Non-Fatal Offences Against the Person Flashcards

Question

Consensual Branding Of Buttocks By A Spouse

Answer 1

Good Reason Was Established The branding was recognised as a form of tattooing and that consenting behaviour between husband and wife was not a criminal matter. R v Wilson (1997) QB 47

Answer 2

The Contact Sport Must Be Properly Conducted Unauthorised prize fight injuries cannot be consented to — as this is not properly conducted contact sport.

Answer 3

Criminal Conduct Implicit consent will not extend to violence used in a sporting event that falls outside the remit of the rules of the game so as to be categorised as criminal e.g. an off the ball incident. 5 Factors The determination of whether such action would be criminal is a question of fact taking into account 5 factors. 5 Factors . The sport. * The level at which it was played. * The nature of the act. * The extent of the risk of injury. * The defendant's state of mind - (was it calculated).

Answer 4

Good Reason — Consent Valid A patient's consent to a qualified health care professional carrying out a legitimate treatment to treat a condition - will be a good reason for the laying of force — i.e. to cure a condition.

Answer 5

No Good Reason — Consent Invalid A patient's consent to a qualified health care professional carrying out an unnecessary treatment to treat a condition will not be a good reason for the laying of force. R v Tabassum (2000) 2 Cr App R 328.

Answer 6

Good Reason — Consent Valid The consent provided will remain a genuine consent and the force laid will not constitute an assault. There is no fraud as to the health care professional's identity, nor the nature of the act performed.

Answer 7

Consent Invalid The patient's consent will have been obtained fraudulently and it will not be a true consent. This is because there was a fraud as to the quality of the act performed.

Answer 8

In determining whether a defendant - who inflicts any of the following forms of serious harm upon a victim. * Grievous bodily harm within the meaning of section 18 OAPA 1861; * Wounding within the meaning of section 20 OAPA 1861; or * Actual bodily harm within the meaning of section 47 OAPA 1861... is guilty of any of the following relevant offences: * Section 18 OAPA 1861; * Section 20 OAPA 1861; or * Section 47 OAPA 1861 .it is not a defence that the victim consented to the infliction of serious harm for the purpose of sexual gratification. This offence gives statutory recognition to the position as previously established in R v Brown [1985] Crim LR 212... .that consent to the infliction of serious injuries for the purpose of sexual gratification will not provide a defence.

Answer 9

No It does not matter whether the serious harm was inflicted for the purpose of obtaining sexual gratification for the benefit of either: * The defendant; * The victim; or * Some other person.

Answer 10

The rule negating consent does not apply in the case of an offence under either: * Section 20 OAPA 1861; or * Section 47 OAPA 1861. where both of 2 steps are satisfied. Step 1 The serious harm either: * Consists of; or * Is a result of ..the infection of the victim with a sexually transmitted infection in the course of sexual activity Step 2 The victim consented to the sexual activity in either: * The knowledge; or . The belief .that the defendant had the sexually transmitted infection. The exception gives statutory recognition to the position as previously established in R v Dica [2004] EWCA Crim 113.

Answer 11

Maliciously The suspect either: * Intended *Was subjective recklessness .that at least some harm would be caused. Does The Defendant Need To Foresee The Degree Of Harm That Is Actually Caused? No It is only necessary to prove that the suspect foresaw a risk of some harm and nevertheless proceeded to use force against the victim.

Answer 12

Unlawfully either: *Wound; or *Inflict GBH; ..upon any person either with or without a weapon or instrument.

Answer 13

Definition Wounding involves either: * Breaking the continuity of the whole of the outer skin — i.e. both the dermis and epidermis; or * Breaking the inner skin within the cheek, lip or urethra. Bruising Rupturing blood vessels (i.e. bruising) will not constitute wounding.

Answer 14

Definition Of Grievous Bodily Harm Serious harm or Really serious harm R v Saunders (1985) crim LR 230 What Will Constitute Really Serious Harm? CPS Charging Standards Category 1 Broken or displaced limbs or bones. Category 2 Injuries resulting in permanent: *Disability; *Loss of sensory function; or *Visible disfigurement. Category 3 Injuries that cause either: * Substantial loss of blood (necessitating a blood transfusion); * Lengthy medical treatment; or * Lengthy incapacity.

Answer 15

Will Infection With HIV Constitute Really Serious Harm? The deliberate infection of a sexual partner with HIV can amount to really serious harm for the purpose of establishing GBH. R v Dica (2004) EWCACrim 3190

Answer 16

No — Not Informed Consent The victims had consented to unprotected sexual intercourse. They had not given informed consent to infection with HIV. Consent will only form a defence if it is informed consent to the passing on of the infection.

Answer 17

Definition It is necessary to prove that the defendant's conduct brought about the harm caused.

Answer 18

Maliciously With the additional intent to either: *Cause GBH to anyone; * Resist the arrest Of any person; or * Prevent the lawful apprehension or detainer of any person.

Answer 19

Unlawfully either: *Wound; or .Cause GBH; .upon any person.

Answer 20

The section 18 offence is the same as a section 20 offence subject to the added requirement that the assault was committed with the intent to either: *Cause GBH to anyone; * Resist the arrest Of any person; or * Prevent the lawful apprehension or detainer of any person.

Answer 21

Step 1 Did the suspect act maliciously — i.e. did they foresee the risk of at least some harm being caused by their actions? step 2 Did the suspect cause the result of either: *Wounding the victim; or * Inflicting I causing grievous bodily harm (serious or really serious harm) upon the victim? Step 3 Were the actions of wounding or inflicting of grievous bodily harm unlawful? * If no — no offence. * If yes at least the offence of wounding or inflicting grievous bodily harm (section 20) has been committed. Step 4 At the time of the act - did the suspect intend to either: * Cause GBH to anyone; * Resist the arrest of any person; or * Prevent the lawful apprehension or detainer of any person. *If no — the offence of wounding or inflicting grievous bodily harm (section 20) has been committed. *If yes — the offence of wounding or causing grievous bodily harm with intent (section 18) has been committed.

Answer 22

It is an offence to assault any person - with the intent to either. * Resist; or * Prevent the lawful apprehension or detainer (i.e. arrest) of either: * Themselves; or * Another for any offence. The Nature Of The Assault? The assault upon the person making the arrest can be either: *A common assault; or *A battery. The Arrest - Who Is Covered? Any person making an arrest - if they are acting lawfully - including either: * Police officers; *Store detectives; or *Members of the public. The Arrest Power Exercised Must Be Lawful It is irrelevant whether the person arrested is actually innocent or believes their innocence. All you have to show that the arrest was lawful. R v tee (2000) Cnm LR 991 The Mens Rea The defendant must have both: * The mens rea for the assault — i.e. intent or subjective recklessness; and *The intent to resist or prevent the arrest of themselves or another person.

Answer 23

Step 1 Has the suspect assaulted (common assault or battery) any person (NB not just police officers) making an arrest? Step 2 Did the suspect know that the person assaulted was making an arrest? Step 3 Did the suspect have the mens rea for the assault? Step 4 Did the suspect intend to either * Resist arrest, or * Prevent the arrest, .0f either: * Themselves, or * Another? step 5 Was the arrest lawful?

Answer 24

It is an offence to either: * Intentionally, or * Subjectively recklessly . ...assault either: * A constable in the lawful execution Of their duty: or * A person assisting a constable in the lawful execution Of their duty.

Answer 25

No Offence No offence Will be committed If the officer was acting unlawfully at the time of the assault because Of: * An unlawful arrest; * Using unlawful force, or * Unlawfully trespassing at the time of the assault. Offence If the initial arrest is unlawful — the offence will still be committed if the suspect later assaults a Custody Officer who is lawfully performing their separate functions. DPP v L 11999) Cnm LR 752 Is It Necessary To Prove That The Defendant Knew Or Suspected That The Person Was A Police Officer Executing Their Duties? No Need only prove that they were executing their duties and that the assault took place at the time of doing so. Who Can Be The Victim Of The Assault? Either: *The officer executing their duties; or *Another person who is assisting the officer in executing their duties.

Answer 26

No offence will be committed if the officer is acting unlawfully at the time of the assault or obstruction. Watch out for questions involving the officer making an unlawful arrest, using unlawful force, or an officer unlawfully trespassing at the time of the assault – no offence. Watch out for questions where the initial arrest was unlawful and the detainee later goes on to assault the Custody Officer when they are brought into custody – an offence will have been committed despite the fact that the initial arrest was unlawful as the Custody Officer was lawfully performing their separate functions – DPP v L [1999] Crim LR 752.

Answer 27

* It is an offence to either * Intentionally; or * Subjectively recklessly ..either: * Resist; * Wilfully (intentionally) obstruct... either * A constable in the lawful execution of their duty: or * A person assisting a constable in the lawful execution of their duty. The Constable Must Have Been Acting In The Lawful Execution Of Their Duty At The Time Of The Resistance Or Obstruction No offence will be committed if the officer was acting unlawfully at the time of the resistance or obstruction. Definition Of Resist Physically oppose. Definition Of Wilfully Obstruct Making it more difficult for a constable to carry out their duties.

Answer 28

Warning Other Drivers About Mobile Speed Cameras Offence if the vehicles warned were either committing or about to commit the speeding offence. If the vehicle warned was actually speeding - no offence. Deliberately Drinking Alcohol Before A Breath Test Offence Providing Misleading Information To The Police Deliberately providing misleading information - offence. Inadvertently providing misleading information - no offence.

Answer 29

General Rule No offence Exception Offence - if the person is under a duty to provide information — rare!

Answer 30

Definition? An offence of either: * Common assault; or * Battery * ...will be aggravated - if it is committed against an emergency worker whilst they were exercising their functions as such a worker.

Answer 31

2 Junctures An emergency worker will be deemed to be exercising their functions — when the assault or battery takes place — if it occurs either: * Whilst they are performing their functions at work; or * Whilst they are not at work — but are carrying out functions, which had it been work time, would constitute exercising the functions of an emergency worker. 2 Natures The nature of the emergency work - can be either: *Paid; or * Unpaid.

Answer 32

Category 1 A constable. Category 2 A person other than a constable - who either: * Has the powers of a constable; * Is employed for police purposes; or * Is engaged to provide services for police purposes. Category 3 National Crime Agency Officer. Category 4 A prison officer. Category 5 A prisoner custody officer — who is performing escort functions. Category 6 A person employed or engaged to provide fire or fire and rescue services. Category 7 A person employed or engaged to provide search or rescue services. Category 8 A person other than a prison officer — who is employed or engaged to carry out functions which correspond to those of a prison officer - at any custodial institution. List Of Custodial Institutions . Prisons; * Young offender institutions; * Secure training centres; * Secure colleges; * Remand centres; * Removal centres; * Short term holiday facilities; or * Pre-departure accommodation. Category 9 A person employed or engaged to provide: * NHS health services; or * Services in support of the provision of NHS health services whose role involves face to face interaction - With either. * Individuals receiving such services. or * Other members of the public.

Answer 33

A person commits an offence if they without lawful excuse - make a threat to kill to either a: * Person; or * 3rd person .intending the other to fear the threat would be carried out.

Answer 34

Who Has A Lawful Excuse? A police firearms team would have a lawful excuse to threaten to kill an armed hostage-taker in their sights if they did not come peacefully. A person acting in lawful self-defence.

Answer 35

By Any Means In person, via the phone, email, letter, text etc.

Answer 36

The Threat Need Not Be To Kill The Person Who Hears The Threat A tells B they intend to kill B. A tells B they intend to kill C.

Answer 37

Threat To Kill The Unborn Child In The Womb Prior To Its Birth No offence -as the foetus is not -a reasonable person in being at that juncture. Threat To Kill The Unborn Child Once It Is Born An offence will have been committed.

Answer 38

Intent Offence The offence is complete once the threat is made with the intention that the person receiving it would fear that that the threat would be carried out. No Result Is Required The threat does not have to be believed by the other person The threatened action (i.e. the killing) does not need to occur.

Answer 39

Step 1 Did the accused make a threat to kill either the recipient of the threat or a 3rd party? Step 2 Was the purpose of making the threat the intention to cause the recipient of the threat to fear that the threat will be carried out? NB — There is no need for the result of the threat being carried out or the threat to cause fear. Step 3 - Defence Did the accused have a lawful excuse for making the threat? * If no — guilty. * If yes — no offence.

Answer 40

An offence will be committed by a person who either: * Intentionally strangles another person; or * Does any other act to another person that both: * Affects the person's ability to breathe; and * Constitutes a battery.

Answer 41

Strangulation and strangles are not defined under the act and have their ordinary meaning.

Answer 42

Battery has the same meaning as the offence of battery under Section 39 Criminal Justice Act 1988.

Answer 43

It is a defence for the defendant to show that the person consented to either: *The strangulation; or * Other act which affected their ability to breathe which constitutes a battery. unless (i.e. no defence will apply) if both. .the person suffers serious harm as a consequence of either: *The strangulation; or * Other act which affected their ability to breathe which constitutes a battery... .and the defendant either: * Intended to cause serious harm to the person; or * Was reckless as to whether the person would suffer serious harm.

Answer 44

The offence gives recognition to the position as previously established in R v Brown [1993] 2 WLR 556 — i.e. that consenting to an act that causes no more than a battery will provide a valid defence.

Answer 45

Put simply — the consent defence will be successful, and no offence will be committed - if both: * The party subject to the strangulation or other act that affects their ability to breathe consents to the act; and *The consenting party does not suffer serious harm - (i.e. the act causes no more than a battery).

Answer 46

If the strangulation or act does cause serious harm to the consenting party — there Will be no defence — even if consent was present — provided the defendant had the accompanying mens rea to cause serious harm — i.e. they also either: * Intended to cause serious harm to the person; or * Was reckless as to whether the person would suffer serious harm.

Answer 47

If the prosecution cannot also prove the accompanying intent or recklessness to cause serious harm -then the mens rea element will be absent and the defence will succeed.

Answer 48

Serious harm is defined as either: * Actual bodily harm as defined by section 47 of the OAPA 1861; * Grievous bodily harm as defined by section 18 of the OAPA 1861 * Wounding as defined by section 18 of the OAPA 1861.

Answer 49

It is an offence for either: *A national of the United Kingdom; or *A person habitually resident in England and Wales .to commit an act outside the United Kingdom - which would constitute an offence under section 75A, if done in England and Wales.

Answer 50

Category 1 British citizen Category 2 British national (overseas). Category 3 British overseas territories citizen Category 4 British overseas citizen Category 5 British protected person within the meaning of the act Category 6 British subject as defined under the British Nationality Act 1981

Answer 51

Step 1 The offender is either: *A UK national; or * Habitually resident in England and Wales. step 2 The offender commits a section 75B offence in a country or territory outside the UK. Step 3 The section 75B offence committed outside the UK — is equivalent to the section 75A offence.

Non-Fatal Offences Against the Person Flashcards

(75 cards)