non-fatals continued

Question 1

Assault

Answer 1

intentionally or reckless causing V to apprehend imminent unlawful personal violence

Question 2

Battery

Answer 2

any conduct by which D, intentionally or recklessly, inflicts unlawful personal violence upon V

Question 3

the difference between assault and battery

Answer 3

AR – one involves touching w/out consent and one involved the imminent fear of touching

Question 4

assault occasioning actual bodily harm

Answer 4

s47 OAPA 1861

Question 5

s47

Answer 5

or ABH is a statute based offence, from the Offences Against the Person Act 1861
 “Whoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be liable to imprisonment for not more than five years”

Question 6

elements of the offence

Answer 6

Assault/Battery (we call this a base offence)
\+
V suffering ABH as a result 
= 
Liability for s47

Question 7

assault or battery

Answer 7

• 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

Question 8

occasioning

Answer 8

• Has been interpreted to mean exactly the same as ‘causing’
• Once proving that there was a an assault or batter – the prosecution then must show that this caused actual bodily harm
• The conduct of the D must therefore cause 2 results; Assault / Battery and ABH

Question 9

actual bodily harm

Answer 9

• 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 – but to what extent?

Question 10

harm under s47

Answer 10

• Trying to understand what is meant by harm has been a job for the judges who have, throughout case developments declared a few ways of describing injuries which come under S47

Question 11

injuries

Answer 11

• 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 calculated to interfere with the health or comfort of V’ Miller [1954]

Question 12

some (non-exhaustive) injuries

Answer 12

• Unhelpfully, there is no grand list of what constitutes an injury but the following have been defined as ‘definitely’ ABH:
• 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

Question 13

psychiatric injury under s47

Answer 13

• Psychiatric injury is a considered injury as a result of s47, and is applied with care
• However, psychiatric injury will be enough to warrant ABH when it manifests itself as a recognized psychiatric conditions
• However, psychological harm will never amount to ABH

Question 14

ireland and burstow (1998)

Answer 14

• D was making silent phone calls which caused V1 to suffer psychiatric harm and v2 to be diagnosed with severe depression
• Throughout CC, CoA, and HoL the appeals from the D were dismissed – ruled that psychiatric injury is capable to amounting to actual, if not Grievous Bodily Harm

Question 15

Mens Rea

Answer 15

• 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

Question 16

do you need to foresee the harm of ABH

Answer 16

• 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

Question 17

s20 OAPA 1861: wounding or inflicting grievous bodily harm

Answer 17

”whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without a weapon or instrument shall be guilty…”

Question 18

AR s20- wounding

Answer 18

• 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

Question 19

ar s20- inflicting GBH

Answer 19

• 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 (more server than ABH) will also be acceptable – as long as it is a recognized psychiatric condition
• When identifying harm, the court will look at totality; the sum of all of V’s injuries

Question 20

wounding or inflicting GBH

Answer 20

• There are ways in which these likely overlap (e.g D stabbing V in the stomach) 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 – wound and not GBH
• It is important to be able to differentiate the two

Question 21

MR of s20

Answer 21

• Regardless of whether the offence is wounding or inflicting GBH, s20 requires that the D act maliciously – interpreted to mean intentionally or recklessly
• There is no need for the D to intend or foresee the full extent of the harm
• They must merely see that some bodily harm may be caused

Question 22

Diplock LJ, Mowatt (1968)

Answer 22

“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…”

Question 23

s20 and s47

Answer 23

• 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

Question 24

S18 OAPA 1861: Wounding or causing GBH w/intent

Answer 24

• S18 makes illegal the D who with intention to cause GBH or resist apprehension etc., maliciously wounds and/or causes GBH
• Liability = imprisonment for life

Question 25

AR of s18

Answer 25

• Identical to s20 – D’s conduct must have caused V to suffer either a wound or GBH
• No need to prove assault or battery AR’s at this point

Question 26

Mr of s18- intention

Answer 26

• 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 or 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

Question 27

MR- malice

Answer 27

• Requires that D intended or foresaw the possibility of harm – two cases where this is key in S18 cases
  1) Where D intends to cause GBH
  2) Where D does not intend GBH but does intend to resist lawful apprehension

Question 28

intending to cause GBH

Answer 28

• The word maliciously does not add anything – intending to cause GBH incorporates malice and therefore does not need to be discussed separately

Question 29

resisting lawful apprehension

Answer 29

• 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

Question 30

laddering

Answer 30

• 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

Question 31

conduct focussed OAP

Answer 31

• Focused on the conduct of D, rather than harm and created independently to recognise harmful circumstances of to react to political or social motives