introduction to non fatals

Question 1

bodily autonomy

Answer 1

• A central theme to both Criminal Law and the law surrounding non-fatals is that of bodily autonomy – the right to not have your body interfered with against your will
• This is most commonly applied to fatal offences, but is extended to NF from non-consensual touching all the way to serious injuries

Question 2

results based on offences

Answer 2

• All NF are ‘results based’ in that we find the offence in the result of what happens to the victim
• In this case harm, and NF’s are ‘ranked’ based on the degree of harm which they cause to the victim and are ranked in a vague ‘ladder’

Question 3

who can be a victim

Answer 3

• To be a victim of a non-fatal offence, you must be human (animal cruelty offences are a different area), alive (you cannot batter a dead person – although there is an offence for this) and be independent of the womb/mother (again, there is an offence for causing injury to a foetus but it isn’t this)
• You must be a person

Question 4

where to find assault and battery

Answer 4

• Most NF offences are defined In Offences Against the Person Act (OAPA 1861)
• Assault and Battery are not defined in statute; the power to charge someone with these is found in S39 Criminal Justice Act (1988)
• Their definitions are found at common law, leading to an interesting debate on whether they should be considered statutory or CL offences

Question 5

assault

Answer 5

• Any assault involves any conduct by D that, intentionally or recklessly, causes V to apprehend imminent unlawful personal violence.

Question 6

key notes on assault

Answer 6

• There is no requirement for there to be physical touching when Assaulting someone – if you touch them = Battery
• The concept of assault is based on apprehension and therefore perception of the victim

Question 7

unlawful personal violence

Answer 7

• Any non-consensual contact with V
• This does not have to be extreme, serious or even moderate violence but can merely be low-level violence
• There is no requirement for the V to fear anything

Question 8

apprehension of fear

Answer 8

• The V must apprehend that the D is about to cause them immediate personal violence, and it should be noted that apprehension does not equal fear
• There can be fear without apprehension, and apprehension without fear

Question 9

how imminent is imminent?

Answer 9

• Immediacy is the key word here
• Threats ‘at some point’ are not sufficient – especially if they are at some non defined point within the future
• Immediacy and imminent threats satisfy the AR

Question 10

testing imminence

Answer 10

• This is a part objective/part subjective test
• Subjective: what facts did the V believe, what did the V believe to be the nature of the offence?
• Objective: based on the facts, whether this is enough to be apprehension of imminent violence is an objective one for the court

Question 11

indirect assault

Answer 11

• It is possible for an assault to be committed indirectly, such as being threatened by a dog or by D to be assaulted by another person

Question 12

Mens Rea: intention or reckless

Answer 12

• The defendant merely needs to be intentional or reckless as to the causing the result (assault)
• Established in Venna [1976]
• The D must also have voluntary conduct and be aware that their victim was a person

Question 13

battery

Answer 13

 Any conduct by which D intentionally or recklessly inflicts unlawful personal violence upon V

Question 14

AR

Answer 14

• The infliction of unlawful personal violence – with violence simply meaning ‘any unlawful contact’

Question 15

the right to no interference

Answer 15

• Battery most clearly refers to the concept that every individual has the right to not be touched without their consent
• “The law cannot define the line between different degrees of violence and therefore prohibits the first stage of it; every persons being sacred and no other having a right to meddle in it.”
• Blackstone, [1984] (as in Collins v Wilcock)

Question 16

does batter require physical contact

Answer 16

• Unlike Assault, which focuses on words and the apprehension of violence – Battery will always require some form of physical action
• The V does not have to be aware or even notice (Sleeping etc) and it does include the touching of the V’s clothes, as seen in Thomas [1985]

Question 17

indirect touching

Answer 17

• It is most common for battery to be carried out via a direct action- hitting with a fist or weapon for example, but it can be indirect
• Indirect battery consists of something like throwing, spitting, or a third party action – or setting a dog or other animal on V

Question 18

what about omissions

Answer 18

• It is entirely possible to satisfy the AR through omission – as seen in Santana – Bermudez [2004]
• We know that omissions relate to a duty of care, for battery it is common that the DoC breached will be one of a dangerous situation

Question 19

mens rea

Answer 19

• Similarly to Battery, the D must have intent or recklessness as to their actions
• They must also have acted, knowing that the person was a person

Question 20

relationship between the two

Answer 20

• Technically Assault and Battery are two offences which can be charged separately
• Entirely possible to have one without the other
• However, they are different offences and please remember that Assaulting someone requires NO physical touch, where Battery does

Question 21

assault and battery and specific defences

Answer 21

1) Lawful Chastisement: controversial, available to parents, only for battery at a maximum and must be reasonable force
2) Consent: consensual touching, being in society, same rules as standard consent defence (see previous lecture)