Non Fatal Offences Flashcards
hierarchy of non fatal offences
assault or battery
ABH
GBH
GBH with intent
what are non fatal offences?
offences that do not kill V
there are 5 main non fatal offences
what are the 5 main non fatal offences?
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)
where are the main offences set out?
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
ASSAULT
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
ASSAULT
actus reus
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)
ASSAULT
mens rea
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)
BATTERY
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
BATTERY
actus reus
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)
BATTERY
mens rea
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)
ASSAULT OCCASIONING ABH
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
ASSAULT OCCASIONING ABH
actus reus
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
ASSAULT OCCASIONING ABH
mens rea
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)
WOUNDING OR INFLICTING GBH
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
WOUNDING OR INFLICTING GBH
actus reus
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
WOUNDING OR INFLICTING GBH
mens rea
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)
WOUNDING OR CAUSING GBH WITH INTENT
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
WOUNDING OR CAUSING GBH WITH INTENT
actus reus
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
WOUNDING OR CAUSING GBH WITH INTENT
mens rea
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)
how to answer problem questions…
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
problem questions involving GBH
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…..
x3 evaluation points for assault/battery
- common assault as a general term
- AR and MR correspond
- force is misleading in battery
assault/battery evaluation
COMMON ASSAULT
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
assault/battery evaluation
AR + MR CORRESPOND
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
assault/battery evaluation
FORCE IS MISLEADING
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
x4 evaluation points for s.47
- sentence of 5 years in prison
- MR and AR do not correspond
- wording of OAPA is misleading
- OAPA is out of date
s.47 evaluation
5 YEAR SENTENCE
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
s.47 evaluation
MR + AR DO NOT CORRESPOND
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
s.47 evaluation
WORDING OF OAPA IS MISLEADING
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
s.47 evaluation
OAPA IS OUT OF DATE
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
x4 evaluation points for s.20
- 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
s.20 evaluation
MISLEADING AND UNCLEAR
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
s.20 evaluation
SAME MAXIMUM SENTENCE
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
s.20 evaluation
AR AND MR DO NOT CORRESPOND
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
s.20 evaluation
NO PLANS IMPLEMENTED
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
x3 evaluation points for s.18
- maximum sentence jumps to life
- resisting arrest
- misleading language
s18 evaluation
MAXIMUM SENTENCE
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
s18 evaluation
RESISTING ARREST
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
s18 evaluation
MISLEADING LANGAUGE
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?
extra general points to use
- 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)
ideas for reform
- 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
