Offences Against the Person

Assault

D must intentionally or recklessly cause V to apprehend immediate or unlawful force: IRELAND The actus reus of an assault is where by act or words, D causes V to apprehend immediate and unlawful force. There must be an act or words for an assault; an ommission is not enough. D's words can be verbal, written or typed: CONSTANZA. Silent phone calls can be an assault: IRELAND.It is necessary that V apprehends unlawful force. V does not have to be scared nor in danger: LOGDON. There must be an apprehension of immediate force. A threat by D to use force in the future cannot be an assault. If D does something that makes V aware there would be unlawful force at some unpredictable moment in the future, this is sufficient: SWPS v SMITH. Words indicating that there will be no immediate and unlawful force prevent an act from being an assault: TUBERVILLE v SAVAGE

The mens rea of an assault must be either intention or recklessness as to causing V to apprehend immediate and unlawful force.

Battery

D must intentionally or recklessly apply unlawful force to V: COLLINS v WILCOCK. The actus reus of battery is where by D's act or omission, he applies unlawful force to V. Force can be the slightest touching but not the ordinary jostling of everyday life: COLLINS v WILCOCKThe unlawful force does not have to be applied to V's body, touching their clothes will be enough, even if V feels nothing: THOMASUnlawful force may be applied indirectly, such as by a booby trap: HAYSTEADA battery can be committed by omission where D is under a duty to act: SANATANA-BEMUDEZ v DPP The actus reus may be a continuing act, to allow the mens rea to be present at the same time - coincidence principle: FAGAN v MPC

The mens rea of battery must be either intention or recklessness as to applying unlawful force to V: VENNA

Assault Occasioning Actual Bodily Harm

Under s.47 of the Offences Against the Person Act 1861 (OAPA 1861), it is an offence to commit 'any assault occasioning actual bodily harm'.For the actus reus of s.47 there must be either an assault or battery and this must cause the ABH. D must satisfy the AR of either an assault or battery. The assault or battery must have occasioned ABH. There must be no intervening act. ABH is 'any hurt or injury calculated to interfere with the health or comfort' of V: MILLERActual means the injury 'should not be so trivial as to be wholly insignificant':CHAN-FOOK. 

The mens rea of s.47 requires either the mens rea of an assault or the mens rea of battery, depending on which occasioned the ABH. D does not need to intend or be reckless as to whether ABH is caused to V: SAVAGE Typical injuries covered by ABH include: Extensive bruising Scratches A broken nose Loss or breaking of a tooth Minor fractures of bones, e.g. a broken finger Temporary loss of consciousness: T v DPP Cutting off a substantial amount of hair: DPP v SMITH (MICHAEL) Psychiatric injury, such as a depressive illness, but not 'mere emotions such as fear, distress or panic': CHAN-FOOK

s.20 OAPA 1861

Under s.20 it is an offence to: Unlawfully and maliciously inflict grievous bodily harm (GBH) and/or Unlawfully and maliciously wound The actus reus requires D to have inflicted GBH on V or to have wounded V. There is very little difference between 'inflict' and 'cause' : BURSTOWGBH means 'really serious harm': DPP v SMITH or 'serious harm': SAUNDERSWounding requires a breaking of the whole skin. The injury must be deep enough to break the inner skin. Internal bleeding where there is no cut of the skin is insufficient for a wound: JCC v EISENHOWER. A broken bone is not considered a wound, unless the skin is broken as well.

The mens rea of s.20 is defined by the word maliciously. This means there must be intention or recklessness that V might suffer some harm: MOWATT Even though the actus reus of s.20 requires a wound or GBH, there is no need for D to foresee this level of injury. Examples of GBH include: Any injury resulting in disability - e.g. brain damage  Significant and permanent visible disfigurement Broken bones, including a fractured skull Injuries causing substantial loss of blood A serious disease - e.g. contracting HIV: DICA A serious psychiatric injury: BURSTOW In deciding whether injuries amount to GBH, it is necessary to take into account V's health and age: BOLLOM - a very young or elderly person being bruised could amount to GBH, not ABH. A single minor injury added to other minor injuries can amount to GBH: BROWN AND STRATTON

s.18 OAPA 1861

Under s.18, it is an offence to: Wound with the intent to do some GBH and/or Cause GBH with the intent to do some GBH and/or Maliciously wound with the intent to prevent/resist arrest and/or  Maliciously cause GBH with the intent to resist/prevent arrest The actus reus of s.18 is similar to the offence of s.20 and, like that offence, requires proof of either GBH or wounding. There appears to be very little difference between the two words 'inflict' and 'cause': BURSTOW

The mens rea is more serious than for s.20. D must either intend to do some GBH or intend to resist/prevent arrest.  D may directly intend to do some GBH or resist/prevent arrest or indirectly intend to do some GBH or resist/prevent arrest.  Where D intends to resist/prevent arrest, D must also act 'maliciously'. This means there must be some intention or recklessness that V might also suffer some harm: MORRISON 

Murder

Murder is a common law offence. It is the 'unlawful killing of a person in being and under the Queen's Peace with malice aforethough, express or implied' as defined by Lord Coke. The actus reus of murder is the unlawful killing of a person in being under the Queen's Peace. The killing must be unlawful.It is not unlawful if it is in self-defence, or in the prevention of a crime. The killing can be by D's voluntary act or omission, but it must cause the death of V (see GIBBINS AND PROCTOR). D must kill a person in being. This means V must have a separate existence from the mother and have an independent circulation - killing a foetus is not murder: ATTORNEY-GENERAL'S REFERENCE (No.3 of 1994). A person who is 'brain dead' is probably not in being: MALCHEREKUnder the Queen's Peace means that the killing of an enemy in the course of war is not murder. However, the killing of a prisoner of war would be sufficient for the actus reus of murder.

The mens rea of murder is malice aforethough, express or implied by law.D must either: Intend to kill (express malice aforethought); or Intend to cause GBH (implied malice aforethought).  D can be guilty of murder even though they did not intend to kill: VICKERS GBH means 'really serious harm': DPP v SMITH or 'serious harm': SAUNDERSD may directly intend to kill or cause GBH - death or GBH is his aim or purpose: MOHAND may indirectly intend to kill or cause GBH - a jury may find this where death or GBH is not desired, but was virtually certain to occur and D knows this: WOOLLINTransferred malice is the principle that D can be guilty if he intended to commit a similar crime but against a different V: ATTORNEY-GENERALS REFERENCE (No.3 of 1994).In order for D to be liable, the AR and MR must coincide - exception is where it's part of a lager transaction: THABO-MELI.

Voluntary Manslaughter

There are three special defences to a charge of murder. These are where D kills V with malice aforethought, but the killing occurs due to: Loss of Control Diminished Responsibility Suicide Pact (not relevant to AQA course).

These defences are special defences because they only apply to a murder charge. These defences are also partial defences, because, if successful, the conviction is for voluntary manslaughter, not murder. They merely reduce liability. This allows the judge discretion when sentencing. Voluntary manslaughter carries a discretionary life sentence. 

Loss of Control

This replaced the defence of provocation. Set out in s.54 of the CORONERS AND JUSTICE ACT 2009.  D must have lost self-control and this caused the killing; and The loss of self-control had a qualifying trigger; and A person of D's sex and age, with a normal degree of tolerance and self restraint and in the circumstances of D, might have reacted in the same way to D.  When D raises this partial defence, the burden is on the prosecution to disprove it beyond reasonable doubt.D must have lost self-control and this caused the killing. There must be a loss of self-control not just self-restraint: COCKER.The loss of self-control doesn't have to immediately follow the qualifying trigger - there can be a delay. The defence is not available if D acted in a 'considered desire for revenge': s.54 (4).

D's loss of self-control must have had a qualifying trigger. S.55 sets these out. The loss of control must be due to one or both of the following: D's fear of serious violence from V against D or another identified person: WARD Things done and/or said which were extremely grave and caused D to have a justifiable sense of being seriously wronged: ZEBEDEE. Certain triggers are excluded by CJA 2009: Things done and/or said which amount to sexual infidelity cannot on their own be a qualifying trigger: s.55(6), but they can be used to explain the context of other qualifying triggers: CLINTON Also excluded under s.55(6) are situations where D has encouraged either fear of violence or the thing done or said in order to have the excuse to use violence: DAWES

Loss of Control Continued...

Whichever qualifying trigger is relied on, it must be that a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have acted in the same or similar way to D. Circumstances which only relate to D's general capacity to exercise tolerance and self-restraint are to be disregarded: s.54(3)

Diminished Responsibility

Introduced by the HOMICIDE ACT 1957. Set out in s.2(1) HOMICIDE ACT 1957, as amended by the CORONERS AND JUSTICE ACT 2009. D must have suffered from an abnormality of mental functioning which: Arose from a recognised medical condition; and Substantially impaired D's ability to: Understand the nature of his conduct; or Form a rational judgement; or  Exercise self-control; and Provides an explanation for D's conduct in doing or being a party to the killing. When D raises this special and partial defence, the burden is on D to prove it on the balance of probabilities. D must have suffered from an abnormality of mental functioning: BYRNE.

D's abnormality of mental functioning must be caused by a recognised medical condition. This covers psychological conditions such as: Severe depression Paranoia Delusions Schizophrenia Severe learning difficulties Battered Woman's Syndrome (BWS) Alcohol Dependency Syndrome (ADS) - depends on the nature and extent of ADS (STEWART) It also covers any physical condition which affects mental functioning such as: Epilepsy  Sleep disorders Diabetes There must be medical evidence given at trial to prove this.

Diminished Responsibility Continued...

D's abnormality of mental functioning must have substantially impaired D's ability to: Understand the nature of his conduct; or  Form a rational judgement; or Exercise self-control. The impairment need not be total but must be more than trivial: LLOYD.

D must prove that his abnormality of mental functioning provides an explanation for his conduct in doing or being a party to the killing. Since the CJA 2009, there must be a causal connection between the abnormality of mental functioning and the killing. Abnormality of mental functioning need not be the only factor, but it must be a significant factor. Voluntary intoxication alone is not capable of establishing the defence of diminished responsibility: DOWDS/DIETSCHMANN

Involuntary Manslaughter

Involuntary manslaughter is an unlawful killing where D does not have the intention to kill or cause GBH. This distinguishes the offence from murder and voluntary manslaughter. Involuntary manslaughter carries a discretionary life sentence. 

There are three ways of committing involuntary manslaughter: Unlawful and dangerous act manslaughter (UDAM) Gross negligence manslaughter Subjective recklessness manslaughter (not relevant to AQA course)

Unlawful and Dangerous Act Manslaughter

Unlawful and dangerous act manslaughter is also called constructive manslaughter because liability for death is built up or constructed from D doing a dangerous and unlawful act which caused the death of V. This makes D liable, even though he did not realise that death or injury might occur. The elements of unlawful act manslaughter: D must do an unlawful act; and  The unlawful act was dangerous; and  The unlawful act caused V's death; and  D had the required mens rea for the unlawful act.  D must do an unlawful act. The unlawful act must be a crime: LAMB An omission is insufficient: LOWED's unlawful act need not be aimed at V or even at a person, it could be aimed at property: GOODFELLOW 

The unlawful act must be dangerous on an objective test: CHURCH states a reasonable man must foresee a risk of some harm to another person resulting from the unlawful act.  It does not matter than D did not realise there was any risk of harm to another person. Where a reasonable man would be aware of V's frailty and the risk of physical harm by shock to him, then the unlawful act will be dangerous: WATSON The unlawful act must be both a cause in fact and law of V's death. If there's an intervening act which breaks the chain of causation, then D cannot be liable for the unlawful and dangerous act manslaughter. There can be problems in cases where D supplies V with an illegal drug (administering a noxious substance)Where D injected V and V dies, D can be convicted of UDAM as D was more than a minimal cause of death: CATOWhere D prepared the injection and V injected himself, D has not caused the death: KENNNEDY If V is vulnerable, this is unlikely to break the chain of causation.

UDAM Continued...

It must be proved that D has the mens rea of the unlawful act, e.g. if the unlawful act is a battery, there must be intention or recklessness as to applying unlawful force to V: VENNAIt is not necessary for D to realise that the act is unlawful or dangerous.

Gross Negligence Manslaughter

Gross negligence manslaughter is different from unlawful and dangerous act manslaughter in that D must owe V a duty of care and then breach that duty in a very negligent way, causing V's death. It can be committed by an act or omission, which does not have to be unlawful. The leading case of GNM is ADOMAKOAccording to the House of Lords in ADOMAKO, the elements of gross negligence manslaughter which have to be proved by the prosecution are: D must owe V a duty of care; and  D, by his act or omission, breached the duty of care; and  D's negligence must have caused V's death; and  There was a serious and obvious risk of death in the circumstances; and  D's negligence was gross. 

D must owe a duty of care.The ordinary principles of negligence in civil law are used to determine this. A duty of care is owed to persons who are so closely and directly affected by D's conduct that D ought to have them in contemplation when D acted or omitted to act: DONOGHUE v STEVENSON A duty of care is owed by a doctor to his patient: ADOMAKO D owes a duty of care where he clearly assumes a duty of care, despite the V being a party to an illegal act: WACKER D owes a duty where he contributed to a state of affairs which he knew or ought to reasonably have known was life-threatening: EVANS Where D's omission causes V's death, the prosecution may seek to rely on the criminal law of omission to establish a duty. 

Gross Negligence Manslaughter Continued

D must, by his act or omission, breach the duty of care. This will be so where D fails to reach the standard of care expected of the reasonable person in the same circumstances: ADOMAKOWhere D holds themselves out as possessing a certain skill, a higher standard of care than that of the average person is expected. E.g. if D is a doctor, he will be judged against the standards expected from a  reasonably competent doctor. D's negligence must be both a cause in fact and law of V's death. If there's an intervening act which breaks the chain of causation, then D cannot be liable for gross negligence manslaughter. 

There must be a serious and obvious risk of death in the circumstances. The circumstances must be such that a reasonable person would have foreseen a serious and obvious risk of death: MISRAD's negligence must be gross. The jury must consider whether, having regard to the risk of death, D's conduct was so bad in all the circumstances as to amount to a criminal act or omission: ADOMAKO

Self-Defence/Prevention of a Crime

There is a common law defence of self-defence/defence of another. It is a complete defence and D will be acquitted if successful. The right of private defence is the right to use force in defence of oneself or another against an unjustifiable attack. There is a statutory defence of prevention of a crime under s.3 CRIMINAL LAW ACT 1967. It is a complete defence and D will be acquitted if it succeeds. The right of public defence is the right to use force in the public interest to either prevent crime to lawfully arrest someone. Private and public defence is a general defence to any crime of which the use of force is an element. When D raises either defence, the burden is on the prosecution to disprove it beyond reasonable doubt.There are two main points to be decided for both defences: Was the use of force necessary? If so, then; Was the amount of force used reasonable in the circumstances?

D's use of force must have been necessary in the circumstances as D believed them to be. This is a question of fact for the jury to decide. D is not under a duty to retreat if faced with a threat from another. The possibility of retreat is merely a relevant factor to determine whether the force was necessary: s.76 (6) (a) of the CJIA 2008. If the attacker is running away, it is highly unlikely the force will be considered necessary: HUSSAIN AND ANOTHER.  D does not have to wait to be attacked. He can make a pre-emptive strike or make preparations if he apprehends an attack: ATTORNEY-GENERAL'S REFERENCE (NO.2 of 1983).  If D genuinely made a mistake about being threatened or needing to act to prevent a crime, he is judged on the facts as he believed them to be, even if the mistake was unreasonable: s.76 (3) CJIA 2008: WILLIAMS (GLADSTONE) A mistaken belief caused by D's voluntary intoxication is not sufficient: s.76 (5) CJIA 2008: O'GRADY

Self-Defence/Prevention of Crime Cont...

The amount of force used by D must be reasonable in the circumstances as D believed them to be. This is a question of fact for the jury to decide. In householder cases, the degree of force used against a burglar will be unreasonable if it is grossly disproportionate: s.76 (5) (a) CJIA 2008.  In all other cases, the degree of force used will not be reasonable if it was disproportionate: s.76 (6) CJIA 2008 D may not be able to weigh up to a nicety the exact measure of any necessary action: s.76 (7) (a) CJIA 2008 Where D only did what he honestly and instinctively though was necessary is strong evidence that only reasonable action was taken: s.76 (7) (b) CJIA 2008

If D genuinely made a mistake about the degree of force to use in self-defence or prevention of crime, he is to be judged on the facts as he believed them to be, even if the mistake was unreasonable: s.76 (3) CJIA 2008 The amount of force D uses must not be excessive: MARTIN In deciding whether the degree of force used by D was reasonable in the circumstances, the court must ignore any psychiatric condition that might cause D to perceive much greater danger than the average man: MARTIN 

Intoxication

The defence covers intoxication by alcohol, drugs or other substances, such as glue-sniffing. Intoxication rarely succeeds as a defence but may do if it negates D's mens rea.  Intoxication is a general defence and D will be acquitted if it succeeds. When D raises the defence, the burden is on the prosecution to prove beyond reasonable doubt that D still had the necessary mens rea. Whether D can use the defence depends on: Whether the intoxication was voluntary or involuntary; Whether the offence charged is one of specific or basic intent.  The distinction between specific and basic intent crimes was made in DPP v MAJEWSKI: Specific - requires intention Basic - requires recklessness

Voluntary intoxication is where D has chosen to take the intoxicating substance. It can also occur where D knows the effect of a prescribed drug will be to make them intoxicated.Involuntary intoxication is where D did not know he was taking an intoxicating substance, e.g. a spiked drink or a drug has the unexpected effect of making D intoxicated. Where D is voluntarily intoxicated, D will have a defence to a specific intent crime provided the mens rea is negated: SHEEHAN AND MOOREWhere D has the mens rea depsite his voluntary intoxication, he has no defence: A-G FOR NORTHERN IRELAND v GALLAGHERWhere the offence charged is basic intent, voluntary intoxication is not a defence as D is reckless in becoming intoxicated: DPP v MAJEWSKI

Intoxication Continued...

Involuntary intoxication will not provide a defence if D had the necessary mens rea, even if D would not have committed the offence without the intoxication lowering his resistance to committing the offence: KINGSTONWhere D did not have the necessary mens rea due to his involuntary intoxication: He will not be guilty of a specific intent crime.  He will not be guilty of a basic intent crime as he has not been reckless in becoming intoxicated: HARDIE/LIPMAN

Consent

Consent can be a defence to all non-fatal offences against the person. It may be a defence to unlawful and dangerous act manslaughter: SLINGSBY.Consent is never a defence to murder: PRETTY v DPP When D raises the general defence, the burden is on the prosecution to disprove it beyond reasonable doubt. Express consent it where V clearly says that they are willing to consent to a potential injury. Implied consent can be inferred from V's actions or a situation, so that D does not commit battery. Implied consent is given to the ordinary jostling of everyday life: COLLINS v WILCOCK.Whether the defence is allowed depends on the level of injury. Consent is readily available for assaults and battery. However, where there is an injury, it is not a defence unless it is one of the exceptions in ATTORNEY-GENERAL'S REFERENCE (No.6 of 1980).

The courts have recognised the following as public policy exceptions where consent is a defence even if injury is caused: Properly conducted games or sports Tattooing and body piercing Horseplay Reasonable surgical interference  Dangerous exhibitions (circus acts) In contact sports, if the contact is sufficiently late, it is possible for an offence to be committed: BARNESMentally capable adults can consent to reasonable medical treatment. Where V is unconscious, doctors can rely on implied consent for emergency treatment.Tattooing and body piercing is accepted as body adornment: WILSONConsent can be a defence where V has been injured through 'rough horseplay': JONES AND OTHERS

Consent Continued...

If D deliberately inflicts injury for sexual gratification, there is no consent: BROWN AND OTHERS To be legally capable of giving valid consent, V must be mentally sound and not a child. However, a child can consent to medical treatment if they have the necessary maturity and understanding to do so: GILLICK v WEST NORFOLK AND WISBECK AREA HEALTH AUTHORITY

Insanity

The rules on insanity are based on M'NAUGHTEN. There are three elements that have to be proven by D on the balance of probabilities: At the time of committing the act, D has a defect of reasoning This defect of reasoning was the result of a disease of the mind This defect of reason caused D not to know the nature and quality of his act, or not to know he was doing wrong.  Where D is found to be insane, the special verdict is 'not guilty by reason of insanity'. A defect of reason means that D was unable to reason at the time he acted. Temporary absent-mindedness or confusion is not enough: CLARKE

The defect of reason must be the result of a disease of the mind. This is a legal term decided by the judge, not a doctor.  The disease can be a mental disease: SULLIVAN The disease can be a physical disease which affects the mind, e.g. brain tumours: KEMP/ SULLIVAN  Where D's defect of reason was the result of an internal factor, then it is a disease of the mind: HENNESSY/ BURGESS The defence of insanity is limited in it's availability in that D must not know the nature and quality of his act, or know that he was doing wrong.  D not knowing the nature and quality means D was temporarily unconscious at the time or did not know what he was doing: KEMP/ SULLIVAN/ HENNESSEY/ BURGESS.  Where D knows the nature and quality, he can still use the defence if he did not know what he was doing was legally wrong. If he knows, he has no defence, even if he is suffering from a mental illness: WINDLE

Automatism

There are two types of automatism: Insane automatism (last slide) Non-insane automatism If successful, the defence of insanity leads to the special verdict 'not guilty by reason of insanity' and automatism leads to an acquittal. When D raises the general defence, the burden is on the prosecution to disprove it beyond reasonable doubt.D must have no voluntary control over his actions: ATTORNEY-GENERAL'S REFERENCE (No. 2 of 1992)D's automatic state must be caused by an external factor: A blow to the head An attack by a swarm of bees Sneezing and hypnotism The effect of a drug: QUICK 

Self-induced automatism is where D knows his conduct is likely to bring on an automatic state.  If D has been reckless in getting into an automatic state, self-induced automatism cannot be a defence: BAILEY  Where the self-induced automatic state is caused by voluntary intoxication, D cannot use the defence of automatism. This is because D is seen as reckless in getting intoxicated so has the mens rea for the basic intent offence: DPP v MAJEWSKI If the offence is specific intent, self-induced automatism can be a defence if D lacked the mens rea.