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
What is the only real difference between Common Assault/Battery and ABH?
1) The degree of harm suffered by the victim and
2) the sentence available
What must be shown to prove Assault Occasioning ABH?
That actual bodily harm has been the direct or indirect consequence of the defendant’s actions
What is ABH?
Any hurt calculated to interfere with the health or comfort of the victim
Does hurt have to be permanent to be counted as ABH?
No - it need not be permanent but it must be more than transient or trifling
Can psychological harm be counted as ABH?
Yes - so long as it involves more than mere emotions such a fear/distress etc. and induces something more like shock or mental ‘injury’
Can an act which causes a momentary loss of consciousness without producing physical injury be classed as ABH?
Yes - it produces injurious impairment of the victim’s sensory abilities which are more than trifling
Can the substantial cutting of a victim’s hair be deemed ABH though pain is not caused?
Yes - though hair may be senseless tissue, it is nonetheless tissue connected to the body and is therefore ‘bodily’
What is the CPS’ recommendations for making a charge of ABH?
ABH should be charged where injuries and overall circumstances indicate the offence merits more than 6 months imprisonment
Which extract of legislation covers Wounding or Inflicting Grievous Bodily Harm?
Offences Against the Person Act 1861, Section 20
How is Wounding or Inflicting Grievous Bodily Harm triable?
Either way, in Crown or Magistrates
What is the penalty for Wounding or Inflicting Grievous Bodily Harm on indictment?
Five years’ imprisonment
What is the penalty for Wounding or Inflicting Grievous Bodily Harm summarily?
Six months’ imprisonment and/or a fine
What is the penalty for Racially/Religiously Aggravated Wounding or Inflicting Grievous Bodily Harm on indictment?
Seven years’ imprisonment and/or fine
What is the penalty for Racially/Religiously Aggravated Wounding or Inflicting Grievous Bodily Harm summarily?
Six months’ imprisonment and/or fine
What is the definition of Wounding or Inflicting Grievous Bodily Harm?
Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanour
What is the Mens Rea for Wounding or Inflicting GBH?
Unlawfully or maliciously (where malice is not necessarily premeditation but subjective recklessness - they saw a risk and did it anyway)
What is the Actus Reus for Wounding or Inflicting GBH?
Inflicting GBH on another, with or without a weapon or instrument
What is the meaning of malice in the context of wounding or inflicting GBH?
Malice in the context of GBH amounts to subjective recklessness - the defendant recognised there was a risk of SOME harm being causes but acted anyway. They do not necessarily have to premeditate an act for malice, though this is admissible.
Does the defendant have to have foreseen the degree of harm which is caused by their act to properly constitute Wounding or Inflicting GBH?
No - they only need to have foreseen that their behaviour may bring about some risk to the victim
What is the definition of wounding?
The breaking of the continuity of the whole of the skin (dermis and epidermis) externally or internally, OR the breaking of the inner skin i.e. within the cheek, lip, urethra etc. It is life changing damage.
Does the rupturing of blood vessels (bruising) in itself amount to Wounding/GBH?
No
Does a physical accosting need to occur for Wounding/GBH?
No - harm can be inflicted both directly AND indirectly i.e. with menacing phone calls producing profound mental health damage
Can a large number of minor wounds suffice as Wounding/GBH
Yes
Can the deliberate or knowing infection of another with a sexually transmitted disease amount to GBH?
Yes - so long as the victim has not known of the defendant’s likely or certain infection prior to consenting to intercourse
Which extract of legislation covers Wound or Causing Grievous Bodily Harm with Intent?
Offences Against the Person Act 1861, Section 18
How is Wounding or Causing Grievous Bodily Harm with Intent triable?
On indictment only, in Crown Court
What is the penalty for Wounding or Causing Grievous Bodily Harm with Intent
Life imprisonment
What is the definition of Wounding or Causing Grievous Bodily Harm with Intent
Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any 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 felony…
What are the 4 subtypes of offence included under Wounding or Causing Grievous Bodily Harm with Intent?
1) Wounding with intent to do GBH
2) Causing GBH with intent to do so
3) Maliciously wounding with intent to resist or prevent the lawful apprehension of any person
4) Maliciously causing GBH with intent to resist or prevent the lawful apprehension of any person
What MUST be proven to show Section 18 Wounding or Causing Grievous Bodily Harm With Intent rather than the Section 20 offence, Wounding or Inflicting GBH?
Either
1) the intent to do GBH to anyone
2) the intent to resist/prevent the lawful apprehension/detention of anyone
What 4 example factors may indicate the intent to do GBH on anyone or resist/prevent lawful apprehension/detention of anyone?
1) Evidence of repeated/planned attack
2) Deliberate selection of a weapon or adaptation of an article to cause injury
3) Making prior threats
4) Using an offensive weapon
When is it necessary to prove malice in relation to Wounding or Causing Grievous Bodily Harm With Intent?
With respect to wounding or GBH performed with the intent to resist the lawful apprehension/detention of anyone
What must the prosecution prove in order to charge with Wounding or Causing Grievous Bodily Harm With Intent to resist lawful apprehension/detention
That the apprehension/detention was itself lawful
Must the prosecution proven a defendant knew that apprehension/detention to be lawful in order to charge with Wounding or Causing Grievous Bodily Harm With Intent to resist lawful apprehension/detention?
No - they only need prove the apprehension/detention was lawful, not that the defendant knew this
Can the intentional infection of a victim with a sexually transmitted disease constituent Wounding or Causing Grievous Bodily Harm With Intent?
Yes - it must be proven that it was the defendant’s intention however
Can charges of racially or religiously aggravated assaults be applicable to a charge of Wounding or Causing Grievous Bodily Harm With Intent?
No - not formally for prosecution but the Courts should still take account of this in their assessment
Which extract of legislation covers Assault with Intent to Resist Arrest?
Offences Against the Person Act 1861, Section 38
How is Assault with Intent to Resist Arrest triable?
Either way, in Court or Magistrates
What is the penalty for Assault with Intent to Resist Arrest?
Two years’ imprisonment
What is the definition of Assault with Intent to Resist Arrest?
Whosoever shall assault any person with intent to resist or prevent the lawful apprehension or detainer or himself or of any other person for any offence, shall be guilty
What 2 things must be proven for a charge of Assault with Intent to Resist Arrest?
1) That the defendant intended to resist or prevent the lawful arrest or detention of a person (himself or another
2) That the arrest/detention was lawful
Who can Assault with Intent to Resist Arrest apply to as regards those doing the arresting?
Anyone with the power of arrest, police officers and members of the public with a citizen’s arrest
Does it matter whether the defendant had actually committed the offence the arrest was attempted in relation to when considering Assault with Intent to Resist Arrest?
No - a mistaken belief on the part of those arresting does not provide a defence of ‘mistake’ to the defendant, nor does a belief in one’s own innocence
What extract of legislation covers Assault Police?
Police Act 1996, Section 89
How is Assault Police triable?
Summarily, in Magistrates
What is the penalty for Assault Police?
Six months’ imprisonment and/or a fine
What is the definition of Assault Police?
Any person who assault a constable in the execution of his duty, or a person assisting a constable in the execution of his duty, shall be guilty of an offence
What must be proven by the prosecution for a legitimate charge of Assault Police?
That the officer is proven to have been acting in the execution of his or her duty when assaulted
If a constable is doing more than the law requires, can they still be said to be acting in the lawful execution of their duty regarding an Assault Police charge?
Yes
What must be proven for a legitimate charge of Assault Police where the assault was made in reaction so some form of physical act by the officer?
That the officer’s act was not itself unlawful
In what instances may an officer take somebody by the arm lawfully without instigating formal arrest procedures?
1) to attract the person’s attention
2) to calm the person down
Otherwise, the officer may be said to have performed battery
What is a custody officer entitled to assumed when a prisoner is arrested and brought into custody?
That their arrest has been lawful
If a prisoner assaults a custody officer, and their arrest later is revealed to be unlawful, can they still be charged with Assault Police?
Yes - custody officers are entitled to assume a prisoner’s arrest has been made lawfully
Must it be proven a defendant knew that the person they assaulted was a police officer and acting in the lawful execution of their duty for a charge or Assault Police?
No - these things do not need to be proven
In what circumstance may the necessary Mens Rea be said not to be present with regard to a charge of Assault Police?
If the defendant claims they acted in self-defence under the mistaken, honestly held belief they were being attacked
Which extract of legislation covers Obstruct Police?
Police Act 1996, Section 89
How is Obstruct Police triable?
Summarily, in Magistrates
What is the penalty for Obstruct Police?
One months’ imprisonment and/or fine
What is the definition of Obstruct Police?
Any person who resists or wilfully obstructs a constable in the execution of his duty, or a person assisting a constable in the execution of his duty, shall be guilty
What must be proven for a charge of Obstruct Police?
That the constable was acting in the lawful execution of their duty.
Must obstruction be in physical form for a charge of Obstruct Police?
No - it may come via warning other motorists of a speed check, deliberately providing misleading information, delivering drinking alcohol when providing a breath specimen etc
How should obstruction be interpreted in respect of Obstruct Police?
Any act which makes it more difficult for a constable to carry out his/her duty
Is refusing to answer an officer’s questions, or advising another not to, Obstruct Police?
No - unless the Defendant is under some duty to provide information
What must the nature of the obstruction be for a charge or Obstruct Police?
It must be wilful - the defendant must intend to obstruct
Will obstruction be deemed wilful if the defendant was trying to help police by their actions, and their help was more of a hindrance?
No
Can Obstruct Police be committed through omission?
Yes - but only where the defendant was already under some duty towards the officer
Is refusing to go to the aid of a constable permissible for a charge of Obstruct Police?
Yes - in common law
Can a charge of assault ever legitimately include killing of another person?
No - assaults are non-fatal assaults against the person
Can a common assault and battery occur simultaneously?
No - you can either have one or the other for any single act
Would threats made down the phone, with the defendant many miles away from the victim qualify as common assault?
No - the apprehension of unlawful violence must be immediate
What qualitative level of harm is included within Battery?
Most minor injury - light bruising, redness of unbroken skin and really tiny cuts
What qualitative level of harm is included within Actual Bodily Harm?
Minor bruising, small fractures i.e. of the finger, a tooth knocked out - ABH will interfere with the victim’s health or comfort
What qualitative level of harm is included within Grievous Bodily Harm?
Major broken bones, cuts that will leave scarring
If you are not sure which offence to charge for based on the injuries caused, what should you do?
Charge for the more serious offence - CPS can knock it to lesser offence examination as necessary
If you encounter an example of injury causing loss of consciousness, which level(s) of assault should you automatically be looking to charge for?
ABH or GBH
What are the three main defences to assault charges?
1) Consent
2) Legal justification
3) General Defences (to an extent)
Can anybody ever consent to assault?
No - they can only consent to pain in certain specific circumstances
Against what 3 conditions is a proposed defence to an assault charge judged?
1) Consequence of the act
2) Dangerousness of the act
3) Vulnerability of the victim
What are the only conditions under which Common Assault or Battery may be come an indictable offence?
When they have been racially or religiously motivated
What must specifically be the case with regard to a defendant’s intent when considering guilt against a Wounding or Inflicting GBH with intent?
The defendant cannot just have foreseen the risk of injury - they must have specifically set out with the intent to cause harm at GBH level
Can recklessness be a motivation for a charge of Wounding or Inflicting GBH with intent?
No - the only Mens Rea is the intent to cause injury at a GBH level
At what levels of bodily assault can a charge of Assault Police be charged?
At the level of common assault or battery only
If the level of injury is ABH or above, can a defendant be charged with Assault Police?
No - they would be charged with ABH or GBH (with intent)
