Chapter 15 - Non-fatal offences against the person Flashcards
What is the offence under s 39 of the Criminal Justice Act 1988?
Common assault
What are two ways of committing common assault?
(1) assault
(2) battery
Are assault and battery common law offences?
Yes
What is the maximum punishment for assault and battery?
6 months imprisonments or £5,000 fine
What is the definition of assault?
An assault is an act which causes the victim to apprehend the infliction of immediate, unlawful force with either an intention to cause another to fear immediate unlawful personal violence or recklessness as to whether such fear is caused
What is the actus reus of assault?
An act which causes the victim to apprehend the infliction of immediate, unlawful force
Is an omission sufficient for the AR of assault?
No
Are words sufficient for the AR of assault?
Yes
What case is associated with words being sufficient for the AR of assault?
R v Constanza (1997)
Which case held that silent phone calls could count as assault?
R v Ireland (1997)
What must the act cause the victim to apprehend?
The act or words must cause the victim to apprehend that immediate force is going to be used against them
What case is associated with the apprehension of immediate unlawful force?
R v Lamb (1967)
What does immediate mean?
Immediate doesn’t mean instantaneous but imminent
What case is associated with force being immediate?
Smith v Chief Superintendent of Woking Police Station (1983)
Words indicating that there will be no violence may prevent an act from being an assault, which case does this principle come from?
Tuberville v Savage (1669)
Must the force which is feared be serious?
No
What are some examples of assault?
(1) raising a fist as though about to hit the victim
(2) throwing a stone at the victim which just misses
(3) pointing a loaded gun at someone within range
(4) making a threat by saying ‘I am going to hit you’
Must the force which is threatened be unlawful?
Yes, as if it is lawful then there is no offence of common assault
What is the mens rea of assault?
(1) intention to cause another to fear immediate unlawful personal violence
(2) recklessness as to whether such fear is caused
What is the definition of battery?
Battery is the application of unlawful force to another person intending either to apply unlawful physical force to another or being reckless as to whether unlawful force is applied
What is the actus reus of battery?
The application of unlawful force to another person
What cases point out that touching a person to get their attention was acceptable, provided no greater degree of physical contact was used than was necessary?
Collins v Wilcock (1984)
Wood (Fraser) v DPP (2008)
Which case held that touching the victims clothing can be sufficient for the AR of battery?
R v Thomas (1985)
Can a battery be committed through a continuing act?
Yes
What case is associated with a continuing act?
Fagan v Metropolitan Police Commissioner (1968)
Can a battery be committed through an indirect act?
Yes
What in an example of an indirect act that can amount to battery?
A booby trap
What is an indirect act?
A situation where the defendant causes force to be applied even though they do not personally touch the victim
What are three cases in which an indirect act amounted to battery?
(1) R v Martin (1881)
(2) DPP v K (1990)
(3) Haystead v Chief Constable of Derbyshire (2000)
Can a battery be committed through an omission?
Yes
What is an omission?
A failure to act
Give examples of a duty of care?
(1) contractual
(2) relationship
(3) the assumption of care
(4) from the creation of a dangerous situation
What is the case where an omission amounted to battery?
DPP v Santa-Bermudez (2003)
Does the force have to be unlawful in a battery?
Yes
What are two situations where force can become lawful?
(1) if the victim gives genuine consent to the force
(2) when the force is used in self-defence or the prevention of crime
Is reasonable physical chastisement of a child lawful?
It was but now the Children Act 2004 now provides that a battery committed on a child is unlawful if it results in any injury
Can there be battery without an assault?
Yes
When can there be a battery without an assault?
Where the victim is unaware that unlawful force is about to be used on them such as when the victim is attacked from behind
What is the mens rea for battery?
Either intention to apply unlawful physical force to another or recklessness as to whether unlawful force is applied
The defendant must realise there is a risk that their act or omission could cause unlawful force to be applied to another
What offence comes under s 47 OAPA 1861?
Assault occasioning actual bodily harm (ABH)
What classification of offence is ABH?
Triable either way
What is the definition of ABH?
An assault or battery which causes actual bodily harm
Does the actus reus have to be proved for a s 47?
Yes it has to be proven that there was an assault or battery that caused actual bodily harm
What is defined as actual bodily harm?
Any hurt or injury calculated to interfere with the health or comfort of the victim
What case defined actual bodily harm?
R v Miller (1954)
Give some examples of actual bodily harm?
(1) loss of consciousness (T v DPP 2003)
(2) bruising
(3) grazes
(4) scratches
(5) cutting the victims hair (DPP v Smith (Michael) 2006)
Does there have to be physical pain for there to be ABH?
No e.g. cutting hair
Is psychiatric injury classed as ABH?
Yes
Which case established that psychiatric injury amounted to ABH?
R v Chan Fook (1994)
What counts a psychiatric injury?
Bodily harm must be interpreted so as to include recognisable psychiatric illness (R v Burstow 1997)
What is the mens rea of a s 47 offence?
Intention or subjective recklessness as to whether the victim fears or is subjected to unlawful force
This is the same as assault and battery
Which case demonstrates that there is no need for the defendant to intend or be reckless as to whether ABH is caused?
R v Roberts (1971)
Which two cases confirmed the decision in R v Roberts?
(1) R v Savage (1991)
2) R v Parmenter (1991
What offence comes under s 20 OAPA 1861?
Malicious wounding/ inflicting grievous bodily harm (GBH)
What classification of offence is malicious wounding and GBH?
Triable either way
What is the maximum punishment for a s 20 offence?
5 years imprisonment
What is the actus reus of a s 20 offence?
The defendant wounded of inflicted GBH
What is a wound?
A cut or a break in the continuity of the whole skin
Does internal bleeding count as a wound?
No because it does not break the continuity of the skin
Which case is associated with the definition of a wound?
JJC v Eisenhower (1983)
Does a broken bone amount to a wound?
No
What is the exception where a broken bone can amount to a wound?
Where the skin is broken with the bone
Which case is associated with broken bones?
R v Wood (1830)
What is grievous bodily harm?
GBH means really serious harm as this may be physical, psychiatric or the deliberate infection of a serious disease
Does GBH have the be life-threatening?
No
What was held about GBH in the case of R v Bollom?
It was held that the severity of the injuries should be assessed according to the victims age and health
Can psychiatric injury amount to GBH?
Yes but only is ‘serious’ psychiatric injury is caused
What case established that psychiatric injury amounted to GBH?
R v Burstow (1997)
What was the first case where GBH was caused through the transmission of diseases?
R v Dica (2004)
Originally what was the word ‘inflict’ taken to mean?
That there had to be a technical assault or battery
What was inflict held to mean in the case of R v Burstow?
The word ‘inflict’ does not require a technical assault or a battery which means it only needs to be shown that the D’s actions led to GBH
What is the mens rea of a s 20 offence?
Intention to cause another person some harm or subjective recklessness as to whether another person suffered some harm
What case is associated with the definition of ‘maliciously’?
Cunningham (1957)
What is the definition of ‘maliciously’ in Cunningham?
Does not require any ill will towards the person injured and it simply means either:
(1) an intention to do the particular kind of harm that was caused
(2) recklessness as to whether such harm should occur or not
What was confirmed in the case of Parmenter?
H of L confirmed that the Cunningham meaning of recklessness applies to all offences in which the statutory definition uses the word ‘maliciously’
Does the defendant need to foresee serious injury?
No, the defendant does not have to foresee a wound or GBH (Parmenter)
What is the offence under s 18 OAPA 1861?
Wounding or causing grievous bodily harm with intent
Is a s 18 offence more serious than a s 20 offence?
Yes
What is the maximum sentence for a s 18 offence?
Life imprisonment
What classification of offence is a s 18 offence?
Indictable offence
What is the definition of a s 18 offence?
Whosoever shall unlawfully and maliciously wound or cause grievous bodily harm to any person with intent
What is the actus reus of a s 18 offence (2 answers)?
Wounding
Causing grievous bodily harm
Describe how the word ‘cause’ is linked to a s 18 offence?
It is only necessary to prove that the defendants act was a substantial cause of the wound or grievous bodily harm
Is a s 18 offence a specific intent offence?
Yes
What is the mens rea of a s 18 offence (2 answers)?
Intend to do some grievous bodily harm
Intend to resist or prevent the lawful apprehension or detainer of any person
Is an intention to wound enough for the mens rea of a s 18 offence?
No
Does the word ‘maliciously’ add anything to the mens rea of a s 18 offence?
No
Is recklessness sufficient for the mens rea of a s 18 offence?
No because an s 18 offence is a specific intent offence
When is the level of intention regarding the injury lower in a s 18 offence?
Where the defendant is trying to resist or prevent arrest or detention
What level of intention must the prosecution prove in regard to the resistance or prevention of arrest?
Specific intent
What is the mens rea required in regards to the injury caused through the resistance and prevention of arrest?
Recklessness
List 4 reasons as to why the law needs to be reformed?
(1) out of date
(2) there is inconsistency between offences
(3) the correspondence principle
(4) the need for modern, simplified language
Why is the law out of date? (2 answers)
(1) this has caused problems in regards to mental health problems and whether this counts as bodily harm
(2) in whether bodily harm covers the infection of diseases and there was limited understanding about diseases when the law was made
What are the inconsistencies between the offences? (4 answers)
(1) a s 47 offence has the same mens rea as assault and battery which is unfair as a s 47 offence has a max punishment of 5 years imprisonment whereas assault and battery has a max punishment of 6 months imprisonment
(2) a person who causes a small cut can be charged with a s 20 instead of ABH because s 20 refers to ‘wound or GBH’
(3) the max sentence of a s 47 and a s 20 is the same (5 years) even though the levels of seriousness and blameworthiness are different
(4) a defendant who intends or foresees the risk of minor injury, can be convicted of the serious s18 offences if serious injury occurs when they intend to resist arrest and is this fair?
What is the correspondence principle?
States that the results which D must intend or foresee should match the results which actually occur and that D should not be liable to the level of harm unless they meant it or knowingly ran the risk of it
Which two offences breach the correspondence principle?
s 20 and s 47
Why does the s 20 and s 47 offences breach the correspondence principle?
S 20 = can be guilty without intending or being reckless as to causing serious harm
S 47 = can be guilty without intending or being reckless as to causing any harm
Why is there a need for more modern and simplified language? (2 answers)
(1) it has been recommended than the word ‘reckless’ should be used instead of ‘maliciously’ because in modern language the definition of ‘maliciously’ is different to its original meaning
(2) s 20 uses the word ‘inflict’ and s 18 uses the word ‘cause’ and this lead to a debate as to whether ‘inflict’ meant that a technical assault had to take place but the H of L ruled that it did not
What did the draft Bill set out in 1998?
It set out 4 main offences which were intended to replace s 18, 20, 47 and assault and battery
In the draft Bill 1998 is clause 1 the most serious offence?
Yes
What is clause 1 of the draft Bill 1998?
Intentional serious injury = where a person would be guilty if they intentionally caused serious injury to another
What is clause 2 of the draft Bill 1998?
Reckless serious injury = a person would be guilty if they recklessly caused serious injury to another
What is clause 3 of the draft Bill 1998?
Intentional or reckless injury = a person would be guilty if they intentionally or recklessly caused injury to another
What is clause 4 of the draft Bill 1998?
Assault = a person would be guilty if they intentionally or recklessly:
(a) applied force to or caused an impact in the body of another
(b) caused the other to believe that any such force or impact is imminent
Why is the draft Bill 1998 more appropriate?
The level of injury and the required mens rea are made clear by the wording and they are different for every clause
What did the Law Commission Report 2015 state that OAPA 1861 should be replaced by?
A comprehensive modern statute
According to the Law Commission Report 2015 any new statute should respect the following principles:
(1) it should provide a clear hierarchy of offences from most serious to least and the place of each offence should reflect:
- the harm caused
- the culpability of the defendant
- the maximum penalty should be in proportion
(2) each offence should provide a clear and accurate label for the conduct in question and should be defined in language that is easy to understand
(3) each ingredient of an offence, whether an external element or a mental element, should be set out explicitly
Which offence would clause 1 replace?
s 18 offence
How is the wording in clause 1 changed?
The word ‘wounding’ would not be used so it would only be included if the wound caused a serious injury
What would be the max sentence for clause 1?
Life imprisonment
What offence would clause 2 replace?
s 20
Is there a higher level of mens rea required for clause 2 than a s 20 offence?
Yes, the defendant would only be guilty if they were aware, in the circumstances as they knew or believed them to be, that there was a risk of serious injury
What is the max sentence for a clause 2 offence?
7 years imprisonment
What offence would clause 3 replace?
s 47
What is the max sentence of a clause 3 offence?
5 years imprisonment
Under the draft Bill would psychiatric injury be included?
Yes
Would the transmission of diseases be included under the draft Bill?
Yes, it would be considered as physical injury
According to the 2015 Report there should be another offence where low-level injuries are involved, what would this offence be called?
Aggravated assault
What injuries would aggravated assault cover according to the 2015 Report?
- superficial cuts
- scratches
- minor bruising
- grazes
- swellings
What is the mens rea for aggravated assault according to the 2015 Report?
It would be the same as for the current common assault = the D must intend or be reckless as to whether V is put in fear of unlawful force or is subjected to unlawful force
What is the max sentence for aggravated assault according to the 2015 Report?
12 months imprisonment
According to the 2015 Report what offence would replace common law battery?
Physical assault
According to the 2015 Report what would physical assault be?
Where there is unwanted and unjustifiable touching of the victim, direct contact between D and V, causing some object to come into contact with V or setting a trap
What would the mens rea of physical assault be?
It would be the same as the current offence of common assault = D must intend or be reckless as to whether V is put in fear of unlawful force or is subjected to unlawful force
According to the 2015 Report what is the max sentence for physical assault?
6 months imprisonment
According to the 2015 Report what new offence will replace the common law offence of assault?
Threatened assault
Does threatened assault cover the same conduct as the present offence?
Yes
According to the 2015 Report what is the max sentence of threatened assault?
6 months imprisonment
According to the 2015 Report what is the mens rea of threatened assault?
The same as the current offence of common assault = D must intend or be reckless as to whether V is put in fear of unlawful force or is subjected to unlawful force
What did the draft Bill 1998 propose about causing serious harm intending to resist arrest?
That this should be a separate offence where D caused serious harm intending to resist arrest, prevent or terminate the lawful arrest or detention of themselves or a third party
What did the draft Bill say about the max sentence of causing serious harm intending to resist arrest?
That the max sentence should be lowered from life imprisonment because the mens rea required is lower than for a s 18 offence
There is also a lower-level offence where the D resists arrest, what is this called according to the 2015 Report?
Assault intending to resist arrest
According to the 2015 Report what is the max sentence for assault intending to resist arrest?
2 years imprisonment
What are some strengths of the proposals made by the 2015 Report?
(1) there would be no overlap or inconsistency between the offences
(2) the actus reus and mens rea for each new offence are clearly set out
(3) these new offences conform to the correspondence principle
(4) punishments for each offence are fairer
