9) Non Fatal Defences Flashcards

1
Q

What is the loweston the hierarchy of non fatal offences against the person?

A
  • Aassuault, the least serious offence, committed the most frequently
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2
Q

Most serious offence on the hierarchy of non fatal offeces against the person

A
  • Wounding or causing grievous bodily harm with inents.
    s18 Offences Against the Person Act
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3
Q

Assault

A
  • Victim anticipates the defendant will use violence against them
  • Least serious non-fatal offence as no touching occurs
  • Defined in common law, precedents found in case law
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4
Q

Criminal liability for assault

A
  • Actus Reus = causing the victim to apprehend immediate and unlawful personal violence
  • Mens Rea = Intentionally or recklessly causing the victim to apprehend immediate and unlawful personal violence
  • Absence of a valid defence = self defence, intoxication and consent
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5
Q

Define assault

A

Intentionally or recklessly causing another person to apprehend immediate and unlawful personal violence

Fagan v Met Police Commissioner; R v Ireland; Burstow

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6
Q

Elements of Actus Reus of Assault

A
  • Apprehension
  • Immediate
  • Unlawful
  • Personal violence
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7
Q

Actus Reus of Assault: Apprehension

A
  • Make the victim anticipate
  • But not necessarily fear (R v Lamb)
  • Immediate and unlawful personal violence
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8
Q

R v Ireland

A

Words alone and silence is enough for the apprehension of immediate and unlawful personal violence

R v Ireland

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9
Q

Turberville v Savage

A

Words can however negate an assault

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10
Q

Actus Reus of Assault: Immediate

A

Does not mean instaneous, but some time not excluding the immediate futrue (R v Constanza) or imminent (R v Ireland)

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11
Q

Actus Reus of Assault: Unlawful

A

Not done in self defence or with the victim’s consent

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12
Q

Actus Reus of Assault: Personal violence

A

All the vicitm has to anticipate is an unwanted touch

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13
Q

For assault to take place, is there any need for the defendant to have applied force or make physical contact for the offence to be committed?

A

No
Words pr [jusical movement from the defendant, causing the victim to think that they are about to be struck would be sufficients.

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14
Q

R v Lamb

A

Defendant must cause the victim to believe D can and will carry out the threat of force
* Revolver, playing, thought gun was safe. Shot friend dead.
* No assault had taken place, did not apprehend violence as did not believe it was fire.
* Did not have the necessary mens rea.

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15
Q

Logdon v DPP

A
  • Defendant showed pistol saying it was loaded and would hold her hostage.
  • Actually an unloaded replica.
  • Committed assault as victim apprehended violence.
    Irrelevant that defendant does not have the means to carry out the threat
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16
Q

What form can the threat to use force be?

A
  • Physical gestures = basis of an assault
  • Words or silence alone can constutyte an assault in some circusmstances.
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17
Q

R v Wilson

A

“Get out the knives”
Would be sufficient to constitute an assault.

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18
Q

Silent telphone calls

A

Silence conveyed a message to the victim, was capable of forming the basis of an assault.
Confirms that the words spoken may amount to an assault.
She may fear the immediate possibility of personal violence

R v Ireland; Burstow evident

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19
Q

Turbeville v Savage

A
  • Hand on the sword was threatening.
  • Negated by the words, that implied no phys action because judges were in the vicinity.
    Words can negate an assault
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20
Q

Courts definition of immediacy

A
  • Generously, does not mean instantaneous
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21
Q

Constanza

A
  • Defendant had been following he calling her and sending letters.
  • Apprehension of personal violence at some time, not excluding the immediate future.
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22
Q

Smith v Chief Superintendent, Woking Police Station

A
  • Smith entered garden at night and looked through the window to see the victim in the nightdress.
  • Pressed face against the glass for several seconds.
  • Recognised Smith and was terrified
  • She feeared immediate violence which was what the Defendant intended
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23
Q

Personal Violence

A
  • Must be apprehension of ** physical violence. **
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24
Q

When an assault results in psychological harm which is more than trivial

A

Defendant will be liablle for more serious offence than assault under
Offences Against the Person Act 1861, s47

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25
Q

Assault mens rea

A
  • Intends or is reckless as to causing the vicitm to apprehend immediate unlawful personal violence
    R v Venna
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26
Q

What is the meaning of assault being a basic intent crime?

A
  • It can be committed intentionally or recklessly
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27
Q

R v Moloney

A

A defendant intends an assault if it was Defendent’s aim or purpose?

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28
Q

When is a defedant reckless as to an assault?

A
  • See a risk that their actions will cause the victim to apprehend immediate and unlawful personal violence
  • In the circumstances known to the Defendants, it was unreasonable to take that risk. (RvG)
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29
Q

R v Savage; Parmenter

A

Confirmed the view that tsubjective recklessness (as set out in R v G) must be established for any assault charge bassed upon recklessness.

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30
Q

Battery

A

Defendant touches the victim in an unwanted fashion
* Defined in the common law
Actual intended use of unlawful force to another person without consent
* Includes reckless application of force

Fagan v MPC

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31
Q

Sentence for battery

A
  • Contind in s39 Criminal Justice Act 1988
  • Maximum penalty = 6 months in prison
  • or £5,000 fine.
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32
Q

Criminal liability of battery

A
  • Actus Reus = Application of unlawful force
  • Mens Rea = Intentionally or recklessly applies unlawful force
  • Absence of a valid defence = self defence;; intoxication; consent
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33
Q

Battery = Actus Reus

A
  • Application
  • Unlawful
  • Force
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34
Q

Battery = Actus Reus = Application

A

Battery can be inflicted
* Directly (Collins v Wilcock)
* Indirectly (R v Martin, DPP v K)
* By an omission (Santana Bermudez)

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35
Q

(Collins v Wilcock)

A

Application of battery can be inflicted directly

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36
Q

(R v Martin, DPP v K)

A

Application of battery can be inflicted indirectly

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37
Q

(Santana Bermudez)

A

Application of battery can be inflicted by an omission

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38
Q

Battery = Actus Reus = Unlawful

A
  • Battery isn’t done in self-defence or with Victim’s consent
  • Consent can be express or implied consent to inevitable everyday contact. (Collins v Wilcock)
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39
Q

Collins v WIlcock

A

Implied consent to inevitable everyday contact

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40
Q

Battery = Actus Reus = Force

A
  • Means the merest of touch (Collins v Wilcock)
  • Does not have to be rude, hostile or aggressive (Faulkner v Talbot)
  • Touchihg someon’s clothes is enough (R v Thomas)
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41
Q

Collins v Wilcock

A

Force = Means the merest of touch

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42
Q

Faulkner v Talbot

A

Force = touch = doesn’t have to be rude, hostile or aggressive

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43
Q

R v Thomas

A

Force = Touching someone’s clothes is enough.

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44
Q

When battery resultsin harm which ins more thatn trivial, what will the defendant be liable for?

A

The More serious offence of Offence Against Persons Act 1861, s 47

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45
Q

DPP v Santana-Bermudez

A
  • Searched body and pricked by needle
  • Said no sharps
  • Created danger that directly caused injury
  • Failed to avert risk.
    Battery constituted an omission = force
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46
Q

Can force for battery be applied indirectly?

A

Yes, the force need not be applied directly.

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47
Q

R v Martin

A
  • Defendant closed exit soors of a theatre.
  • Turned off the light and caused panic.
  • Indirect battery
  • Other exmple from digging a pit which victim then falls into
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48
Q

If Defendant dug a pit and vicitm fell in, what would that consititute?

A
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49
Q

DPP v K

A
  • Acid splashed on hand
  • Poured acid down the nozzle
  • Scarring on fellow pupil
    • Acquitted due to lack of mens rea.
  • But would = actus reus
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50
Q

Does the force in battery need to be applied directly?

A

No, can a also be indirectly
DPP v K

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51
Q

Battery = Actus Reus = Unlawful

A
  • Such contact myst not be justified.
  • Consent makes application of force lawful
  • Prevents battery
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52
Q

Collins v Wilcock

A
  • Police officer grabbed a woman’s arm to prevent her woalking away. = beyond implied consent.
  • Certain amount of physical contact that must be accepted to move around in society
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53
Q

Battery mens rea

A
  • INtention or recklessness as to applying unlawful force on another person
    R v Venna
  • Battery is therefore a basic intent crimeas it can be committed recklessly.
54
Q

R v Venna

A
  • Mens rea offence of battery
  • Defendant intentionally or recklessly applied force to the person of another
55
Q

A mere touch can be an example of

56
Q

An unwanted kiss can be an example of

57
Q

A slap can be an example of

58
Q

Threats of violence can be an example of

59
Q

If some physical movement or words are made this can be an example of

60
Q

Silence in some circumstances can be an example of

61
Q

Where is assault defined?

A

Assault is a common law offence

62
Q

For the purposes of assault, what is meant by personal violence?

A

Victim must apprehend physical violence.

63
Q

In what case was psychological harm expressly rejected as grounds for assauly?

A

Ireland Case

64
Q

What is the mens rea of battery?

A

The offence of battery requires that the defendant apply unlawful force to another intentionally or recklessly.
R v Venna

65
Q

Offence Against the Person Act 1861, s 47

A

Whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be liable… to be imprisioned for any term ot exceeding fuve years

66
Q

Actus Reus of Actual Bodily Harm

A
  • Assault or battery
  • Occasioning = normal rules of causation
  • Actual bodily Harm
67
Q

Mens rea of Actual Bodily Harm

A
  • Mens rea for the assault or the battery
  • Intent or recklessness as to
  • Causing the victim to apprehend immediate and unlawful personal violemce
  • Applying unlawful force upon another
68
Q

Section 47 - actus reus

A

There must have been an assault or battery
* Both the actus reus and the mens rea of either an assault or battery must be established

DPP v Little; R v Ireland

69
Q

Occasioning

A

The assault or battery must “occasion actual bodily harm”
* Must result in actual bodily harm
* Normal principels of casuation apply

70
Q

Can an offence be committed through an omission?

A

DPP v Santana-Bermudez

71
Q

Name the two tests for causation

A

Factual Causation
Legal causation

72
Q

Result Crimes

A

Require the conduct of the defendant to cause a particular result.

73
Q

What are the two aspects of causation that must be proved?

A
  • Factual causation
  • Legal causation
74
Q

Factual causation

A
  • Must be proved that “but for” the acts or omissions of the accused the relevant consequence wouldnot have occurred in the way that it did
    R v White
75
Q

Legal Causation

A

Dfendant must be the operating and substantial cause o fthe prohibited consequence.
* Substantial meaning a cause which is more than de minimis, more than minimal R v Pagett
* Operating meaning: there is no novus actus interveniens or intervening act which breaks the chain of causation. Apply any relevant rules on medical negligence, acts of the victim and the thin skull rules.

76
Q

What is the general rule for omissions

A

General rule is that a defendant cannot be criminally liable for a failure to act
R v Smith (William)

77
Q

R v Smith (William)

78
Q

When may legal duties for omissions arise?

A
  • A statutory duty
  • A special relationship
  • Voluntary assumption of a duty of care
  • A contractual duty
  • Creating a dangerous situation
  • Public office
79
Q

R v Donovan

A

Definition of actual bodily harm said to include “any hurt or injury calculated to itnerfere withthe health or comfort” of the victim.

It was said that the hurt need not be serious or permanent but must be more than transient and trifiling.

80
Q

R v Chan-Fook

A
  • CoA overtunred coviction as trial judge had omitted words “hurt or injury”
    ABH if the victims health or confort was interfered with

Harm is synonym for injury

81
Q

Hobhouse LJ on Harm

A
  • Harm is a synonym for injury
  • Actual = the injury need not be permanent, but should not be so trivial as to be wholly insignificant

R v Chan Fook

82
Q

T v DPP

A
  • Momentory loss of consciousness was capable of amounting to ABH as it involved an injurous impairment of the victim’s sensory functions

ie not transient or trifiling

83
Q

Can momemntary loss of consciousness be held as Actual Bodily Harm?

A

Yes, as injurious impairment of the victim’s sensory functions.
Injury not transient or trifiling

T v DPP

84
Q

DPP v Smith - FACTS

A

Defendant cut off the girlfirends ponytail
* Did not amount to ABH
* No evidence of psych harm

85
Q

DPP v Smith - HELD

A
  • Defendant left no mark on the body or break of skin
  • Cut dead tissue
  • Still part of the body, therefore cutting amounted to an assault
    While still attached amounts to bodily, if concerned with the body of the victim
86
Q

Can actually bodily harm be held to include psychiatric injury?

A

Yes, but not mere emotions such as fear, distress etc

R v Chan Fook; R v Ireland; Burstow

87
Q

Mens rea for ABH

A

Under the OPA 1861, s47
* No mens rea is required for abh
* All that is required is the mens rea for the assault or the battery

88
Q

What mens rea is required for ABH?

A

The Mens Rea for the assault of battery

89
Q

R v Savage; R v Parmenter
Mens Ra for ABH

A

Prosecution are not obliged to prove that the defendant intended to cause some actual bodily harm or was reckless as to whether such harm would be caused.

90
Q

What is needed for inflicting GBH?

A

Actus Reus
* Wound; or
* Infliction of GBH
Mens Rea
* D must intend or be reckless as to the causing of some harm

91
Q

OAPA 1861, s20

A

Two offences
* Malicious wounding
* Maliciously inflicting GBJ

92
Q

C(a minor) v Eisenhower

A

Rupture of internal blood vessels is not sufficient to constitute a wound.
Must break both layers of skin.
Any breaking of the skin will suffice.

93
Q

Can the rupture of blood vessels internally amount to wounding?

A
  • No need to have both layers of skin broken
    C(a minor) v Eisenhower
94
Q

Wounding

A
  • Broke both layers of skin, the dermis and epidermis
95
Q

Wounding

A
  • Causation usually not an issue
  • May be when:
  • D chases the victim, causing them to fall and cut their head
  • D throws a knife and V tries to intercept it
96
Q

What is the meaning of “infliction” when describing the “infliction of GBH”?

A

Essentially infliction bears the same meaning as “cause”; therefore normal rulles of causation apply.

97
Q

R v Wilson

A

There can be infliction of GBH contrary to the OAPA 1861, s20
without an assault being commtited

98
Q

R v Burstow

A
  • Nuisance telephone calls without attacking victim
  • Upheld GBH = psychological injury.
  • “Inflict” did not require an assault to be committed.
99
Q

Ireland Case
GBH

A

Psychiatric injury may amount to GBH if sufficiently serious
Cause and effect will need to be proved
By expert evidence

100
Q

DPP v Smith
GBH

A

GBH means “really serious harm”
Later clarified that “serious harm” suffices Saunders

101
Q

R v Bollom

A

The jury should consider the effect of the injuries on the victim
Take into account:
* Age
* Health
* Totality of injuries

102
Q

Mens Rea of GBH

A
  • D must intend or be reckless as to the causing of harm.
  • Need to consider the extent of the harm that must be intended or forseen
  • D must intend or be reckless as to the causing of some harm
103
Q

Interpretation of malicously for GBH

R v Savage; Parmenter

A
  • Unecessary should the D have forseen the physical harm of the gravity described.
  • Just needed to forsee some harm, albeit minor.
104
Q

OAPA 1861, s 18

A

Wounding or causing GBH with intent

105
Q

OAPA 1861, s18
Elements

A

Actus Reus
* Wound; or
* Causing GBH
Mens Rea
* D must intend to cause GBH

106
Q

OAPA 1861, s18
Offences

A
  • Malicious wounding with intent to cause GBH
  • Maliciously inflicting GBH, with intent to cause GBH.
107
Q

Actus Reus of GBH with intent

A
  • Wounding = breaking both layers of skin
  • Causing = inflicting
  • GBH = serious harm
108
Q

Mens Rea of GBH with Intent

A
  • Must actually intend to cause harm which amounts to GBH
    Recklessness is not enough
  • Intention to wound is not enough
  • Intention can be direct or oblique (R v Woollin)
109
Q

Intention to cause GBH

A

Intention to cause GBH can be either direct (R v Moloney) or oblique (R v Woollin)
Juries can only find s18 by oblique intent unless:
* Serious injury was a virtual certainty as a result of the defendant’s action (objective element)
* The defendant appreciated that (subjective element)

110
Q

Finding oblique intent under s18 (gbh)

A

Juries can only find s18 if
* Serious injurty was a virtual certainty as a result of the defendant’s action (objective element)
* The defendant appreciatedthat (subjective element)

111
Q

Examples of injuries

  • Temporary loss of sensory function (eg sight or hearing)
A

Section 47
Assault occasioning actual bodily harm

112
Q

Examples of injuries

  • Temporary loss of consciousness
A

Section 47
Assault occasioning actual bodily harm

113
Q

Examples of injuries

Extensive bruising

A

Section 47
Assault occasioning actual bodily harm

114
Q

Examples of injuries

Cutting someones hair without their consent.

A

Section 47
Assault occasioning actual bodily harm

115
Q

Examples of injuries

Minor fractures

A

Section 47
Assault occasioning actual bodily harm

116
Q

Examples of injuries

Psychiatric injury that is more than triial - beynd mere fear, distress or panic

A

Section 47
Assault occasioning actual bodily harm

117
Q

Examples of injury

Permanent loss of sensory function

A

Section 20 or s18
GBH

118
Q

Examples of injuries

Permanent disability

A

Section 20 or s18
GBH

119
Q

Examples of injuries

Broken bones

A

Section 20 or s18
GBH

120
Q

Examples of injuries

Fractured skull

A

Section 20 or s18
GBH

121
Q

Examples of injuries

Breaking the dermis and the epidermis

A

Section 20 or s18
Wounding

122
Q

s47 Actus Reus

A
  • Assault = meaning assault or battery
  • Occassioning = causation
  • ABH
123
Q

s47 Mens Rea

A

Intent or recklessness
* causing the victim to apprehend immediate and unlawful personal violence;
* Applying unlawful force upon another

124
Q

s20 Actus Reus

A
  • Wound; or
  • Infliction of GBH
125
Q

s20 Mens Rea

A

D must intend to be recklessas to the causing of some harm

126
Q

s18 Actus Reus

A
  • Wound;
  • Causing GBH
127
Q

s18 Mens Rea

A

D must intend to cause GBH

128
Q

What is the mens rea of assault occasioning actual bodily harm?

A
  • The mens rea for assault or battery
  • No mens rea is required for the actual bodily harm, R v Savage, R v Parmenter.
129
Q

What is the mens rea of section 20 Offences Against the Person Act 1861, malicious wounding or inflicting grievous bodily harm?

A
  • Intention or recklessness as to causing some harm
  • confirmed in R v Savage, Parmenter.
130
Q

What is the mens rea of section 18 Offences Against the Person Act 1861, malicious wounding or causing grievous bodily harm with intent?

A
  • Intention to cause GBH
  • Saunders