Criminal 7 Non-Fatal Offences and Intoxication

Assault

When the victim anticipates the defendant will use violence against the,

Actus Reus of Assault

Causing the victim to apprehend immediate and unlawful personal violence

Mens Rea of Assault

Intentionally or recklessly causing the victim to apprehend immediate and unlawful personal violence

Fagan v Metropolitan Police Commissioner

Defines assault at common law

Assault - Apprehension

Means to make the victim expect or anticipate but not necessarily fear immediate and unlawful personal violence

R v Ireland

Words alone/ silence are enough to create apprehension of assault

Tuberville v Savage

Words can negate apprehension of an assault

R v Lamb

Defendnat must cause the victim to beleive they can and will carry out the threat of force

Logdon v DPP

For assault, If the victim is caused to apprehend such a threat, it is irrelevant that the defendant does not in fact have the means to carry out that threat

Assault - Immediacy

Victim must believe violence will be immediate

R v Constanza

For assault, Immediate was held to mean apprehension of personal violence at some time, not excluding the immediate future

Assault - Personal Violence

The victim must apprehend physical violence

R v Savage

subjective recklessness must be established for any assault charge based on recklessness

Battery, s39 Criminal Justice 1988

Defendant touches the victim in an unwanted fashion

Battery - Application

Battery can be inflicted: directly, indirectly or by omission

R v Santana Bermudez

Battery was inflicted by omission

Collins v Wilcock

For battery, consent can be expressed or implied consent in inevitable everyday contact i.e. on the tub

Battery - Force

Means the merest touch and doesn’t have to be rude, hostile or aggressive (Faulkner v Talbot)

R v Thomas

For battery, touching someone’s clothes is equivalent to touching them

R v Martin

Battery can be applied indirectly i.e. digging a hole and the victim falls into it

Mens Rea for Battery

Intention or recklessness as to applying unlawful force on another person

Assault occasioning actual bodily harm, OAPA 1861, s47

Imprisonment shall be for a term not exceeding five years

DPP v Little

For assault occasioning actual bodily harm, there must first be an assault or battery

Occasioning for Actual Bodily Harm

Usual rules of causation apply: Factual and Legal Causation

T v DPP

A momentary loss of consciousness can amount to actual bodily harm

DPP v Smith

Cutting someone’s hair without consent can amount to actual bodily harm

Mens Rea for Actual Bodily Harm

Only the mens rea for the assault/ battery is required

Malicious Wounding or Inflicting Grievous Bodily Harm, OAPA 1861, s20

Whoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of an offence

Actus Reus for Malicious Wounding or inflicting GBH

Wound or inflict GBH

Mens Rea for Malicious Wounding or Inflicting GBH

Defendant must intend or be reckless as to the causing of some harm

C (a minor) v Eisenhower

Rupturing blood vessels under the skin did not amount to a wound as it had not actually broken the skin

R v Burstow

Psychological injury can amount to GBH but will need to be proved by expert evidence

DPP v Saunders

GBH simply means serious harm

R v Bollom

To determine GBH, the court should consider:

* The effect of the injuries on the victim
* Victim’s age and health
* The totality of the injuries

Mens Rea for Wounding or Causing GBH

Defendant must intend to or be reckless as to causing some harm

Wounding or Causing GBH with Intent, OAPA 1861, s18

Whosoever shall unlawfully and maliciously, by any means whatsoever, wound or cause grievous bodily harm to any person with intent to do some grievous bodily harm to any person, shall be guilty of an offence

Mens Rea for Wounding or GBH with Intent

Defendant must intend to cause GBH, recklessness is not enough

Examples of Actual Bodily Harm

* Temporary loss of sensory function
* Temporary loss of consciousness
* Extensive bruising
* Cutting hair without consent
* Minor fractures
* Psychiatric injury that is more than trivial

Examples of GBH

* Permanent loss of sensory function
* Permanent disability
* Broken bones
* Fractured skull
* Substantial blood loss

How intoxication negates the Mens Rea

Allows the defendant to show that their intoxication prevented them from forming the necessary mens rea

R v Woolmington

The prosecution need to prove beyond reasonable doubt that the defendant has committed the actus reus with the necessary mens rea

R v Kingston

If the prosecution can prove that the defendant formed the necessary mens rea despite their intoxication, intoxication will not assist the defendant

Basic Intent

Intent and Recklessness

Specific Intent

Just intent, not recklessness

Questions to ask where intoxication may negate the mens rea

1. Is the defendant voluntarily intoxicated or involuntarily intoxicated? 


2. Is the intoxicant a dangerous alcohol or drug or a non-dangerous drug? 


3. Is it a crime of basic intent or specific intent? 

R v Allen

Whether defendant is aware that they are drinking alcohol with his mistaken as to the strength of the alcohol, this will not count as involuntary intoxication

DPP v Majewski

Voluntary intoxication is not a defence to the charge of basic intent

R v Coley, McGhee and Harris

For voluntary intoxication, the jury must consider whether the defendant would have seen the risk if they had not been intoxicated

R v Hardie

Drugs are divided into dangerous and non-dangerous drugs

Dangerous Drugs

Drugs known to cause the taker to become aggressive or do dangerous/ unpredictable things including Illegal Drugs and Alcohol

Non-Dangerous Drugs

Drugs not known to cause a taker to do dangerous things

Intoxication and Self-Defence

If a defendant makes a drunken mistake as to the need to use self defence, they cannot rely on that mistake

Intoxication and Loss of Control/ Diminished Responsibility

Can be used together

The Normal Person Test for Loss of Control

Would the normal person lose self-control as a result of the fear/anger qualifying trigger?

R v Asmelash

If the defendant is addicted to drugs/alcohol, this will be considered a characteristic of a normal person but they will still have normal levels of self-restraint and be sober

R v Downs

Voluntary intoxication is not on its own capable of being relied upon to found the defence of diminished responsibility

R v Dietschmann

Diminished Responsibility and Intoxication will only work if there is an abnormality of mental functioning and is voluntary intoxicated

R v Richardson and Irwin

If the jury are satisfied, that the victim consented to the accidental infliction of the injury, or the defendant even wrongly believed that the victim consented due to their intoxication that offended may have a defence

Intoxication and Statutory Defences (Jaggard v Dickinson)

Where a statutory defence allows for an honest belief, the defendant will be able to use this defence even if their belief is due to voluntary intoxication