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FLK2 - Criminal Law > Assaults > Flashcards

Assaults Flashcards

1
Q

what is the max sentence for assault?

A

6 months’ imprisonment and/or fine

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2
Q

what is the max sentence for battery?

A

6 months’ imprisonment and/or fine

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3
Q

what type of offence is assault?

A

summary

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4
Q

what type of offence is battery?

A

summary

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5
Q

what is the basis for assault and battery?

A

these are common law offences but charged under statute (s39 CJA 1988)

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6
Q

what type of offence is ABH?

A

either-way

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7
Q

what is the statutory basis for wounding or causing grievous bodily harm with intent?

A

s18 OAPA 1861

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8
Q

what is the statutory basis of ABH?

A

S47 OAPA 1861

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9
Q

what is the max sentence for ABH?

A

5 years’ imprisonment

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10
Q

what is the statutory basis for maliciously wounding or inflicting grievous bodily harm?

A

s20 OAPA 1861

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11
Q

what type of offence is s20?

A

either-way

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12
Q

what type of offence is s18?

A

indictable

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13
Q

what is the max sentence for s20?

A

5 years’ imprisonment

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14
Q

what is the max sentence for s18?

A

life imprisonment

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15
Q

what is common law assault?

A

a collective term for simple assault (knows as technical assault) and battery (known as physical assault)

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16
Q

do assault and battery need to coincide?

A

no. They often coincide but do not need to. D can be guilty of just assault or just battery.

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17
Q

what is simple assault?

A

D intentionally or recklessly causes V to apprehend immediate and unlawful force.

There need not be any violence, nor does the accused need to make physical contact with V (this would be battery).

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17
Q

how do you work out the most appropriate charge?

A
  1. determine charge

is there an injury?
NO
- touching > battery
- no touching > assault

YES
- minor injury > s47
- serious injury > s20 / s18
- serious injury + intent > s18

  1. is AR and MR met?
  2. does D have a defence?
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18
Q

what is the AR of simple assault?

A

causing V to apprehend immediate and unlawful personal force

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19
Q

re: simple assault

in what ways can V ‘apprehend’?

A

D can apprehend force by actions, words or silence

D does not need to be ‘scared’ to apprehend, but this would suggest they ‘apprehended’ (as would being nervous/anxious)

in a fact pattern, if it says V was ‘angry’ this doesn’t necessarily mean they apprehend unlawful form, the latter is the key thing to look for.

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20
Q

re: simple assault

in terms of apprehend, when will D not be guilty?

A

if D acts V from behind and V does not expect this, they cannot be guilty of assault because V didn’t apprehend the use of force (but they may be guilty of battery)

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21
Q

re: simple assault

will a silent telephone call amount to assault?

A

A silent telephone call may be an assault but a pattern of contact is likely to be required

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22
Q

re: simple assault

in terms of immediate, when will D not be guilty?

A

D must cause V to apprehend immediate violence i.e. if D says ‘I will kick you next week’ this is not an assault

in other words, future threats will not satisfy the AR

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23
Q

re: simple assault

will a text message considered to be ‘immediate’

A

this depends if V feels D could cause V harm immediately

i.e. if the threat is made by text, D could actually be very close to V and V may not know

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24
Q

re: simple assault

what is the position regarding conditional threats?

A

D could also be liable for assault if they have made a conditional threat i.e. ‘ if you don’t shut up, I will slap you’ so long as it satisfies the immediacy requirement

25
Q

re: simple assault

explain ‘unlawful’

A

Not all assaults are unlawful i.e. an individual using reasonable force to defend themselves

26
Q

re: simple assault

what is the MR?

A

D intentionally or recklessly cause V to apprehended immediate and unlawful person force

recklessness > D must personally foresee the risk and go on to take it

27
Q

re: simple assault

what is the key thing to remember?

give an example

A

the threat must be made to D

i.e. a father says to his daughter ‘if you see Tom again, I will kill him. The daughter cannot apprehend violence because the threat was not made to her, and Tom was not present when the words were spoken. Therefore there is no assault.

28
Q

re: simple assault

give an example of when a conditional threat will not satisfy the immediacy requirement

A

D says ‘if you go near my son, I will break your legs’. This would not satisfy the immediacy requirement because if they go near the son, which doesn’t suggest immediacy.

29
Q

re: battery

what is the AR?

A
  • The infliction of unlawful force by D on V
30
Q

re: battery

how can the AR be satisfied?

A

o Direct contact
o Not direct contact i.e. spitting, throwing an object, cycling over V’s foot
o Indirection application of force i.e. setting a dog on V, placing an obstacle so they trip

The degree of force only has to be very slight and V need not suffer any harm

31
Q

re: battery

what is the mens rea?

A

Intentionally or recklessly inflict unlawful force on another person

recklessness > D must have intended or foreseen the actual infliction of force (not just V’s apprehension)

32
Q

re: ABH

what is the AR?

A

D commits a common law assault (i.e. assault or battery) that occasions actual bodily harm

33
Q

re: ABH

explain ‘occasions’

A
  • The assault / battery must cause the harm
  • The usual rules on factual and legal causation apply
34
Q

re: ABH

what is ‘actual bodily harm’?

A

there is no further guidance in the legislation, but statute suggests “actual bodily harm means any hurt or injury calculated to interfere with the health or comfort of the victim. The injury need not be serious or permanent in nature, but it must be more than ‘transient or trifling’”

35
Q

re: ABH

what are examples of ABH?

A

o Split lip
o Stab to the arm that required three stitches
o Significant bruising
o Kick to the knee causing swelling
o Cutting a substantial piece of V’s hair
o Temporary loss of consciousness
o A medically recognised psychiatric condition i.e.:
 Anxiety neurosis
 Reactive depression

36
Q

re: ABH

what injuries have not amounted to ABH?

A

o Very small bruise
o Minor scratch
o Red mark from a slap that fades quickly
o Minor mental harm i.e.:
 Strong emotions such as rage or fear
 Panic attack
 Nervous disposition

37
Q

re: ABH

what is the mens rea?

A

D must intentionally or recklessly occasion a simple assault or battery

NB: it does not need to be shown that D intended to cause ABH. So long as the injury sustained is sufficient, S47 will be satisfied.

38
Q

re: s20

what is the AR?

A
  • D unlawfully wounds or inflicts grievous bodily harm
39
Q

re: s20 / s18

what is the definition of wounds?

A

both layers of skin must be broken resulting in bleeding

40
Q

re: s20 / s18

give examples of ‘wounds’

A

o A cut of any size or severity
o A scratch that draws blood
o A cut to the inside of the mouth

41
Q

re: s20 / s18

give examples of injuries that are not ‘wounds’

A

o Bruising or internal bleeding
o A rupture of the blood vessels in the eye

42
Q

re: s20

explain ‘inflicts’

A
  • Case law has confirmed this has the same meaning as ‘causes’
43
Q

re: s20 / s18

what is the definition of grievous bodily harm?

A

‘really serious harm’

44
Q

re: s20 / s18

how will it be determined if the injury amount to ‘grevious bodily harm’?

A
  • The jury/Mags will need to consider whether the injury amounts to GBH and will consider the effect on V, considering their age and health
45
Q

re: s20 / s18

what are examples of GBH?

A

o Fractured skull
o Severe internal injuries
o Disfigurement caused by acid
o Really serious psychiatric injury
o Passing HIV when D knew they had it

46
Q

re: s20

what is the MR?

A
  • Maliciously wound or inflict GHB on V
47
Q

re: s20

how has case law interpreted the MR?

A
  • This has been interpreted to mean intention / recklessness
  • D only has to foresee a risk that their actions would cause actual bodily harm (i.e. some physical harm) to V i.e. it doesn’t need to be proven that D intended to cause the full scale of the injury that they did
48
Q

re: s18

what is the AR?

A
  • D unlawfully wounds or causes GBH
49
Q

re: s18

what is the MR?

A

either:
1. intention to cause GBH
2. intention to resist/prevent the detention of another with intention or recklessness to cause some bodily harm

50
Q

re: s18

when will a case not meet ‘intention to cause GBH’ MR?

A

o Intention to cause harm or wound that is lesser than GBH will not suffice; and
o Recklessness will not suffice

this is a high threshold

51
Q

re: s18

how might intention to cause GBH be proved?

A

o Use of a weapon
o Repeated punching / stamping
o Evidence of clear planning

52
Q

re: consent

generally, when will consent be allowed as a defence?

A

Consent is a defence to common law assault (i.e. assault and battery)

the law implies that people consent to a level of inevitable physical conduct part of everyday life (i.e. shaking hands)

53
Q

re: s18

explain ‘intention to resist/prevent detention’

give an example

A

D must have intentionally attempted to evade detention, and they must either have intentionally or recklessly caused harm

i.e. Tom is about to be arrested and lashes out and runs. In the process, he wounds the officer. He did not intend to do this, but was reckless as to causing some bodily harm to the officer. Recklessness is not normally sufficient for s18, but it is when there has been an intention to resist detention.

54
Q

re: consent

generally, when will consent not be allowed as a defence?

give an example

A

Consent is not available as a defence to any assault where harm is intended / caused (i.e. ABH & GBH). There are exceptions to this.

example:

two youths agreed to settle a dispute by a fist fight. V was injured. Court held V could not consent and this was not a defence under s47 as it is not in the public interest to cause harm to one another for no good reason

54
Q

re: consent

what are the exceptions when the defence is consent will be allowed for ABH/GBH?

A

o Surgery
o Dangerous exhibitions (i.e. circus acts)
o Sport, provided it is properly conducted
o Ear piercing and tattooing
o Horseplay – the law is not clear on where the line is

55
Q

re: consent

in what specific instances can this defence not be relies upon?

A

o Sado-masochism
o Body modifications i.e. nipple removal, division of tongue
o Conduct in sport which is outside the rules of the game i.e. punching the opposition

56
Q

re: consent

when will consent be valid?

A

o Consent is only valid if it has been freely given by a fully informed and competent adult
o Consent is not valid if it is obtained by fraud

57
Q

re: consent

what may be fraudulent about the consent?

A

 Identity of D may be fraudulent;
 Nature of the act may be fraudulent;
 Quality of the act may be fraudulent.

58
Q

re: consent

give an example of when consent will not be valid

A

Zara, who has severe learning difficulties, willingly allows her friend to practise his tattooing skills upon her arm. Because Zara thinks that the ink will wash off, her consent is not valid.

59
Q

give a summary of when the defence of consent can be used

A

YES - Simple assault and battery
NO - s18, 20 and 47 OAPA 1861, unless one of the recognised exceptions applies.

FLK2 - Criminal Law (8 decks)

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