non fatal offences against the person

Question 1

assault

Answer 1

for an act to constitute assault, there is no touching, only the fear of unlawful force
r v nelson defines assault as something of a physical kind
assualts require some at or words - R v Constanza 1997 - letters can be an assault.
R v Ireland 1997 - even silent phone calls, according to the details of this case can be regarded as assault

Question 2

battery

Answer 2

battery is the application of unlawful force to another person either through intention or recklessness

Question 3

‘apprehend immediate unlawful force’

Answer 3

• the victim needs to think that the threat of force is real and possible
  fear of ‘immediate’ force does not mean right now, but that it is imminent or possible shortly. e.g smith v chief superintendent of working police station
• the force threatened must also be unlawful. ig it is lawful, then there is no offence of common assault.

Question 4

case - r v lamb 1967

Answer 4

pointing an unloaded gun at someone who knows the gun is unloaded is not assault, but if the person believed the gun to be loaded, then this is assault.

Question 5

what is the mens rea for assault?

Answer 5

the mens rea for assualt is either the intention to cause fear of unlawful personal violence or recklessness causing fear. for recklessness to be proved, the defendant must realise the risk of his acts/words

Question 6

‘force’

Answer 6

can also include the slightest touching
case - collins v wilcock 1984

Question 7

what is the actus reus of assault?

Answer 7

is any act that makes the victim apprehend the immediate infliction of unlawful force

Question 8

what is the mens rea of battery?

Answer 8

the mens rea of battery is intention or subjective recklessness as to whether unlawful force will be applied. the defendant must understand that his act or omission could cause unlawful force to be applied

Question 9

what is the actus reus of battery?

Answer 9

the actus reus of battery is the application of unlawful force. any unlawful physical contact is technically battery.

Question 10

case of battery

Answer 10

in R v Thomas 1985 the court of appeal said in the obiter that in touching and rubbing the bottom of a womens skirt while she was wearing it was equivalent to touching her

Question 11

what is an indirect act?

Answer 11

in an indirect act, the defendant causes force to be applied even though he hasn’t directly applied it himself e.g setting a booby trap

Question 12

common assault as an indirect act

Answer 12

in DPP v K 1990, by way of appeal to the kings bench, it was decided that ‘common assault’ which includes both assault and battery could be committed by an indirect act even if the mens rea of intention is not there. reckless behaviour is enough.

Question 13

what is an omission?

Answer 13

an omission is a general term for a failure to act.

Question 14

omissions

Answer 14

cases of assault caused by omissions are rare, but one example - DPP v Santa bermudez. where the policewomen asked d if there were needled in his pockets, he said no but lied. she searched him and injured her hands - it was judged that ds refusal to tell the police officer the truth amounted to an omission leading to assault causing bodliy harm

Question 15

omisions case

Answer 15

R v Miller, the man who failed to try and put out the fire and was convicted of arson by way of omission

Question 16

the use of force does not mean battery if:

Answer 16

• the victim gives genuine consent
• in use of self defence
• prevention of crime

Question 17

the unlawful force judged as ‘proportional’

Answer 17

the children act 2004 now provides that a battery committed on a child is unlawful if it results in any injury

Question 18

battery without an assault

Answer 18

if the victim is unaware that unlawful force is about to be used on him, for instance the defendant sneaks up behind him, then battery occurs, but without assault since the victim was unaware of the threat.

Question 19

assault occasioning bodliy harm

Answer 19

• offences against the person act 1861
• actual bodliy harm is the lowest level of injury under s47
• triable either way offences
• must be done with the intention of subjecting the victim to unlawful force
• miller 1954 - ‘any hurt or injury calculated to interfere with health or comfort of the victim’

Question 20

psychiatric injury

Answer 20

is also classed as actual bodily harm but does not include emotions like fear, distress or panic
- R v chan fook
- R v Burstow

Question 21

whats the mens rea of s 47

Answer 21

• no mention of mens rea in the act, but the courts have held it is sufficient fr the underlying assault or battery.
• where actual bodily harm occurs, there is no need for the defendant to intend to be reckless. R v Roberts 1971 and R v Savage 1991

Question 22

mens rea of s 47 - assault

Answer 22

fear of unlawful violence - no consequences - mens rea of causing fear

Question 23

mens rea of s 47 - battery

Answer 23

application of unlawful violence - no consequence needed - mens rea, intention of doing so

Question 24

mens rea of s 47 - assault occasioning bodily harm

Answer 24

assault or battery - actual bodily harm must be incurred - mens rea, intention to do either

Question 25

s 20 - malicious wounding/inflicting grievous bodliy harm

Answer 25

next offence in seriousness, can carry a sentence up to 5 years, same max sentence as s 47
- triable either way. mens rea must not include intention or recklessness
- a wound must mean an actual cut in the internal skin. internal bleeding is not sufficient, r v wood
- grevious bodily harm is really serioys. it can include physical, psychiatric or deliberate infection of a disease
- victims age and health can also be taken into consideration - r v bollom
- r v burstow - serious physchiatric injury
- r v dica, deliberate infection with a disease

Question 26

inflicting grievous bodily harm

Answer 26

s 20 interpreted quite widely. R v Lewis, R v Burstow
- s 20 talks about ‘inflict’ and s 18 ‘cause’, although there is no practical difference between the two words.
- cunningham uses the word ‘maliciously’ to determine the mens rea either through intention or through recklessness
- parmenter 1991. house of lords decided that there is no need to foresee a level of serious injury just the intention to cause some harm or through recklessness

Question 27

s 18 OAPA 1861

Answer 27

• wounding with intent
• more serious than s 20 and carries a maximum sentence of life imprisonment
• indictiable offence to be tried at crown court
• actus reus = wounding or causing grievous bodily harm and mens rea = intention to do grevious bodliy harm and/or resisting lawful apprehension
• intention to wound however is not enough R v taylor

Question 28

what does s 18 demand

Answer 28

s 18 demands specific intent. recklessness is not enough here
remember:
- moloney - foresight of consequence is not intention, it can only be used evidence of intention
- nedrick and woolin - unless the defendant realised that it was a virtual certainty that harm could be caused as a result of his actions
- r v morrison

Question 29

call for reform

Answer 29

there have been many reports published on this area of law over the years
not been high on governments priority list, so none have been implemented
the most recent law commision report in 2-15 had 28 recommendations

Question 30

the 4 key needs for reform

Answer 30

1. the 1861 offences against the persons act is out of date
2. there are inconsistencies between the different offences
3. no conformity in the correspondence principle (this principle states that the results which D must intend or foresee should match the results)
4. much of the language used is archaic

Question 31

the out of date factor

Answer 31

the 1861 act is over 150 years old this causes problems
- there was no understanding of mental health problems at the time, therefore only a mention of bodily harm, not mental harm
- chan fook and burstow have gone some way to remedy this
- there was also not a very clear understanding of the way diseases were transmitted from person to person
- dica 2004 has now interpreted the 1861 as including the deliberate infection of someone with a disease as inflicting grievous bodily harm

Question 32

the inconsistency between offences

Answer 32

• s 47 has the same mens as for an assault and battery. it also doesn’t require the defendant to intend or even realise there is a risk of any injury
• s 47 carries a max sentence of 5 years while assault and battery, 6 months - unjust
• somebody causing a small cut can be charged under s 20 instead of ‘occasioning’ actual bodily harm under s 47. a small cut often doesn’t equate to grievous bodily harm
• sentence for s 20 and s 47 are the same - 5 years, despite s 20 being more serious. unjust as the level of blame is so different
  -no clear hierarchy of offences

Question 33

the correspondence principle

Answer 33

• the results that D intends or foresees should match the results which actually occur
• in other words, he should not be held liable unless he meant to do it, or knowingly ran the risk of it.
• the 2015 report points out however that a defendant can indeed be guilty of both a s 20 and s 47 offence without intending or being reckless as to causing harm
• this is a clear breach of the correspondence principle

Question 34

the need for modern, simplified language

Answer 34

• s 20 - ‘maliciously’. modern language interprets this as deliberate intention with ill-will to the victim. the 1861 act simply interprets it as simply intending to harm or being reckless
• recommendation is that he word ‘reckless’ be used instead
• ’ inflict’ in s 20 but ‘cause’ in s 18. did ‘inflict’ mean a technical assault had to take place?

Question 35

the 1998 draft bill

Answer 35

• the labour government issued a consultation document with the intention of replacing s18, 20, 47 assault and battery.
• the following are the clauses of that bill
  1. clause 1 - intentional serious injury
  2. clause 2 - reckless serious injury
  3. clause 3 - intentional or reckless injury
  4. clause 4 - assault to be defined as applied force or impact to the body of another, or caused another to believe any force or impact was imminent
• levels of mens rea are clearly defined in each clause and so is the word ‘injury’

Question 36

law commission report 2015

Answer 36

• proposed a new statute respecting the following principles
• clear hierarchy of offences describing harm causes, culpability of the defendant and the maximum penalty in proportion
• clear and accurate labels for each offence
• all elements of an offence to be set out clearly

Question 37

the 1998 draft bill - law commission additions

Answer 37

1. clause 1 - the word ‘wounding’ would only be included if it caused serious injury. life sentence max
2. clause 2 - higher level of mens rea required than in the present s 20. the d would only be guilty if he was aware there was a risk of serious injury. recklessness still applies. maximum sentencing of 7 years
3. clause 3 - d is guilty if he intentionally or recklessly caused injury. the injury (defined as physical or mental) need not be serious. 5 years max