Law-Non-fatal offences (A2) Flashcards Preview

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1
Q

Where are the main non-fatal offences against the person set out?

A

In the Offences Against the Person Act 1861

2
Q

What are the main non-fatal offences against the person?

A

Assault (s39 Criminal Justice Act 1988), Battery (s39 Criminal Justice Act 1988), Assault occasioning actual bodily harm (s47 OAPA 1861), Malicious wounding or inflicting grievous bodily harm (s20 OAPA 1861), Wounding or causing grievous bodily harm with intent (s18 OAPA 1861)

3
Q

What is common assault?

A

Assault and battery

4
Q

What type of offences are assault and battery?

A

They are common law offences. There is no statutory definition for either assault or battery. However statue law recognises their existence, as both of these offences are charged under s39 Criminal Justice Act 1988 which sets out their maximum punishment

5
Q

What is the maximum punishment for common assault?

A

Six months’ imprisonment or a fine of £5,000, or both

6
Q

What is the difference between assault and battery?

A

The act involved is different. For assault there is no touch, only the fear of immediate, unlawful force. For battery there must be actual force. There are often situations though where there is both assault and battery

7
Q

What are other terms used for assault?

A

Technical assault or a psychic assault

8
Q

What are the actus reus elements of assault?

A

Act, apprehend immediate force, unlawfulness of the force

9
Q

What is the ‘act’ actus reus element of assault?

A

Assault requires some act or words. An omission is not sufficient. However, words are sufficient. These can be verbal or written. In Constanza the Court of Appeal held that letters could be an assault (defendant had written 800 letters and made a number of phone calls to the victim who interpreted the last two letters as clear threats-Court of Appeal said there was an assault as there was a ‘fear of violence at some time, not excluding the immediate future’. In Ireland it was also held that even silent phone calls can be an assault-depending on the facts of the case

10
Q

What is the ‘apprehend immediate force’ actus reus element of assault?

A

The act/words must cause victim to apprehend immediate force being used against them. No assault if it is obvious no force can be used against them, eg shouting a threat from a passing train

11
Q

What was decided in the case of Lamb?

A

That pointing an unloaded gun at someone who knows it is unloaded cannot be an assault. This is because the other person does not dear immediate force. However if the other person thought the gun was loaded then this could be an assault

12
Q

What is the ‘immediate’ element of assault?

A

Fear of immediate force is necessary; immediate does not mean instantaneous, but ‘imminent’, so an assault can be through a closed window, as in Smith v Chief Superintendent of Woking Police Station

13
Q

What happened in Smith v Chief Superintendent of Woking Police Station?

A

Defendant broken into a garden and looked through vicim’s bedroom window on ground floor at 11pm. Victim was terrified and thought he was about to enter the room. Although defendant was outside and no attack could be made at that immediate moment, court held victim was frightened by his conduct. The basis of the fear was she didn’t know what he was going to do next, but it was likely to be of a violent nature. Fear of what he might do next was sufficiently immediate for the purposes of the offence

14
Q

In what other case was the point that immediate does not mean instantaneous seen?

A

Ireland-defendant made several silent phone calls to three women. All of them suffered psychiatric illness as a result. He was convicted under s47 OAPA 1861. It is necessary to prove assault for this offence. House of Lords held silent phone calls could be assault, and pointed that a victim of the calls may fear the caller was about to arrive at their home, so could fear the possibility of immediate personal violence

15
Q

How is the case of Ireland relevant to modern times?

A

The use of mobile phones today makes it even more likely that such a caller could be just outside the victim’s house. The fear of immediate personal violence is a very real threat in such situations

16
Q

How can words prevent an act from being an assault?

A

Words indicating there will be no violence can prevent an assault. This principle comes from Tuberville v Savage where the defendant placed one hand on his sword and said, ‘if it were not assize time, I would not take such language from you’. It was held not to be assault because what he said showed he was not going to do anything

17
Q

What are some other examples of assault?

A

Fear of any unwanted touching is sufficient: the force or unlawful personal violence which is feared need not be serious. It can be raising a fist as though about to hit the victim, throwing a stone at the victim which just misses, pointing a loaded gun at someone within range, making a threat by saying ‘I am going to hit you’

18
Q

What is the ‘unlawfulness of the force’ element of assault?

A

The force which is threatened must be unlawful. If it is lawful, there is no offence of common assault

19
Q

What is the actus reus of battery?

A

It is the application of unlawful force to another person

20
Q

How is force explained for battery?

A

Force is a slightly misleading words as it can include the slightest touching, as shown by Collins v Wilcock, Wood (Fraser) v DPP, and Thomas

21
Q

What happened in the case of Collins v Wilcock?

A

Two police officers saw two women apparently soliciting for prostitution. They asked appellant to get in police car for questioning but she refused and walked away. She wasn’t known to the police so one officer walked after her to find her identity but she refused to speak and walked away. Officer took hold of her arm to stop her leaving but she became abusive and scratched the officer’s arm. She was convicted of assault a police officer in the execution of his duty. She appealed on the basis that the officer was unlawfully holding her as she wasn’t under arrest

22
Q

What was decided in the case of Collins v Wilcock?

A

The court held the officer had committed battery and the defendant was entitled to free herself. The court point out that touching a person to get their attention was acceptable provided that no greater degree of physical contact was used than was necessary, but that physical restraint was not

23
Q

What happened in the case of Wood (Fraser) v DPP?

A

Police received report that a man named Fraser had been disruptive in a public house and thrown an ashtray at another person, which had missed but caused the tray to smash. Three police went to the scene. They saw a man who fitted the description leave the public house. One officer took him by the arm to prevent him leaving and asked if he was Fraser, but he denied this and tried to pull away. Another officer then took his arm and he was charged with assaulting two officers while acting in the execution of their duty. Officer who first caught him said he had done this to detain him but wasn’t arresting him

24
Q

What was decided in the case of Wood (Fraser) v DPP?

A

It was held that as the officer had not arrested Wood before he struggled and assault the police, then thee was a technical assault (battery) by the police officers, meaning Wood was entitled to struggle and wasn’t guilty of any offence of assault against the police

25
Q

What happened in the case of Thomas?

A

Even touching the victim’s clothing can be sufficient to form a battery. The defendant touched the bottom of a woman’s skirt. The Court of Appeal said, obiter, ‘there could be no dispute that if you touch a person’s clothes while he is wearing them that is equivalent to touching him’

26
Q

How can battery be committed through a continuing act?

A

As in Fagan v Metropolitan Police Commissioner (car and police officer case)

27
Q

How can battery be committed through an indirect act?

A

In this situation the defendant causes force to be applied, even though he does not personally touch the victim, as in Martin, DPP v K, and Haystead v Chief Constable of Derbyshire

28
Q

What happened in the case of Martin?

A

Defendant placed an iron bar across the doorway of a theatre. He switched off the lights. In the panic which followed several of the audience were injured when they were trapped and unable to open the door. Martin was convicted of an offence under s20 OAPA 1861

29
Q

What happened in the case of DPP v K?

A

Defendant was 15 year old schoolboy who took sulphuric acid from science lesson without permission to try its reaction on toilet paper. When in the toilet he hear footsteps in the corridor, panicked and put the acid into a hot hand drier to hide it. Returned to class intending to remove the acid later. Before he could, another pupil used the drier and was sprayed by the acid. Defendant charged with ABH. Magistrates acquitted him as he hadn’t intended to hurt anyone. Prosecution appealed by way of case stated to QBD court which held common assault could be committed by an indirect act

30
Q

What happened in the case of Haystead v Chief Constable of Derbyshire?

A

Defendant caused a small child to fall to the floor by punching a woman holding the child. Defendant was found guilty because he was reckless as to whether or not his acts would injure the child-the conviction could also be justified by the principle of transferred malice

31
Q

Can battery occur due to an omission?

A

Criminal liability can arise by way of an omission, but only if the defendant is under a duty to act. This can arise out of a contract, relationship, or assumption of care for another. As the actus reus for battery is the application of unlawful force, it is difficult to think how examples could arise out of these duty situations, though an example may be where defendant has created a dangerous situation which may lead to force being applied to the victim (Miller)

32
Q

How can force be lawful?

A

If victim gives genuine consent. Also where used in self defence or prevention of crime if reasonable for the situation believed by the defendant. Also lawful in correction of a child by a parent (However in A v UK it is not lawful if it results in any injury)

33
Q

How can battery be used in self-defence or defence of another?

A

Where reasonable force is used to defend oneself (or another) against attack, then this is lawful. Eg Wood (Fraser) v DPP where defendant tried to pull away from police who were holding him, defendant’s use of force was lawful. This meant he was not guilty of any assault against the police as they had not legally detained him, so he was entitled to use reasonable force

34
Q

Can there be a battery without an assault?

A

It is possible. This can occur where the victim is unaware that unlawful force is about to be used on them, such as where the attacker comes up unseen behind the victim’s back. The first thing the victim knows is when he is struck-battery without assault

35
Q

What is the mens rea of assault?

A

The mens rea for an assault is either an intention to cause another to fear immediate unlawful personal violence, or recklessness as to whether such fear is caused

36
Q

What is the mens rea of battery?

A

The mens rea for battery is either an intention to apply unlawful physical force to another or recklessness as to whether unlawful force is applied

37
Q

What is the test for recklessness for assault?

A

It is subjective-the defendant must realise there is a risk that his acts or words could cause another to fear unlawful personal violence

38
Q

What is the test for recklessness for battery?

A

It is subjective-the defendant must realise there is a risk that his act or omission could cause unlawful force to be applied to another

39
Q

What type of intent crime are assault and battery?

A

They are classed as offences of basic intent. This means that if the defendant is intoxicated when he does the relevant actus reus, he is considered as doing it recklessly. This was stated by the House of Lords in DPP v Makewski

40
Q

Why has the ruling in Majewski been criticised?

A

The point at which the drink or drugs is taken is a quite separate time to the point when the actus reus for the offence is committed. It is difficult to see how there is coincidence of the two. It is reasonable to say the defendant is reckless when he takes drinks or other intoxicating substances, but this doesn’t necessarily mean when he commits an assault/battery three or four hours later that he is reckless for the purposes of the offence. The decision can be viewed as a public policy decision

41
Q

What is assault occasioning actual bodily harm?

A

It is the lowest level in the 1861 Act, under s47

42
Q

What does s47 of the Offences Against the Person Act 1861 state?

A

It states the offence is triable wither way, and ‘whosoever shall be convicted of any assault occasioning actual bodily harm shall be liable…to imprisonment for five years’. There is no definition of ‘assault’ or ‘actual bodily harm’, or any reference to level of mens rea required. For all these points it is necessary to look at case law

43
Q

What is the actus reus of section 47?

A

Necessary to prove assault or battery and that this caused actual bodily harm. This means there must be the actus reus of either assault or battery. Eg in Ireland the defendant was charged with s47 offence after committing an assault, though it is more usual for s47 to be charged when there has been a battery

44
Q

What is the difference between common assault and a s47 offence?

A

The difference is that the victim suffers actual bodily harm as a result of the assault or battery

45
Q

What cases help to define actual bodily harm?

A

Chan Fook, R(T) v DPP, DPP v Smith (Michael), and Burstown

46
Q

What was decided in Chan Fook?

A

It was held the words ‘actual bodily harm’ were ordinary words. Harm means injury, hurt or damage. Actual means there must be more than merely trivial hurt or injury. The harm must not be so trivial as to be effectively without significance

47
Q

What was decided in R(T) v DPP?

A

Loss of consciousness, even momentarily, was held to be actual bodily harm

48
Q

What was decided in DPP v Smith (Michael)?

A

Defendant cut off ex-girlfriend’s pony tail with kitchen scissors without consent. Divisional court held that cutting hair was ABH. Even though scientifically the hair above the surface of a person’s head is dead tissue, it remains part of the body and is intrinsic to each individual. For this reason the act could amount to an assault occasioning actual bodily harm

49
Q

What injuries count as actual bodily harm?

A

Bruising, grazes and scratches. Psychiatric injury is also classed as ‘actual bodily harm’. This was decided in Chan Fook, however it was pointed out that actual bodily harm does not include ‘mere emotions such as fear, distress or panic’ nor does it include ‘states of mind that are not themselves evidence of some identifiable clinical condition’

50
Q

Was decided in Burstow?

A

The decision in Chan Fook was approved, where it was said that ‘bodily harm’ in ss18, 20 and 47 Offences against the Person Act 1861 must be interpreted so as to include recognisable psychiatric illness

51
Q

What is the mens rea of section 47?

A

The section in the Act makes no reference to mens rea, but as the essential element is common assault, the courts held mens rea for common assault is sufficient for mens rea of s47 offences. This means either intention or recklessness as to whether the victim fears or is subjected to unlawful force-this is the mens rea for assault or battery and there is no need for the defendant to intend or be reckless as to whether actual bodily harm is caused

52
Q

What is an example of where the defendant was reckless as to whether the victim feared unlawful force?

A

Roberts-the defendant was driving a car and made advances to the girl in the passenger seat and tried to take her coat off. She feared he was going to commit a more serious assault and jumped from the moving car (30mph). She was slightly injured because of this. He was found guilty of ABH even though he didn’t intend or realise risk of injury. HE intended to apply unlawful force when he touched her and tried to remove her coat, which satisfied mens rea for common assault and so he was guilty of an offence under s47

53
Q

What case confirmed the decision in Roberts?

A

The decision in Roberts was confirmed by the House of Lords in the combined appeals of Savage and Parmenter

54
Q

What happened in the case of Savage?

A

Woman in a pub threw beer over another woman but glass slipped from her hand and cut victim’s hand by the glass. Defendant said she only intended to throw the beer, she didn’t intend or realise the risk of injury. She was convicted of s20 offence but court of appeal quashed it and substituted it for s47. She appealed but the appeal was dismissed. She intended to throw beer over the woman so she intended to apply unlawful force which is sufficient for the mens rea of s47

55
Q

What does s 20 Offences Against the Person Act 1861 state?

A

“Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without a weapon or instrument, shall be guilty of an offence and shall be liable…to imprisonment for not more than five years”

56
Q

What type of offence is s20 OAPA 1861?

A

It is triable either way and the maximum sentence is five years, which is the same as s27 despite the fact that s20 is seen as a more serious offence and requires both a higher degree of injury and mens rea as to an injury

57
Q

What has to be proved for s20 OAPA 1861?

A

The defendant wounded; or inflicted grievous bodily harm, and that they did this intending some injury to be caused; or being reckless as to whether grievous bodily harm was inflicted

58
Q

What does the term ‘wound’ mean?

A

It means a cut or a break in the continuity of the whole skin. A cut of internal skin, such as in the cheek, is sufficient, but internal bleeding where is no cur of the skin is not sufficient (as seen in JCC v Eisenhower). A broken bone is not considered a wound unless the skin is broken as well (shown by Wood)

59
Q

What happened in the case of JCC v Eisenhower?

A

Victim was hit in the eye by a shotgun pellet. This did not penetrate the eye but did cause severe bleeding under the surface. As there was no cut, it was held that this was not a wound. The cut must be of the whole skin, so that a scratch is not considered a wound

60
Q

What happened in the case of Wood?

A

Victim’s collar bone was broken, but as the skin was intact it was held there was no wound

61
Q

What cases define grievous bodily harm?

A

DPP v Smith, Saunders, Bollom, Burstow, and Dica

62
Q

What was decided in DPP v Smith?

A

It was held that grievous bodily harm means ‘really serious harm’. The harm doesn’t have to be life threatening

63
Q

What was decided in Saunders?

A

It was held that it was permissible to direct a jury that there need to be ‘serious harm’ and not include the word ‘really’

64
Q

What was decided in Bollom?

A

It was held that the severity of the injuries should be assessed according to the victim’s age and health

65
Q

What happened in the case of Bollom?

A

A 17 month old child had bruising to her abdomen, both arms and left leg. Defendant was convicted of causing GBH. Court of appeal quashed the conviction and substituted a conviction for ABH. However the court stated that bruising could amount to GBH. Bruising of this severity would be less serious to an adult in full health than on a very young child

66
Q

What happened in Burstow?

A

The victim of a stalker suffered a severe depressive illness as a result of the stalker’s conduct, so it was decided that serious psychiatric injury can be GBH

67
Q

What happened in the case of Dica?

A

There was the first ever confiction for causing GBH through infecting the victims with HIV (biological GBH)

68
Q

What does the term ‘inflict’ mean?

A

Originally this was taken as meaning there had to be a technical assault or battery. Even so it allowed the section to be interpreted quite widely, as shown in Lewis

69
Q

What happened in the case of Lewis?

A

Defendant shouted threats at his wife through a closed door in a second floor flat and tried to break his way through the door. The wife was so frightened she jumped from the window and broke both legs. Lewis was convicted of a s20 offence. The threats could be considered as a technical assault

70
Q

What was decided about the term ‘inflict’ in the case of Burstow?

A

It was decided that ‘inflict’ doesn’t require a technical assault or battery. This means it need only be shown that the defendant’s actions have led to consequence of victim suffering GBH. The decision also means there now appears to be little, if any, difference in the actus reus of offences under s20 and s18 which uses the word cause. In fact, in Burstow Lord Hope said that for all practical purposes there was no difference between the words

71
Q

What word is used for the mens rea of s20?

A

The word used in this section is ‘maliciously’

72
Q

What was decided in Cunningham?

A

Held that ‘maliciously’ did not require any illwill towards the person injured. It simply meant either, an intention to do the particular kind of harm that was in fact done; or recklessness as to whether such harm should occur or not (i.e. the accused had foreseen that the particular kind of harm might be done, and yet gone on to take the risk of it

73
Q

What happened in the case of Cunningham?

A

Defendant tore a gas meter from the wall of empty house to steal money in it. Caused gas to seep into house next door where a woman was affected by it. Defendant not guilty of maliciously administering a noxious thing as he didn’t realise the risk of gas escaping into the next door house

74
Q

What case confirmed Cunningham?

A

In Parmenter, the House of Lords confirmed that the Cunningham meaning of recklessness applies to all offences in which the statutory definition uses the word ‘maliciously’

75
Q

What is the overall mens rea of s20?

A

Intent to cause another person some harm, or subjective recklessness as to whether another person suffered some harm. It isn’t necessary to prove intention of serious harm or reckless about whether serious harm was caused. This means there is a difference between level of injury for actus reus of s20 and level for mens rea of s20 which only requires intention or recklessness as to some harm

76
Q

What was decided in the case of Parmenter?

A

The House of Lords decided that, although the actus reus of s20 requires a wound or GVH, there is no need for the defendant to foresee this level of serious injury

77
Q

What happened in the case of Parmenter?

A

Defendant injured his three month old baby when he threw them in the air and caught them. Defendant often did this with slightly older children and didn’t realise there was a risk of injury. He was convicted under s20. Conviction was quashed as there was no evidence he foresaw any injury. They did, however, substitute a conviction for s47

78
Q

What is s18 OAPA 1861?

A

It is considered much more serious than s20 (seen by difference in maximum punishment which for s20 is five years, but for s18 is life). Also s20 is triable either way whereas s18 is an indictable offence

79
Q

What is the definition of s18 in the OAPA 1861?

A

“whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, with intent to do some grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of…an offence”

80
Q

What are the ways that section 18 can be committed?

A

Wounding (same meaning as s20), or causing grievous bodily harm

81
Q

What does ‘cause’ mean, for the actus reus of s18?

A

It is very wide so that it is only necessary to prove that the defendant’s act was a substantial cause of the wound or grievous bodily harm

82
Q

What is the mens rea for s18?

A

It is a specific intent offence. The defendant must be proved to have intended to: do some grievous bodily harm; or resist or prevent the lawful apprehension or detainer of any person

83
Q

What was stated in the case of Taylor?

A

That an intention to wound is not enough for the mens rea of s18, there has to be intention of serious harm (GBH)

84
Q

What does ‘maliciously’ mean for s18?

A

The word ‘maliciously’ appears in s18 but it has been held that this adds nothing to the mens rea of this section where grievous bodily harm is intended. The important point is that s18 is a specific intent crime. Intention must be proved; recklessness is not enough for the mens rea of s18

85
Q

When does the issue of intention occur with s18?

A

There is usually no problem proving intention, but some situations cause problems where the defendant’s aim or purpose is something quite different but in the course of carrying out that purpose someone is seriously injured-and so foresight of consequences is important here

86
Q

Where is the law on foresight of consequences stated?

A

In a series of cases on murder, but they apply to s18. The first point was decided in Moloney and is that foresight of consequences is not intention; it is only evidence from which intention can be inferred or found

87
Q

What was stated in the cases of Nedrick and Woolin which followed Moloney?

A

Intention cannot be found unless the harm caused was a virtual certainty as a result of the defendant’s actions and the defendant realised this was so

88
Q

What is resisting or preventing arrest?

A

Where defendant is trying to resist or present arrest or detention, then the level of intention regarding the injury is lower. The prosecution must prove that he had specific intention to resist or prevent attest, but so far as the injury they need only prove that he was reckless as to whether his actions would cause a wound or injury. This was decided in Morrison

89
Q

What happened in the case of Morrison?

A

Police officer seized hold of defendant and told him he was arresting him. He dived through a window, dragging her with him as far as the window so her face was cut badly by the glass. Court of Appeal held as the word ‘maliciously’ is used in respect of this part of the section, it must have the same meaning as in Cunningham. This means the prosecution must prove defendant either intended injury or realised there was a risk of injury and took that risk

90
Q

How is it decided what offence the defendant should be charged with?

A

By looking at the type of injury. The Crown Prosecution Service has guidelines (CPS Charging Guidelines) about what offence should normally be charged for certain types of injury. These are only guidelines though and they do not always match the law accurately. This is because they are intended to ensure convictions and make efficient use of resources

91
Q

What injuries are stated by the CPS charging guidelines for actual bodily harm (s47)?

A

Loss/breaking of tooth/teeth, temporary loss of sensory functions (may include loss of consciousness), extensive/multiple bruising, displaced broken nose, minor fractions, minor but not superficial cuts of a sort probably requiring medical treatment (eg stitches), psychiatric injury more than mere emotions such as fear/distress/panic. However, according to decided cases, some of these injuries are more serious than ABH such as a cut requiring stitches, or extensive bruising to a child, in the case of Bollom

92
Q

What injuries are stated by the CPS charging guidelines for grievous bodily harm?

A

They stress GBH means serious bodily harm and is for jury to decide whether the harm is serious, however examples of what usually amounts to serious harm include: injury resulting in permanent disability/permanent loss of sensory function, injury which results in more than minor permanent visible disfigurement, broken/displaced limbs/bones including fractured skull, compound fractures/broken cheek bone/jaw/bibs etc, injuries causing substantial loss of blood usually necessitating a transfusion, injuries resulting in lengthy treatment/incapacity, and psychiatric injury

93
Q

Why is the law on the non-fatal offences in need of reform?

A

Recommendations have been made for reform by both the Criminal Law Revision Committee and the Law Commission. The Law Commission point out three main problems with OAPA 1861: it uses complicated, obscure and old-fashioned language eg ‘maliciously’ and ‘grievous’. The structure of the Act is complicated. Non-lawyers find the Act completely unintelligible

94
Q

How have some of the problems of the OAPA 1861 been resolved already without reform?

A

By judges in case decisions. Eg there was considerable debate as to whether the word ‘inflict’ in s20 meant a technical assault had to take place. This was resolved by case of Burstow in which the House of Lords ruled it did not. Also the courts have extended meaning of ‘bodily harm’ to include injury to mental health so defendants causing such injury can also be convicted

95
Q

What is the problem of inconsistency between offences?

A

There are inconsistencies in the Act, especially with regard to mens rea required for each offence. In particular, s47 has same mens rea as for assault/battery. It does not require defendant to intend or even realise there is a risk of injury

96
Q

How is the inconsistency between offences shown by s20 and s47?

A

It is unjust that a person who causes a small cut can be charged with the more serious offence of s20 instead of ‘occasioning actual bodily harm’ under s47. This is because s20 refers to ‘wound or grievous bodily harm’. Yet clearly there are different levels of wound and many of them do not equate to grievous bodily harm

97
Q

How is the inconsistency between offences shown by s18 and resisting arrest?

A

Inconsistent that a defendant who only intends/foresees risk of minor injury can be convicted of very serious offence of s18 if serious injury then occurs when he intends to resist arrest. This is the effect of the decision in Morrison. Is it right that the fact that the defendant intends to resist arrest makes him liable for the same offence as someone who intended to cause very serious injury? The situation can be even more unfair as someone who intends to resist arrest can be charged with s19 even though they only caused a small wound tot he victim. This means such a defendant can be guilty of same offence as defendant who intended and did cause very severe injuries

98
Q

How are the inconsistencies in the OAPA 1861 also reflected in sentencing?

A

By the maximum sentences for each level of offence. Assault and battery have maximum 6months imprisonment. S47 has maximum 5 years even though the mens rea is the same as for common assault. S20 also has a maximum of five years despite mens rea and level of injury being much more serious for s20

99
Q

What is the modern understanding of ‘bodily harm’?

A

When the Act was passed (nearly 150 years ago) medical knowledge was comparatively limited and psychiatric illness was not understood. Improvements in medical knowledge means we now know it is possible to cause psychiatric illness through putting someone in fear

100
Q

How has the modern understanding of ‘bodily harm’ been reflected in the law?

A

Judges had to develop the law in cases such as Burstow and Ireland to match modern knowledge/understanding/ It is only because of judicial development that psychiatric illness is now included. If judges had not included this, then the law would have failed to protect victims. However, it would be much more satisfactory if the law was re-written and made clearer

101
Q

What is another area of the OAPA 1861 where judges have had to adapt the law to modern knowledge?

A

In the transmission of disease. Defendant can now be liable for infecting others with diseases such as HIV (biological GBH). However, it would be more satisfactory if the law were re-written to cover such situations expressly

102
Q

What are the Law Commission’s proposals for reform of the OAPA 1861?

A

Law Commission proposed a new law to take its place but the Government did nothing until five years later when the Home Office issued a Consultation Document ‘Violence: Reforming the Offences Against the Person Act 1861’. This included a draft Bill which set out four main offences intended to replaced s18, s20, s47, assault and battery

103
Q

What are the four main offences in the draft Bill?

A

1.Intentional serious injury where a person would be guilty if he intentionally caused serious injury to another. 2.Reckless serious injury where a person would be guilty if he recklessly caused serious injury to another. 3.Intentional or reckless injury where a person would be guilty if he intentionally or recklessly cause injury to another. 4.Assault where a person would be guilty if he intentionally or recklessly (a) applied force to or caused an impact on the body of another, or (b) caused the other to believe that any such force or impact is imminent

104
Q

How are the four offences in the draft Bill clearer than the current offences?

A

The level of injury and required mens rea are made clear by the wording. It also defines the word ‘injury’ making it clear that physical and mental injury are included. The word ‘wounding’ is not used so a serious cut would be considered serious injury, while a small cut would be merely an injury-clearing up most problems of present law

105
Q

How did the draft Bill also affect sentencing?

A

It set out a new sentencing framework that matched the blameworthiness of the offence to the maximum sentence available in a more structured and sensible way than the current system

106
Q

How does the Law Commission, in the draft Bill, define physical and mental injury?

A

Physical injury was defined as including pain, unconsciousness and any other impairment of a person’s physical health. Mental injury was defined as any impairment of a person’s mental health

107
Q

What was also included as physical injury in the draft Bill?

A

Disease was also included as a physical injury for the purpose of the most serious offence. However, this meant it would be almost impossible to convict a defendant of infecting another person with HIV as the proposed most serious offence can only be committed where defendant intentionally caused serious injury. This would mean convictions for recklessly transmitting HIV (as in R v Dica) would not be possible

108
Q

What is the major problem with the draft Bill?

A

Although it was sent out for consultation in 1998, the Government did nothing more, and the law still remains in an unsatisfactory state

Decks in A-Levels with Mum Class (89):