Non-Fatal Offences Against The Person

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Step 1

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State Defendant (e.g. Liz and the BEHAVIOUR that is in question (e.g. scratching P.C. Davies' face)

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Step 2

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State the most serious OFFENCE that the defendant may have committed (e.g. s.18 OAPA) on the facts

1. s.18 OAPA 1861 (Life)

2. s.20 OAPA 1861 (5 years)

3. s.47 OAPA 1861 (5 years)

4. s.39 Criminal Justice Act 1988 Physical assault (6 months) s

5. s.39 Criminal Justice Act 1988 Simple Assault (6 months)

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Step 3: Has the offence been committed

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S.18 OAPA 1861 (GBH)

Actus Reus

-GBH = 'really serious harm' (DPP v Smith)

-really serious psychiatric harm , if a recognised condition (Burstow); OR

-Wound= breaking of both layers of the skin/drawing blood constitutes wounding (Moriarty v Brookes)

-Bruising/internal bleeding is NOT wounding (Eisenhower)

Mens Rea

-Intent to cause GBH; OR

-Maliciousness and Ulterior intent i.e. Recklessness as to causing some harm (i.e. ABH); AND intent to resist/prevent arrest

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s.20 OAPA 1861

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Actus Reus

-GBH = 'really serious harm' (DPP v Smith)

-really serious psychiatric harm , if a recognised condition (Burstow); OR

-Wound= breaking of both layers of the skin/drawing blood constitutes wounding (Moriarty v Brookes)-Bruising/internal bleeding is NOT wounding (Eisenhower)

Mens Rea

-Malice i.e. (i) Intention , OR

(ii) Reckless for what he actually foresaw (and not ought to have foreseen) and type (notextent) of harm – foresight of some harm (ABH) will suffice

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s.47 OAPA 1861

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ABH

Actus Reus:

1) Simple/Physical Assault

2) Causing

3) ABH

ABH= Any hurt/injury calculated to interfere with the health and comfort of the Victim (RvMiller);

-May include psychiatric harm if a recognised condition (R v Ireland)

Mens Rea: Intention or recklessness as to the infliction of unlawful personal force i.e. physical assault only (RvSavage; Rv Parmenter) N.B. the defendant need not have intended/ foreseen ABH

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s.39 CJA 1988

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Physical assault (strict liability)

Actus Reus;

1) Inflicion;

2) of unlawful personal force upon the victim (no injury is required e.g. spitting is enough)

-Infliction may be indirect, e.g. setting a dog on the victim (Haystead v Chief Constable of Derbyshire)

Mens Rea;

Intention or recklessness as to the INFLICTION of unlawful force

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s.39 CJA 1988 (Simple Assault)

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-Simple assault/Common Assault (no force necessary)

Actus Reus

1) Acts or words (RvIreland) (includes silence through positive act of phone call)

2) that cause Victim to apprehend immediate and unlawful personal force (Fagan v Met Police)

-Victim need only fear that force COULD occur immediately (Rv Burstow)

Mens Rea

-Intention or recklessness as to the victim APPREHENDING such force (Rv Venna)

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ABH or GBH

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Consider CPS charging standards after applying black letter law also:

GBH: permanent disability/loss of sensory function, more than minor breaks, substantial loss of blood (usually requiring transfusion), injuries resulting in lengthy treatment/incapacity

ABH: minor cuts (where medical treatment required e.g. stitches), extensive bruising, temporary loss of conciousness, minor fractures, broken nose

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Step 4

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If offence cannot be proven, consider next most serious offence

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Step 5

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Defences: 1. Consent:
GENERAL RULE: only available where NO HARM caused or INTENDED

-Sport: provided in spirit of the game (R v Barnes)

-Surgical operations

-Dangerous exhibitions e.g. circus

-Other lawful activities e.g. tattooing, piercing, circumcision (R v Brown), provided:
-there is knowledge of the nature and quality of the act (Rv Tabassum)

-there is genuine belief in consent (Rv Jones); and

-remember that there must have been consent to the actual risks involved (Rv Dica; Rv Konzani)

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Rv Brown consent may be invalid if:

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-There is risk of 'corrupting young men', spreading disease or the level of pain getting out of control;

-the acts 'breed and glorify cruelty'; or

-it is within the public interest to criminalise the act (However- Rv Wilson : public interest argument failed- the victim found to have validly consented to the Defendant branding her buttocks)

- Consent will not be valid where the realistic risk of harm is beyond transient or trivial to injury (RvEmmett)

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Self defence

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must establish a and b

a) the defendant used reasonable force (objective test)

-Self defence can be pre-emptive (Rv Bird)

-Discretion in decision-making allowed in heat of moment (Palmer v r)

b) the force was reasonable in the circumstances as believed them to be

-Rv Willliams (Gladstone): the defendant is judged on the facts as he honestly believed them to bem EVEN IF this was unreasonable or mistaken UNLESS;

-mistake was due to voluntary intoxication (requirement for reasonable force= reasonable by a sober man's standards)(RvO'Grady; Rv Hatton); or

-Mistake derives from psychiatric ailment (Rv Martin)

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Reasonable chastisement

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Parents/those in loco parentis can use reasonable force to discipline their children ( Rv Hopley)

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Duress

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The defendant must establish that (Rv Graham):

-the defendant reasonably believes he is THREATENED with death or serious injury to himself/to another (subjective); and

-a person of reasonable firmness of the defendant's age and gender would have given way to threats as the defendant did (objective)

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Intoxication

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See Sexual offences and intoxication

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Ireland and Burstow (1997) important case

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Simple Assault; s.39 cja

– D’s girlfriend ended their relationship and hecould not accept it. He embarked on a campaign of harassment against her over a period of8 months. He made silent telephone calls, abusive telephone calls, he appeared at herhouse, took photos of her, distributed offensive cards to her neighbours and hate mail. As aresult she suffered a severe depressive illness. ‘She may fear the possibility of immediatepersonal violence’

House of Lords held that ‘a thing said is a thing done’, and therefore even if he hadn’t doneanything violent, his words could still amount to assault. But what about silence? Silencewould usually be an omission, therefore not basis for assault. But calling someone is apositive act, made to communicate something. In this case, he communicated silent, whichimplies a threat. Thus it’s a positive act and therefore would be a valid AR.

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Santana Bermudez

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Battery; s39 CJA 1998

- D injured a woman police officer by allowing her tosearch him, knowing he had hypodermic needles in his pockets which stabbed her. D deniedhaving any needles or sharps when asked.‘where someone (by act or word) creates a danger and thereby exposes another to areasonably foreseeable risk of injury which materialises, there is the evidential basis for theactus reus of assault occasioning ABH’

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Brown

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Consent defence invalid:

Brown [1994]Case of sado-masochistic homosexuals who were charged under s47 and s20. The House ofLords recognised a few exceptions in which consent was a defence but refused to expand itto include activities that were clearly not in the public interest (e.g. hurting each otherduring sex).

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Wilson

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Public interest argument failure as objection to consent defence

Wilson [1997]Husband brands his initials on wife’s buttocks with soldering iron. That’s a matter formatrimonial home and should not concern the courts. Plus, like a tattoo.

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Emmett

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Emmett (1999)Court of Appeal held that consent wasn’t an available defence in sado-masochisticheterosexual practices. Not in the public interest.

Consent will not be valid where the realistic risk of harm is beyond transient (short term) or trivial to injury

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Savage

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s47: mens rea dosent have to be intentional, can be reckless

Savage – D pours drink over V. Accidentally drops the glass, which causes V ABH. Convictionunder s47. On appeal, conviction upheld because mens rea doesn’t have to be intentional, itcan be reckless conduct, which in this case applies.

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Savage and Parmenter

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Mens rea s.47 intention/recklessness as to unlawful use of personal force (in this case ability to foresee minor harm to child was enough) Savage and Parmenter (1991) - The defendant was convicted on four counts of causing GBHto his baby son under s.20. The baby suffered injuries to his bone structures of his legs andforearms due to the heavy handed way the defendant handled the baby. The defendant wasnot used to handling young babies and did not know that his actions would result in injuries.The trial judge directed the jury that they were to convict if the defendant should haveforeseen that his handling of the child would result in some harm of a minor nature.

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R v Konzani

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R v Konzani (2005) important case - Consent to the risk of contracting HIV could not beinferred from consent to unprotected sexual intercourse and was therefore not a validdefence to charges under the Offences against the Person Act 1861 s.20 of passing on theinfection. For a valid defence, there had to be a willing and informed consent to the specificrisk of contracting HIV. A defendant's honest belief in consent would only assist him if theconsent could provided him with a defence.

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j

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n