Offences against the person Flashcards
Assault
D intentionally or recklessly causes the victim to apprehend imminent unlawful violence
Battery
D intentionally or recklessly uses force against another person
- Venna [1976] QB 421
D + other youths are making a disturbance in early hours of the morning - POs come and tell them to stop- One PO places hand on D’s shoulder - tells him he’s under arrest - resists arrest - fights violenty - held by 2 POs on floor - kicks at them - fractures one POs hand - convicted of assault occasioning ABH
if one lashes out or applies force, recklessly, and the harm caused by his action is reasonably foreseeable, then one is guilty and liable to assault and can be held liable for the harm caused
** Ireland and Burstow [1998] AC 147
Joint appeal case
Ireland:
plead guilty to assault occasioning ABH: Appellant admits to making a large NO of phone calls to 3 women and remaining silent when they answered – psychiatrist states that as result of these phone calls the women each suffered psychological damage
Burstow:
plead guilty to assault occasioning GBH- B conducted a campaign of harassment of a woman who he had had a social relationship with - she ended it- 8 month period he made silent calls, distributed offensive cards in her street, sent menacing notes to her, appeared at her home and place of work and took photos of her + her family- consultant psychiatrist stated she was suffering from severe depressive illness -
Both D’s appeal - both appeals dimissed
held that :
words and gestures can constitute assault, even silence, if threatening, is sufficient to constitute an assault.
Lord Steyn - the words ‘cause’ and ‘inflict’ may be taken to be interchangeable
one can be said to unlawfully ‘inflict’ grievous bodily harm even when no physical violence has been applied directly or indirectly to the victim
The ‘bodily harm’ in sections 18, 20 and 47 of the Act 1861 must be interpreted to include recognisable psychiatric illness
s18 OAPA 1861
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 harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony,
s20 OAPA 1861
Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanor,
Martin (1881) 8 QBD 54
D– right before the end of a performance at the theatre, with the intent and result of causing terror, - puts out the gaslights on a staircase that many people had to use to leave theatre, places iron bar across doorway that they had to pass to leave- when lights extinguished massive panic occurs – rush down the staircase, those at the front forced against the iron bar – several audience members thrown down and severely injured in the struggle
Convicted of assault occasioning GBH
A man acts maliciously when he willfully and unlawfully does what he knows will injure another
You do not have to apply direct force to be responsible for inflicting GBH, if your actions cause the GBH to be inflicted, even if not by your hand, and you act ‘maliciously’ in doing so, then you can be held liable
** Savage and Parmenter [1992] 1 AC 699
Savage
– threw beer over V and in the act let go of glass – results in splinter of glass/part of the glass cutting V’s wrist – D convicted on a count charging unlawful wounding – she appeals – appeal dismissed
Held that: for s47 - ABH - mens rea required is same as mens rea for assault - no need for any intention or foresight of physical harm
Parmenter
convicted of the 4 counts of inflicting GBH – appeals conviction- D is natural father of the baby – D’s rough handling of baby caused baby to suffer injuries to bony structures of his legs and right forearm – appeals allowed and conviction quashed – conviction substituted for s47- verdicts of guilty of assault occasioning ABH
held that requisite mens rea for s20 OAPA is that the accused must have either intended or been reckless to his act causing harm – has to intend or actually foresee that his act would cause harm (reckless =Cunningham reckless)
- maliciously in section 20 taken to mean accused intended or foresaw some harm
Harm foreseen/intended does not need to be GBH can be of minor character
DPP v Smith [2006] Crim.LR 528
D was woken up by former GF whilst sleeping - he pushed her down on bed - sat on top of her -cut off her ponytail - convicted of assault occasioning ABH on appeal by Crown -
Held that: evidence of external bodily injury, or a break in or bruise to the surface of the skin is not required for the purposes of ABH s47 - cutting off ones hair without consent constitutes ABH under s47
** Dica [2004] EWCA Crim 1103
Important case to GBH and Consent
D knows he is HIV pos and has unprotected consensual sex with 2 women- both subsequently diagnosed as HIV pos - D argues that both women were aware of risk and still consented
D charged and convicted on 2 counts of inflicting GBH – at trial judge ruled that if the victim consented or not then it is irrelevant as, following Brown, their consent is not a defence – The court of appeal disagreed and held that this ruling was incorrect – if V’s were aware of D’s HIV status + consented to risk it would form a defence against the s20 act – defendant appeals – appeal allowed and retrial ordered
Held that:
(GBH relevant)
The infliction of a sexual disease such as HIV on to another person does constitute the infliction of GBH or harm onto another individual
(consent relevant)
consent is not a defence to a charge of GBH under s18 (GBH with intent) - based off Brown Principle
consent is defence to s20 offence of recklessly transmitting HIV through sex
Defence of consent to risk of infection was justified by Judge LJ on grounds of personal autonomy + respect for private life + impracticality of enforcement
** Brown [1994] 1 AC 212
The appellants are a group of sadomasochists – they willingly and enthusiastically participated in acts of violence against each other for the sexual pleasure it gave them by giving and receiving pain-
they change plea to guilty to charges of offences under s47 and some offences under s20 after ruling from trial judge stating prosecution didn’t have to prove lack of consent - convicted - appeal - H o L dismiss appeal by majority 3:2
Held that consent is a defence to assault and battery but not a defence to ABH, wounding or GBH - unless one of the special categories or in public interest to create new category
Lord Templeman - in principle there is a difference between violence which is incidental and violence inflicted for the indulgence of cruelty
The minority of the Lords focus on the accused’s right to privacy- argue that their consent should be a valid defence unless it can be shown that their conduct was harmful to the public interest
Lord Mustill dissenting argues that -
-they are questions of private morality - standards to judge them do not fall in crim law’s scope
- Only question is if these acts were against existing law of violence to which he answers in negative
- Wilson [1997] QB 47
D brands his initials on his wife’s buttocks at her request- using a hot knife - convicted of assault occasioning ABH - conviction quashed on allowing the appeal
Russel LJ - R v Brown judgment is not an authority to state that consent is no defence to charge under s47, in all circumstances where ABH is deliberately inflicted
2 main lines of reasoning
1) act fell into tattoo category of exception- brown acts did not fit into any exception category
2) Here married couple so conduct more morally acceptable
- Richardson [1999] QB 444
D is a dentist who’s been suspended - continues to treat patients without telling them of her suspension - convicted of Assault occasioning ABH - conviction quashed upon
allowing D’s appeal
Held that: fraud only vitiates consent to an act which would otherwise be an assault, only where it had created a mistaken belief as to the identity of the person doing the act or as to the nature or quality of the act
identity of person does not extend to incorporate knowledge of one’s qualifications or characteristics
Tabassum [2000] 2 Cr App R 328
D asks several woman if he can examine their breasts to enable him to prep a computer software to sell to doctors - 3 woman agree - take off their clothes let him feel their breasts - only agree to do so because they believe him to be medically qualified - convicted of assault occasioning ABH
Held that there was consent to nature of the act but not the quality - woman consented to touching for medical research not indecent behavior-
Consent is vitiated if there is deception or fraud as to the nature or quality of the act
- Konzani [2005] 2 Cr App R 198
D knows he is HIV +ve and has unprotected sex with 3 women without informing them of his condition - convicted of 3 counts of assault occasioning GBH
Held that defence of consent in Dica only applicable if women are made aware of condition and aware of serious risk of catching an STD
consent is no defence where women were unaware/deceived as to the man having HIV
BM [2018] EWCA Crim 560
D is registered with local authority for purposes of tattooing and body piercing – D carried out body modifications on customers – removal of ear- removal of nipple- division of customers’ tongue – convicted of wounding with intent to do GBH
serious body modification does not fall under one of the exceptions for which the consent of the victim can provide the defence for causing GBH under s20
Lord Burnett CJ
Brown established general rule that consent provided no defence if violence caused ABH or more serious harm
no universally stated test for exceptions but commonn features being: 1) may produce discernible social benefit 2) would be seen as unreasonable for common law to criminalise them - tattoos, cuts playing sport…
ABH
From Donovan [1934] - Swift J gave it the meaning of
‘any hurt or injury calculated to interfere with the health or comfort of the V… no need to be permanent but must be more than merely transient and trifling’
GBH
defined in Smith [1961] as ‘really serious harm’ but later held that it can be said to be just ‘serious harm’
Wound
An injury that breaks the skin and is more than a mere surface scratch - Eisenhower [1984]
