Principle and non-fatal offences against the person PDF

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Summary

Criminal law - Rimmington [2005] o No one should be punished for any act which was not clearly and ascertainably punishable when the act was done- Thabo Meli v R [1954] o D’s MR must subsist at the time of his AR.Recklessness - R v G [2004] o A person acts recklessly when he is aware of a risk that ...

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Criminal law - Rimmington [2005] o No one should be punished for any act which was not clearly and ascertainably punishable when the act was done -

Thabo Meli v R [1954] o D’s MR must subsist at the time of his AR.

Recklessness - R v G [2004] o A person acts recklessly when he is aware of a risk that it will occur and it is in the circumstances known to him, unreasonable to take the risk -

Result crimes require proof of an outcome linked to D by a chain of causation ‘Conduct crimes’ require only proof of conduct ‘State of affairs’ crimes require only proof that the state of affairs exists Voluntariness: D should not be judged responsible for what he did, or to have brought about a state of affairs, if it was not a matter within his conscious control.

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Mitchell [1983] o D is not acting voluintarily

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Robinson-Pierre [2013] o Even ‘state of affairs’ crimes do not normally apply if D has no control

Causation - Wallace [2018] (act here generally being suicide rather than other specific circumstances) o In relation to third party interventions, D will not be liable if a third party’s intervening act is either:  (a) one of a free, deliberate and informed nature (whether reasonably foreseeable or not)  (b) if not a free, deliberate informed act, one which was not reasonably foreseeable -

The law that needs to be explained to the jury deals with three key issues o The minimum causal contribution required of D (‘sufficient’ cause) o When to relieve D of causal responsibility for an act or culpable omission because of some supervening event, aka novus actus interveniens (‘operative’ causes) o The causal effect (exceptionally) attributed to D’s omissions: when is D under a duty to act in criminal law?

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Dyson [1908] o It does not matter whether the victim has pre-existing disease

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Nicklinson v R [2014]

o ‘Mercy-killing’/assisting suicide is unlawful even if D is terminally ill. -

Hughes Taylor [2016] o It is necessary that D’s act is a ‘but for’ or factual cause, but this is not enough if D does not cause c’s injury

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R v Hennigan [1971] o It need not be the only or the principal cause. It must, however, be a cause which is more than minimal

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Benge [1865] o An outcome may have more than one cause

Supervening cause (1) refusal of medical treatment by V - Blaue [1975] o The death is caused by d and not whether the victim had failed to take the best care of himself. (2) Aggravation of injury by V - Dear [1996] o But for the wounding, the v would not have reason to aggravate the condition to cause his own death. -

Dhaliwal [2006] o Suicide could be attributed to the original injury.

(3) Medical treatment goes wrong - Cheshire [1991] (dead from injection of tube) o Even though negligence in the treatment of the victim was the immediate cause of his death, the chain of causation is not broken unless the negligent treatment was so independent of defendant’s acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant -

Smith [1959] o Chain is not broken unless original injury is only the setting in which another cause operates

(4) V injured while escaping - Williams [1992] (jumping out car) o The test for causation was whether v’s reaction was within the range of reaction might be expected from a victim placed in the situation which he was. It should take into account of v’s characteristics and the fact that he may act without thought or deliberation in the agony of the moment

(5) D causes act of self-preservation by another, which kills V - Paget [1983] (police shot hostage) o a reasonable act of self-defence against the accused causes the death of a third party does not operate as a novus actus interveniens (6) free informed intervention normally breaks the chain - Kennedy (No. 2) (inject drug) o D is not to be treated as causing V to act in a certain way if V makes a voluntary and informed decision to act in that way rather than another (7) D’s negligent act may be overtaken by unforeseeable event - Girdler [2009] (woman crash into taxi driver - collusion) o The defendant will have caused the death only if the second collusion could sensibly have been anticipated. -

Empress Car Co v National Rivers Authority [1999] (pollution – 3rd party) o If the rule imposes a duty which requires one to guard against, or makes one responsible for, the deliberate acts of third persons, when loss is caused by the act of such a third person, that it was caused by the breach of duty, defendant will remain liable for the third party’s act.

Omission - Miller [1983] o There is no general duty to rescue someone or prevent harm occur, even if it will be very easy to do so. -

Gibbins & Proctor [1918] (child starving and died) o Duty of parent to dependent child

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Instan [1893] (elderly aunt ill and died) o D convicted manslaughter by negligence and the basis of duty, not just because of the close relationship but also the fact that d had entered into such promise to provide care in exchange of benefit conferred by v.

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Stone & Dobinson [1977] (sister ill and died) o Both ds convicted manslaughter. S as relative taken sister and d on the basis of undertaken through some effort she made to care for family by feeding

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Pitwood [1902] (gatekeeper - collusion) o Contractual duty

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Adomako [1995] (fail to notice oxygen supply had become disconnected) o Professional duty

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Miller [1983] (smoking – ignore fire on mattress – went to sleep)

o There is duty to take measures that lie within one’s power to counteract a danger that one has oneself created -

Evans [2009] (contributed to the death – fail to give medical treatment) o There is duty in manslaughter by gross negligence when a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life-threatening

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Airedale NHS Trust v Bland [1993] (vege status – doctor) o A doctor’s decision to stop providing treatment or care may be lawful (either because the doctor is giving effect to his patient's wishes by withholding the treatment or care, or even in certain circumstances in which the patient is incapacitated from stating whether or not he gives his consent) but it is unlawful for a doctor to administer a drug to his patient to bring about his death

Non-Fatal Offences Against the Person Hierarchy of Main Offences Fatal - Murder (Mandatory life sentence) - Manslaughter (Max = life) Non-fatal - Wounding/Causing GBH with intent (s18 OAPA 1861: Max = life) - Wounding/inflicting GBH maliciously (s.20 OAPA 1861: Max = 5yrs) - Assault Occasioning actual bodily harm (ABH) (s.47 OAPA 1861: Max = 5yrs) - Battery (CJA 1988 s.39: Max = 6m) - Assault (CJA 1988 s.39: Max = 6m) Assault and Battery - S. 39 Criminal Justice Act 1988: ‘common’ assault and battery summary offences only (Max 6 months / level 5 fine) -

Collins v Wilcock [1984] o An assault is an act which causes another person to apprehend the infliction of immediate, unlawful force on his person o A battery is the actual infliction of unlawful force on another person

Assault Actus reus - Assault • The creation of a mental state in another person (‘apprehension’) whereas the actus reus of battery requires physical contact (‘force’) -

Collins v Wilcock [1984] (definition of assault and battery) o Assault is an attempt or offer to beat another, without touching him, as if one lifts up his cane, or his fist, in a threatening manner at another, or strikes at him but misses him

o Battery is the unlawful beating of another. The least touching of another’s person wilfully, or in anger, is a battery for the law cannot drawn the line between different degrees of violence, and thus prohibits the first and lowest stages of it -

R v Ireland; R v Burstow [1997] (phone call) o Words without physical gesture could be assault o Apprehension of ‘immediate’ unlawful force – fear the possibility of immediate personal violence. It is sufficient if fear may dominate v’s emotion, and it may be the fear that the caller’s arrival at her door may be imminent

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R v Constanza [1997] (bombarded letter and phone calls – kept watch her house) o If the Crown have proved a fear of violence at some time not excluding the immediate future, then that is sufficient to constitute assault

Mens rea – Assault - An intention to cause the victim to apprehend immediate and unlawful violence or recklessness whether such apprehension be caused (R v Savage, Parmenter [1992])

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‘Recklessness’ in non-fatal offences cases means ‘subjective’ recklessness – D who causes V apprehension is only reckless if he realizes this may be the effect of his conduct.

Battery - s39 Actus reus – Battery - Collins v Wilcock [1984] o Minimum force suffices - no need to prove injury o Contact which is ordinarily acceptable in daily life was not sufficient to constitute battery -

Ireland & Burstow [1997] (phone calls) o Requires some ‘application of force’

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Haystead v CC of Derbyshire [2000] (mother holding baby) K [1990] (put acid into hand dryer) o Battery has been upheld where force is applied indirectly

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R v Santana-Bermudez [2004] (needle in pocket) o Battery has been upheld without a positive act

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Fagan v MPC [1969] (old authority – parked car on police’s foot and refused to move) o Direct force is needed

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B [2013] (mental illness – force w to eat leaves in garden) o Require act to be ‘hostile’ which means act ‘without consent’ o The fact that defendant is motivated by misdirected affection will not save it from being an assault

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Murgatroyd v Chief Constable of West Yorkshire [2000] o It would be battery to set a dog on another.

Mens Rea – Battery - Intention or recklessness as to apply force to the body of another (Venna [1976]) / recklessness whether force be so applied Assault Occasioning ABH - s47 Actus reus – ABH - Miller [1954] o Bodily harm includes any hurt calculated to interfere with the health or comfort of the victim: such hurt need not be permanent, but must be more than transient and trifling -

Charging Standards reserve s.47 for injuries too serious to be reflected by battery o whether the injuries are serious – whether there has been significant medical intervention and/or permanent effects have resulted

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DPP v Smith [2006] (cutting off hair) o Harm did not necessarily mean injury, simply cutting off hair is sufficient.

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Chan Fook [1994] o ABH may include recognised psychiatric injury: ‘bodily’ incorporates the nervous system and brain

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R v Dhaliwal [2006] o Harm does not include distress/grief/anxiety falling short of recognised illness

Mens rea – ABH s47 - R v Roberts [1971] o S.47 requires proof of assault or battery plus a causal link between that and the ABH o Once the assault was established, the only question was whether the injury to the person flow naturedly from d’s conduct, regardless of d’s intention Malicious Wounding / Inflicting GBH - s20 - Unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument - It is jury to decide whether the really serious harm was caused -

JCC V Eisenhower [1984] o Wound includes puncture of the inner and outer skin accompanied by bleeding o Internal injuries are not wounds but may be GBH

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DPP v Smith [1961]

o GBH means really serious injury -

R v Ireland; R v Burstow o GBH includes psychiatric injury

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R v Bollom [2003] o It could take account of impact on particular victim if vulnerable, in deciding whether the injury is serious.

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CPS Charging Standards s.20 - examples of what would usually amount to really serious harm o injury resulting in permanent disability, loss of sensory function or visible disfigurement; o broken or displaced limbs or bones, including fractured skull, compound fractures, broken cheek bone, jaw, ribs, etc; o injuries which cause substantial loss of blood, usually necessitating a transfusion or result in lengthy treatment or incapacity; o serious psychiatric injury

Actus Reus – GBH s20 - R v Wilson [1983] o ‘Inflict’ need not involve an assault/battery but does involve force ‘violently applied’ directly or indirectly. -

R v Ireland, Burstow [1997] o No real practical difference between ‘cause’ and ‘inflict’

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R v Dica [2004] (d who knew he had HIV transmit HIV to his partner) o Reckless transmission of HIV can be ‘infliction

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Brady [2006] (drinking – approach balcony – d claimed he accidentally fell over – prosecutor claimed he jumped down and fell on v) o It is possible to inflict GBH by falling. o In this case, the pre-careless decision by d was sufficient to constitute a deliberate nonaccident conduct inflicted GBH

Mens Rea – GBH s20 - Cunningham [1957] (break into gas station and gas leaked) o Maliciously means intention /recklessness as to injury -

R v Mowat [1968] (d hit v for stolen money) o Maliciously includes an awareness that his act may have the consequence of causing some physical harm to some other person

Wounding/Causing GBH with Intent - s18

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Unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm 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

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Ireland, Burstow o GBH includes serious psychiatric injury

Mens Rea – GBH s18 - Intent to resist/prevent lawful apprehension or detainer of a person - Intent to cause GBH (not merely to wound short of GBH - Taylor [2009]) -

Morrison [1989] (d jumped into window and dragging v - maliciously causing GBH with intent to prevent arrest) o If D is charged with causing GBH with intent, maliciously is still crucial...