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Y1-Law 1 > 12- Non-fatal offences against the person > Flashcards

12- Non-fatal offences against the person Flashcards

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1
Q

What are the 2 types of common assault?

A
  1. Assault

2. Battery

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2
Q

What type of law defines common assault?

A

They are common law offences. There is no statutory definition for either assault or battery.

However, statute law recognises their existence as they are charged under s 39 of the Criminal Justice Act 1988

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3
Q

What is the max punishment for assault and for battery?

A

Criminal Justice Act 1988 sets out a max punishment of
- 6 months’ imprisonment or
- fine of £5,000
or both

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4
Q

What is the difference between assault and battery?

A

Assault: no touching, only causing fear of immediate,,,, unlawful force.
Ex: person approaches victim and threatens to punch him

Battery: Must be actual force
Ex: after threatening to punch the victim, D punches him

The approaching and threatening constitutes the assault and the actual punch constitutes the battery.

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5
Q

What is an assault?

A

Act which causes the victim to apprehend the infliction of immediate, unlawful force with either an intention to cause another to fear immediate unlawful personal violence or recklessness as to whether such fear is caused.

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6
Q

What is the actus reus of assault?

A

There must be:

  1. An act
  2. Which causes the victim to apprehend the infliction of immediate, unlawful force.
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7
Q

AR of assault: What is referred by an ‘act’ in the actus reus of assault?

A

Assault requires an act or words.

An omission is not sufficient to constitute an assault.

However, words can be sufficient, and can be verbal or written. This was held by the Court of Appeal in R v Constanza (1997)

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8
Q

AR of assault: What was held in R v Ireland (1997)?

A

Held that even silent phone calls can be an assault, depending on the facts of the case.

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9
Q

AR of assault: What is meant by ‘apprehend immediate unlawful force’ in the actus reus of assault?

A

Act or words must cause the victim to apprehend that immediate force is going to be used against them.

There is no assault if it’s obvious that D cannot actually use force (ex: D shouting from a passing train)

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10
Q

AR of assault: What was decided in R v Lamb (1967)?

A

Pointing an unloaded gun at someone who knows that it is unloaded cannot be an assault bc the person will not fear an immediate threat.

However, if the other person thought the gun was loaded it could be an assault

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11
Q

AR of assault: What is meant by ‘immediate force’ in the actus reus for assault? Give an example

A

Immediate does not mean instantaneous but imminent, so an assault can be through closed window, as in Smith v Chief Superintendent of Woking Police Station (1983)

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12
Q

AR of assault: What do the cases of Tuberville v Savage (1669) and R v Light (1857) illustrate?

A

Words can prevent an act from being an assault, but it depends on the circumstances.

  • In Tuberville the words of the D were held not to be an assault bc what he said showed he wasn’t going to do anything.
  • In R v Light, however, D’s words (“were it not for the bloody policeman outside, I would split your head open”) said while he raised a sword above his wife’s head were held to be an assault bc the wife feared that force was going to be used on her and the words were not enough to invalidate her fear.
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13
Q

AR of assault: Is fear of unwanted touching sufficient for it to be considered an assault?

A

Yes. The seriousness of the force that is feared doesn’t matter.

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14
Q

What is battery?

A

Application of unlawful force to another person intending either to apply unlawful physical force to another or recklessness as to whether unlawful force is applied.

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15
Q

What is the actus reus of battery?

A

The application of unlawful force to another person.

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16
Q

AR of battery: What is meant by ‘force’ in the actus reus of battery?

A

It can include the slightest touching, as shown by the case of Collins v Wilcock (1984)

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17
Q

AR of battery: Which case shows that any touching might be battery?

A

Collins v Wilcock (1984)

 - touching the person to get their attention is acceptable
 - physical restraint not acceptable
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18
Q

AR of battery: What was held in R v Thomas (1985)? What case is similar to this one?

A

Touching victim’s clothing can be sufficient to be a battery.

Wood (Fraser) v DPP (2008)

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19
Q

AR of battery: Can a battery be committed through a continuing act? If so, which case reflects this?

A

Yes.

Fagan v Metropolitan Police Commissioner (1968)
- the act became a battery when intention was formed to leave the wheel on the officer’s foot.

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20
Q

AR of battery: Can a battery be committed through an indirect act?

A

Yes. D causes force to be applied even though they don’t personally touch the victim. An example is R v Martin (1881).

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21
Q

AR of battery: Show an example of a battery through an indirect act and a more modern example

A

R v Martin (1881)- D placed iron bar across doorway of theatre, switched off lights. Several people of the audience were injured in the panic that followed as they were trying to get out.

DPP v K (1990)- sulphuric acid sprayed to kid.

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22
Q

AR of battery: Can a battery be committed through an omission?

A

Yes, but only if D is under a duty to act. (Ex: contract, relationship, creation of a dangerous situation… (see omissions as actus reus))

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23
Q

AR of battery: What case illustrates a battery through an omission?

A

DPP v Santa-Bermúdez (2003)- failure to tell officer about a needle in pocket

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24
Q

AR of battery: Show an example of a case that could have constituted a battery through omission

A

R v Miller (1983)- D created a dangerous situation by accidentally setting his mattress on fire. Had there been someone else in the room and D failed to wake them up and warn them, he could have been liable for battery if anything happened to them.

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25
Q

AR of battery: What is meant by ‘unlawful force’ in the actus reus for battery?

A

Force may be lawful if:

 - victim gives consent
 - it's used in self-defence 
 - it's used in prevention of crime
 - it's used in the correction of a child by a parent- English law recognises that moderate physical punishment of a child is lawful
26
Q

AR of battery: Why is A v UK (1998) relevant?

A
  • Jury acquitted father who had beaten his child with a garden cane
  • European Court of HR ruled that a law allowing force to be used on children was contrary to Article 3 of the European Convention on HR (prohibition of torture and degrading treatment or punishment)
  • The Children Act 2004 now states that a battery on a child is unlawful if it results in any injury.
27
Q

AR of battery: Can a battery happen without an assault?

A

Yes. It happens when victim is unaware that unlawful force is going to be used on them, such as:
- when D comes up unseen behind victim’s back

28
Q

What is the mens rea for assault and battery?

A

ASSAULT: Either 1) an intention to cause another to fear immediate unlawful force or 2) recklessness as to whether such fear is caused

BATTERY: Either 1) an intention to apply unlawful physical force to another or 2) recklessness as to whether unlawful force is applied.

Summary: Intention or recklessness is enough for the mens rea of assault and battery.

29
Q

MR of A & B: What is the the test for recklessness for assault and battery?

A

It’s subjective.

ASSAULT: D must realise there is a risk that their acts/words could cause another to fear immediate use of force

BATTERY: D must realise there is a risk that their act/omission could cause unlawful force to be applied to another.

30
Q

MR of A & B: What are assault and battery classed as?

A

Offences of basic intent.

This means that if D is intoxicated when he/she does the actus reus he/she is considered as doing it recklessly. Stated in DPP v Majewski (1976)

31
Q

MR of A & B: Which case stated that assault and battery were offences of basic intent?

A

DPP v Majewski (1976)

32
Q

Which section of which Act refers to the lowest level of injury?

A

Section 47 OAPA 1861: assault occasioning actual bodily harm

33
Q

Show a chart of non-fatal offences against the person

A
  1. Common assault and/or battery- victim not injured
  2. Assault occasioning actual bodily harm (s 47)- slight injury
  3. s 20 OAPA 1861- D caused a wound or a really serious injury without intent
  4. s 18 OAPA 1861- D caused wound or really serious injury with intent
34
Q

Where is an offence under s 47 heard and what is the max sentence?

A

Triable-either-way offence: Magistrates’ Court or Crown Court

Max sentence of 5 years

35
Q

How is s 47 stated?

A

‘Whosoever shall be convicted of any assault occasioning actual bodily harm shall be liable…’

It doesn’t define assault (which refers to common assault (assault and/or battery)) or actual bodily harm. Case law defines these terms.

36
Q

What is the actus reus for s 47?

A

Necessary to prove:

 1) that there was an assault and/or battery
 2) that it caused actual bodily harm
37
Q

AR of s47: How can actual bodily harm be caused by only an assult?

A

Can occur in situations where V tries to escape bc they fear immediate unlawful force and injures him/herself doing this.

The apprehension of force could also cause psychiatric injury to V.

38
Q

AR of s 47: How do different cases define or add to the definition of ‘actual bodily harm’?

A
  1. Miller (1954)- ‘any hurt or injury calculated to interfere with the health or comfort of the V’.
  2. R v Chan Fook (1994)- a nervous and hysterical condition could be ABH
    • On appeal, CofA disagreed and held that
      - ‘actual’ meant not so trivial as to insignificant.
      - ‘harm’ was injury which goes beyond
      interference with the health and comfort of
      the victim
      - ‘bodily’ includes injury to nervous system and
      brain such as recognised psychiatric harm
      - however, it doesn’t include mere
      emotions such as fear or panic nor does
      it include states of mind that are not
      evidence of a clinical condition
      - this decision approved in R v Burstow
      (1997) where it was said that ABH in
      ss. 18, 20 & 47 OAPA 1861 must be
      interpreted as to include recognisable
      psychiatric harm
  3. T v DPP (2003)- loss of consciousness, even momentarily, was held to be actual bodily harm
  4. DPP v Smith (Michael) (2006)- cutting the victim’s hair can amount to ABH
    • physical not necessary for ABH
    • however, substantial amount of hair must be cut
39
Q

What is the mens rea for s 47?

A

Not defined in the OAPA 1861 but, as the essential element is common assault, courts have held that the mens rea for a common assault is sufficient for the mens rea of a s 47 offence.

This means D must either intend or be subjectively reckless as to whether the victim fears or is put through unlawful force.

Important to note D doesn’t need to intend or be reckless as to whether ABH is caused. Demonstrated in R v Roberts (1971)

40
Q

MR of s 47: What aspect of the mens rea for s 47 is important to note and what case demonstrates it?

A

D doesn’t need to intend or be reckless as to whether ABH is caused.

Demonstrated in R v Roberts (1971)- D found guilty of ABH even though he had not intended any injury or realised there was a risk of injury. He satisfied the mens rea for assault and that was enough.
- This decision confirmed in the combined appeals of R v Savage (1991) and R v Parmenter (1991)

41
Q

AR of s 47: What is the definition of ‘assault occasioning actual bodily harm’, based on case law?

A

Assault or battery which causes actual bodily harm to V and D intends or is subjectively reckless as to whether V fears unlawful force or is actually subjected to unlawful force.

42
Q

Which cases help define the terms in s 47 OAPA 1861?

A

Actus reus:

  1. Miller (1954)
  2. R v Chan Fook (1994)
  3. R v Burstow (1997)
  4. T v DPP (2003)
  5. DPP v Smith (Michael) (2006)

Mens rea:

  1. R v Roberts (1971)
  2. R v Savage (1991)
  3. R v Parmenter (1991)
43
Q

What is the offence with the next level of seriousness after s 47?

A

s 20 OAPA 1861: maliciously wounding/inflicting grievous bodily harm

44
Q

How is s 20 stated?

A

‘Whosoever shall unlawfully and maliciously wound or inflict grievous bodily harm upon a person, either with or without a weapon or instrument, shall be guilty of an offence…’

Commonly known as ‘malicious wounding’

45
Q

Where is an offence under s 20 heard and what is the max sentence?

A

Triable-either-way.

Max sentence of 5 years

46
Q

What must be proved for the actus reus and mens rea of s 20?

A

AR:

  • D must wound OR
  • inflict grievous bodily harm

MR:

  • D must have wounded/inflicted GBH intending some injury (but not serious injury) to be caused OR
  • been reckless as to whether any injury was inflicted.
47
Q

AR of s 20: What is meant by ‘wound’ in s 20?

A

It means a cut or a break in the continuity of the whole skin.

  • Internal bleeding where there is no cut in the skin is not sufficient.
  • Cut must be of the whole skin, so that a scratch is not considered a wound (JJC v Eisenhower (1983))
  • Even a broken bone isn’t considered a wound if there’s no cut to the skin (R v Wood (1830))- broken collarbone not considered wound as skin was intact.
48
Q

AR of s 20: Which cases help define ‘grievous bodily harm’ in s 20?

A
  1. Held in DPP v Smith (1961) that GBH meant ‘really serious harm’, although it doesn’t need to be life-threatening.
  2. In Saunders (1985) it was held that it was acceptable to direct the jury that there need be ‘serious harm’ without the ‘really’
  3. In R v Bollom (2004) it was held that the severity of the injuries should be assessed according to V’s age and health.
  4. In R v Burstow (1997) where V suffered a severe depressive illness as a result of her stalker’s conduct, it was decided that serious psychiatric injury can be GBH
  5. In R v Dica (2004) there was the 1st ever conviction for causing GBH through infecting victims with the HIV virus.
49
Q

AR of s 20: What is meant by ‘inflict’ in s 20?

A
  1. Originally, it meant that there had to be a technical assault or battery, although the section could be interpreted quite widely, as shown in:
    • R v Lewis (1974) where D shouted threats at his wife through the door of a second-floor apartment and tried to break his way through the door. The wife was so frightened that she jumped from the window and broke both her legs. D was convicted of a s 20 offence.
  2. In R v Burstow (1997) it was decided that ‘inflict’ didn’t require a technical assault or battery- it need only be shown that D’s actions have led to the consequence of V suffering GBH.
    • The decision also means that there now appears to be little if any difference between the actus reus of s 20 and s 18, which uses the word ‘cause’.
50
Q

MR of s 20: What is meant by ‘maliciously’ in the mens rea of s 20?

A

In Cunningham (1957) it was decided that ‘maliciously’ meant either:

 - an intention to do the particular kind of harm that was done or
 - recklessness as  to whether such harm should occur or not (knows the risk and takes it)

In R v Parmenter (1991) it was confirmed that the Cunningham meaning of recklessness applies to all offences that have ‘maliciously’ in the definition.
- It was also decided in Parmenter that, although the actus reus of s 20 requires a wound or GBH, there is no need for D to foresee that level of serious injury.

51
Q

Actus Reus and Mens Rea of OAPA 1861 (assault, battery, s 47, s 20, s 18)

A

ASSAULT

AR
There must be:
- 1. An act
- 2. Which causes the victim to apprehend the infliction of immediate, unlawful force.

MR
Either
- 1) an intention to cause another to fear immediate unlawful force or
- 2) recklessness as to whether such fear is caused.

BATTERY

AR
The application of unlawful force to another person.

MR
Either
- 1) an intention to apply unlawful physical force to another or
- 2) recklessness as to whether unlawful force is applied.

S 47

AR
Necessary to prove:
- 1) that there was an assault and/or battery
- 2) that it caused actual bodily harm.

MR
Not defined in the OAPA 1861. Held that the mens rea for a common assault is sufficient for the mens rea of a s 47 offence.

  • D must either intend or be subjectively reckless as to whether the victim fears or is put through unlawful force.
  • D doesn’t need to intend or be reckless as to whether ABH is caused. Demonstrated in R v Roberts (1971)

S 20

AR

  • D must wound OR
  • inflict grievous bodily harm

MR

  • D must have wounded/inflicted GBH intending some injury (but not serious injury) to be caused OR
  • been reckless as to whether any injury was inflicted.

S 18

AR

  • wounding
  • causing grievous bodily harm

MR
D must be proved to have intended to:
- do some grievous bodily harm or
- resist or prevent the lawful apprehension or detainer of any person

52
Q

What is the offence with the next level of seriousness after s 20?

A

s 18 OAPA 1861: wounding or causing grievous bodily harm with intent

53
Q

How is s 18 stated?

A

‘Whosoever shall unlawfully and maliciously wound or inflict grievous bodily harm upon a person, with intent to do some grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of an offence…’

Commonly known as ‘wounding with intent’

54
Q

Where is an offence under s 18 heard and what is the max sentence?

A

Indictable offence at the Crown court

Max sentence of life imprisonment

55
Q

What is the actus reus of s 18?

A

Can be committed in 2 ways:

  • wounding
  • causing grievous bodily harm
56
Q

AR of s 18: What does ‘wound’ and ‘grievous bodily harm’ mean?

A

The meaning is the same as for s 20

57
Q

AR of s 18: What is meant by ‘cause’ in s 18?

A

As it has a wide use, it’s only necessary to prove that D’s act was a substantial cause of the wound or grievous bodily harm

58
Q

What is the mens rea of s 18?

A

As a specific intent offence, the D must have:

  • intended to do some grievous bodily harm or
  • resisted or prevented the lawful apprehension or detainer of any person.

An intention to wound not enough for the mens rea of s 18. Clearly stated in R v Taylor (2009)

59
Q

What is the difference between basic and specific intent? Which offences of the OAPA fall within each category?

A

Basic intent: refers to offences where either intention or recklessness will satisfy mens rea.

 - Common assault
 - s 47
 - s 20

Specific intent: refers to offences where only intention is necessary to satisfy mens rea.
- s 18

60
Q

MR of s 18: What is meant by ‘intent to do some grievous bodily harm’?

A

Main point: S 18 is a specific intent offence. Intention must be proved, recklessness is not enough for the mens rea.

‘Intention’ same meaning as shown in leading cases in murder:

 - As in Moloney (1985), foresight of consequences isn't intention, only evidence from which intention can be inferred or found. 
 - Following Nedrick (1986) and Woollin (1998), intention cannot be found unless the harm caused was a virtual certainty as a result of D's actions and D realised that this was so.

When D resists arrest, level of intention regarding the injury is lower.

- Prosecution must prove that they had specific intention to resist or prevent arrest, but so far as the injury they only need to prove that they were reckless as to whether their actions would have caused a wound or injury. 
 - This was decided in R v Morrison (1989)

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