When is it ‘Necessary’ to Protect a Person from Harassment?
| Published date | 01 April 2013 |
| Date | 01 April 2013 |
| DOI | http://doi.org/10.1350/1740-5580-77.2.105 |
| Subject Matter | Court of Appeal |
have been unlawful due to the manner in which P1 conducted the
search. This was a tactical decision brought about primarily by the
decision of the trial judge not to allow the indictment to be amended to
include assault. Had the indictment included an alternative count charg-
ing assault the defence may have focused to a greater extent on whether
it was lawful for N to throw a punch in his own defence (at [15]). As
such, the court did not feel it would be just to substitute a conviction for
attempted battery (at [16]).
The Court of Appeal’s decision in the present case does raise the
question about the logic of allowing a conviction for attempt only for
offences capable of being tried on indictment, given that, in relation to a
charge of assault by beating the situation in which it is triable on
indictment is likely to be limited and arbitrary, depending on whether
there is an associated indictable offence capable of invoking s. 4 of the
Criminal Justice Act 1988. The current Law Commissioner, Professor
David Ormerod argues (Smith and Hogan’s Criminal Law, 13th edn
(Oxford University Press: Oxford, 2011) 13.2.4.1) that:
There seems to be no good reason why it should not be an offence to
attempt to commit a summary only offence and the policy should be
reconsidered.
The Law Commission’s Eleventh Programme of Law Reform, Law Com.
No. 330, HC 1407 (19 July 2011) includes an invitation by the Ministry
of Justice to carry out a scoping exercise as a first step towards reform of
the law of non-fatal offences against the person (for a detailed discussion
of the Law Commission’s criticism’s of the current law and the broad
proposals for reform of offences against the person, see M. Jefferson,
‘Offences against the Person: Into the 21st Century’ (2012) 76 JCL 472).
The present case certainly highlights the seemingly arbitrary nature of
attempts liability in the context of common assault and the possible need
for change. It may well be that such a change is included in the Law
Commission’s proposals for the modernisation of non-fatal offences
against the person once the scoping exercise gets under way.
Adam Jackson
When Is It ‘Necessary’ to Protect a Person from
Harassment?
R v Smith (Mark John) [2012] EWCA Crim 2566
Keywords
Criminal damage; Harassment; Insanity; Restraining orders
The appellant, Mark Smith (S), was returning from a holiday in Thailand
with his partner in September 2011. During a flight from Mumbai to
London, S ‘suffered a brief reactive psychosis’ and was convinced that
there were suicide bombers on board the aircraft. He further convinced
himself that the bombers were going to use the remote controls attached
105
The Journal of Criminal Law
to the seats to detonate bombs during the flight. Now very upset, and
believing that he had to act in order to save himself and the other people
on board, he wrenched two remote controls from the seats. He then got
out of his seat and moved ‘frantically’ round the aircraft. He said ‘I need
to get off’, and tried to open a rear exit door. (He later told psychiatrists
that a voice in his head was telling him that he was only two feet from
the ground.) Inevitably this alarmed other passengers and cabin crew
stepped in to restrain S. His behaviour at this point was described as
‘violent and abusive’. The cabin crew suspected that he was drunk. As a
result, S was charged with offences of criminal damage contrary to the
Criminal Damage Act 1971 and interfering with the performance of an
aircraft crew member's duties (an offence under art. 142(a) of the Air
Navigation Order 2009 (SI 2009 No. 3051).
Before the trial, S was examined by psychiatrists on behalf of the
prosecution and the defence. S explained he had suffered food poisoning
during the last three days of his holiday which caused vomiting and
extreme diarrhoea, leaving him dehydrated. He had then suffered...
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