Tutorial 4 - Non-fatal assualts Flashcards
1
Q
Thomas (1985) 81 Cr App R 331 (CA)
A
it was held that the unwanted touching of a girl’s skirt amounted to a battery - nonconsensually touching someone’s clothing goes against the right to bodily integrity
2
Q
St George’s Healthcare NHS Trust v S [1998] 3 All ER 673
A
- hospital authorities carried out a Caesarean section (without which the lives of V and her baby were in danger) without V’s consent having got court approval - court of appeal held that the court order should not have been given and this decision went against V’s right to bodily integrity even though her decision appears irrational
3
Q
R (Kracher) v Leicester Magistrates’ Court [2013] EWHC 4627 (Admin)
A
- D and V got into an argument about parking and V blocking D’s way - according to V D punched him on the arm and said “Fuck off. If you come round the back I will beat you up”
- D charged with assault by battery - not sure if he had hit V but he had threatened him - appeal against conviction was allowed because he had been charged with a battery and so could not be convicted of the different offence of common assault
- didn’t identify actus reus properly - confused between the punch and the threat
4
Q
Ireland and Burstow [1997] 3 WLR 534 (including R v Ireland [1998] AC 147)
A
just Ireland:
- D made a large number of telephone calls to 3 women - when they answered he remained silent. Vs suffered psychological harm as a result. He plead guilty to a charge of assault occasioning ABH, contrary to s47 of the Offences Against the Person Act 1861, following the direction of the judge that the facts of the case cold justify such a conviction. Appealed on the basis that the admitted facts were incapable of amounting to the offence.
joint appeal (both):
- Debate centered on whether they had committed an assault. Appeal dismissed - they committed assault by causing Vs to fear imminent violence through the silent phone calls
- Lord Steyn - ‘he intends by his silence to cause fear and he is so understood. The victim is assailed by uncertain about his intentions. Fear may dominate her emotions’
5
Q
R v Constanza [1997] Crim LR 576
A
- D sent over 800 letters to V, repeatedly drove past her home and on 3 occasions wrote offensive words on her door. On 4 and 12 June she received 2 letters which she interpreted as threatening. Her fears that D might harm her ‘at some time not excluding the immediate future’ was sufficient to amount to an assault because among her fears was that D might inflict some force imminently.
6
Q
Logdon v DPP [1976] Crim LR 121
A
- D showed V a gun and announced that he intended to keep V hostage. When D saw V was frightened he told her that the gun was fake. D argued that he did not intend to carry out his threat and the gun was fake so he couldn’t carry it out. Conviction of assault upheld because he had created fear of violence in V, and the fact he did not intend to enact violence provided no defence.
- The mens rea of assault requires the defendant to intentionally or recklessly threatening the use of unlawful force, but does not require the defendant to intend to actually carry out the threat
7
Q
Tuberville v Savage (1669) 1 Mod Rep 3, 86 ER 684
A
T put his hand on his sword and said he would attack him if it wasn’t assize time - not assault because his words showed he wouldn’t harm them even though his actions could be seen as threatening
8
Q
Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 (QBD)
A
- D drove his car onto a police officer’s foot unintentionally and turned off his engine when the constable told him to remove his car. Convicted of assault. Even though he lacked intention when he first drove onto the foot to harm the constable, this intention arose during the continuing act of being on his foot.
- James J - it is not necessary for the mens rea to be present at the time of actus reus if it is superimposed on an existing continuing act
9
Q
R v Venna [1976] QB 421
A
- D violently resisted arrest for causing a disturbance, fracturing a police officer’s hand in the process. D was convicted of assault occasioning ABH - appealed on the basis that the judge erred in directing that recklessness in applying physical force was sufficient
- Jones LJ - ‘We see no reason in logic or in law why a person who recklessly applies physical force to the person of another should be outside the criminal law of assault. In many cases the dividing line between intention and recklessness is barely distinguishable. This is such a case.’
- established the mens rea for assault (that it can be reckless or intentional)
10
Q
DPP v Santa-Bermudez [2003] EWHC 2908 (Admin)
A
- D lied and said they had no sharp objects during a police search and V was cut by a needle in his pocket. Divisional court found battery, holding that ‘where someone (by act or word or a combination of the two) creates a danger and thereby exposes another to a reasonably foreseeable risk of injury which materialises, there is an evidential basis of the actus reus of an assault occasioning ABH’
- cannot commit battery by omission so consider it to be committed by the act of having the needle in the pocket, rather than the failure to inform the police
11
Q
DPP v K [1990] 1 All ER 331
A
- D put acid in a hand dryer and another student had acid squirted in his face
- held that this amounted to a battery even though D had not directly applied the acid
12
Q
Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890
A
- D struck a woman who was holding her baby, causing her to drop the baby
- D was charged with battery against the baby - held that he was properly convicted because he had caused unlawful force to be applied to the baby when the baby hit the floor
13
Q
Collins v Wilcock [1984] 1 WLR 1172
A
- police officers suspected that women were soliciting for prostitution. They approached them, but one refused to answer questions and walked away. One officer took hold of her arm and D scratched the officer. D convicted of assaulting a police officer in the execution of her duty, contrary to s51 (1) of the Police Act 1964. Appealed on the basis that when the assault occurred the officer was not acting in the execution of her duty. The key question was whether the officer was committing a battery by grabbing D’s arm.
- Appeal held - Lord Justice Robert Goff - the officer’s action of restraining D ‘went beyond thegenerally acceptable conduct of touching a person to engage his or her attention’ and thus constituted a battery
- made it clear that everyday touching are not batteries unless they go beyond what is seen as everyday
14
Q
R v Parmenter, Savage [1992] 1 AC 699 HL
A
- mens rea of assault occasioning ABH is intention or recklessness as to whether some physical harm might be inflicted - mens rea for s47 OAPA 1861 is the same as assault - no need to prove foresight
- 2 conjoined appeals - P caused injuries to his baby due to rough handling while playing, argued that he didn’t realise his actions would cause injury, convicted under s20 OAPA 1861 (maliciously wounding/inflicting GBH), appeal case addressed whether foresight was necessary for a conviction, S intentionally threw beer at her boyfriend’s ex and appealed her conviction under s47 OAPA on the basis she didn’t foresee harm
- Savage’s appeal was dismissed - for s47 the only mens rea required is the mens rea for assault, which doesn’t require foresight or intention
- Parmenter’s appeal allowed - conviction substituted for one under s47 - Lord Ackner - meaning of maliciously in s20 is that D intended or foresaw harm (not necessarily GBH but some form of harm)
15
Q
R v Cox [1998] Crim LR 810
A
- D stalked his ex girlfriend over a 9 month period (including phone calls, showing up at her flat, threatening her etc) and was convicted of assault occasioning ABH (caused her to have depression, headaches, insomnia and weight loss)
- appealed over the use of 2 statements from V’s neighbour who couldn’t be present so were read in court - neighbour had some issues in remembering facts, it was some time afterwards etc and judge did not mention this (it was evident in the statement)
- also appealed over judge’s instructions concerning unanimity - that jury should consider each allegation (individual incident) and only find it proved if they were unanimous, they didn’t have to find every allegation proved to find D guilty but they had to find “sufficient acts within a type and sufficient types to have been responsible for the actual bodily harm”
- appeal dismissed - judge’s direction was correct and they didn’t have to consider each individual allegation (eg every single phone calls) if they found sufficient incidents to constitute the offence - direction followed the precedent set in Brown
16
Q
T v DPP [2003] Crim LR 622
A
loss of consciousness amounts to ABH under s47 OAPA as it is an injurious impairment of bodily functions- D kicked V while V was lying down, causing V to lose consciousness but no external harm was sustained
17
Q
DPP v. Smith [2006] Crim.L.R. 528
A
cutting hair without consent amounts to ABH under s47 OAPA - D woken up by girlfriend, climbed over her and cut off some of her hair
18
Q
JCC v Eisenhower [1984] QB 331
A
- D convicted of unlawfully and maliciously wounding under s20 OAPA. Hit V with an airgun pellet, leading to a bruise below the eyebrow and fluid filling the left eye had for some time afterwards abnormally contained red blood cell - judges concluded that this indicated the rupture of internal blood vessels and thus constituted a wound.
- Appealed on the basis this wasn’t a wound - appeal held and conviction quashed - case law established that a wound was a break in the continuity of the whole skin, and D had not inflicted this
19
Q
R v Dica [2004] EWCA Crim 1103, [2004] 3 All ER 593
A
- GBH is inflicted when HIV or another STD is transmitted. Consent by V to the risk of STDs is a defence under s20 OAPA but not s18
- only considered the transmission of serious sexual diseases
- D was aware he had HIV and transmitted it to 2 women. Convicted of inflicting GBH under s20.
- Appealed on basis that judge had told jury to convict even if the women were aware of his condition - appeal held and conviction quashed - Judge LJ - consent is a valid defence to reckless transmitting STDs through intercourse
20
Q
R v Konzani [2005] EWCA Crim 706
A
- consent to the risk of STD infection through sex is no defence to s20 OAPA if it is uninformed due to concealment by D
- D was aware he was HIV positive and slept with 3 women. Convicted under s20 OAPA.
- Appealed on the ground that the women had consented to the risk of HIV by having unprotected sex - appeal dismissed
- Judge LJ - implicit in the reasoning of Dica that V must give informed consent to the risk of STD infection in order for consent to be a defence, and D concealing his condition meant the women weren’t informed - honest belief by D of informed consent can be a defence but here there was no evidence of it
21
Q
R v Bollom [2004] 2 Cr App R 6, at [50-53]
A
- V’s characteristics (including age) must be taken into account when determining whether harm constitutes ABH
- D dropped his partner’s baby after a night of drinking, causing bruising on V’s leg. V had other injuries but it was unclear where they came from.
- Convicted under s18 OAPA (intentionally causing GBH) - appealed on basis that V’s injuries did not amount to GBH as they had to be assessed without reference to V’s age or health
- Appeal allowed - conviction substituted for assault occasioning ABH under s47
- Fulford J - assessment of harm had to made on the basis of the effect on V, injuries don’t need to be permanent or dangerous to constitute GBH, injuries had to be viewed collectively to determine if they’re serious, although V’s age had to be taken into account when assessing his injuries the judge failed to direct the jury to determine D’s responsibility in inflicting the injuries was uncertain so the conviction was unsafe (they were only sure he had caused the bruising on the leg)
22
Q
R v Golding [2014] EWCA Crim 889
A
- D had genital herpes and passed it on to V without her informed consent. Convicted under s20 (pleaded guilty)
- Appealed against conviction and sentence on ground that he thought he had been failed by his representation and that his plea was not informed, voluntary and unequivocal
- Appeal against conviction dismissed - his plea was seen as safe
- Appeal against sentence allowed - 14 month sentence changed to 3 months (which he had already served) - he plead guilty and there was substantial delay in dealing with the appeal which disrupted his life
23
Q
H v CPS [2010] EWHC 1374 (Admin)
A
- the fact that a job may involve a risk of physical harm does not constitute consent to being harmed
- D, a student with ADHD, assaulted a teacher at a school for students with special needs. Argued that the assault had implied consent because the teacher had taken on that risk.
- Appeal dismissed - occupational risk not the same as implied consent to the use of violence against them by pupils.
- An analogy to implied consent in contact sports to the risk of injury was rejected (link to Barnes rejected)
24
Q
R v Tabassum [2000] Crim LR 686
A
- consent to assault is vitiated where there is fraud as to the nature or quality of the act
- D pretended to be conducting a medical survey into breast cancer and examined womens breasts for it. Convicted of assault but appealed on the basis that the women had consented to having their breasts examined
- Appeal dismissed - the defence of consent didn’t apply
- Rose LJ - “he women were ‘consenting to touching for medical purposes, and not to indecent behaviour, that is, there was consent to the nature of the act, but not its quality’
25
Q
R v Melin [2019] EWCA Crim 557
A
- D pretended to be a medical practitioner and administered what he said was botox to 2 women, both of whom suffered really serious harm
- Convicted of 2 counts of causing GBH under s20 OAPA
- Appealed and had his sentence shortened - no intention to harm and he didn’t technically lie about being a medical practitioner, he just didn’t tell them he wasn’t and it was implied
26
Q
R v Paterson [2022] EWCA 456
A
- D was a doctor but deliberately misrepresented the contents of medical reports, exaggerated the complainants’ risk of cancer, and advised and knowingly carried out unnecessary surgery including mastectomies
- Convicted of 17 counts of wounding with intent under s18 OAPA and 3 counts of inflicting GBH under s20 - sentenced to 15 years in prison, which increased to 20 years after a reference by the Attorney General to s36 Criminal Justice Act 1988 (suggesting that the sentence was too lenient)
- Some of his patients have since died when their cancer returned because he carried out treatment that left them at a greater risk
27
Q
AG Ref (6 of 1980) [1981] QB 715
A
- consent is not a defence to fighting or whenever ABH is intended or caused
- D and V agreed to fight each-other. Judge directed not to find guilt if V consented and D used reasonable force so D was acquitted
- Question raised to Court of Appeal about whether consent was a valid defence to assault arising from fighting - they found that it was not - exceptions apply to things like sports, surgery etc
28
Q
R v Brown [1994] 1 AC 212
A
- Consent is no defence to inflicting actual bodily harm, grievous bodily harm or wounding under ss 20 and 47 OAPA
- Exceptions for sports, surgery, taking risk of infection in sexual acts
- group of gay men engaged in sado-masochistic activities, convicted under s20 and s47. Judge directed jury that prosecution did not have to prove whether Vs consented.
- Appeal dismissed - Lord Templeman consent is not a defence to abh, wounding or gbh (it is in common assault or battery) - except in cases like sport, piercing, tattooing etc - these exceptions should not extend to sado-masochistic activities due to health risks and public morality - “Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised”
- Lord Mustill dissented based on the privacy involved - “consensual private acts” - Lord Slynn of Hadley also dissented - “It is a matter of policy in an area where social and moral factors are extremely important and where attitudes can change”
29
Q
R v Wilson [1996] 3 WLR 125
A
- D branded his initials on his wife’s buttocks with a hot knife at her request and was convicted under s47 OAPA. Appealed on the basis of consent as a defence
- Appeal allowed - consent was a valid defence
- Russell LJ - this is different to the Brown case because it is like tattooing (an exception) and it was seen as a private consensual matter between a married couple
30
Q
R v Aitken (joint appeal with R v Bennett and R v Barson) [1992] 4 All ER 541
A
- Ds were at an RAF party and had been drinking. V indicated he was going to bed and (as they had done to others during the party with no harm caused) Ds set his fire resistant suit alight using white spirit - they put out the fire quickly but V had severe burns. Ds charged with inflicting GBH under s20 OAPA - accepted that they had not intended to cause injury
- judge advocate directed the court that the appellants had acted maliciously if they had foreseen that their act might have caused injury or would have foreseen that injury would be caused if they had not been drinking
- appeal allowed and convictions quashed - although the judge advocate was correct in his direction because s20 is not an offence of specific intent so the judge advocate was correct that foresight of injury was enough to constitute acting maliciously - appeal allowed because V had taken part in similar horse play throughout the evening so it was possible that his continued presence was an acceptance that this could happen and it was arguable that Ds genuinely believed he consented - the judge advocate’s direction on unlawfully causing injury did not include these matters so the convictions were quashed
31
Q
Richardson and Irvin [1999] 1 Cr App R 392
A
- To be guilty of a crime with the mens rea of recklessness while intoxicated, the risk of harm must be foreseeable to the defendant when sober, and not just foreseeable to a reasonable person when sober
- Ds threw V down a balcony during horseplay while drunk and was charged with inflicting GBH. Judge directed jury that they had to be sure they were reckless to the standards of a reasonable and sober man.
- Appeal allowed and conviction quashed - judge should have directed jury that Ds were guilty if they would have foreseen the risk when sober - this confusion was enough to have the convictions quashed because it meant they might be unsafe
32
Q
R v BM [2018] EWCA Crim 560
A
- defence of consent does not apply to ABH in the form of body modification
- D, a tattooist, carried out body modifications on V (removal of a nipple, removal of an ear, division of the tongue) and was convicted of wounding with intent to do GBH under s18 OAPA. Appealed on the basis the procedures were consensual
- Appeal dismissed - currently body modifications is not an exception to the rule that consent is not a defence for violence causing ABH or worse injury
- Lord Burnett CJ - the exceptions to the rule may produce discernible social benefit and would be regarded as unreasonable for common law to criminalise eg long accepted practices like tattoos - modifications can lead to long term consequences and many who seek them are vulnerable to mental illness -
33
Q
R v Barnes [2005] Crim LR 381
A
- participants in contact sports are deemed to have consented to a reasonable risk of harm
- D was an amateur footballer who injured another player during a tackle. D convicted of inflicting GBH under s20 OAPA. Appeal allowed and conviction quashed
- Lord Woolf CJ - a play within the rules of the sport is accepted, and conduct outside the rules can be expected to occur in competitive sport - depends on circumstances (the sport, the level its played at, nature of the act, risk of injury, D’s state of mind) - in borderline cases jury would have to consider whether conduct could be regarded as an instinctive reaction, error or misjudgement in the heat of the game
34
Q
R v Slingsby [1995] Crim LR 570
A
- unforeseen physical injury resulting from consensual sexual activity is not criminal since there is no underlying assault or unlawful act
- D penetrated V’s vagina and rectum with his fingers and cut her with his signet ring. V developed septicemia and died. D convicted of manslaughter under ss20 and 47 of OAPA - appealed on grounds it was consensual and the injury was not foreseeable
- appeal allowed and conviction quashed
- Judge J - inserting fingers into the vagina and rectum was not an assault or an unlawful act (consensual) and the injury was unforeseen and unintended
- contrasts Brown where Ds intended to inflict violence
