Assaults Flashcards
What is an assault?
Any act which intentionally or recklessly causes another to apprehend immediate unlawful violence
Does there need to be physical contact for an assault to take place?
No - the mental elements of this crime (the defendant’s mens rea of intentionality/recklessness and the victim’s apprehension of violence are mental elements which are sufficient for the definition of assault)
Can assaults be carried out by acts and omissions?
No - assaults are acts only. Assault cannot be committed through omission.
What Mens Rea are need to be proved for assault?
The the defendant either
1) intended to causes apprehension of immediate unlawful violence in the victim;
2) had subjective recklessness as to that consequence
What should be considered in relation to the victim to determine commission of assault?
Their state of apprehension of being subjected to immediate unlawful violence
If X aims a toy firearm at Y and Y is not aware it is an imitation has an assault been committed?
Yes - Y apprehends violence even if the toy firearm cannot actually produce this, so an assault is committed
If X aims a toy firearm at Y and Y knows it is an imitation has an assault been committed?
No - Y knows the toy is an imitation only and so does not apprehend violence
Is apprehension the same as fear?
No - the victim does not need to fear the violence - they may even relish the opportunity to teach a lesson to their assaulter and still be regarded as the victim. They must only apprehend the possibility of immediate violence.
Does the victim need to believe the possibility of violence to be a certainty for assault to be committed?
No - violence does not need to be a certainty but only a possibility in the immediate future
What are the parameters of “immediate” in regard to violence for assault?
The immediacy is somewhat elastic i.e. a threat can be made from outside a victim’s house and be considered assault although a short time will elapse before this can take place. Typically, no more than one or two minutes constitutes immediate.
What must the victim fear for assault?
They must fear FORCE - it isn’t enough to show that a person threatened with words/silence feared more words/silence
Are words and silence sufficient to amount to the Actus Reus of assault?
Yes - so long as they are accompanied by the appropriate Mens Rea and induce apprehension of immediate force
What forms of communication are accepted as a method for committing assault?
Any form of communication can be used as a method for assault, including letters so long as they induce apprehension of immediate force
Are conditional threats an assault?
Words of conditional threats can often negate an assault by rendering the threat hypothetical i.e. “If these officers weren’t here, I’d chin you!”
What is battery?
When a person intentionally or recklessly (subjective) inflicts unlawful force on another
What does battery require?
Physical contact with the victim
Can battery be carried out by phone?
No - physical contact is required for battery
Is the defendant attacking the victim’s clothing sufficient for battery?
Yes - so long as the victim is wearing it on them
Is assault required before battery takes place?
No - i.e. a blow may be struck from behind without warning
What level of physical contact is required for battery?
A very small degree of physical contact - it does NOT have to be an act of serious violence
Can battery be caused indirectly also?
Yes - force instance a defendant attacking a female victim in which this causes her to drop her child will be regarded as battery against the child also
What extract of legislation covers assault and battery?
The Criminal Justice Act 1988 Section 39
What is key to prove in assault cases?
The unlawfulness of the force used
What might negate a charge of assault/battery?
Consent of the alleged victim (either express or implicit)
What is needed to disprove a defence of consent?
To show that the behaviour complained about went beyond what was acceptable in those particular circumstances
Is it possible to consent to violence which is not in the remit of the rules of a context i.e. a sporting game?
No
Do teachers employed at special needs schools consent to the use of pupil violence against them by implication?
No
Will victim consent still be admissible as a defence in situations where it was gained by fraud?
Victim consent may be used as a defence unless the fraud disguised the identity of the defendant or the nature and quality of their act i.e. a doctor indecently touching their patient during a routine medical exam
Can the defence of consent be brought in cases of sado-masochism?
In cases where harm of ABH or higher is deliberately inflicted, consent will ordinarily be deemed to be invalid on the grounds of public policy
Can the defence of consent be brought in cases of serious harm brought about for sexual gratification?
No - this is NOT a defence for “relevant offences” (ABH and above)
Which law prevents serious harm inflicted for sexual gratification being admitted under the defence of consent?
The Domestic Abuse Act 2021, Section 71 (2)
What is included as an offence causing “serious harm” for sexual gratification?
1) GBH
2) Wounding
3) ABH
Is corporal punishment of school pupils by teachers legal?
No
Which legislation prevents teachers conducting corporal punishment on pupils?
The Education Act 1996, Section 548
For what purpose may teachers use reasonable force in relation to pupils?
For restraining violence or disruptive pupils
What does the defence of Reasonable Punishment (of a child) apply to?
To anybody acting in loco parentis, preventing them from using anything above common assault (threats) to punish a child
Is lawful chastisement an available defence to parents in Wales?
Yes - until the 21st of March and only where punishment is deemed reasonable
How are Common Assault and Battery triable?
Summarily, in magistrates
What is the possible penalty for Common Assault/Battery
Six months’ imprisonment
How are Common Assault and Battery triable when Racially or Religiously Aggravated?
Either way, in Crown or Magistrates
What is the possible penalty for Common Assault/Battery when racially/religiously aggravated in Crown Court?
Two years’ imprisonment and/or fine on indictment
What is the possible penalty for Common Assault/Battery when racially/religiously aggravated in Magistrates Court?
Six months’ imprisonment and/or fine summarily
Do racially/religious aggravated offences need to be included alongside another indictable offence to be tried on indictment?
No - a charge on indictment is appropriate where no injury occurred
How is an assault on an emergency worker triable?
Either way, in Crown or Magistrates
What is the possible penalty assault on an emergency worker in Crown Court?
To imprisonment for a term not exceeding 12 months, or to a fine, or both
What is the possible penalty assault on an emergency worker in Magistrates Court?
To imprisonment for a term not exceeding 6 months, or to a fine, or both
When does assault on an emergency worker apply?
When a person is acting in functions of an emergency worker, whether in work time or outwith it, whether paid or unpaid.
What is an assault on an emergency worker deemed as when trying in a court?
An aggravating factor
What extract of legislation covers Assault Occasioning Actual Bodily Harm?
Offences Against the Person Act 1861, Section 47
How is Assault Occasioning Actual Bodily Harm triable?
Either way, in Crown or Magistrates
What is the penalty for Assault Occasioning ABH on indictment?
Five years imprisonment
What is the penalty for Assault Occasioning ABH summarily?
Six months imprisonment and/or a fine summarily
How is Racially/Religiously Aggravated Assault Occasioning ABH triable?
Either way, in Crown or Magistrates
What is the penalty for Racially/Religiously Aggravated Assault Occasioning ABH on indictment?
Seven years’ imprisonment and/or fine on indictment
What is the penalty for Racially/Religiously Aggravated Assault Occasioning ABH summarily?
Six months’ imprisonment and/or a fine on indictment