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Criminal Law Lecture
NFOAP
| Question | Answer |
|---|---|
| Non Fatal Offences Against The Person/Five basic offences | Assault/Battery/Assault occasioning Actual Bodily Harm (ABH)/Malicious Wounding of Inflicting Grievous Bodily Harm (GBH)/Malicious Wounding or Causing GBH with Intent |
| Assault and Battery | Separate offences/Common law offences but...S.39 Criminal Justice Act – 6 months imprisonment and/or 6 month fine./Can technically be guilty of an assault without a battery but usually charged together |
| Defined in Venna as | any act by which the D intentionally or recklessly causes the V to apprehend unlawful immediate personal violence. |
| Common Assault/Actus Reus | Causing the apprehension of immediate unlawful personal violence |
| Mens rea | intention or recklessness |
| Intention | direct or indirect or oblique |
| Recklessness | unjustifiable risk taking |
| Lord Simon in DPP v Morgan 1976/approved by Lord Elwyn-Jones CJ in DPP v Majewski 1977 | Whether its justifiable depends upon the social utility of the act. |
| Assault and battery – the Mens Rea | The law as it was : Caldwell 1982 |
| Harshness of objective test illustrated | Elliot v C 1983,Bell 1984 |
| Caldwell loophole | Shimmen 1987 |
| R v G and R 2003 | reverts the test back to subjective |
| Subjective recklessness approved | Spratt 1990 |
| requirement of “apprehend” | No physical harm needed. |
| Raising a fist | Stephens v Myers |
| Constanza | now states that written words can amount to an assault. |
| Essential to be able to appreciate the HL cases of Ireland and Burstow | which state that silent telephone calls can amount to an assault |
| ...causing the V to apprehend unlawful immediate personal violence | Can also be committed by an omission to act |
| Fagan v MPC | the D’s omission to act was converted into a continuing act, which coupled with the MR resulted in an assault. |
| Fagan v MPC 1969 | “the actual intended use of force to another person without his consent” |
| AG Reference (No.6) of 1980 (1981) | added “or other lawful excuse” |
| Collins v Wilcock 1986 per Lord Goff | “the actual infliction of unlawful force on another person” |
| Faulkner v Talbot 1981 per Lord Lane | “any intentional touching without the consent of that person and without lawful excuse. It need not be hostile or rude or aggressive , as some of the cases seem to indicate”. |
| Battery | Violence does not need to be directly/inflicted but there must be force applied. |
| Martin | iron bar over door in theatre |
| DPP v K | acid in dryer – also shows that an omission to act can also amount to a battery. |
| Assault occasioning Actual Bodily Harm | S.47 OAPA 1861/Maximum penalty 5 years |
| The D must have | either intended an assault and battery or is reckless whether the V apprehended or sustained unlawful personal violence /AND this must have caused the actual bodily harm. |
| Savage and Parmenter per Lord Ackner | “the prosecution is not obliged to prove that the D intended to cause some actual bodily harm or was reckless as to whether such harm would be caused” |
| ABH/Miller 1954 | any hurt or injury calculated to interfere with the health or comfort of the V |
| Chan-Fook 1994 | psychiatric injury can amount to an ABH |
| Ireland, Burstow | – silent telephone calls/ can amount to an ABH |
| S.20 is defined in part as | “whoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any person, either with or without any weapon or instrument shall be guilty...” |
| AR | unlawful and malicious wounding or inflicting GBH with or without a weapon. |
| Maximum sentence | 5 years |
| MR | maliciously requires intention or Cunningham recklessness |
| S.18 OAPA is defined as follows | whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person…. |
| with intent …to do grievous bodily harm to any person or with intent to resist or prevent the lawful apprehension or detainer of any person shall be guilty”/Maximum life imprisonment | |
| AR | malicious wounding and malicious causing of GBH |
| MR | intention only |
| S.18 | most serious offence/Ulterior motive for s.18 is required – intent must be present. |
| The term “cause” is referred to | s.18 |
| The term “inflict” is referred to | s.20 |
| If convicted of s.18 | maximum sentence is life |
| If convicted of s.20 | maximum sentence is 5 years. |
| What does wounding mean? | Question of fact whether harm is serious:/C v Eisenhower 1984/McLoughlin 1838/Moriaty v Brooks 1934/Wood 1830 |
| What does the term grievous mean? | DPP v Smith 1961 – “really serious” |
| Saunders 1995 | – “serious harm”/Harm caused is an objective standard to satisfy but note the case of Bollom 2004 |
| What does the word inflict mean? | Clarence 1888 – infliction of a wound needed proof of a prior assault. |
| Wilson 1984 | disapproved of Clarence |
| Dica 2004 | overruled Clarence. |
| Konzani | followed Dica |
| Ireland and Burstow | HL held that the term “inflict” can be read to mean “impose upon” and therefore there did not need to be a physical assault./Inflict and cause could be read interchangeably. |
| S.20 | Maliciously – requires either intention or recklessness. |
| Reckless | subjective see Mowatt/Approved in Sullivan, Jones, Savage, DPP v Parmeter |
| S.18 | Intention only/ Bryson 1985, Purcell 1985 – intention has the same meaning as for murder. |
| Prosecution must be able to prove | that that it was the D’s purpose to cause GBH or that the consequences of the D’s act was virtually certain and the D was aware of that Nedrick /Woollin |
| Second part of the test is subjective | Williams 1984, Beckford 1986 – the D is to be judged on the facts as the D honestly believes them to be even if the D is mistaken. |
| To what extent can a person consent to harm? | Cannot consent to being killed /Rice 1803, Young 1838 and Cuddy 1843 |
| Cannot consent to prize fighting | Coney 1882. |
| Consent is no defence to acts which are intended or are likely to cause injury | principle approved of in Brown/No permanent injury but was violence rather than sexual activity. |
| Emmett 1999 | Decision of Brown followed/Unable to consent on the grounds of public policy. |
| Wilson 1996 | husband adorned his wife’s buttocks with his initials/Act of love rather than sexual gratification. |
| Boyea 1992 | change of social attitudes should be taken into account when deciding whether the level of activity was so significant that the victim could not consent to it. |
| Consent | a defence to battery but not to ABH or GBH. |
| GBH | can be inflicted without an assault or a battery being first committed.Demonstrated in Clarence 1888/Dica 2004, Konzani 2005 |
| Barnes 2004 | physical injury was an inevitable risk of sport and those who participated consented to such injury. |
| Horseplay | Can consent to rough and undisciplined horseplay. |
| Jones 1987 | illustrates can consent to rough games which cause injury. |
| Aitken and others 1992 | V had consented to the activity whether or not the consent was reasonable. |
| Surgery | can consent to actual or grievous bodily harm/ Bravery v Bravery 1954 |
| Lawful Correction – Hopley 1860 | punishment was unlawful if used in rage, was excessive, a child was unable to withstand it or an instrument was used. Taylor 1983 |
| Clearly v Booth 1893 | lawful correction only is permissible |
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