Week 4- Non-fatal offences against the person

Question 1

Definitions of Assault and battery?

Answer 1

Assault definition: An assault is any conduct by which, INTENTIONALLY OR RECKLESSLY, caused V to apprehend IMMEDIATE and UNLAWFUL personal violence.

Battery Definition: A battery is any conduct by which D, intentionally or recklessly, inflicts unlawful violence upon V, without the consent of V and without good reason (Degrees of violence cannot be easily separated, and therefore unlawful touching, no matter how slight, can constitute battery).

Question 2

What kind of offences are assault and battery?

Answer 2

They were common law offences but are now two distinct statutory offences under s39 of CJA, replacing the complications of OAPA 1861.

Question 3

What are the AR and MR components of assault?

Answer 3

AR:

• Immediacy
• fear of unlawful violence

MR:

• Recklessness or intention
• can intend to cause someone to apprehend immediate unlawful violence against them
• Can also be reckless, by foreseeing that there is a risk that you will cause someone to apprehend immediate unlawful violence against themselves. (subjective recklessness applies)

Question 4

What are the AR and MR components of battery?

Answer 4

AR-

• infliction of Unlawful violence
• Lack of consent (may form part of the MR)

MR-
-Intention or recklessness as to the battery (subjective recklessness applies)

Question 5

How can batteries be committed without assault?

Answer 5

-If V is unaware of the presence of D, where D batters V from behind or V is asleep, a battery is committed but V has not apprehended immediate violence against themselves.

Question 6

What is the main defence to assault and battery, and where does the limitations of the defence lie?

Answer 6

-Consent: Consent applies as a defence to both assault and battery, but not to assault occasioning actual bodily harm. There is contention as to whether consent is a defence for assault or battery, or whether the lack of consent forms part of the actus reus. The law com regard it as a defence. But S and H suggest that it is an element of the offence instead. In theory it is important but in reality, less so; it just shifts the evidential burden from the prosecution (if it is part of the actus reus) to the defendants (if it is a defence).

Question 7

How does implied consent to battery operate in society?

Answer 7

Implied consent: Consent is often a defence to BATTERY because most ordinary physical touching’s are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact eg being on the tube. Touching someone to get their attention is held to have implied consent but physical restraint is not. Touching the clothes of a person counts as the persons bodily integrity. Implied consent also doesn’t work where one consents to one act but unbeknown to V another act involves harm eg unprotected sex with someone with an STD.

Question 8

What is the difference between non-disclosure and fraud, and what might be the practical implication in a rape case where consent is vitiated??

Answer 8

• Difference between non-disclosure and fraud (especially in potential sexual assault cases) The effect of the distinction drawn in B, between non-disclosure and fraud, means that there is a divergence of approach depending upon whether D is charged with a non-fatal OAP or a sexual offence. If he discloses his status and V consents, he is not liable. But in the context of sexual offences the burden falls on V to ask about the status; if D says nothing, he may be guilty of OAP but not rape. On the other hand if V asks and D knowingly lies about his status this may vitiate consent and therefore D becomes guilty of rape and maybe OAP if V gets the HIV. If V is not infected, D may still be guilty of rape.
• this all depends on whether recklessness towards inflicting an STD on a sexual partner is a relevant factor which can vitiate consent, going by the definition of consent, or if it is exclusively relevant to non sexual offences against the person

Question 9

What case created the exceptions to consent not being valid for any assault occasioning ABH or more?

Answer 9

Factual consent to mere battery and assault is valid in law. Factual consent to ABH or more is not legally recognised unless the activity involved is one which the courts or parliament have recognised to be in the public interest. Consent to assault or battery will always be valid provided the consent is effective, and no matter the circumstances (even sadomasochism as in brown). If D causes ABH or more, with intent to do so, consent is not valid unless the conduct falls within one of the recognised categories below (sports, medical work, personal adornment, rough horseplay).

Question 10

What types of fraud will and won’t vitiate consent?

Answer 10

Fraud as to the identity of the person or the nature of the act will vitiate consent, only if the fraud as to the identity of the person is someone “known personally” to V.

Question 11

What does Meachen say about Ds guilt when V consents to mere battery or harm, and ABH or higher results, with D not intending or being reckless as to the subsequent injuries?

Answer 11

Meachen has shown that whether D intends to cause the level of harm amounting to battery and his Vs consent to that level of harm, if D then causes ABH or worse, without being reckless in doing so or intending to do so, he is not guilty.

Question 12

Fagan v M.P.C. [1969] 1 Q.B. 439 facts and significance??

Answer 12

Facts- D drove car unknowingly onto Vs foot, abusing V when v made D aware of the battery against V, with D refusing to move the car.

Significance- Battery can be committed through the medium of an object
-assault or battery not possible through mere omission, this was argued as a continuing act, illegal when D gained the Mens Rea of battery and it coincided with his AR of unlawful touching of another

Question 13

D.P.P. v K [1990] 1 W.L.R. 1067 facts and principle?

Answer 13

Facts- K hides acid in school hand-dryer, V uses drier on face and suffers GBH.

Principle- battery need not be directed against a specified person. K was reckless as to another person using the hand drier.

Question 14

Brown [1994] 1 A.C. 212 facts and principle?

CONSENT

Answer 14

Facts- unlawful to inflict ABH or higher on another unless it is beneficial in the view of the public and falls into one of the specified categories, consent is not a defence.

Principle- group of specified activities where consent to ABH was not vitiated (sports, personal adornment, surgery, rough horseplay etc)

Question 15

Wilson [1997] Q.B. 47

CONSENT

Answer 15

Facts- man engraved his initials on his wife’s buttocks with her consent

Principle- the action was done in the privacy of a marital home and under the same conditions as someone undertaking personal adornment or tattooing, fell into the excepted groups in Brown.

Question 16

Ireland and Burstow [1998] A.C. 147

Psychiatric harm counting as ABH?

Answer 16

Facts- D made several threats against v, including ringing her house with silent phone calls, causing her to apprehend immediate violence. She suffered psychiatric harm as a result.

Significance- The Lords held that psychiatric harm constituted ‘bodily harm’, relevant to s18, 20 and 47 of OAPA.

• Silent phone calls could constitute an assault given the wider context of the abuse.
• ‘inflict’ in the statutory provisions wasn’t limited to physical infliction or ‘touching’. More synonymous with causation.

Question 17

Dica and Konzani general facts and principles?

Answer 17

General facts- both Ds were convicted of assault occasioning GBH as they had unprotected sex with women who had consented to unprotected sex, but not the risk of HIV transmission which both defendants were reckless towards.

Principle- Consent to unprotected sex did not follow with implied consent to the risk of HIV that the defendants were reckless to
-The law was not criminalising people having sex where there was a known risk of infection, but as the risk was not known to the victims, and there was no honest belief in consent to the risk on behalf of the defendants, the victims had a case.

Question 18

Barnes [2005] 1 W.L.R. 910]

Implied consent in sport.

Answer 18

Facts- D had broken Vs leg with a late challenge, appealing against his conviction for inflicting GBH under s20 of OAPA.

Principles- implied consent to ABH or GBH within sport, where players are playing within the parameters of the laws of the game.
-His conviction was quashed due to the implied consent of injury or risk of injury inherent in sport, alongside the fact that the sports had their own disciplinary actions and to amount to criminal would have to be seriously outside the situation of the game.

Question 19

How is bodily harm defined in ABH?

Answer 19

• Anything less than ‘grievous’ connotes anything less than serious but more than merely trivial or transient (very low threshold).
• No breaking of the skin required
• Harm need not be permanent

Question 20

What is the AR and MR of assault occasioning ABH?

Answer 20

AR

• Occasioning ( a matter of causation)
• actual bodily harm- less than ‘grievous’

MR-

• no further MR necessary than intention or being reckless to an assault (battery)
• it is a constructive crime, dependent on the actuality of ABH being caused.

Question 21

Savage and Parmenter facts and principle?

Assault occasioning ABH

Answer 21

Facts- -D had intended to throw beer at V but the glass had also been thrown, and had smashed and wounded V. D was charged with unlawful and malicious wounding of another under s20 of OAPA 1861. This was substituted for a verdict of assault occasioning ABH under s47 of the same act

Principle- The House of Lords affirmed the second charge on the basis that no further mens rea was required for the Assault occasioning ABH under s47 of OAPA 1861. It was a constructive crime resting on whether actual bodily harm was to occur or not, which in this case it did even without any relevant recklessness or intention on D’s behalf.

Question 22

What 2 offences exist under s20 of OAPA?

Answer 22

• Malicious wounding

- Inflicting GBH

Question 23

What are the elements of malicious wounding?

Answer 23

-To wound:To Wound: - The continuity of the whole skin must be broken to constitute a wound. Breakage of the skin is the vital element, not merely the outer skin or inner skin, but always both. The wound should be directly inflicted (whether via a weapon or instrument or not) through a battery or otherwise.

• Maliciously- D acts with malice if he intends or foresees a risk and takes the risk unjustifiably. The level of harm foreseen by D must be some harm, not serious harm.
• Subjective recklessness as in G and another should be used.

Question 24

What are the elements of maliciously inflicting GBH??

Answer 24

-GBH inflicted-GBH is to mean any harm which seriously interferes with health or comfort, but smith ensures that the word grievous still retains its normal meaning.

Inflict- Unlike in the past, where inflict connoted a physical assault, it has been held that inflict is to be treated more as a synonym for causation, in that there is no material difference in meaning as per Ireland.

Maliciously-D acts with malice if he intends or foresees a risk and takes the risk unjustifiably.

Question 25

How does an offence under s18 of OAPA differ to s20?

Answer 25

s20 can be committed with a lower MR of recklessness with regards to the GBH maliciously inflicted, whereas s18 requires an intent to inflict GBH against another.
-The Mens Rea of an offence under s18 is one of intent.

Question 26

What criteria must psychiatric harm fulfil in order to be sufficient for ABH or GBH?

Answer 26

-Must result in a recognised mental medical condition, mere mental disturbance will not suffice.

Question 27

What is the definition of consent given in SOA 2003 s74?

Answer 27

74 “Consent”
For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.

Question 28

What does s76 of SOA 2003 say with regards to consent being vitiated?

Answer 28

• In s76 the circumstances of deception are those listed within it, namely deception about the nature or purpose of the act, or an intention by D to deceive V as to consenting to sexual acts by impersonating a person known personally to the complainant.
• “in reality, some deceptions (such as in relation to wealth) will obviously not be sufficient to vitiate consent. In our judgement, Lord Judge CJs observation that ‘the evidence relating to “choice” and “freedom” to make any particular choice must be approached in a broad common-sense way’ identifies the route through the dilemma.”

Question 29

What possible circumstances can exist as per s75 of SOA which presume a lack of consent??

Answer 29

• the complainant was asleep or otherwise unconscious
• Violence used against V or assault
• victim unable to communicate their consent due to physical disability
• victim had unwillingly or unknowingly taken a substance known to D

Question 30

What is the AR and MR of rape?

Answer 30

AR-
-Penile penetration
(of mouth, anus or vagina)
-Without consent

MR-
-Intention
-No reasonable belief by A of Bs consent
-

Question 31

What implications could there be from As deception of Bs identity, whereby A has intercourse with Bs twin sister C, believing her to be C.

Answer 31

-The correct question is to whether there would be reasonable belief on As part as to the identity of B. If there was no pre-determined consent by A and B, and then A goes on to have sex with Bs twin sister C without her consent, he is guilty of rape. If there was pre-determined consent between A and B, the question would then be whether there were reasonable grounds for As mistake of having sex with C instead of B.

Question 32

What is the AR and MR of assault by penetration?

Answer 32

AR-

• Penetration (need not be penile)
• Lack of consent

MR-
-Intention to penetrate
-No reasonable belief in Bs consent
(there is no crime of reckless rape or assault by penetration)

Question 33

What is the AR and MR of sexual assault?

Answer 33

AR-

• A touching 1) with any part of the body 2) with anything else 3)through anything
• A lack of consent

MR-

• Intentional touching
• No reasonable belief of Bs consent

Question 34

What are the general ARs and MRs of sexual offences??

Rape, sexual assault, assault by penetration

Answer 34

AR-
a lack of consent and the physical act of the assault

MR
-no reasonable belief in Bs consent by A and an intention to do the unlawful act (no sexual assault by recklessness)

Question 35

Linekar [1995] Q.B. 250 facts and principles?

PRE-2003 ACT

Answer 35

Facts- A procured B (a prostitute) to have intercourse with him, claiming he would pay her £25 afterwards

Significance- Only fraud as to the identity of A would vitiate consent under the old sexual offences act, therefore deceit as to the nature or purpose (which currently vitiate consent) was not punishable and A was not charged.

Question 36

Bree [2008] Q.B. 131 facts and significance

post 2003 act

Answer 36

Facts-A, aged 25, and B, aged 19, had both voluntarily consumed a large amount of alcohol and it was accepted by both parties that they would have sex after. A was charged with rape on the basis that she was unconscious throughout most of it, but B gave evidence that she had consented and was conscious.

Significance- voluntary consumption of large quantities of alcohol does not default to ones inability to consent to sex. If they remained conscious and capable of consenting, this would suffice as evidence.

• if one falls unconscious despite consenting to sex, A becomes liable for rape as presumed lack of consent is triggered, when A becomes aware of Bs unconsciousness he must cease the act, or he will be guilty.
• Evidential presumptions are not conclusive of guilt when they are present.

Question 37

Jheeta [2008] 1 W.L.R. 2582

S76 (nature or purpose)

Answer 37

Facts- A deceived B into sexual intercourse with him, saying she would be arrested and he would kill himself if not

Significance- he was no guilty under s76 for deceit of the nature or purpose. The nature was sexual and the purpose was for his sexual gratification. He was instead liable for rape due to the lack of consent under the definition given in s74, as she did not have the freedom to consent effectively

Question 38

McNally [2013] EWCA Crim 1051; [2014] 1 Q.B. 593 facts and significance?

Answer 38

Facts- A, a 13 YO girl had met another girl on social media, B, and they had a sexual relationship together. A claimed to be a boy.

Significance- the nature and purpose of the oral and digital penetration might be a viable route for prosecution, but here it was held that A was guilty as Bs consent was not true under the definition under s74
“a person consents if he agrees by choice, and has the freedom and capacity to make that choice.”

Question 39

B [2013] EWCA Crim 3 facts and significance

reasonable belief in consent

Answer 39

Facts- -The defendant’s convictions for raping his partner were safe where there was expert evidence that his mental illness had not affected his ability to understand whether his partner had consented. Even if that were wrong, delusional beliefs that a victim was consenting could not render reasonable a belief that the victim was consenting when they were not.

Significance- -The 2003 act DID NOT MAKE a genuine belief in consent by D enough to raise a defence of consent. IT HAS TO BE AN OBJECTIONABLY VIEWED REASONABLE RELIEF.
-Unless the state of mind amounted to insanity in law, beliefs in consent arising from conditions such as delusional psychotic illness or personality disorders had to be judged by objective standards of reasonableness and not by taking into account a mental disorder that induced a belief which could not reasonably arise without it

Question 40

What is the difference between B’s active deception and As passive acquiescence in Bs deception?

Answer 40

-There is a difference to be found between active deception (normally a more guilty offence) and passive acquiescence in someone else’s deception (which connotes a less guilty state of mind). If someone actively lies about a nature or purpose of sex they should be guilty, but knowledge that V has a state of mind with regards to the nature or purpose of the act which D knows is false but D had not actively lied about, D may not be guilty.

Question 41

How does Herring recommend the law regarding deceit and consent relating to sexual offences Is changed?

Answer 41

• Herring is a firm believer that any information which would change a woman’s decision to have sex should be disclosed by the man, or at least is known or ought to be known to change the mind of the said woman. If such information is not disclosed when consent is given, the consent is vitiated and the man is liable for rape.
• Such a proposal certainly extends the strict limits imposed on the type of deceit which vitiates consent, currently limited to identity of the person (acting as another person known to the victim) or any deceit as to the nature or purpose of the act. Herring suggests an extension of the law to deceit as to what the parties think the sex is about; not just the purpose of the sex but the truthful reasons for it. (enlarged sense of purpose)

Question 42

What example does Herring use as to extending the scope for deceit under SOA 2003, and who disagrees with it?

Answer 42

• Gross: Rape, moralism and human rights:
• A reply to Herrings proposal in his 2005 article to extend liability for rape to situations where a man obtains a woman’s consent by deceiving her with regards to his feelings or her and his intention to marry her. In gross’s view, ‘imposing liability (for Rape) for purely moral wrongs violates basic human rights’.

Question 43

Why is gross wrong to say that acquiescence is equatable with consent to sex??

Answer 43

-Gross is wrong to say “Woman’s sexual autonomy is often championed by a declaration that ““No’ means “no’.” No less important in the same cause is a recognition that ““Yes’ means “yes’ because this is a very naïve (at best) view as to sexual culture and the pressures many women face with regards to having sex. Acquiescence does not require neither a yes or a no, but to act in such a way where no ‘no’ therefore means yes, and then to take this ‘yes’ at face value and run with it does not truly reflect the experience of a woman pressured or shocked at the prospect of sex, and reluctantly ‘agreeing’.

Question 44

What is the Miller (cigarette) rationale for battery by omission? (relating to the problem question I had)

Answer 44

• An act which ceases but continues to have effect against another person. The act is not a continuing act if it has stopped but continues to have effect.
• There can actually be an offence of battery committed via omission if you go by the Miller rationale (falls asleep smoking a ciggy and it burns the mattress and therefore house down). The act of an initial battery (AR of battery exists, but no MR) may end but continues to have effect. -Whilst it continues to have effect and D becomes aware that his initial AR of battery has led to this effect, he has gained the MR of battery and is therefore under a duty to remove the risk which he created, failure to do so makes him guilty of an offence.

Question 45

What is the importance of S74 of SOA?

Answer 45

It provides a definition for consent, and therefore in a problem question if it can be argued that any part of the question will not satisfy this definition “agrees by CHOICE, with FREEDOM and CAPACITY”.
-Therefore someone who pretends to be someone else not known personally to the victim won’t cause an offence under s76 but could quite possibly vitiate consent going off of this definition.

Question 46

When approaching problems questions and referring to assault or battery, what must be said about recklessness?

Answer 46

That Caldwell objective recklessness does not suffice and Cunningham subjective is the actual test for recklessness (or recklessness in G and another). Someone can only assault someone recklessly if, in the circumstances known to them, they could foresee that they assault or batter another person

Question 47

What is the authoritative case for assault occasioning ABH not needing any further mens Rea on behalf to the defendant?

Answer 47

Savage and Parmenter- D intends to throw beer at V but the glass also is thrown and caused ABH, therefore guilty under s47 of OAPA despite the initial assault only being punishable under s39 of the CJA 1988, if no ABH was to be caused

Question 48

For an offence of assault occasioning ABH to suffice when cutting hair, how much hair need be cut following DPP v Smith?

Answer 48

It must be a substantial amount of hair, ie anything more than trivial or transient, a lock of hair is unlikely to suffice.

Question 49

How many categories are there for ‘sexual’ according to Mirfield?

Answer 49

3

• Those which are inherently sexual (penetration)
• Those which are inherently not sexual
• Those which may be sexual dependant on the circumstances (R v H)

Question 50

What is the AR and MR of causing a person to engage in sexual activity under s4 of the SOA 2003?

Answer 50

AR- Bs engagement in sexual activity
-Lack of consent

MR- intention by D to cause B to engage in activity
-No reasonable belief in consent.

Question 51

What is the true understanding of savage and Parmenter?

Answer 51

• For a charge under s20 of OAPA, for malicious wounding or for causing GBH, there must be intention or foresight of some bodily harm; malicious in malicious wounding includes recklessness
• In savage, D was not reckless towards maliciously wounding (or even causing some bodily harm) when the beer glass slipped from her hand and cut Vs wrist; therefore a s20 offence was replaced with s47 offence of assault occasioning ABH, because there is no further MR necessary than simply what is required for assault or battery; the AR only changes in that the battery causes the ABH and the bodily harm be less than grievous but more than trivial and transient.