9) Non Fatal Defences Flashcards
1
Q
What is the lowest on the hierarchy of non fatal offences against the person?
A
- Aassuault, the least serious offence, committed the most frequently
2
Q
Most serious offence on the hierarchy of non fatal offences against the person
A
- Wounding or causing grievous bodily harm with inents.
s18 Offences Against the Person Act
3
Q
Assault
A
- Victim anticipates the defendant will use violence against them
- Least serious non-fatal offence as no touching occurs
- Defined in common law, precedents found in case law
4
Q
Criminal liability for assault
A
- Actus Reus = causing the victim to apprehend immediate and unlawful personal violence
- Mens Rea = Intentionally or recklessly causing the victim to apprehend immediate and unlawful personal violence
- Absence of a valid defence = self defence, intoxication and consent
5
Q
Define assault
A
Intentionally or recklessly causing another person to apprehend immediate and unlawful personal violence
Fagan v Met Police Commissioner; R v Ireland; Burstow
6
Q
Elements of Actus Reus of Assault
A
- Apprehension
- Immediate
- Unlawful
- Personal violence
7
Q
Actus Reus of Assault: Apprehension
A
- Make the victim anticipate
- But not necessarily fear (R v Lamb)
- Immediate and unlawful personal violence
8
Q
R v Ireland
A
Words alone and silence is enough for the apprehension of immediate and unlawful personal violence
R v Ireland
9
Q
Turberville v Savage
A
Words can however negate an assault
10
Q
Actus Reus of Assault: Immediate
A
Does not mean instaneous, but some time not excluding the immediate futrue (R v Constanza) or imminent (R v Ireland)
11
Q
Actus Reus of Assault: Unlawful
A
Not done in self defence or with the victim’s consent
12
Q
Actus Reus of Assault: Personal violence
A
All the vicitm has to anticipate is an unwanted touch
13
Q
For assault to take place, is there any need for the defendant to have applied force or make physical contact for the offence to be committed?
A
No
Words pr [jusical movement from the defendant, causing the victim to think that they are about to be struck would be sufficients.
14
Q
R v Lamb
A
Defendant must cause the victim to believe D can and will carry out the threat of force
* Revolver, playing, thought gun was safe. Shot friend dead.
* No assault had taken place, did not apprehend violence as did not believe it was fire.
* Did not have the necessary mens rea.
15
Q
Logdon v DPP
A
- Defendant showed pistol saying it was loaded and would hold her hostage.
- Actually an unloaded replica.
- Committed assault as victim apprehended violence.
Irrelevant that defendant does not have the means to carry out the threat
16
Q
What form can the threat to use force be?
A
- Physical gestures = basis of an assault
- Words or silence alone can constutyte an assault in some circusmstances.
17
Q
R v Wilson
A
“Get out the knives”
Would be sufficient to constitute an assault.
18
Q
Silent telphone calls
A
Silence conveyed a message to the victim, was capable of forming the basis of an assault.
Confirms that the words spoken may amount to an assault.
She may fear the immediate possibility of personal violence
R v Ireland; Burstow evident
19
Q
Turbeville v Savage
A
- Hand on the sword was threatening.
- Negated by the words, that implied no phys action because judges were in the vicinity.
Words can negate an assault
20
Q
Courts definition of immediacy
A
- Generously, does not mean instantaneous
21
Q
Constanza
A
- Defendant had been following he calling her and sending letters.
- Apprehension of personal violence at some time, not excluding the immediate future.
22
Q
Smith v Chief Superintendent, Woking Police Station
A
- Smith entered garden at night and looked through the window to see the victim in the nightdress.
- Pressed face against the glass for several seconds.
- Recognised Smith and was terrified
- She feeared immediate violence which was what the Defendant intended
23
Q
Personal Violence
A
- Must be apprehension of ** physical violence. **
24
Q
When an assault results in psychological harm which is more than trivial
A
Defendant will be liablle for more serious offence than assault under
Offences Against the Person Act 1861, s47
25
Assault mens rea
* Intends or is reckless as to causing the vicitm to apprehend immediate unlawful personal violence
**R v Venna**
26
What is the meaning of assault being a basic intent crime?
* It can be committed intentionally or recklessly
27
R v Moloney
A defendant intends an assault if it was Defendent's aim or purpose?
28
When is a defedant reckless as to an assault?
* **See a risk** that their actions will cause the victim to apprehend immediate and unlawful personal violence
* In the circumstances known to the Defendants, it was **unreasonable** to take that risk. **(RvG)**
29
R v Savage; Parmenter
Confirmed the view that tsubjective recklessness (as set out in R v G) must be established for any assault charge bassed upon recklessness.
30
Battery
Defendant touches the victim in an unwanted fashion
* Defined in the common law
**Actual intended use of unlawful force to another person without consent**
* Includes reckless application of force
| Fagan v MPC
31
Sentence for battery
* Contind in s39 Criminal Justice Act 1988
* Maximum penalty = 6 months in prison
* or £5,000 fine.
32
Criminal liability of battery
* Actus Reus = Application of unlawful force
* Mens Rea = Intentionally or recklessly applies unlawful force
* Absence of a valid defence = self defence;; intoxication; consent
33
Battery = Actus Reus
* Application
* Unlawful
* Force
34
Battery = Actus Reus = Application
Battery can be inflicted
* Directly **(Collins v Wilcock)**
* Indirectly **(R v Martin, DPP v K)**
* By an omission **(Santana Bermudez)**
35
(Collins v Wilcock)
Application of battery can be inflicted **directly**
36
**(R v Martin, DPP v K)**
Application of battery can be inflicted **indirectly**
37
**(Santana Bermudez)**
Application of battery can be inflicted **by an omission**
38
Battery = Actus Reus = Unlawful
* Battery isn't done in self-defence or with Victim's consent
* Consent can be express or implied consent to inevitable everyday contact. **(Collins v Wilcock)**
39
Is day to day contact battery?
Implied consent to inevitable everyday contact
## Footnote
Collins v WIlcock
40
Battery = Actus Reus = Force
* Means the merest of touch **(Collins v Wilcock)**
* Does not have to be rude, hostile or aggressive **(Faulkner v Talbot)**
* Touchihg someon's clothes is enough **(R v Thomas)**
41
Meaning of force
Force = Means the merest of touch
## Footnote
Collins v Wilcock
42
Does the force need to be a certain way?
Force = touch = doesn't have to be rude, hostile or aggressive
## Footnote
Collins v Wilcock
43
Can force be applies through clothes?
## Footnote
Battery
Force = Touching someone's clothes is enough.
## Footnote
R v Thomas
44
When battery resultsin harm which ins more thatn trivial, what will the defendant be liable for?
The More serious offence of **Offence Against Persons Act 1861, s 47**
45
DPP v Santana-Bermudez
## Footnote
Omission
* Searched body and pricked by needle
* Said no sharps
* Created danger that directly caused injury
* Failed to avert risk.
**Battery constituted an omission = force**
46
Can force for battery be applied indirectly?
Yes, the force need not be applied directly.
47
Indirect Application of Force
## Footnote
R v Martin
* Defendant closed exit soors of a theatre.
* Turned off the light and caused panic.
* Indirect battery
* Other exmple from digging a pit which victim then falls into
48
If Defendant dug a pit and vicitm fell in, what would that consititute?
49
DPP v K
**Indirect Force**
* Acid splashed on hand
* Poured acid down the nozzle
* Scarring on fellow pupil
* * Acquitted due to lack of mens rea.
* But would = actus reus
50
Does the force in battery need to be applied directly?
No, can a also be indirectly
**DPP v K**
51
Battery = Actus Reus = Unlawful
* Such contact myst not be justified.
* Consent makes application of force lawful
* Prevents battery
52
Collins v Wilcock
**Implied Consent**
* Police officer grabbed a woman's arm to prevent her woalking away. = beyond implied consent.
* Certain amount of physical contact that must be accepted to move around in society
53
Battery mens rea
* INtention or recklessness as to applying unlawful force on another person
**R v Venna**
* Battery is therefore a basic intent crimeas it can be committed recklessly.
54
R v Venna
* Mens rea offence of battery
* Defendant intentionally or recklessly applied force to the person of another
55
A mere touch can be an example of
Battery
56
An unwanted kiss can be an example of
Battery
57
A slap can be an example of
Battery
58
Threats of violence can be an example of
Assault
59
If some physical movement or words are made this can be an example of
Assault
60
Silence in some circumstances can be an example of
Assault
61
Where is assault defined?
Assault is a **common law offence**
62
For the purposes of assault, what is meant by personal violence?
Victim must apprehend physical violence.
63
In what case was psychological harm expressly rejected as grounds for assauly?
Ireland Case
64
What is the mens rea of battery?
The offence of battery requires that the defendant apply unlawful force to another intentionally or recklessly.
**R v Venna**
65
Offence Against the Person Act 1861, s 47
Whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be liable... to be imprisioned for any term ot exceeding fuve years
66
Actus Reus of Actual Bodily Harm
* Assault or battery
* Occasioning = normal rules of causation
* Actual bodily Harm
67
Mens rea of Actual Bodily Harm
* Mens rea for the assault or the battery
* Intent or recklessness as to
- Causing the victim to apprehend immediate and unlawful personal violemce
- Applying unlawful force upon another
68
Section 47 - actus reus
There must have been an assault or battery
* Both the actus reus and the mens rea of either an assault or battery must be established
| DPP v Little; R v Ireland
69
Occasioning
The assault or battery must **"occasion actual bodily harm"**
* Must result in actual bodily harm
* Normal principels of casuation apply
70
Can an offence be committed through an omission?
DPP v Santana-Bermudez
71
Name the two tests for causation
Factual Causation
Legal causation
72
Result Crimes
Require the conduct of the defendant to cause a particular result.
73
What are the two aspects of causation that must be proved?
* Factual causation
* Legal causation
74
Factual causation
* Must be proved that "but for" the acts or omissions of the accused the relevant consequence wouldnot have occurred in the way that it did
**R v White**
75
Legal Causation
Dfendant must be the operating and substantial cause o fthe prohibited consequence.
* Substantial meaning a cause which is more than de minimis, more than minimal **R v Pagett**
* Operating meaning: there is no novus actus interveniens or intervening act which breaks the chain of causation. Apply any relevant rules on medical negligence, acts of the victim and the thin skull rules.
76
What is the general rule for omissions
General rule is that a defendant cannot be criminally liable for a failure to act
**R v Smith (William)**
77
R v Smith (William)
78
When may legal duties for omissions arise?
* A statutory duty
* A special relationship
* Voluntary assumption of a duty of care
* A contractual duty
* Creating a dangerous situation
* Public office
79
R v Donovan
Definition of actual bodily harm said to include "any hurt or injury calculated to itnerfere withthe health or comfort" of the victim.
It was said that the hurt need not be serious or permanent but must be **more than transient and trifiling.**
80
R v Chan-Fook
* CoA overtunred coviction as trial judge had omitted words "hurt or injury"
**ABH if the victims health or confort was interfered with**
Harm is **synonym for injury**
81
Hobhouse LJ on Harm
**Actual Bodily Harm**
* Harm is a synonym for injury
* Actual = the injury need not be permanent, but **should not be so trivial as to be wholly insignificant**
| R v Chan Fook
82
**Loss oc consciousness**
T v DPP
* Momentory loss of consciousness was capable of amounting to ABH as it involved an **injurous impairment of the victim's sensory functions**
ie not transient **or** trifiling
83
Can momemntary loss of consciousness be held as Actual Bodily Harm?
Yes, as injurious impairment of the victim's sensory functions.
**Injury not transient or trifiling**
| T v DPP
84
DPP v Smith - FACTS
Defendant cut off the girlfirends ponytail
* Did not amount to ABH
* No evidence of psych harm
85
DPP v Smith - HELD
* Defendant left no mark on the body or break of skin
* Cut dead tissue
* Still part of the body, therefore cutting amounted to an assault
**While still attached amounts to bodily, if concerned with the body of the victim**
86
Can actually bodily harm be held to include psychiatric injury?
Yes, but not mere emotions such as fear, distress etc
| R v Chan Fook; R v Ireland; Burstow
87
Mens rea for ABH
Under the **OPA 1861, s47**
* No mens rea is required for abh
* All that is required is the mens rea for the assault or the battery
88
What mens rea is required for ABH?
The Mens Rea for the assault of battery
89
R v Savage; R v Parmenter
Mens Ra for ABH
Prosecution are not obliged to prove that the defendant intended to cause some actual bodily harm or was reckless as to whether such harm would be caused.
90
What is needed for inflicting GBH?
Actus Reus
* Wound; or
* Infliction of GBH
Mens Rea
* D must intend or be reckless as to the causing of some harm
91
OAPA 1861, s20
Two offences
* Malicious wounding
* Maliciously inflicting GBJ
92
C(a minor) v Eisenhower
Rupture of internal blood vessels is not sufficient to constitute a wound.
Must break both layers of skin.
Any breaking of the skin will suffice.
93
Can the rupture of blood vessels internally amount to wounding?
* No need to have both layers of skin broken
**C(a minor) v Eisenhower**
94
Wounding
* Broke both layers of skin, the dermis and epidermis
95
Wounding
* Causation usually not an issue
* May be when:
- D chases the victim, causing them to fall and cut their head
- D throws a knife and V tries to intercept it
96
What is the meaning of "infliction" when describing the "infliction of GBH"?
Essentially infliction bears the same meaning as "cause"; therefore normal rulles of causation apply.
97
Does there need to be an assault for GBH to be committed?
There can be infliction of GBH contrary to the OAPA 1861, s20
without an assault being commtited
## Footnote
R v Wilson
98
R v Burstow
**Nuisance phone calls**
* Nuisance telephone calls without attacking victim
* Upheld GBH = psychological injury.
* "Inflict" did not require an assault to be committed.
99
Can psychiatric injury amount to GBH?
Psychiatric injury may amount to GBH if sufficiently serious
Cause and effect will need to be proved
By expert evidence
## Footnote
Ireland Case
100
DPP v Smith
GBH
GBH means "really serious harm"
Later clarified that "serious harm" suffices **Saunders**
101
R v Bollom
The jury should consider the effect of the injuries on the victim
Take into account:
* Age
* Health
* Totality of injuries
102
Mens Rea of GBH
* D must intend or be reckless as to the causing of harm.
* Need to consider the extent of the harm that must be intended or forseen
* D must intend or be reckless as to the causing of some harm
103
Interpretation of malicously for GBH
| R v Savage; Parmenter
* Unecessary should the D have forseen the physical harm of the gravity described.
* Just needed to forsee some harm, albeit minor.
104
OAPA 1861, s 18
Wounding or causing GBH **with intent**
105
OAPA 1861, s18
Elements
Actus Reus
* Wound; or
* Causing GBH
Mens Rea
* D must intend to cause GBH
106
OAPA 1861, s18
Offences
* Malicious wounding with intent to cause GBH
* Maliciously inflicting GBH, with intent to cause GBH.
107
Actus Reus of GBH with intent
* Wounding = breaking both layers of skin
* Causing = inflicting
* GBH = serious harm
108
Mens Rea of GBH with Intent
* Must actually intend to cause harm which amounts to GBH
**Recklessness is not enough**
* Intention to wound is not enough
* Intention can be **direct** or **oblique** (R v Woollin)
109
Intention to cause GBH
Intention to cause GBH can be either direct *(R v Moloney)* or oblique *(R v Woollin)*
Juries can only find s18 by oblique intent unless:
* Serious injury was a virtual certainty as a result of the defendant's action (objective element)
* The defendant appreciated that (subjective element)
110
Finding oblique intent under s18 (gbh)
Juries can only find s18 if
* Serious injurty was a virtual certainty as a result of the defendant's action **(objective element)**
* The defendant appreciatedthat **(subjective element)**
111
# Examples of injuries
* Temporary loss of sensory function (eg sight or hearing)
Section 47
Assault occasioning actual bodily harm
112
# Examples of injuries
* Temporary loss of consciousness
Section 47
Assault occasioning actual bodily harm
113
# Examples of injuries
Extensive bruising
Section 47
Assault occasioning actual bodily harm
114
# Examples of injuries
Cutting someones hair without their consent.
Section 47
Assault occasioning actual bodily harm
115
# Examples of injuries
Minor fractures
Section 47
Assault occasioning actual bodily harm
116
# Examples of injuries
Psychiatric injury that is more than triial - beynd mere fear, distress or panic
Section 47
Assault occasioning actual bodily harm
117
# Examples of injury
Permanent loss of sensory function
Section 20 or s18
GBH
118
# Examples of injuries
Permanent disability
Section 20 or s18
GBH
119
# Examples of injuries
Broken bones
Section 20 or s18
GBH
120
# Examples of injuries
Fractured skull
Section 20 or s18
GBH
121
# Examples of injuries
Breaking the dermis and the epidermis
Section 20 or s18
Wounding
122
s47 Actus Reus
* **Assault** = meaning assault or battery
* **Occassioning** = causation
* **ABH**
123
s47 Mens Rea
Intent or recklessness
* causing the victim to apprehend immediate and unlawful personal violence;
* Applying unlawful force upon another
124
s20 Actus Reus
* Wound; or
* Infliction of GBH
125
s20 Mens Rea
D must intend to be recklessas to the causing of **some** **harm**
126
s18 Actus Reus
* Wound;
* Causing GBH
127
s18 Mens Rea
D must intend to cause GBH
128
What is the mens rea of assault occasioning actual bodily harm?
* The mens rea for assault or battery
* No mens rea is required for the actual bodily harm, R v Savage, R v Parmenter.
129
What is the mens rea of section 20 Offences Against the Person Act 1861, malicious wounding or inflicting grievous bodily harm?
* Intention or recklessness as to causing some harm
* confirmed in R v Savage, Parmenter.
130
What is the mens rea of section 18 Offences Against the Person Act 1861, malicious wounding or causing grievous bodily harm with intent?
* Intention to cause GBH
* Saunders
131
