OAPA 1861 Flashcards

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1
Q

What are the two ways of committing common assault

A

Via assault or battery as set out in the Criminal Justice Act 1988

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2
Q

Max penalties

A

6 months prison/5k fine. mags court only

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3
Q

Definition of assault

A

‘an act which causes the V to apprehend the application of immediate on lawful force’

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4
Q

Where was it said that assault requires ‘the D to have done something of a physical kind which causes someone else to apprehend that they are about to be struck’

A

R v Nelson 2013

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5
Q

What does assault require (and what does that include)

A

acts or words. words can be assault and can be oral or written (R v constanza 1997). In R v Ireland 1997, silent phone calls can be assault

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6
Q

define immediate in assault

A

not instantaneous but imminent (smith v chief superintendent of woking 1983)

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7
Q

What can prevent an act from being assault

A

when someone indicates no violence will be committed (Tuberville v savage 1669)

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8
Q

define unlawful

A

w/o consent

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9
Q

Define battery

A

‘the application of immediate unlawful force’

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10
Q

Define force

A

‘the slightest touching’ collins v willcock 1984

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11
Q

do you have to touch the victim directly to commit battery

A

no you can touch their clothes (r v Thomas 1985) or you can indirectly cause a battery (DPP v K 1990)

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12
Q

Can omissions be sufficient for common assault

A

if D is under a duty to act then yes (DPP v Santa Bermudez 2003)

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13
Q

Examples of LAWFUL FORCE

A

Children Act 2004 you cannot commit a battery if it results in any injury, so yes and no

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14
Q

mens rea for assualt and battery

A

‘an intention to cause another to fear immediate unlawful personal violence or reckless to whether such fear is caused’ and ‘intent to apply unlawful force or reckless as to whether unlawful force is applied’. Classed as basic intent (DPP v Majewski 1976)

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15
Q

AR for ABH, s47 of OAPA 1861

A

Same as assault n battery as there must be one caused which results in an injury (ABH)

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16
Q

What can ABH be?

A

‘any hurt or injury designed to interfere with the health or comfort of the victim’ Miller 1954. R v chan fook 1994 said that it must be ‘not so trivial but wholly insignificant’ and that pyschatric injuries can be ABH. T v DPP (2003) says momentary loss of consciousness can be ABH. so can cutting hair (DPP v Smith (Michael) 2006).

17
Q

Mens Rea of s47

A

same as assault and battery- intention or subjective recklessness as to causing fear of unlawful violence or applying unlawful force. No need for d to intend an injury to be reckless whether ABH caused (R v Roberts 1971)

18
Q

Definition of SECTION 20 OAPA 1861

A

‘Whoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person either with or without a weapon or an instrument shall be guilty of an offence and shall be liable to imprisonment for not more than five years’

19
Q

What is wound defined as

A

cut or break in the skin (Eisenhower 1983)

20
Q

Is a broken bone s20

A

no unless breaks skin (wood 1830)

21
Q

GBH defined as…

A

‘really serious harm’ (DPPv Smith 1961). Bollom (2004) told us that the severity of injury is based on age and health of victim, and that HIV can be s20 (R v Dica 2004)

22
Q

does inflict require a technical assault or battery

A

no, R v Burstow 1997

23
Q

Mens Rea of s20

A

reckless as to whether injuries are caused as maliciously means reckless (R v Parmenter 1991)

24
Q

Definition of s18

A

Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person with intent to do some grievous bodily har to any person or with intent to resist and prevent the lawful apprehension or detainer of any person shall be guilty of an offence

25
Q

MR of s18

A

specific intent to cause GBH or specific intent to resist arrest plus recklessness as to causing injury ( Morrison 1989)

26
Q

Is intent to wound enough for s18

A

no, as ratified in R v Taylor (2009)

27
Q

Evaluation for need of law reform

A

Many reports on this area published in 80s and 90s like Reform of Offences Against the Person, LC 2015.
Issues with the act include the fact that its 150 years old, so mental injury wasn’t recognised back then. Case law has had to fill the gap. There are inconsistencies between offences, such as s47 having the same mens Rea as common assault. unjust person who causes a cut can have 5 years in prison when someone who breaks an arm without breaking skin is s47. Language is very old fashioned, ie maliciously. doesn’t match up with correspondence principle as D doesn’t intend or foresee sometimes the actual results that occur from conduct. the 1998 draft bill set out three classes, with 1 being intentional serious injury, 2 reckless serious injury and 3 intent or reckless injury. 4 being assualtto replace sections 18 20 47 and assault. LC 2015 report says It should be replaced with a comprehensive modern statute, saying it should provide a clear offence hierarchy, lable for offence should be near and accurate and each bit of an offence should be set out clearly.

28
Q

LC draft bill clauses 1-3

A

1 would be most serious non fatal offence and replace s18. wounding wouldn’t be included. 2 would common law of d replace s20 and would only be guilty if he knew or believed there was a risk of SERIOUS injury. 3 would replace 47 and would be guilty if he intentionally or recklessly caused injury to another person. all three offences include mental and physical injury. Said there should be a lower level of aggravated assault which covers injuries like bruises. The report recommends physical assault should replace common law battery , threatened assault would replace common law of assault and the causing harm intending to resist arrest should replace this as separate from s18. Draft bill also includes a lower level with assault intending to risk arrest. The lc would provide more coherency, and would strengthen the law.