non-fatals continued Flashcards
1
Q
Assault
A
intentionally or reckless causing V to apprehend imminent unlawful personal violence
2
Q
Battery
A
any conduct by which D, intentionally or recklessly, inflicts unlawful personal violence upon V
3
Q
the difference between assault and battery
A
AR – one involves touching w/out consent and one involved the imminent fear of touching
4
Q
assault occasioning actual bodily harm
A
s47 OAPA 1861
5
Q
s47
A
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”
6
Q
elements of the offence
A
Assault/Battery (we call this a base offence) \+ V suffering ABH as a result = Liability for s47
7
Q
assault or battery
A
- 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
8
Q
occasioning
A
- 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
9
Q
actual bodily harm
A
- 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?
10
Q
harm under s47
A
- 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
11
Q
injuries
A
- 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]
12
Q
some (non-exhaustive) injuries
A
- 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
13
Q
psychiatric injury under s47
A
- 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
14
Q
ireland and burstow (1998)
A
- 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
15
Q
Mens Rea
A
- 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
16
Q
do you need to foresee the harm of ABH
A
- 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
17
Q
s20 OAPA 1861: wounding or inflicting grievous bodily harm
A
”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…”
18
Q
AR s20- wounding
A
- 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
19
Q
ar s20- inflicting GBH
A
- 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
20
Q
wounding or inflicting GBH
A
- 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
21
Q
MR of s20
A
- 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
22
Q
Diplock LJ, Mowatt (1968)
A
“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…”
23
Q
s20 and s47
A
- 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
24
Q
S18 OAPA 1861: Wounding or causing GBH w/intent
A
- 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
25
Q
AR of s18
A
- 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
26
Q
Mr of s18- intention
A
- 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
27
Q
MR- malice
A
- 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
28
Q
intending to cause GBH
A
- The word maliciously does not add anything – intending to cause GBH incorporates malice and therefore does not need to be discussed separately
29
Q
resisting lawful apprehension
A
- 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
30
Q
laddering
A
- 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
31
Q
conduct focussed OAP
A
- Focused on the conduct of D, rather than harm and created independently to recognise harmful circumstances of to react to political or social motives
