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Flashcards by beccytay10r, updated more than 1 year ago
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Created by beccytay10r
almost 10 years ago
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| Question | Answer |
| What is an assault? | Where D intentionally or subjectively recklessly caused V to apprehend immediate unlawful personal violence |
| Describe SMITH re. assault | Relates to the immediacy test. Showed an assault can happen through a window, as the V didn't know what the D would do next, the violence could have been 'imminent' |
| Describe IRELAND re. assault | An assault can occur through a silent phone call as the V doesn't know what the D will do next or where he was, the violence could have been imminent. Occasioned ABH as they had mental anguish. |
| Explain TUBERVILLE v SAVAGE re. assault | Showed words that suggest there will be no violence can prevent an act from being an assault. The words of the D cancelled out the act of holding a sword over the V's head |
| Explain LOGDON re. assault | Showed the V doesn't have to be in real violence or be scared. The D showed the V what appeared to be a real gun (it was fake). It was an assault even though the V wasn't actually in danger |
| What is the definition of battery? | Where D intentionally or subjectively recklessly applies unlawful force to another |
| Explain BERMUDEZ re. battery | Showed battery can occur through an omission. Police asked if D had any sharp objects, he lied and the police cut her finger during search. He had a duty of care to protect her from harm and he had created a danger to others |
| Explain FAGAN re. battery | Battery can be a continuing act. D accidentally drove onto police mans foot after being told to move his car, he stayed on the police's foot (ignition off) |
| What was the principle that BROWN AND OTHERS approved of in WILSON v PRINGLE? (Battery) | That touching had to be hostile. Lord Mustill said that it cannot be the only factor to determine guilt or innocence. It can just help the court in knowing how to react to a new situation |
| What did MARTIN show re. battery? | Battery can occur through an indirect act. D put a bar across theater entrance, turned lights off and shouted fire. He indirectly had committed battery |
| What is the law on Assault governed under? | s.39 CRIMINAL JUSTICE ACT 1988 Common Law |
| What is the law on Battery governed under? | s.39 CRIMINAL JUSTICE ACT 1988 Common Law |
| What is the law on Assault Occasioning ABH governed under? | s.47 of the Offences Against the Person Act 1961 |
| What act is inflicting GBH governed under? | s.20 of the Offences Against the Person Act |
| What act is wounding governed under? | s.20 of the Offences Against the Person Act |
| What act governs Causing GBH with intent to do so or to resist arrest? | s. 18 of the Offences Against the Person Act |
| What act governs Wounding with intent to do GBH or with intent to resist arrest? | s.18 of the Offences Against the Person Act |
| What two acts govern the law on assaults as a whole? | CRIMINAL JUSTICE ACT 1988 OFFENCES AGAINST THE PERSON ACT 1961 |
| What is the Mens Rea of Battery? | Intention to apply unlawful force or recklessness as to whether such force will be applied. Recklessness: objective test: VENNA |
| What does the case of VENNA show re. the Mens Rea of battery? | VENNA relates to the reckless element to the mens rea of battery of unlawful force being applied, it is a subjective test: The D must realise the risk of physical contact and take that risk |
| What are the differences between Assault and Battery re. force applied? | In an assault there doesn't have to be touching, just an apprehension, in battery there does have to be touching. |
| What does s.47 of the OFFENCES AGAINST THE PERSON ACT state? | Assault occasioning ABH It's a triable either way offence Max. sentence is 5 years in prision |
| What offences has to be committed to cause ABH in s.47? | Either assault or battery, so the Actus Reus of assault and battery apply |
| Who is the burden of proof on to prove that the assault or battery occasioned the ABH in s.47? | The prosecution must prove that the D's assault or battery occasioned (caused) the ABH |
| What interpretations of ABH has MILLER and CHANFOOK given? | MILLER: ABH: any hurt or injury calculated to interfere with health or comfort CHANFOOK: 'Actual': the injury should not be so trivial as to be wholly insignificant (injury doesn't have to be permanent) |
| What are examples of physical injuries that can result in a prosecution under s.47? | Loss/breaking of a tooth, temporary loss of consciousness, extensive/multiple bruising, minor fractures of bones (e.g. a broken nose) minor cuts that require medical attention |
| What does ABH also apply to that is not injury? | ABH applies to damage that is not trivial such as skin, bones and hair (DPP v SMITH) and psychiatric injury (CHANFOOK) |
| What does the case of DPP v SMITH show re. ABH as damage that is not trivial? | In DPP v SMITH, the D cut off his ex's ponytail with scissors, which amounted to ABH. The obiter dicta of the divisional court said if paint/other unpleasant substances were put on hair, this would also be ABH |
| What did CHANFOOK show re. psychiatric injury? | The V developed a nervous and hysterical condition after her house was burgled. This didn't qualify as ABH as this didn't qualify as a psychiatric injury, so did not class as 'bodily' harm |
| What does bodily harm re. psychiatric injury not include? | Bodily harm does not include emotions such as fear, distress, panic, or a hysterical or nervous condition |
| What is the Mens Rea of s.47? | - The D must intend or be subjectively reckless as to whether the V apprehends or is subjected to unlawful force - D doesn't need to foresee that his acts may cause anything other than an assault or battery (SAVAGE) |
| What are the offences that s.20 consists of? | Unlawfully and maliciously wounding and unlawfully and maliciously inflicting GBH |
| What does the prosecution have to prove under s.20? | The prosecution must prove that the D either inflicted (caused) GBH or wounded the V |
| What is the definition of GBH under s.20? | GBH: 'really serious harm' (SMITH) But the injury doesn't have to be life threatening |
| What are examples of GBH under s.20? | Injury resulting in permanent disability, significant permanent visible disfigurement, broken bones and injuries causing substantial blood loss |
| When deciding if the injury is serious enough to be GBH under s.20, what must the court also take into account? | The effect of the injuries on the V, such as age: BOSSOM, which would be important if the V was very old or very young |
| Can serious psychiatric injury be classified as GBH under s.20? | Serious psychiatric injury can be GBH, such as severe depression, insomnia and panic attacks (as in BURSTOW) If the psychiatric injury is not as serious, it can be classed as 'bodily harm' under s.47 |
| What does the case of BURSTOW show re. serious psychiatric injury under s.20? | The D caused V to have severe depression, insomnia and panic attacks through stalking. He was convicted for inflicting GBH under s.20 |
| What does DHALIWAL show re. non physical harm under s.20? | For non physical harm to amount to 'bodily' harm under s.20 there must be evidence of a recognizable psychiatric illness. Purely psychological harm would not be sufficient |
| What are the meanings of 'inflict' under s.20? | CLARENCE: assault/battery must have 'brought about' the wounding or GBH MARTIN: 'cause', meaning indirect acts can still inflict the GBH or wounding |
| What did the case of CLARENCE show re. the definition of 'inflict' under s.20? | Inflict:bring about: The D had a venereal disease, and had sex with his wife without telling her about the disease. The court held the sex was not a battery as there was consent - so it was not unwanted touching. GBH conviction was quashed (eventually convicted after law change) |
| Describe the case of MARTIN re. the definition of 'inflict' under s.20 | Inflict: caused: D put an iron bar across a theater doorway, turned the lights off and shouted fire. He was convicted of inflicting (causing) GBH indirectly by applying unlawful force |
| What does the law state re. s.20 of inflicting a disease on another? | The D passed on HIV to two women who he persuaded to have sex with him. The court confirmed that 'biological' GBH can be inflicted in this way. CLARENCE was held to be wrong and was overruled |
| What can s.20 be a result of? | Both assault and battery - no unlawful force has to be applied, directly or indirectly |
| How is a wound described in law? | A breaking of the skin. Internal bleeding (e.g. a cut on the inside of a cheek) is sufficient, but internal bleeding where no skin has been cut is not wounding. |
| Regarding the Mens Rea for s.20, where 'maliciously' is used, what is this held to mean? | Maliciously means 'intentionally or recklessly' (reckless: subjective test) CUNNINGHAM |
| What is the Mens Rea for s.20? | The D must intend to inflict some harm to another person, or be subjectively reckless as to whether the V suffers some harm |
| What does the case of PARMENTER show re. the mens rea of s.20? | It is sufficient for the D to foresee the possibility of some physical harm, the D doesn't have to foresee that it would be a wound or serious injury |
| What type of offences are contained in s.20 and what is the max. punishment? | Unlawful and malicious wounding and unlawfully and maliciously inflicting GBH are triable either way offences and carry a max. prison sentence of 5 years |
| What are the offences contained in s.18? | Wounding with intent to do some GBH Causing GBH with intent to do some GBH Malicious wounding with intent to resist arrest Maliciously causing GBH with intent to resist arrest |
| What type of offences are contained within s.18 and what is the max. punishment? | They are indictable offences and the max. punishment is life imprisonment |
| What is the difference between s.18 and s.20? | s.18 is the same as s.20 apart from the mens rea. Recklessness is not sufficient for s.18, there must be intent. This makes the offences more serious (indictable). S.18 uses the word 'cause', s.20 uses 'inflict' |
| What is the Actus Reus of s.18? | Causing GBH or wounding the V |
| What is the law on the wording of 'cause' re. s.18? | Cause means the same as inflict (BURSTOW). Cause has a wide meaning, but it is only necessary for the prosecution to prove that the D's act was a substantial cause of the wound or GBH |
| What is the meaning of wound and GBH re. s.18? | Wounding: breaking of the skin (EISENHOWER) GBH: really serious harm They have the same meanings as s.20 |
| What does the case of EISENHOWER show re. the definition of wounding? | The V had a broken blood vessel in her eye caused by the D, this did not amount to wounding as there was no breaking of the skin |
| What must the prosecution prove re. the mens rea of s.18? | That it was the D's purpose to cause GBH or to resist arrest, and that they foresaw this as a virtual certainty |
| What is the law on transferred malice in s.18? | Transferred malice is allowed e.g. if the D tried to inflict GBH or wounding on someone, but accidentally missed and hurt someone else, they could still be charged under s.18 |
| How does the word 'maliciously' relate to s.18 in maliciously wounding or causing GBH with intent to resist arrest? | The prosecution must prove that the D must intend to resist arrest, after this has been established, the prosecution must also show that D intended some harm, or was reckless as to whether some harm was caused (MORRISON) |
| How does the word 'maliciously' relate to s.18 causing GBH with intent to do some GBH, or wounding with intent to do some GBH? | If the prosecution has already proved that D intended to cause GBH, 'maliciously' imposes no further requirement (MOWATT) |
| What does the case of MORRISON show re. the mens rea of s.18 when resisting arrest? | V (policewomen) told D she was going to arrest him, in trying to get away he caused bad cuts to her face. The court said it must be proven that the D intended to resist arrest, and the D intended or was reckless as to whether some harm was caused |
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