Ben has a history of violence, and has been in and out of prison. Ben and Lisa get into an argument, during which he shouts "You better shut up, or else!". Lisa knows of his history and gets very scared. Discuss the possible criminal liability of Ben.

Ben could be laible for assault for his actions. The actus reus of assault is 'any act that makes the victim apprehend immediate and unlawful violence'. The first element required is that Ben committed an act. An act can be words (written or verbal), gestures and actions (R v Constanza). Ben's words would constitute an act. It is then necessary to prove that his act caused Lisa to apprehend violence. The definition of apprehend is to await with fear and anxiety. Lisa was scared by Ben's word, and we know that she aware of his violent past, therefore it is fair to assume that she apprehended violence. The violence that Lisa apprehends must then be immediate. Immediacy has been determined to mean that the victim apprehends the 'possibility' of immediate violence (R v Ireland). Despite the fact that the threat was conditional, Lisa had a reasonable right to assume that the threat meant violence was imminent. The threatened violence must then be proven to be unlawful, meaning there is no legal justification (for example, if there was a general defence available, if it was a police officer apprehending a suspect, etc.). All these elements have been satisfied, therefore, Ben has the actus reus for assault. In order to be liable for the offence, Ben must also have the mens rea. The mens rea for assault is 'intention recklessness as to any act that makes the victim apprehend immediate and unlawful violence'. Intention is defined as a 'decision by D to bring about a prohibited consequence' (R v Mohan). Recklessness, on the other hand, is proven using the test established in R v Cunningham: 1. D knew there was a risk? 2. D decided to take the risk anyway? Only when the answer to both questions is yes has the Cunningham test been proven. From the facts of the case it can be understood that Ben intended to cause Lisa to fear immediate violence, and therefore he has the mens rea. All the elements of both the actus reus and mens rea have been satisfied, therefore Ben is guilty of assault.