Non-Fatal Offences Against the Person

Question 1

Common Assault
Section 39 Criminal Justice Act 1988

Mens Rea

Answer 1

The suspect must either:
*Intend; or
* Be subjectively reckless (i.e.
foresees the risk - yet takes the
risk anyway)
…to cause the victim to apprehend
immediate unlawful violence.

Question 2

Actus Reus

Answer 2

The suspect carries out any act
(NB — not an omission)
that causes another
to apprehend immediate
unlawful violence
— i.e. force.

Is A Result Required?
Yes
The victim must apprehend
the use of immediate unlawful violence.

Is The Use Of Force Required?
No

Question 3

Apprehension

Answer 3

Definition Of An Apprehension
An apprehension
simply means that the victim
has formed a belief.

The Nature Of The Victim’s
Apprehension?
The victim must
apprehend (i.e. believe)
-that they will be subjected to
immediate unlawful violence.

Focus Upon What Is Going On In
The Victim’s Head
What did the victim
subjectively believe
was coming?

Question 4

Example
No Assault Due To A Lack Of The
Apprehension Of Immediate Unlawful
Violence

Answer 4

X swings a punch from behind their
intended victim Y - which misses.

Y Does not realise the
punch was thrown

X swings a punch from behind their
intended victim Y - which misses.

Y Has not apprehended the
immediate use of unlawful
violence against them

Question 5

Example
Threats To Shoot A Victim With An Imitation
Firearm

Answer 5

Offence
If the victim subjectively believes that the gun is real
and is capable of carrying out the threat to shoot
them — them
* The victim will apprehend an act of immediate
unlawful violence. and
* An assault will be committed.
Logdon v DPP(1976) Crim LR 121.

No Offence
If the victim subjectively believes that the gun
is an imitation and is incapable of carrying
out the threat to shoot them — then:
* The victim will not apprehend an act Of
Immediate unlawful violence; and
* An assault will not be committed.

Need The Violence Apprehended
Be Certain To Arise?
No
It is only necessary to establish that the victim
apprehended immediate unlawful violence
i.e. they foresaw the possibility Of it coming
it need not be a certainty.
R v Ireland (1998) AC 147

Is It Necessary To Prove Fear?
No
It is not necessary to go on to establish
that having foreseen the risk
- the victim was actually fearful.

Question 6

The Nature Of The Acts
That Can Cause The
Apprehension Of The
Use Of Immediate
Unlawful Violence

Answer 6

Sources Of Apprehension?
*Words - e.g. oral threats, email, text etc;
*Silence - e.g. nuisance calls; or
*Conduct - e.g. physical gestures, lunging at
victim, raising a fist etc.

Question 7

Immediate

Answer 7

Scope Of Immediate?
The apprehension
of unlawful violence
within “a minute or two”.
R v Ireland (1998) AC 147

Threats Down The Phone Many
Miles Away From The Victim?
No
It will not be possible for
unlawfuI violence to be
foreseen in the immediate
future.

Threats Shouted From The Street
To A Victim Inside A House
Yes
It will be possible for
unlawful violence to be
foreseen in the immediate
future.

Question 8

Unlawful

Answer 8

The Nature Of The Violence
Apprehended?
The immediate violence
apprehended
must be unlawful in nature.

Example — No Assault
A person resisting a legitimate
arrest might apprehend that an
officer may subject them to the use
immediate force in executing their
duties.
However - the force apprehended
would be lawful in nature.

Question 9

Conditional Threats

Answer 9

Conditional Threats
- Not An Assault
“If it wasn’t for…” = no assault.
“I’d chin you if there wasn’t a copper
over there”
Turberville v Savage (1669) 1 Mod R3.

Assault
“If you don’t leave I will…” = assault.

Question 10

Checklist For
Common Assault

Answer 10

Step 1
Did the suspect foresee that the victim
would apprehend the use of immediate
unlawful violence
— i.e. was intent
or subjective recklessness
present?

step 2
Did the victim actually apprehend
the use of immediate unlawful violence?
Ask yourself- “what went through the victim’s
head”— did they foresee the possibility of
immediate unlawful violence coming?

Step 3
Was the
immediate violence apprehended
unlawful?

Step 4
Was the threat
capable of being carried out immediately —
i.e. within a couple of minutes?

Question 11

Battery
Section 39 Criminal Justice Act 1988

Mens Rea For
Battery

Answer 11

Mens Rea
The suspect must either:
* Intend, or
* Be subjectively reckless - (I.e. foresees
the risk yet takes the risk anyway)
..that some unlawful force will be laid
upon the victim.

Need The Suspect Foresee The
Extent Of Injury Caused By The
Laying For Force?
No

Question 12

Actus Reus For
Battery

Answer 12

A battery involves the
result of unlawful force
being laid against the victim
via physical contact…
without the result
of injuries amounting to
actual bodily harm being suffered
by the victim.

Will Psychiatric Injury Inflicted Over
The Phone Constitute A Battery?
No
As physical contact is required to commit.

Means 1
Directly
A applies force to B.

Means 2
Indirectly
A applies force to B who knocks into C.
Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890

False Assurance By Person
Searched They Had No Sharps On
Them
Searching officer stabbed themselves
on a hypodermic needle
= indirect laying of force
DPP v Santa-Bermudez (2003) EWHC 2908

Question 13

Examples Of Injuries
Consistent With A
Battery

Answer 13

Examples
* Minor bruising or swelling — e.g. black eye;
* Superficial cuts;
* Scratches; and
* Grazes etc.

Question 14

Actual Bodily Harm
Section 47
Offences Against the Persons Act 1861

Mens Rea For Actual
Bodily Harm

Answer 14

Mens Rea
The suspect must either:
* Intend, or
* Be subjectively reckless - (I.e. foresees
the risk yet takes the risk anyway)
..that some unlawful force Will be laid
upon the victim.

Question 15

Actus Reus For
Actual Bodily Harm

Answer 15

2 Elements
*The result of unlawful force being laid
against the victim - via physical contact; and
*The additional “bolt on” result of injuries
amounting to actual bodily harm being
suffered by the victim.

Need The Suspect Foresee The
Risk Of ABH Being Caused?
No
If they foresaw the risk
that any unlawful force would be applied
and ABH results
- the offence is committed.

Question 16

Definition of Actual
Bodily Harm
R v Chan-Fook (1994) 1 WLR 689

Answer 16

Any:
* Hurt; or
*Injury
.calculated to interfere with the victim’s:
* Health; or
* Comfort.

Question 17

The Nature Of The
Harm Suffered?

Answer 17

Nature?
The definition of actual bodily harm - includes
both:
*Physical harm; and
*Shock and mental injury.

Question 18

Duration Of The
Harm
R v Donovan [19341 25 cr App Rep 1, CCA

Answer 18

Duration?
The harm caused can be either:
* Permanent; or
* Temporary - e.g. a momentary loss of
consciousness, or the cutting Of hair or
nails
but must not be transient or trifling.

Question 19

Examples Of Actual
Bodily Harm

Answer 19

• Loss or breaking of teeth:
• Temporary loss of sensory functions:
• Extensive or multiple bruising;
• Minor fractures and cuts requiring stitches:
• Psychiatric harm going beyond fear, distress, or panic; and
• Cuttin hair or nails without consent — DPP v Smith (2006)
  EWH894

Question 20

Checklist For Battery
& Actual Bodily
Harm
4 steps

Answer 20

Step 1
Did the suspect foresee
that some unlawful force
would be laid against the victim
— i.e. was intent or subjective recklessness
present?

step 2
Was force laid
against the victim?

step 3
Was the force laid unlawful?
If yes —
at least a battery
has been committed.

Step 4
Did the unlawful force cause the additional “bolt
on” result of actual bodily harm?
* If no — the offence of a battery has been
committed.
* If yes — the offence of actual bodily harm has
been committed.

Question 21

Effect Of Consent

Answer 21

Consent Negates Assault
Offences
If consent of the victim
is established
— no assault offence
will be committed.

Question 22

Issues The Court Must
Consider If Consent Of
The Victim Is Raised?
2 steps

Answer 22

Step 1
Was express or implied consent
actually provided by the victim?
*If no a— no defence.
* If yes — proceed to step 2.

step 2
Is the consent invalidated
by public policy?
*If no the defence of consent is
established.
*If yes — no defence.

Question 23

When Will The Consent
Be Invalidated By
Public Policy?
R v Brown (1994) 1 AC 212

Answer 23

You cannot consent
to anything beyond transient harm
unless there is a good reason
for allowing the plea of consent.

Question 24

Factors That Will Be
Considered In
Establishing Good
Reason?
3 factors

Answer 24

Factor 1
The vulnerability
of the party who provided
their consent.

Factor 2
The dangerousness
of the behaviour.

Factor 3
The practical consequences
of the behaviour.

The Decision In Brown
No good reason
to consent to the inflicting of
serious sado-masochistic injuries
on the grounds of protection of health

Question 25

Consensual Branding
Of Buttocks By A
Spouse

Answer 25

Good Reason Was Established
The branding was recognised as a
form of tattooing
and that consenting behaviour
between husband and wife
was not a criminal matter.
R v Wilson (1997) QB 47

Question 26

Contact Sports &
Good Reason To
Consent To Injury

Answer 26

The Contact Sport Must Be
Properly Conducted
Unauthorised prize fight
injuries
cannot be consented to
— as this is not properly
conducted contact sport.

Question 27

Conduct That Goes
Beyond Implicit
Consent In Contact
Sports
R v Barnes (2004) EWCA Crim 3246

Answer 27

Criminal Conduct
Implicit consent
will not extend to violence
used in a sporting event
that falls outside the remit of the rules of the
game so as to be categorised as criminal
e.g. an off the ball incident.

5 Factors
The determination of whether
such action would be criminal
is a question of fact
taking into account 5 factors.

5 Factors
. The sport.
* The level at which it was played.
* The nature of the act.
* The extent of the risk of injury.
* The defendant’s state of mind - (was it calculated).

Question 28

Health Care
Professionals And
Consent

Qualified Healthcare
Professionals
Conducting Legitimate
Treatments

Answer 28

Good Reason — Consent Valid
A patient’s consent
to a qualified health care
professional
carrying out a legitimate treatment
to treat a condition
- will be a good reason for the
laying of force — i.e. to cure a condition.

Question 29

Qualified Healthcare
Professionals
Conducting An
Unnecessary
Treatment

Answer 29

No Good Reason — Consent
Invalid
A patient’s consent
to a qualified health care professional
carrying out an unnecessary treatment
to treat a condition
will not be a good reason for the
laying of force.
R v Tabassum (2000) 2 Cr App R 328.

Question 30

Suspended Healthcare
Professionals Carrying
Out A Legitimate
Treatment But Failing
To Tell The Patient Of
Their Suspension
R v Richardson (1999) 0B 444

Answer 30

Good Reason — Consent Valid
The consent provided will
remain a genuine consent and
the force laid will not constitute an assault.
There is no fraud as to the health care
professional’s identity,
nor the nature of the act performed.

Question 31

Bogus Healthcare
Professionals Who
Mislead The Patient As
To Having The
Necessary
Qualifications

Answer 31

Consent Invalid
The patient’s consent
will have been obtained fraudulently
and it will not be a true consent.
This is because there was a fraud
as to the quality of the act performed.

Question 32

Consent To Serious
Harm For The
Purpose Of Sexual
Gratification
Section 71 (1)-(3) Domestic Abuse Act 2021

Answer 32

In determining whether a defendant - who inflicts any
of the following forms of serious harm upon a victim.
* Grievous bodily harm within the meaning of section
18 OAPA 1861;
* Wounding within the meaning of section 20 OAPA
1861; or
* Actual bodily harm within the meaning of section 47
OAPA 1861…

is guilty of any of the following relevant offences:
* Section 18 OAPA 1861;
* Section 20 OAPA 1861; or
* Section 47 OAPA 1861
.it is not a defence that the victim consented to the
infliction of serious harm for the purpose of sexual
gratification.

This offence gives
statutory recognition
to the position as previously established
in R v Brown [1985] Crim LR 212…
.that consent to the
infliction of serious injuries
for the purpose of sexual gratification
will not provide a defence.

Question 33

Does It Matter For
Whose Sexual
Gratification The
Harm Was Inflicted?
Section 71 (5) Domestic Abuse Act 2021

Answer 33

No
It does not matter whether the serious harm was
inflicted for the purpose of obtaining sexual
gratification for the benefit of either:
* The defendant;
* The victim; or
* Some other person.

Question 34

Exception?
Section 71 (4) Domestic Abuse Act 2021

Answer 34

The rule negating consent does not apply in the
case of an offence under either:
* Section 20 OAPA 1861; or
* Section 47 OAPA 1861.
where both of 2 steps are satisfied.

Step 1
The serious harm either:
* Consists of; or
* Is a result of
..the infection of the victim with a sexually
transmitted infection in the course of sexual activity

Step 2
The victim consented to the sexual activity in either:
* The knowledge; or
. The belief
.that the defendant had the sexually transmitted
infection.

The exception
gives statutory recognition
to the position
as previously established in
R v Dica [2004] EWCA Crim 113.

Question 35

Wounding Or
Inflicting Grievous
Bodily Harm
Section 20 OAPA 1861

Mens Rea

Answer 35

Maliciously
The suspect either:
* Intended
*Was subjective recklessness
.that at least some harm
would be caused.

Does The Defendant Need To
Foresee The Degree Of Harm
That Is Actually Caused?
No
It is only necessary to prove that the suspect
foresaw a risk of some harm
and nevertheless proceeded to use force
against the victim.

Question 36

Actus Reus

Answer 36

Unlawfully either:
*Wound; or
*Inflict GBH;
..upon any person either with or without a
weapon or instrument.

Question 37

Wounding

Answer 37

Definition
Wounding involves either:
* Breaking the continuity of the whole of the
outer skin — i.e. both the dermis and
epidermis; or
* Breaking the inner skin within the cheek, lip or
urethra.

Bruising
Rupturing blood vessels
(i.e. bruising)
will not constitute wounding.

Question 38

Inflict Grievous
Bodily Harm

Answer 38

Definition Of Grievous Bodily
Harm
Serious harm
or
Really serious harm
R v Saunders (1985) crim LR 230

What Will Constitute Really
Serious Harm?
CPS
Charging Standards

Category 1
Broken or displaced
limbs or bones.

Category 2
Injuries resulting in permanent:
*Disability;
*Loss of sensory function; or
*Visible disfigurement.

Category 3
Injuries that cause either:
* Substantial loss of blood (necessitating a blood
transfusion);
* Lengthy medical treatment; or
* Lengthy incapacity.

Question 39

HIV Infection

Answer 39

Will Infection With HIV
Constitute Really Serious Harm?
The deliberate infection
of a sexual partner with HIV
can amount to really serious harm for the
purpose of establishing GBH.
R v Dica (2004) EWCACrim 3190

Question 40

Can Consenting To
Unprotected Sex With A
Person Who Knows They
Are HIV+ But Fails To
Disclose This Fact, Form
A Defence To Causing
Really Serious Harm
Through Infection?
R v Konzani (2005) EWCA crim 706

Answer 40

No — Not Informed Consent
The victims had consented to
unprotected sexual intercourse.
They had not given informed consent
to infection with HIV.
Consent will only form a defence
if it is informed consent
to the passing on of the infection.

Question 41

Inflict

Answer 41

Definition
It is necessary to prove that the
defendant’s conduct
brought about
the harm caused.

Question 42

Wounding Or Inflicting
Grievous Bodily Harm
With Intent
Section 18 OAPA 1861

Mens Rea

Answer 42

Maliciously
With the additional intent to either:
*Cause GBH to anyone;
* Resist the arrest Of any person; or
* Prevent the lawful apprehension or detainer of
any person.

Question 43

Actus Reus

Answer 43

Unlawfully either:
*Wound; or
.Cause GBH;
.upon any person.

Question 44

Similarities &
Differences To
Section 20 Offence

Answer 44

The section 18 offence is the same as a section
20 offence subject to the added requirement that
the assault was committed with the intent to
either:
*Cause GBH to anyone;
* Resist the arrest Of any person; or
* Prevent the lawful apprehension or detainer of
any person.

Question 45

Checklist For Wounding
Or Inflicting Grievous
Bodily Harm Both With
& Without Intent

Answer 45

Step 1
Did the suspect act maliciously
— i.e. did they foresee the risk
of at least some harm being caused
by their actions?

step 2
Did the suspect cause the result of either:
*Wounding the victim; or
* Inflicting I causing grievous bodily harm
(serious or really serious harm) upon the victim?

Step 3
Were the actions of wounding or inflicting of
grievous bodily harm unlawful?
* If no — no offence.
* If yes at least the offence of wounding or
inflicting grievous bodily harm (section 20) has
been committed.

Step 4
At the time of the act - did the suspect intend to
either:
* Cause GBH to anyone;
* Resist the arrest of any person; or
* Prevent the lawful apprehension or detainer of
any person.

*If no — the offence of wounding or
inflicting grievous bodily harm (section
20) has been committed.
*If yes — the offence of wounding or
causing grievous bodily harm with intent
(section 18) has been committed.

Question 46

Assault With Intent
To Resist Arrest
Section 38 OAPA 1861

Answer 46

It is an offence to assault any person - with the intent to
either.
* Resist; or
* Prevent
the lawful apprehension or detainer (i.e. arrest) of either:
* Themselves; or
* Another
for any offence.

The Nature Of The Assault?
The assault upon the person making the
arrest can be either:
*A common assault; or
*A battery.

The Arrest - Who Is Covered?
Any person making an arrest - if they are
acting lawfully - including either:
* Police officers;
*Store detectives; or
*Members of the public.

The Arrest Power Exercised Must
Be Lawful
It is irrelevant
whether the person arrested
is actually innocent
or believes their innocence.
All you have to show that the arrest was lawful.
R v tee (2000) Cnm LR 991

The Mens Rea
The defendant must have both:
* The mens rea for the assault — i.e. intent or
subjective recklessness; and
*The intent to resist or prevent the arrest of
themselves or another person.

Question 47

Checklist For Assault
With Intent To Resist
Arrest
5 steps

Answer 47

Step 1
Has the suspect
assaulted (common assault or battery)
any person (NB not just police officers)
making an arrest?

Step 2
Did the suspect know
that the person assaulted
was making an arrest?

Step 3
Did the suspect
have the mens rea
for the assault?

Step 4
Did the suspect intend to either
* Resist arrest, or
* Prevent the arrest,
.0f either:
* Themselves, or
* Another?

step 5
Was the
arrest lawful?

Question 48

Assaulting Police
Officers
Section 89 Police Act 1996

Answer 48

It is an offence to either:
* Intentionally, or
* Subjectively recklessly
. …assault either:
* A constable in the lawful execution Of their duty: or
* A person assisting a constable in the lawful execution Of
their duty.

Question 49

The Constable Must
Have Been Acting In
The Lawful Execution
Of Their Duty At The
Time Of The Assault

Answer 49

No Offence
No offence Will be committed If the officer was acting
unlawfully at the time of the assault because Of:
* An unlawful arrest;
* Using unlawful force, or
* Unlawfully trespassing at the time of the assault.

Offence
If the initial arrest is unlawful
— the offence will still be committed
if the suspect later assaults
a Custody Officer
who is lawfully performing
their separate functions.
DPP v L 11999) Cnm LR 752

Is It Necessary To Prove That The
Defendant Knew Or Suspected That
The Person Was A Police Officer
Executing Their Duties?
No
Need only prove that they were executing
their duties and that the assault took place
at the time of doing so.

Who Can Be The Victim Of The
Assault?
Either:
*The officer executing their duties; or
*Another person who is assisting the
officer in executing their duties.

Question 50

ADDITIONAL LEARNING POINT - LAWFUL EXECUTION OF DUTY

Answer 50

No offence will be committed if the officer is acting unlawfully at the time of the assault or obstruction.
Watch out for questions involving the officer making an unlawful arrest, using unlawful force, or an officer unlawfully trespassing at the time of the assault – no offence.

Watch out for questions where the initial arrest was unlawful and the detainee later goes on to assault the Custody Officer when they are brought into custody – an offence will have been committed despite the fact that the initial arrest was unlawful as the Custody Officer was lawfully performing their separate functions – DPP v L [1999] Crim LR 752.

Question 51

Obstructing Police
Officers
Section 89 Police Act 1996

Answer 51

• It is an offence to either
• Intentionally; or
• Subjectively recklessly
  ..either:
• Resist;
• Wilfully (intentionally)
  obstruct…
  either
• A constable in the lawful
  execution of their duty: or
• A person assisting a
  constable in the lawful
  execution of their duty.

The Constable Must Have Been
Acting In The Lawful Execution
Of Their Duty At The Time Of The
Resistance Or Obstruction
No offence
will be committed if the officer
was acting unlawfully
at the time of the resistance or obstruction.

Definition Of Resist
Physically oppose.

Definition Of Wilfully Obstruct
Making it more difficult
for a constable to carry out their duties.

Question 52

Examples Of Wilful
Obstruction

Answer 52

Warning Other Drivers About
Mobile Speed Cameras
Offence if the vehicles warned
were either
committing or about to commit
the speeding offence.
If the vehicle warned was
actually speeding - no offence.

Deliberately Drinking Alcohol
Before A Breath Test
Offence

Providing Misleading Information
To The Police
Deliberately providing
misleading information
- offence.
Inadvertently providing
misleading information
- no offence.

Question 53

Refusals To Answer
Questions To The
Police

Answer 53

General Rule
No offence

Exception
Offence - if the
person is under a
duty to provide
information — rare!

Question 54

Assaults On
Emergency Workers

Section 1
Assaults On Emergency Workers
(Offences) Act 2018

Answer 54

Definition?
An offence of either:
* Common assault; or
* Battery
* …will be aggravated - if it is committed against an
emergency worker whilst they were exercising their
functions as such a worker.

Question 55

When Will An
Emergency Worker
Be Exercising Their
Functions?

Answer 55

2 Junctures
An emergency worker will be deemed to be exercising
their functions — when the assault or battery takes
place — if it occurs either:
* Whilst they are performing their functions at work;
or
* Whilst they are not at work — but are carrying out
functions, which had it been work time, would
constitute exercising the functions of an emergency
worker.

2 Natures
The nature of the emergency work - can be
either:
*Paid; or
* Unpaid.

Question 56

Categories Of
Emergency Workers
Protected By The
Offence?
9 categories

Answer 56

Category 1
A constable.

Category 2
A person other than a constable - who either:
* Has the powers of a constable;
* Is employed for police purposes; or
* Is engaged to provide services for police
purposes.

Category 3
National Crime Agency
Officer.

Category 4
A prison officer.

Category 5
A prisoner custody officer
— who is performing
escort functions.

Category 6
A person
employed or engaged
to provide
fire or fire and rescue
services.

Category 7
A person
employed or engaged
to provide
search or rescue
services.

Category 8
A person other than a prison officer
— who is employed or engaged
to carry out functions which correspond
to those of a prison officer
- at any custodial institution.

List Of Custodial Institutions
. Prisons;
* Young offender institutions;
* Secure training centres;
* Secure colleges;
* Remand centres;
* Removal centres;
* Short term holiday facilities; or
* Pre-departure accommodation.

Category 9
A person employed or engaged to provide:
* NHS health services; or
* Services in support of the provision of NHS health services
whose role involves face to face interaction - With either.
* Individuals receiving such services. or
* Other members of the public.

Question 57

Threats To Kill
Section 16 OAPA 1861

Answer 57

A person commits an offence if they without
lawful excuse - make a threat to kill to either a:
* Person; or
* 3rd person
.intending the other to fear the threat would be
carried out.

Question 58

Without Lawful
Excuse

Answer 58

Who Has A Lawful Excuse?
A police firearms team would have a lawful
excuse to threaten to kill an armed hostage-taker
in their sights if they did not come peacefully.
A person acting in lawful self-defence.

Question 59

How Can The Threat
To Kill Be Made?

Answer 59

By Any Means
In person,
via the phone, email,
letter, text etc.

Question 60

Who Can The Threat
Be Directed
Towards?

Answer 60

The Threat Need Not Be To Kill The
Person Who Hears The Threat
A tells B they intend to kill B.
A tells B they intend to kill C.

Question 61

Threats To Pregnant
Mothers To Kill Their
Unborn Child
R v Tait (1990) 1 QB 290

Answer 61

Threat To Kill The Unborn Child
In The Womb Prior To Its Birth
No offence
-as the foetus is not
-a reasonable person in being
at that juncture.

Threat To Kill The Unborn Child
Once It Is Born
An offence
will have been committed.

Question 62

When Is The Offence
Complete?

Answer 62

Intent Offence
The offence is complete once
the threat is made
with the intention that
the person receiving it
would fear that that
the threat would be carried out.

No Result Is Required
The threat does not have to be
believed by the other person
The threatened action (i.e. the
killing) does not need to occur.

Question 63

Checklist — Threats
To Kill

Answer 63

Step 1
Did the accused make a
threat to kill either the
recipient of the threat
or a 3rd party?

Step 2
Was the purpose of making the threat
the intention to cause the recipient of the threat
to fear that the threat will be carried out?
NB — There is no need for the result
of the threat being carried out
or the threat to cause fear.

Step 3 - Defence
Did the accused have a lawful excuse for making
the threat?
* If no — guilty.
* If yes — no offence.

Question 64

Strangulation Or
Suffocation
Section 75A Serious Crime Act 2015

Answer 64

An offence will be committed by a person who either:
* Intentionally strangles another person; or
* Does any other act to another person that both:
* Affects the person’s ability to breathe; and
* Constitutes a battery.

Question 65

The Definition Of
Strangulation Or
Strangles?

Answer 65

Strangulation
and
strangles
are not defined
under the act
and have their
ordinary meaning.

Question 66

The Definition Of A
Battery?

Answer 66

Battery
has the same meaning
as the offence of battery
under
Section 39 Criminal Justice Act 1988.

Question 67

Defence — Consent
Section 75A(2)&(3) Serious Crime Act 2015

Answer 67

It is a defence for the defendant to show that the
person consented to either:
*The strangulation; or
* Other act which affected their ability to breathe
which constitutes a battery.
unless (i.e. no defence will apply) if both.

.the person suffers serious harm as a
consequence of either:
*The strangulation; or
* Other act which affected their ability to breathe
which constitutes a battery…

.and the defendant either:
* Intended to cause serious harm to the person;
or
* Was reckless as to whether the person would
suffer serious harm.

Question 68

The Effect Of
Consent To The Act?

Answer 68

The offence gives recognition
to the position as previously established in
R v Brown [1993] 2 WLR 556
— i.e. that consenting to an act
that causes no more than a battery
will provide a valid defence.

Question 69

When Will The
Consent Defence
Succeed?

Answer 69

Put simply — the consent defence will be
successful, and no offence will be committed - if
both:
* The party subject to the strangulation or other
act that affects their ability to breathe
consents to the act; and
*The consenting party does not suffer serious
harm - (i.e. the act causes no more than a
battery).

Question 70

What If The
Consenting Party
Does Suffer Serious
Harm?

Answer 70

If the strangulation or act does cause serious harm to
the consenting party — there Will be no defence — even
if consent was present — provided the defendant had
the accompanying mens rea to cause serious harm —
i.e. they also either:
* Intended to cause serious harm to the person; or
* Was reckless as to whether the person would suffer
serious harm.

Question 71

What If The Defendant
Intended To Only Cause
A Battery To The
Consenting Party, But
They Actually Caused
The Consenting Party
Serious Harm?

Answer 71

If the prosecution
cannot also prove
the accompanying
intent or recklessness
to cause serious harm
-then the mens rea element will be absent
and the defence will succeed.

Question 72

Definition Of Serious
Harm?
Section 75A(6) Serious Crime Act 2015

Answer 72

Serious harm is defined as either:
* Actual bodily harm as defined by section 47 of the
OAPA 1861;
* Grievous bodily harm as defined by section 18 of the
OAPA 1861
* Wounding as defined by section 18 of the OAPA 1861.

Question 73

Offences Committed
Outside The United
Kingdom
Section 75B Serious Crime Act 2015

Answer 73

It is an offence for either:
*A national of the United Kingdom; or
*A person habitually resident in England and
Wales
.to commit an act outside the United Kingdom
- which would constitute an offence under
section 75A, if done in England and Wales.

Question 74

Definition Of A
United Kingdom
National?

Answer 74

Category 1
British citizen

Category 2
British national
(overseas).

Category 3
British overseas
territories
citizen

Category 4
British overseas
citizen

Category 5
British protected person
within the meaning
of the act

Category 6
British subject
as defined under the
British Nationality Act 1981

Question 75

Checklist For The
Section 75B Offence
3 steps

Answer 75

Step 1
The offender is either:
*A UK national; or
* Habitually resident in England and Wales.

step 2
The offender
commits a section 75B offence
in a country or territory
outside
the UK.

Step 3
The section 75B offence
committed outside
the UK
— is equivalent to
the section 75A offence.