Non-fatals Flashcards
bodily autonomy
A central theme to both criminal law and the law surrounding non-fatals is that of bodily autonomy – the right to not have your body interfered with against your will
This is most commonly applied to fatal offences, but it is extended to NF from non-consensual touching all the way to serious injuries
results based offences
All NF are ‘results based’ in that we find the offence in the result of what happens to the victim
In this case harm, and NF’s are ‘ranked’ based on the degree of harm which they cause to the victim and are ranked in a vague ‘ladder’
who can be a victim
To be a victim of a non-fatal offence, you must be human, alive and be independent of the womb/mother
where are most NF offences defined
in offences Against the Person Act 1861
the power to charge someone with assault and battery are found where
S39 Criminal Justice Act (1988)
assault
Any assault involves any conduct by D that, intentionally or recklessly, causes V to apprehend imminent unlawful personal violence.
There is no requirement for there to be physical touching when assaulting someone – if you touch them = battery
The concept of assault is based on apprehension and therefore perception of the victim
unlawful personal violence
Any non-consensual contact with V
This does not have to be extreme, serious or even moderate violence but can merely be low-level violence
There is no requirement for the V to fear anything
apprehension or fear
The V must apprehend that the D is about to cause them immediate personal violence, and it should be noted that apprehension does not equal fear
There can be fear without apprehension, and apprehension without fear
how imminent, is imminent
Threats at ‘some point’ are not sufficient – especially if they are at some non-defined point within the future
Immediacy and imminent threats satisfy the AR
how do you test imminence
objective/part subjective test
subjective part of testing imminence
What facts did the V believe, what did the V believe to be the nature of the offence?
objective part of testing imminence
Based on the facts, whether this is enough to be apprehension of imminent violence is an objective one for the court
indirect assault
It is possible for an assault to be committed indirectly, such as being threatened by a dog or by D to be assaulted by another person
mens rea: intention or recklessness
The defendant needs to be intentional or reckless as to the causing the result (assault)
Established in Venna 1976
The D must also have voluntary conduct and could be aware that their victim was a person
battery
Any conduct by which D intentionally or recklessly inflicts unlawful personal violence upon V
AR - battery
The infliction of unlawful personal violence – with violence simply meaning ‘any unlawful contact’
the right to no interference
“The law cannot define the line between different degrees of violence and therefore prohibits the first stage of it; every person being sacred and no other having a right to meddle in it.
- Blackstone 1984
does battery require physical contact
Unlike assault, which focuses on words and the apprehension of violence – battery will always require some form of physical action
The V does not have to be aware or even notice (sleeping) and it does include the touching of the V’s clothing, as seen in Thomas 1985
indirect touching - battery
It is most common for battery to be carried out via a direct action – hitting with a fist or weapon for example, but it can be indirect
Indirect battery consists of something like throwing, spitting, or a third-party action – or setting a dog or other animal on V
omissions - battery
It is entirely possible to satisfy the AR through omission – as seen in Santana – Bermudez 2004
We know that omissions relate to a duty of care, for battery it is common that the DoC breached will be one of a dangerous situation
mens rea - battery
Similarly, to battery, the D must have intent or recklessness as to their actions
They must also have acted, knowing that the person was a person
relationship between assault and battery
Technically assault and battery are two offences which can be charged separately
Entirely possible to have one without the other
However, they are different offences and please remember that assaulting someone requires NO physical touch, where battery does
lawful chastisement
Controversial, available to parents, only for battery at a maximum and must be reasonable force
consent
Consensual touching, being in society, same rules as standard consent defence
what section is assault occasioning actual bodily harm
S47
assault occasioning actual bodily harm sentence
liable to imprisonment for not more than five years
elements of ABH offence
Assault/battery + V suffering ABH = liability for S47
assault or battery
The use of the term assault in the definition should be read to mean assault or battery and the base elements remain the same as the original offences
Mostly refers to a battery which then occasions ABH, but a base offence of assault is possible – for example if D caused V to apprehend violence and V hurts themselves escaping
occasioning
Has been interpreted to mean same as ‘causing’
Once proving that there was an assault or battery – the prosecution then must show this cause actual bodily harm
The conduct of the D must therefore cause 2 results; assault/battery and ABH
actual bodily harm
Not defined in the OAPA, so the courts have used the literal approach – defining it in a way consistent with the common meaning
There is a clear distinction from battery in that the injury caused must be more serious
injuries - ABH
ABH will not be found where V’s injury is ‘transient or trifling’ Tv DPP (2003)
However, ABH will be permitted to include ‘any hurt or injury that is calculates to interfere with the health or comfort of V’ Miller (1954)
give 5 examples of definite ABH injuries
Scratches, grazes, abrasions
Bruising, swelling
Temporary loss of consciousness T v DPP [2003]
Cutting a substantial amount of hair DPP v Smith [2006]
Psychiatric injury
psychiatric injury under S47
Will be enough to warrant ABH when it manifests itself as a recognised psychiatric condition
Psychological harm will never amount to ABH
ireland and burstow (1998)
D was making silent phone calls which cause V1 to suffer psychiatric harm and V2 to be diagnosed with severe depression
Through CC, CoA and the HoL the appeals from the D were dismissed – ruled that psychiatric injury is capable to amounting to actual, if not grievous bodily harm
mens rea - ABH
The only requirement for S47 are those which relate to the base offence of assault or battery – therefore intention or recklessness to causing imminent violence, or to making contact with V
There is no additional MR to the result of ABH – same MR as to making contact – that contact will then result in ABH
do you need to force the harm of ABH
R v Roberts [1972] established this further:
A taxi driver assaulted the V, which led to the V jumping out of the car and sustaining grazes and concussion. D claimed that he did not foresee the risk and therefore should avoid liability.
It does not matter that you did not foresee ABH as per, just that you had the MR of Assault/Battery. ABH is an additional result
what section is wounding or inflicting grievous bodily harm
S20 OAPA 1861
AR 20 - wounding
For there to be a wound – defined in the legal sense, the V’s skin must be broken
Every layer of the skin must be broken - if a scratch breaks the surface of the skin, will not amount to a wound
Similarly, an injury which doesn’t break the skin – such as a broken bone with no impact through the skin will not be a wound
AR S20 - inflicting GBH
With there being no statutory definition as to the meaning of GBH, the courts have defined it as ‘serious bodily harm’ Smith [1961]
Therefore, V’s injuries should be more than ABH
GBH does not require injuries to be life threatening or permanent
A mere loss of consciousness is likely sufficient
Serious psychiatric injuries – as long as it is a recognized psychiatric condition
When identifying harm, the court will look at the totality; the sum of all of V’s injuries
wounding or inflicting GBH
There are ways in which these likely overlap but just as likely is that they won’t overlap and therefore it is important to define which is which
Broken bones – GBH not wound
Cut/puncture – wound and not GBH
MR of S20
Regardless of whether the offence is wounding of inflicting GBH, S20 requires that the D act maliciously – interpreted to mean intentionally or recklessly
There is no need for the D to intent or foresee the full extent of the harm
They must merely see that some bodily harm may be caused
Diplock LJ, Mowatt 1968
“it is quite unnecessary that the accused should have foreseen that his unlawful act might cause psychical harm of the gravity described in s20…it is enough that he should have foreseen that some physical harm, to some person…”
S20 and S47
With both offences reaching the same sentence of 5 years, there is an argument of their existence
Generally, a S20 includes greater harm or culpability and will reflect a greater sentence but the lack of consistency demonstrates an issue with this area
What section is wounding, or causing GBH w/intent
S18 OAPA 1861
Wounding, or causing GBH w/intent
S18 makes illegal the D who with intention to cause GBH or resist apprehension etc., maliciously wounds and/or causes GBH
what is the sentence for Wounding, or causing GBH w/intent
life imprisonment
AR of S18
Identical to S20 – D’s conduct must have cause V to suffer either a wound or GBH
No need to prove assault or battery AR’S at this point
MR of S18 - intention
The MR is only satisfied by intention and recklessness is not sufficient
D intends if they a) act in a way to bring about a result b) acts with foresight that the result is a virtually certain consequence of their action
An intent to simply wound is not enough, it must be an intent to cause GBH
MR - malice
Requires that D intended or foresaw the possibility of harm – two cases where this is key in S18 cases
1) Where the D intents to cause GBH
2) Where D does not intent GBH but does intent to resist lawful apprehension
intending to cause GBH
The word maliciously does not add anything – intending to cause GBH incorporates malice and therefore does not need to be discussed separately
resisting lawful apprehension
The malicious element is central here
The D must foresee at least some bodily harm and the foresight of GBH
So, when resisting apprehension, maliciously is interpreted to also foresee GBH
laddering
Due to the nature of these offences, if a D is charged with a more serious offence, the less serious options will be there as alternative
Analysis of liability will focus on the most serious potential liability, working down the ladder if needed
conduct focussed OAP
Focused on the conduct of D, rather than harm and created independently to recognise harmful circumstances of to react to political or social motives
what is the different between conduct and research focused based offences
Results based on offences in NF sphere are those which we have discussed previously
We look for the harm for the victim in the result of the offence
Conduct based offences look at the conduct of the D
why create conduct based
They are created independently by common law and judges, and are realistically used to fill the gaps between harm-based offences
Therefore, where more typical NF offences can be laddered the harm in these cases area based on how the act is carried out and therefore the laddering does not need to exist
sentencing and conduct based
Rather than have laddering, it is down to the harm and culpability involved of the D which will determine the seriousness of these offences
