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Criminal: Non-Fatal OAP > Webcast > Flashcards

Webcast Flashcards

0
Q

What is the AR of assault?

A

An act which causes the V to apprehend immediate unlawful force.

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1
Q

What is also known as a ladder offence?

A

Non-fatal offences that form a hierarchy according to the degree of harm caused and the MR required.

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2
Q

What is the MR of assault?

A

Intention to cause the V to apprehend immediate unlawful force or be subjectively reckless.

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3
Q

What is the AR of a battery?

A

The actual infliction or application of unlawful force.

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4
Q

What is the MR of a battery?

A

Intention or subjective recklessness as to inflicting unlawful force.

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5
Q

What do assault and battery have in common?

A

They do not require any harm or injury to be caused to the V and the D need not intend to cause harm or foresee a risk of harm to the V.

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6
Q

What is the lowest offence on the ladder and what sentence can you receive?

A

Assault and battery which are usually triable only offences and are heard in the magistrates. Max 6 month imprisonment.

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7
Q

What offence is above assault and battery on the ladder?

A

Assault occasioning actual bodily harm (s47 offence).

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8
Q

What is the AR and MR of a s47 offence?

A

Where the AR and MR of either assault and battery are present AND some harm is caused to the V.

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9
Q

What degree of harm is required for a s47?

A

Any hurt or injury that interferes with the health and comfort of the victim, need not be permanent but must be more than trifling (Donovan), should not be wholly insignificant (Chan Fook) would include bruising and minor cuts as well as minor fractures.

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10
Q

What is the max sentence for a s47?

A

5 years imprisonment.

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11
Q

What offence is above s47 (assault occasioning actual bodily harm)?

A

Unlawfully and maliciously wounding or inflicting GBH, s20.

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12
Q

How is a s20 offence committed and what is the MR?

A

It is committed where the D wounds the V or causes him really serious harm (AR). MR is intention or subjective recklessness as to some harm. D need not foresee the precise harm caused.

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13
Q

What is the max sentence for a s20 offence?

A

5 years imprisonment.

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14
Q

What offence is at the top of the ladder, above s20?

A

Wounding or causing GBH with intent, s18.

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15
Q

What is the AR of a s18 offence?

A

It is the same as 20, the ad must wound or cause really serious harm to the V.

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16
Q

What must you need to do in order to obtain a s18 conviction and what is the max sentence?

A

Prosecution must prove the D intended to cause really serious harm to the V. Any sentence can be imposed up to life imprisonment.

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17
Q

Are battery and assault the most serious non-fatal OAP?

A

No.

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18
Q

Does assault require the application of force to V?

A

No.

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19
Q

Which section of the OAP act 1861 creates the offence of assault occasioning actual bodily harm?

A

S47.

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20
Q

What is the MR of assault occasioning actual bodily harm?

A

It is the same as the MR for the underlying assault or battery.

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21
Q

What is the AR of the offence contrary to s20 of the OAPA 1861?

A

Wounding or GBH.

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22
Q

What is the AR of the offence contrary to s18 of the OAPA 1861?

A

Wounding or GBH.

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23
Q

Is the offence under s18 OAPA 1861 more serious or less serious than a s20 offence?

A

S18 is more serious.

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24
Q

How should you make reference to an offence of assault or battery in an exam?

A

A technical assault or battery.

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25
Q

What is the definition of assault?

A

Any act by which a D intentionally or recklessly causes another person to apprehend immediate unlawful force.

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26
Q

What is the AR of assault?

A

An act which causes the V to apprehend immediate unlawful force.

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27
Q

What did the case of Santa-Bermudez confirm with regards to omission?

A

That assault could be committed by omission where the D had created a dangerous situation which he failed to rectify.

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28
Q

Can assault be committed by words alone?

A

Yes, words, actions or both (Contanza and Ireland and Burstow, held making a silent telephone call could constitute an assault).

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29
Q

How can assault be conditional?

A

By saying I would hurt you if it wasn’t for X (Tuberville - if it were not assize time); or I will hurt you unless (Read v Coker - D threatened to hurt V unless he left premises).

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30
Q

What does the word apprehend mean?

A

Requires the V to apprehend immediate force but he does not have to be frightened (R v Lamb).

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31
Q

How do we interpret immediate?

A

Widely. In Smith it was satisfied even though he was outside the building. Constanza said at some time not excluding the immediately u’re. Ireland and Burstow it was the immediate arrival of the D.

32
Q

Why is unlawful force important?

A

As some force may be lawful.

33
Q

What is the MR of assault?

A

Intention or subjective recklessness as to causing the V to apprehend immediate unlawful force. In other words the D intends or must foresee a risk the V will apprehend immediate unlawful force as a result of his actions.

34
Q

When does a battery occur?

A

Where the D intentionally or recklessly inflicts unlawful personal force upon another person.

35
Q

What is the AR of a battery?

A

The infliction of unlawful force upon the V.

36
Q

How severe must the application of force be for a battery?

A

The touching need not be violent in the commonly understood meaning of the word (Collins v Wilcock - police officer committed a battery when she took hold of a woman’s arm to restrain her).

37
Q

Give an example of when force may be lawful?

A

Self defence or with consent of the V. Consent can be express or implied, implied to be knocked on a busy metro for example.

38
Q

What type of physical contact is required for a battery?

A

Contact with clothes will suffice (Day) and you do not need to feel its impact (R v Thomas - rubbed bottom of skirt). You can also touch with something (Fagan).

39
Q

Can force be indirect?

A

Yes. DPP v K filled hand dryer with acid. Force was indirect when student dried hands.

40
Q

What is the MR of a battery?

A

Intention or recklessness as to the infliction of unlawful force.

41
Q

What section does assault occasioning actual bodily harm come under?

A

S47 OAPA 1861.

42
Q

What is the AR of a s47 offence?

A

Assault which occasions actual bodily harm (assault meaning either assault or battery so that AR must be present).

43
Q

What does occasioning mean?

A

Causing, so causation principles apply in fact and law.

44
Q

What did the case of Miller define actual bodily harm as?

A

Any hurt or injury that interfered with the health and comfort of the V.

45
Q

What is the case that allows bodily harm to include psychiatric harm?

A

R v Ireland and Burstow - silent phone call.

46
Q

What did Chan Fook say about psychiatric harm?

A

That it could not include emotions such as fear or panic.

47
Q

What did the case of a holding say that allegations of psychiatric injury needed?

A

It needs to be supported by appropriate expert evidence (Morris).

48
Q

What does the charging standard of the CPS say about the charge of assault occasioning actual bodily harm?

A

That it will be appropriate if there has been a need for a number of stitches or a hospital procedure under anaesthetic.

49
Q

What is the MR for assault occasioning actual bodily harm?

A

R v Savage and Parmenter confirmed it is the same MR as either the assault or battery.

50
Q

What is the meaning of assault in the context of s47 OAPA 1861?

A

Either a technical assault or a battery.

51
Q

D gives V a lift home. As they are driving along, D tries to take off av’s coat. V thinks that D is trying to sexually assault her and jumps from the car sustaining serious bruising. D is charged with assault occasioning actual bodily harm. Would the jury be entitled to conclude that D occasioned av’s injuries?

A

Yes. Occasioning means causing (Roberts).

52
Q

Which case said that ABH means more than merely transient or trifling?

A

R v Miller.

53
Q

Which case said the harm had to be not so trivial as to be wholly insignificant?

A

Chan-Fook.

54
Q

What is the MR of a s47 offence?

A

It is the same as the MR for assault or battery.

55
Q

What is the AR of a s20 offence?

A

Unlawfully wounding or inflicting GBH.

56
Q

What constitutes a wound?

A

It is a break in the continuity of the skin, a break of both the dermis and epidermis. It is the depth rather than the width that is important (Eisenhower).

57
Q

What does grievous mean?

A

Really serious harm (Smith).

58
Q

When does the CPS charging standard say a charge of GBH will be appropriate?

A

Broken bones, substantial loss of blood, serious psychiatric injury supported with expert evidence, permanent disability.

59
Q

What does inflict mean?

A

Caused (Ireland and Burstow).

60
Q

What is meant by maliciously?

A

Intentionally or recklessly (Savage and Parmenter - he must intend harm or foresee a risk some harm might occur).

61
Q

What is the AR for a s18 offence?

A

The same as a s20. They must wound or cause GBH.

62
Q

What is the MR of a s18 offence?

A

Intention to do GBH or to resist or prevent the lawful apprehension of any person.

63
Q

Can the courts look at the totality of injuries and determine a conviction of GBH?

A

Yes. R v Birmingham held that the injuries collectively could amount to GBH.

64
Q

What is consent a defence to?

A

Assault and battery, it can only be a defence to ABH/GBH/wounding if the activity is in the public interest.

65
Q

How can consent be invalid?

A

If the V lacks the capacity to consent, if it was obtained by fraud or if it is not an informed consent.

66
Q

How will you lack capacity to consent?

A

Mental incapacity, intoxication or youth (Burrell v Harmer).

67
Q

What type of fraud will make consent invalid?

A

Fraud of the D’s identity (impersonating someone) and fraud to the nature or quality of the act (R v Tabassum - breast survey).

68
Q

What is in the public interest to allow consent as a defence?

A

Surgical interference, tattoos and piercings, contact sports, rough horseplay.

69
Q

What factors are considered in deciding if criminal proceedings are appropriate in contact sport?

A

The type of sport, level it is being played, degree of force used, state of mind of D.

70
Q

When can consent not operate as a defence?

A 
Prize fighting/street fighting (R v Coney)
Sadomasochist violence (R v Brown and others)
71
Q

D has sexual intercourse with V without telling her he is HIV positive. V contract HIV as a result. Which offence would D be charged with?

A

S 20 OAPA 1861 (Dica).

72
Q

What type of defence is self defence?

A

A common law defence, it is potentially available to any crime but most commonly used for OAP, it also covers the defence of others (R v Duffy).

73
Q

What are the requirements for self defence?

A

It must have been necessary to use the force and the degree of force used must have been reasonable.

74
Q

Whether the force is necessary, is that a subjective or objective test?

A

Subjective (R v Williams, R v Owino) the jury decide whether it was necessary to use the force in the circumstances the D believed them to be.

75
Q

What about mistaken belief if you are intoxicated?

A

You cannot rely on it if you are voluntarily intoxicated (R v O’Grady).

76
Q

What do the jury need to take into account when deciding whether it was necessary to use the force?

A

The man about to be attacked can strike the first blow if the circumstances justify a pre-emotive strike. He cannot use the defence is he is attacking, retaliating or revenging himself (R v Beckford).

77
Q

Can psychiatric conditions be taken into account for self defence under OAP when looking at the subjective elements?

A

No (R v Canns).

78
Q

In self defence, what if the amount of force used is disproportionate in the circumstances as the D believed them to be? Can he still use self defence as a defence?

A

No it will be unreasonable (Palmer).

Criminal: Non-Fatal OAP (2 decks)

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