OAPA 1861

Question 1

What are the two ways of committing common assault

Answer 1

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

Question 2

Max penalties

Answer 2

6 months prison/5k fine. mags court only

Question 3

Definition of assault

Answer 3

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

Question 4

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’

Answer 4

R v Nelson 2013

Question 5

What does assault require (and what does that include)

Answer 5

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

Question 6

define immediate in assault

Answer 6

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

Question 7

What can prevent an act from being assault

Answer 7

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

Question 8

define unlawful

Answer 8

w/o consent

Question 9

Define battery

Answer 9

‘the application of immediate unlawful force’

Question 10

Define force

Answer 10

‘the slightest touching’ collins v willcock 1984

Question 11

do you have to touch the victim directly to commit battery

Answer 11

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

Question 12

Can omissions be sufficient for common assault

Answer 12

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

Question 13

Examples of LAWFUL FORCE

Answer 13

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

Question 14

mens rea for assualt and battery

Answer 14

‘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)

Question 15

AR for ABH, s47 of OAPA 1861

Answer 15

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

Question 16

What can ABH be?

Answer 16

‘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).

Question 17

Mens Rea of s47

Answer 17

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)

Question 18

Definition of SECTION 20 OAPA 1861

Answer 18

‘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’

Question 19

What is wound defined as

Answer 19

cut or break in the skin (Eisenhower 1983)

Question 20

Is a broken bone s20

Answer 20

no unless breaks skin (wood 1830)

Question 21

GBH defined as…

Answer 21

‘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)

Question 22

does inflict require a technical assault or battery

Answer 22

no, R v Burstow 1997

Question 23

Mens Rea of s20

Answer 23

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

Question 24

Definition of s18

Answer 24

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

Question 25

MR of s18

Answer 25

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

Question 26

Is intent to wound enough for s18

Answer 26

no, as ratified in R v Taylor (2009)

Question 27

Evaluation for need of law reform

Answer 27

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.

Question 28

LC draft bill clauses 1-3

Answer 28

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.