3. Offences Against the Person Flashcards
common assault: assault and battery s. 47 Offences Against the Person Act 1861 s. 20 Offences Against the Person Act 1861 s. 18 Offences Against the Person Act 1861
When does assault occur?
When defendant intentionally or recklessly causes another person to apprehend immediate unlawful personal force (i.e. battery)
Apprehension must be immediate or that victim fears that force could occur immediately.
Conditional threat satisfies assault if threat deemed immediate
Does the victim need to be afraid?
No. Apprehension goes to belief, not fear. (Victim needs to apprehend [i.e. be aware of it] any unlawful force caused to them)
Even violence isnt needed just apprehension
Can words amount to an assault?
Yes, if they cause the victim to believe a battery is imminent
How can words negate assault?
When they stop the victim from believing a battery is imminent
Can a conditional threat/silence be an assault?
Yes, because victim can have the apprehension that the battery will occur if the condition is met
Silence can be assault depending on fact (for example repeated silent call, pattern of contact)
How is intent and recklessness applied to assault?
Intent: Defendant intends the victim to apprehend a battery, or
Recklessness: Defendant foresees the risk that their actions could make the victim apprehend a battery and this risk is unreasonable (subjective test from defendant pov)
When does battery occur?
When defendant intentionally or recklessly applies unlawful personal force to another person
Battery and assaukt are common law offenses
Can indirect contact amount to battery?
Yes, contact can be direct and indirect
Direct: u touch victim
Indirect: throw item at victim, cycle over their foot, set dogs on them, place obstacle behind door so victim trips
What is an example of how battery can be delayed?
If defendant sets a trap for the victim, which eventually causes unlawful force to be applied to the victim
How can a battery arise by omission, and why?
Defendant applies force accidentally without intent or recklessness, but then refuses to remove the force, because at this point the actus reus and mens rea fuse.
What are the two requirements to consent to assault or battery?
Consent must be:
- Expressed or implied to defendant, and
- Given by someone with sufficient capacity, freedom, and information to make an actual choice
What is the actus reus of section 47 assault occasioning actual bodily harm?
Same as assault or battery plus causing actual bodily harm
How can assault lead to a charge of ABH?
If defendant reasonably harms themselves while escaping the battery they are apprehending because of the defendant’s assault
What is actual bodily harm?
Any harm or injury, more than merely trifling, which interferes with the health or comfort of the victim, including psychiatric injury
What are the additional mens rea requirement for section 47 ABH beyond those of assault or battery?
There are none
Does a defendant need to intend to cause or be reckless as to ABH?
No, mens rea is not needed.
What is the actus reus for both section 20 and section 18 wounding or inflicting grievous bodily harm?
Causing a wound or grievous bodily harm
What is a wound?
An injury where both layers of skin are broken (bruising not enough)
What are the two types of GBH offence, and which is more serious?
- Section 20 GBH
- Section 18 GBH (more serious)
What is the mens rea for the less serious section 20 GBH?
Intention to cause, or recklessness regarding, **some harm **
What are the two mens rea options for the more serious section 18 GBH, and what is the effect of the second option?
- Intent to cause serious harm, or
- Recklessness as to some harm and intention to resist lawful arrest (police officer victim)
Under option 1, intent to cause GBH can be proved via clear planning, use of a weapon or repeated punching or stamping
Under option 2, section 20 GBH is essentially upgraded to the more serious section 18 just because you resisted arrest.
What are the three requirements to consent to ABH, or either GBH?
Consent must be:
- Expressed or implied to defendant in a legally recognised manner, and
- Given an adult with sufficient capacity, freedom, and information to make an actual choice, and
- Must concern a legally valid category of consent, otherwise consent is invalid
What are the four situations where consent to ABH or GBH is allowed?
- Surgery
- Dangerous exhibitions (circus)
- Piercing/tattooing
- Sports
More flexible than tort, will the law interfere if the harm is caused by actions just outside the rules of the game of sport?
No, unlike tort where consent to battery requires conduct within the rules.
In sports, when will implied consent not be available and what are obvious exceptions to this?
If a player intentionally causes injury, with the exception of sports like boxing or martial arts
What is test for consent of a non-fatal offence?
Consent must be informed.
Example: V agreed intercourse with a person not knowing they have aids would not satisfy this test.
When is it a criminal offence to transmit a sexual infection?
If the infected person is aware and the other is not, and the infected person intends to transmit the infection
Whilst courts will generally not entertain consent to harm in a sadomasochistic context, when will they refuse to interfere?
When it is within a marital context
What is the hierarchy of assaults?
Least to most serious
1. Assault
2. Battery
4. Assault occasioning actual bodily harm
5. Maliciously wounding or inflicting grievous bodily harm
6. Wounding or causing grievous bodily harm with intent
What is the classification and maximum sentence for assault and battery?
Classification: Summary only
Max. sentence: 6 months prison and/or fine.
What is the classification and maximum sentence for ABH and GBH?
Classification: Either way
Max. sentence: 5 years prison.
What is the classification and maximum sentence for GBH?
Classification: Indictable only
Max. sentence: Life imprisonment
What are the two assault that derive from common law?
- simple assault - technical assault
- battery - physical assault.
When is obtained consent invalid?
if it is obtained by fraud as to the identity of D OR fraud as to the nature and quality of the act.
What is the rule on words or silence for assault?
Can be sufficient to cause apprehension of violence.
What is the requirement of immediacy in assault?
Apprehension of harm must be immediate - some time not excluding the immediate future.
How can conditional threats amount to assault?
D can be liable if conditional threat also satisfies the ‘immediacy’ requirement.
Who has the burden of proof for defence?
Prosecution must disprove.
What is the max sentence the Magistrates’ Court can impose?
One offence: 6 months imprisonment.
Two unrelated either-way offences: 12 months imprisonment.
What is the charge If defendant has consensual unprotected intercourse with people while knowingly having HIV
This will be deemed as INFLICTING GBH provided they test positive for HIV later on
