Non Fatal Offences

Question 1

What is s 18 of the OAPA 1861?

Answer 1

`Grievous bodily harm with intent

Question 2

What is s 20 of OAPA 1861?

Answer 2

Grievous Bodily Harm

Question 3

What is s 47 of OAPA 1861?

Answer 3

Actual bodily harm

Question 4

What is under Common Assault in OAPA 1861?

Answer 4

Assault and Battery

Question 5

What cases show that assault is ‘causing fear’ in any way through DOING SOMETHING?

Answer 5

Nelson (2013) - assault has to be physically done (not touching though)
Costanza (1997) - letters can be assault
Ireland (1997) - silent phonecalls could be assault
Lamb (1967) - pointing an unloaded gun is only assault if they believe that it is loaded (MR)
DPP v K (1990) - an indirect act can still be battery (e.g. setting a trap)

Question 6

Which cases show that battery is the application of unlawful force to another either through intention or recklessness?

Answer 6

Thomas (1985) - touching clothes is ‘unlawful force’

Collins v Wilcock (1984) & Wood v DPP (2008) are other battery examples

Question 7

In waht case was an omission enough to prosecute under OAPA 1861?

Answer 7

Santa-Bermudez (2003) - by failing to warn an officer that they had needles in their pocket, this led to assault causing bodily harm through omission

Question 8

The use of force does not mean battery if…

Answer 8

• the victim gives genuine consent
• in self defense
• prevention of a crime

Question 9

What are the max sentences of ABH and GBH?

Answer 9

Both 5 years

Question 10

Cases to demonstrate ABH

Answer 10

T (2003) - simple outline of ABH
Smith (2006) - physical pain doesn't have to be a ingredient of ABH (cutting hair could be too)
Chan Fook (1994) - Psychiatric injury can also be ABH

Question 11

What cases show that the mens rea that is required for ABH is the same as common assault?

Answer 11

Roberts (1971)

Savage (1991)

Question 12

Cases on what a ‘wound’ is for GBH

Answer 12

Bollom (2004) - significant bruising could be enough
Burstow (1997) - serious psychiatric injury can be GBH
Dica (2004) - infecting people with HIV without them knowing is GBH

Question 13

What did the House of Lords decide in Parmenter (1991) about the mens rea of s 20 (GBH)?

Answer 13

Although the actus reus of s 20 requires a wound or GBH there is no need for D to foresee this level of serious injury

Question 14

Mens rea for s 20 vs Mens rea for s 18

Answer 14

s 20 it’s intention or subjective recklessness as to causing some injury (parmenter)

s 18 it’s Specific intention to cause GBH or specific intention to RESIST ARREST plus recklessness as to causing injury (Morrison 1989)

Question 15

definition of ‘actual bodily harm’

Answer 15

any hurt or injury calculated to interfere with the health or comfort

Question 16

What are the four key needs for reform of the Offences Against the Person Act 1861?

Answer 16

• it is out of date
• there are inconsistencies between different offences
• there is no conformity in the correspondence principle (this principle states that the results which D intend or foresee should match the results)
• much of the language used in the act is archaic

Question 17

What points should be discussed when using the criticism that the OAPA 1861 is OUT OF DATE?

Answer 17

• it is 150 years old:

when it was made people didn’t have an understanding of things like mental harm (Chan Fook and Burstow) so it isn’t covered

the idea of infecting someone with a disease wasn’t thought of as well (Dica)

COURTS ARE CONSTANTLY HAVING TO FILL IN GAPS

Question 18

What points should be discussed when using the OAPA criticism of INCONSISTENCY BETWEEN OFFENCES?

Answer 18

• inconsistencies in the mens rea required for each offence (e.g. the mens rea for s 47 is the same as common assault, but the differences in their max sentences are massive: 5 years vs 6 months
• s 20 and s 47 have the same maximum sentence even though they carry different levels of blameworthiness
• GBH can be a simple cut (an injury under s 47 could be worse than s 20)
• the s 20 rule of ‘resisting arrest’ shouldn’t be on the same level as someone who intended to cause someone GBH and did.

Question 19

What points should be discussed when considering the CORRESPONDENCE PRINCIPLE criticism of OAPA 1861?

Answer 19

• D should not be held liable for a given level of harm unless he meant to do it or knowingly ran the risk of it
• a D can be guilty of a s 20 or s 47 offence without intending or being reckless

these are clear breaches of the correspondence principle

Question 20

What points should be discussed when using the criticism that LANGUAGE USED IN OAPA 1861 is ARCHAIC?

Answer 20

• s 20 uses the word ‘maliciously’ which suggests acting deliberately with ill will to V. However, in 1861 it meant that D either intended to do the type of harm or was reckless as to whether that type of harm occurred (Cunningham 1957)
• the Act is also inconsistent in wording:

'’inflict’ and ‘cause’ were used interchangeably in different sections which led to a debate whether ‘inflict’ in s 20 meant technical assault had to take place (solved in Burstow)

Question 21

What evident changes did the Law Commission suggest in their Report 2015?

Answer 21

• added ‘aggravated assault’ which is the same as s 47 or “Clause 3” but the mens rea is ‘intentionally or recklessly causing COMMON ASSAULT’ rather than INJURY
• they called ‘battery’ “physical assault” and ‘assault’ “threatened assault” which makes their required actus reus much clearer as assault is commonly seen as physical nowadays.
• max sentences changed:

Clause 1 (s 18) - life
Clause 2 (s 20)  - 7 yrs
Clause 3 (s 47) - 5 yrs

Question 22

What reforms did the Home Office suggest for OAPA 1861 in the 1998 draft bill?

Answer 22

• set out four main offences
• the level of injury and required mens rea are made clear by the wording. The word ‘injury’ is made clear to mean both physical and mental