Oapa and Consent

Topics: Grievous bodily harm, Mens rea, Actus reus Pages: 5 (1850 words) Published: April 13, 2013
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 upper arm. Tom knew that licensed tattoo parlours would not tattoo him because he was under 18 years-of-age. He decided to ask his older friend, Robert, to do the tattoo because he had been working for 3 months as a trainee tattoo artist.

In order to give Tom his tattoo Robert took equipment from his work as he left at the end of his day. However, because he was borrowing the equipment without his employer’s permission Tom was not able to sterilise the equipment prior to taking it. Robert has had extensive training on the importance of properly sterilising equipment prior to using it in order to minimise the risk of transmitting blood-borne diseases. Robert completes Tom’s tattoo and returns the borrowed equipment to his employer the next day. He is later shocked to learn that Tom has contracted hepatitis C as a result of the tattoo.

Consider the liability of Tom and Robert, if any, for offences against the person. In your answer you should consider:

a.Tom’s liability for sending the letters to Stan and causing his depression; b.Robert’s liability for tattooing Tom and causing him to contract Hepatitis C; and, c.the effect, if any, that Tom’s consent to the tattoo will have on Robert’s liability.


Injury to Stan

There are two possible charges here that may be brought against Tom in relation to the injury suffered by Stan. Firstly, s20 OAPA 1861 and secondly s47 of the same Act. Stan is suffering from depression and is too scared to leave the house. Therefore, his depression may be serious enough to qualify as GBH under S20. Although s20 has the same AR as s18, the mens rea requirement for s18 is more serious as it requires causing GBH with intention to cause GBH. This is unlikely to be satisfied as there is no indication that Tom intended GBH when he delivered the letters.

The actus reus of s20 includes the infliction of GBH. GBH has been defined in DDP v Smith [1961] as really serious harm. Saunders [1985] suggests that serious harm will suffice. In Ireland [1998] it was stated that psychological injury is capable of constituting GBH if it is serious enough. The fact that Stan was depressed and too scared to leave his home indicates that this might be satisfied. The actus reus of s20 refers to the infliction of GBH. It used to be thought that infliction required the direct application of force, see Clarence [1888] this is no longer the case, see Ireland. The result of Ireland is that there is no difference between ‘inflict’ under S20 and cause under S18. It follows from Ireland (and also Constanza [1997]) that one can inflict GBH through words alone i.e. phone calls or words in letters, as is the case here.

The mens rea for s20 is denoted by the word ‘maliciously’ which means intention or subjective recklessness as to some physical harm – Savage and Parmenter [1992]. Following the decision in Ireland, on the inclusion of psychiatric illness under bodily harm, it is possible that foresight of some psychiatric harm might also suffice. Tom must foresee the risk of some harm to Stan from his actions. As Tom sees his actions as a practical joke he may not satisfy this mens rea requirement.

There is also the possibility of s47...
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