Non-Fatal offences

Question 1

What are the five not-fatal offences?

Answer 1

common law: assault, battery,

statutory: ABH, GBH and GBH with intention.

Question 2

What are similarities between assault and battery

Answer 2

Both established in s.39 Criminal Justice Act 1988
Both common law offences
Best summary offences with 6 months MAX imprisonment or a fine

R v Venna establishes men’s rea for both
Collins v Wilcock establishes actus reus for both

Question 3

What is the actus reus of assault?

Answer 3

Any act which causes the victim to fear the immediate infliction of violence e.g., raising a fist, pointing a gun or threatening somebody

Collins v Wilcock (1984)

Question 4

Give 3 special situations which have qualified for the actus reus of assault with case examples

Answer 4

Words can amount to an assault, as can silent telephone calls - R v Ireland

Words can also take away liability for assault as in the case of Tuberville v Savage (1669).

The threat has to be ‘immediate’ though this has been interpreted generously by the courts e.g., R vs Ireland

Question 5

What is the mens rea of assault

Answer 5

the defendant must have either intended to cause the victim to fear the infliction of immediate and unlawful force, or must have seen the risk that such fear would be created (subjective recklessness).

This was defined in R v. Venna [1976]

Question 6

What is the actus reus of Battery?

Answer 6

The application of unlawful physical force on another. It is accepted that a certain amount of physical force happens in daily life
(Collins v Wilcock (1984)), so for it to be a battery, the force must be unlawful.

Question 7

Can battery be an omission?

Answer 7

In rare instances yes!
DPP v Santana-Bermudez (2004).- Said his pockets were empty, officer then pricked by needle

Question 8

What is the mens rea of Battery

Answer 8

The mens rea of battery is intention or subjective recklessness to apply unlawful force on another as confirmed in of R v Venna (1976).

Question 9

What act establishes ABH? and what is the defintiion?

Answer 9

S.47 Offences Against the Person Act 1861

• Can be assault or battery that ‘occasions’ the ABH.
• Triable either way offence.
• Maximum sentence for ABH is five years’ imprisonment.

Assault or Battery Occasioning Actually Bodily Harm.

Question 10

What are the three elements of the actus reus of ABH?

Answer 10

1) Assault or battery
The first element of ABH requires proof of the actus reus of either an assault or battery as defined above.

2. Occasioning
   The assault or battery must occasion i.e., cause actual bodily harm. The chain of causation therefore needs to be established between the defendants act and the harm caused.
   No ‘novus actus interveniens’ e.g., R v Roberts (1971).
3. Actual bodily harm
   Can be physical or psychological harm e.g., R vs Miller (1954). It can include cutting someone’s hair e.g., DPP v Smith (2006).

ABH can be causing ‘hurt or injury calculated to interfere with health or comfort’ e.g., Miller (1954). Also,

‘Actual’ means though the injury does not need to be permanent, it should not be so trivial as to be insignificant.

Question 11

what is the mens rea of ABH

Answer 11

The mens rea of battery is the same as for assault or battery. There is no requirement to prove any extra mens rea for the actual bodily harm

as per the case of R vs Roberts

Question 12

What act establishes GBH?

Answer 12

Statutory offence set out in s.20 Offences Against the Person Act 1861 - it is an offence to maliciously inflict grievous bodily harm or wound the victim.

• Triable either way offence.
• Maximum sentence for GBH is five years’ imprisonment. (Criticised for being the same as for lesser offence of ABH).

Question 13

What is the actus reus of GBH

Answer 13

GBH can be proved by either showing an infliction of grievous bodily harm or a wounding of the victim.

Infliction of GBH
General principle is that GBH is ‘really serious harm’ (DPP v Smith (1961)).

In R vs Dica (2004) the meaning was widened to include recklessly transmitting HIV to an unaware victim as being ‘infliction’ of GBH.

Wounding
A wound requires a breaking in the continuity of the skin usually resulting in bleeding.

However, in the case of JCC (A Minor) v Eisenhower (1984) an internal rupture of blood vessels in the victim’s eye was held not to amount to wounding within s.20.

Question 14

What is the mens rea of GBH

Answer 14

The mens rea for GBH is defined by the word maliciously (with intention or subjective recklessness).

Doesn’t matter whether or not the defendant intended or was reckless as to the infliction of GBH or a wound as long as it can be proven that the defendant intended or foresaw that some harm MIGHT occur (not would) e.g., Wagon Mound no1

Question 15

What act establishes GBH with intent?

Answer 15

S.18 GBH with intent

• Statutory offence of grievous bodily harm with intent is set out in s.18 Offences Against the Person Act 1861 - it is an offence to intend to maliciously wound or cause grievous bodily harm or to resist or prevent the lawful apprehension or detention of any person.
• S.18 is an indictable offence.
• Maximum sentence for s.18 is life imprisonment
• S.18 is a crime of specific intent, meaning that it can ONLY be proved with intention as the mens rea.
  S.47 and s.20 are both basic intention as they can be proved with either intention OR recklessness.

Question 16

What is the actus reus of S18 GBH

Answer 16

This is the exact same as the actus reus of s.20 except CAUSATION is required
Similar to the actus reus for s.20, the actus reus for s.18 is either maliciously wounding or causing grievous bodily harm.

Infliction of GBH:
General principle is that GBH is ‘really serious harm’ (DPP v Smith (1961)).
In R vs Dica (2004) the meaning was widened to include recklessly transmitting HIV toan unaware victim as being ‘infliction’ of GBH.

Wounding:
A wound requires a breaking in the continuity of the skin usually resulting in bleeding. However, in the case of JCC (A Minor) v Eisenhower (1984) an internal rupture of blood vessels in the victim’s eye was held not to amount to wounding within s.20.

Question 17

What is the mens rea of S18 GBH

Answer 17

S.18 can ONLY be proved with intention (direct or oblique) whereas s.20 can be established with recklessness or intention to cause some harm.

The mens rea has 2 aspects:

First, the defendant must ‘maliciously’ wound or cause grievous bodily harm.

Secondly, the defendant must have specific intent to either cause grievous bodily harm to the victim or to resist or prevent the lawful apprehension or detention of any person.

Question 18

Criticms

Answer 18

Parliament has yet to update the law Main areas for reform are:

• The wording - Many of the words used to define non-fatal offences have been criticised for being out-of-date and ambiguous. For example – assault, battery, ‘grievous’ and ‘breaking of the skin’.
• Discussion of the antiquated language in the OPA 1861 – ‘grievous’ and ‘actual bodily harm’ not in keeping with modern language use. Problems with the use of the word ‘maliciously’ under s.18 and s.20.

Discussion of the sentencing anomalies with the non-fatal offences. E.g. 6 months for assault and battery and 5 years for both ABH and GBH. Then jumps to life for s.18.

• Discussion of the difficulties with mens rea element – intention or recklessness for all offences apart from s.18.
• The arrest element of s.18 - the inclusion of ‘resisting arrest’ in the definition of s.18 GBH is a confusing concept, which allows a defendant to be charged with GBH when they have caused GBH whilst intentionally resisting arrest.

Definitions of the offences are a confusing mixture of common law and statute -
appropriate for their definitions to be codified in an Act of Parliament?

Question 19

Two sources of reform for Non-Fatal offences

Answer 19

Law Commission Report 1993
* The Law Commission produced ‘Offences Against the Person and General Principles’ in 1993. This report re-drafted the non-fatal offences and criticised the current offences.
Their three main criticisms of the current law was for it being too complicated, obscure and old-fashioned language and complicated, being completely ineligible to the layman

• The Law Commission also produced a draft Criminal Law Bill which re-defined the offences, however this was never adopted.