S3: NFO Hierarchy and Assault

Question 1

What are the five non fatal offences ?

Answer 1

Assault
Battery
Assault occasioning ABH
GBH/Wounding
GBH/Wounding with Intent

Question 2

What is Assault ?

Answer 2

-Under s.39 of the CJA 1988, it suggests assault and battery are criminal offences
-S.39 doesn’t define offences but instead the definition of offences comes from case law.

Question 3

What is the AR/MR of assault ?

Answer 3

AR- An act which causes another person to apprehend infliction of immediate unlawful force to his person (Collins v Wilcock [1984])

MR- Intention or Recklessness as to AR of R v Venna [1976]

Question 4

What is the Traditional Approach of answering Qs?

Answer 4

Set out AR/Apply to Facts} Q: Is AR made out?
If No- no assault
If Yes- consider MR

Set out MR/Apply to Facts} Q: Is MR made out?
If No- no assault
If yes- assault if no defences

Question 5

What are the elements of the offence ?

Answer 5

AR:
Act
Causes
Another
Apprehend
Infliction
Immediate
Unlawful Force
MR:
Intention
Recklessness

Question 6

Element 1- Act or Omission ?

Answer 6

What kind of acts are covered?
R v Ireland & Burstow as per Lord Steyn

Assault can be committed through:
-Words alone
-Silence… provided V fears possibility of immediate personal violence
-Gestures
-Actions

Omissions? General Rule = no liability for failing to prevent harm to someone

UNLESS:
-Contractual Duty (Pittwood & Dytham)
-Created the danger (Miller & Evans)
-Special Relationship or Assumed Responsibility (Stone & Dobinson)/ Gibbons & Proctor (1918)/ R v Hood (2004)

Can you commit an assault by an omission?
-Fagan v MPC [1969]
-DPP V Santa – Bermudez [2004]

Question 7

Element 4: Apprehend

Answer 7

No Physical Harm Required
Apprehend= Expectation (of Contact)
Case- Lamb [1967]
Apprehend is NOT fear!!

Question 8

Element 6- Immediate

Answer 8

-“Taking effect without delay or lapse of time”
-R v Lewis [1970]
-Constanza [1997]- some point not excluding the immediate future
-Tuberville v Savage [1669]

Question 9

What are the other elements ?

Answer 9

Element 2: Causation (s.18/20)
Element 3: Another-obvious- can’t be liable for putting oneself in expectation of self-harm
Element 5: Infliction- application of force (direct or indirect)
Element 7: Unlawful force

Question 10

How do we spot the mens rea ?

Answer 10

• Criminal Damage by Fire (Arson) – to destroy or damage property intending thereby to endanger life of another, or being reckless as to whether the life of another would thereby be endangered
• Murder – Unlawful killing of a person in being with malice aforethought
  Rape:
  A)Intentionally penetrates the vagina, anus or mouth of another with his penis
  B) Does not consent to penetration, and
  C)Does not reasonably believe that consents

Question 11

Intention

Answer 11

-Most culpable form of MR
-It falls under s.8 CJA 1967
Q: What did the D actually foresee/what did they actually intend?

It isn’t:
Foresight
Motive
Premeditation

There are two types of intention which are:
-Direct Intention
-Indirect Intention

Question 12

Key Cases for Intention ?

Answer 12

R v Hyam [1975] HoL Intention = “foresight [that] consequences [were] highly probable.
Mohan (1976) “desiring to bring about the consequences of his actions”
Moloney (1985) Foresight of a natural consequence of D’s actions from which can infer intention

Question 13

What is direct and indirect intention ?

Answer 13

Direct intention
-Anthony Duff’s “sense of failure” test
Preferred approach as per Lord Bridge in Moloney:
-Give intention its ordinary plain meaning
-If direction is required to the jury… intention = what was the defendant’s aim or purpose
Indirect intention:
Old position as per Lord Bridge in Moloney:
1.Was death or serious injury…. a natural consequence of D’s act?
2.Did the D foresee that consequence as being a natural consequence of D’s act?
-How probable must the natural consequence be for D to be liable?
New position as per Lord Lane CJ in Nedrick:
-The jury are not entitled to infer [find] intention unless they’re sure whether:
1. Death or serious injury…. is a virtual certainty?
2. Was the D aware that this was a virtual certainty?

Question 14

What is recklessness ?

Answer 14

Causing harm through risk taking
R v Cunningham [1957] as per Bryne J
1.Defendant foresees there is a risk and yet still chooses to take it?
Subjective- R v Stephenson [1979]
2.Was the risk a justifiable one to take? (Objective test)

Question 15

How to answer a question on intention ?

Answer 15

1. Identify the MR of the offence
2. Can D be liable for intending the consequence?
   -If No- consider other form of MR.
   -If Yes- consider Q3 below
3. Direct Intention …. Was it D’s aim or purpose to cause the AR?
   -If Yes- made out
   -If No- consider Q4 below
4. Can indirect intention be found ie:
   a) Was death or serious injury a VC
   b) Was D aware = VC (virtual certainty)
   -If Answer to either 4 a) or 4b) is no- then there is no intention.
   -Consider other forms of MR if there are any in the MR of the offence.