Zusammenfassung der Ressource
Offences Against
the Person - ILAC
- Assault - CJA
1988 s.39 :
p.152
- AR
- MR
- Intended,
apprehension
of immediate
and unlawful
force
- Subjectively
reckless in
creation of
apprehension
- Savage v
Parmenter -
subjective
recklessness
- Any act
including
words
- V
apprehends
unlawful
force
- Immediate
application
- Immediacy
requirement leaves a
gap in the law
- No need
to fear
just
expect
- R v Constanza -
words alone
- R v Ireland and Burstow -
silent phone calls
- Tuberville v Savage
- words can prevent
assault
- Chambers v DPP -
joke = lacks MR
- Smith v Chief Superintendant,
Woking Police Station -
immediacy
- Battery - CJA
1988 s.39 : p.152
- AR
- MR
- Intention or
subjective
recklessness
of
application
- Application
of unlawful
force
- ANY
physical
contact
- No need to prove
harm or pain
- Haystead v DPP -
transferred
battery
- R v Thomas -
Touching
clothes
sufficient
- R v Braham - even if
affectionate in the
mind of D
- Fagan v
Metroploitan Police
Commissioner -
indirect force
- Both Assault and Battery defined by
common law not
act - no clear statutory definition
- Leads to real problems
differentiating between
assault/battery and ABH
despite drastic sentencing
differences
- ABH - OAPA
1861 s.47 : p.8
- Developed by
common law
not act
- AR
- Same as
assault and
battery but
that it led to
ABH
- MR
- Same as
assault or
battery
- R v Roberts -
no additional
MR required
- mens rea of
battery
sufficient
- Savage and Parmenter -
no intent of outcome
not applicable due to
intention to apply
unlawful force
- Wide
interpretation
- R v Miller -
hurt or injury
interfering
with health or
comfort
- DPP v Smith -
cutting hair
counted as harm or
damage
- also allowed
psychological/psychiatric
harm
- R v Cox (paul)
- can be used
in stalking
- R v Chan-Fook -
injury should not
be
trivial/insignificant
- R v Donovan -
more than
'trifling and
transient'
- R v D - must be clinically
recognisable psychiatric
injury - NOT CONVICTED
- Definitions of more
serious OATP are
dated and confusing
such as assault
occasioning and
malicious
- Also overlap between ABH
and GBH may be
unclear
- GBH - OAPA
1861 s.20 :
p.5
- GBH
w/Intent -
s.18 : p.5
- Woolin - oblique
intent/subjective.
Concerned with whether D
foresaw the degree of
probability of the result
occuring from his actions.
- Whoever shall unlawfully
and maliciously (...) wound
or cause any GBH to any
person, with the intent to
some GBH to any person, or
with intent to resist or
prevent the lawful
apprehension or detainer of
any person, shall be guilty
of an offence triable only on
indictment
- Requires
proof of
GBH or
wounding
- Must have
intention not
just
recklessness
- Life
sentence
- Majewski -
Distinction
between
crimes of
specific and
basic intent
- SI : intent, BI :
recklessness,
negligence and
Strict liability?
- Can only argue voluntary
intoxication under specific
intent but doesn't mean
not guilty, it is for the court
to decide in specific intent
cases if the intoxication
would be consistent with
the requisite intent
- Beard - Murder
does require
specific intent
manslaughter
does not
- Bratty - Wounding or
causing GBH with
intent DOES require
specific intent but
maliciously wounding
or inflicting GBH with
intent DOES NOT
- Bolton v Crawley -
Assault
occasioning ABH,
DOES NOT require
specific intent
- AR
- MR
- Must prove
intention;
Intent must
be to cause
GBH
- or Intent to avoid
arrest, must have
acted maliciously
i.e. intention of
recklessness as to
harm
- Needs more serious MR
but sentence leaps from 5
years to life! However
intent to GBH can be
murder if V died
- Prosecution
has to prove
GBH or
wounding
- with or
without
weapon
- AR
- Prosecution
has to prove
D inflicted
GBH or
wounded V
- C v Eisenhower
- Wounding
requires
breaking of
skin - NOT
CONVICTED
- DPP v Smith -
GBH = 'really
serious harm'
- R v Saunders -
no difference
between serious
and really
serious
- R v Brown and Stratton
- Trial judges should not
define concept to jury
- R v Ireland and
Burstow -
serious
psychiatric
injury also can
be GBH
- inflict no longer
implies direct
application of force
- R v Dica - HIV
transmission
counts
- R v Golding -
recklessly
infected V with
herpes
- Critisised by James
Roebuck - stated that as an
adult participating in
unprotected sex without
asking about potential
infection is of their own
free will and must
understand there may be
consequences = not for the
law to interfere
- Counter argument by Professor
Spencer who states that if the risk
could be nullified by disclosure due
to the D knowing or knowing there
is a potenital of the disease means
the law was right to intervene
- R v Bollom -
Court can take
into
consideration,
characteristics,
age and health
of V
- R v Wilson -
assault not
necessary, only
force being
violently applied
causing GBH
- however there
is wide
interpretation
given
- R v Martin -
caused panic,
barred doors,
resulted in
injuries, held
GBH
- R v Halliday -
D frightened
V. V jumped
out window
sustaining
injury, held
GBH
- key word -
'maliciously'
- MR
- Cunningham - malicously meant
intentionally or recklessly and
reckless means subjective
reckless. This is always used to
prove recklessness
- Mowatt - D need not intend
/recklessly cause GBH or
wounding they merely needed
intent/recklessness to cause
some form of physical harm
- DPP v A - D is only
required to have
forseen that some
harm MIGHT occur
- Savage and Parmenter
- Threw pint of beer
glass slipped. Not
necessary for D to
prove had MR in
relation to level of
harm inflicted.
- Stalking and
Harassment -
PfHA 1997 : p.235
- Protection from Harassment
Act 1997 - Stalking was not an
offence until 2012
- Baker - harassment may
occur either continuously
or intermittently but an
incident relied upon
must have occured
within the 6 month
limitation period
- Kellett - harassment to
telephone a person's
employer to allege they are
pursuing their own activities
in works time
- 2013 - Kent Police's 1st
successful stalking
conviction - sentence was
described as a deterrent and
shows victims it is there to
protect them
- Stalking - s.2A - a course of conduct which amounts
to harassment and the course of conduct amounts
to stalking. - no need to be malicious or insulting.
- 4A - sets out that 'stalking
involving fear of violence
or serious alarm or
distress' as: a course of
conduct which amounts to
stalking and causes
another to fear on at least
two occasions that
violence will be used
against them, or causes
another serious alarm or
distress that impacts their
usual day to day activities.
- no need to be malicious
or insulting.
- The impact on day to day activities
works to recognise potential,
emotional and psychological
harm. Guidelines issued by the
Home Office suggest evidence of
substantial adverse effect but it is
not defined in the statute.
Examples of this could be: the
victim moving home, physical or
mental ill-health, the victim
changing their routes to work etc.
- Stalking is not legally
defined but the PHA
1997 lists a number of
examples that could be
associated. A small
example could be:
Following a person,
contacting or attempting
to contact a person by
any means, watching or
spying on a person,
interfering with any
property in the
possession of a person
and so on. Prosecutors
should remember that
the absence of factors
such as these does not
mean that stalking is not
still taking place.
- Defences
- Stalking Defences: If the
suspect can show that any
of the defences to
harassment of section 1(3)
of the PHA are made out,
he cannot be guilty of
stalking as without
harassment there is no
stalking conviction
- Defence to harassment no violence, s.1(3)
the prevention or detection of crime,
pursued under any enactment or rule of
law or to comply with any condition or
requirement imposed by any person under
any enactment, in the particular
circumstances the pursuit of the course of
conduct was reasonable
- Defence to stalking involving fear of ciolence or serious alarm or
distress, s.4 A(3) where it can be shown the course of conduct was : (a)
pursued for the purpose of preventing or detecting crime, (b) the
conduct was pursued under any enactment or rule of law, or (c) the
pursuit of A's course of conduct was reasonable for the protection of A
or another - or for the protections of A's or another's property
- Issues
- There is already an offence of
causing harassment, alarm or
distress (...) Public Order Act 1986 -
s.4A
- Exemptions for people such as police
officers and potentially lawyers and
journalists. Also has the potential to
be used against people it wasn't
supposed to cover. Finally the act
focuses potentially too much on the
reaction of the V opposed to the actual
V
- OATP act may be dealing with
more street and pub brawls than
domestic violence under the act
- Law commission in 2015, suggested changes to the law:
Noted areas such as drafting of the law was
unnecessarily complex - needs modernising, no clear
hierarchy among offences and several unecessary
offences amongst many more suggestions.