Non-Fatal Offences Flashcards
(23 cards)
Describe
Assault in general.
Section 39 of the Criminal Justice Act 1988
Apart of NFO
Definition comes from common law.
Section 39 of the Criminal Justice Act 1988 - Sets out charging standards, mac £5000 fine or 6 months in prison,
Summary offence
Describe
Assault AR + MR
Constanza, Ireland, Tuberville v Savage
Apart of NFO
AR
An act which causes the V to apprehend immediate and unlawful force.
An ommission can’t constitute an assault, must be words or gestures.
Constanza - Threatning letters ammount to assault, immediate means imminent. Ireland - Silent phone calls if V fears immediate unlawful violence as a result, is assault. Tuberville v Savage - Words indicating D will not use any immediate unlawful force may prevent an assault being committed.
MR
Intention or recklessness to causing V to apprehend immediate unlawful personal violence.
Apply to exam question
Flip - Assault
Apart of NFO
Actus Reus
The D commits an assault because:
The D causes the V to apprehend immediate and unlawful force because…
The assault is immediate because…..
The words of… could indicate that the assault is not immediate because…
** Mens Rea**
The D intends to cause the V to apprehend immediate and unlawful violence because…
The D is reckless because there is a risk that …… could cause the victim to apprehend immediate and unlawful force.
Describe
Battery in general
Section 39 of the Criminal Justice Act 1988.
Apart of NFO
Definiton is from Common Law
Summary Offence
Section 39 of the Criminal Justice Act 1988 - Sets out charging standard for the offence, £5000, or 6 months in prison.
Describe
Battery AR + MR
Collins V Wilcock, Thomas, Haystead, DPP v Santana-Bermudez
Apart of NFO
AR
The unlawful application of force to the V
D doesn’t have to physically touch the V
Collins v Wilcock - The force used must be unlawful and can include the slightest touch. Thomas - Even the touching of clothing can be sufficent for a battery. Haystead - A battery can also be committed through a direct or indirect act. DPP v Santana-Bermudez - A battery can be committed through omission if duty to act.
MR
Intentionally or recklessly to use unlawful force against the V.
Apply to exam question
Flip - Battery
Apart of NFO
**Actus Reus **
The D committed a battery and unlawfully applied force because….
This is direct or indirect because…
Discuss clothing or omission issues if relevant.
Mens Rea
The D intends to unlawfully apply force because….
The D is reckless as there is a risk that …… could unlawfully apply force to the V.
Describe
S.47 ABH in general
section 47 Offences Against the Person Act 1861
Apart of NFO
Actual Definitons are defined in statute.
Section 47 Offences Against the Person Act 1861 - Outlined in
Triable Either Way offence so up to 6 month or 5 years in prison, or £5000 fine.
Describe
S.47 ABH AR + MR
Miller, T v DPP, DPP v Smith, Chan Fook, Savage
Apart of NFO
AR
An assault or battery that caused Actual Bodily Harm.
Miller - Defined as an injury which interferes with the health and comfort of the V. T v DPP - Causing V to temporarily lose consciousness can be ABH DPP v Smith [2006] - Cutting off substantial ammount of V's hair can be ABH. Chan Fook - Psychiatric Injuries can be ABH, if more than mere emotions such as fear, distress or panic.
MR
Intention or recklessness to cause assault or battery.
Savage - D doesn't have to intend ABH.
Apply to an Exam Question
Flip - S.47
Apart of NFO
Actus Reus
The D committed an assault or battery because…
This caused the injury of….
This interferes with the health and comfort of the V because….
** Mens Rea**
If the D commits an assault causing ABH - The D intends to cause the V to apprehend immediate and unlawful force because….
If the D commits a battery and causes ABH – The D intends to unlawfully apply force because….
It doesn’t matter that the D didn’t intend the actual injury that was caused.
Describe
S.20 GBH/Wounding in general
Section 20 Offences Against the Person Act 1861
Triable Either Way offence
Section 20 Offences Against the Person Act 1861 - Outlines the definitions
£5000 fine or 6 month or 5 year imprisonment
Describe
S.20 GBH/Wounding AR + MR
DPP v Smith [1969], JCC v Eisenhower, Burstow, Dica, Bollam
Apart of NFO
AR
To inflict GBH or Wounding to the V.
DPP v Smith [1969] - GBH - GBH is defined as really serious harm JCC v Eisenhower - Wounding - A cut or break in the continuity of the layers of the skin. Burstow - Psychiatric Injuries can be GBH Dica, Golding - Transmitting STD's is GBH. Bollom - V's characteristics can be considered when deciding if injuries can be GBH.
MR
Intentionally or Recklessly causing some harm.
Cunningham - Maliciously means D was subjectively reckless as to causing some harm to the V
Apply to an Exam Question
Flip - S.20
Apart of NFO
Actus Reus
The D committed GBH or wounding because…
If it is GBH – this is really serious harm because…
If it is a wound – this breaks the continuity of the skin because….
Mens Rea
The D intends to cause some harm because…
The D is reckless that some harm might occur because…
Describe
S.18 GBH in General
Section 18 Offences Against the Person Act 1861
Apart of NFO
Most Serious NFO
Indictable so life sentence.
Section 18 Offences Against the Person Act 1861 - Defines S.18 GBH
Describe
S.18 GBH AR + MR
DPP v Smith [1969], JCC v Eisenhower, Belfon, Taylor, Morrison
Apart of NFO
AR
Causing GBH or Wounding to the V, same AR as S.20
DPP v Smith 1969 - Really Serious Harm JCC v Eisenhower - A cut or break in the continutity of the layers of the skin.
MR
Intention to cause really serious harm or to resist or prevent lawful arrrest as to being reckless to causing harm to V.
Belfon - An intention to cause serious harm is enough for S.18 Taylor - An intent to wound is not enough MR for a S.18 offence. Morrison - If D is trying to resist arrest or detention then lower level of intention is required.
Apply to Exam Question
FLIP - S.18
Apart of NFO
Actus Reus
The D committed GBH or wounding because…
If it is GBH – this is really serious harm because…
If it is a wound – this breaks the continuity of the skin because….
Mens Rea
The D intends to cause really serious harm because….
Or D was reckless in trying to prevent lawful arrest because…
Evaluate
Law for NFO are out of date.
- What era was created in? Does it cover modern issues? What isn’t included? How is this mitigated?
- What else does the act not cover? How is this mitigated?
Apart of NFO
- Victorian Time for Victorian issues, not a lot of modern problems are covered. Psychiatric Harm is not considered as no knowledge at time, doesn’t protect V. Mitigated by Chan Fook and Burstow common law to protect psychologically harmed V.
- Doesn’t cover STD transmission which is a modern issue which doesn’t protect V. Mitigated in Dica which classes it under GBH.
Evaluate
Law for NFO uses complex language.
- How old is the act? This makes? What word does S.20 use, changed definiton? Reform?
- Language in S.18 to S.20? What isn’t a modern word? Which two words same? How to reform?
Apart of NFO
- 160 years old, Out of date language, causes confusion. Maliciously used to mean reckless or intention for harm to occur to V, modern definition is to act with ill will. Potential reform by Law Commission is to replace malicious with reckless.
- Problem with the word Greivous that was defined in DPP v Smith, it’s not a modern word. S.18 Cause is the same as S.20 Inflict, refromed in the case of Burstow to mean the same thing
Evaluate
The Law for NFO’s are Heavily Interpretaetd by Judges
- How old is act? Fit for modern times? Gaps? How does it modernise law?
- What else does act not cover? What is up with wounding defintion? What can be classed as wound? What wound isn’t covered?
Apart of NFO
- 160 years ago, terms and language does not cover the modern day, the gaps had to be filled in by Common Law, Chan Fook/Burstow necessary to modernise the law to include psychological harm, which will protect V’s with psychological harm.
- Wounding isn’t in the act, the legal defintion in Eisenhower is not a medical definition, a pin prick counts under this defintion which leads to D getting 5 years max, internal bleeding isn’t covered.
Evaluate
Sentencing of NFO illogical
- Is there a clear hierarchy? Does it reflect severity? What is the same for S.47 and S.20 if tried in Magistrates Court. What if S.47 is tried in Magistares, what is the same for this and Assault/Battery?
- What is the sentence difference between S.20 and S.18. Why is the difference in S.20 and S.18 absurd? Potential Reform?
Apart of NFO
- There is no clear hiearchy that reflects severity. If a S.47 is tried in Crown Court, max 5 year imprisonment same as S.20 in Crown Court, despite less severe. If tried in Magistrates, 6 months which is the same as Assault or Battery, despite more severe.
- S.20 max sentence is 5 year compared to S.18 Life Setence, this is despite the fact the AR is same with only the MR different, and jump from Some harm to intend serious harm, which is massive for 5 year to life. Home Office Bill 1998, Ups S.20 to 7 years so there is a difference between S.47 and S.20.
Evaluate
Out of Date Specifically
- Assault - What do common law date back to? Example? Can this apply in modern times? Does it Protect?
- Battery - What common law dates back? Up to date? Reflects society? Accesible law?
- S.47 - When act made? Not in act? Case? What does common law do?
- S.20/18 - When act made? Not in Act? Case? What does common law do?
Apart of NFO
- 16th century, Tuberville v Savage where words can negate assault being committed, this old law struggles to apply in the modern day, which won’t protects V.
- Common law dates back to 70’s, so it is more up to date, this reflects modern crimes and society, makes law accessible which upholds the rule of law.
- 1861, Psychological Injury, Chan Fook/Burstow, modernised and fills in gaps.
Evaluate
Complex Language Specifically?
- Assault - What causes confusion? What does it imply? What is old-fashioned word? Accessible under rule of law?
- Battery - What causes confusion? What does it suggest? Who confused? Accssible under rule of law?
- S.47 - What causes confusion? Which two words? Confusing and Complex? Rule of Law?
- S.20/18 - What causes confusion? Reform? Wording in S.20 vs 18? Confusing? Rule of Law?
Apart of NFO
- Assault as lay can confuse with ABH, assault implies injury but there is no injury in assault, apprehend is not used in modern day, making law inaccessible eroding rule of law.
- Battery as lay cofuses as suggest high levels of force, but is only a minor touch. Conusing to lay people, which erodes rule of law.
- Occasioning is not used in modern times, assault and battery imply an injury but not needed, this isn’t distinct well so confusing and complex, which erodes rule of law.
- S.20 uses malicious but meaning changed which is confusing, to reform replace it with reckless. Inflict vs Cause, same word but Lay people may not know that, this erodes the rule of law.
Evaluate
Heavily Interpretated by Judges specifically.
- Assault - Is it in act? How is gap filled? Does this protect?
- Battery - What is not defined in act? How is gap filled? Does this protect? Too much creativity leads to?
- S.47 - Is it in act? How is ABH defined? Is this good? Role of Judges?
- S.20/S/18 - What not considered? How did this get expanded? Fair? What about wounding? How can judges confuse?
Apart of NFO
- Not in act, so judges fill gaps with common law, Ireland, protects victims as adapted to modern society.
- Force not defined. Defined in common law Haystead, protects as the law is adapted, many rules which can be confusing.
- ABH in itself not defined, the case of Miller defines this, fills gap making law clear, however not constituional role of judge.
- STD not in act, Dica expands which is fair on V, wounding not defined in act, JCC v Eisenhower expanded on this, common law can get confusing and not the constitutional role of judges.
Evaluate
Illogical Sentences specifically.
- Assault and Battery - Setence is same as? Illogical why? Is this sentence justifed?
- S.47 - Heard in what courts? Differences in power? Does this make sense? How can be like S.20? Same MR as battery? Fair?
- S.20/18 - Max setence? What is the same and different? Necessary?
Apart of NFO
- Sentence is max 6 months, for the two but the two are different crimes, battery has an application of force and not assault, this is justified as there is no injury caused by either.
- Often heard in Crown or Magistrates. 6 to up to 5 years as more serious harm, however this puts it at the same as S.20, but there is little forcce, and if in Magistrates, it is the same as battery despite an injury, so this is unfair.
- S.20 has 5 year, S.18 has life, big jump illogical for same AR, howerver the MR intends serious harm so a large sentence can be justified for S.18
