Non-fatals

Question 1

bodily autonomy

Answer 1

A central theme to both criminal law and the law surrounding non-fatals is that of bodily autonomy – the right to not have your body interfered with against your will

This is most commonly applied to fatal offences, but it is extended to NF from non-consensual touching all the way to serious injuries

Question 2

results based offences

Answer 2

All NF are ‘results based’ in that we find the offence in the result of what happens to the victim

In this case harm, and NF’s are ‘ranked’ based on the degree of harm which they cause to the victim and are ranked in a vague ‘ladder’

Question 3

who can be a victim

Answer 3

To be a victim of a non-fatal offence, you must be human, alive and be independent of the womb/mother

Question 4

where are most NF offences defined

Answer 4

in offences Against the Person Act 1861

Question 5

the power to charge someone with assault and battery are found where

Answer 5

S39 Criminal Justice Act (1988)

Question 6

assault

Answer 6

Any assault involves any conduct by D that, intentionally or recklessly, causes V to apprehend imminent unlawful personal violence.

There is no requirement for there to be physical touching when assaulting someone – if you touch them = battery

The concept of assault is based on apprehension and therefore perception of the victim

Question 7

unlawful personal violence

Answer 7

Any non-consensual contact with V

This does not have to be extreme, serious or even moderate violence but can merely be low-level violence

There is no requirement for the V to fear anything

Question 8

apprehension or fear

Answer 8

The V must apprehend that the D is about to cause them immediate personal violence, and it should be noted that apprehension does not equal fear

There can be fear without apprehension, and apprehension without fear

Question 9

how imminent, is imminent

Answer 9

Threats at ‘some point’ are not sufficient – especially if they are at some non-defined point within the future

Immediacy and imminent threats satisfy the AR

Question 10

how do you test imminence

Answer 10

objective/part subjective test

Question 11

subjective part of testing imminence

Answer 11

What facts did the V believe, what did the V believe to be the nature of the offence?

Question 12

objective part of testing imminence

Answer 12

Based on the facts, whether this is enough to be apprehension of imminent violence is an objective one for the court

Question 13

indirect assault

Answer 13

It is possible for an assault to be committed indirectly, such as being threatened by a dog or by D to be assaulted by another person

Question 14

mens rea: intention or recklessness

Answer 14

The defendant needs to be intentional or reckless as to the causing the result (assault)

Established in Venna 1976

The D must also have voluntary conduct and could be aware that their victim was a person

Question 15

battery

Answer 15

Any conduct by which D intentionally or recklessly inflicts unlawful personal violence upon V

Question 16

AR - battery

Answer 16

The infliction of unlawful personal violence – with violence simply meaning ‘any unlawful contact’

Question 17

the right to no interference

Answer 17

“The law cannot define the line between different degrees of violence and therefore prohibits the first stage of it; every person being sacred and no other having a right to meddle in it.
- Blackstone 1984

Question 18

does battery require physical contact

Answer 18

Unlike assault, which focuses on words and the apprehension of violence – battery will always require some form of physical action

The V does not have to be aware or even notice (sleeping) and it does include the touching of the V’s clothing, as seen in Thomas 1985

Question 19

indirect touching - battery

Answer 19

It is most common for battery to be carried out via a direct action – hitting with a fist or weapon for example, but it can be indirect

Indirect battery consists of something like throwing, spitting, or a third-party action – or setting a dog or other animal on V

Question 20

omissions - battery

Answer 20

It is entirely possible to satisfy the AR through omission – as seen in Santana – Bermudez 2004

We know that omissions relate to a duty of care, for battery it is common that the DoC breached will be one of a dangerous situation

Question 21

mens rea - battery

Answer 21

Similarly, to battery, the D must have intent or recklessness as to their actions

They must also have acted, knowing that the person was a person

Question 22

relationship between assault and battery

Answer 22

Technically assault and battery are two offences which can be charged separately

Entirely possible to have one without the other

However, they are different offences and please remember that assaulting someone requires NO physical touch, where battery does

Question 23

lawful chastisement

Answer 23

Controversial, available to parents, only for battery at a maximum and must be reasonable force

Question 24

consent

Answer 24

Consensual touching, being in society, same rules as standard consent defence

Question 25

what section is assault occasioning actual bodily harm

Answer 25

S47

Question 26

assault occasioning actual bodily harm sentence

Answer 26

liable to imprisonment for not more than five years

Question 27

elements of ABH offence

Answer 27

Assault/battery + V suffering ABH = liability for S47

Question 28

assault or battery

Answer 28

The use of the term assault in the definition should be read to mean assault or battery and the base elements remain the same as the original offences

Mostly refers to a battery which then occasions ABH, but a base offence of assault is possible – for example if D caused V to apprehend violence and V hurts themselves escaping

Question 29

occasioning

Answer 29

Has been interpreted to mean same as ‘causing’

Once proving that there was an assault or battery – the prosecution then must show this cause actual bodily harm

The conduct of the D must therefore cause 2 results; assault/battery and ABH

Question 30

actual bodily harm

Answer 30

Not defined in the OAPA, so the courts have used the literal approach – defining it in a way consistent with the common meaning

There is a clear distinction from battery in that the injury caused must be more serious

Question 31

injuries - ABH

Answer 31

ABH will not be found where V’s injury is ‘transient or trifling’ Tv DPP (2003)

However, ABH will be permitted to include ‘any hurt or injury that is calculates to interfere with the health or comfort of V’ Miller (1954)

Question 32

give 5 examples of definite ABH injuries

Answer 32

Scratches, grazes, abrasions

Bruising, swelling

Temporary loss of consciousness T v DPP [2003]

Cutting a substantial amount of hair DPP v Smith [2006]

Psychiatric injury

Question 33

psychiatric injury under S47

Answer 33

Will be enough to warrant ABH when it manifests itself as a recognised psychiatric condition

Psychological harm will never amount to ABH

Question 34

ireland and burstow (1998)

Answer 34

D was making silent phone calls which cause V1 to suffer psychiatric harm and V2 to be diagnosed with severe depression

Through CC, CoA and the HoL the appeals from the D were dismissed – ruled that psychiatric injury is capable to amounting to actual, if not grievous bodily harm

Question 35

mens rea - ABH

Answer 35

The only requirement for S47 are those which relate to the base offence of assault or battery – therefore intention or recklessness to causing imminent violence, or to making contact with V

There is no additional MR to the result of ABH – same MR as to making contact – that contact will then result in ABH

Question 36

do you need to force the harm of ABH

Answer 36

R v Roberts [1972] established this further:

A taxi driver assaulted the V, which led to the V jumping out of the car and sustaining grazes and concussion. D claimed that he did not foresee the risk and therefore should avoid liability.

It does not matter that you did not foresee ABH as per, just that you had the MR of Assault/Battery. ABH is an additional result

Question 37

what section is wounding or inflicting grievous bodily harm

Answer 37

S20 OAPA 1861

Question 38

AR 20 - wounding

Answer 38

For there to be a wound – defined in the legal sense, the V’s skin must be broken

Every layer of the skin must be broken - if a scratch breaks the surface of the skin, will not amount to a wound

Similarly, an injury which doesn’t break the skin – such as a broken bone with no impact through the skin will not be a wound

Question 39

AR S20 - inflicting GBH

Answer 39

With there being no statutory definition as to the meaning of GBH, the courts have defined it as ‘serious bodily harm’ Smith [1961]

Therefore, V’s injuries should be more than ABH

GBH does not require injuries to be life threatening or permanent

A mere loss of consciousness is likely sufficient

Serious psychiatric injuries – as long as it is a recognized psychiatric condition

When identifying harm, the court will look at the totality; the sum of all of V’s injuries

Question 40

wounding or inflicting GBH

Answer 40

There are ways in which these likely overlap but just as likely is that they won’t overlap and therefore it is important to define which is which

Broken bones – GBH not wound

Cut/puncture – wound and not GBH

Question 41

MR of S20

Answer 41

Regardless of whether the offence is wounding of inflicting GBH, S20 requires that the D act maliciously – interpreted to mean intentionally or recklessly

There is no need for the D to intent or foresee the full extent of the harm

They must merely see that some bodily harm may be caused

Question 42

Diplock LJ, Mowatt 1968

Answer 42

“it is quite unnecessary that the accused should have foreseen that his unlawful act might cause psychical harm of the gravity described in s20…it is enough that he should have foreseen that some physical harm, to some person…”

Question 43

S20 and S47

Answer 43

With both offences reaching the same sentence of 5 years, there is an argument of their existence

Generally, a S20 includes greater harm or culpability and will reflect a greater sentence but the lack of consistency demonstrates an issue with this area

Question 44

What section is wounding, or causing GBH w/intent

Answer 44

S18 OAPA 1861

Question 45

Wounding, or causing GBH w/intent

Answer 45

S18 makes illegal the D who with intention to cause GBH or resist apprehension etc., maliciously wounds and/or causes GBH

Question 46

what is the sentence for Wounding, or causing GBH w/intent

Answer 46

life imprisonment

Question 47

AR of S18

Answer 47

Identical to S20 – D’s conduct must have cause V to suffer either a wound or GBH

No need to prove assault or battery AR’S at this point

Question 48

MR of S18 - intention

Answer 48

The MR is only satisfied by intention and recklessness is not sufficient

D intends if they a) act in a way to bring about a result b) acts with foresight that the result is a virtually certain consequence of their action

An intent to simply wound is not enough, it must be an intent to cause GBH

Question 49

MR - malice

Answer 49

Requires that D intended or foresaw the possibility of harm – two cases where this is key in S18 cases

1) Where the D intents to cause GBH
2) Where D does not intent GBH but does intent to resist lawful apprehension

Question 50

intending to cause GBH

Answer 50

The word maliciously does not add anything – intending to cause GBH incorporates malice and therefore does not need to be discussed separately

Question 51

resisting lawful apprehension

Answer 51

The malicious element is central here

The D must foresee at least some bodily harm and the foresight of GBH

So, when resisting apprehension, maliciously is interpreted to also foresee GBH

Question 52

laddering

Answer 52

Due to the nature of these offences, if a D is charged with a more serious offence, the less serious options will be there as alternative

Analysis of liability will focus on the most serious potential liability, working down the ladder if needed

Question 53

conduct focussed OAP

Answer 53

Focused on the conduct of D, rather than harm and created independently to recognise harmful circumstances of to react to political or social motives

Question 54

what is the different between conduct and research focused based offences

Answer 54

Results based on offences in NF sphere are those which we have discussed previously

We look for the harm for the victim in the result of the offence

Conduct based offences look at the conduct of the D

Question 55

why create conduct based

Answer 55

They are created independently by common law and judges, and are realistically used to fill the gaps between harm-based offences

Therefore, where more typical NF offences can be laddered the harm in these cases area based on how the act is carried out and therefore the laddering does not need to exist

Question 56

sentencing and conduct based

Answer 56

Rather than have laddering, it is down to the harm and culpability involved of the D which will determine the seriousness of these offences