Crown Prosecution Charging Standards Flashcards
What is the document issued to all Crown Prosecution after deciding on which level of offence to charge?
Charging Standards
What does the Charging Standards document set out?
the matter that the Crown Prosecution should consider in deciding the level to be charged. This document is not the law on the subject and it can be argued on some occasions prosecutors choose a lower level of offence than what might be strictly available under the law
What features make it more appropriate to charge a s.47 offence even though the level of injury is within the list above?
- nature of the assault, such as use of weapon, biting or kicking while victim is on the ground
- the vulnerability of the victim, such as when the victim is elderly
What are 7 examples of s.47 offence
- loss or breaking of tooth
- loss of consciousness
- extensive or multiple bruising
- broken nose
- minor fractures
- minor cuts requiring medical treatment
- psychiatric injury (more than fear, distress or panic
Name 4 injuries of GBH
- injury resulting in permanent disability
- visible disfigurement, broken bones included fractured skull, jaw, ribs etc
- injuries causing substantial loss of blood
- injuries resulting in lengthy treatment
- psychiatric injury
Who in pas years have recommended reform on the law on assault?
- Criminal Law Review Committee
- Law Commission
In what year did the Government publish their own proposals for reforming the law, but were never made law?
1998
In which programme did the Law Commission briefly point out some of the main problems with the 1861 Act such as
- that the Act is widely recognised as out of date
- there is no clear hierarchy of offences which allow consistency
- the language used needs modernising and simplifying
Eleventh programme
In the Eleventh programme, the law Commission briefly pointed out some of the main problems with the 1861 Act such as what ? (3)
- that the Act is widely recognised as out of date
- there is no clear hierarchy of offences which allow consistency
- the language used needs modernising and simplifying
How old is the OAPA 1861 Act ?
150 years old
What is a problem with how old the OAPA 1861 act is?
when it was created people did not have the understanding of mental health problems that we have today and so the Act only referred to ‘bodily’ harm and not ‘mental’ harm
In which 2 cases was it held that the meaning of bodily harm did include injury to mental health?
Chan Fook and Burstow
Other than mental injury what else was not thought of in 1861 in regards to disease?
There was only limited understanding of how some diseases were transmitted from person to person. The idea of biological injury such as HIV was unthought of. Courts filled this gap in Dica when it was held that infecting someone with HIV did come within the wording of inflicting GBH
In which case was it held that infecting someone with HIV did come within the wording of inflicting GBH?
Dica
What was the ratio of Dica?
where D has infected someone with HIV, this comes within the wording of inflicting GBH
What is a problem with the inconsistency between offences, meaning that s.47 has the same mens rea as assault and battery?
as this does not required D to intend or even realise that there was risk of injury
Why is it unjust that s.47 has the same level of mens rea as assault and battery?
this is because s.47 carries a maximum sentence of 5 years imprisonment while assault and battery carry out 6 months
What could a person who causes a small cut be charged under instead of s.47?
s.20
How can someone who causes a small cut be charged under the more serious offence of s.20 instead of s.47?
this is because s.20 refers to ‘wound or GBH’
How is there an inconsistency between s.47 and s.20?
as both have the same maximum sentence of imprisonment (5 years)
How is s.20 clearly more serious than s.47? (2)
1) as it requires more serious injury
2) as this requires that D intends or is reckless as to causing V some harm whereas for s.47 it is not necessary to prove that D intended or was reckless as to whether he would cause harm to D
What is a key inconsistency in the 1861 Act regarding s.18?
as a D who intends or foresees the risk of minor injury can be convicted of the very serious offence of s.18 if serious injury occurs when resisting arrest
What case is an example of when D was charged with s.18 after having caused serious injury while resisting arrest?
Morrison
What happened in the case of Morrison?
D wascharged with s.18 after having caused serious injury while resisting arrest
What is a moral issue with s.18?
is it right that someone intending to resist arrest is likely to liable for the same offence as someone who has intended to cause very serious injuries
What does the word ‘maliciously’ mean in the s.20 act in today’s language and when the Act was written?
Now it suggests that D acted deliberately and with ill-will to the victim
In 1861 it meant that D either intended harm or was reckless as to whether that type of harm occurred
What has the law commission proposed regarding the issue of the 1861 meaning of ‘maliciously’?
that the word ‘reckless’ is also used
What is the different word used to differentiate s.20 and s.18, though has little effect?
s. 20 uses the word ‘inflict’
s. 18 uses the word ‘cause’
What case held that s.20 ‘inflict’ meant that the offence did not have to be just a technical assault ?
Burstow
What was the position about the structure of the 1998 Government Consultation Document?
it was in descending order of seriousness rather than the unorganised state of the 1861 Act
What is a positive about the Government’s 1998 Consultation Paper in regards to mens rea?
in each of the sections of this draft bill, the level of injury and required mens rea are made clear by wording
In regards to injury, how did the Government’s 1998 Consultation Paper rectify a problem in the present law?
it defined the word injury, making it clear that both physical and mental injury were included. The word “wounding” is not used. This means that a serious cut would be considered serious injury and a small cut would mean minor injury
How did the Law Commission go further than the Government’s 1998 Consultation Paper in regards to injury?
it included both physical and mental injury, and defined both of these
What year did the Law Commission announce its Eleventh Programme which had intended to reconsider how the law on non-fatal offences against the person should be reformed?
2011
What is a problem with the language?
its archaic due to outdated Act, meaning it lacks simplicity
The Act is still used to base how many prosecutions each year?
25,000
As the Act itself offers little assistance in terms of guidance, what in its place has fulfilled this role?
Charging Standards
What has reformed the bulk of the law?
precedent and common law
As the treatment of defendants is more equitable, what have barristers been able to exploit?
the vague and simple definitions of the Act
How many years ago was the Act?
150
What type of offence is s.47?
a basic intent
What case defined “actual bodily harm”
Donovan 1934
D hit V with a cane, D claimed V consented. Held that, in cases where a person acts with intention to inflict bodily harm, the consent of the victim cannot render otherwise unlawful conduct lawful.
What case is this?
Donovan 1934
What happened in the case of Donovan?
D hit V with a cane, D claimed V consented. Held that, in cases where a person acts with intention to inflict bodily harm, the consent of the victim cannot render otherwise unlawful conduct lawful.
What case is this?
What case confirmed the deffiniton of assault in Donovan?
Miller
What is a problem with precedent reforming the law?
this interferers with Parliamentary Sovereignty, creating judical law makers.
At the time the Act was created, what had not been created?
the idea of causation
What is a problem with the language used in s.47?
it is vague and poor at explaining its meaning
Precedent has developed the law what did .... reform? -DPP v Smith -T v DPP Burstow, Ireland, Chan Fook?
- DPP v Smith= cutting hair
- T V DPP temporary unconsciousness
- Burstwo, Ireland, ChanFook= psychiatric injury
While s.20 and s.47 has the same maximum imprisonment sentencing, what is the reality?
it is rare for s.47 to invoke a 5 year sentence
What is an issue with s.20 word inflict and s.18 word cause
both words have been interpreted as meaning the same or has having identical meaning
What 2 cases have established what a wound is, as the Act did not?
Morris and JJC v Eisenhower
Which case held that foresight of consequences is not intent, merely evidence upon which an intention can be inferred.
Moloney
Which 2 cases ensured that intention cannot be found unless the harm caused was a virtual certainty as a result of Ds actions?
Nedrick and Woollin
What did the Law Commission propose regarding s.47 and its actus reus?
that it need not be committed by assault or battery
only means of causing injury would suffice
