Non-fatal offences and defences

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Author:
toricazaly
ID:
274145
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Non-fatal offences and defences
Updated:
2014-05-12 13:51:05
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A2 OCR
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Law
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OCR
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  1. 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.
  2. 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
  3. Assault
    • Summary offence with a maximum penalty of six months'
    • Defined at common law
    • Charged under s39 CJA 1988
  4. 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.
  5. 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
  6. 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.
  7. Mens Rea
    • 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.
  8. Battery
    • 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
  9. 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
  10. 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
  11. 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
  12. Mens rea
    • 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
  13. 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
  14. 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.
  15. Inflicting S20 OAPA
    • No need for a technical assault or battery
    • No practical difference between 'inflict' in s20 and 'cause' in s18
  16. 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
  17. Wounding or causing grievous bodily harm with intent s18 OAPA 1861
    • Indictable offence with a maximum sentence of life
    • Definition: c
  18. AR s18 OAPA
    • A wound
    • Grievous bodily harm
    • D's act must be substantial cause of the wound or GBH
  19. 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.
  20. AO2 points
    • 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.
  21. 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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