Non Fatal Offences

Question 1

hierarchy of non fatal offences

Answer 1

assault or battery

ABH

GBH

GBH with intent

Question 2

what are non fatal offences?

Answer 2

offences that do not kill V

there are 5 main non fatal offences

Question 3

what are the 5 main non fatal offences?

Answer 3

assault

battery

assault occasioning ABH

wounding or inflicting GBH

wounding or causing GBH with intent

(assault and battery often occur together and are known as common assault but it’s possible for one to occur without the other)

Question 4

where are the main offences set out?

Answer 4

in the Offences Against the Person Act 1861

based on whether or not the victim was injured, the severity of the injury and what the defendant intended

Question 5

ASSAULT

Answer 5

defined in common law by judges but charged under s.39 Criminal Justice Act 1988

summary offence with a maximum penalty of 6 months imprisonment

AR = an act which causes the victim to apprehend immediate unlawful force

MR = intentionally or recklessly causing the victim to apprehend immediate unlawful force

Question 6

ASSAULT

actus reus

Answer 6

an act which causes the victim to apprehend immediate unlawful force

no touching or injury required

CASE EXAMPLE = Smith v Woking Police (1983)

words alone could be enough and even silent phone calls — Ireland (1999)

an omission is not enough and there will be no assault if it’s obvious to V that D is unable to carry out the threat (e.g. threats made from a car travelling in the opposite direction)

words can prevent an assault by making it clear that violence is not going to be used, they negate the threat — Tuberville v Savage (1669)

a threat to inflict harm at some point in the future is not an assault, however the courts are flexible and do not require that the threat always has to be carried out instantaneously — Constanza (1997)

Question 7

ASSAULT

mens rea

Answer 7

intentionally or recklessly causing V to apprehend immediate unlawful force

recklessness is subjective, D must know there is a risk that fear will be caused

CASE EXAMPLE = Logdon (1976)

Question 8

BATTERY

Answer 8

defined in common law by judges but charged under s.39 Criminal Justice Act 1988

summary offence with a maximum penalty of 6 months imprisonment

AR = application of unlawful force to another person

MR = intentionally or recklessly applying unlawful force to another person

Question 9

BATTERY

actus reus

Answer 9

application of unlawful force to another person

requires some form of touching but there’s no need to prove harm or pain, any contact is sufficient

Collins v Wilcock (1984) — it was held that “any touching of another person, however slight, may amount to battery”

Thomas (1985) — touching someone’s clothing while they’re wearing them is equivalent to touching the person

can be an continuing act like in Fagan (1968)

can be an indirect act — DPP v K (1990) and Haystead (2000)

can be committed by an omission — Santa Bermudez (2003)

Question 10

BATTERY

mens rea

Answer 10

intentionally or recklessly applying unlawful force to another person

subjective recklessness, D must know there is a risk of force being applied

EXAMPLE = Venna (1976)

Question 11

ASSAULT OCCASIONING ABH

Answer 11

charged under s.47 Offences Against the Person Act 1861

triable either way offence with a maximum penalty of 5 years imprisonment

AR = either an assault or battery which causes actual bodily harm (some injury that’s more than trivial)

MR = intentionally or recklessly causing assault or battery

Question 12

ASSAULT OCCASIONING ABH

actus reus

Answer 12

either an assault or battery which causes actual bodily harm (some injury that’s more than trivial)

to establish a s.47 offence, there must be the AR of either assault or battery

Ireland (1999) — began with an assault but V suffered psychiatric illness so D was guilty of s.47

Miller (1954) — ABH includes “any hurt or injury calculated to fear with health or comfort” provided it is more than trivial

harm is not limited to injury of skin, flesh and bones — in DPP v Smith (2006) cutting off a girl’s ponytail amounted to ABH

T v DPP (2003) — temporary loss of consciousness is enough

Chan Fook (1994) — ABH can include psychiatric injury but does not include “mere emotions such as fear or distress”, there must be some kind of identifiable clinical condition

Question 13

ASSAULT OCCASIONING ABH

mens rea

Answer 13

intentionally or recklessly causing V to apprehend immediate unlawful force

OR

intentionally or recklessly applying unlawful force to another person

(only the MR for assault or battery is needed, there is no need for D to intent or be reckless as to whether ABH is caused)

CASE EXAMPLE = Savage (1991)

Question 14

WOUNDING OR INFLICTING GBH

Answer 14

charged under s.20 Offences Against the Person Act 1861

triable either way offence with a maximum penalty of 5 years imprisonment

AR = two ways to commit the actus reus of s.20; wounding or inflicting GBH

MR = intentionally or recklessly causing some harm

Question 15

WOUNDING OR INFLICTING GBH

actus reus

Answer 15

2 ways to commit the AR of s.20; wounding or inflicting GBH

wounding
• means breaking at least 2 layers of skin
• does not include internal bleeding (Eisenhower, 1983)
• may include wounding to the skin of an internal cavity of the body such as a cut in the cheek

grievous bodily harm
• means serious harm (DPP v Smith)
• includes broken limbs, dislocations and permanent disability
• Bollom (2004) — severity of injury should be assessed according to V’s age and health
• Brown v Stratton (1997) — several minor injuries amounted to GBH
• can include serious psychiatric injury — Burstow (1997)
• Dica (2004) — GBH can be a sexually transmitted disease like HIV

Question 16

WOUNDING OR INFLICTING GBH

mens rea

Answer 16

intentionally or recklessly causing some harm

D only has to foresee some harm, there is no need for D to intend or foresee GBH or wounding

EXAMPLE = Parmenter (1991)

Question 17

WOUNDING OR CAUSING GBH WITH INTENT

Answer 17

charged under s.18 Offences Against the Person Act 1861

indictable offence with a maximum penalty of life imprisonment

AR = 2 ways to commit the AR of s.18; causing GBH or wounding

MR = intention to cause GBH or intention to resist arrest

Question 18

WOUNDING OR CAUSING GBH WITH INTENT

actus reus

Answer 18

2 ways to commit the AR of s.18; causing GBH (serious harm) or wounding (breaking 2 layers of skin)

judges have decided that causing GBH (s.18) and inflicting GBH (s.20) amount to the same thing, therefore AR of both offences is identical

Question 19

WOUNDING OR CAUSING GBH WITH INTENT

mens rea

Answer 19

intention to cause GBH — Belfon (1976)

OR

intention to resist arrest — Morrison (1989)

• intention to wound is not enough (Taylor, 2009)
• intention is your aim or purpose (Mohan, 1976)
• intention can be indirect where the consequence is virtually certain but D goes ahead with their actions knowing this is the case (Woollin, 1998)

Question 20

how to answer problem questions…

Answer 20

1) identify injury, offence and act
2) state AR, explain using cases, apply to problem
3) state and apply causation (keep brief unless there is something to talk about such as an intervening act)
4) state MR, explain using cases, apply to problem
5) reach conclusion and give reasons why (seems that D may be guilt of….) and consider an alternative if appropriate

QUOTE THE PROBLEM FROM THE QUESTION

Question 21

problem questions involving GBH

Answer 21

if injury is serious enough to be GBH, discuss s.20 first and decide whether AR and MR are met

if there’s any suggestion of intention of serious injury such as repeated attacks, go on to consider s.18

point out that AR is the same for s.18 and explain MR

D could be charged under s.20 but may be charged under s.18…..

Question 22

x3 evaluation points for assault/battery

Answer 22

• common assault as a general term
• AR and MR correspond
• force is misleading in battery

Question 23

assault/battery evaluation

COMMON ASSAULT

Answer 23

a criticism of assault/battery is that “common assault” is used to refer to both assault and battery even though they are 2 distinct offences

for example, an omission can form the AR for battery but not for assault (as in Santana Bermudez)

creates confusion to lay people who then have difficulty understanding the difference between the 2 offences — many believe an assault is a physical attack while battery is a malicious attack, this is not true

definition found in common law seems unclear, there should be a statutory definition that can be referred back to for both lawyers and lay people

Question 24

assault/battery evaluation

AR + MR CORRESPOND

Answer 24

an advantage is that the AR and MR correspond which means that D is only guilty for intending or for seeing an assault or battery

example = Logdon

sticks to the principle of criminal law that says D should only be liable for what they foresaw

fair on the defendant

Question 25

assault/battery evaluation

FORCE IS MISLEADING

Answer 25

the AR of battery is application of unlawful force to another person

the word “force” is misleading as it appears to suggest harm or pain when actually, any contact is sufficient

example = Collins v Wilcock

Question 26

x4 evaluation points for s.47

Answer 26

• sentence of 5 years in prison
• MR and AR do not correspond
• wording of OAPA is misleading
• OAPA is out of date

Question 27

s.47 evaluation

5 YEAR SENTENCE

Answer 27

there is a sentence of 5 years in prison even if D did not intend or forsee such harm being caused

MR required is that of an assault or battery so D may be sentenced very severely even though they did not intend ABH (eg Savage)

there is also inconsistency because the maximum sentence for an assault or battery is only 6 months yet it increases to 5 years for ABH, despite the fact that both offences have the same MR

may be unfair to defendant

Question 28

s.47 evaluation

MR + AR DO NOT CORRESPOND

Answer 28

the MR and AR of s.47 do not correspond, there is no MR required in relation to the injury which means D is liable for the outcome of their actions even if they did not intend or foresee it

example = Savage

this is known as constructive intent

unfair as it goes against the principle of criminal law that says D should only be liable for what they foresaw

however, it does force people to take responsibility for their conduct and could act as a deterrent in the future by encouraging people to be more vigilant

achieves justice for victims

Question 29

s.47 evaluation

WORDING OF OAPA IS MISLEADING

Answer 29

wording of OAPA is misleading

“assault” is used in the AR but this is misleading because battery can also form the basis of a s.47 offence (eg in Collins v Wilcock)

“occasioning” may also cause confusion because it’s an old fashioned term that means “causing”, may not be clear to lay people as these terms are not commonly used in today’s language

“actual bodily harm” is not defined in s.47 which is unclear, creates more confusion and is not helpful. Miller (1954) has had to define ABH

Question 30

s.47 evaluation

OAPA IS OUT OF DATE

Answer 30

over 150 years old and therefore may not reflect modern society and our stances on criminal justice

for example, ABH suggests physical harm but does not seem to consider psychiatric harm which is just as important in today’s society

cases like Burstow are used to tackle this, in this case it’s ruled that ABH includes psychiatric injury

however, the act itself does not contain this so we have to rely on common law to resolve these issues

Question 31

x4 evaluation points for s.20

Answer 31

• misleading and unclear
• both s20 and s47 carry the same maximum sentence
• AR and MR do not correspond
• plans to update the law have not been implemented

Question 32

s.20 evaluation

MISLEADING AND UNCLEAR

Answer 32

s.20 can be misleading and unclear due to its wording

“grievous bodily harm” is an old fashioned term that is not fully understood by lay people, many would not know that it means serious harm

“maliciously” is used without explanation, in common law it means recklessly but most would assume it means evil intent

“inflict” also causes confusion as if suggests that an application of force is required but this is not always the case — Burstow

courts have defined GBH (Smith) and wounding (Eisenhower) as there is not a definition in the OAPA, key terms are not explained in the act

Question 33

s.20 evaluation

SAME MAXIMUM SENTENCE

Answer 33

both s20 and s47 carry the same maximum sentence of 5 years

this is illogical and unfair as s20 is significantly more serious that causes a more severe injury yet a defendant would not receive a more severe sentence

eg Dica

unfair on victim as it does not achieve justice or encourage people to take responsibility for their actions

fair on defendant as they may not have intended to cause the more serious harm

Question 34

s.20 evaluation

AR AND MR DO NOT CORRESPOND

Answer 34

the MR and AR of s.20 do not correspond, D does not need to foresee serious harm

they only have to foresee some harm which means that D is guilty for the outcome of their actions even if they did not intend to cause serious harm

this is known as constructive intent

unfair as it goes against the principle of criminal law that says D should only be liable for what they foresaw

D may be charged with a very serious crime and could receive years in prison for something they may not have foreseen to be so serious

eg Parmenter

however, it does force people to take responsibility for their conduct and could act as a deterrent in the future by encouraging people to be more vigilant

achieves justice for victims

Question 35

s.20 evaluation

NO PLANS IMPLEMENTED

Answer 35

plans to codify and update the law have not been implemented

redrawing the definitions and sentences would make the law more reflection of modern society and easier to understand but this has not been carried out

Question 36

x3 evaluation points for s.18

Answer 36

• maximum sentence jumps to life
• resisting arrest
• misleading language

Question 37

s18 evaluation

MAXIMUM SENTENCE

Answer 37

the maximum sentence jumps to life for s18 even though the injury caused is the same as in s20

it may be fair and justified in the sense that D intended to cause serious harm so should receive a higher sentence

but seems illogical and unfair if we take into account the outcome as the most important factor and the outcome is not necessarily any more serious than in s20 as they both have the same AR

fair if we take the case of Belfon as an example

Question 38

s18 evaluation

RESISTING ARREST

Answer 38

defendants who are resisting arrest and causing GBH or wounding are charged with the same crime as those who intentionally cause serious harm to another person

this isn’t fair because resisting arrest and causing serious harm are not the same offence at all

defendants could be given the same sentence even if they did not intend to cause harm, D only needs to foresee the risk of causing GBH when resisting arrest

eg Morrison

arguably, D should be held responsible for their actions as they still made the decision to resist arrest knowing that there was a risk of causing harm

Question 39

s18 evaluation

MISLEADING LANGAUGE

Answer 39

there are language problems in s20

for example, the verb “cause” is used in s20 but not in the other offences — arguably, all 3 offences in the OAPA should use the same verb to minimise confusion surrounding the offences

“inflict” is used in s20 and there has been debate whether they mean different things or apply in different ways

however, judges have concluded that inflicting and causing GBH amount to the same thing — resolved this issue?

Question 40

extra general points to use

Answer 40

• s18/s20 — Eisenhower defines wounding as breaking two layers of skin which seems too minor given that wounding can form the AR, we would expect it to be equivalent to GBH (serious)
• lack of statutory definitions has enabled judges to be creative and include more details regarding the offences, they can keep case law modern and up to date and fill in gaps (e.g. Burstow, have allowed psychiatric injury to form AR of s18 and s20)

Question 41

ideas for reform

Answer 41

• Law Commission 1993 report contained a draft Criminal Law Bill to deal with language, offence structure and intelligibility
• report on the OAPA produced by the Labour government in 1998 includes a draft bill with new offences; such as reckless serious injury where foresight of serious injury is required and maximum sentence raised to 7 years)

(1998 draft bill never became law)

• 2015 Law Commission report; recommendations to keep assault and battery as two separate offences (threatened assault and battery to be named physical assault), add disease within the definition of injury, create a separate offence of causing minor injury called aggravated assault with a maximum penalty of 12 months
• 2015 report would provide a more coherent set of offences so there would be no overlap or inconsistency between them. the offences would also conform to the principle that D would only be held liable for what they intended or knowingly foresaw
• 2015 report — s18 to become intentionally causing serious injury and only include wounding in s18 if it is a serious injury, s20 to become recklessly causing serious injury