Herring Ch 6 - Non-Fatal Offences Against the Person

Question 1

What is key to non-fatal offences against the person?

Answer 1

> The right to bodily integrity: a person should not be touched against their wishes.
This right is protected under the common law and under Article 8 of the ECHR.
Collins v Wilcock [1984] 1 WLR 1172:
Lord Justice Robert Goff:
-“The fundamental principle, plain & incontestable, is that ever person’s body is inviolate.”
-“It has long been established that any touching of another, person, however slight, may amount to a battery.”
-Cites Blackstone’s Commentaries, 1830, vol. 3, p. 120:
“The law cannot draw the line between different degrees of violence, and therefore totally prohibits the first & lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner.”

Question 2

5 key offences against the person - list

Answer 2

1. Assault.
2. Battery.
3. Assault occasioning ABH.
4. Malicious wounding or inflicting GBH.
5. Wounding or causing GBH with intent.

Question 3

Assault and Battery

Answer 3

> S. 39 of the Criminal Justice Act 1988:
-“Common assault & battery shall be summary offences & a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months or to both.”

Question 4

Assault - definition

Answer 4

> AR: D caused V to apprehend imminent unlawful force.
MR: D intended or was reckless that V would apprehend imminent unlawful force. Although the basic meaning of ‘assault’ is straightforward, the courts have struggled with the precise parameters of the offence.

Question 5

Assault - controversial questions

Answer 5

> Can words alone amount to assault?
Apprehension of force.
What does imminent mean?
Is it enough for V to fear there may be violence?
Must the threat be of a touching from D?
Does D have to intend to carry out the threat?
What if the threat is conditional?
Does an assault require an act
What does it mean the apprehension must be of unlawful force?
What is the MR for an assault?

Question 6

Assault - controversial questions - can words alone amount to assault?

Answer 6

> R v Ireland [1998] decision shows words can constitute assault.
Silent telephone calls were held to be assaults.
Lord Steyn’s judgments says that what matters is that D has caused V to apprehend imminent harm. Exactly how that fear was created is immaterial.
Lord Steyn:
-“A thing said is also a thing done.”
-Silent caller. “He intends by his silence to call fear and he is so understood. The V is assailed by uncertainty about his intentions. Fear may dominate her emotions, and it may be the fear that the caller’s arrival at her door may be imminent. She may fear the possibility of immediate personal violence.”
-“As a matter of law the caller may be guilty of an assault: whether he is or not will depend on the circumstances and in particular on the impact of the caller’s potentially menacing call or calls to the victim.”
-“What, if not the possibility of imminent personal violence, was the victim terrified about?”

Question 7

Assault - controversial questions - Apprehension of force

Answer 7

> No apprehension = no assault.
Apprehension of violence as well as apprehension that one is about to be touched (e.g. stroked or kissed).
Psychological injury sufficient for assault too.

Question 8

Assault - controversial questions - What does ‘imminent’ mean?

Answer 8

> Lord Steyn in Ireland indicated that a fear of violence “within a minute or two” might be sufficient to constitute an assault.
Where time limit is drawn is not known - 10minutes? An hour? A day? Need to wait for courts.
There’s a difference between V being frightened and V apprehending an imminent attack.

Question 9

Assault - controversial questions - Is it enough for the victim to fear there may be violence?

Answer 9

> Lord Steyn stated that an assault would occur if V feared D ‘might’ come round within a minute or two.
In Constanza, it was accepted that when she opened the letters and read them she feared that D might harm her “at some time not excluding the immediate future.”
This sufficiently amounted to assault as her fear was that D might inflict some force imminently.

Question 10

Assault - controversial questions - must the threat be of a touching from the defendant?

Answer 10

> What if D threatens to ask someone else to cause harm to V?

>Not arisen but likely to be yes as it is an assault for D to threaten to set an animal on V in Dume so by analogy yet.

Question 11

Assault - controversial questions - does D have to intend to carry out the threat?

Answer 11

> No.
Logdon v DPP [1976]: showed V fake gun and announced he would keep V hostage. Never intended to carry out threat as gun was fake but he had created fear of violence in V so lack of intent incapable of providing an offence.

Question 12

Assault - controversial questions - what if the threat is conditional?

Answer 12

> Unclear.
In R (Kracher) v Leicester Magistrates’ Court, the words “Fuck off. If you come round the back I will beat you up” were held to be an assault, although arguably they only threated to beat up D if he ‘comes round the back.’
Important to distinguish between a conditional threat from words which negate a threat.
In Tuberville v Savage, whilst holding a sword D state: “If it were not assize time, I would not take such language.”
Here D makes it clear he wasn’t going to attack V.
Court never resolved Q as to whether there was an assault or not.
Jeremy Horder argued that in some cases there can be an assault even if D’s words negative the threat: if D said to V “If we were alone I would attack you” this might be seen as an implied threat that the moment the other people left an attack would be carried out.

Question 13

Assault - controversial questions - does an assault require an act?

Answer 13

> Fagan, Divisional Court suggested assault requires proof a positive act & cannot be committed merely by an omission.
However, a strong case can be made for saying that an omission can amount to an assault if D is acting unlawfully.
Smith v Superintendent of Woking Police [1983] Crim LR 323:
-D entered the grounds of a private enclosed garden at 11 pm. He stood and looked through the window of Miss M’s bedroom. Miss M saw the defendant staring at her through the window while she was in her night closes, causing her to jump and scream in fright. She proceeded to call the police whilst in her frightened state.
-Unless D entered the property with an unlawful purpose, there would not be a criminal conviction but a mere tort. In this case, the unlawful purpose was claimed to be that of assault by causing Miss M to apprehend a fear of immediate violence.
-In the present case, D had a clear intention to cause fear, and that intended effect materialised as his actions frightened Miss M, causing her to scream and be terrified of D’s potential actions. It is sufficient to identify the intention of V to cause a state of fear and created a situation where the basis of fear instilled in V was as to what the D would do next.

Question 14

Assault - controversial questions - What does it mean that apprehension must be of unlawful force?

Answer 14

> Force V apprehends must be unlawful.

>No assault if say touching done lawfully as it was in self-defence.

Question 15

Assault - controversial questions - what is the MR for assault?

Answer 15

> D must be shown to intend or be reckless as to the creation of apprehension of imminent unlawful force.
CA made this clear in Venna and was approved obiter by HoL in Savage and Parmenter.
D must be shown to have foreseen the apprehension of imminent unlawful violence.
Not enough to show D should have or could have should have foreseen it.
Reckless = D actually foresaw result (i.e. apprehend the imminent harm).

Question 16

Battery - definition

Answer 16

> AR: D touched or applied force to V.

>MR: D intended or was reckless as to touching or applying force to V.

Question 17

Battery - general

Answer 17

> Can be committed without V suffering any kind of injury.
Touching or even touching clothes suffices.
J. Gardner: it includes an invasion of ‘personal space’.
V didn’t even need to feel touching.

Question 18

Battery - controversial questions - list

Answer 18

> Can the battery be carried out via an object?
Can the battery be carried out by an omission?
Does a battery require the application of force?
Can everyday touchings amount to battery?
Must the battery be hostile?
What is the MR of battery?
Are the MR of assault & battery interchangeable?

Question 19

Battery - controversial questions - can the battery be carried out via an object?

Answer 19

> Yes.

>Fagan - car and by similar reasoning, spitting & throwing beer on someone = battery.

Question 20

Battery - controversial questions - can the battery be carried out by omission?

Answer 20

> Clear from Fagan that courts are willing to find a battery even if in a sense the case involved an omission.
Not always going to be case though. Fagan did act in driving car onto foot in first place.
DPP v Santa-Bermudez: Divisional court held that “where someone (by act or word or combination of the two) creates a danger and thereby exposes another to a reasonably foreseeable risk of injury which materialises, there is an evidential basis for the AR of an assault occasioning ABH.”

Question 21

Battery - controversial questions - Does battery require the application of force?

Answer 21

> Must a battery involve application of force or can a battery be committed indirectly?
Decisions to date suggest so.
Obiter in Savage Lord Ackner appeared to suggest otherwise, but later cases haven’t followed suit.
DPP v K [1990] - battery even though schoolboy didn’t directly apply acid and put it in hand dryer which when used by another pupil, sprayed them with acid.
Haystead v Chief Constable of Derbyshire [2000]: D struck women holding baby, baby was dropped and D charged with battering baby.
It shouldn’t matter what technique D uses to apply force to a person’s body in cases of battery.

Question 22

Battery - controversial questions - Can everyday touchings amount to battery? Case study

Answer 22

> Collins v Wilcock [1984] 1 WLR 1172:

• “Generally speaking, consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is, within reason, slapped”
• “Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life.”
• “In each case, the test must be whether the physical contact so persisted in has in the circumstances gone beyond generally acceptable standards of conduct; and the answer to that question will depend upon the facts of the particular case.”

Question 23

Battery - controversial questions - Can everyday touchings amount to battery? General

Answer 23

> 2 possible explanation why everyday touchings aren’t batteries:

1. Implied consent.
2. Necessity. Essential part of everyday life - modern life wouldn’t be possible.

Question 24

Battery - controversial questions - Must the battery be hostile?

Answer 24

> General view is that there isn’t a need for the touching to be hostile, rude, or aggressive. (Faulkner v Talbot [1981].
The issue is in doubt because in Brown, Lord Jauncey suggested battery must involve hostility. However, he seems to have understood hostility to mean the act wasn’t consented to, rather than require the act to be aggressive.

Question 25

Battery - controversial questions - what is the MR of battery?

Answer 25

> D must intend or be reckless as to the application of force or touching of the victim.

Question 26

Battery - controversial questions - are the mentes reae of assault & battery interchangeable?

Answer 26

> What if D intends to commit a battery, but in fact commits an assault?
Courts yet to provide a clear answer.
One argument is that the offences are so closely linked it is possible to use the AR of an assault & MR of battery to establish the offence.
Another view in Nelson [2013] states that the offences are separate and this distinction needs to be taken seriously.
Normally it isn’t possible to combine the MR of one offence with the AR of a different offence.

Question 27

Assault occasioning ABH - sentence

Answer 27

> S. 47 of OAPA 1861:
-“Whosoever shall be convicted upon an indictment of any assault occasioning ABH shall be liable… to be imprisoned for any term not exceeding 5 years.”`

Question 28

Assault occasioning ABH - definition

Answer 28

> AR: D must commit an assault or battery which causes V to suffer ABH.
MR: D must intend or be reckless as to the assault or battery.
(NB: no need to show that D intended or foresaw ABH.)

Question 29

Assault occasioning ABH - broken down - list.

Answer 29

1. It must be shown that there was an assault.
2. V must suffer ABH.
3. It must be shown that the ABH was occasioned by the common assault or battery of D.
4. The MR requirement.

Question 30

Assault occasioning ABH - broken down - 1. It must be shown that there was an assault.

Answer 30

> Either an assault or battery.

>Both MR & AR of assault/battery must be shown.

Question 31

Assault occasioning ABH - broken down - 2. V must suffer ABH

Answer 31

> ABH = a level of harm greater than a mere touching (battery).
ABH’s definition = “any hurt or injury calculated to interfere with the health or comfort” of V. (Donovan [1934].
CPS 2013: Guidance issued to Prosecutors that “the fact there has been significant medical intervention and/or permanent effects have resulted” is taken into account when deciding if injuries amount to ABH.
DPP v Smith. Cresswell J said that “to a woman her hair is a vitally important part of her body.” No doubt if only a small piece of hair was cut off this would’ve just been battery. Hair included as part of the body.
Ireland, psychological injuries included in term ABH, but only if they were medically recognised conditions which involved more than fear, panic, or distress.
Both the cases of Morris and Dhaliwal show that it has to be medically recognised medical condition if the harm is psychological and amounts to ABH.

Question 32

Assault occasioning ABH - broken down - 3. It must be shown that the ABH was occasioned by the common assault or battery of D

Answer 32

> ‘Occasioned’ = caused.
Also possible for offence to involve an assault e.g. Roberts, where CA convicted D who made indecent proposals to a woman in his car and being frightened jumped out suffering ABH.
Ireland, may be hard to show psychological harm was caused by apprehension of imminent harm rather than something else.

Question 33

Assault occasioning ABH - broken down - 4. MR requirement.

Answer 33

> Only intent & recklessness that V will suffer an assault or battery.
No need to show D foresaw the ABH.
HoL made this clear in Savage and Parmenter [1992].
This offence therefore infringes the ‘correspondence principle.’

Question 34

Malicious Wounding - sentence

Answer 34

> S. 20 of OAPA 1861:
-“Whosoever shall unlawfully & maliciously wound or inflict any GBH upon any other person, either with or without any weapon or instrument, shall be liable… to imprisonment for a term not exceeding 5 years.”

Question 35

Malicious Wounding - definition

Answer 35

> AR: D unlawfully either:
1. wounded the victim; or
2. inflicted GBH to V.
MR: D foresaw that V might suffer some harm.
(NB: not necessary to show D intended/foresaw V would suffer GBH).

Question 36

Malicious Wounding - definition - extra detail - unlawfully

Answer 36

> Unlawfully = without lawful justification.

>E.g. not in self-defence.

Question 37

Malicious Wounding - definition - extra detail - wound

Answer 37

> C v Eisenhower [1984]: wound = break in the continuity of the whole skin.
Both layers of skin (dermis & epidermis) must be broken.
Breaking of inner membrane analogous with skin may constitute wound, e.g. inside of mouth.
Scratch only breaking first layer of skin isn’t a wound.
William Wilson has argued that normal meaning of word wound means a wound can only occur if there’s a direct application of force. But no decision from court yet.
S. 20, unlike s. 18, does NOT say “by any means whatesover”, it says “either with or without a weapon”, which suggests courts shouldn’t be too concerned with way wound caused.

Question 38

Malicious Wounding - definition - extra detail - GBH

Answer 38

> GBH = “really serious bodily harm”, (DPP v Smith).
Golding [2014]: jury decides using “contemporary social standards.”
Totality of injuries.
Objective test.
Just because V regards them as really serious doesn’t mean jury must.
Can jury consider V’s characteristics? E.g. finger wounded of pianist.
Bollom [2003]: CA held that in assessing whether the injuries were really serious, the impact of them on the particular V should be taken into account.
GBH can include very serious psychological harm. But must be a serious identifiable clinical condition.

Question 39

Malicious Wounding - definition - extra detail - infliction of GBH

Answer 39

> D must have ‘inflicted’ the GBH.
Much debate over meaning of inflicted in s20 and particularly how it differs from the word ‘caused’ in s.18.
No need to establish there has been an assault under section 20. (HoL made it clear that infliction doesn’t require proof of an assault or battery in Wilson & in Mandair).
In Burstow [1998], Lord Steyn explained that although the words cause & inflict weren’t synonymous, “in the context of the Act of 1861 there is no radical divergence of meaning between the two words.”
Lord Steyn said it was ‘absurd’ to say infliction required application of force to the body.
In Burstow, their Lordships held that a serious psychological condition could be inflicted by a D pursuing a campaign of harassment against V. So indicated inflict now means same as cause.

Question 40

Malicious Wounding - definition - extra detail - MR requirement

Answer 40

> S. 20 MR = D must intend or foresee (Cunningham recklessness) that they may cause some kind of harm, albeit minor harm.
‘Might’ foresee is sufficient.
MR of malicious wounding established by HoL in Savage and Parmenter [1992]:
-Mens rea for s20 OAPA: intention or recklessness as to whether some physical harm will be inflicted.
-Mens rea for s47 OAPA: it is the same as the mens rea for assault, there is no additional element of foresight of physical harm.

Question 41

Malicious Wounding - definition - extra detail - list

Answer 41

1. Unlawfully
2. Wound
3. GBH
4. Infliction of GBH
5. MR requirement

Question 42

Wounding with Intent - Sentence

Answer 42

> S. 18 of OAPA 1861:
-“Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any GBH to any person… with intent… to do some GBH to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person shall be guilty of an offence and being convicted thereof shall be liable, …to imprisonment for life.”`

Question 43

Wounding with Intent - definition

Answer 43

> AR: D unlawfully wounded or caused GBH to any person.
MR: either:
a) D intended to cause GBH; or
b) D intended to resist or prevent the lawful apprehension or detention of any person.

Question 44

Wounding with Intent - key differences between S. 18 & s. 20 (malicious wounding) - list

Answer 44

1. MR
2. s. 18 = ‘by any means whatsoever’ vs s.20 = ‘with/without any weapon or instrument’.
3. s. 20 = ‘any other person’ vs. s. 18.
4. s.18 = ‘inflict’, s.20 = ‘caused.’

Question 45

Wounding with Intent - key differences between S. 18 & s. 20 (malicious wounding) - MR

Answer 45

> S.18 MR requires intention, whereas recklessness suffices for s. 20.
Also note that s. 18 is an intent to cause GBH so intent to wound isn’t sufficient.
Even if D didn’t intend GBH, he can still be convicted under s. 18 if he was intending to prevent/resist arrest, for which one must show that:
a)D was Cunningham reckless (which is how courts have interpreted maliciously) probably to causing GBH (but just some harm); and
b) intended to resist/prevent lawful apprehension/detention. (No defence to show D thought it was unlawful).

Question 46

Wounding with Intent - key differences between S. 18 & s. 20 (malicious wounding) - ‘with or without any weapon or instrument’ vs. ‘by any means whatsoever’.

Answer 46

> No significant difference, if anything perhaps suggests s. 20 requires some kind of direct blow whereas s. 18 requires only proof D caused the injuries in any way. (J. Gardner).

Question 47

Wounding with Intent - key differences between S. 18 & s. 20 (malicious wounding) - any other person vs any person

Answer 47

> Therefore, could argue that if D caused themself GBH intentionally they committed an offence contrary to S. 20.
However, no reported prosecutions of such.

Question 48

Mixing and Matching the offences

Answer 48

> If D charged with one of the assaults, jury can instead convict D of a lesser assault.
Charged with s.18 can instead be convicted under s. 20 or s. 47.
Charged with s. 20, can still be convicted under s. 47.

Question 49

Poisoning - general

Answer 49

> 2 types:

• same basic element but different aggravating features.
  a) infliction of GBH or endanger V’s life.
  b) Intent to injure, aggrieve, or annoy.

Question 50

Poisoning - sentence - type 1 (more serious)

Answer 50

> S. 23 OAPA 1861:
-“Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any GBH shall be guilty of [an offence], and being convicted thereof shall be liable… to imprisonment for any term not exceeding 10 years.”

Question 51

Poisoning - definition - type 1 (more serious)

Answer 51

> S. 23 OAPA 1861:
AR: D administered to or caused to be administered to or taken by V a poison, noxious, or destructive thing. As a result, they a) endangered the life of V or b) inflicted GBH upon V.
MR: D, Cunningham, was reckless as to administration of a poison, noxious, or destructive thing.
NB: Don’t need to show D intended/foresaw V’s life would be endangered or V would suffer any GBH).

Question 52

Poisoning - sentence - type 2 (less serious)

Answer 52

> S. 24 OAPA 1861:
-“Whosoever shall unlawfully & maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, with intent to injure, aggrieve, or annoy such person, shall be guilty of an offence, and being… convicted thereof shall be liable to imprisonment for a term not exceeding 5 years.”

Question 53

Poisoning - definition - type 2 (less serious)

Answer 53

> S. 224 OAPA 1861:
AR: D administered or caused to be administered to or taken by the V a poison, noxious, or destructive thing.
MR: D was reckless as to administration of the poison or noxious thing AND intended to injure, aggrieve, or annoy V.

Question 54

Poisoning - meaning of ‘poison’ or ‘noxious substance’

Answer 54

> Poison - 2 types:
1. Substances which are in their nature poisoning or noxious. Quantity used is irrelevant even if amount harmless (Cramp 1880).
2. Substances which are not in their nature harmful. Need to show administered in quantity sufficient to be harmful.
According to Veysey [2019], a noxious substance = substance which is “injurious, hurtful, harmful or unwholesome.”
If isn’t in its nature noxious but administered in a large quantity it becomes so.

Question 55

Poisoning - meaning of ‘administer’

Answer 55

> Include D administering the poison, as well as causing V to take the poison themself.
Kennedy - supplying drug at V’s request who then took it himself doesn’t constitute administer.
McNeil J confirmed that administration of poison doesn’t require substance to enter V’s body, but it does require contact with the body.

Question 56

Poisoning - meaning of ‘maliciously’

Answer 56

> Interpreted to mean recklessly.
D must foresee act will cause poison to be administered.
Unknown whether it is enough that D foresaw administration of substance or must it be shown D foresaw administration of a poison or noxious substance?

Question 57

Poisoning - meaning of ‘endangerment of life’ or ‘cause GBH’

Answer 57

> S. 23 not necessary to show D intended/foresaw GBH.

Question 58

Poisoning - meaning of ‘with intent to injure, aggrieve or annoy’

Answer 58

> ‘Intent’ in s. 24 should be given its normal meaning within criminal law.
‘injure’, ‘aggrieve, ‘annoy’ = ordinary meaning.
Debate over whether necessary to show intent was to injure, aggrieve, or annoy as a direct result of poisoning or whether it was sufficient to poison with the intent of injuring.
This issued was raised in Hill 1986.
Lord Griffiths said in deciding whether there was intent the jury should consider not only the intended effects of the substance, but D’s overall plan.

Question 59

Racially and religiously aggravated crimes - overview

Answer 59

> Increasing concern over racially or religiously motivated crimes.
Also there’s discussion of whether gender-based hate offences should be created.
Government in creating these offences decided that crimes with racial element should be given higher sentences and be specifically labelled as such:
-“The Government recognises that racist crime foes not simply injure the V or their property, it affects the whole family and it erodes the standards of decency of the wider community. Trust and understanding built up over many years between communities can be eroded by the climate of fear and anxiety which can surround a racists incident.” (Home Office 1998a: para. 1.1).
Baroness Hale in Rogers [2007], para 12: “Their essence is the denial of equal respect and dignity to people who are seen as ‘other’. This is more deeply hurtful, damaging and disrespectful to the victims than the simple versions of these offences.”
S. 28-32 of the Crime and Disorder Act 1998 created a new category of racially or religiously aggravated crimes.

Question 60

Racially and religiously aggravated crimes - Crime and Disorder Act 1998 - applicability

Answer 60

> S. 28-32 of the Crime and Disorder Act 1998 created a new category of racially or religiously aggravated crimes.
S.29:
-If D commits common assault, criminal damage, s.47 or 20 of OAPA, s. 2 or 4 of Protection & Harassment Act 1997, s. 4, 4A and 5 of Public Order Act 1986.
-And the offence was racially or religiously aggravated.

Question 61

Racially and religiously aggravated crimes - Crime and Disorder Act 1998 - when is an offence racially or religiously aggravated?

Answer 61

> S. 28:
1(a). At time of committing offence, or immediately before or after, offender demonstrates towards V hostility based on V’s membership (or presumed - by offender - membership) of a racial or religious group, or
1(b). offence is motivated (wholly or partly) by hostility towards members of a racial group based on their membership of that group.

Question 62

Racially and religiously aggravated crimes - Crime and Disorder Act 1998 - when is an offence racially or religiously aggravated? Detail

Answer 62

> Conviction could be found even if no V present of the race referred to by D.
Where no use of insulting words may be easier to rely on S. 28(1)(b) if can be shown D motivated by race/religion.
Motivation is key for this defence, and how easily this can be proved depend how ready a jury is to assume so.
No need to show race/religion was only motivation for the offence.
Ultimately, it’s for jury to decide if particular phrase is racial hostility or simply general abuse.
Shouldn’t be assumed that because a racial insult was uttered prior to the attack race was motivation for it although court in DPP v McFarlane said that DPP v Pal was heavily dependent on facts of case and normally where a racial insult was uttered during crime it would be considered racially aggravated.

Question 63

Protection from Harassment Act 1997 - Section 1

Answer 63

> S.1 - Harassment:

(1) A person must not pursue a course of conduct -
(a) which amounts to harassment of another; and
(b) which he knows or ought to know amount to harassment of the other.
(2) …another reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.
(3) does not apply to a course of conduct
(a) that was pursued for purpose of preventing or detecting crime
(b) pursued under any enactment or rule of law to comply with any condition or requirement imposed by any person under any enactment
(s) in particular circumstances, the pursuit of the course of conduct was reasonable.

Question 64

Protection from Harassment Act 1997 - section 1 - harassment - definition

Answer 64

> AR: D engaged in course of conduct which amounted to harassment.
MR: D knew/ought to have known that that conduct amounted to harassment.

Question 65

Protection from Harassment Act 1997 - section 1 - harassment - 4 elements - list

Answer 65

1. A course of conduct
2. The course of conduct must amount to harassment
3. D must know or ought to know that the conduct is harassing
4. Defences to harassment

Question 66

Protection from Harassment Act 1997 - section 1 - harassment - 4 elements - a course of conduct.

Answer 66

> Must involve at least 2 incidents, which are linked - some nexus between them.
Following 4 cases show how court decides if there’s a course of conduct:
1. Lau v DPP: D slapped V & 4 months later threatened V’s new BF. Too far apart & different in nature to constitute course of action.
2. Hills: D violent to V twice in 6 months - not course of conduct as 2 had reconciled & co-habited between 2 incidents, so severed link between them.
3. Kelly v DPP: D left 3 voice mails in 5mins & V listened to them in one go. Divisional Court said each call was distinct & separate so could amount to course of conduct.
4. R v Curtis. Series of violent incidents between a cohabiting couple in volatile relationship cannot be described as course of conduct. Spontaneous outbursts of ill-temper & bad behaviour, with aggression on both sides.

Question 67

Protection from Harassment Act 1997 - section 1 - harassment - 4 elements - course of conduct must amount to harassment

Answer 67

> S. 7(2): inc. causing V alarm or distress.
‘Includes’ so other things amount to it too.
Hayes v Willoughby, SC: “Harassment is a persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress.”
Hilson v CPS: not enough to show conduct was unreasonable or unattractive.
Fine line between acts of legitimate courting & acts of harassment.
Consider behaviour in context.
Partial definition to harassment given in s. 7(2) focuses on the effect of D’s conduct, rather than describing the conduct itself.
So if conduct causes alarm/distress to V even though most people wouldn’t be bothered by that conduct then can amount to harassment.

Question 68

Protection from Harassment Act 1997 - section 1 - harassment - 4 elements - D must know/ought to know conduct is harassing

Answer 68

> Both subjective and objective test.
In R v Colohan [2001], CA considered whether the reasonable person should be endowed with the characteristics of D and they decided NOT to.

Question 69

Protection from Harassment Act 1997 - section 1 - harassment - 4 elements - defences to harassment

Answer 69

> Relied upon most = (c) conduct of D is reasonable.
In Colohan, D appealed that his conduct was reasonable given that he was schizophrenic but CA held that his mental illness didn’t render his conduct reasonable.
Hayes v Willoughby, if harasser relying on defence of crime prevention they had to show their belief was reasonable. Lord Sumption, para. 15:
-“Before an alleged harasser can be said to have had the purpose of preventing or detecting crime, he must have sufficiently applied his mind to the matter. He must have thought rationally about the material suggesting the possibility of criminality and formed the view that the conduct said to constitute to harassment was appropriate for the purpose of preventing or detecting it.”

Question 70

Protection from Harassment Act 1997 - section 4

Answer 70

> S. 4:

(1) . A person whose course of conduct causes another to fear, on at least 2 occasions, that violence will be used against him is guilty of an offence if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions.
(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it will cause another to fear that violence will be used against him on any occasion if a reasonable person in possession of the same information would think the course of conduct would cause the other so to fear on that occasion.
(3) It is a defence for a person charged with an offence under this section to show that -
a) his course of conduct was pursued for the purpose of preventing or detecting crime,
b) his course of conduct was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
c) the pursuit of his course of conduct was reasonable for the protection of himself or another of for the protection of his or another’s property.

Question 71

Protection from Harassment Act 1997 - section 4 - general

Answer 71

> D must be shown to have undertaken a course of conduct which on at least 2 occasions left V to fear that violence would be used against them.
Specific fear that violence will be used - not enough for V to be ‘seriously frightened.’ (Henley [2000]).
Henley - not enough for V to fear violence against his family.
Can be ostensible threat to V’s dog.
Conduct must be shown to be targeted at an individual, which means that someone being generally aggressive and causing fear of violence might escape liability under s.4 on basis that their behaviour wasn’t targeted at individuals.

Question 72

Stalking - overview

Answer 72

> The Protection of Freedoms Act 2012 created a new offence of stalking in s. 2A of the Protection from Harassment Act 1997.
There’s also an offence of stalking involving fear or violence or serious alarm or distress in s. 4A of PHA 1997.

Question 73

Stalking - section 2A of Protection from Harassment Act 1997

Answer 73

> 2A Offence of Stalking:

(2) . …a person’s course of conduct amounts to stalking of another person if -
a) it amounts to harassment of that person,
b) the acts or omissions involved are ones associated with stalking, and
c) the person whose course of conduct it is knows or ought to know that the course of conduct amounts to harassment of the other person.
(3) The following are examples of acts of omissions which, in particular circumstances, are ones associated with stalking -
a) following a person,
b) contacting, or attempting to contacts, a person by any means,
c) publishing any statement or other material - i) relating or purporting to relate to a person, or ii) purporting to originate from a person,
d) monitoring the use by a person of the internet, email or any other form of electronic communication,
e) loitering in any place (whether public or private),
f) interfering with any property in the possession of a person,
g) watching or spying on a person.

Question 74

Controlling or Coercive Behaviour - general

Answer 74

> A new offence of ‘controlling or coercive behaviour in an intimate or family relationship’ has been created in s. 76 of the Serious Crime Act 2015:

• Designed to deal with fact domestic abuse often involves acts of violence, seen individually the true nature of the abuse may not be captured.
• Psychologist Mary Ann Dutton explains: “Abusive behaviour does not occur as a series of discrete events….To negate the impact of the times period between discrete episodes of serious violence - a time during which the woman may never know when the next incident will occur, and may continue to live with on-going psychological abuse - is to fail to recognise what some battered woman experiences as a continuing ‘state of siege’.”

Question 75

Controlling or Coercive Behaviour - key points from statute

Answer 75

> D repeatedly or continuously engages in coercive or controlling behaviour towards another person, who D is personally connected with, knowing or ought to that their behaviour will have serious effect on V.
D can’t be under 16 or has responsibility of V, for purposes of Part 1 of the Children & Young Persons Act 1933.
Serious effect = V caused to fear on at least 2 occasions that violence will be used against them or causes serious alarm/distress which have an adverse effect on V’s day-to-day activities.
‘ought to know’ = reasonable person with same knowledge as D.
Defence if D can show that engaging in their behaviour they believed they were acting in V’s best interests, and behaviour was in all the circumstances reasonable.
The above defence isn’t available if it causes V to fear violence will be used against them.

Question 76

Controlling or Coercive Behaviour - key points generally

Answer 76

1. Intimate relationship or live together as family.
2. D ‘repeatedly or continuously’ behaved in a coercive or controlling way. Could instead amount to assault under the Protection from Harassment Act 1997 if singular event.
3. ‘Serious effect’ on V.
   >MR = objective.
   >Parent can’t be convicted of this offence in relation to a child.

Question 77

Threats Offences

Answer 77

> Generally not an offence to threaten someone.
Statutes have created some specific offences:
1. threat to kill.
2. threat to damage or destroy another’s property.
3. blackmail: making an unwarranted demand with menaces.
4. threatening violence for purpose of securing unlawful entry to occupied premises.
5. menacing over a public electronic communications network.
6. bomb hoax.
7. various kinds of threatening behaviour in public places.
There are many others.

Question 78

Transmitting disease - key cases

Answer 78

> 2 key cases:

1. R v Dica
2. R v Konzani

Question 79

Transmitting disease - R v Dica

Answer 79

> R v Dica [2004] QB 1257 (CA):
-D had informed the women he was HIV positive & they still consented.
1. Can D be said to have caused GBH?
CA followed HoL decision in Burstow to conclude ‘inflict’ in S.20 of the OAPA meant same as caused so D can be said to have caused GBH.
2. In what circumstances, if any, is the consent of the victims relevant to charge he faced?
Lord Justice Judge:
-“If the D concealed the truth about his condition from them, and therefore kept them in ignorance of it, there was no reason for them to think that they were running any risk of infection, and they were not consenting to it. On this basis, there would be no consent sufficient in law to provide the D with a defence to the charge under s. 20.”
-Referencing Brown, “sexual overtones did not alter the fact that both parties were consenting to the deliberate infliction of serious harm or bodily injury on one participant by the other….The same public policy reason would prohibit the deliberate spreading of disease, including sexual disease.-“It does not follow from them, and they do not suggest, that consensual acts of sexual intercourse are unlawful merely because there may be a known risk to the health of one or other participant. These participants are not intent on spreading or becoming infected with disease through sexual intercourse. They are not indulging in serious violence for the purposes of sexual gratification. They are simply prepared, knowingly, to run the risk - not the certainty - of infection, as well as other risks inherent in and possible consequences of sexual intercourse…”
Conclusion:
-“…those who, knowing that they are suffering HIV or some other serious sexual disease, recklessly transmit it through consensual sexual intercourse, and inflict GBH on a person from whom the risk is concealed and who is not consenting to it… If however, the V consents to the risk, this continues to provides a defence under S.20.”

Question 80

Transmitting disease - R v Konzani

Answer 80

> R v Konzani [2005] EWCA Crim 706:
-D had unprotected sex with 3 women without informing them he was HIV positive.
-S. 20 so can be reckless not just intent like s.18.
Lord Justice Judge:
-“The allegation was that the appellant behaved recklessly on the basis that knowing he was suffering from the HIV virus, and its consequences, and knowing the risks of transmission to a sexual partner, he concealed his condition from the complainants, leaving them ignorant to it.”
-“So although they consented to sexual intercourse, they did not consent to the transmission of the HIV virus.”
-“For the complainant’s consent to the risks of contracting the HIV virus to provide a defence, it is at least implicit from the reasoning in R v Dica, and the observations of Lord Woolf CJ in R v Barnes confirms, that her consent must be an informed consent.”

Question 81

Transmitting disease - Summary

Answer 81

> To be convicted under s.18, D must intend to transmit it and in such a case even if V consents to running the risk of requiring the HIV virus there wouldn’t be a defence.
Not in public interest to cause spread of disease & follows Brown ruling.
Under s. 20 if D was reckless to transmitting it and V consented sex knowing D had it then D not guilty, but if D concealed fact, then D is guilty.

Question 82

Transmitting disease - Questions

Answer 82

1. D only guilty is reckless, i.e. realise there’s a risk that they are infectious & might transmit disease. What if D engaged in sex had been made aware he may have STD but hadn’t been tested? Or what if HIV-positive person used condom to greatly reduce chance of transmitting the virus?
2. What if V knew partner was HIV-positive but thought if she has shower after sexual intercourse there was no risk of being infected?
3. What about D who transmits disease by means other than sexual intercourse?
4. What kind of diseases are we talking about? Case law has been applied to HIV and herpes. Does it apply to chlamydia, the common cold, verrucas, or head lice?

Question 83

Consent & Assault - to what offences against the person is consent a defence?

Answer 83

> Leading case = R v Brown [1994].
Consent of V is a defence to an assault or battery.
But consent is not a defence to an offence involving ABH or more serious injury, unless the case falls within one of the recognised exceptional categories.
Consent can never be a defence to cases where V has died (Wacker [2002]).
If court persuaded that D’s conduct is beneficial to society a court may be persuaded to create a new exceptional category.

> Much debate over how decision in R v Wilson can be reconciled with HoL’s decision in Brown.

Question 84

Consent & Assault - to what offences against the person is consent a defence? R v Wilson

Answer 84

> Convicted with assault occasioning ABH on his wife after branding his initials on her buttock at her request.
Difference in approach because they were a married couple and therefore their conduct was more ‘acceptable’?
However, CA rejected this analysis in Emmett by convicting man who had seriously injured his fiancée in course of alleged sadomasochistic behaviour.
In this case, CA said in Wilson the activity was analogous to the exception which exists for tattooing, whereas the behaviour in Brown (& Emmett) didn’t fall into one of those exceptional categories.

Question 85

Consent & Assault - to what offences against the person is consent a defence? Exceptional categories - Sports

Answer 85

> Presumed by deciding to play the sport, V has consented to infliction of the kind of force involved in the game.
There comes a point where the kind of force used won’t be regarded as the kind of foul you consent to in playing the game.
In Barnes, CA held there would be a criminal offence is there was a foul “quite outside what could be expected to occur in the course of a football game.”
Only applies to organised & regulated sports. Although some unorganised games could fall within exceptional category of “rough & undisciplined horseplay.”

Question 86

Consent & Assault - to what offences against the person is consent a defence? Exceptional categories -Dangerous exhibitions & bravado

Answer 86

> E.g. acts & stunts.

>Bravado e.g. V says ‘my stomach is iron, hit me as hard as you like’ and then on being punched is injured.

Question 87

Consent & Assault - to what offences against the person is consent a defence? Exceptional categories -rough & undisciplined horseplay.

Answer 87

> Consent (D’s belief in V’s consent) to rough horseplay is a defence to cases involving ABH:
1. Rough games are part of childhood and would be realistic to punish them.
2. Such games are beneficial: important part of growing up & encouraging exercise.
Line needs to be drawn between rough horseplay and bullying.

Question 88

Consent & Assault - to what offences against the person is consent a defence? Exceptional categories -surgery

Answer 88

> V’s consent renders act lawful.
However, it was held in BM that body modification wasn’t covered by this exception.
Although procedures had been performed in a tidy & sterile way, D wasn’t medically qualified.
CA said this was significant as he wasn’t in a position to ensure clients had capacity to consent, nor did the clients have the reassurance of him having received appropriate training.
Further, the medical intervention caused serious harm to the patient, without corresponding benefit.
Statute has made it clear that certain operations (e.g. female genital mutilation) are illegal.

Question 89

Consent & Assault - to what offences against the person is consent a defence? Exceptional categories -Tattooing & body piercing

Answer 89

> For purpose of personal adornment.

>Wilson, ‘do-it-yourself’ tattooing included.

Question 90

Consent & Assault - to what offences against the person is consent a defence? Exceptional categories -religious flagellation

Answer 90

> Lord Mustill in Brown indicated there’s an exception for those who use flagellation to express feelings of penitence as part of religious practices.

Question 91

Consent & Assault - to what offences against the person is consent a defence? Exceptional categories -infectious intimate relations

Answer 91

> IF V agreed to have sexual relations with D, aware he was infectious then consent provided a defence to a charge under section 20.

Question 92

Consent & Assault - to what offences against the person is consent a defence? Exceptional categories -private relationships between partners

Answer 92

> CA in Wilson: “consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, normally a proper matter for criminal investigation, let alone criminal prosecutions.”
Although, that argument was rejected in Emmett.
However, in BM, Burnett LCJ in his discussion of the Wilson case justified the decision in terms of their marital status and privacy of the matrimonial home. V. hard to justify & approach in Emmett = preferable.

Question 93

Consent & Assault - to what offences against the person is consent a defence? Exceptional categories -harm isn’t caused intentionally

Answer 93

> Unclear whether this category exists or not.
Following Dica, courts will be particularly willing to find new exceptional categories in cases where the harm is caused recklessly.

Question 94

Consent & Assault - to what offences against the person is consent a defence? Exceptional categories -Closed list?

Answer 94

> In Brown, their Lordships indicated this wasn’t a closed list.
E.g. CA asked in BM whether body modifications should be added to list? No was answer.

Question 95

What is consent? General

Answer 95

> Express or implied.
Consent can only be given by a person with capacity, which is explained in Ss. 2(1) and 3(1) of the Mental Capacity Act 2005.
Questions:
1. Consent given in cases where V was ‘consenting’ due to fear or mistake.
2. What is consent is given to ABH but less harm is caused?
3. Consent where the extent of harm isn’t foreseen.
4. What if there is no consent but the defendant believe that there is consent?

Question 96

Consent given in cases where V was ‘consenting’ due to fear or mistake.

Answer 96

> Not true consent if:

1. V was mistaken as to D’s identity.
2. V was mistaken as to nature of the proposed act.
3. D was so fearful that the ‘consent’ should be regarded as submission & so ineffective.

Question 97

What is consent is given to ABH but less harm is caused?

Answer 97

> Dicta in Donovan and Boyea suggest consent to ABH is not lawful consent and therefore invalid.
Not clear though.

Question 98

Consent where the extent of harm isn’t foreseen.

Answer 98

> What if D believes they are committing a battery to which V has consented, but in fact what they are actually doing causes ABH or GBH?
Is V’s consent a defence still? 3 views:
1. No from A-G’s Ref. (No. 6 of 1980).
2. Not is ABH was foreseeable. Suggested in Boyea. If ABH wasn’t foreseeable result then V’s consent could provide defence, even if ABH (or worse) resulted.
3. Not if ABH was foreseen by D as a result of his actions. In Slingsby, Judge J held if D thought he was committing a battery & hadn’t foreseen a more serious injury then V’s consent would still provide a defence to more serious charge but if D was aware there was a risk of more serious injury then can’t rely on defence.

> Need authoritative ruling. But Slingsby seems general approach and relies on Cunningham recklessness & was followed by CA in Meachen.

Question 99

What if there is no consent but the defendant believe that there is consent?

Answer 99

> CA confirmed in Jones (1986) that where V’s consent would provide a defence, D will also have defence if they honestly believe V is consenting, even if V isn’t.
This is so even if the D’s belief was unreasonable.
Normally drunken belief that V consented doesn’t provide defence but Richardson and Irwin [1999] seems incorrect on this point. Although judgment in case is rather ambiguous.