9) Non Fatal Defences Flashcards
What is the lowest on the hierarchy of non fatal offences against the person?
- Aassuault, the least serious offence, committed the most frequently
Most serious offence on the hierarchy of non fatal offences against the person
- Wounding or causing grievous bodily harm with inents.
s18 Offences Against the Person Act
Assault
- 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
Criminal liability for assault
- 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
Define assault
Intentionally or recklessly causing another person to apprehend immediate and unlawful personal violence
Fagan v Met Police Commissioner; R v Ireland; Burstow
Elements of Actus Reus of Assault
- Apprehension
- Immediate
- Unlawful
- Personal violence
Actus Reus of Assault: Apprehension
- Make the victim anticipate
- But not necessarily fear (R v Lamb)
- Immediate and unlawful personal violence
R v Ireland
Words alone and silence is enough for the apprehension of immediate and unlawful personal violence
R v Ireland
Turberville v Savage
Words can however negate an assault
Actus Reus of Assault: Immediate
Does not mean instaneous, but some time not excluding the immediate futrue (R v Constanza) or imminent (R v Ireland)
Actus Reus of Assault: Unlawful
Not done in self defence or with the victim’s consent
Actus Reus of Assault: Personal violence
All the vicitm has to anticipate is an unwanted touch
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?
No
Words pr [jusical movement from the defendant, causing the victim to think that they are about to be struck would be sufficients.
R v Lamb
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.
Logdon v DPP
- 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
What form can the threat to use force be?
- Physical gestures = basis of an assault
- Words or silence alone can constutyte an assault in some circusmstances.
R v Wilson
“Get out the knives”
Would be sufficient to constitute an assault.
Silent telphone calls
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
Turbeville v Savage
- 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
Courts definition of immediacy
- Generously, does not mean instantaneous
Constanza
- Defendant had been following he calling her and sending letters.
- Apprehension of personal violence at some time, not excluding the immediate future.
Smith v Chief Superintendent, Woking Police Station
- 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
Personal Violence
- Must be apprehension of ** physical violence. **
When an assault results in psychological harm which is more than trivial
Defendant will be liablle for more serious offence than assault under
Offences Against the Person Act 1861, s47
Assault mens rea
- Intends or is reckless as to causing the vicitm to apprehend immediate unlawful personal violence
R v Venna
What is the meaning of assault being a basic intent crime?
- It can be committed intentionally or recklessly
R v Moloney
A defendant intends an assault if it was Defendent’s aim or purpose?
When is a defedant reckless as to an assault?
- 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)
R v Savage; Parmenter
Confirmed the view that tsubjective recklessness (as set out in R v G) must be established for any assault charge bassed upon recklessness.
Battery
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
Sentence for battery
- Contind in s39 Criminal Justice Act 1988
- Maximum penalty = 6 months in prison
- or £5,000 fine.
Criminal liability of battery
- Actus Reus = Application of unlawful force
- Mens Rea = Intentionally or recklessly applies unlawful force
- Absence of a valid defence = self defence;; intoxication; consent
Battery = Actus Reus
- Application
- Unlawful
- Force
Battery = Actus Reus = Application
Battery can be inflicted
* Directly (Collins v Wilcock)
* Indirectly (R v Martin, DPP v K)
* By an omission (Santana Bermudez)
(Collins v Wilcock)
Application of battery can be inflicted directly
(R v Martin, DPP v K)
Application of battery can be inflicted indirectly
(Santana Bermudez)
Application of battery can be inflicted by an omission
Battery = Actus Reus = Unlawful
- 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)
Is day to day contact battery?
Implied consent to inevitable everyday contact
Collins v WIlcock
Battery = Actus Reus = Force
- 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)
Meaning of force
Force = Means the merest of touch
Collins v Wilcock
Does the force need to be a certain way?
Force = touch = doesn’t have to be rude, hostile or aggressive
Collins v Wilcock
Can force be applies through clothes?
Battery
Force = Touching someone’s clothes is enough.
R v Thomas
When battery resultsin harm which ins more thatn trivial, what will the defendant be liable for?
The More serious offence of Offence Against Persons Act 1861, s 47
DPP v Santana-Bermudez
Omission
- Searched body and pricked by needle
- Said no sharps
- Created danger that directly caused injury
- Failed to avert risk.
Battery constituted an omission = force
Can force for battery be applied indirectly?
Yes, the force need not be applied directly.
Indirect Application of Force
R v Martin
- 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
If Defendant dug a pit and vicitm fell in, what would that consititute?
DPP v K
Indirect Force
- Acid splashed on hand
- Poured acid down the nozzle
- Scarring on fellow pupil
- Acquitted due to lack of mens rea.
- But would = actus reus
Does the force in battery need to be applied directly?
No, can a also be indirectly
DPP v K
Battery = Actus Reus = Unlawful
- Such contact myst not be justified.
- Consent makes application of force lawful
- Prevents battery
Collins v Wilcock
Implied Consent
- 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
Battery mens rea
- 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.
R v Venna
- Mens rea offence of battery
- Defendant intentionally or recklessly applied force to the person of another
A mere touch can be an example of
Battery
An unwanted kiss can be an example of
Battery
A slap can be an example of
Battery
Threats of violence can be an example of
Assault
If some physical movement or words are made this can be an example of
Assault
Silence in some circumstances can be an example of
Assault
Where is assault defined?
Assault is a common law offence
For the purposes of assault, what is meant by personal violence?
Victim must apprehend physical violence.
In what case was psychological harm expressly rejected as grounds for assauly?
Ireland Case
What is the mens rea of battery?
The offence of battery requires that the defendant apply unlawful force to another intentionally or recklessly.
R v Venna
Offence Against the Person Act 1861, s 47
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
Actus Reus of Actual Bodily Harm
- Assault or battery
- Occasioning = normal rules of causation
- Actual bodily Harm
Mens rea of Actual Bodily Harm
- 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
Section 47 - actus reus
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
Occasioning
The assault or battery must “occasion actual bodily harm”
* Must result in actual bodily harm
* Normal principels of casuation apply
Can an offence be committed through an omission?
DPP v Santana-Bermudez
Name the two tests for causation
Factual Causation
Legal causation
Result Crimes
Require the conduct of the defendant to cause a particular result.
What are the two aspects of causation that must be proved?
- Factual causation
- Legal causation
Factual causation
- 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
Legal Causation
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.
What is the general rule for omissions
General rule is that a defendant cannot be criminally liable for a failure to act
R v Smith (William)
R v Smith (William)
When may legal duties for omissions arise?
- A statutory duty
- A special relationship
- Voluntary assumption of a duty of care
- A contractual duty
- Creating a dangerous situation
- Public office
R v Donovan
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.
R v Chan-Fook
- 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
Hobhouse LJ on Harm
Actual Bodily Harm
- 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
Loss oc consciousness
T v DPP
- 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
Can momemntary loss of consciousness be held as Actual Bodily Harm?
Yes, as injurious impairment of the victim’s sensory functions.
Injury not transient or trifiling
T v DPP
DPP v Smith - FACTS
Defendant cut off the girlfirends ponytail
* Did not amount to ABH
* No evidence of psych harm
DPP v Smith - HELD
- 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
Can actually bodily harm be held to include psychiatric injury?
Yes, but not mere emotions such as fear, distress etc
R v Chan Fook; R v Ireland; Burstow
Mens rea for ABH
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
What mens rea is required for ABH?
The Mens Rea for the assault of battery
R v Savage; R v Parmenter
Mens Ra for ABH
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.
What is needed for inflicting GBH?
Actus Reus
* Wound; or
* Infliction of GBH
Mens Rea
* D must intend or be reckless as to the causing of some harm
OAPA 1861, s20
Two offences
* Malicious wounding
* Maliciously inflicting GBJ
C(a minor) v Eisenhower
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.
Can the rupture of blood vessels internally amount to wounding?
- No need to have both layers of skin broken
C(a minor) v Eisenhower
Wounding
- Broke both layers of skin, the dermis and epidermis
Wounding
- 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
What is the meaning of “infliction” when describing the “infliction of GBH”?
Essentially infliction bears the same meaning as “cause”; therefore normal rulles of causation apply.
Does there need to be an assault for GBH to be committed?
There can be infliction of GBH contrary to the OAPA 1861, s20
without an assault being commtited
R v Wilson
R v Burstow
Nuisance phone calls
- Nuisance telephone calls without attacking victim
- Upheld GBH = psychological injury.
- “Inflict” did not require an assault to be committed.
Can psychiatric injury amount to GBH?
Psychiatric injury may amount to GBH if sufficiently serious
Cause and effect will need to be proved
By expert evidence
Ireland Case
DPP v Smith
GBH
GBH means “really serious harm”
Later clarified that “serious harm” suffices Saunders
R v Bollom
The jury should consider the effect of the injuries on the victim
Take into account:
* Age
* Health
* Totality of injuries
Mens Rea of GBH
- 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
Interpretation of malicously for GBH
R v Savage; Parmenter
- Unecessary should the D have forseen the physical harm of the gravity described.
- Just needed to forsee some harm, albeit minor.
OAPA 1861, s 18
Wounding or causing GBH with intent
OAPA 1861, s18
Elements
Actus Reus
* Wound; or
* Causing GBH
Mens Rea
* D must intend to cause GBH
OAPA 1861, s18
Offences
- Malicious wounding with intent to cause GBH
- Maliciously inflicting GBH, with intent to cause GBH.
Actus Reus of GBH with intent
- Wounding = breaking both layers of skin
- Causing = inflicting
- GBH = serious harm
Mens Rea of GBH with Intent
- 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)
Intention to cause GBH
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)
Finding oblique intent under s18 (gbh)
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)
Examples of injuries
- Temporary loss of sensory function (eg sight or hearing)
Section 47
Assault occasioning actual bodily harm
Examples of injuries
- Temporary loss of consciousness
Section 47
Assault occasioning actual bodily harm
Examples of injuries
Extensive bruising
Section 47
Assault occasioning actual bodily harm
Examples of injuries
Cutting someones hair without their consent.
Section 47
Assault occasioning actual bodily harm
Examples of injuries
Minor fractures
Section 47
Assault occasioning actual bodily harm
Examples of injuries
Psychiatric injury that is more than triial - beynd mere fear, distress or panic
Section 47
Assault occasioning actual bodily harm
Examples of injury
Permanent loss of sensory function
Section 20 or s18
GBH
Examples of injuries
Permanent disability
Section 20 or s18
GBH
Examples of injuries
Broken bones
Section 20 or s18
GBH
Examples of injuries
Fractured skull
Section 20 or s18
GBH
Examples of injuries
Breaking the dermis and the epidermis
Section 20 or s18
Wounding
s47 Actus Reus
- Assault = meaning assault or battery
- Occassioning = causation
- ABH
s47 Mens Rea
Intent or recklessness
* causing the victim to apprehend immediate and unlawful personal violence;
* Applying unlawful force upon another
s20 Actus Reus
- Wound; or
- Infliction of GBH
s20 Mens Rea
D must intend to be recklessas to the causing of some harm
s18 Actus Reus
- Wound;
- Causing GBH
s18 Mens Rea
D must intend to cause GBH
What is the mens rea of assault occasioning actual bodily harm?
- The mens rea for assault or battery
- No mens rea is required for the actual bodily harm, R v Savage, R v Parmenter.
What is the mens rea of section 20 Offences Against the Person Act 1861, malicious wounding or inflicting grievous bodily harm?
- Intention or recklessness as to causing some harm
- confirmed in R v Savage, Parmenter.
What is the mens rea of section 18 Offences Against the Person Act 1861, malicious wounding or causing grievous bodily harm with intent?
- Intention to cause GBH
- Saunders
