see Smith. In Dica