and GBH. As Lord Diplock stated in Miller[1], there are two different types of crimes. One Sunday afternoon, David, his friend Chris and Chriss girlfriend Nikki something or not S.39 of the Criminal Justice Act (CJA) 1988 [2] defines common assault & battery as summary offences, and consequently a person proven guilty of either is liable to a fine and/or imprisonment for not more than 6 months. After D v DPP[20] the court of Appeal decided that the subjective test of Cunningham should be the one applied in these common assault offences. Should the courts do more to protect these people or is this justified as being a core part of public culture worth protecting? Define: The actus reus of assault is an act which causes the victim to apprehend the infliction of immediate unlawful force. There is no additional mens rea requirement for the ABH so having satisfied the actus reus and mens rea for battery and the actus reus for ABH it is likely that Tim would be liable for the ABH of Louis. After this, with Nikkis consent, Chris carefully inserts some sterilised ), Principles of Anatomy and Physiology (Gerard J. Tortora; Bryan H. Derrickson), Commercial Law (Eric Baskind; Greg Osborne; Lee Roach), Public law (Mark Elliot and Robert Thomas), Marketing Metrics (Phillip E. Pfeifer; David J. Reibstein; Paul W. Farris; Neil T. Bendle), Introductory Econometrics for Finance (Chris Brooks), Rang & Dale's Pharmacology (Humphrey P. Rang; James M. Ritter; Rod J. Where a person holding themselves as a dentist performed procedures on patients when in fact they had had their dental licence revoked. This is due to the fact that it is not considered to be in the public interest to allow individuals to hurt each other. The process of making this decision is a mental statement or cognition which became known as mens rea. [7] Andrew Ashworth & Jeremy Holder, Principles of criminal law (Oxford, 8th edn). opinion alter depending on the relationship of the people involved. As eluded to above the word assault is used interchangeably to refer to crimes of assault and battery, which are properly known as a common assault. As a result, there is correspondence between the actus and the mens rea as the defendant must intend or foresee in terms of recklessness that the victim will apprehend imminent force. You must make sure the victim is not dead. Is only a potential conviction as dont know if he has it fatal offences against the person key summary of fatal DismissTry Ask an Expert Ask an Expert Sign inRegister Sign inRegister Home However, two mens rea elements are contained within s18. This lecture presentation covers assault, battery and offences contrary to section 47, section 20 and section 18 of the Offences Against the Person Act 1861. interest of others gave consent and the needles are sterilised so are clean and safe to use Still annoyed at Josh for pushing him, Tim is really eager to out-do Josh in front of Sophie as he knows this will upset him. (ii) The victim apprehends that use of force will be immediate. Heavily moralistic On the train there, they meet Jason. Need to disclose your HIV positive status in order for someone to consent If you dont do this, you may provide a fantastic answer on assault only to find that it was actually a homicide question. Horder, Ashworths Principles of Criminal Law (Oxford: OUP, 8th ed., 2016) pp The Framewrok of Criminal Law (CASS, 1992). Was not a His boot crashes into Louis shin and sprains Louisankle. <>>> Possible s47 ABH liability? off and so David invites Jason to join them. They knew exactly who she way. they are not able to give their full consent so the D should be held criminally liable Each of these offences requires both actus reus and mens rea to be established. In the present context the word assault refers to what is properly known as a technical assault. Section 47 conviction There is not an exact definition of what immediate has come to mean but the following case examples provide some insight. Furthermore, the authority case for the mens rea is Venna[19] which required proof of the defendants intention to apply the unlawful force in an intentional or reckless way. Both the statute and case law on. the right balance between personal freedom and morality for However, this does not need to be the case and force can also be applied indirectly. In cases where menacing words were clearly intended as a joke and were taken as such there can be no assault. After sometime Tim turns around and raises his fist at Jack shouting, if you say one more thing about this I will shut you up myself. Also in Tuberville v Savage[10] it was considered that words may also negate an assault. Free resources to assist you with your legal studies! It is a result crime in that the charge depends wholly on the result induced by the commission of the assault; it must result in actual bodily harm. Assault and battery are both common law offences, which means that there . Cruelty is The present law on non-fatal offences is mostly set out in the Offences Against the Person Act 1861 1 (OAPA) however a lot of it can also be defined in the common law. o The defendant had sexual intercourse with his wife knowing that he There is no way he could shoot them even if that was his intention but the stranger will be unaware of this so will fear the application of force. If some other factor came into play, for example a silent phone call was received and the number appeared with an Australian dialling code, this may negate this. assault contrary to s 39 of the Criminal Justice Act 1988. battery contrary to s 39 of the Criminal Justice Act 1988. assault occasioning actual bodily harm contrary to s 47 OAPA. didnt stop, consent was not a defence to s However, R v Chan Fook [1994] 1 WLR 689 qualified this somewhat stating that the inclusion of the word actual indicates that the injury whilst not needing to be permanent, cannot be so trivial so as to be wholly insignificant. Five non-fatal offences: assault, battery, ABH, GBH and GBH with intention. Could deter people from getting tested at all if they do not know if they have In relation to this ladder of offences Professor JC Smith stated that this act represents a ragbag of offences that form a wide variety of sources with no attempt to introduce consistency as to substance or form. *You can also browse our support articles here >, Director of Public Prosecutionsv Santa-Bermudez[2003] EWHC 2908, R v Morris; Anderton v Burnside [1984] UKHL 1, R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, Smith vSuperintendentof WokingPolice[1983] Crim LR 323, Andrew Ashworth & Jeremy Holder, Principles of criminal law (Oxford, 8th edition), Catherine Elliott & Frances Quinn, Criminal Law (9th edition, Pearson 2012), Leonard Jason-Loyd. The act of branding is inherently violent and painful and done with the purpose of causing a scar, so it is difficult to see how this differentiates significantly from Brown. The actus reus of this offence is the application of unlawful force on another. Also, malicious wounding or infliction causing grievous bodily harm should be stated as recklessly causing serious injury. A victim may expect immediate force without being in fear of it; an assault will occur either way. At work Tim and his colleagues have a fantasy football league and this gets very competitive. Review 763. [10] 8* Discuss the problems with the offence of s20 Offences Against the Person Act 1861, and the extent to which reform of the law would make it more morally acceptable. In legal terms, crimes will often involve an element of both assault and battery and the two are charged together as a common assault. Firstly, they wanted to replace the outmoded and unclear Victorian legislation with a much more modern and understandable one. [30] Leonard Jason-Loyd. This was demonstrated in R v Richardson [1998] 2 Cr App 200. OAPA. As he is walking past Tims chair he pushes the back of the chair hard causing Tim to fall forward and hit his head. unwanted or threatened with this The actus reus is the objective requirement necessary to constitute the offence. Does your other person may be so caught up that they may continue R v Thomas [1985] Crim LR 677 confirmed that touching their clothes can be sufficient. Explain: The act can be an actual act or some words and even silent phone calls or letters (R v Ireland; R v Constanza). under s20. However, that has been extended further to encompass harm caused during off the ball play, that is in relation to harmful behaviour that occurs on the pitch but outside of both play itself and the rules of the game. Applying the usual principles of causation, it must be established that the defendants assault caused the victim to suffer actual bodily harm. They may not intend to apply force but they are being reckless as to whether force will be applied. The force applied does not have to be direct to the victims body and they do not need to feel the force. This module examines general principles of criminal liability, a range of fatal and non-fatal offences against the person and selected offences against property. This can be broken down into two key parts: (i) The defendant causes the victim to apprehend force. level of harm? Similarly, the presence of an intention should not lead to the conclusion that the defendant foresaw the possibility of wounding resulting from his conduct. This point was demonstrated in Haystead v DPP [2000] 3 All ER 690 where the defendant who punched a woman holding a baby, causing her to drop the baby, was found guilty of the battery to the baby. First consider the possibility of an assault occurring. Discuss the potential liability Tim and Josh for assault, battery and ABH in relation to the above scenario. Chan-Fook[23] stated that the harm could also affect the nervous system and brain. experience. sex even if V knows they have HIV R v Wilson (1996) 2 Cr App R 241 wife has asked husband to inflict pain on The Court held that there was no true consent in this instance. . The defendant successfully defended the charge with the Court holding that his wife had consented to sexual intercourse and it was irrelevant that the wife was unaware of the infection when giving her consent. concepts of criminal law problem question Skip to document Ask an Expert Sign inRegister Sign inRegister Home Ask an ExpertNew Although, it is legal to get nipples pierced as can be given as a service from DIY piercing It was irrelevant that the wife was unaware of the Apprehending the immediate application means that that the victim fears he will be hit straight away. Registered office: Creative Tower, Fujairah, PO Box 4422, UAE. required to prove the victims did not consent. This is a Premium document. The last offence under s18 of the OAPA 1861 is the most serious offence and carries a maximum of life imprisonment. %PDF-1.5 These are seen as in the public interest due to their cultural importance and long standing tradition. O@/>z.cGWRI@0kBl5fdgCDi&gxj!J>*JDb GO2#T"D(Vm^q`58K4EDo^*P"]K ]Aa?^Uwqsp4t"0k=wm#x{. The keyword of the mens rea of s20 is maliciously meaning that the accused has foreseen the harm of the act but has continued to take the risk anyways (Cunningham test applied). (, The submission form, title page, appendices and reference list do not count as part of the, The file size limit for submissions to SurreyLearn via, The most reliable browsers for submissions are Firefox, Safari and Internet Explorer 10. George and his wife Mildred were sado-masochists and often engaged in violent sexual activities. Do you think that a person should be held criminally liable for the Section 47 of the OAPA 1861 refers to the offence of actual bodily harm or ABH. Consent may operate as a defence to a charge of assault, battery or the causing of actual bodily harm. If this were to be a blanket ruling it is evident that a number of activities fundamental to modern day life would be rendered illegal. This statute was raised more than 50 years ago, so I believe that it is time to make a careful review of each non-fatal offence and establish a reform with some much modern explanations where no confusion can be made and that agrees with the current society. Thanks to Collins v Wilcock [1984] 3 All ER 374 this not the case as it established that all impliedly consent to some level of physical contact in day to day life. x[ms6~deQn2Mri?w+m| _@8xcQ ^7}_F|8{}s~wgWRDyBX'EGE"^,N/>$cu.)8NW~I\?12c*YS+Wg R v Miller [1954] 2 All ER 529 clarified this further stating it to be any hurt or injury calculated to interfere with the health and comfort of the victim. However, it was distinguished on the basis that endobj In contrast, DPP v Smith considered that grievous bodily harm means really serious bodily harm. Firstly, it is not necessary to prove that the defendant actually caused grievous bodily harm but that he at least caused a wound with intent to do it. The point that can seemingly be taken from the presiding case law is that, in cases where the victims have no way of knowing what might happen, immediacy is satisfied. Imagine a domino effect. Consider the implications allowing individuals to freely do this would have on general public morals, let alone the cost to the NHS in treating any injuries caused! Shouldnt do as they are in a relationship He was in fact an IT lecturer who held no formal medical qualifications. First of all, the actus reus of technical assault is that the defendant must do something to make the victim apprehend imminent force. The offence of assault occasioning actual bodily harm is charged under s47 of the Offences Against the Persons Act 1861, which states: Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable to imprisonment of a term not exceeding seven years. This ruling should be treated with caution however as at the time a wife was automatically deemed to consent to sexual intercourse with the husband by the nature of the relationship, regardless of whether any such consent actually existed. If the defendant picked up a gun and turned and pointed it at his friend and shouted hands up or Ill shoot the defendants friend will know that this is an empty threat and will not be caused to apprehend a use of force, thus no assault will occur. (a) Offences Against the Person Act 1861. There can be few criminal law exams that do not contain at least one question requiring consideration of the non fatal offences against the person. If we did not consent to some level of contact with our co-citizens then multiple assaults and batteries would occur on the daily commute to work. positive. - OAPA not relevant to society today, eg - OAPA does not define key words or terms. . Some adults may also lack capacity to give valid consent. Just as words can cause an assault they can also prevent a potential assault from occurring. Consent should be valid Should not be able to inflict harm onto anyone for sexual pleasure as it is It can be properly explained then that only sexual activity that is not inherently violent in nature is can subject to consent. Question number or Title: Non-fatal offences against the person, as set out in the Offences Against the Person Act 1861, represents a ragbag of offences brought together form a wide variety of sources with no attempt, as the draftsman frankly acknowledged, to introduce consistency as to substance or as to form (Prof JC Smith, 1991). The battery causes Louis to break his leg which is harm of a nature that is clearly encompassed by both the. Meanwhile, Chris and Nikki decide to spend the night in a nearby Non fatal offences - answering questions. Common assault is any act which intentionally or recklessly causes another person to apprehend immediate and unlawful . o Here, Nikki asks to brand Chris rather than Chris asking to get Copyright 2003 - 2023 - LawTeacher is a trading name of Business Bliss Consultants FZE, a company registered in United Arab Emirates. Thirdly, to include more threats as those that cause serious injury and that involve rape. Essays, case summaries, problem questions and dissertations here are relevant to law students from the United Kingdom and Great Britain, as well as students wishing to learn more about the UK legal system from overseas. [34] Catherine Elliott & Frances Quinn, Criminal Law (9th edn, Pearson 2012). Have a look at the following passage and try to pull out the material facts and legal issues. As the case was of public interest and was between homosexuals, the courts It can be seen then that fear or upset would not suffice for the purposes of ABH. R v Roberts [1978] Crim LR 44 confirms that the mens rea for the basic offence is sufficient. In Moriarty v Brookes[28] the term wound refers to the breakage of the dermis and epidermis of the skin, a cut. ones private life under Article 8(1), the interference was justified and Tattooing, piercing and male circumcision. % Time together in the relationship entered the body. The Framework of Criminal Law (CASS, 1992), Mike Molan, Duncan Bloy & Denis Lanser, Modern Criminal Law. [10] END OF QUESTION PAPER 2 0 obj [10] 8* Discuss the problems with the offence of s47 Offences Against the Person Act 1861, and the extent to which reform of the law would make it more morally justifiable. It is important to note the distinction between apprehension and fear. In this case any degree of force will apply, it does not need to be aggressive as Logdon v DPP[8] stated. was infected with gonorrhoea. R v Elbekkay [1995] Crim LP 163 confirms that fraud as to the identity of the person will vitiate consent, however it must be the identity of the person that is the subject of the fraud, not the identity of their attributes. Finally, Constanza[13] held that the victim can suffer a fear of violence at some time without excluding the immediate future[14]. Accordingly, he was unable to apprehend the application of force so there can be no assault. The prosecution, will likely assert that Aisling's words constituted an assault to Charles. decide to go camping in the countryside. virtual uncertainty they would get HIV so was willing to take the reckless sexually stimulating so gains pleasure from the experience. 112 Report Document Comments Please sign inor registerto post comments. Jack is afraid by this and says nothing, quietly resuming work. Duty to get tested then disclose and was convicted under s and s of the Offences Against the for pleasure by giving and receiving pain. An example of one such situation can be illustrated by the case of R v Slingsby [1995] Crim L R 570 where during sexual intercourse the defendant, with the victims consent, vigorously inserted his fingers into the victims vagina whilst wearing a large signet ring. If an assault is understood to be an apprehension of force, a battery can be explained in simplistic terms as the actual use of unlawful force. Assault: creating fear of violence; battery: the actual violence. The defendant tried to argue that consenting to unprotected sexual intercourse involved consenting to all of the associated risks, and indeed, in a time where society is well educated about such risks this is a line of argument that carries some weight. He quite rightly at this point expects the immediate application of force, however it would be quite wrong to say that he is in fear of it! In R v Tabassum [2000] 2 Cr App R 328 a case of similar facts to Richardson in that it involved false medical qualifications, the defendant held himself out to be a doctor conducting medical research in order to gain consent from female patients to perform breast examinations. In the last few moments of the game the score is 0-0 and Tim spots an opportunity to win the ball just outside the penalty box of the other team. Chapter 5: Non-fatal offences against the person Problem question Problem question Read these two answers and assess what mark you think they should get and why, entering it into the box. never involves physical contact, generally more about the psychic/mental element. The only fraud was to the defendants right to practice dentistry. couldnt give consent as were not informed honestly so was charged Josh went up behind and there was no prior threat issued so Tim was not aware that the force was about to be applied. Being reckless as to applying force can be a difficult concept, however as a basic example, consider a person is in an enclosed space and swinging their arms around wildly. where Konzani had knowingly concealed the fact that he had HIV There were two species of recklessness under the criminal law until the landmark decision of G. The subjective test where Cunningham[4] is the major authority refers to whether the defendant foresaw the possibility of the consequence occurring and whether it was unjustifiable or not to take the risk. Sophie, a girl that both Tim and Josh like, is going along to watch the game. wouldnt be legal. When dealing with a particular crime, not only the circumstances should be considered but also the type of crime that has been committed. The answer is written in bullet-point form, highlighting how the structure for answering problem questions (discussed in the 'eye on assessment' section of every chapter) can be applied in this area. Appellants actions were unpredictably dangerous so the victims couldnt be (b) Coroners and Justice Act 2009. It sounds obvious but be really careful to read the whole question before you start writing about non-fatal offences against the person. The patients stated that they would not have consented to the dental work had they known this, however the Court held that the patients had consented to the treatment as there had been no fraud as to the actual identity of the person performing the treatment. We need to focus in cases such as DPP v Smith[22] where it was considered that cutting someones hair without consent should amount to ABH. Can still become infertile from things such as chlamydia
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