Criminal Law: Assaults/Homicide Flashcards
What are the assaults?
Wounding or causing GBH with intent (S18 OAPA 1861)
Maliciously wounding or inflicting GBH (S20 OAPA 1861)
Assault occasioning actual bodily harm (s47)
Battery (aka. Physical assault) (common law offence but charged under s 39 CJA 1988)
Simple assault (aka. Technical assault) (common law offence but charged under s 39 CJA 1988)
AR and MR simple assault
AR: Causing victim to
apprehend immediate and
unlawful personal force.
MR: Intention/recklessness as to cause the victim to apprehend immediate
unlawful personal force.
AR and MR battery
AR: Infliction of unlawful personal Force
MR: Intentionally or
recklessly inflicting
unlawful personal
force
AR and MR of assault occasioning actual bodily harm (s47)
AR: assault or battery occasioning actual bodily harm
MR Intention or recklessness as to causing the victim to apprehend immediate and unlawful personal force or inflicting such force
AR and MR of Maliciously wounding or inflicting GBH (S20 OAPA 1861)
AR: Unlawfully wound or inflict GBH.
MR: Maliciously’ (Intention/recklessness) as
as to causing some bodily harm
AR and MR of Wounding or causing GBH with intent (S18 OAPA 1861)
AR: Unlawfully wound or cause GBH
MR: intention to cause GBH
OR (police officer victim)
intent to resist/prevent lawful apprehension/detention of any person AND intention/recklessness as to ABH.
Simple assault: is physical contact needed?
no
Simple assault: can silence count?
Yes
Simple assault: can conditional threats count?
Only if if immediate
force feared
Is a Police officer using reasonable force to make arrest simple assault?
No if reasonable force used
Battery: what types of force can be inflicted?
direct
throwing/spitting
setting dog
tripping over
s47: what does ‘occasions’ mean?
factual and legal causation apply
s20: what does ‘unlawfully mean?
no lawful justification eg. Self defence/in defence of another
What is Actual Bodily Harm ABH)
Any injury which interferes with the health/comfort of
victim (Miller) which need not be permanent but must be more than transient or trifling.
Does ABH include psychiatric harm?
Yes if recognisable clinical condition
What is a wound?
breaking both layers of skin resulting in bleeding
NOT bruising or non-severe internal bleeding
What is grevious bodily harm?
Really serious harm
Eg. fractured skill, severe internal injuries, broken limbs, disfigurement from acid, really serious psychiatric injuries
Classification and max sentence for s18
Indictable only, life
Classification and max sentence for s20/s47
Either way, 5y
Classification and max sentence for s39
Summary only, 6m and/or fine
What defence can be used to the assaults?
Consent
Who has the legal burden to raise/prove the defence of consent?
Defendant on balance of probabilities
What do people impliedly consent to?
inevitable physical contact occurring as part of everyday life
Who cant consent?
Mentally disabled
Unable to communicate, Under 18?
Where consent uninformed/not given freely OR obtained via fraud.
When is consent not a defence and what are the exceptions to this?
Where harm intended/caused (ie, to statutory assaults)
EXCEPT
○ Surgical ops
○ Dangerous exhibitions
○ Properly conducted sport
○ circumcision, tattooing, ear piercing, religious flagellation
○ horseplay (‘rough and ill disciplined behaviour)(Jones)
risk of STI
Is the list of exceptions to consent not applying where harm is caused finite?
No, list not closed?
What is NOT a recognised exception to consent applying where harm caused?
○ Sadomasochism
○ Body modification
Rough sex/wounding for sexual gratification
What is the AR of all homicides?
unlawful killing of a human being
Legal definition of death?
the irreversible death of the brain stem which controls the basic functions of the body such as breathing
Can murder apply to a foetus
must be wholly expelled from the mothers body, be alive
Sentence for murder
mandatory life
AR and MR of murder
AR: unlawfully cause the death of a human being (under monarchs peace)
MR: intention to kill or cause GBH
Are ‘mercy killings’ murder?
Yes
What are the partial defences to murder to turn murder into voluntary manslaughter?
Diminished responsibility
Loss of control
Elements of diminished responsibility?
Abnormality of mental functioning
Arising from recognised medical condition
Substantially impaired ability to:
a. Understand nature of conduct
b. OR Form rational judgement
c. OR Exercise self control
Provided explanation for act/omission in
doing/being party to killing (causal link)
Diminished responsibility: examples of recognised medical conditions?
Alcohol Dependency (NOT just drunk)
* Physical conditions impacting on mental state
* Paranoid Personality Disorder
* Post Natal Depression
* Pre-menstrual Tension
* Battered Wife Syndrome
Burden/standard of proof for diminished responsibility
Defence must prove on balance of probabilities
Elements of loss of control
Defendant must loose control
Due to a qualifying trigger (fear or anger)
A person of the defendants sex/age with a normal degree of tolerance and self restraint in the same circumstances might have reacted in the same/similar way to the defendant
LoC: what typer of test is ‘D must loose control’?
Subjective (THIS D)
LoC: what does ‘loose control’ mean?
A loss of the ability to act ‘in accordance with considered judgement, or a loss of normal powers of reasoning’
LoC: must the loss of control be sudden?
No (eg. Abuse that occurs over time)
LoC: can there be a time delay between loosing control and the killing?
Yes if still out of control
LoC: when does it NOT apply?
when theres a considered desire for revenge (ie. Arming, planning, delay between provoking conduct and killing)
LoC: What is the fear trigger?
Subjective:Ds loss of control was attributable to fear of serious violence from V against D or another identified person
LoC: what is the anger trigger?
Objective: Loss of self control attributable to thing/or things done/said which
(a) constituted circumstances of an extremely grave character AND
(b) caused D to have a justifiable sense of being seriously wronged
LoC anger trigger: can adultery count?
No BUT can be considered where it forms an ‘essential part of the context
LoC anger trigger: when might it not apply?
if D incited acts as excuse to use violence
LoC ‘ in the same circumstances’: what does circumstances inc?
all of Ds circumstances other than those whose only relevance to Ds conduct is that they bear on Ds general capacity for tolerance or self restraint (eg. Short temper)
Legal/evidential burden for LoC?
Evidential burden on D to raise then burden reverts back to prosecution to disprove loss of control beyond reasonable doubt
What may involuntary manslaughter apply?
No MR of murder-D may not have intended to kill/cause GBH
Types of involuntary manslaughter?
unlawful act manslaughter
manslaughter by gross negligence
What is unlawful act manslaughter also known as?
Constructive manslaughter
Elements of unlawful act manslaughter?
AR:
D does an unlawful act
That is dangerous
Which causes the Vs death
MR:
of the unlawful act
AAM: what counts as an ‘unlawful act’?
A crime with a MR of intention or recklessness NOT an omission
AAM: what counts as ‘dangerous?
Objective (defendant need not foresee injury)
test: ‘all sober and reasonable people would inevitably recognise must subject the other person to, at least the risk of some harm … albeit not serious harm
AAM: must the dangerous unlawful act be aimed at the victim or a person?
No
AAM: must the risk of harm be physical to be deemed dangerous?
Yes
AAM: what must be established for ‘causes the Vs death’?
Factual & legal causation
Elements of gross negligence manslaughter?
- D owed V a duty of care
- D breached that duty
- The breach caused the death of V
- D’s conduct was grossly negligent.
GNM: examples of established duties?
parent-child
employer-employee
driver-road user.
GNM: Who decides if a duty of care exists?
Whether a duty exists usually a matter for the jury once the judge has decided that theres evidence capable of est. a duty
GNM: how to establish if D has breached their duty?
- Does Ds conduct fall below that expected of a reasonable person (in their field)?
-Normal principles of negligence apply
GNM: how is causation established?
Normal rules of causation apply
GNM: when will Ds conduct be ‘grossly’ negligent?
D fell so far below the standards of the reasonable person that they are deserving of criminal punishment.
* Must be a risk Ds conduct could cause death
* ‘a reasonably prudent person would have foreseen a serious and obvious risk not merely of injury or even of serious injury but of death’ (Singh)
