OAPA Criminal Law

Question 1

Source of authority for acts in relation to this topic

Answer 1

OAPA 1861

very long time ago…

Question 2

Jeremy Bentham on the OAPA 1861

Answer 2

Annoyed about how the laws are so specific + parochial

Question 3

Jeremy Horder

Answer 3

You have to capture the moral essence of the wrong in question, not the specific examples or circumstances

Question 4

4 Commonly charged offences and ladder of seriousness

Answer 4

s.39 Common assault

s.47 Assault causing ABH

s.20 Wounding or GBH

s.18 Wounding or GBH + Intent

lower number offences more serious

Question 5

Types S.39 OAPA, Definition + Explanation

Answer 5

Common Assault

• Assault: intentionally or recklessly causing another person to believe they will recieve immediate and unlawful force
• **Battery **: Intentionally or reckllessly applying unlawful force. DPP v Little

6 months imprisonment typically

Question 6

Assault 2nd element of AR

Answer 6

S.39

1.) Causing apprehension

• Pointing a gun (St George) 1840
• Staring through a window [Smith v Woking]
  **
  (A normal person would have seen the danger and understood it was serious)**
• St George - unloaded gun

2.) About what the victim percieves. Providing clarity to answer 1.

Intentionally or recklessly causing another to apprehend immediate or unlawful force

Question 7

Assault 3rd Element of AR

Answer 7

• “Immediate” - Key (a question of fact) Ireland

Constanza (1997) - Fear of violence does not exclude near future

Question 8

4th element of AR for Assault

Answer 8

Unlawful

Not an assault where the threat of force is lawful:

• To make an arrest. S3(1) Criminal Law Act 1967
• For Self-Defence s.76 CJA
• Or when it is consented to

Question 9

Mens Rea for Assault

Answer 9

**D intended or was reckless **

That the victim would apprehend imminent unlawful force:

Venna

Question 10

Battery

Answer 10

• Definiton: Intentionally or recklessly applying unlawful force

Question 11

First two requirements of Actus Reus of Battery

Answer 11

- Requires Force

R v Walkden + R v Ireland

**- Harm not necessary **

Collins v Wilcock [1984] “ the least touching of another” [police officer grabbing arm]

*Thomas [1985] *- touching of clothing

Requires an act, not omission

Fagan [1983]

Santanza Bermudez - needle in pocket with police officer. This can constitute battery.

Omission can batte

Force can be minimal contact (touching someones arm)

Question 12

3 + 4 requirements of AR of Battery

Answer 12

* Force must be unlawful

• Non-consensual
• Reed v Wastie [1972] - police officer broke a guy’s nose

Can be indirect

• Haystead (man punches woman, causing her to droph her baby)
• Scott v Shepherd [1773] (man accidentally shot fireworks into crowd
• DPP v K [Acid in the hand drier]

Question 13

Mens Rea for Battery

Answer 13

D Intention or Recklessness as to be applying unlawful force
- Savage

Question 14

S.47 OAPA 1861

Answer 14

Assault Ocassioning ABH

“any assault occasioning actual bodily harm”

• D punches V in the face [battery], breaking his nose [ABH]
• D makes an aggressive sexual advance at V (assault), who sprains her ankle fleeing (ABH)

Still no serious injuries but injuries neverthless. More than S.39

Question 15

AR of S.47

Answer 15

1.) Assault - either assault proper or battery [DPP v Little]

2.) Ocassioning - Causation (Assault + ABH) Roberts

3.) Actual Bodily Harm - Not defined in act

Roberts: D jumped out of car after he made unwanted advances.

Question 16

What other forms of ABH are there?

Answer 16

• Bodily Harm can be psychological (Chan-Fook)
• DPP v Smith [2006] cutting hair can form of actual bodily harm -> THIS SHOWS ABH DOES NOT REQUIRE PHYSICAL PAIN

Question 17

What counts as ABH

Answer 17

Donovan “more than transient and trifling”

Charged as s.47 when too serious to be assault

CPS Charging standards: multiple stitches, extensive brusiing, broken nose/ lose of consciouness

Question 18

Mens Rea of s.47

Answer 18

ABH

Intention + Recklessness

Savage and Parmenter (No need to intend or forsee ABH)

Question 19

S.20 OAPA 1861

Answer 19

Wounding or Inflicting GBH

“unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person”

Two distinct offences

1.) Maliciously wound
2.) Maliciously inflict GBH

Both need to be unlawful (Horwood) + involve malice (same mens rea)

Question 20

S.20 Wounding meaning?

Answer 20

• Whole Skin must be broken
• Not just external [Morris]
• Not just internal [Eisenhower] + [Wood]
• Exposed lining membrane [Waltham]

Can be indirect [Marsh] 2019

Question 21

S.20 Inflicting GBH

Answer 21

* Smith - GBH = ‘really serious harm’

• Bollom - babies injuries not bad for an adult but relation to a child the injuries were very bad\
• Burstow [1997] - psychological injuries

Question 22

s.20 charging practice

Answer 22

• Despite samll cut satisfy wound s.20 do not count
• Really serious
• Permanent disability, permanent loss, substantial loss of blood, permanent psychiatric injury

Question 23

S.20 Inflicting GBH

Answer 23

• Wilson “inflict” narrower than cause
• Requires violent application of force

*** Dica [2004] ** HIV: Criminalised When D knows they HIV and do not tell

There is scope within the law here to examine the effect on the victim, in case we have a fragile victim.

Question 24

Mens Rea s.20

Answer 24

Intention or recklessness (Cunningham) Malice to only some ABH

Question 25

Wounding or GBH + Intent s.18

Answer 25

Same as section 20 but with "intent to do GBH" or "intent to prevent or resist arrest" Intentionally/recklessly Wounding or causing GBH So it is only really for people who really intended to commit it PQ: Trying to escape police and forsee recklesness but still happens and the harm is not GBH but a bit more minor, can still be tried under s18. This is to protect the police. Trying not to evade the police.

Question 26

Dica

Answer 26

D knew he had HIV and had unprotected sex with 2 women who gave consent and don’t know about the HIV

Question 27

Purpose for distinction s18 and s20

Answer 27

S18 are for people that intend the full extent of the harm or attempted to resist arrest Life imprisonment

Question 28

Wounding/Inflicting GBH with intent AR

Answer 28

Same as s.20, but all have to include intention + recklessness Can be found guilty when you only intend some harm or foresee a little part of it to occur. So any intention here is required.

Question 29

MR S18

Answer 29

Same But in Mens Rea specific "ulterior" intent required. GO OVER THIS

Question 30

Criminalising conduct: Moralism

Answer 30

- Moralism: If something is morally wrong, then we have reason to criminalise it, even if not harmful to others - Captures instincts about criminal law and its relationship to moral blame - May capture certain acts that otherwise would not be | BUT Whose morality? Slippery Slope? Autonomy?

Question 31

Criminalising Conduct: Paternalism

Answer 31

- Criminal law can be used to protect individuals from themselves to require them to do what is best for themselves - Seatbelts in cars | Infringes upon autonomy: Who is better placed to know what is best for I

Question 32

Criminalising Conduct Liberalism

Answer 32

JS Mill Harm Principle | Relatively objective

Question 33

Does consent render a fistfight legal?

Answer 33

Attorney-General Reference No 6 1980 - If mere battery yes as long as no bodily harm is caused - Certain exceptions exist for special categories of activity

Question 34

Does consent matter in regards to ABH

Answer 34

No it does not matter: unless the action falls within one oft the special categroies where consent serves as defence

Question 35

Categories of consentable harm

Answer 35

**Violent sport** - Barnes 2004 **Boxing** - R v Brown **Bravado** "where a man challenges another to try to hurt him with a blow" **Horseplay** -> Lord Mustill in Brown tells us that community life may involve a mutual risk of deliberate physical contact. Very patriarchal **Religious/Cultural Rituals**: Circumcision **Risks of Sexually-Transmitted Infections. **Dica 2004 BUT Golding as long as consent **Surgery and Medical Treatment:** Cosmetic Surgery

Question 36

R v Brown

Answer 36

A group of men engaged in consensual sadomasochistic acts causing bodily harm (like beating, branding, etc.). Even though everyone consented, the House of Lords ruled that consent is not a defense to infliction of actual bodily harm or more serious injury unless it's in recognized categories (like surgery, sports, etc.). Key Principle: You cannot consent to serious harm being done to you for no good reason.

Question 37

Contrast case to R v Wilson

Answer 37

Sexual activity -> consented got a disease through branding Consent was a defence there (same as tatooing) | Opposes R v Brown

Question 38

**Donovan**

Answer 38

***- ABH MEANS*** Between really serious and very minor harm -> it has its ordinary meaning. "Need not be permanent, but more than transient and trifling"