Lecture 3- Non-Fatal Flashcards

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1
Q

Key Principle

A

Key to the law is the right to bodily integrity: a person should not be touched against their wishes
Thomas

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2
Q

Statute

A

Offences against the Person Act 1861

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3
Q

Non-Fatal Offences

A

Assault (common law)

Battery (common law)

Assault occasioning actual bodily harm (OAPA s.47)

Maliciously wounding or inflicting GBH (OAPA s.20)

Wounding or causing GBH with intent (OAPA s.18)

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4
Q

Assault and Battery Provisions

A

Criminal Justice Act 1988, s.39

“Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment not exceeding six months or to both.”

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5
Q

Assault Definition

A

any act which intentionally— or … recklessly—causes another person to apprehend immediate and unlawful personal violence’
Fagan v Metropolitan Police Commissioner [1969]

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6
Q

Assault AR

A

any act which causes another person to apprehend immediate and unlawful personal violence

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7
Q

Assault MR

A

any act which intentionally— or … recklessly—causes another person to apprehend immediate and unlawful personal violence

Venna
It must be shown that the defendant foresaw the apprehension of imminent unlawful violence. It is not enough to show that the defendant should or could have foreseen it

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8
Q

Assault Omissions

A

Generally considering positive acts.

Failure to rectify a dangerous situation and the relevant MR will suffice (Miller).

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9
Q

Must V fear violence?

A

The V does not have to fear violence-it must be apprehended

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10
Q

No apprehension Case

A

Lamb [1967]
Mens rea being an essential ingredient, manslaughter could not be established in relation to the first ground except by proving that element of intent without which there could be no assault.

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11
Q

Words negate assault

A

Tuberville v Savage (1669)
If it were not assize time, I would not take such language.’ Here the defendant was making it clear he was not going to attack the victim.

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12
Q

Assault Omissions

A

Fagan v Metropolitan Police Commissioner [1969]
The dicta in Fagan imply that he could not be guilty. However, a strong case can be made for saying that an omission can amount to an assault if the defendant is acting unlawfully.30 So if a trespasser is suddenly aware that his presence in the victim’s garden is startling the victim, he may be committing an offence by remaining there.

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13
Q

Can words amount to assault?

A

Constanza [1997] -
Words can constitute assault/Immediacy does not exclude the immediate future

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14
Q

Silent phone calls

A

Ireland; Burstow [1998]- Held that silent phone calls can amount to assault

It is clear from Lord Steyn’s judgment that what matters is that the defendant has caused the victim to apprehend imminent harm. Exactly how that fear was created is immaterial (be it by acts, silence, writing,10 or words).

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15
Q

What is immediacy?

A

Lord Steyn in Ireland indicated that p. 320↵a fear of violence ‘within a minute or two’ might be sufficient to constitute an assault

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16
Q

Battery

A

A battery is an act (or omission) by which D intentionally or recklessly applies unlawful personal force to V.

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17
Q

How much force?

A

Collins v Wilcock- Slightest Touch/ Highlighting implied and expressed consent.

Thomas (1985) - Does not require the V to feel the touch/ touch of clothes is sufficient.

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18
Q

Indirect Force

A

Martin (1881)
He acted “unlawfully and maliciously,” not that he had any personal malice against the particular individuals injured, but in the sense of doing an unlawful act calculated to injure, and by which others were in fact injured.

something must still touch the victim

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19
Q

Battery Omissions

A

Fagan v Metropolitan Police Commissioner [1969]- Generally, battery cannot be committed through an omission.
Except for when a dangerous situation is created (R v Miller [1983]

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20
Q

Dangerous situation Case

A

Santana-Bermudez [2004]

where someone (by act or word or a 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 actus reus of an assault occasioning actual bodily harm.

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21
Q

Assault Occasioning ABH (s47)

A

Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable … to be imprisoned for any term not exceeding five years.

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22
Q

S47 AR

A

1.The Assault or Battery
2.Occasioning (the rules of causation)
3.The ABH

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23
Q

What is occasioning?

A

‘Occasioned’ has been interpreted as meaning the same as caused.65 (Roberts (1971))

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24
Q

What is ABH?

A

Actual bodily harm has been defined as ‘any hurt or injury calculated to interfere with the health or comfort’ of the victim which is more than transient and trifling.(Donovan [1934])

Bruising, grazes, the causing of tenderness,57 temporary loss of consciousness,58 or breaking of teeth could be included within actual bodily harm.

25
Q

What about psychiatric illness?

A

The House of Lords in Ireland held that psychological injuries could be included in the term ‘actual bodily harm’, but only if they were medically recognized conditions which involved more than fear, panic, or distress.

R v Chan-Fook [1993]- Psychiatric injury with medical evidence =bodily harm
In any case where psychiatric injury is relied upon as the basis for an allegation of bodily harm, and the matter has not been admitted by the defence, expert evidence should be called by the prosecution.

26
Q

ABH
CPS Charging Standards

A

Requirement for “serious” injury.

In determining whether or not the injuries are serious, relevant factors may include, for example, the fact that there has been significant medical intervention and/or permanent effects have resulted.

Examples may include cases where there is the need for a number of stitches (but not the superficial application of steri-strips) or a hospital procedure under anaesthetic.

But there may be other factors which are also relevant and these will need to be carefully considered when deciding whether or not the injuries are serious.

Psychological harm that involves more than mere emotions such as fear, distress or panic can amount to ABH.

27
Q

ABH- What must D intend?

A

Section 47 is a ‘constructive’ crime – D only requires the MR for the assault/battery.

Savage and Parmenter [1992]

There is no need to show that the defendant foresaw the actual bodily harm.

28
Q

Wounding or inflicting GBH (s20)

A

Whosoever shall unlawfully and maliciously wound or inflict grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be liable … to imprisonment for a term not exceeding five years

29
Q

First Offence

A

Offence 1

D wounds V and;

D intends to cause some harm or

D is subjectively reckless that some harm will be caused

30
Q

Second Offence

A

Offence 2

D causes grievous bodily harm to V and;

D intends to cause some harm; or

D is subjectively reckless that some harm will be caused

31
Q

Wounding

A

Eisenhower [1984]
A break in the continuity of the whole of the skin
A rupture of an internal blood vessel is not a wound

R v M’Loughlin (1838)- Wound must be a cut through 2 layers of the skin/ not just the epidermis.

32
Q

Must the D foresee the wounding?

A

Section 20 wounding is a ‘constructive’ crime – D only requires the MR for the possibility of some harm, albeit minor.

Mowatt [1967]

33
Q

S20- Must the D foresee the GBH?

A

Section 20, GBH is a ‘constructive’ crime – D only requires the MR for the possibility of some harm, albeit minor.

Savage and Parmenter [1992] -Intention or foresight that the act will cause some harm.

34
Q

What does inflict mean?

A

However, in Burstow, Lord Steyn explained that although the words cause and inflict were not synonymous, ‘in the context of the Act of 1861 there is no radical divergence between the meaning of the two words’

35
Q

Negative Judicial Consideration

A

Clarence (1888) 22 QBD 23- Infliction requiring a blow or direct and aggressive touch.

36
Q

What is GBH?

A

Grievous bodily harm (GBH) means ‘really serious bodily harm’.75 (DPP v Smith [1961]

Grievous bodily harm can include very serious psychological harm.
(Burstow [1998]) To amount to grievous bodily harm there must be more than serious distress or upset: there must be a serious identifiable clinical condition.

37
Q

Golding [2014]

A

Genital herpes constitutes GBH

38
Q

Bollom [2003]

A

The factors of the victim must be taken into account/ multiple injuries can constitute GBH

39
Q

Biological Harm

A

R v Dica

The effect of this judgment in relation to section 20 is to remove some of the outdated restrictions against the successful prosecution of those who, knowing that they are suffering HIV or some other serious sexual disease, recklessly transmit it through consensual sexual intercourse, and inflict grievous bodily harm on a person from whom the risk is concealed and who is not consenting to it.

40
Q

Biological Harm Development

A

R v Konzani
Equally the defendant is not to be convicted if there was, or may have been an informed consent by his sexual partner to the risk that he would transfer the HIV virus to her. In many cases, as in Dica itself, provided recklessness is established, the critical factual area of dispute will address what, if anything, was said between the two individuals involved, one of whom knows, and the other of whom does not know, that one of them is suffering the HIV virus.

41
Q

Biological Harm Rulings

A

D is guilty:

of an offence under section 20 of the Offences Against the Person Act 1861 if:

D is aware that there is a risk that by having sexual relations they might cause the other person to suffer some harm (e.g. by becoming HIV-positive);

the victim has not given consent to run the risk of becoming HIV-positive;

(2) of an offence under section 18 of the Offences Against the Person Act 1861 if D intends to cause the victim to suffer grievous bodily harm as a result of the sexual intercourse. In such a case even if the victim consents to running the risk of acquiring the HIV virus there would be no defence.

42
Q

Maranguanda [2009]

A

gonorrhea

43
Q

Wounding or causing GBH with intent (s18)

A

Whosover shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm 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

44
Q

Offence 1

A

D wounds V;
D intends to cause GBH.

45
Q

Offence 2

A

D wounds V;
D intends to cause some harm; or D is subjectively reckless that some harm will be caused
D intends to resist or prevent the lawful apprehension or detainer of any person.

46
Q

Offence 3

A

D causes GBH;
D intends to cause GBH.

47
Q

Offence 4

A

D causes GBH;
D intends to cause some harm; or D is subjectively reckless that some harm will be caused
D intends to resist or prevent the lawful apprehension or detainer of any person.

48
Q

Intention to cause GBH

A

Banton [2007]
Evidence must be required to convict D of lesser offence. Demonstrated intention through act (hitting with bottle)- S20 not allowed.

49
Q

CPS Charging Standards

A

repeated or planned attack, deliberation selection of a weapon or adaptation of an article to cause injury such as breaking a glass before an attack, making prior threats, using offensive weapon against or kicking the victim’s head

50
Q

Consenting to Harm

A

Rex v. Donovan [1934]

“it is an unlawful act to beat another person with such a degree of violence that the infliction of bodily harm is a probable consequence, and when such an act is proved, consent is immaterial

51
Q

More than Common Assault

A

R v Brown [1993]
Consent is not a defence to an offence with a higher level of harm than common assault

52
Q

Fighting

A

Attorney-General’s Reference (No. 6 of 1980) [1981] where two men quarrelled and fought with bare fists Lord Lane C.J., delivering the judgment of the Court of Appeal, said, at p. 719: “it is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason.

53
Q

Public Policy Exceptions

A

1.Surgery and body modification
2. Competitive Sports
3.Horseplay
4.Reasonable Chastisement of Children
5.Reckless Transmission of Disease

54
Q

Surgery + BM

A

Wilson [1996] - Branding as a form of tattooing/ Removed the requirement of infliction being a direct forceable act
R v BM [2018] EWCA Crim 560- body modification is not covered by the exception (serious nature/ requirement to have a medical license)

55
Q

Competitive Sports

A

Barnes [2004]

Consent is usually a defence to injuries received in the course of a sporting event, even if those injuries involve actual bodily harm.221 It is presumed that by deciding to play the sport the victim has consented to the infliction of the kind of force normally involved in the game.

the Court of Appeal held that if there was a foul ‘quite outside what could be expected to occur in the course of a football game’(28) that could be a criminal offence

56
Q

Consent depends on

A

Implied consent here depends on: (the context)

the nature of the act/ injuries

the specific rules of the game

NB: consent is not precluded simply because the game’s rules are broken – as this is accepted as part of the nature of the game.

57
Q

Horseplay

A

Jones [1987]- Rough and undisciplined horseplay as a public policy exception

Aitken [1992] - Genuine belief in consent is sufficient

Richardson and Irwin [1999]
Similarly students throwing each other off balconies were found to be engaged in rough horseplay and the victim’s consent (or the defendant’s belief in the victim’s consent) provided a defence to a criminal charge.

58
Q

Reckless Transmission of Disease

A

Dica [2004] QB 157
Konzani [2005] 2 Cr App Rep 14

“’Informed consent’ does not necessarily mean that the defendant must disclose his or her condition to the complainant.” (CPS Legal Guidance)

It is possible that, on rare occasions, a person can know that he or she is infected without undergoing the necessary medical tests. This will depend on all the circumstances and will be a matter for the jury to decide. … ‘Wilful blindness’ by not undergoing testing may be a factor that a jury can take into account when deciding the question of the defendant’s ‘knowledge’
(CPS Legal Guidance)