DENNING LAW SCHOOL

ABDULQADIR NAEEM
CRIMINAL LAW – 2023
MODEL ANSWER STRUCTURE OF OAPA PART A QUESTION

Colin, aged 17, is talking to his fellow pupil at college, Duncan. They are having an argument about who
is better at playing a computer game and the argument gets heated. Colin shouts at Duncan and prods him
in the chest with his finger. Unbeknown to Colin, Duncan has recently been involved in a car accident in
which he fractured a rib. As Colin prodded him in the chest just where the broken rib is, the rib penetrates
Duncan’s lung and Duncan collapses struggling to breathe. Colin panics and calls over to Bjorn, a teacher
at the College who is trained in first aid. Bjorn immediately starts mouth-to-mouth resuscitation and begins
chest compressions on Duncan. These chest compressions compound the injury to Duncan’s lung and,
unable to breathe for over six minutes, he lapses into a coma. He recovers from the coma after 3 months.
A few days later, Duncan’s mother, Astrid, was driving along a busy street when suddenly she saw a group
of 10 young children running on the main road towards an icecream truck, she saw on her left that a cyclist
was cycling and having no other choice she took a sharp left to save the 10 children and in doing so hit
Bjorn who was riding by on his bicycle. Astrid gets out of the car to assist the cyclist who is lying
unconscious on the road. She recognises the cyclist as Bjorn, who she believes is the person responsible for
her son’s death. Shocked and raging with fury she shouts, ‘That serves you right. I hope you suffer the same
fate which you made my son go through.’ She gets back in her car and drives off. Bjorn, suffering from
severe head injuries from the fall, suffers a brain injury and is no longer able to work.
a) If you were a prosecutor, what would be your preferred charge, s 18 OAPA or s 20 OAPA in
relation to Colin?
Our preferred charge in respect of Colin would be under Section 20 of OAPA.
b) Give reasons for your choice in (a) above.
We understand that Colin had just proded his finger on Duncan’s chest in a hostile manner which
led to final harm which was puncturing of the lungs and eventually coma. We note that the mensrea
for Section 18 OAPA is to prove “a direct intent to would or cause grievous bodily harm or intent
to prevent or resist lawful arrest”. In our case, as Colin did not have any direct intent to wound or
cause grievous bodily harm (“GBH”) to Duncan, we cannot charge Colin under Section 18 OAPA.
Therefore, the likely charge would be under Section 20 OAPA as all the elements of the crime
(arguably) are being met. To prove an infringement of Section 20 OAPA, the prosecution has to
first establish the Actus Reus (“AR”) for Section 20 OAPA which is “inflicting wounding or
grevious bodily harm”. As there is no break in continuity of both layers of skin, we cannot prove
wounding (Eisenhoven case).
However, reliance can be placed on proving GBH, which was defined by the courts as “really
serious injury” (Smith Case). However, it was held in the (Janjua case) that what would constitute
GBH is ultimately the decision of the jury who will decide based on the age and state of physical
fitness of the victim as well as the extent and nature of injury (Bollam Case). The jury can also
place reliance on the CPS guidelines which give examples of what will be GBH e.g.: serious loss
of blood, disfigurement or fracture of skull, multiple fracture etc. We would also like to highlight
that the word ‘inflict’ is used in the AR of Section 20 OAPA which was interpreted as requiring
some sort of direct application of force (Clarence Case). However, in the (Burstow case) the
courts held that inflict will be interpreted as “cause”, in other words harm can be direct or indirect.
In view of the above, we note that the prodding by Colin was done in a hostile manner as it was
during an argument and this led to puncture of the lungs and finally Colin suffered a coma before
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ABDULQADIR NAEEM
CRIMINAL LAW – 2023
recovering. From a factual perspective, any reasonably jury would consider this injury as serious
and therefore categorize it as GBH. Therefore, the AR would be met (we note that there are certain
causation issues which we shall discuss below in the relevant section).
After proving the AR, the prosecution will have to prove the Mensrea (“MR”) for Section 20 OAPA
which is intention or subjective recklessness. It was held in (Mowatt) and affirmed in (Parmenter)
that in respect of subjective recklessness there should be intention or foresight of some harm to the
victim but the degree of harm need not be foreseen.

In view of the above, we note that Colin and Duncan were having an argument and during that
Colin prodded Duncan in his chest which was done in a manner which is hostile. Therefore,
subjective recklessness will be proven here since Colin was clearly subjectively aware that the
hostile prod would, in our view, expose Duncan to “the risk of some harm” (and as mentioned
above, there is no requirement of the degree of harm to be foreseen). In view thereof, the AR and
MR will arguably (from a prosecution perspective) be met hence the most preferred charge in our
view would be Section 20 OAPA.

c) If you were Colin’s defence counsel, what are the arguments you would advance in favour of
the proposition that the chain of causation, linking Duncan’s injury to Colin’s prodding him
in the chest, was broken?
To prove the AR of any result crime, the chain of causation has to be established by the prosecution.
Accordingly, if the chain breaks, the AR for that particular crime will not be met and the defendant
cannot be held liable. Accordingly, the defense counsel is required to raise arguments and evidence
to raise doubt in the prosecution submissions as the prosecutors are responsible to prove beyond
reasonable doubt the elements of the crime. The defense counsel’s argument in favor of the
proposition that the chain of causation is broken would be based on the fact that Colin was not
aware of Duncan’s chest injury and his particular vulnerability of sustaining a fractured rib leading
to a punctured lung by way of a simple prod. Therefore, the chain of causation should be broken
due to the special physical characteristic of Duncan. Secondly, the injury was clearly aggravated
due to the act of Bjorn who conducted chest compressions on Duncan i.e. there was a third party
intervening act which was actually the cause of the harm and in view thereof, Colins act did not
lead to the harm and the chain of causation should be broken.
d) If you were prosecuting counsel, how would you respond to defence counsel’s arguments in
(c) above?
The prosecution has to establish the chain of causation beyond reasonable doubt. In order to do so,
the prosecution will first have to establish that the act of Colin of proding was the factual case of
harm. To prove factual causation, the courts apply the “but for” test where it needs to be determined
that “but for [Colins] acts or omission, the harm would not have occurred” (White case). We note
that the initial chain commenced due to the prod which actually led to the initial harm. Therefore,
the act of Colin would be the factual cause of harm.
To prove legal causation – the prosecution has to prove that the act of the defendant was the
“substantive and operating cause of the death”. Usually, if there is only one act causing the harm
both factual and legal causation can be easily proven. The problem, however, arises when more
than one act contributes to the harm. Here an analysis of legal causation is required i.e. we need to
determine whether the second act breaks the chain of causation of the first act. We note that the
defense has raised the following arguments:
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(a) the harm to Duncan was due to his own special characteristics and therefore the chain
should be broken as Colin did not know that he had this physical vulnerability. However,
relying on the established cases of (Blaue) and (Holland), if the victim has some special
characteristics due to which the harm caused by the defendant was aggravated, the chain
will never be broken on the ground of such special characteristics, the defendant is
answerable and has to take the responsibility for the same. Therefore, the first argument
will fail;
(b) the harm to Duncan was aggravated by the act of third party Bjorn of giving him chest
compressions. We note that this is a third party act and this second act may break the chain
of causation “only if the second cause is so overwhelming as to make the original wound
merely part of the history can it be said that death does not flow from the wound” (Smith
case). However, we need to show that the intervening act of Bjorn was “independent”,
“voluntary” and “in itself sufficient to cause harm” (Paggett case) (Mckechnie case). We
note that the act of Bjorn was caused necessary due to the emergency situation created by
Colins proding. His act may be considered as being sufficient to cause harm, however, it
would be difficult to prove that it was independent and voluntary as Bjorn, being a teacher,
and having the responsibility of the wellbeing of the students, was not independently acting
on his own voluntary basis in order to rescue Colin by chest compressions. Reliance can
also be placed on the Mckechnie case that the doctors did not conduct the operation since
the victim was unconscious due to the defendant’s act and this omission of the doctors was
also in a state where they had no choice i.e. not independent and voluntary. In view thereof,
we believe that the chain of causation will not be broken by the third party act.
Conclusively, the AR will be met and Colin will be liable for Section 20 OAPA.
e) If you were prosecuting counsel, what would be your preferred charge of Section 18 OAPA
or Section 20 OAPA in relation to Astrid?
Our preferred charge in respect of Astrid would be under Section 18 of OAPA.
f) Give reasons for your answer in (e).
We note that Section 18 OAPA is a specific intent crime and in order to prove Section 18 OAPA,
the prosecution has to prove the AR and MR for Section 18 OAPA. The AR for Section 18 OAPA
is to “cause GBH or wounding”. Based on the definition of wounding given above in part (b), there
is no wounding caused to Bjorn, therefore, the prosecution would try to prove that Bjorn suffered
GBH due the accident. We have already defined GBH in part (b) above. Relying on that definition,
any reasonable jury, in our view, would consider the injuries caused to Bjorn, ass serious (since he
has suffered head injuries, leading to brain damage rendering him in a condition where he is unable
to work for life). Therefore, the accident led to such serious injuries and consequently it would be
proven that Astrid “caused GBH” to Bjorn thereby proving the AR for Section 18 OAPA.
The second issue would be to prove the MR for Section 18 OAPA which is a specific intent crime
and it needs to be proven that there was an unlawful and malicious intent to cause wounding or
GBH (Purcell Case) (Belfon case). In our case, we note that when Astrid got out of the car, she
clearly saw and recognized Bjorn and she was subjectively holding him responsible for her son’s
death and in this situation clearly uttered the words that she wants him to suffer the same fate as
his son. This shows that there was a clear unlawful and malafide intent to cause GBH to Bjorn on
part of Astrid. Thereby, meeting the MR for Section 18 OAPA.
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ABDULQADIR NAEEM
CRIMINAL LAW – 2023
g) Assuming the prosecution were to charge Astrid with Section 18 OAPA, and you were counsel
for the defence, how would you seek to counter the prosecution’s case that both actus reus
and mens rea of Section 18 were present?
As a general principle of law, AR and MR should coincide at one point in time and if they do not
then there is no criminal liability. In view of this strict rule, the defense would raise the argument
that a charge under Section 18 OAPA cannot be established since at the time she swerved the car
to save the children, she was not aware of the identity of the cyclist and never formed the MR to
cause GBH. Accordingly, once the act of hitting the car was complete, she got out of the car and
saw that the cyclist was Bjorn, at that time she formed the MR when she recognized him. In view
of this, there was no MR at the time of the accident which is the point of AR. In view thereof, a
charge under Section 18 OAPA cannot be conclusively proven to lead to a successful conviction
as there is no coincidence of AR and MR.

h) How would the prosecution counter the arguments raised in (h)?

The prosecution would respond to the defense’s argument by raising the mechanisms which the
courts have developed to avoid unjust results due to coincidence requirement. The prosecution
would rely on the case of (Millers) and (Evans) where the courts held that if the MR is not
coinciding with the act then we first need to determine whether the crime being charged can be
committed by omission or not. In our case, Section 18 OAPA is a crime which can be committed
by omission as the word “cause” means that harm can be direct or indirect. Since it can be
committed by omission, we note that pursuant to the (Miller case), if a person creates a danger
then he /she has a duty to abate it and if they do not i.e. omit to abate it then they can be charged
for the omission. In our case, we note that Astrid has clearly created the danger by hitting the cyclist
Bjorn and once she did, according to the (Miller case) she cannot omit and had a duty to help Bjorn
and in our case she clearly chose not to and at this time she had also formed the MR for Section 18
OAPA. Therefore, coincidence may not be proven with the act of accident. However, we can clearly
prove coincidence of AR and MR at the time of omission (the omission will form the AR which
led to the harm i.e. not helping out) and at this time the MR was also formulated – therefore Astrid
will be liable for Section 18 OAPA
i) Assuming the court finds both actus reus and mens rea of Section 18 OAPA present, and you
are counsel for the defence, evaluate your chances of success in raising a defence.
The applicable defense which can be raised by the defense counsel would be the defense of
necessity. It was held in Perka v. Queen that the defence of necessity covers all criminal acts.
However, the defense is only successful when used as a justification as opposed to an excuse,
justification is where the crime is committed in pursuit of a greater good (Re F case).

It was held in Re A (conjoined twins) that for necessity to pass, it needs to be proven that the Act
is needed to avoid inevitable and irreparable evil, no more should be done than what is reasonably
necessary for the purpose to be achieved and the evil inflicted must not be disproportionate to the
evil avoided. In our case, the defense will raise the argument that the act of Astrid to hit the cyclist
was clearly taken to avoid irreparable evil as if she would not have done so, she would have run
over the young children. We assume that at that time she had no other choice but to choose to hit
the cyclist. Hitting the cyclist in order to save 10 young children also proves that the evil inflicted
was not disproportionate to the evil avoided. In view of the above all arguments are being met and
the defense counsel can strongly argue that the defense of necessity should pass and there should
be full acquittal.
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(j) In your opinion, considering all the above arguments, do you think Astrid would be liable for
the crime or not?
In our view, the prosecution would be able to prove the elements of the crime i.e. the AR and MR
for Section 18 OAPA. However, as regards the success of the defense of necessity, we would like
to highlight that based on the factual matrix prevailing, whilst Astrid had no choice but to hit the
cyclist and his identity at that time was not known. After the children were safe and she could see
that she has hit a cyclist and he is injured, she clearly had an opportunity to assist the cyclist by
taking him to the hospital. She did not do so deliberately with the intent that serious harm should
befall the cyclist. Accordingly, the defense of necessity in view of these facts would, in our view,
be like giving a pass from criminal liability to a person who had formed a malafide intent to harm
someone and is relying on the defense as an excuse rather than a justification. In view thereof, we
opine that the defense of necessity would not succeed and no reasonable judge would allow this to
succeed on the basis of the entire facts.