Non-fatal offences and defences
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What are non-fatal offences against the person in law?
A collection of offences that result in people being hurt to varying degrees but where they do not die.
Why is there a law on non-fatal offences against the person?
- To punish defendants
- To send out a deterrent message
- To protect victims and wider society against relatively common offences
- Summary offence with a maximum penalty of six months'
- Defined at common law
- Charged under s39 CJA 1988
Definition of assault
- An act cannot be committed by omission
- Can extend to silence shown in Ireland 1997 when V suffered silent phone calls from D.
- Also can extent to words shown in Light 1857 - D raised sword over wife's head and threatened her - This was assault as wife feared force and words did not negate her.
Assault requirement 1 - apprehend immediate unlawful force
- Victim must apprehend that immediate force is going to be used against them
- No offence if the defendant cannot actually use force
- Fear is sufficient if 'imminent' - Smith v CC of Woking 1983 - D looked through woman's bedroom window late at night. She was scared thinking D would break in - Assault even though D outside as woman believed what D would do was likely to be violent
- Words can prevent what would otherwise be an assault - Tuberville v Savage 1669 - D put hand on sword saying if judges were not in town he would act differently - The words nullified assault of having hand on sword
Assault requirement 2 - Unlawfulness of force
Force used must be unlawful to give rise to an assault - Constanza 1997 - D wrote 800 letters to victim and made phone calls. Last two letters seen as threats by victim - Assault occurred due to fear of violence.
- Intention to cause another to apprehend immediate unlawful personal violence personal violence; or
- Recklessness as to whether such apprehension is caused - the defendant must realise that the acts/words could cause another to apprehend unlawful personal violence. - Lamb 1967 - D killed friend with revolver containing two bullets but both believed fun would not fire - No assault as friend did not fear violence and D believed no bullet would be fired.
- Summary offences with a maximum penalty of six months' imprisonment or a fine of £5000 or both
- Defined at common law but charged under s39 CJA 1988
Application of unlawful force
- The slightest touch is enough
- The touching of clothes is sufficient - Thomas 1985 - D rubbed hem of woman skirt - Conviction upheld as touching clothes same as touching person.
- The act may be continuing
- The act may be indirect - Martin 1881 - D placed bar across theatre doorway, turned off lights and shouted 'fire'. Several people injured - D convicted even though he did not directly touch anyone
- In duty situations liability can occur by omission
- The force must be unlawful
- There is no need for an assault
Men rea for battery
- Intention to apply unlawful force to another, or
- Recklessness as to whether unlawful force is applied - the defendant must realise there is a risk that his act or omission could cause unlawful force to be applied to another - Haystead v CC of Derbyshire 2000 - D punched woman who let go of child she was holding and child injured by fall - D liable as held reckless whether act would injure child
Assault occasioning actual bodily harm - s47 OAPA 1861
- Triable either way offence with a maximum penalty of five years
- Miller 1954 - 'any hurt or injury calculated to interfere with the health or comfort of the victim'.
- A short lack of consciousness is sufficient - T v DPP 2003
- Includes injuries such as bruises, scratches and grazes - Roberts 1972 - D tried to remove coat of female hitchhiker in car. She jumped out at 30 mph and suffered cuts and bruises - Covicted as intended to apply unlawful force and no mens rea needed for resulting ABH
- Hair cut can be substantial - DPP v Smith - D cut off girlfriend's ponytail during argument
- Psychiatric harm must give rise to a recognised medical condition and be more than 'mere emotions' - Chan Fook 1997
- Intention or subjective recklessness as to whether the victim fears or is subjected to unlawful force
- No need to prove any mens rea for the ABH - Savage 1991 - D threw beer over woman in pub but glass slipped and cut woman's hand - D convicted as no mens rea for harm but intended to apply unlawful harm
Malicious wounding/inflicting grievous bodily harm - s20 OAPA 1861 Background
- Triable either way offence with a maximum penalty of five years
- Definition: 'whosoever shall unlawfully and maliciously wound or inflict any GBH upon another person, either with or without a weapon or instrument'
- Either wound or GBH is sufficient
- GBH: DPP V Smith 1961 - really serious harm, but serious harm since Saunders 1985
Wound or GBH s20 OAPA
- Seriousness is assessed in light of the victims age and health - Bollom 2004 - D convicted when 17 month old child suffered bruises to abdomen, arms and legs - convicted for more serious offence based on the age of victim.
- Wound - a cut or break in the continuity of the whole skin - JCC v Eisenhower 1983 - Victim shot in eye with shotgun pellet causing severe bleeding under skin - no wound as all layer of skin not broken.
- Wood 2008 - W broke victim's collarbone - no break in skin and so no wound.
- Harm can be psychiatric - Burstow 1997 - D carried out campaign of harrassment against ex-girlfriend using abusive and silent phone calls, hate mail and stalking. Woman suffered severe depression - Conviction based on level of psychiatric harm
- Harm can be a disease - Dica 2004 - D infected 2 women with HIV after unprotected sex. D did not say he was HIV positive - convicted because offence could occur by transmission of disease.
Inflicting S20 OAPA
- No need for a technical assault or battery
- No practical difference between 'inflict' in s20 and 'cause' in s18
Mens rea s20 OAPA
- Maliciously - intention to do the kind of harm that was done or foresight of the kind of harm that might be done and a decision to take that risk assessed subjectively using the Cunningham test
- Need to foresee harm but not necessarily the serious harm that results
Wounding or causing grievous bodily harm with intent s18 OAPA 1861
- Indictable offence with a maximum sentence of life
- Definition: c
AR s18 OAPA
- A wound
- Grievous bodily harm
- D's act must be substantial cause of the wound or GBH
MR s18 OAPA
- Intention to do some GBH or an intention to resist or prevent the lawful apprehension or detention of any person - Morrison 1989 - Police officer grabbed D to arrest him but D leapt through window, dragging officer, who was badly cut by glass - Convicted as either intended injury or realised risk of it occuring and took risk.
- No need to specifically prove malice
- Must be specific intent to resist or prevent arrest but recklessness as to the wound or injury caused is sufficient.
- Act is over 150 years old and language has changed
- 'Malicious' now has a different meaning
- Use of 'inflict' and 'cause' is unnecessarily confusing
- Hierarchical structure makes little sense
- Offences are not sequential
- Assault and battery are outside the Act
- Acceptable injuries have evolved especially with regard to disease and psychiatric harm
- MR for s47 is the same as for a assault and battery despite s47 leading to a higher maximum sentence
- Small change in level of harm can have larger effect on offence charged
- Sentence is the same for s47 and s20 although both the AR and MR are more serious for s20
- Difficulty of defining would and GBH is unsatifactory
- Possible to be convicted for s18 even if only minor injury foreseen as long as arrest is resisted.
Reform proposals for OAPA offences
- 1998 Home Office Consultation Document, Violence: Reforming the Offences Against the Person Act 1861 - Clause 1 of the draft Bill:
- Intentionally causing serious injury
- Recklessly causing serious injury
- Both intentionally and recklessly causing serious injury
- Assault - intentionally or recklessly applying force or causing an impact to another or causing a person to believe any such force or impact is imminent.
- Reform proposals have not been enacted and reckless causing serious injury by transmission of disease would not be an offence
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