Criminal Law - Unit 2

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Criminal Law - Unit 2
2012-09-26 12:11:18
Criminal law gdl crime

Criminal Law GDL Unit 2
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  1. Assault

    What is the definition of simple assault?
    • Any act which intentionally or recklessly causes another person to apprehend immediate and unlawful personal force.
    • Fagan v Metropolitan Police Commissioner [1969]
  2. Assault Which statute sets out simple assault?
    • S39 Criminal Justice Act 1988
    • Note: Simple assault, common assault and psychic assault all mean the same thing.
  3. Assault
    What is the actus reus of simple assault?
    Causing the apprehension of immediate unlawful personal force; i.e. the victim must think he is about to be unlawfully touched
  4. Assault
    Can words alone amount to an assault?
    Yes. In R v Ireland [1997] the HoL (Lord Steyn) stated that "a thing said is a thing done".
  5. Assault
    Actus reus
    Which stalking case is authority for for the ruling that threats that could happen immediately are assault?
    R v Burstow [1997]
  6. Assault - actus reus
    What did the court hold regarding conditional threats?
    "If you don't shut up I'll slap you!"
    • Read v Coker (1853)
    • This is an imposition on the victim and the unjustified restriction on his personal liberty is unwarranted. D is liable for assault.
  7. Assault - mens rea
    What is the mens rea for simple assault?
    • D must intend to cause the victim to apprehend immediate unlawful personal force, or be reckless as to whether such apprehension be caused.
    • R v Venna [1976]
  8. Assault - mens rea
    Is the test for recklessness objective or subjective?
    Which case is authority?
    • Subjective.
    • R v Spratt [1991]
    • D must foresee the risk that the victim will apprehend immediate unlawful personal force and go on to take that risk.
    • It does not matter that you or I would foresee the risk. If D did not he is entitled to acquittal.
  9. Physical Assault
    What is the actus reus of this offence?
    The infliction of unlawful personal force on the victim.
  10. Physical Assault
    Does the application of force have to be direct?
    • No
    • DPP v K [1990] - Victim tripped over an obstacle deliberately placed behind a door.
    • Haystead v CC of Derbyshire [2000] - D punched mother who dropped her baby.
  11. Physical Asault
    What's the mens rea of this offence?
    Intentionally or recklessly inflicting unlawful force.
  12. Physical Assault - ABH 
    This offence is set out in S47 Offences Against the Person Act 1861. How is this triable and what is the maximum sentence?
    • Either way
    • Maximum 5 years imprisonment.
    • Whosoever shall be convicted upon an indictment of any assault occasioning
  13. Phsyical Assault
    According to R v Miller [1954] what is the definition of physical assault?
    ...any hurt or injury calculated to interfere with the health or comfort of the victim. Any harm does not have to be serious and a bruise, scratch or swelling would suffice.
  14. Physical Assault
    Which case is authority for actual bodily harm including psychiatric injury?
    R v Chan-Fook [1994]. However it needs to be a recognisable medical condition.
  15. Physical Assault - S47 OAPA 1861
    R v Savage; R v Parmenter [1991] decided the mens rea for ABH. Is it for the assault? Or the intention to cause harm?
    The HoL decided the mens rea was intention or recklessness as to the assault only.

    The element of causing ABH is only relevant to the actus reus.
  16. Physical Assault
    Is there a difference between the mens rea for simple assault/physical assault and S47 OAPA 1861?
    No. The only difference is in the acuts reus of S47 - there must be some actual bodily harm.
  17. Grievous Bodily Harm - OAPA 1861, s20 
    How is this offence triable? What is the maximum sentence?
    Either way, like s47 (ABH). Also 5 years imprisonment.
  18. Grievous Bodily Harm - OAPA 1861, s20
    What is the actus reus of s20? 
    To wound or inflict grievous bodily harm.
  19. Grievous Bodily Harm - OAPA 1861, s20 
    What is a wound?
    Both layers of skin must be broken.
  20. Grievous Bodily Harm - OAPA 1861, s20
    Is bruising or internal bleeding classed as a wound? 
    • No. No matter how serious the bleed.
    • JJC (a Minor) v Eisenhower [1984] 
  21. Grievous Bodily Harm - OAPA 1861, s20 
    What does GBH mean?
    • 'really serious harm'
    • DPP v Smith [1961]
  22. Grievous Bodily Harm - OAPA 1861, s20 
    Can psychiatric injury be clasified as GBH?
    • Yes, if severe.Also no physical assault is required - stalking case
    • R v Burstow [1997]
  23. Grievous Bodily Harm - OAPA 1861, s20 
    What is the mens rea of this offence?
    • S20 uses the word malicious.
    • This means intention or recklessness as per;
    • R v Cunningham
  24. Grievous Bodily Harm - OAPA 1861, s20 
    Intention is part of the mens rea of s20. What must the defendant have intended or foreseen?
    Some kind of bodily harm i.e. ABH. It is not necessary to foresee really serious harm.
  25. Wounding or Causing Grievous Bodily Harm with Intent- OAPA 1861, s18 
    What is the maximum sentence?
    Where is it tried?
    • Life imprisonment.
    • s18 is indictable - Crown Court
  26. Wounding or Causing Grievous Bodily Harm with Intent- OAPA 1861, s18
    What is the mens rea for this offence?
    • Intention.
    • Recklessness is not enough.
  27. Wounding or Causing Grievous Bodily Harm with Intent- OAPA 1861, s18
    What are the four ways you can commit this offence?
    • Unlawfully and maliciously:
    • Causing GBH with intent to cause GBH
    • Wounding with intent to cause GBH
    • Causing GBH with intent to resist or prevent the lawful apprehension or detainer of any person
    • Wounding with intent to resist or prevent the lawful apprehension or detainer of any person
  28. Wounding or Causing Grievous Bodily Harm with Intent- OAPA 1861, s18
    Is there a difference between s18 inflicting GBH and s20 causing GBH?
    Arguably, no. Lord Steyn in R v Burstow [1997] said the words were not synonymous. But he did not define the difference.
  29. Wounding or Causing Grievous Bodily Harm with Intent- OAPA 1861, s18
    Mens rea: there are two parts (an ulterior intent), what are they?
    'maliciously' wounding or causing GBH and D must intend either GBH or to resist or prevent the lawful apprehension or detainer of any person.
  30. Wounding or Causing Grievous Bodily Harm with Intent- OAPA 1861, s18
    When can a reckless defendent be charged under s18?
    If the prosecution can prove the ulterior intent of resisting lawful apprehension or detainer of any person.
  31. Consent
    R v Tabassum [2000] (fake medical exams) why was consent invalid?
    The victims did not know the 'nature and quality' of the act.
  32. Consent
    Which recent case overruled Clarence with regard to consent?
    R v Dica [2004]. This case involved the unwitting inefction with HIV of sexual partners.
  33. Consent
    When is consent a defence to an assault?
    • Surgical operations
    • Dangerous exhibitions (circus etc)
    • Properly conducted sport

    AG's Reference (No6 of 1980) [1981]
  34. Consent
    Sporting injuries.
    Where conduct is sufficiently grave to be criminal (i.e. outside the rules considering the type of sport, the level, the nature of the act, the degree of force used, the risk of injury and the state of mind of the defendent) consent will not stand as a defence. Which case is authority?
    R v Barnes [2005]
  35. Consent
    R v Brown [1994] confirmed that consent can be a defence to other 'lawful activities'. Such as?
    • Tattooing
    • Ritual circumcision
    • Ear piercing

    There is 'good reason' or public interest
  36. Consent
    R v Brown [1994] went to the ECtHR. Why? Was it successful?
    • Homosexual BDSM case. Went to the ECtHR under Art 8 (right to respect for private life).
    • It was not successful - legitimate aim, protection of health.
  37. Consent
    Contrasting R v Brown the case of R v Wilson was successful. Why?
    In Wilson (man brands wife's buttocks with hot knife) the CoA held that consent was valid. There was no public interest and the activity was similar to tattooing.
  38. Consent
    If an activity is unlawful - can you consent to it?
    No. Also if there is a deliberate inflictiopn of harm  you cannot consent.
  39. Self defence
    The common law recognises self defence.  Which statute also applies?
    s3(1) Criminal Law Act 1967:

    "A person may use such force as is reasonable in the circulstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large."
  40. Self defence - reasonable force
    Do you have to wait to be hit first?
    No - R v Bird [1985]
  41. Self defence - reasonable force
    If you defend yourself in the heat of the moment how will the court judge you?
    • Palmer v R [1971]
    • A person cannot weigh to a nicety the exact nature of his defensive actions.
  42. Self defence - reasonable force
    If you have a mistaken belief are you judged on that or on the actual facts?
    • You are judged on your beliefs even if mistaken. As long as the belief is honest - even if it is unreasonable.
    • R v Williams (Gladstone) (1984)
  43. Self defence - reasonable force
    Are psychiatric disorders assessable when considering the use of reasonable force?

    Hint - there are two contrasting cases
    • NO - R v Martin (Anthony) [2002]
    • YES - Shaw (Norman) v R [2002]

    Shaw was a Privy Council case.
  44. Self defence - mistaken belief
    If you are intoxicated and have a mistaken belief when relying on self defence is this a valid defence?
    No. This is an exception to the ruling in R v Williams (Gladstone). Where there is voluntary intoxication you will not have a defence - R v Hatton [2005].
  45. Self defence
    Can you rely on facts which you did not know at the time to show self defence?
    No. R v Dadson (1850)
  46. Self defence
    Which legislation codifies principles from case law regarding the defence of self defence?
    s76 Criminal Justice and Immigration Act 2008
  47. Self defence
    Is this a complete defence?
    Yes. If made out it will lead to acquittal.
  48. Self defence
    Whether or not the force used is reasonable in the circumstances is assessed how by the jury?
  49. Self defence
    If the D makes a mistake about the circumstances will the reasonableness of his belief be considered?
    No. As long as the belief was honest R v Williams (Gladstone) (1984)
  50. Self defence
    If D is intoxicated and defends himself on a mistaken belief can he rely on this defence?
    No. R v O'Grady and R v Hatton
  51. Reasonable chastisement
    Which Act provides a defence of reasonable chastisement?
    • s58 The Children Act 2004 - 'mild smacking'
    • The law was altered following A v UK (1998). The ECtHR ruled that 'reasonable chastisement' placed an undue burden on the prosecution and did not adequately protect children.
  52. General defences
    Which case provides the defence of duress?
    What is the test?
    • R v Graham [1982]
    • Subjective limb - D must reasonably believe he is theatened by someone with death or serious injuryto himself or another and he himself must give way to the threat; and
    • Objective limb - A person of reasonable firmness sharing the D characteristics would have given way to the threats
  53. General defences
    Defences of duress of circumstances and necessity - name a case where necessity was raised.
    What can they NOT be used for?
    • Re A (Children)(Conjoined twins: surgical separation) [2000]
    • These defences cannot be used for murder.