The Mental Element in Non-Fatal Offences against the Person

DOI10.1177/002201839105500206
Published date01 May 1991
AuthorDavid Cowley
Date01 May 1991
Subject MatterComment
COMMENT
THE
MENTAL ELEMENT IN NON-FATAL OFFENCES AGAINST
THE
PERSON
In a remarkable series of recent decisions the Court of Appeal
has, with mixed results, re-examined anumber of aspects of the
mental element in certain non-fatal offences against the person:
(l)
The test
of
recklessness in offences
of
assault
The ruling in R v Spratt [1990] 1 WLR 1073; 54 JCL 422, confirms
that the type of recklessness relevant in offences of assault is so-
called Cunningham-recklessness, which requires that
'the
accused
has foreseen that . . . harm might be done and yet has gone on to
take the risk of it'. In so doing, Spratt dispells the uncertainty
created by the decision of the Divisional Court in
DPP
v K (a
minor) [1990] 1 All
ER
331; 54 JCL 4 and 370, which proceeded
on the assumption that Caldwell-recklessness, encompassing a
failure to give thought to a risk which would have been obvious
to a reasonable man, was applicable.
DPP
v K was overruled.
The decision in Spratt is particularly welcome in that it re-
establishes aconsistency of approach to the issue in hand through-
out offences in this area
(d.
W(a minor) vDalbey [1983] Crim
LR 681 (s 20); R v Morrison (1989) 89 Cr
App
R 17 (s 18)).
(2) The test
of
foreseeability in crimes
of
'malice'
The decisions in R v Savage (1990) The Times, 18 May, and R v
Parmenter (1990) The Times, 30 July, confirm the subjective nature
of the foresight requirement included in the term 'maliciously' as
used in section 20 of the Offences against the Person Act 1861.
In Savage, the defendant threw the contents of a pint glass of
beer at another woman whom she disliked. She let go of the glass
which broke and cut the other woman. On a charge of unlawful
and malicious wounding contrary to s 20 of the 1861 Act, the
defendant admitted that she intended to throw the beer over the
216

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