offences against a person Flashcards
increasing harm
increasing sentence
s18 - wounding or causing GBH with intent
maximum - life
ss 47 and 20
both maximum 5 years sentence
GBH - structure of offences
seriously injures V with knife/other weapon, crown court, or magistrates court
GBH with intent/wounding with intent - structure of offences
D intentionally wounds or causes wounds to the V, can be resisting arrest, crown court.
Assault - Definition
intentionally or recklessly causing the apprehension of immediate unlawful personal violence, result crime, cannot assault yourself
s 39 of Criminal Justice Act 1988
assault
AR: unlawful personal violence
apprehension means subjective (to V) expectation or anticipation, not complete unless they suspect/think violence will follow.
r v ireland
assault, fear that the caller would arrive at their door at any time, where it is clear that the words used to communicate a violence it is enough
tuberville v savage
words can be enough for assault but if they communicate violence it’s not going to be used at that time
AR: Immediate
must be an imminent threat, V’s belief in the nature of the threat
Smith v CS of Woking Police Station
IMMEDIATE - wasn’t necessary to find out what V thought as long as she believed it was of some violent nature and carried out straight away
r v constanza
IMMEDIATE - took V evidence that his behaviour was escalating and anything could happen anytime, threat didn’t have to be directly in front to qualify
battery: definition
intentionally or recklessly causing unlawful personal conduct, completed assault, result crime, V must be another person
AR: unlawful personal contact
there is no minimum level of harm - any touching without consent will do, not complete until contact is made
Faulkner v Talbot
unlawful personal contact - law at the time provided that a boy under 16 couldn’t consent to the touching, unlawful contact made, doesn’t need to be harm caused to the V.
r v Thomas
convicted in Crown court, appeal accepted as wasn’t sexual, said it doesn’t matter is the V touched on skin or clothes, it is unlawful personal contact
Fagan v MPC - unlawful personal contact
caused indirectly - held to constitute indirect physical contact and could form one of these offences
DPP V K - unlawful personal contact
caused indirectly - not necessary for V to know their V, if they put it in intending to hurt someone, it is assault.
r v Martin - unlawful personal contact
caused indirectly - crushed several people, conviction safe.
DPP v Santa-Bermudez - unlawful personal contact
can occur by omission - D convicted of ABH, successfully pleaded to Crown court, appealed the appeal, disagreed as he had created a dangerous situation.
MR for assault and battery
assault - intent or recklessness as to causing the apprehension, battery - intent or recklessness as to causing the unlawful contact.
R v Venna - assault and battery MR
could convict the D if they agreed that their use of force was reckless
s 47 OAPA 1861
assault occasioning actual bodily harm, liable to be imprisoned for any term not exceeding 5 years, must suffer actual bodily harm, is a more serious form of assault
r v miller - AR actual bodily harm
court considers whether the force used could lead to ABH, held that an injury to state of mind is within the criteria if ABH
Ireland and Burstow - psychiatric injury (ABH)
no physical injury but became clinically depressed, mental illness caused needs to be medically recognised
MR Constructive Liability
only requires MR of the base offence - no need to be able to foresee the more serious ABH level harm
R v Roberts - liability is built (constructed)
said he couldn’t foresee her jumping out of the car, taking her jacket off (battery), jumping out (increasing ABH), liability could only be broken if something bizarre occurred to break the causal link.
R v savage - liability is built (constructed)
both convicted of GBH, couldn’t foresee a greater harm occurring because of their actions.
s 20 wound or inflict GBH
maliciously wound or inflict any grievous bodily harm - term not exceeding 5 years.
two ways to breach s 20
wound with malice, inflict GBH with malice, can go to magistrates or Crown court.
wound or cause GBH with intent s 18
unlawfully and maliciously wound or cause any grievous bodily harm to any person with intent to do some grievous bodily harm to any person or with intent to resist arrest or prevent the lawful apprehension or detainer.
s 18 - breach
wound, cause GBH, max sentence of life
wounding
need not be serious, involves merely breaking the skin (Moriarty), only applies if skin broken
GBH
just means serious, DPP v Smith - emphasised that bodily harm must be really serious.
- need not be life threatening.
s 18 MR: Intent is Key
requires intent to do some GBH or intent to resist arrest or prevent the lawful apprehension or detainer
R v Taylor
intent must be to cause GBH, NOT wounding
- D stabbed in the back no intent to cause GBH, jury convicted but appealed successfully.
s 20 - recklessness as ‘some harm’
even if only minor, r v mowatt = unnecessary that the unlawful act would cause physical harm of the degree stated in s 20, r v savage = no need for D to foresee harm
ss 18 20 MR: Malice
means intent or recklessness, but not technically identical
- applies to wounding/GBH s 20 offence
- applies to wounding/GBH in s18 offence where D hindering arrest
foresight of GBH needed for s 18
r v Morrison = v tasked with evicting squatter, when trying to arrest began to run to the window, continued to run and gave V scarring, convicted of GBH, appealed, recklessness, must be a level of foresight as to relevant harm to V
s 28 crime and disorder act 1998 - aggravated offences (racial or religious aggravation)
- if, at the time of committing the offence, or immediately before, the offender demonstrate towards V hostility based on membership (or presumed) of racial/religious group or
- the offence is motivated (wholly or partly) by hostility towards members of a racial/religious group based on their membership in said group
when is aggravation applicable?
after the offence has been proved - if a person is convicted, it increases the level of punishment BOLT ON which alters the offence and increases the sentence.
s 28(1)(a) - aggravates on behalf of AR
offender demonstrates hostility towards V
s 28(1)(b) aggravates on basis of MR
offence is motivated, were motivated by hostility
aggravation in AR - s 28(1)(a)
operates regardless of D’s MR - demonstration is enough, whether they show racial hatred - requires it as base offence
r v Babbs
aggravation in AR s 28(1)(a) - D racially abused V, fight broke out, stopped by staff, convicted of racially aggravated assault, prior conduct racially motivated hostility, assault was the continuation
aggravation in MR: s 28(1)(b)
what D was thinking at the time of the interaction, in part must be shown, D needs to be motivated by racial/religious hostility, doesn’t need to be only motivation
Kendall v DPP - aggravation in MR: s 28(1)(b) doesn’t need to be sole motivation
put up posters of illegal immigrants and insulted them, encouraged people to join hate group, appeal rejected as he used the word ‘scum’ and pictures were offensive, partially motivate by racial insecurity
factors about racially/religious motivated abuse
V actual religion/race is irrelevant, D and V can be from the same group, V doesn’t need to be aware of the hostility, assess D’s conduct objectively
is domestic violence/abuse an offence?
no it is not in English criminal law, domestic abuse act 2021 provides a definition for it.
how to categorise Domestic Abuse
it takes another offence to prosecute if someone has experienced domestic abuse: assault, battery, homicide etc.
controlling or coercive behaviour - serious crime act 2015, s 76
(a) repeatedly/continuously engages in behaviour towards another (V) that is controlling/coercive
(b) at the time of the behaviour, V and D are personally connected
(c) the behaviour has a serous effect on V and
(d) D knows, or ought to know, that the behaviour will have serious effect on V.
‘personally connected’ - for reference to s 76 of SCA 2015
covers a range of possible intimate partner relationships, s 76(2) - where there is an intimate relationship
‘serious effect’ - for reference to s 76 of SCA 2015
repeated fear of violence, serious alarm, distress, spying, having substantially adverse effect on V’s everyday activities, effect D has on V
defence in s 76(8) for reference to s 76 of SCA 2015
where D acting in V’s best interest, conduct was reasonable - D must show, burden of proof on them
defence of consent relating to controlling/coercive behaviour
can consent to minor harm in some circumstances
consent - common law offences
must be expressed or implied to D, consent must be effective (capacity, freedom, sufficient information).
chastising children - consent?
permissible as long as its reasonable, proportionate and without cruelty - children act 20014, s 58 defence available only to parents
expressed consent
agrees to contact - provided express agreement for the contact.
implied consent (important issue for assault and battery)
generally implied consent to low level contact in society - Collins v wilcock = everyday life.
wood v dpp (implied consent - must be within the bounds of acceptability)
took D’s arms so they could confirm identity, D hit the officer, they had no lawful reason to touch D unless they were arresting, seen that they were assaulting and his reaction was lawful
h v cps (implied consent - must be within the bounds of acceptability)
foresight of contact not enough - worked at school for those with learning needs, he consent to being assaulted as every common there, argument not upheld, if teacher consented to being attacked by pupil then should’ve applied to everyone entering
effective consent - V must have capacity
Burrell v harmer - D charged with ABH, argument rejected as boys were too young to give consent and understand it - lacked capacity
effective consent - V must have capacity = Mental Capacity Act 2005
guidance if someone has capacity to make decisions
effective consent - v must have knowledge
can’t consent to something if you are not aware of the risk of it - need to clearly understand conduct
effective consent - v must have knowledge = R v Konzani
D convicted of ABH, had sex with people knowing he had STD, court found V gave consent to unprotected sex but not to the HIV as they didn’t know
effective consent - v must not be V of fraud
fraud can only be to identity of D or nature of D’s conduct, V must not be victim of duress, D’s honest belief in consent negates liability
effective consent - v must not be V of fraud = R v Richardson
D was not a dentist, convicted of ABH, didn’t say license suspended, allowed appeal, only applied if they were misled to who she was
effective consent - v must not be V of fraud = R v Melin
D was not a doctor, GBH, alleged medically trained but not, they said they wouldn’t have got procedure if they knew, conviction stood
effective consent - v must not be V of fraud = r v mobilio
d performed unnecessary vaginal exams on women for own pleasure, said they consented, told the women what he was going to do, consented, seen to be ‘good’ in that sense.
effective consent - v must not be V of fraud = r v jones
schoolboys, threw in the air intending to catch, didn’t, sustained serious injuries, didn’t allow consent offence to go to jury, believed enough for defence charge
consent statutory offences
express/implied, effective, but for ABH/GBH need the harm to be legally recognised as capable of being consented to
categories of serious harm - r v brown
surgery and medical treatment, cosmetic surgery/body mod, religious flagellation, horseplay, sports, sexual pleasure, unless the harm falls into one of these categories, D will not be consent
surgery and medical treatment - consent to serious harm
can be invasive, breaking skin, wounding, need consent to that treatment
body mod - consent to serious harm
- r v wilson = branding, D had his initials put onto wife’s bum, convicted of ABH
- r v bm = professional tattooed and piercer, removed clients ear and split tongue, clients accepted to have tried to consent, should have been seen as an extension to tattoo, no consent found
horseplay - consent to serious harm
- validity of consent = R v Jones
- r v aitken = raf airman, one get doused in spirit and on fire, ABH charge, overturned, believe it was fun, and V was consenting
serious harm in sports
risk of injury, consent in officially recognised sport played within rules, injuries sustained outside of rules not consented to
r v barnes - serious harm in sports
D caused serious leg injury to another due to bad tackle, convicted of GBH, doesn’t mean act was criminal
serious harm for sexual pleasure
- r v dica = STD
- r v Donovan = SM, light spanking
- R v Brown = consensual SM
- r v wilson = branding wife’s bum
