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32 Cards in this Set
- Front
- Back
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FAGAN (1969) Critical Point |
1. QBD rejected Fagan's appeal. 2. The AR of assault/battery can be a continuing act and the complete offence is committed once D has formed the MR. 3. Fagan's conduct could not be regarded as mere omission or inactivity. The original act provided the AR for battery but not the MR. 4. The MR was added when FAGAN intended that V should suffer by keeping the car on V's foot. 5. Once the MR was added to the continuing act, a battery took place. The offence is committed once both the AR and MR are present together. It is not necessary that the MR should be present at the start of the action. |
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FAGAN (1969) Analytical Point 1 |
1. A positive act is required for a battery. 2. An omission will not normally do for a battery unless D is under a duty to act as in DPP v SANTANA BERMUDEZ 2003. 3. The positive act was driving onto the policeman's foot. |
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FAGAN (1969) Analytical Point 2 |
1. The AR for battery can result from an indirect act. 2. This was later confirmed in DPP v K 1990. 3. It was the car that damaged the policeman's foot, not D, although the latter had been driving the car. |
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FAGAN (1969) Linked Cases + Development |
- DPP v K 1990 developed the law in terms of indirect act. - R v MILLER 1983 developed the law on continuing act theory. - If the principle of of the continuing act had been rejected, Fagan's unacceptable conduct would not have been punished because of a legal technicality, and justice would not have been served; not good for protection of public. |
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IRELAND; BURSTOW (1997) Critical Point |
1. The offences under OAPA 1861 involve the ingredient of 'bodily harm' but do psychiatric illnesses amount to 'bodily harm,' (source 2, lines 7-9). 2. The Victorian legislators would not have considered psychiatric illness at that time as the science was in its infancy. 3. CHAN FOOK 1994 had accepted that psychiatric injury could amount to ABH. 4. Lord Steyn used stat interp to argue that the wording would allow for the inclusion of recognised psychiatric illness. 5. BURSTOW 1997 took the reasoning one step further. It indicated that serious psychiatric injury can amount to GBH. |
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IRELAND; BURSTOW (1997) Analytical Point 1 |
1. Traditionally it had been assumed that to commit s.20 GBH a common assault had to have been carried out as per CLARENCE 1888 (source 4, lines 2-3) 2. CLARENCE 1888 had adopted a narrow interpretation. A husband could not inflict GBH on his wife if there was no common assault (source 4, line 4). 3. In IRELAND; BURSTOW 1997, the H/L rejected this narrow interpretation in favour f a wider one. An assault was no longer necessary for s.20 GBH (source 4, line 7). 3. It was thought that for s.20 GBH any application of force had to be direct (source 4, lines 9-10). 5. Decisions in IRELAND; BURSTOW 1997 indicated that 'inflict' no longer implied a direct application of force (source 4, lines 13-14). |
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IRELAND; BURSTOW (1997) Analytical Point 2 |
1. Lord Steyn noted that silent telephone callers have become a significant contemporary problem and that society needs to be protected from them (source 2, lines 1-2) 2. The problem was whether a common assault could be committed by silence over the phone (source 2, lines 37-42). 3. The criminal law must be able to deal with this problem as a matter of public policy. 4. Lord Steyn concluded that silence may amount to an assault, depending on the impact on V. SO, a silence telephone caller can be guilty of a s.47 offence (source 2, lines 43-56). 5. The issue of immediacy was considered in terms of an assault. As in CONSTANZA 1997, it was decided that the possibility of an 'immediate' attack does not have to be 'now'. It can be stretched to cover 'sometime in the near but not too distant future'. |
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IRELAND; BURSTOW (1997) Development |
1. The Law Lords in IRELAND; BURSTOW were clearly in tune with public opinion. Their stretching of the law to cover psychiatric illness and the transmission of disease seems just to V but was at the expense of D. |
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WILSON (1996) Critical Point |
1. D was charged with s.20 GBH but had been found guilty of ABH in the crown court. He received a suspended prison sentence and appealed. His conviction was quashed by the C/A but the H/L then heard the appeal and restored the s.47 ABH.
2. English law had developed along two different strands and this inconsistency had caused uncertainty, One strand maintained that s.47 was a viable alternative verdict t a charge of s.20 GBH; the other claimed that it was not. 3. The Law Lords confirmed that, when D is charged with s.20, it is open to the jury to return a verdict of not guilty as charged but guilty of s.47 ABH. |
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WILSON (1996) Analytical Point 1
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1. Lord Roskill highlighted the problem that the word 'assault' does not appear in the definition for either s.20 or s.18. Therefore, English law had developed along two different strands. Yet CLARENCE 1888 adopted a narrow interpretation and indicated that an assault was required to commit s.20 GBH.
2. The Law Lords in WILSON 1996 favoured a wider interpretation, using the judgement in an Australian case, SALISBURY 1976, to support their contention. This was persuasive rather than binding. They stated that an assault, although usual, is not always necessary. GBH can sometimes be inflicted without an assault. 3. However, this development remained restrictive. In this particular case, D had directly attacked V, so an assault was required. |
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WILSON (1996) Analytical Point 2
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1. Alternatively, s.20 GBH can be inflicted without the requirement for an assault, although this will be unusual. 2. The word 'inflict' simply required a violent application of force to V's body so that V suffers GBH, and this could be accomplished indirectly. 3. So the judgement in WILSON 1996 assumed that in this type of s.20 GBH case involving an assault, it had to be a direct application of force (source 4, lines 9-10). 4. Therefore WILSON 1996 remained restrictive in that it still followed CLARENCE 1888 in requiring a direct application of force. |
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WILSON (1996) Linked Cases |
1. The requirement that the application of force must be direct was finally overturned in IRELAND; BURSTOW 1997. The judgement in these cases indicated that 'inflict' no longer implied direct application of force (source 4, lines 13-14).
2. WILSON 1996 shows the law lords slowing beginning to move away from the restrictive interpretation of CLARENCE 1888 which had been so unfair on V. |
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R v CUNNINGHAM (1957) Critical Point
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1. CUNNINGHAM 1957 involved unlawfully and maliciously administering poison under OAPA 1861.
2. The appeal judges in this case critisised the lower court judge for directing the jury that 'malicious' means 'wicked' and since D had acted wickedly must be guilty. This was unjust, and this is why the appeal was allowed and the conviction quashed. 3. When 'maliciously' is used in a statute, subjective or CUNNINGHAM recklessness is required. So, as 'maliciously' is also used in s.20 OAPA 1861, then subjective recklessness to cause someone harm is sufficient for the MR. |
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R v CUNNINGHAM (1957) Analytical Point 1 |
1. s.18 is a specific intent crime, so only intention will suffice. CUNNINGHAM recklessness is insufficient.
2. Along with intention, CUNNINGHAM recklessness is also adequate for s.20, s.47 and battery and assault. 3. Each of these is a basic intent offence. |
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R v CUNNINGHAM (1957) Analytical Point 2 |
1. Subjective or CUNNINGHAM recklessness is considered from the point of view of D. 2. If D had not foreseen the risk, no matter how obvious it is to a reasonable person, D would not be reckless. 3. This rule was confirmed in PARMENTER 1991. |
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R v CUNNINGHAM (1957) Linked Cases
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1. PARMENTER 1991 confirmed that CUNNINGHAM recklessness was appropriate for MR when 'maliciously' used in a statute. 2. If D is intoxicated when they commit the AR for assault or battery, they have been reckless in getting drunk. This further development means that being intoxicated is enough to satisfy the requirement for MR even if D became intoxicated hours before committing the non-fatal offence (DPP v MAJEWSKI 1976). |
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R v CLARENCE (1888) Critical Point |
1. The OAPA 1861 caused problems by using 'inflict' for s.20 GBH and 'cause' for s.18. 2. There was a disagreement as to whether both words meant the same thing. 3. Judges who believed they did not mean the same thing usually applied a more narrow interpretation to s.20 GBH. 4. This is what the LL did in this case. 5. The acceptance of the narrow interpretation assumed that an assault or battery was required to satisfy s.20 GBH. |
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R v CLARENCE (1888) Analytical Point 1 |
1. The judgement in CLARENCE 1888, by accepting the use of a narrow interpretation, required D to inflict direct harm to be liable for s.20 GBH. 2. If the wider interpretation had been used, the infliction of harm could have been indirect. 3. CLARENCE was not held to have inflicted GBH on his wife because he had not made a direct assault on her. |
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R v CLARENCE (1888) Analytical Point 2 |
1. That V was unaware of the infection and might not have consented had she known about it was considered irrelevant by the courts.
2. In 1888, it was assumed that a wife always consented to sexual intercourse with her husband. 3. At the time of sexual intercourse, V had not feared the infliction of unlawful force. Therefore, as there was no assault, the requirements for s.20 could not be satisfied. |
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R v CLARENCE (1888) Linked Cases + Development |
1. The H/L rejected this narrow approach in WILSON 1996 in favour of a wider one. An assault was no longer necessary for s.20 GBH. However, the judgement in WILSON still thought that for s.20 GBH any application of force had to be direct.
2. The judgement in CLARENCE favoured D at the expense of V. 3.It was grossly unfair on women. Wives who were infected with a sexual disease had no legal rights when deceived by their husbands. |
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JJC (a minor) v EISENHOWER (1983) Critical Point |
1. The case of EISENHOWER 1983 is concerned with specifically with the definition of a 'wound'.
2. 'Wound' is not defined in OAPA 1861. 3. Lord Goff accepted the traditional definition of 'wound' developed by the courts. 4. For wounding, there must be a complete break in the continuity of the skin. 5. Bruising or internal bleeding are not wounds because the skin is not broken. |
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JJC (a minor) v EISENHOWER (1983) Analytical Point 1 |
1. It is important that the prosecution makes the correct charge. 2. In EISENHOWER 1983, D was charged with wounding. There was bruising but no breaking of the skin. The wounding charge failed. Another offence or s.20 GBH would need to be considered instead. |
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JJC (a minor) v EISENHOWER (1983) Analytical Point 2 |
1. For s.20, if there is proof of a wound, the injury itself does not have to be serious. 2. For s.18, the wounding caused by D must involve an intent to do some GBH. 3. The magistrates in this case had believed that the injury amounted to a wound. They, therefore, found D guilty of s.20 wounding. 4. D appealed. He argued that the justices had wrongly concluded that V's injuries constituted a wound. EISENHOWER's appeal in the high court succeeded. He was found NG of wounding under s.20 because the law had been misapplied and a potential injustice had, therefore, occured. |
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JJC (a minor) v EISENHOWER (1983) Linked Cases + Development |
1. WOOD 1830 had indicated that a broken bone is not a wound unless the skin has been broken. EISENHOWER clarified the definition of 'wound'.
2. This was an important case because it cleared up misunderstandings in the definition of 'wound' and clarified it. |
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R v BOLLOM (2003) Critical Point |
1. The key point of discussion in this case was what constitutes GBH. The victim was a small child who D had injured.
2. The child was taken to hospital, where it was discovered that her injuries were not accidental. 3. The C/A developed the scope of GBH by holding that the severity of the injuries should be assessed according to V's age, health and other relevant factors. 4. The C/A stated that bruising could amount to GBH for a young child, although it was unlikely to do so on a healthy adult. |
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R v BOLLOM (2003) Analytical Point 1 |
1.D was charged with s.18 GBH and convicted.
2. He appealed, arguing that the trial judge should never have directed the jury to consider V's age, health, etc. when determining whether the severity of V's injuries amounted to 'really serious harm'. He argued that this was a misdirection and so an injustice. 3. The C/A disagreed with his reasoning. |
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R v BOLLOM (2003) Analytical Point 2 |
1. The C/A, despite dismissing BOLLOM's arguments, allowed the appeal against s.18 GBH.
2. This was because the trial judge had failed to direct the jury to consider only V's injuries from a recent assault. 3. Expert witnesses had suggested that some of V's injuries were much older. The defence had been able to show a history of abuse. This threw doubt on whether BOLLOM alone had caused the injuries. 4. The s.18 conviction was replaced by a conviction for ABH under s.47 OAPA 1861. |
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R v BOLLOM (2003) Linked Cases |
1. DPP v SMITH 1961 had indicated that GBH was 'really serious harm'. BURSTOW 1997 had widened the scope to include psychiatric harm. BOLLOM widened it further. |
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GOLDING (2014) Critical Point |
1. Infecting V with a sexually transmitted disease can amount to a conviction for GBH.
2. DICA 2005 had developed the law into the area of sexually transmitted diseases. This case developed it further into V's infection with genital herpes. 3. The appellant was in a sexual relationship with V but did not tell her about his infection. He had been diagnosed with genital herpes. V became infected. 4. The appellant pleaded guilty to inflicting s.20 GBH and was sentenced to 14 months custody. The appellant appealed against conviction and sentence. Both, however, were dismissed by the C/A. |
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GOLDING (2014) Analytical Point 1 |
1. GBH meant 'really serious harm' but the harm need not be dangerous nor permanent. 2. Herpes was painful, the symptoms were prone to recur and there was no effective cure. These factors were sufficient to amount to 'really serious harm' as per DPP v SMITH 1961. |
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GOLDING (2014) Analytical Point 2 |
1. GBH is not defined in the OAPA 1861. Definitions have been developed by the courts using statutory interpretation. 2. This has enabled the courts to stretch the meaning of GBH under OAPA 1861 to deal with modern problems. 3. This has been done in the interest of public policy. The scope has been extended to include psychiatric injury and D's sexually infecting V as in DICA 2005 and GOLDING 2014. |
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GOLDING (2014) Linked Cases and Development |
1. GOLDING 2014 developed the scope of GBH that DPP v SMITH 1961 had determined must amount to 'really serious harm'.
2. The judgement was a further development into the area of sexually transmitted diseases already underway: DICA 2005, YASAR 2008 (hepatitis). 3. By 2014, such developments had totally rejected the judgement in CLARENCE 1888 and extended the meaning and scope of GBH in the interests of public policy. |
