The Elements of Criminal Responsibility

  • 4 Pages
  • Published On: 18-12-2023
1. Felix’s threat and his threatening gesture

Section 39 of the Criminal Justice Act 1988 provides for the offences of common assault. It is an assault if a person, intentionally or recklessly, causes the victim to apprehend immediate unlawful personal violence. For an assault, there must be an act. It can be words or words with by some threatening act. The essential requirement is that the victim must be caused to fear an immediate unlawful violence. A gesture is, thus, sufficient to cause such fear if it is of threatening character. The mens rea for assault requires the Defendant to intend or foresee that the act will cause the victim to apprehend an imminent violence. The act must be voluntary and the defendant must be aware that the victim is a person.


Unlawful violence will be a non-consensual contact with the victim. Thus, if the victim is caused to apprehended even a low level violence. For assault, there is no need for the violence to serious or an actual injury. The question is whether the defendant’s conduct had the impact to have caused the victim to apprehend unlawful violence and not whether the conduct was likely to cause the apprehension.

The threat of violence must be immediate and must relate to unlawful violence. Thus, any threat of violence, however serious, not at some imminent point in future cannot be an assault. A wide definition of imminence is employed by the courts to determine assault. Thus, in the case of Constanza where the victim was harassed by the defendant for over 20 months causing the victim clinical depression, the court charged the defendant with assault causing actual bodily harm. The Court of Appeal held that the victim was caused to apprehend violence at ‘some point not excluding the immediate future’.

In this case, Felix will be charged for assault under Section 39 of the Criminal Justice Act 1988. His threat to hit Chin constitutes words that are enough to be common assault. Moreover, he waved his fist in the air at him, which is a threatening act that accompanied his threat. No actual force is needed for an assault. If his threat and gesture incite an apprehension that Chin is under an immediate unlawful personal violence, Felix will be criminally liable.

In this case, his threat and gesture, even though he did not cause any violence to injury to Chin, had produced the necessary impact to have caused Chin to apprehend unlawful violence. His act would have caused Chin that Chin would have suffered immediate harm from the unlawful violence, in case Felix actually hit Chin with his fist. The apprehension of an immediate harm is enough for charging Felix with assault, as it is foreseeable that his act would have caused Chin to apprehend the harm. Section 39 of the Criminal Justice Act 1988 sets out the maximum sentence is six (6) months imprisonment and/or a fine.

  1. GOV.UK, ‘Criminal conduct offences” accessed on 16 April 2021 .
  2. Ibid
  3. Venna [1976] QB 421.
  4. John Child and David C. Ormerod, Smith, Hogan, and Ormerod's Essentials of Criminal Law (Oxford University Press 2019)
  5. Ibid,
  6. Ireland [1998] AC 147.
  7. GOV.UK, ‘Criminal conduct offences” accessed on 16 April 2021 .
  8. Constanza [1997] Crim LR 576 .
2. Chin’s assault on Felix

This matter will involve determining whether or not Chin has committed battery and whether Chin has a valid defense. For a battery offence, there must be an intended or reckless use of unlawful force. For battery the slightest touch is sufficient to be unlawful. There must be either a direct or an indirect force.

In this case, Chin striking Felix on the head with his walking stick demonstrates an intended use of force. Based on the requirement of a charge of battery, Chin should have been charged with the offence of battery. The act is a direct use of force. However, the facts also shows that it was Flex whose threat and act cause Chin the apprehension of an immediate unlawful personal violence. Considering this fact, it should be considered whether Chin’s act was in self-defense.

Chin can escape the charge of battery if Chin could prove self-defense. Thus, in this case, Chin seems to have used a lawful force to defend himself from the threatened attack of Felix. This is a self-defence excuse. The question is whether the use of force by Chin was necessary and not more than what was reasonable in the circumstance.

The amount of force used must be proportionate to the immediate threat posed at the time. It is sufficient if the defendant believed an immediate threat is posed. The determination will consider nature of the attack, any weapon used, and the type weapon. If the determination is that the defendant’s act was instinctive and they thought it to be necessary, such use of force will be considered necessary and reasonable. Thus, any reasonable force will be lawful if it was used to deal with an imminent threat.

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In the current case, the applicable rule is regard the instinctive character of Chin’s action. As seen earlier, the Felix threat was imminent and Chin must have had apprehended an imminent harm. His reaction could be considered an instinctive reaction to defend himself from getting hit by Felix. The question of the use of force being proportionate does not arise. The use of force was necessary and reasonable since it was an instinctive reaction.

The use of force in self-defence is lawful even where the Chin mistook himself as being the victim of an attack. Thus, if he used the force with the mistaken but honest and reasonable belief that he was the victim of the attack by Felix, Chin cannot be charged with battery subject to the condition that the force was reasonable and necessary in the circumstance.

  1. GOV.UK, ‘Criminal conduct offences” accessed on 16 April 2021 .
  2. Ibid
  3. Tom Hill, The UK Law on Self-Defence (Andrews UK Limited 2012).
  4. Ibid
  5. Ibid
  6. Ibid
  7. Ibid
3. Felix’ action of throwing a tin and hurting Linda

Under Section 20 of the Offences against the Person Act 1861, a person who unlawfully and maliciously wound or inflict another with a grievous bodily harm with or without a weapon or instrument will be guilty of a misdemeanour.

According to this Section 20, if Felix intended or foresaw that his act of throwing the tin might cause some harm, he will be liable. It is not necessary to prove that Felix intended or foresaw that his act of throwing the tin might cause the grievous bodily harm as described in Section 20. If Felis foresaw some physical harm to another person, however minor, he will be liable.

Following the mens rea requirement of Section 20 offence, Felix had intended or was reckless in respect to whether grievous bodily harm was caused. Following the actus reus requirement of Section 20 offence, Felix could have foreseen a grievous bodily harm as a ‘likely’ result of his act of throwing the tin and he will be deemed to have foreseen this risk of causing the harm a reasonable person in his position would have foreseen. Accordingly, Felix will be liable.

Felix’s mistaken belief that a Chin had broken bottle

In this case, Chin cannot be held liable. Felix was not wearing his glass that he could not see Chin was holding a folder umbrella and not a broken bottle that he assumed so. The elements of Section 39 assault offence discussed in part I above are not found in this case. There is no actus reus on the part of Chin that would have caused Felix the apprehension of harm. Consequently, there was no mens rea on the part of Felix. The lack of threat of violence and any unlawful violence will not make Chin liable for the injury incurred by Felix.

  1. GOV.UK, ‘Criminal conduct offences” accessed on 16 April 2021 .
  2. Savage and Parmenter [1992] 1 AC 699.
  3. Ibid
  4. Director of Public Prosecutions v Smith HL 1960.

Constanza [1997] Crim LR 576

Director of Public Prosecutions v Smith HL 1960

Ireland [1998] AC 147

Savage and Parmenter [1992] 1 AC 699

Venna [1976] QB 421


The Criminal Justice Act 1988

The Offences against the Person Act 1861


Child J and David C. Ormerod, Smith, Hogan, and Ormerod's Essentials of Criminal Law (Oxford University Press 2019)

Hill T, The UK Law on Self-Defence (Andrews UK Limited 2012)


GOV.UK, ‘Criminal conduct offences” accessed on 16 April 2021

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