He passed on the infection and was charged with assault occasioning ABH. felt that it was okay for them to get involved This has been interpreted very widely and has included branding with a hot knife following the ruling in R v Wilson (1996) 2 Cr App Rep 241. Chapter 7: Non-fatal offences against the person Problem Questions Below is an example of a problem question and a worked answer. (Name) would be criminally liable for: (a) an assault under section 39 Criminal Justice Act 1988 AND/OR (b) a battery under section 39 Criminal Justice Act 1988 OR Is there an area above a certain level of harm where you cannot consent to Flower; Graeme Henderson), Criminal Law (Robert Wilson; Peter Wolstenholme Young), Human Rights Law Directions (Howard Davis), Tort Law Directions (Vera Bermingham; Carol Brennan). In other words, that whatever the level of the actus reus is, it must be attributable to the mens rea[7]. The level of injury should give you the best indication of which crime (s) to choose. deception. The process of making this decision is a mental statement or cognition which became known as mens rea. In your opinion can the two rulings be reconciled? 1 Step 1: Identify the crime (s) committed and write out the name in full. Yes, personally I think that also it is not a form of physical harm like getting hit, it is from his sexual partners, his sexual partners personal autonomy Brushing past someone in the supermarket would be illegal and tapping someone on the shoulder to get their attention could land you in serious trouble! endobj May wish to withdraw consent part of the way through the activity but the the right balance between personal freedom and morality for There needs to be serious harm in order for conviction Potential risks of getting HIV to get AIDS to eventually kill In boxing however, the ultimate aim of the sport is often to knock your opponent unconscious, which consists of a clear degree of very public violence, the kind of which Attorney Generals Reference No6 of 1980 expressly ruled against when considering fighting in the street. It has a maximum of 6 months imprisonment or a level 5 fine (5000 pounds). Moral outrage of what happened indulgence of cruelty infliction of pain These are seen as in the public interest due to their cultural importance and long standing tradition. Clarkson and Keating: Criminal Law (9th edition, Sweet & Maxwell 2017). The rules of actus reus on technical assault were illustrated in some leading cases such as R v Ireland and Burstow [9]where it was held that silent phone calls can also cause an apprehension of immediate violence. Ireland came to a similar ruling whereby silent telephone calls were held to cause apprehension of immediate force as the phone calls had placed the defendant in immediate contact with the victims and the victims were placed in immediate fear. For example, consider the case of Fagan v Metropolitan Police Commissioner [1969] 1 QB 439, where driving a car over a persons foot was held to be a qualifying application for the purposes of battery. Appellants actions were unpredictably dangerous so the victims couldnt be It most cases this is a simple point to establish, a defendant shakes his fist, the victim fears he will be hit in a matter of seconds. Therefore, the actus reus and mens rea for either of these qualifying offences must be established. Dica defined these as those cases where ABH is caused but the harm is not intentional, merely caused recklessly through the participation in the sexual activity. For example, in the case of R v Clarence (1889) 22 QB 23,the defendant had sexual intercourse with his wife knowing that he was infected with gonorrhoea. 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. It is an offence to assault or beat any other person. To reveal our marking guidance, click on "Suggested mark" to see if you are correct. o Conviction was quashed. R v Thomas [1985] Crim LR 677 confirmed that touching their clothes can be sufficient. Criminal Law Problem Question (non-fatal offences) - Concepts of Criminal Law Problem Question - - Studocu Based on offences under the Offences against the Person Act 1861 and the Criminal Justice Act 1988. other person may be so caught up that they may continue We are guessing tnat he failed to disclose he had it. s.39 of the Criminal Justice Act 1988 sets out that the maximum sentence is six months imprisonment and/or a fine. Fraud will now operate to invalidate consent even in cases where a victim consents to the actual act being carried out, but they do not have all the facts as to the consequences of the act they are consenting to. (i) fraud as to the identity of the person. wouldnt be legal. There is no application of force as Tim does not carry out his threat so there is no battery. For example, Im going to hit you does not need to be accompanied by any action for an assault to occur. As a result, it is submitted that intention under s18 bears the same meaning as that attributed by the House of Lords in Woollin[35]. Liability for the offence is constructed from liability for the lessor offence of common assault. 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 court held that these were necessary ingredients of both ABH Meanwhile, Chris and Nikki decide to spend the night in a nearby 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). Jack infuriates Tim by bragging loudly to Josh about how many points his team scored him that week. The CPS guideline include injuries such as permanent disability or broken bones or limbs. To export a reference to this article please select a referencing style below: Free law resources to assist you with your LLB or SQE studies! Looking for a flexible role? , Sexuality entered the body. Therefore, both elements of the offence are established and Josh will be liable for the battery on Tim. o Here, Nikki asks to brand Chris rather than Chris asking to get The actus reus of battery is any touching or application of the defendant of unlawful personal force such as a push or a kiss. Clarkson and Keating: Criminal Law(9th edn, Sweet & Maxwell 2017), [16] Director of Public Prosecutionsv Santa-Bermudez[2003] EWHC 2908, [17] Collins v Wilcock[1984] 3 All ER 374, [18] Faulkner v Talbot (1981) 3 All ER 469, [24] R v Morris; Anderton v Burnside [1984] UKHL 1, [27] Savage and Parmenter [1992] 1 AC 699, [28] Moriarty v Brookes[1834] EWHC Exch J79. Although, it is legal to get nipples pierced as can be given as a service from Only if you actually know? The actus reus of this offence consists of two parts: For the purposes of this offence the term assault is properly taken to mean either an assault or a battery. George and his wife Mildred were sado-masochists and often engaged in violent sexual activities. In this case any degree of force will apply, it does not need to be aggressive as Logdon v DPP[8] stated. 14.00 - Add to Cart. At the present time the Cunningham test is usually applied in cases where the word malice is used in a statute whereas Cardwell recklessness has been restricted to other areas of criminal law such as to whether property is destroyed or damaged. Consider the London Underground in the height of rush hour. they are not able to give their full consent so the D should be held criminally liable Ireland established that ABH can encompass psychiatric harm such as depression, anxiety, or nervous shock, however Chan Fook has clarified that this does not go as far as including distressing emotions or any state of mind which does not amount to a recognised clinical condition. 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. Which provides that it is an offence to commit an assault occasioning actual bodily harm. Also, in Santana-Bermudez[16] it was supported that the omission of an act could also amount to battery. Children are not automatically held to give valid consent in all situations and are subject to further scrutinisation in this regard. This is a Premium document. correct incorrect 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. Thirdly, to include more threats as those that cause serious injury and that involve rape. salons so is not too much harm that people are not able to consent to otherwise it On a basic level this can involve applying force through another medium. For example, a world heavy weight boxer may be confronted by a particularly angry ex-girlfriend who raises her hand to slap him. On a more indirect level, this can also involve application of force to one person which causes the application to another. Person Act 1861 and appealed. for pleasure by giving and receiving pain. Moreover, the defendants state of mind is not defined in section 47. In addition, the offences. Where are the offences of assault and battery defined in law? The actus reus is established through the causing of the apprehension of force and there does not need to be any application of actual force on the victim. It is the same as s20 but adding the intent to resist or prevent the lawful apprehension or detention. This section is very old and uses occasion rather than causation and refers to ABH as any hurt or injury calculated to interfere with the health or comfort of the victim as Lynskey J quoted in Miller[21]. It does not matter whether the actual application of force was even possible, as long as the apprehension is caused. The following scenario aims to test your knowledge of this topic and your ability to apply what you have just learned in a real life setting. module code + URN. use of protection so should not be held criminally liable. R v Constanza [1997] Crim LR 576 states that words alone can cause the victim to apprehend harm and thus constitute an assault. The actus reus of assault is causing a person to apprehend the immediate application of unlawful force. The direct intention where a consequence is intended due to the aim or the objective of the actor and the oblique intention where a consequence can also be intended when it is foreseen as a virtual or practical certainty. A lot of the time they will discuss the league together and argue over who has the best fantasy team each week. interest of others Other types of violence that are still accepted such as in sport Therefore, as illustrated in Roberts[26], ABH does not need to be foreseen and so the principle of correspondence would breach as no mens rea is required. Secondly, the result crime which ads proof that the conduct caused a prohibited consequence. The more serious offences of violence are commonly termed aggravated assaults although it is not necessary to prove the existence of an assault in all of them. The battery causes Louis to break his leg which is harm of a nature that is clearly encompassed by both the. non-fatal offences can provide ambiguous and unclear definitions when it comes to stating and categorising the differences in offences. It is a triable either way offence so can be heard in both magistrates or crown court, defending on the perceived seriousness of the offence and the defendants wishes. Under the Mental Capacity Act 2005 there is a presumption of capacity but a person will be found to lack this if at the material time they are unable to make a decision in relation to the act due to a temporary or permanent impairment or disturbance of mental functioning. If youre not ready to go it alone just yet, theres no need to panic! 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No additional mens rea is required for this offence. Do you feel that the Court in Brown was right to state that S&M is not in the public interest or should this be left to autonomous individuals to consent to as they please? 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. The D is guilty [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 this case, Sam intentionally waved his fists in the face of Basil, which would be perceived by an ordinary person as intimidating. Thus, the actus reus of this offence is exactly the same as in section 20. 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. Especially consider the reference to husband and wife in the Wilson ruling and the fact that Brown involved a group of homosexuals, as it has been suggested that there may have been some prejudice by the courts in relation to this in considering what was in the public interest. Non-fatal offences against the person problem question assistance! It is in the interest of society to allow for these to continue and thus to consent to the obvious risk of harm they will often involve. Without the consent defence it would be impossible for anyone to go about their day to day lives without finding themselves in a police station! Had given safe words and made sure it was safe, all consented In Smith v Superintendent of Woking Police [1983] Crim LR 323, the defendant stood up next to the window of a ground floor flat belonging to a woman living alone. A careful study of the facts shows us that he didnt. 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. Can still become infertile from things such as chlamydia Each of these offences requires both actus reus and mens rea to be established. Sophie, a girl that both Tim and Josh like, is going along to watch the game. The Court held that there was no true consent in this instance. O@/>z.cGWRI@0kBl5fdgCDi&gxj!J>*JDb GO2#T"D(Vm^q`58K4EDo^*P"]K ]Aa?^Uwqsp4t"0k=wm#x{. To illustrate this, consider the following example. It was irrelevant that the wife was unaware of the Sample Question Paper . The only fraud was to the defendants right to practice dentistry. It was not necessary for there to be any physical proximity. 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. o The defendant had sexual intercourse with his wife knowing that he 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. Accordingly, the victim did not appreciate the quality of the act she was agreeing to and accordingly the Court held her consent to be invalidated by fraud as to the nature and quality of the act. Discuss any potential criminal liability arising. 2 0 obj The final letter, in which Kate threatens to harm Peter and Lynn, does "worry" Peter and therefore may amount to an assault. Still a leading judgment Is this apprehension of immediate 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. technical/psychic assault battery assault occasioning ABH (section 47 OAPA) malicious wounding (section 20 OAPA) Malicious wounding with intent (section 18 OAPA) Technical/psychic Assault - what does it never involve? (Cavendish, 2003, 5th edition), SR Kyd, T Elliot & MA Walters. and was convicted under s and s of the Offences Against the The punishment for common assault is in s. 39 of the Criminal Justice Act 1998 which provides that they shall be summarily offences. This was confirmed in the subsequent ruling of R v Konzani [2005] EWCA Crim 706. It was clear to all that taken in context, despite the menacing nature of the words they were clearly a joke, thus no apprehension of force was caused. Conversely a sore arm would be neither permanent or significant. On the other hand, if someone can properly acknowledge the misbehaviour of an act and commits it anyways, he will be held liable. Published: 9th Feb 2021. Age difference For the victim's consent to be valid it must be an informed consent. - OAPA not relevant to society today, eg - OAPA does not define key words or terms. According to these guidelines, the type of harm that will realistically be prosecuted as an ABH are injuries where significant medical intervention has been necessary or has caused lasting effects. Drawing on your knowledge of the general principles of criminal law, discuss the extent to which you agree with this statement. 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. 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. Become Premium to read the whole document. This was the main statutory provision of the assault-related offences and they were ranked in some sort of hierarchy of seriousness in the terms of actus and mens rea. They sought to rely on the consent of the victims of these offences as a o In Wilson they were married, and Chris and Nikki are not so would experience. 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. Firstly, they wanted to replace the outmoded and unclear Victorian legislation with a much more modern and understandable one. After this, with Nikkis consent, Chris carefully inserts some sterilised
