Non-fatal offences Flashcards
R v Ireland; R v Burstow
1) Psychiatric injury could amount to bodily harm
2) silence can constitute assualt.
3) assualt does not have to be face to face (here it was on telephone)
4) You cannot committ battery by silently calling someone who then suffers psychiatric injury as a result
harassing silent phone calls or heavy breathing calls, a man harasses a woman, he did this intentionally. . Woman suffers from psychiatric injury. Issue: do we need requirement of apprehension of immediate bodily harm? COA in Burstow it looked like COA said all you need is fear. HOL said no the test continues to be apprehension of immediate bodily harm. Can you fear immediate bodily harm from a silent telephone call? Unlikely said HOL but as long as victim does fear that there might be immediate bodily harm is immiment then this will suffice.
“the statute must be interpreted in the light of the best current scientific appreciation of the link between the body and psychiatric injury.”
(Lord Steyn
R v Constanza [1997
D harassed V over 20 months, bombarded with letters and phone calls and kept watch on her house, causing her to suffer clinical depression. She thought he might do something ‘at any minute’. D charged under s.47. But was there an assault?
CA: “The essential issue … is whether it is enough if the Crown have proved a fear of violence at some time not excluding the immediate future (they haven’t extended requirement of apprehension of immediate harm because as long as victim believes that the perpetrator might come immediately, it is enough, even if he thinks it will be in future too). In our judgment it is.”
Held: the court found assault on the basis that V was caused to ‘apprehend violence ‘at some point in the immediate future’.
When applying Constanza, a vide definition of ‘imminence’ should be employed. But do not confused an imminent anticipation of violence at some point in the future (not enough to satisfy the actus reus) from an anticipation of imminent violence (which will).
R v Savage, Parmenter [1992]
(two different cases to HL)
HL
Ms Savage has a pint of beer and she sees her husband’s former girlfriend she throws beer into her face dropping her glass which cuts the former girlfriends wrist. Does throwing the beer count as a battery?
In both cases the defendants claimed that they did not intend or foresee a risk of causing harm.
Held: HOL said both liable for a section 47 offence, this offence requires no mens rea as to the causing of ABH.
The issue concerned liability under s.47,
Therefore s47 is a constructive liability offence.
1) D must be acting maliciously - this was intepreted to mean :intentionall or recklessly.
HL expressly approaved the Cunnigham reckless test. Since G (HL) there can be no sugguestion that Caldwell-type recklessness has any part to play in offences against the person.
Dungey
Held: a kiss is a battery
Smith [1961[
HL
GBH has been defined by HL to mean ‘serious bodily harm’. Thus V’s injuries have to be more than ‘bodily harm’.
Haystead v CC of Derbyshire [2000]
Haystead struck a woman who was holding her baby and this causes the baby to be dropped. Does fact baby hit the ground (force of ground) can this amount to a battery? Held: yes, guilty of battery.
R v Santana-Bermudez [2004]
Battery can be an omission. There X was questioned by police officer, the officer searches him, he asked Santana – Bermudez if he has anything in his pockets, he says no. Police officer then goes into pocket and a needle pins him. Held: it is capable of battery.
Collins v Willcock
V cannot complain about contact which is ordinarily acceptable in daily life, eg touching to attract attention.
The logic behind this is that by voluntarily moving in society, we agree to be exposed to the foreseeable contact that social life entails. There are limits to contact (Wood v DPP)
Most physical contacts of ordinary life are not actionabe because they are impliedly consented to by all who move in society and expose themselves to risk of bodily contact. But there is distinction between a normal touch and an excessive force touching.
A police woman took hold of a woman’s arm to stop her walking off when she was questioning her. The woman scratched the police woman and was charged with assaulting a police officer in the course of her duty.
“the test must be whether the physical contact so persisted in has in the circumstances gone beyond generally acceptable standards of conduct.”
B [2013] EWCA
¥ HOL suggested in Brown, they enjoyed inflicting injurys of a sexual nature upon each other. Defendant said this should not be an offence because no hostile offence. HOL said accept there should be a requirement of hostile attempt but this is satisfied because there is a deliberate infliction of deliberate harm.
Brahman
Mr Brahman made a mixture of peas and leaves, he says to the victim that it will make you well. Victim does not want to eat the mixture, he gets hold of her finger and puts it in the mixture and attempts to make her eat it. Trial judge said unless there is implied consent by surrounding circumstances then the offence is fully made out. Burch is a clarification of what hostile intent means. COA in this case said there could be situations where an affectionate touching which is unexpected by people close falls within a lack of hostile intent. Implication in Brahman that if a husband says do not give me a kiss on the lips during X, and if she does this falls within the Brahman exception.
R v Dhaliwal [2006] EWCA
After abusive marriage she commits suicide, whether unlawful act constitution unlawful manslaught could have bene made out as a section 47 defence because she had been so badly treated by husband that she committed suicide, this bad treatment led to her having psychological problems. Held: Whilst mental harm by way of a recognised mental condition can be classed as harm, mere emotions are not enough to qualify
The defendant’s wife did not commit suicide as an immediate and reasonable response to the verbal abuse, but acted voluntarily
K v DDP
K gets acid from chemistry lab and puts it in hand dryer. Held: the direction was not held to be wrong was that he held not to give any thought of it. This case might have been decided because he was a school boy
Sprat
Another school boy, he had an airgun and was firing, he fired his air pistol out of bathroom window, he hit someone and defence says we will plead guilty on fact he did not give it any thought. Held: the test is whether or not you ACTUALLY foresee this. They appealed on Caldwell objective where does not matter if you think about it, if it is Cunningham subject test, and if did not think at all. Held: it should have been subjective reckless.
Parmenter
Mens rea for s47 was that necessary for assault or battery. There was no need to prove further mens rea as to ABH.
Mens rea for s20 is foresight to some harm, albeit not serious.
R V DPP
person who had been knocked unconscious and then recovered was this ABH? ABH defined as lawed transient. But it wasn’t transient because they recovered. Held: that it must be transient and trifling, it is not trifling to be knocked unconscious.
R v Dica [2004]
Can now consent to HIV and other STD’s
reckless transmission of HIV can be ‘infliction’: giving of HIV to victim, we regard words of Lord hope being ratio, Calrence is wrongly decided the words cause and inflect are wrongly decided. Clarence would be decided differently today.
Hol said we will give inflicting a wider meaning. Lord Hope said “cause” and inflicting is interchanging. But Lord Stain deals with Clarence, he says in Clarence they did not deal with psychiatric injury.
Court made a distinction between:
1) consent to sexual intercourse (to which both consented)
2) consent as to the risk of the infection.
Although V was not misled as to the nature of the sexual act, and thus D had not committed rape, V was misled as to the nature of the risk of infection. D was guilty.
R v Mowatt [1968]
maliciously” does import upon the part of the person who unlawfully inflicts the wound or other grievous bodily harm an awareness that his act may have the consequence of causing some physical harm to some other person. It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result.” Maliciously’ imports an awareness that an act may have the consequence of causing some physical harm to some other person, even if the harm foreseen was relatively minor.
In the absence of any evidence that the accused did not realise that it was a possible consequence of his act that some physical harm might be caused to the victim, the prosecution satisfy the relevant onus by proving the commission by the accused of an act which any ordinary person would realise was likely to have that consequence
s20
Taylor
S18 REQUIRES
Intent to cause GBH or Intent to resist/prevent lawful apprehension or detainer of a person
D stabbed V in the back. There as no evidence D intended to cause GBH. Held: s18 requires intention to cause GHB (not simply wound), and there was insufficient evidence of such intention in this case.
Mowatt
¥ tells us there is no mental element for maliciously so for section 18 it does not play a role. COA quashed conviction and agreed, yes it does maliciously does import requirement of intention or subjective reckless but they did not say as to what.
Brown
leading authority in which courts will recognize consent of harm, this case involved sado masistics that inflicted pain for pleasure the question for the HL was whether acts of sado-masochism taking place between consenting adults in private could give rise to prosecutions under either s.47 or s.20 OAPA. The effect of the reasoning of the majority is that the answer must be “Yes, unless a special public policy exception is made.” Evidence of injuries being caused, it was done in private, the courts assumed that there was full consent between the parties, the prosecution brought s47 or section 20, question for HOL could consenting adults inflicting pain in private continue? Held: yes unless a special public policy consideration is made. Majority in this case started from point that you cannot generally consent to ABH or worse, there were previous cases of exceptions. The court were unwilling to make an additional exception.
R v Barnes [2004] EWCA
D was playing in a football match. D mistimed a tackle against V and caused serious injury. D was charged with a s20 offence. Held: D’s conduct can be outside the rules of the game (within a margin of appreciation) and still be validly consented to.
CA set out factors to be considered:
1) type of sport
2) level at which it is being played
3) the nature of the act
4) the degree of forcec
5) the extent of the risk of injury
6) D’s state of mind
Purpose is not to inflict harm but it is an incidental risk of the sport, courts hold that taking part implies to consent of risk of some harm. Question: how far this consent will extend. There are things that regularly go on outside the rules, lots of punching occurring in ice hockey, it is not part of the rules, it is part of the game, argument if they consent to this, you do probably consent to the risk of something going wrong. In Barnes there was a bad tackle and it was held that somethings beyond the rules of the game you can still consent to.
R v Jones & Others
R v Aitken (1992)
concerned RAF officers who attempted to set fire to fire resistant clothing, one victim was seriously injured in relation to this, but court recognised horseplay with genuine consent of the parties.
R v Wilson
CA
Defendant branded with a hot knife, his initials onto his wife’s bum, the wife consented, Held: D’s conduct was akin to tattooing and other bodil modifications and V’s consent was therefore valid.
S and M not okay but branding is?
Clarified that assault and battery are not required for s20 liability.
Burrell v Harmer
¥ because they did not have capacity they could not consent, would be decided differently now.
Richardson [1998]
Interpreted ‘identity’ narrowly.
D was suspended from practising dentistry, but continued to treat patients. D was charged with assault occasioning actual bodily harm. The patients were clear that they would not have consented to treatment if they had known that D was suspended. Held: not fraud as to identity: D did not lie about who she was but rather simply holding of a license.
R v Dica [2004] EWCA
can consent to risk of being infected, but where D intends to spread it (consent invalid). Konzani confirmed that consent is only valid if V is informed of the risk of infection
D did not inform two sexual partners that he had the HIV virus. They were infected. Consent to intercourse held not to amount per se to consent to risk of disease. While actual consent to such a risk can constitute a defence to a charge under s.20, if D concealed his condition and there was no reason for the partners to think they were running the risk of HIV infection, they were not consenting to it. Essentials states (p227) that if D is unaware of his condition V’s consent is treated as effective. Really? Intercourse did not consent to risk of contracting the disease. While actual consent to risk can (if defendant knew but nevertheless agreed) this consent would be valid – but then why not in Brown? If defendant concealed the risk then this consent would not be valid.
R v Konzani [2005] EWCA
How informed a person should be.
D engaged in consensual unprotected sexual intercourse. As a result they contracted HIV, a condition D was aware but which he had not informed the complainants. CA held: the victims consented to sexual intercourse but because of the lack of information made known to them, they had not consented to the risk of contracting HIV.
Anyone who conceals HIV (not just a matter of lying but also a matter of non-disclosure) the person is not informed so cannot consent.
set standard where only D know something and he does not tell V then V cannot properly consent. This will also occur where D is not fully aware of the risk he poses.
It was accepted in Konzani that where D lacked knowledge of his HIV status at the time of intercourse, his failure to disclose information he did not possess could not undermine V’s consent.
1) D is aware of risk associated with certain action 0 D must inform V for V’s consent to be effective
2) D is unaware of risk - V’s consent will be effective despite lack of knowledge.
Collins v Willcock
Robert Goff - “An assault is an act which causes another person to apprehend the infliction of immediate, unlawful force on his person; a battery is the actual infliction of unlawful force on another person”
Ireland & Burstow [1997]
Requires ‘application of force’, so the silent telephone caller, even if he causes psychiatric harm, commits no battery
Do you need intent for a s47 offence
no
Sprat - under section 47 offence only mens rea is required to the assault.
