cases - offences against the person

Question 1

AG ref 6 of 1980

Answer 1

Can be no consent for two men settling a dispute by a fight, as there is no good reason for the fight. There could however be valid consent for games and sport (ie boxing), chastisement, surgery and dangerous exhibition.

Question 2

Aitkin [1992]

Answer 2

RAF officers involved in rough and undiciplined horseplay. However held that V still was able to validly consent to serious burns as a result of this horseplay, and that subsequently even if he did not consent D could be acquited if he had a genuine belief that V consented. Sits uncomfortably with Brown, emphasising the importance of different and politically contentious policy influences.

Question 3

Barnes [2005]

Answer 3

The criminal prosecution of those who had inflicted injury on another in the course of a sporting event was reserved for those situations where the conduct was sufficiently grave to be properly categorised as criminal. That level was an objective one which would be determined by the type of sport, the level at which it was played, the nature of the act, the degree of force used, the extent of the risk of injury and the state of mind of the defendant. This is a question of fact for the jury.

Question 4

Brown [1994]

Answer 4

Consent of V is vitiated by public policy. HoL decide that in general anything constituting ABH or higher cannot be consented to without good reason. HoL held that the satisfying of sado-masochistic desires does not constitute such a good reason, justifying the decision because of what might happen as a result (ie HIV spread, moral corruption etc.). This is unsatisfactory - justification by what might happen is the justification for conduct, not result, crimes. Mustill dissents: no principled reason why one cannot consent to ABH, and undesired results are already covered (ie threatening public order or sexual abuse). Raises issues of autonomy vs welfare. HRA grounds failed: intrusion on sexual expression allowed because of protection of public health or order.

Question 5

Childrens Act 2004 s.58(1)

Answer 5

Section which makes it unlawful to inflict ABH or higher on a child for the purposes of reasonable punishment.

Question 6

Collins v Willcock (1984)

Answer 6

Deemed consent is when touching would normally be considered socially acceptable. This is broken when D uses excessive force or knows that V doesn’t consent. In this case the police stops the prostitute to ask her a question. When she refuses D stops her with force. D was not doing this in the course of a normal arrest so she had used excessive force, specially considering V had make it clear she didn’t want to answer questions.

Question 7

Crime and Disorder Act 1988 ss. 28-32

Answer 7

Deals with racially aggravated offences

Question 8

Criminal Justice Act 1987 section 39

Answer 8

Section under which assault and battery can be charged as seperate offences

Question 9

Dica [2004]

Answer 9

A person could be convicted of inflicting grievous bodily harm if, knowing that he was suffering from a serious sexual disease, he recklessly transmitted that disease through consensual sexual intercourse to a person who was ignorant of, and therefore unlikely to have consented to, the risk of infection. Here D had ‘concealed’ his HIV status from V, so V had not consented. Unsure whether D has concealed the status from V when he has simply not told her (‘informed consent’) or whether it is sufficient that V shows her willingness to the risk (ie sleeping with a stranger without protection).

Question 10

Donovan [1934]

Answer 10

Actual bodily harm is defined as any hurt or injury calculated to interfere with health of comfort. Needn’t be permanent, just more than transient.

Question 11

DPP v K (1990)

Answer 11

Battery is indirect if D creates a trap for V. Boy puts sulphuric acid in hand-dryer.

Question 12

DPP v Santana-Bermudez [2003]

Answer 12

D convicted of actual bodily harm after creating a dangerous situation by lying to a police officer that there were no needles in his pockets. As long as a mens rea of intention or recklessness can be shown, D is guilty for this omission.

Question 13

Konzani [2005]

Answer 13

Consent to the risk of contracting HIV could not be inferred from consent to unprotected sexual intercourse with someone who V could foresee was HIV+ and was therefore not a valid defence to charges under the Offences against the Person Act 1861 s.20 of passing on the infection. Only a fully informed consent of transmission of the virus with awareness of the consequences was valid, rather than a weaker implied consent. A defendant’s honest belief in consent would only assist him if the consent would have provided him with a defence, ie if he thought that V had made an informed consent to the risk of HIV infection.

Question 14

Prevention of Crime Act 1953 s.1

Answer 14

Makes it an offence to possess an offensive weapon in a public place. Offence weapon is anything made or adapted to cause injury, or anything carried with the intent of causing injury. Self-defence requires that D is facing an imminent threat

Question 15

Protection from Harassment Act 1977 s.1

Answer 15

deals with Ds pursuing a course of conduct amounting to harassment of another. s.4 deals with Ds persuing a course of conduct causing V to fear violence on at least 2 occassions.

Question 16

R v Fagan [1969]

Answer 16

D charged with assaulting a police constable contrary to the Police Act 1964 s.51(1). Battery can be committed by an omission when you have created a dangerous situation and then intentionally or recklessly don’t correct it. Battery can be through indirect touching.

Question 17

R v Ireland and Burstow [1998]

Answer 17

D convicted with an causing an assault occasioning actual bodily harm. Actual bodily harm could be purely phychiatric but had to be more than emotional disturbance, following R v Chan-Fook. This harm could be inflicted by words alone as long as these words made V apprehend immediate personal violence. In CoA, held D guilty because V apprehended immidiate physical or phychological harm. HoL rejected this approach: only physical harm enough, but it is sufficient that V thought that D was outside the house (immidiacy is a matter of fact). The seriousness of the psychiatric harm determines whether it is ABH or GBH. Mens rea for D was whether he intended or was reckless as to V apprehending immediate physical violence.

Question 18

Richardson [1999]

Answer 18

Where a dentist treated patients who had proffered their consent, unaware of the fact that the dentist was suspended from practice, the dentist was not guilty of assault, as an assault could only occur where consent was given in the mistaken belief that the dentist was other than she truly was. In the instant case, whilst the complainants were unaware that R was no longer qualified to practise, they were fully aware of her identity. Similarly, the suspension did not change the nature of the act performed, dentestry, which V consented to.

Savage If injury is caused, it need not even be proved that the injury was foreseeable, because this element of the offence is one of strict liability. The only mens rea requirement of s.47 is that required for assault or battery- intentional or subjective recklessness of touching or causing apprehension of immediate violence. For s.20 D need not intend or foresee the causing or inflicting of a wound or grievous bodily harm, but merely that minor injury “might” occur. If D was unaware that his conduct might cause any injury at all there is no mens rea (unless voluntary intoxicated because it is a crime of basic intent).

Question 19

T v DPP [2003]

Answer 19

Loss of consciousness sufficient for actual bodily har, as it amounted to an impairment of sensory function.

Question 20

Tabassum [2000]

Answer 20

Test changed from being that consent is vitiated when it concerns identity or nature of the act to include fraud as to the quality of the act as well. In this case, however well-meaning Tabassum was in examining the breasts, the fact that he lied about him being a doctor meant that although he had not lied about the nature of the act (he could still have been checking for lumps), consent was vitiated because Vs only agreed to being checked by a person of a certain quality. cf Richardson where lack of correct practicing requirements did not change the quality of the act because she was still a qualified dentist.

Question 21

Tuberville v Savage (1669)

Answer 21

Words said can negate an assault if they suggest that V is in no danger of immidiate physical unlawful violence.

Question 22

Wilson [1996]

Answer 22

Distinguishes Brown. The instant case involved no aggression or sado masochistic element, and the branding was carried out as a result of W’s wife’s request to have W’s initials on her body as a physical adornment, and she took no sexual pleasure from it. The action taken by W could be equated with tattooing, which attracted no criminal sanction. Public policy considerations were relevant in determining what activity amounted to criminal behaviour and general propositions were inappropriate in a changing world. Each case should be decided on its own facts. Key difference seems to be that neither party gained sexual gratification from the act (a bad motive under public policy)