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Law (OCR) > Chapter 15 - Non-fatal offences against the person > Flashcards

Chapter 15 - Non-fatal offences against the person Flashcards

1
Q

What is the offence under s 39 of the Criminal Justice Act 1988?

A

Common assault

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2
Q

What are two ways of committing common assault?

A

(1) assault

(2) battery

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3
Q

Are assault and battery common law offences?

A

Yes

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4
Q

What is the maximum punishment for assault and battery?

A

6 months imprisonments or £5,000 fine

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5
Q

What is the definition of assault?

A

An assault is an act which causes the victim to apprehend the infliction of immediate, unlawful force with either an intention to cause another to fear immediate unlawful personal violence or recklessness as to whether such fear is caused

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6
Q

What is the actus reus of assault?

A

An act which causes the victim to apprehend the infliction of immediate, unlawful force

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7
Q

Is an omission sufficient for the AR of assault?

A

No

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8
Q

Are words sufficient for the AR of assault?

A

Yes

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9
Q

What case is associated with words being sufficient for the AR of assault?

A

R v Constanza (1997)

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10
Q

Which case held that silent phone calls could count as assault?

A

R v Ireland (1997)

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11
Q

What must the act cause the victim to apprehend?

A

The act or words must cause the victim to apprehend that immediate force is going to be used against them

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12
Q

What case is associated with the apprehension of immediate unlawful force?

A

R v Lamb (1967)

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13
Q

What does immediate mean?

A

Immediate doesn’t mean instantaneous but imminent

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14
Q

What case is associated with force being immediate?

A

Smith v Chief Superintendent of Woking Police Station (1983)

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15
Q

Words indicating that there will be no violence may prevent an act from being an assault, which case does this principle come from?

A

Tuberville v Savage (1669)

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16
Q

Must the force which is feared be serious?

A

No

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17
Q

What are some examples of assault?

A

(1) raising a fist as though about to hit the victim
(2) throwing a stone at the victim which just misses
(3) pointing a loaded gun at someone within range
(4) making a threat by saying ‘I am going to hit you’

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18
Q

Must the force which is threatened be unlawful?

A

Yes, as if it is lawful then there is no offence of common assault

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19
Q

What is the mens rea of assault?

A

(1) intention to cause another to fear immediate unlawful personal violence
(2) recklessness as to whether such fear is caused

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20
Q

What is the definition of battery?

A

Battery is the application of unlawful force to another person intending either to apply unlawful physical force to another or being reckless as to whether unlawful force is applied

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21
Q

What is the actus reus of battery?

A

The application of unlawful force to another person

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22
Q

What cases point out that touching a person to get their attention was acceptable, provided no greater degree of physical contact was used than was necessary?

A

Collins v Wilcock (1984)

Wood (Fraser) v DPP (2008)

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23
Q

Which case held that touching the victims clothing can be sufficient for the AR of battery?

A

R v Thomas (1985)

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24
Q

Can a battery be committed through a continuing act?

A

Yes

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25
Q

What case is associated with a continuing act?

A

Fagan v Metropolitan Police Commissioner (1968)

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26
Q

Can a battery be committed through an indirect act?

A

Yes

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27
Q

What in an example of an indirect act that can amount to battery?

A

A booby trap

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28
Q

What is an indirect act?

A

A situation where the defendant causes force to be applied even though they do not personally touch the victim

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29
Q

What are three cases in which an indirect act amounted to battery?

A

(1) R v Martin (1881)
(2) DPP v K (1990)
(3) Haystead v Chief Constable of Derbyshire (2000)

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30
Q

Can a battery be committed through an omission?

A

Yes

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31
Q

What is an omission?

A

A failure to act

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32
Q

Give examples of a duty of care?

A

(1) contractual
(2) relationship
(3) the assumption of care
(4) from the creation of a dangerous situation

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33
Q

What is the case where an omission amounted to battery?

A

DPP v Santa-Bermudez (2003)

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34
Q

Does the force have to be unlawful in a battery?

A

Yes

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35
Q

What are two situations where force can become lawful?

A

(1) if the victim gives genuine consent to the force

(2) when the force is used in self-defence or the prevention of crime

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36
Q

Is reasonable physical chastisement of a child lawful?

A

It was but now the Children Act 2004 now provides that a battery committed on a child is unlawful if it results in any injury

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37
Q

Can there be battery without an assault?

A

Yes

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38
Q

When can there be a battery without an assault?

A

Where the victim is unaware that unlawful force is about to be used on them such as when the victim is attacked from behind

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39
Q

What is the mens rea for battery?

A

Either intention to apply unlawful physical force to another or recklessness as to whether unlawful force is applied

The defendant must realise there is a risk that their act or omission could cause unlawful force to be applied to another

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40
Q

What offence comes under s 47 OAPA 1861?

A

Assault occasioning actual bodily harm (ABH)

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41
Q

What classification of offence is ABH?

A

Triable either way

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42
Q

What is the definition of ABH?

A

An assault or battery which causes actual bodily harm

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43
Q

Does the actus reus have to be proved for a s 47?

A

Yes it has to be proven that there was an assault or battery that caused actual bodily harm

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44
Q

What is defined as actual bodily harm?

A

Any hurt or injury calculated to interfere with the health or comfort of the victim

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45
Q

What case defined actual bodily harm?

A

R v Miller (1954)

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46
Q

Give some examples of actual bodily harm?

A

(1) loss of consciousness (T v DPP 2003)
(2) bruising
(3) grazes
(4) scratches
(5) cutting the victims hair (DPP v Smith (Michael) 2006)

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47
Q

Does there have to be physical pain for there to be ABH?

A

No e.g. cutting hair

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48
Q

Is psychiatric injury classed as ABH?

A

Yes

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49
Q

Which case established that psychiatric injury amounted to ABH?

A

R v Chan Fook (1994)

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50
Q

What counts a psychiatric injury?

A

Bodily harm must be interpreted so as to include recognisable psychiatric illness (R v Burstow 1997)

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51
Q

What is the mens rea of a s 47 offence?

A

Intention or subjective recklessness as to whether the victim fears or is subjected to unlawful force

This is the same as assault and battery

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52
Q

Which case demonstrates that there is no need for the defendant to intend or be reckless as to whether ABH is caused?

A

R v Roberts (1971)

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53
Q

Which two cases confirmed the decision in R v Roberts?

A

(1) R v Savage (1991)

2) R v Parmenter (1991

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54
Q

What offence comes under s 20 OAPA 1861?

A

Malicious wounding/ inflicting grievous bodily harm (GBH)

55
Q

What classification of offence is malicious wounding and GBH?

A

Triable either way

56
Q

What is the maximum punishment for a s 20 offence?

A

5 years imprisonment

57
Q

What is the actus reus of a s 20 offence?

A

The defendant wounded of inflicted GBH

58
Q

What is a wound?

A

A cut or a break in the continuity of the whole skin

59
Q

Does internal bleeding count as a wound?

A

No because it does not break the continuity of the skin

60
Q

Which case is associated with the definition of a wound?

A

JJC v Eisenhower (1983)

61
Q

Does a broken bone amount to a wound?

A

No

62
Q

What is the exception where a broken bone can amount to a wound?

A

Where the skin is broken with the bone

63
Q

Which case is associated with broken bones?

A

R v Wood (1830)

64
Q

What is grievous bodily harm?

A

GBH means really serious harm as this may be physical, psychiatric or the deliberate infection of a serious disease

65
Q

Does GBH have the be life-threatening?

A

No

66
Q

What was held about GBH in the case of R v Bollom?

A

It was held that the severity of the injuries should be assessed according to the victims age and health

67
Q

Can psychiatric injury amount to GBH?

A

Yes but only is ‘serious’ psychiatric injury is caused

68
Q

What case established that psychiatric injury amounted to GBH?

A

R v Burstow (1997)

69
Q

What was the first case where GBH was caused through the transmission of diseases?

A

R v Dica (2004)

70
Q

Originally what was the word ‘inflict’ taken to mean?

A

That there had to be a technical assault or battery

71
Q

What was inflict held to mean in the case of R v Burstow?

A

The word ‘inflict’ does not require a technical assault or a battery which means it only needs to be shown that the D’s actions led to GBH

72
Q

What is the mens rea of a s 20 offence?

A

Intention to cause another person some harm or subjective recklessness as to whether another person suffered some harm

73
Q

What case is associated with the definition of ‘maliciously’?

A

Cunningham (1957)

74
Q

What is the definition of ‘maliciously’ in Cunningham?

A

Does not require any ill will towards the person injured and it simply means either:

(1) an intention to do the particular kind of harm that was caused
(2) recklessness as to whether such harm should occur or not

75
Q

What was confirmed in the case of Parmenter?

A

H of L confirmed that the Cunningham meaning of recklessness applies to all offences in which the statutory definition uses the word ‘maliciously’

76
Q

Does the defendant need to foresee serious injury?

A

No, the defendant does not have to foresee a wound or GBH (Parmenter)

77
Q

What is the offence under s 18 OAPA 1861?

A

Wounding or causing grievous bodily harm with intent

78
Q

Is a s 18 offence more serious than a s 20 offence?

A

Yes

79
Q

What is the maximum sentence for a s 18 offence?

A

Life imprisonment

80
Q

What classification of offence is a s 18 offence?

A

Indictable offence

81
Q

What is the definition of a s 18 offence?

A

Whosoever shall unlawfully and maliciously wound or cause grievous bodily harm to any person with intent

82
Q

What is the actus reus of a s 18 offence (2 answers)?

A

Wounding

Causing grievous bodily harm

83
Q

Describe how the word ‘cause’ is linked to a s 18 offence?

A

It is only necessary to prove that the defendants act was a substantial cause of the wound or grievous bodily harm

84
Q

Is a s 18 offence a specific intent offence?

A

Yes

85
Q

What is the mens rea of a s 18 offence (2 answers)?

A

Intend to do some grievous bodily harm

Intend to resist or prevent the lawful apprehension or detainer of any person

86
Q

Is an intention to wound enough for the mens rea of a s 18 offence?

A

No

87
Q

Does the word ‘maliciously’ add anything to the mens rea of a s 18 offence?

A

No

88
Q

Is recklessness sufficient for the mens rea of a s 18 offence?

A

No because an s 18 offence is a specific intent offence

89
Q

When is the level of intention regarding the injury lower in a s 18 offence?

A

Where the defendant is trying to resist or prevent arrest or detention

90
Q

What level of intention must the prosecution prove in regard to the resistance or prevention of arrest?

A

Specific intent

91
Q

What is the mens rea required in regards to the injury caused through the resistance and prevention of arrest?

A

Recklessness

92
Q

List 4 reasons as to why the law needs to be reformed?

A

(1) out of date
(2) there is inconsistency between offences
(3) the correspondence principle
(4) the need for modern, simplified language

93
Q

Why is the law out of date? (2 answers)

A

(1) this has caused problems in regards to mental health problems and whether this counts as bodily harm
(2) in whether bodily harm covers the infection of diseases and there was limited understanding about diseases when the law was made

94
Q

What are the inconsistencies between the offences? (4 answers)

A

(1) a s 47 offence has the same mens rea as assault and battery which is unfair as a s 47 offence has a max punishment of 5 years imprisonment whereas assault and battery has a max punishment of 6 months imprisonment
(2) a person who causes a small cut can be charged with a s 20 instead of ABH because s 20 refers to ‘wound or GBH’
(3) the max sentence of a s 47 and a s 20 is the same (5 years) even though the levels of seriousness and blameworthiness are different
(4) a defendant who intends or foresees the risk of minor injury, can be convicted of the serious s18 offences if serious injury occurs when they intend to resist arrest and is this fair?

95
Q

What is the correspondence principle?

A

States that the results which D must intend or foresee should match the results which actually occur and that D should not be liable to the level of harm unless they meant it or knowingly ran the risk of it

96
Q

Which two offences breach the correspondence principle?

A

s 20 and s 47

97
Q

Why does the s 20 and s 47 offences breach the correspondence principle?

A

S 20 = can be guilty without intending or being reckless as to causing serious harm

S 47 = can be guilty without intending or being reckless as to causing any harm

98
Q

Why is there a need for more modern and simplified language? (2 answers)

A

(1) it has been recommended than the word ‘reckless’ should be used instead of ‘maliciously’ because in modern language the definition of ‘maliciously’ is different to its original meaning
(2) s 20 uses the word ‘inflict’ and s 18 uses the word ‘cause’ and this lead to a debate as to whether ‘inflict’ meant that a technical assault had to take place but the H of L ruled that it did not

99
Q

What did the draft Bill set out in 1998?

A

It set out 4 main offences which were intended to replace s 18, 20, 47 and assault and battery

100
Q

In the draft Bill 1998 is clause 1 the most serious offence?

A

Yes

101
Q

What is clause 1 of the draft Bill 1998?

A

Intentional serious injury = where a person would be guilty if they intentionally caused serious injury to another

102
Q

What is clause 2 of the draft Bill 1998?

A

Reckless serious injury = a person would be guilty if they recklessly caused serious injury to another

103
Q

What is clause 3 of the draft Bill 1998?

A

Intentional or reckless injury = a person would be guilty if they intentionally or recklessly caused injury to another

104
Q

What is clause 4 of the draft Bill 1998?

A

Assault = a person would be guilty if they intentionally or recklessly:

(a) applied force to or caused an impact in the body of another
(b) caused the other to believe that any such force or impact is imminent

105
Q

Why is the draft Bill 1998 more appropriate?

A

The level of injury and the required mens rea are made clear by the wording and they are different for every clause

106
Q

What did the Law Commission Report 2015 state that OAPA 1861 should be replaced by?

A

A comprehensive modern statute

107
Q

According to the Law Commission Report 2015 any new statute should respect the following principles:

A

(1) it should provide a clear hierarchy of offences from most serious to least and the place of each offence should reflect:
- the harm caused
- the culpability of the defendant
- the maximum penalty should be in proportion

(2) each offence should provide a clear and accurate label for the conduct in question and should be defined in language that is easy to understand
(3) each ingredient of an offence, whether an external element or a mental element, should be set out explicitly

108
Q

Which offence would clause 1 replace?

A

s 18 offence

109
Q

How is the wording in clause 1 changed?

A

The word ‘wounding’ would not be used so it would only be included if the wound caused a serious injury

110
Q

What would be the max sentence for clause 1?

A

Life imprisonment

111
Q

What offence would clause 2 replace?

A

s 20

112
Q

Is there a higher level of mens rea required for clause 2 than a s 20 offence?

A

Yes, the defendant would only be guilty if they were aware, in the circumstances as they knew or believed them to be, that there was a risk of serious injury

113
Q

What is the max sentence for a clause 2 offence?

A

7 years imprisonment

114
Q

What offence would clause 3 replace?

A

s 47

115
Q

What is the max sentence of a clause 3 offence?

A

5 years imprisonment

116
Q

Under the draft Bill would psychiatric injury be included?

A

Yes

117
Q

Would the transmission of diseases be included under the draft Bill?

A

Yes, it would be considered as physical injury

118
Q

According to the 2015 Report there should be another offence where low-level injuries are involved, what would this offence be called?

A

Aggravated assault

119
Q

What injuries would aggravated assault cover according to the 2015 Report?

A
  • superficial cuts
  • scratches
  • minor bruising
  • grazes
  • swellings
120
Q

What is the mens rea for aggravated assault according to the 2015 Report?

A

It would be the same as for the current common assault = the D must intend or be reckless as to whether V is put in fear of unlawful force or is subjected to unlawful force

121
Q

What is the max sentence for aggravated assault according to the 2015 Report?

A

12 months imprisonment

122
Q

According to the 2015 Report what offence would replace common law battery?

A

Physical assault

123
Q

According to the 2015 Report what would physical assault be?

A

Where there is unwanted and unjustifiable touching of the victim, direct contact between D and V, causing some object to come into contact with V or setting a trap

124
Q

What would the mens rea of physical assault be?

A

It would be the same as the current offence of common assault = D must intend or be reckless as to whether V is put in fear of unlawful force or is subjected to unlawful force

125
Q

According to the 2015 Report what is the max sentence for physical assault?

A

6 months imprisonment

126
Q

According to the 2015 Report what new offence will replace the common law offence of assault?

A

Threatened assault

127
Q

Does threatened assault cover the same conduct as the present offence?

A

Yes

128
Q

According to the 2015 Report what is the max sentence of threatened assault?

A

6 months imprisonment

129
Q

According to the 2015 Report what is the mens rea of threatened assault?

A

The same as the current offence of common assault = D must intend or be reckless as to whether V is put in fear of unlawful force or is subjected to unlawful force

130
Q

What did the draft Bill 1998 propose about causing serious harm intending to resist arrest?

A

That this should be a separate offence where D caused serious harm intending to resist arrest, prevent or terminate the lawful arrest or detention of themselves or a third party

131
Q

What did the draft Bill say about the max sentence of causing serious harm intending to resist arrest?

A

That the max sentence should be lowered from life imprisonment because the mens rea required is lower than for a s 18 offence

132
Q

There is also a lower-level offence where the D resists arrest, what is this called according to the 2015 Report?

A

Assault intending to resist arrest

133
Q

According to the 2015 Report what is the max sentence for assault intending to resist arrest?

A

2 years imprisonment

134
Q

What are some strengths of the proposals made by the 2015 Report?

A

(1) there would be no overlap or inconsistency between the offences
(2) the actus reus and mens rea for each new offence are clearly set out
(3) these new offences conform to the correspondence principle
(4) punishments for each offence are fairer

Law (OCR) (9 decks)

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