Criminal Law: Non-Fatal Offences

These flashcards address key concepts related to non-fatal offences against the person in criminal law, including definitions, elements of various offences, and the role of consent.

What are the non-fatal offences against the person?

• Assault

• Battery

• Assault occasioning ABH (s 47)

• Maliciously inflicting GBH (s 20)

• Wounding or causing GBH with intent (s 18)

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What constitutes assault?

Actus reus: An act causing another to apprehend immediate and unlawful personal violence (Fagan 1969)

• Words may satisfy the actus reus (Ireland 1998)

• It must be possible for the violence to be apprehended in the immediate future (Constanza 1997, Ireland 1998)

• Violence must be unlawful and without consent.

Mens rea: Intentionally or recklessly causing V to apprehend immediate unlawful personal violence (Savage 1992)

What is the actus reus of battery?

Actus reus: Direct or indirect unlawful application of force (Fagan 1969)

Acts include:

• Touching without consent and lawful excuse suffices without any need for hostility (Faulkner v Talbot 1982). This includes touching another’s clothes because it’s the equivalent of touching the person (Thomas 1985).

• Spitting on someone (Smith 1866)

• Applying force through another object like a car (Fagan 1969)

• Throwing a drink (Savage 1992)

• Causing a mother to drop her baby (Haystead 2000)

• Pouring a dangerous substance into a machine which harms the next user (DPP v K 1990)

May also be committed by omission

• Where D fails to remove a dangerous object when being searched (DPP v Satanana Bermudez 2003)

Exception:

• Physical contacts of ordinary life due to implicit consent (Collins v Wilcock 1984)

What is the mens rea of battery?

Mens rea: Intentionally or recklessly applying force (R v Venna 1976)

What is the actus reus of assault occasioning ABH (s47 OAPA 1861)?

Actus reus: Includes assault or battery causing actual bodily harm.

• ABH is any hurt or injury calculated to interfere with the health or comfort of a person, which must be more than merely transient and trifling (although not permanent) (R v Donovan 1934)

This includes:

• Cutting a substantial amount of hair (DPP v Smith 2006)

• Temporary loss of consciousness (T v. DPP 2003)

• Clinically recognised psychiatric injury with provision of expert evidence (Ireland and Burstow 1998)

ABH does not include mere emotions or states of mind that are not evidence of some identifiable clinical condition (R. v Mike Chan-Fook 1994)

What mens rea is required for assault occasioning ABH (s 47 OAPA 1861)?

Mens rea: the mens rea of the base offence of assault or battery.

• There is no corresponding mens rea with respect to ABH, making it an offence of constructive liability (R v Savage and Parmenter 1992)

What is the maximum sentence for s47 offence?

5 years

What is the actus reus of maliciously wounding or inflicting GBH (s20 OAPA 1861)?

Actus reus: Wounding

• “a wound is … a break in the continuity of the whole skin.” (C v Eisenhower 1984)

• “It is not enough that there has been a rupturing of a blood vessel or vessels internally for there to be a wound” (C v Eisenhower 1984)

Actus reus: Inflicting GBH

• Inflict means cause and for practical purposes there is no difference between these two words (Lord Hope). It would be absurd to differentiate between s18 and 20 due to difference in verb (Lord Steyn: Ireland and Burstow)

• GBH = “really serious harm” (DPP v Smith 1961)

• Totality of injuries as well as their impact on V given their age and health should be taken into account (Bollom 2003)

• GBH includes serious psychiatric harm (Ireland) and disease transmission (Dica 2004 - HIV; Golding 2014 - herpes)

With or without any weapon or instrument

What is the mens rea for the s20 offence?

Mens rea: maliciously refers to intention or recklessness as to causing “some physical harm to some person, albeit of a minor character” (Savage and Parmenter 1992)

• Cunningham recklessness is used

What is the maximum sentence for a s20 offence?

5 years, despite s20 being considered a more serious offence.

What is the actus reus of wounding or causing GBH with intent (s18 OAPA 1861)?

Actus reus: Wounding or causing GBH

What is the mens rea of a s18 offence?

Mens rea: intent to cause GBH

Mens rea: intent to resist or prevent lawful apprehension or detainer of another person

What are the possible ways of committing a s18 offence?

1. Maliciously wounding with intent to cause GBH

   • ulterior mens rea goes beyond the actus reus of wounding: D may be liable even if a minor wound is caused, making this a constructive liability offence

2. Maliciously causing GBH with intent to cause GBH

   • complete correspondence between actus reus and mens rea

3. Maliciously wounding with intent to resist or prevent lawful apprehension

   • maliciously does work here: intention or recklessness to wound (Morrison 1989)

   • ulterior mens rea to resist/prevent

4. Maliciously causing GBH with intent to resist or prevent lawful apprehension

   • maliciously does work here: intention or recklessness to the risk of GBH (Morrison) or intention or recklessness to the risk of some harm (Mowatt 1968; Savage and Parmenter 1992)

   • ulterior mens rea to resist/prevent

What is the legal principle of consent in the context of non-fatal offences?

Consent precludes liability for assault and battery but is irrelevant if V suffers actual bodily harm or worse unless the activity falls within an exceptional category of lawful activities (Brown 1994). English law starts from a paternalistic view, taking into account personal liberty and autonomy when there are counterbalancing reasons to exclude consent. This is because it is not in the public interest that people should cause each other ABH or more for no good reason, whether publicly or privately (A-G’s Reference (No 6 of 1980) 1981).

Should consent to harm negate criminal liability?

Rationale for criminalising non-fatal offences is to protect bodily safety and bodily autonomy.

• Liberalism and the Harm Principle: presumption of autonomy to consent to any harm (Feinberg)

• Legal Paternalism: law should interfere to prevent people form harming themselves to protect and enhance a person’s welfare/’for their own good’

• Legal Moralism: advocates that criminal law should be concerned with immorality of conduct and consent is irrelevant if what V consents to is immoral.

Public Interest includes consideration of all of the above, undertaking a balancing exercise.

Which exceptional categories allow for consent to actual bodily harm or worse?

1. Sports (including boxing)

   Barnes [2005]: D charged with s20 for tackling and seriously injuring V during amateur football match.

What if, in applying consensual force, D accidentally caused harm they did not foresee nor intend?

Slingsby [1995]

Meachen [2006] D claimed they did not foresee the risk of any harm during consensual sexual activity.

“if the touching was with consent, then the fact that in the course of the consensual activity some bodily injury, even serious bodily injury, resulted accidentally and unintentionally, then as matter of principle no criminality can attach.”

What is the liberal position regarding consent and harm?

Individuals should have the autonomy to consent to harm, as the law should not prevent persons from harming themselves.

What principle can allow D to be liable for a greater harm than intended?

Constructive liability allows D to be responsible for a higher level of harm despite having a lower mens rea.

What is the correspondence principle in criminal law?

The mental element must correspond with the prohibited consequence in question.

Explain the relevant conditions for V's consent to be considered valid.

V must have the capacity to consent, sufficient information, and consent must not be vitiated by duress or deception.