Common Assault

Question 1

Define Assault and what section is contained

Answer 1

Assault cover a wide spectrum from common assault on one end all the way up to GBH with intent on the other end.

Assault is defined as any act where a person intentionally or recklessly causes another to apprehend immediate unlawful violence.

Common assault is contained in s39 criminal justice act 1988

Question 2

What is GBH with intent and where is contained

Answer 2

• Where the victim suffers serious injury and this is what the defendant desired.
• it is contained in s18 Offences Against The Persons Act 1861.

Question 3

What is contained in s20 of The Offences of The Persons Act 1861

Answer 3

• GBH without intent.

- This is where the Defendant intended to assault the victim but did not intend to inflict that level of injury

Question 4

What is ABH

Answer 4

Assault occasioning actual bodily harm. Where the victim has suffered some harm although not serious harm

Question 5

What is common assault

Answer 5

where the victim is assaulted but is either unharmed or receives only minimal injuries

Question 6

What is Battery

Answer 6

Any Act by which a person intentionally or recklessly applies unlawful force to another.

Assault and Battery are covered by the term assault and the penalties are the same

Question 7

What type of offence is Common Assault and what happens if the assault is racially aggravated.

Answer 7

• Common Assault is a summary only offence covered by s39 of the Criminal Justice Act 1988.
• if the offence is racially aggravated it reverts back to being an either way offence carrying a heavier maximum sentence.

Question 8

What is the Actus Reus of Assualt.

Answer 8

• There does not to be any violence, merely the apprehension of it. the apprehension must be of immediate violence
• the apprehension of violence may be caused by words alone R v Barstow 1998

Question 9

Mens rea of Assault

Answer 9

Either an intention to cause the victim to apprehend immediate unlawful violence or recklessness as to whether the victim apprehends violence.

The defendant must realise there is a risk that his actions or words could cause another to fear unlawful violence.

The defendant must be aware of the risk but chose to carry on nevertheless R v Woollin 1999.

Question 10

The Actus Reus of Battery

Answer 10

• The Actus Reus of a battery is the unlawful infliction of force.
• It requires physical contact with the victim and the merest of touching will suffice.
• if the defendant creates danger and exposes another to reasonably foreseeable risk of injury, there is evidential basis for the acts reus of assault.
• The force involved need be nothing more than touching as long as it is unlawful without consent.

Question 11

Mens rea of Battery

Answer 11

The Mens rea required for a battery is an intention to apply unlawful force to the body of another or recklessness as to whether such force is applied.

For recklessness to elements need to be proven

1. The defendant was aware that there was a risk that his or her conduct would cause a particular result.
2. The risk was an unreasonable one for the defendant to take.

The first element only requires that the accused foresaw that there was a risk; it does not have to be foreseen as highly likely to occur. Furthermore, the question is whether the accused foresaw the risk, not whether the risk was obvious or would have been foreseen by a reasonable person (see, for example, R v Stephenson).

The second element is fairly straightforward as it is unlikely for there to exist a situation where it would be reasonable for the defendant to take a risk that a person will be injured.

Question 12

What are the Defences

Answer 12

1. There is a common law defence of self defence
2. there is also the defence provided by S3 (1) of the Criminal Law Act 1967, that is the use of reasonable force in the prevention of crime.

if pleaded successfully they will lead to complete acquittal.

Question 13

Beckford v R 1998

Answer 13

A person can use such force he deems reasonable in order to defend himself or another.

Question 14

Palmer v r 1971

Answer 14

An allowance must be made for the ‘heat of the moment’ if force is disproportionate.

Question 15

What should you do if a client did a little more than he should of but it was reasonable to because of the heat of the moment.

Answer 15

Pre written statement.

The higher the threat of violence the more allowance you have.

Question 16

Key fact: when the client has gone over the top and used grosly disproportionate force that will rule out the defence of self defence.

Answer 16

disaportoniate force is always going to be a complex matter as to whether the court will accept that the use of this disproportionate force was reasonable in all circumstances based on the threat you find yourself in.

Question 17

Defences

Williams 1987
Beckford v r 1998
Mcinnes 1971
Keane; McGrath [2010]

Answer 17

The defendant can rely on genuine mistake of fact ( Williams)

The law does not preclude the defendant from landing the first blow although the blow will need to be necessary and reasonable (Beckford)

just because a defendant had either started the fight with the victim or entered it willingly, he was not barred from raising self defence as a defence at his trial. Thus, self defence could arise in the case of the original aggressor, but only where the violence offered by the victim was so out of proportion to what the original aggressor did that the roles were in effect reversed. (Keane)

Question 18

Voluntary intoxication

Answer 18

A mistaken belief in the need to use self defence is no defence if that mistake was caused by the defendants voluntary intoxication

Question 19

what does Section 76 of the the Criminal justice and Immigration act outline?

Answer 19

• You may use self defence either in defence of yourself or the defence of another.
• S76a the force may be used as an occupier upon an intruder when you are defending yourself in your home.
• The courts take the view that the force used must be reasonable.

Question 20

Consent to assault?

Answer 20

it is not the case that if the victim consented to assault it be regarded as lawful.

In cases of ABH the consent of the victim will be regarded as irrelevant.

Question 21

in what circumstances would consent be considered separately

Answer 21

1. Sado masochism
2. fights/horesplay
3. contact sports
4. medical operations

Question 22

Implied consent and Reasonable chastisement

Answer 22

Implied consent- This is designed to cover all situations, the courts will deem there to be consent to assault battery even where there is none. for example the victim be tapped on their shoulder or being jostled on a busy street.

Reasonable chastisment- This is the common law defence with allows a parent to apply corporal punishment to children.

Reasonable chastisement 2002. The court should consider a variety of factors such as the nature of the punishment, the duration, the age of the victim, the behaviour provoking the punishment.

Question 23

Is loss of self control a defence

Answer 23

Yes but only for murder.

In other cases it will be viewed as a mitigating feature but not a defence.

The loss of self control introduced by s54/s55 Coroner’s Justice Act 2009 replaced the Common Law defence of provocation s3 homicide Act 1957.

Question 24

Sentencing for GBH with intent

Answer 24

Maximum life years in custody
Offence range 2-16 years
Triable on indictment

Question 25

Sentencing for Abh

Answer 25

Maximum 5 years
Offence range fine- 4 years
triable either way

Question 26

Sentencing for Common Assault

Answer 26

Max 6 months

emergency worker assaulted 1 year max

if racially aggravated 2 years

Question 27

sentencing for GBH Wounding

Answer 27

Max 5 years
Racial 7 years
either way