Offences Against the Person - ILAC

Assault - CJA 1988 s.39 : p.152
1. AR
  1. MR
    1. Intended, apprehension of immediate and unlawful force
      1. Subjectively reckless in creation of apprehension
        Savage v Parmenter - subjective recklessness
  2. Any act including words
    1. V apprehends unlawful force
      1. Immediate application
        Immediacy requirement leaves a gap in the law
      2. No need to fear just expect
  3. R v Constanza - words alone
  4. R v Ireland and Burstow - silent phone calls
  5. Tuberville v Savage - words can prevent assault
  6. Chambers v DPP - joke = lacks MR
  7. Smith v Chief Superintendant, Woking Police Station - immediacy
Battery - CJA 1988 s.39 : p.152
1. AR
  1. MR
    1. Intention or subjective recklessness of application
  2. Application of unlawful force
    1. ANY physical contact
      1. No need to prove harm or pain
2. Haystead v DPP - transferred battery
3. R v Thomas - Touching clothes sufficient
4. R v Braham - even if affectionate in the mind of D
5. Fagan v Metroploitan Police Commissioner - indirect force
Both Assault and Battery defined by common law not act - no clear statutory definition
1. Leads to real problems differentiating between assault/battery and ABH despite drastic sentencing differences
ABH - OAPA 1861 s.47 : p.8
1. Developed by common law not act
2. AR
  1. Same as assault and battery but that it led to ABH
  2. MR
    1. Same as assault or battery
      1. R v Roberts - no additional MR required
        mens rea of battery sufficient
      2. Savage and Parmenter - no intent of outcome not applicable due to intention to apply unlawful force
3. Wide interpretation
  1. R v Miller - hurt or injury interfering with health or comfort
    1. DPP v Smith - cutting hair counted as harm or damage
    2. also allowed psychological/psychiatric harm
    3. R v Cox (paul) - can be used in stalking
  2. R v Chan-Fook - injury should not be trivial/insignificant
    1. R v Donovan - more than 'trifling and transient'
    2. R v D - must be clinically recognisable psychiatric injury - NOT CONVICTED
4. Definitions of more serious OATP are dated and confusing such as assault occasioning and malicious
  1. Also overlap between ABH and GBH may be unclear
GBH - OAPA 1861 s.20 : p.5
1. GBH w/Intent - s.18 : p.5
  1. Woolin - oblique intent/subjective. Concerned with whether D foresaw the degree of probability of the result occuring from his actions.
    1. 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
      1. Requires proof of GBH or wounding
        Must have intention not just recklessness
      2. Life sentence
    2. Majewski - Distinction between crimes of specific and basic intent
      1. 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
  2. AR
    1. MR
      1. 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
      2. Needs more serious MR but sentence leaps from 5 years to life! However intent to GBH can be murder if V died
    2. Prosecution has to prove GBH or wounding
2. with or without weapon
3. AR
  1. Prosecution has to prove D inflicted GBH or wounded V
    1. C v Eisenhower - Wounding requires breaking of skin - NOT CONVICTED
  2. DPP v Smith - GBH = 'really serious harm'
    1. R v Saunders - no difference between serious and really serious
      1. 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
  3. R v Bollom - Court can take into consideration, characteristics, age and health of V
    1. R v Wilson - assault not necessary, only force being violently applied causing GBH
      1. 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
4. key word - 'maliciously'
  1. MR
  2. Cunningham - malicously meant intentionally or recklessly and reckless means subjective reckless. This is always used to prove recklessness
  3. Mowatt - D need not intend /recklessly cause GBH or wounding they merely needed intent/recklessness to cause some form of physical harm
    1. DPP v A - D is only required to have forseen that some harm MIGHT occur
      1. 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
1. Protection from Harassment Act 1997 - Stalking was not an offence until 2012
  1. Baker - harassment may occur either continuously or intermittently but an incident relied upon must have occured within the 6 month limitation period
    1. Kellett - harassment to telephone a person's employer to allege they are pursuing their own activities in works time
      1. 2013 - Kent Police's 1st successful stalking conviction - sentence was described as a deterrent and shows victims it is there to protect them
  2. 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.
    1. 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.
      1. 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.
    2. 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.
2. Defences
  1. 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
    1. 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
    2. 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
3. Issues
  1. There is already an offence of causing harassment, alarm or distress (...) Public Order Act 1986 - s.4A
    1. 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.

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Offences Against the Person - ILAC

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