OAPA (LLB) - Criminal Law Notes PDF

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Raqib B. OsmanUNIT 4: OFFENCES AGAINST THE PERSON4 AssaultFagan v MPC (1969) - "an assault is committed where the defendant intentionally or recklessly causes the victim to apprehend immediate unlawful personal violence."AR: An act Which causes the victim to [apprehend] [immediate]...

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UNIT 4: OFFENCES AGAINST THE PERSON 4.1 Assault Fagan v MPC (1969) - "an assault is committed where the defendant intentionally or recklessly causes the victim to apprehend immediate unlawful personal violence." AR: 1. An act 2. Which causes the victim to [apprehend] [immediate] [unlawful personal violence] MR: 1. Intention to cause the victim to apprehend violence; OR 2. Recklessness as to whether such violence will be apprehended by the victim. Actus Reus 4.1.1 An Act Any gesture such as raising fists or approaching someone in a threatening manner - Smith & Hogan’s Criminal Law [OVERRULED] R v Meade & Belt (1823) [DO NOT CITE THIS CASE INTO YOUR PROBLEM QUESTIONS OR I WILL KILL YOU] [Not really]: Holroyd J: "no words or singing are equivalent to an assault" Words: R v Wilson (1955) [obiter]; R v Constanza (1997) Silence: R v Ireland (1997) Lord Steyn: “The proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible. A thing said is also a thing done. There is no reason why something said should be incapable of causing an apprehension of immediate personal violence, e.g. a man accosting a woman in a dark alley saying "come with me or I will stab you." I would, therefore, reject the proposition that an assault can never be committed by words.”

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4.1.2 Apprehend The defendant need not be in fear; as long as they anticipate/expect the unlawful violence. R v Lamb (1967) – In order to establish constructive manslaughter, assault must have been proven first. Here, assault cannot be proven as the victim did not expect any unlawful violence. R v St. George (1840) – Parke B: “It is an assault to point a weapon at a person, though not loaded, but so near that if loaded, it might do injury”. The threat of unlawful physical violence need not be real; as long as the victim apprehended it. Logdon v DPP (1976) – The imitation gun had frightened the woman. She feared (reasonably) that the defendant will use violence. The defendant was guilty of assault. Words can negate an assault: Tuberville v Savage (1669) – The defendant made it clear in words that he did not intend to attack the victim; so the victim did not expect immediate unlawful violence. But not all the time: R v Light (1857) – D held a shovel above his wife’s head and said “if not for the policeman outside, I would split your head open”. The Court still held that there was assault. 4.1.3 Immediate Threats of future violence will not amount to an assault However, the courts have adopted a more liberal approach; the immediate harm can result from uncertainty as to what D might do next. Smith v Superintendent of Woking (1983) – D was outside a woman’s house. He looked in through the curtains. The woman saw D and she was frightened; D did not move. Kerr LJ held that where the basis of the fear which was instilled in her was that she did not know what the defendant was going to do next, but that, whatever he might be going to do next … was something of a violent nature” R v Ireland (1997) – D made silent phone calls and breathe heavily to V. D was convicted as assault as the victim was assailed by the uncertainty that D might appear to her house ‘in a minute or two’ and inflict violence upon her.

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4.1.4 Unlawful If there is no lawful excuse such as reasonable punishment of a child (s58 Children Act 2004); consent, or self-defence, it is assault. 4.1.5 Personal violence Violence is not actually needed. D only needs to cause V to anticipate the amount of force required for a battery. 4.1.6 Mens Rea Fagan v MPC (1969) – As per the definition above; the mens rea is intention to cause the victim to apprehend violence or recklessness as to whether such violence is apprehended. R v Savage & Parmenter (1991) – Confirms that recklessness is assessed subjectively as per the test in Cunningham and G & R. Read up on mens rea if you don’t know. Don’t message me to ask this. 4.2 Battery R v Ireland (1997) – Lord Steyn defined battery as "unlawful application of force by the defendant upon the victim" Donnelly v Jackman (1970) – The slightest touching of a person without his or her consent. Any touching can amount to direct force. Lord Holt CJ in Cole v Turner (1704) explained that: “The least touching” is a battery. AR: 1. Unlawful 2. Application 3. Force (not generally acceptable in the ordinary conduct of life) MR: 1. Intention to apply the force onto the victim; OR 2. Recklessness as to whether such force will be applied. 4.2.1 Unlawful If there is no lawful excuse such as reasonable punishment of a child (s58 Children Act 2004); consent, lawful arrest (s24 Police & Criminal Evidence Act 1984) or self-defence, it is assault. Raqib B. Osman [email protected]

4.2.2 Application The force can be applied directly; such as touching (as per the definitions given in Donnelly and Cole). The force need not actually hurt the other person. The force can be indirectly applied too. DPP v K (a minor) (1990) – Battery can be committed by an indirect act; such as leaving acid in a hand dryer so as to injure the next user. R v Day (1845) – It would be a battery where D slashed the victim’s clothes with a knife/sword. The force can also be applied by omission. DPP v Santana-Bermudez (2003) – D left needles in his pocket while being searched by a police officer. The officer was injured by the needles. This was held to amount to a battery. 4.2.3 Force Cole v Turner (1704) – Lord Holt GJ: “The least touching in anger is a battery”. This implies that the touching must also be hostile. R v CC of Devon & Cornwall, ex parte Central Electricity Generation Board (1981) – An unwanted kiss can amount to battery. Collins v Wilcock (1984) – A police officer held a suspect by the elbow; and it had to be considered if the police’s conduct was lawful. Goff LJ rejected the view in Cole v Turner. He said that it is better to define battery as anything beyond the contact which is generally acceptable in the ordinary conduct of daily life. Wilson v Pringle (1986) – A schoolboy admitted that he pulled another student’s bag, and the other student fell down. Croom-Johnson LJ followed the approach in Cole; thus there was no battery. 4.2.4 Mens Rea Faulkner v Talbot (1981) – Lord Lane CJ held that intentional or reckless touching of another would suffice. R v Savage & Parmenter (1991) – Recklesness is assessed subjectively. 4.2.5 Punishment for Assault & Battery S39 Criminal Justice Act 1988 – Maximum 6 months imprisonment or a fine not exceeding level 5 on the standard scale. Raqib B. Osman [email protected]

4.3 Assault Occasioning Actual Bodily Harm S47 Offences Against the Person Act 1861 – Whosoever shall be convicted of any assault occasioning actual bodily harm shall be liable… to imprisonment for five years. AR: 1. Assault/battery 2. Occasioning (causing) 3. Actual bodily harm (ABH) In proving the second element, normal rules of causation will apply. MR: Same mens rea as assault or battery. 4.3.1 Actual bodily harm R v Miller (1954) – ABH is any hurt or injury calculated to interfere with health or comfort of the victim. R v Donovan (1934) – such hurt need not be permanent, but must be more than transient and trifling: R(T) v DPP (2003) – Loss of consciousness can amount to ABH. R v Smith (Michael) (2006) – D cut off V’s hair; this amounted to ABH. R v Chan Fook (1994) – Psychiatric injury can fall within the meaning of ABH but it must be supported by medical evidence. Mere emotions such as fear, distress or panic will not be included. R v Ireland (1997) – D made silent phone calls to V which caused her to suffer from psychiatric injury. He was convicted under s47 OAPA 1861. All minor injuries will fall within the meaning of actual bodily harm. In practice, prosecutors will bring a charge based on guidelines in the Crown Prosecution Service Charging Standards on Offences Against the Person. (https://www.cps.gov.uk/legal-guidance/offences-against-person-incorporatingcharging-standard)

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From the CPS Charging Standards: The degree of harm caused will in many cases be more than just the level of injuries sustained. There will be cases where, although the level of injury may be quite minor, the circumstances in which the assault took place e.g. repeated threats or assaults on the same complainant or significant violence (e.g. by strangulation), make a charge of ABH appropriate rather than one of Common Assault. There should be an assessment of the overall harm caused when deciding on charge and awareness that the level of injury is simply a part of the overall harm.

4.3.2 Mens rea of s47 R v Roberts (1971) – D tried to take V’s coat off but did not intend or foresee any injury being caused to V. The Court held that the mens rea of battery was present and this would suffice. There need not be intention or recklessness as to whether ABH will be caused. R v Savage & Parmenter (1991) – D threw beer over another woman. The glass slipped from D’s hand and cut V. She did not intend V to be injured. The House of Lords dismissed her appeal against a s47 conviction as she had intended to pour beer over V, therefore D had the mens rea of battery (intending to apply unlawful force). 4.4 Malicious wounding/Inflicting GBH S20 Offences Against the Person Act 1861 - Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanour… AR: 1. Wounding; OR 2. Inflicting grievous bodily harm (GBH) MR: 1. Intention to cause any harm; OR 2. Recklessness as to whether any harm will be caused. 4.4.1 Wounding A wound is a break in all layers of the skin. R v Wood (1830) – Even though the collarbone was broken, but the skin was not, there was no wound.

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R v Beasley (1981) – There need not be a technical assault or battery to prove wounding. 4.4.2 Inflicting R v Lewis (1974) – Inflicting GBH need not be a direct act causing the injury. Here, D shouted threats at his wife through a closed door and his wife jumped off the second floor to escape, breaking her legs. This fell within the meaning of inflict. MPC v Wilson (1984) – The word ‘inflict’ does not require an assault. R v Burstow (1997) – D made silent telephone calls, abusive telephone calls, he appeared at her house, took photos of her, distributed offensive cards to her neighbours and hate mail. As a result she suffered a severe depressive illness. This fell within the meaning of ‘inflicting’ GBH although there is no direct act. s20 uses the word ‘inflict’ while s18 uses the word ‘cause’. In Burstow, Lord Hope said the difference between the meanings of the two words is: Inflict: the consequence of the act is something which the victim is likely to find unpleasant or harmful. The word implies detriment to the victim of some kind. Cause: the relationship between the cause and effect is neutral. R v Golding (2014) – D was infected with herpes. He had sex with his girlfriend without informing her of this. The Court of Appeal confirmed that although there is no assault or battery, there was still ‘infliction’ of GBH. 4.4.3 GBH DPP v Smith (1961) – GBH means ‘really serious harm’. It need not be permanent or life threatening. R v Saunders (1985) – A judge may direct the jury to convict if there was ‘serious harm’. Omitting the word ‘really’ was not a misdirection. R v Bollom (2003) – Age, health and other factors relating to the victim can be taken into consideration when determining if there was GBH. Here, bruising and abrasions to a 17-month old baby amounted to GBH. R v Dica (2004) – Biological harm (including a very serious disease such as HIV) could amount to GBH. R v Burstow (1997) – Psychiatric injury can amount to GBH.

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R v Golding (2014) – The evidence of V's painful symptoms and their effect and recurrence without effective cure indefinitely was sufficient for a jury to consider that it was “really serious” bodily harm. The serious harm did not have to be either permanent or dangerous. 4.4.4 Mens rea of s20 OAPA 1861 The section uses the word “maliciously”. In R v Cunningham (1957) – the word ‘malicious’ meant either intention to do the particular kind of harm or recklessness as to whether the harm would occur or not. R v Savage & Parmenter (1992) – Subjective recklessness applies to all offences in which the word ‘maliciously’ is used. In Parmenter, D threw his 3month old baby in the air but injured his child when he caught him. He did not know of the risk of injury as he had done this with older children with no injuries. The House of Lords quashed his conviction for s20 and substituted with s47 instead. 4.5 s18 OAPA 1861 This is the most serious non-fatal offence. It is an indictable offence carrying a maximum life imprisonment penalty. s18 OAPA 1861: 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 felony, and being convicted thereof shall be liable . . . to be kept in penal servitude for life . AR: 1. Wounding; OR 2. Causing GBH MR: 1. Malicious (Intention or recklessness as to whether any harm will be caused); AND either: a. Intention to cause GBH; OR b. Intention to resist a lawful arrest. 4.5.1 Wounding/Causing GBH Wounding has the same meaning as discussed earlier. Causing GBH is wider than inflicting, as it must be shown that D’s act or omission caused the GBH. Raqib B. Osman [email protected]

4.5.2 Intention to cause GBH Intention will be proved using the same meaning as that in Unit 2: Mens Rea. It can be direct intention or oblique intention. This can be inferred from evidence such as D’s actions, the weapon used, the part of body that was attacked, and the number of attacks. (Note: not an exhaustive list). Although the word ‘maliciously’ is used, if the intention to cause GBH can be proven, then as seen in R v Mowatt (1967), there is no need to prove the ‘malicious’ element. 4.5.3 Intention to resist lawful arrest For these situations, the prosecution must prove 2 mens rea elements. First is that D had the specific intent to resist a lawful arrest. Secondly, the prosecution must prove that D was acting maliciously (i.e. there was intention or recklessness to cause harm). R v Morrison (1989) – V, a police officer, arrested D. D jumped through a window dragging V along, causing severe cuts to V’s face. The Court of Appeal held that the prosecution must prove that there was intention to resist lawful arrest and recklessness as to whether harm would be caused to the officer. 4.6 Reform This Act is, like, ancient. Anyone born in 1861 would be dead by now. Similarly, this Act should also be dead. Read: http://www.lawcom.gov.uk/app/uploads/2015/06/cp217_offences_against_the_ person.pdf

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PAST YEAR QUESTIONS 2019 Zone B Question 7 Rhonda and Stefan are partners. One day Stefan starts tickling Rhonda on the sofa. For a while she finds this enjoyable but then becomes breathless, as she suffers from asthma. She tells Stefan to stop but he carries on. In attempting to escape Rhonda jumps off the sofa, as a consequence of which she twists her ankle causing it to swell up and this gives her considerable pain. Stefan apologises and bends over Rhonda to help her up. In doing so he trips and falls on top of her. This has the consequence of breaking Rhonda’s leg. Stefan takes her to hospital where, due to a medical error, Rhonda is given an overdose of a palliative drug. This sends Rhonda into a coma. She regains consciousness a few days later with no ill effects. Discuss. 2018 Zone B Question 1 Dennis decides to play some tricks on people at school. He puts itching powder in Biffo’s underpants. Biffo scratches the area so severely that it draws blood. Then Dennis substitutes the sugar in the sugar basin with salt. Minnie feels ill all day after drinking salty tea. Dennis next spreads butter on the floor of the toilets. When Pleg goes to the toilets, he slips on the butter and bangs his head, losing consciousness momentarily. Next Dennis inflates a paper bag and explodes it behind Ted who is on a step ladder changing a light bulb. Ted falls off the step ladder in shock and cuts his hand on the broken bulb. Finally, Dennis replaces Billy’s insulin, which Billy self-injects for diabetes, with water. Later, when driving home, Billy suffers hyperglycaemia which affects his vision causing him to collide with another car, causing him cuts and bruises. Discuss. DO NOT consider any possible liability under Section 23 Offences Against the Person Act (OAPA) 1861. 2016 Zone B Question 6(b) Outline and discuss critically the present law of non-fatal offences against the person, giving suggestions for reform

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