WS2 Non-Fatal Offences Against the Person (Unit 2.1)

Question 1

Stages of a problem question on non-fatal offences against the person?

Answer 1

STEP 1: State DEFENDANT (e.g. Liz) and the BEHAVIOUR that is in question (E.g. scratching PC Davies’ face)
STEP 2: State most serious OFFENCE that D may have committed (e.g. s.18 OAPA) on the facts:
STEP 3: Has the offence been Committed?
STEP 4: If the offence cannot be proven, consider next most serious offence
STEP 5: If the AR and MR can be made out, consider whether the following DEFENCES are relevant:

Question 2

Sentence for s.18 OAPA 1861?

Answer 2

Maximum sentence is life imprisonment. Indictable only offence.

Question 3

Sentence for s.20 OAPA 1861?

Answer 3

Triable either way, same maximum sentence as s.47 (5 years) although in practice sentences are usually heavier for s.20 than s.47.

Question 4

Sentence for s.47 OAPA 1861?

Answer 4

Maximum 5 years and is triable either way

Question 5

Sentence for simple/physical assault?

Answer 5

summary offences, fine not exceeding level 5, or 6 months.

Question 6

Actus Reus for s.18 OAPA 1861?

Answer 6

Wound or cause GBH

DPP v Smith: GBH = ‘really serious harm’ – but case law provides not further guidance – simply a question for the jury to decide whether they think the victim’s injuries amount to really serious harm
• Burstow: GBH includes really serious psychiatric harm (if a recognised condition). Also, (Ireland – heard at same time as Burstow,) indicates that there can be infliction of GBH without legal equivalent of physical or simple assault (stalker making silent calls)
• Moriarty v Brookes (1834): breaking both layers of the skin/drawing blood constitutes wounding
• JJC (a Minor) v Eisenhower [1984]: Bruising/internal bleeding is NOT wounding

Question 7

Mens rea for s.18 OAPA 1861?

Answer 7

1) (Direct) intent to cause GBH,

OR,

2) RECKLESSNESS as to causing SOME HARM (i.e. ABH);
AND,
INTENT to resist/prevent arrest

Question 8

Actus Reus for s.20 OAPA 1861?

Answer 8

Would or inflict GBH

• DPP v Smith: GBH = ‘really serious harm’ – but case law provides not further guidance – simply a question for the jury to decide whether they think the victim’s injuries amount to really serious harm
• Burstow: GBH includes really serious psychiatric harm (if a recognised condition). Also, (Ireland – heard at same time as Burstow,) indicates that there can be infliction of GBH without legal equivalent of physical or simple assault (stalker making silent calls)
• Moriarty v Brookes (1834): breaking both layers of the skin/drawing blood constitutes wounding
• JJC (a Minor) v Eisenhower [1984]: Bruising/internal bleeding is NOT wounding

Question 9

Mens Rea for s.20 OAPA 1861?

Answer 9

‘Maliciously’ i.e. Intention or Recklessness as to ABH (R v Savage; R v Parmenter)

Question 10

Actus Reus for s.47 OAPA 1861?

Answer 10

1) Simple/physical assault
2) Causing
3) ABH

• R v Miller: ABH = any hurt/injury calculated to interfere with the health and comfort of the V
• R v Ireland: ABH may include psychiatric harm if a recognised condition (Lord Steyn confirmed the earlier case of R v Chan-Fook [1994])

Question 11

Mens Rea for s.47 OAPA 1861?

Answer 11

Intention or recklessness as to the infliction of unlawful personal force i.e. physical assault only (NB. D need not have intended/foreseen ABH) (R v Savage; R v Parmenter [1991] – See Lord Ackner’s judgement)

Question 12

Actus Reus for Physical Assault?

Answer 12

1) Infliction
2) Of unlawful personal force upon V (NB. No injury is required e.g. spitting is enough)

• Haystead v Chief Constable of Derbyshire: application of force can be indirect: D guilty of physical assault on a baby when he punched the baby’s mother, causing her to drop the baby
• DPP v K [1990] – boy puts acid in hand dryer at school, boy turns on and goes on face, permanent scarring. Force applied need not be direct (s.47 OAPA case)

Question 13

Mens Rea for Physical Assault?

Answer 13

Intention/Recklessness as to the INFLICTION of unlawful force.

Question 14

Actus Reus for Simple Assault?

Answer 14

1) Acts or words (R v Ireland [1997] – House of Lords: Words alone can amount to an assault)
2) Which cause V to apprehend immediate and unlawful force (Fagan v Met Police Commissioner [1969] – provides the classic definition of simple assault)

Question 15

Does threat have to be immediate (simple assault)?

Answer 15

• Must fear that threat could be immediate. R v Burstow [1997] – D stalking victim over a number of years, sending photographs and letters, telephoning her and visiting her home. V suffered psychiatric harm.

Question 16

Can conditional threats amount to simple assault?

Answer 16

• Conditional threats: such a restriction on the personal liberty of the victim is unwarranted and the D should still be liable for assault (Read v Coker (1853))

Question 17

Mens Rea for simple assault?

Answer 17

Intention/Recklessness as to V Apprehending such force (R v Venna)
- Test for recklessness is subjective (R v Spratt [1991]) – D must foresee the risk and the victim will apprehend immediate unlawful personal force and go on to take that risk

Question 18

What is the similarity between physical assault and s.47?

Answer 18

Same mens rea (R v Savage; R v Parmenter)

Question 19

Can silent telephone calls amount to assault?

Answer 19

R v Ireland [1997] - YES – depending upon the facts. Pattern of silent calls would be enough – does fear dominate his victim’s emotions? What is the impact of the caller’s potentially menacing calls?

Question 20

CPS Charging Standards?

Answer 20

• GBH: permanent disability/loss of sensory function, more than minor breaks, substantial loss of blood (usually requiring transfusion), injuries resulting in lengthy treatment/incapacity
• ABH: minor cuts (where medical treatment required e.g. stitches), extensive bruising, temporary loss of consciousness, minor fractures, broken nose

Question 21

What was the original position on whether consent was valid?

Answer 21

R v Clarence (1888) – general position in criminal law that the consent did not have to be fully informed to be valid. As long as you knew the identity of the assailant and the nature of the act you were agreeing to, that was sufficient. FACTS – man has sex with wife knowing he has venereal disease. Wife contracted. Clarence charged under s.20 OAPA but court held he had not assaulted his wife as she had consented. Knew the ID of assailant (husband) and nature of the act (sexual intercourse)

Question 22

Which case confirmed Clarence?

Answer 22

• R v Richardson [1999] – Confirmed Clarence. D was a registered dentist who was suspended from practice by the General Dental Council. Whilst still suspended, she carried out dentistry on the ‘victim’ who complained to the police. Charged and convicted to assault occasioning ABH as the trial judge stated that the fraud about her professional status vitiated the apparent consent. CONVICTION QUASHED as the court held the consent given was valid.

Question 23

What was the first case to alter the law’s position on whether consent has to be fully informed?

Answer 23

• R v Tabassum [2000] – Man pretends to women that he is medically qualified and carrying out breast cancer research. 3 women undergo examination, but subsequently say they would not have done so had they known the truth. Unlike in Richardson, Tabassum concentrated on the nature of the assailant. COURT OF APPEAL – distinguished Richardson. Stated that Vs must know the nature and quality of the act if their consent is to be valid.

Question 24

Reasoning of majority in Clarence had no continuing application?

Answer 24

• R v Dica [2004] – Court of Appeal – The defendant, knowing that he was HIV positive, had unprotected consensual sexual intercourse with two women, who were both subsequently diagnosed as HIV positive. Factual dispute as to whether the D’s victims had known of his HIV status. Lord Judge ruled that the reasoning of the majority in Clarence has no continuing application.

Question 25

Second HIV case where court ruled consent had to be informed? What were the facts?

Answer 25

• R v Konzani [2005] – D guilty of s.20 after having sex with 3 girls knowing he had HIV. His appeal against conviction was dismissed. For a C’s consent to the risks of contracting the HIV virus to provide a defence, her consent had to be an informed consent. [AGAIN – CLARENCE NO LONGER GOOD LAW]

Question 26

General rule on consent as defence to offences against the person?

Answer 26

Only available where NO HARM CAUSED or INTENDED (Collins v Wilcock [1984])

Question 27

A-G’s Reference (No.6 of 1980) [1981]

Answer 27

Two boys settle differences by means of a fist fight. Consent no defence to a charge under s.47 in these circumstances. Would not be in the public interest. BUT consent would be valid defence to assault in circumstances:

a) surgical operations
b) Dangerous exhibitions
c) Properly conducted sports (R v Barnes)

Question 28

R v Barnes

Answer 28

V sustained serious injury as a result of a tackle by the D in a football match. Court of Appeal said that criminal liability in sports depends on circumstances. Where actions go beyond the rules, level of criminality to be assessed objectively by the jury. Factors: type of sport, level at which was played, nature of the act, degree of force used, extend and risk of injury, state of mind of D. Trial judge had inadequately summed up to jury – fact tackle was a foul did not necessarily mean that the threshold of criminal conduct had been reached.

Question 29

What rule did R v Brown [1994] confirm?

Answer 29

consent can be a defence to other ‘lawful activities’ such as tattooing, ritual circumcision, ear-piercing.

Question 30

Facts and decision in R v Brown [1994] House of Lords?

Answer 30

R v Brown [1994] House of Lords – sado-masochistic homosexuals, willing sexual torture. Held – NO consent! 3 to 2, Lord Mustill and Slynn dissenting (even though they all did consent!). Court was concerned with the activities not being in the public interest, risks of corrupting young men, spreading disease, level of pain getting out of control. They were “breeding & glorifying cruelty”.
BUT Lord Mustill dissented. He argued these are questions of private morality Also the argument is circular – if the act of S&M itself isn’t so against the public interest that is declared criminal under the 1861 Act itself, the risk that others will be adduced to it can’t be a ground for making it criminal.

Question 31

Which case potentially contradicts R v Brown?

Answer 31

R v Wilson Court of Appeal: public interest argument failed – V found to have validly consented to D branding her buttocks:

a) the activity of Mr Wilson was too close to tattooing, which was capable of being consented to.
b) to make such activity criminal was not in the public interest

Question 32

BUT - what was the 1999 Court of Appeal case upholding R v Brown in case of heterosexuals?

Answer 32

R v Emmett [1999]: Facts: Court of Appeal ruled that consent would not act as a defence to a defendant charged with committing s.47 offence against his female partner. Facts: S&M acts between two consenting heterosexual adults. Consent will not be valid where the realistic risk of harm is beyond transient or trivial injury.

Question 33

How is Dica relevant to the debate on role of consent in Brown, Wilson, Emmett?

Answer 33

Dica – Obiter statement: Court of Appeal said that defence of consent would not be available where there was a deliberate infliction of grievous bodily harm. However, Dica could be distinguished on basis that participants simply took risk of infection, no goal of bodily injury, consent of victims a defence to s.20 on facts. Case remitted for retrial.
i. The Court of Appeal said list of categories of activity regarded as lawful, was not closed and immutable

Question 34

Self Defence: Common Law and Statutory Provision

Answer 34

Common Law: Prevention of Crime - The CL recognises that an individual may justifiably use force to act in self-defence in certain circumstances.

Statutory defence: s.3(1) Criminal Law Act 1967

Requirement that force be reasonable is common to both defences

Question 35

s.3(1) Criminal Law Act 1967 wording?

Answer 35

A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

Question 36

Must establish which two elements for self-defence?

Answer 36

That the force was reasonable (objective) in the circumstances as he believed them to be (subjective)

Question 37

What factors will the courts consider when assessing whether the force used in self-defence was reasonable?

Answer 37

1. Degree of force or seriousness of offence
2. Degree of force used to defend
3. Who made the first move
4. Could another method of resolving be used?
5. Mistaken about what other party was doing?
6. Was the attack over?
7. Was the attack imminent or in the future?

Question 38

Two case on what is reasonable use of force in self-defence?

Answer 38

i. R v Bird: self-defence can be pre-emptive. No rule of law which says that D must retreat before resorting to self-defence, nor does he have to wait for his assailant to hit him first.
iii. R v Palmer: Discretion in decision-making allowed in the heat of the moment (cannot weigh to a nicety the exact nature of his necessary defensive actions – Lord Morris)

Question 39

What is the effect of mistake on self-defence?

Answer 39

i. R v Williams (Gladstone): D is judged on the facts as he honestly believed them to be, EVEN IF this was unreasonable or mistaken.

ii. R v O’Grady; R v Hatton: Mistake was due to voluntary intoxication (Requirement for reasonable force = reasonable by a sober man’s standards)
iii. R v Martin (Anthony): Court of Appeal. (Tony Martin case - Mistake derives from psychiatric ailment [appears inconsistent]

Question 40

Why is the decision in R v Martin (Anthony) [2002] Court of Appeal controversial?

Answer 40

1. Decision in Martin seems at odds with Privy Council in Shaw (Norman) v R [2002] – jury should look at the circumstances and the danger as the defendant honestly believed them to be in deciding if the force was reasonable. Professor Smith: if Shaw is correct, evidence of the kind raised in Martin would be directly relevant and should be admissible

Question 41

Can the D rely on facts of which he was unaware?

Answer 41

R v Dadson (1850) – The law says D cannot rely on facts of which he was unaware in deciding whether or not he used reasonable force

Question 42

s.76(3) Criminal Justice and Immigration Act 2008

Answer 42

Question whether the degree of force used by D was reasonable in circumstances as D believed them to be

Question 43

s.76(4)(a) Criminal Justice and Immigration Act 2008

Answer 43

reasonableness of belief is relevant

Question 44

s.76(4)(b) Criminal Justice and Immigration Act 2008

Answer 44

if D did genuinely hold belief, then entitled to rely on it

Question 45

s.76(9) Criminal Justice and Immigration Act 2008

Answer 45

clarifies the operation of existing defences rather than adding new law

Question 46

Should self-defence be all or nothing?

Answer 46

R v Clegg: House of Lords rejected Private Clegg’s argument that excessive force used by a serving member of the armed forces which he believed was not excessive should lead to a manslaughter conviction. Clegg thought it should be a partial defence. See p. 128 for Home Office report

Question 47

General Rule on Reasonable Chastisement?

Answer 47

R v Hopley (1860) – Parents/Loco parentis can use reasonable force to discipline their children

Question 48

What case prompted a change in the law on Reasonable Chastisement?

Answer 48

A v UK (1998) – House of Lords acquits step-father of s.47 assault occ actual bodily harm, after he raises defence of reas chast. However, ECHR said this contravened Article 3 rights
i. In response, Government released consultation paper on law of RC. (physical punishment not banned; RC on statutory basis; Legislation would list factors for looking at whether punishment was moderate or reasonable)

Question 49

When is Reasonable Chastisement not a defence?

Answer 49

b. BUT ONLY defence if this does not cause visible bruising, grazes, scratches, minor swellings or cuts – s.58 Children Act 2004
c. So, reasonable chastisement only a defence to simple/physical assault but not to any offence brought under OAPA

Question 50

Test for Duress

Answer 50

4) DURESS: R v Graham – must establish:
a. D reasonably believes he is THREATENED with death or serious injury to himself/to another (subjective)
b. A person of reasonable firmness of D’s age and gender would have given way to threats as D did (objective)

Question 51

Re A (Children) (Conjoined twins: surgical separation [2000]

Answer 51

Duress of circumstances and duress of necessity

Question 52

Which offences is duress not a defence to?

Answer 52

murder or attempted murder

Question 53

R v Jones [1987]

Answer 53

CA – D and others tossed two schoolboys in the air as part of birthday beats. One boy suffered a broken arm, the other a ruptured spleen. HELD –V’s consent and D’s honest belief in that consent to rough and undisciplined play could provide a defence as long as there was no intention to cause injury - mere foresight of bruising or even greater harm was not sufficient. D ought to have been able to raise the defence of consent at trial. NOT GUILTY OF GBH.
- HEAVILY CRITICIZED DECISION