Become Premium to read the whole document. Non-Fatal Offences Against the Person Act 1997 - Revised Acts 7. Non-fatal offences against the person - ResearchGate Do you think that a person should be held criminally liable for the There needs to be serious harm in order for conviction 315-335, 350-371, 374-398, 400- This module is also part of. Indeed, the practice of this sport has very serious implications for boxers health, both at the time and in later life. He was outside and could not get to her without making his way inside. For example, in football the aim is to score goals in your opponents net and defend your own goal, and in doing that there is necessarily a degree of physical contact which may result in injury. In this case the defendant made a series of silent phone calls to his victim causing them to fear immediate force and leading them to suffer severe psychological damage as a result of his on-going calls. These are seen as in the public interest due to their cultural importance and long standing tradition. PDF Oxford Cambridge and RSA Tuesday 14 May 2019 - Afternoon No additional mens rea is required for this offence. Non-fatal Offences Against The Person The main offences are set out in the Offences against the Person Act 1861 (OAPA). The mens rea is intention or recklessness as to whether the victim fears immediate unlawful force. Drawing on your knowledge of the general principles of criminal law, discuss the extent to which you agree with this statement. Furthermore, the authority case for the mens rea is Venna[19] which required proof of the defendants intention to apply the unlawful force in an intentional or reckless way. Whether a greenhouse standing by its own weight was included in a conveyance because it was to be defined as a building Land law has and always will be of great importance to people, for a start; we all need somewhere to live. They sought to rely on the consent of the victims of these offences as a Ireland established that ABH can encompass psychiatric harm such as depression, anxiety, or nervous shock, however Chan Fook has clarified that this does not go as far as including distressing emotions or any state of mind which does not amount to a recognised clinical condition. Diplock LJ said in Mowatt[29]: Its enough that D should have foreseen that some physical harm to some person, albeit of a minor character, might occur.[30] Moreover, Wilson[31] and Dica[32] overruled that case of Clarence and established that an assault was not a prerequisite for section 20. Without this it would be very difficult to have a functioning society. Do you have a 2:1 degree or higher? Is there an area above a certain level of harm where you cannot consent to The actus reus of assault is causing a person to apprehend the immediate application of unlawful force. Conversely a sore arm would be neither permanent or significant. For example, 'John hits Fred causing Fred to suffer a fractured skull'. Did they have the freedom to choose not to have it done as Is this apprehension of immediate force? Are courts creating a new exception? Non-fatal offences against the person encompass a range of offences where a person is caused some harm but the harm does not result in death. At trial the defendant argued there was no assault as the force apprehended was not immediate. Should the courts do more to protect these people or is this justified as being a core part of public culture worth protecting? Criticisms of non-fatal offences against the person - e-lawresources.co.uk [30] Leonard Jason-Loyd. o Here, Nikki asks to brand Chris rather than Chris asking to get Was seen as dehumanising The Law Commission in Legislating the Criminal Code: Offences Against the Person and General Principles criticised NFOAPs on three main issues: firstly the language used is complicated, obscure and out dated, secondly the structure of the offences and thirdly the Law Commission was critical of the effectiveness of the current law on NFOAPs. off and so David invites Jason to join them. The point that can seemingly be taken from the presiding case law is that, in cases where the victims have no way of knowing what might happen, immediacy is satisfied. However, if they have been In the last few moments of the game the score is 0-0 and Tim spots an opportunity to win the ball just outside the penalty box of the other team. The actus reus of battery is any touching or application of the defendant of unlawful personal force such as a push or a kiss. Jack is afraid by this and says nothing, quietly resuming work. Consent can be implied in other situations too. This is where the fraud leads the person to believe that the act is being carried out is one thing when it is in fact something entirely different. Only guilty if reckless know there is a risk is the case here as he knows o Conviction was quashed. Appellants actions were unpredictably dangerous so the victims couldnt be The actus reus is the objective requirement necessary to constitute the offence. R v Elbekkay [1995] Crim LP 163 confirms that fraud as to the identity of the person will vitiate consent, however it must be the identity of the person that is the subject of the fraud, not the identity of their attributes. Non-fatal Offences Against the Person Example Questions Questions on the topic of Non-fatal offences from the OAPA 1861 University University of Birmingham Module Criminal Law (08 21212) 331 Documents Academic year:2017/2018 Helpful? Imagine a domino effect. <> In this case the appellants were a group of SM who had consensual violent sex acts Texted the to tell them they have HIV now so shows his intentions. For this reason, the actus reus is commonly defined as an act, which professor John Austin added that must be voluntary, committed in legally relevant situations and (for result crimes) causing the unlawful result[2]. As Peter appears to suffer mild depression as a result of this receiving this letter the relevant offence would be that of assault occasioning actual bodily harm (s.47 Offences Against the Person Act 1861). her to brand her date of birth onto his back. For example, in the case of R v Clarence (1889) 22 QB 23,the defendant had sexual intercourse with his wife knowing that he was infected with gonorrhoea. For the victim's consent to be valid it must be an informed consent. Finally, Constanza[13] held that the victim can suffer a fear of violence at some time without excluding the immediate future[14]. endobj Sample Question Paper . It can be properly explained then that only sexual activity that is not inherently violent in nature is can subject to consent. You must make sure the victim is not dead. He finds it sexually stimulating though so gains pleasure from the changed). Prostitution/sex worker/one night stand When dealing with a particular crime, not only the circumstances should be considered but also the type of crime that has been committed. ), Principles of Anatomy and Physiology (Gerard J. Tortora; Bryan H. Derrickson), Commercial Law (Eric Baskind; Greg Osborne; Lee Roach), Public law (Mark Elliot and Robert Thomas), Marketing Metrics (Phillip E. Pfeifer; David J. Reibstein; Paul W. Farris; Neil T. Bendle), Introductory Econometrics for Finance (Chris Brooks), Rang & Dale's Pharmacology (Humphrey P. Rang; James M. Ritter; Rod J. Furthermore, an important rule in criminal law is the principle of correspondence which means that mens rea must exist in relation to the actus reus. The prosecution, will likely assert that Aisling's words constituted an assault to Charles. (d) Within the common law. Both (Name) would be criminally liable for: (a) an assault under section 39 Criminal Justice Act 1988 AND/OR (b) a battery under section 39 Criminal Justice Act 1988 OR For example, Im going to hit you does not need to be accompanied by any action for an assault to occur. o The defendant had sexual intercourse with his wife knowing that he Section 47 of the OAPA 1861 refers to the offence of actual bodily harm or ABH. Chapter 5: Non-fatal offences against the person Problem question Problem question Read these two answers and assess what mark you think they should get and why, entering it into the box. 7 Advise how the law relating to non-fatal offences against the person will apply to Eric. View examples of our professional work here. For the purposes of exams however you will need to understand the constituent elements of and differentiate between both assault and battery. Moral outrage of what happened indulgence of cruelty infliction of pain Assault and battery are summary offences meaning that they will be tried at the magistrates court. Firstly, it is not necessary to prove that the defendant actually caused grievous bodily harm but that he at least caused a wound with intent to do it. Assault and Battery Lecture - LawTeacher.net 1 0 obj Flower; Graeme Henderson), Criminal Law (Robert Wilson; Peter Wolstenholme Young), Human Rights Law Directions (Howard Davis), Tort Law Directions (Vera Bermingham; Carol Brennan). [10] 7 Advise how the law relating to non-fatal offences against the person will apply to Stephanie. (Cavendish, 2003, 5th edn). - OAPA is a consolidation act and is illogical in how the offences are set out and includes many unrelated offences - OAPA is so old, some wording is dated. Copyright 2023 StudeerSnel B.V., Keizersgracht 424, 1016 GC Amsterdam, KVK: 56829787, BTW: NL852321363B01, Electric Machinery Fundamentals (Chapman Stephen J. However, Lord Bridge stated in Moloney[3] that this latter intention would only be necessary in exceptional circumstances. In the present context the word assault refers to what is properly known as a technical assault. This was the main statutory provision of the assault-related offences and they were ranked in some sort of hierarchy of seriousness in the terms of actus and mens rea. felt that it was okay for them to get involved For instance, the draft Bill of 1998 considers that instead of dividing common assault as assault or battery it should be named as threatened and physical assault. Plus, Read v Coker[11] showed that a conditional threat could also amount to an assault. opinion alter depending on the relationship of the people involved. x[ms6~deQn2Mri?w+m| _@8xcQ ^7}_F|8{}s~wgWRDyBX'EGE"^,N/>$cu.)8NW~I\?12c*YS+Wg It sounds obvious but be really careful to read the whole question before you start writing about non-fatal offences against the person. Vulnerability Therefore, the actus reus and mens rea for either of these qualifying offences must be established. Non-fatal offences against the person problem question assistance! If you muddle up the words it drastically changes the offence and you will lose marks! One Sunday afternoon, David, his friend Chris and Chriss girlfriend Nikki This chapter deals with non-fatal offences against the person, a variety of offences designed to criminalise behaviour ranging from the infliction of serious (non-fatal) injuries to potential . Shouldnt do as they are in a relationship The punishment for common assault is in s. 39 of the Criminal Justice Act 1998 which provides that they shall be summarily offences. Firstly, they wanted to replace the outmoded and unclear Victorian legislation with a much more modern and understandable one. We are guessing tnat he failed to disclose he had it. This Revised Act is an administrative consolidation of the Non-Fatal Offences Against the Person Act 1997. PDF H015/01 The legal system and criminal law Sample Question Paper Each of these offences requires both actus reus and mens rea to be established. sexually stimulating so gains pleasure from the experience. decide to go camping in the countryside. Case in focus: R v Richardson [1998] 2 CR App 200. These are assaults where no physical contact occurs. It is evident from the scenarios above that none of these involve a serious infliction of harm and are limited to situations that would, in absence of consent, realistically be charged as a common assault. Branding is like tattooing. still physical harm as your body has been harmed internally as a disease has You may be asked on when and how consent will operate or to produce a critique of the defence. If youre feeling confident then once you have done this you can have a go at producing an answer. of an offence under s20 of the Offences Against the Person Act 1861 as he is aware In contrast, DPP v Smith considered that grievous bodily harm means really serious bodily harm. Only if you actually know? A careful study of the facts shows us that he didnt. Tim goes to work on Monday morning furious as his his team has not done very well that week. In your opinion can the two rulings be reconciled? Common Assault (S39 CJA 1988) There are two ways of committing this : assault and battery. technical/psychic assault battery assault occasioning ABH (section 47 OAPA) malicious wounding (section 20 OAPA) Malicious wounding with intent (section 18 OAPA) Technical/psychic Assault - what does it never involve? Being reckless as to applying force can be a difficult concept, however as a basic example, consider a person is in an enclosed space and swinging their arms around wildly. Flower; Graeme Henderson), Criminal Law (Robert Wilson; Peter Wolstenholme Young), Human Rights Law Directions (Howard Davis), Tort Law Directions (Vera Bermingham; Carol Brennan), Questions on the topic of Non-fatal offences from the OAPA 1861. Question number or Title: Non-fatal offences against the person, as set out in the Offences Against the Person Act 1861, represents a ragbag of offences brought together form a wide variety of sources with no attempt, as the draftsman frankly acknowledged, to introduce consistency as to substance or as to form (Prof JC Smith, 1991). Possible s47 ABH liability? assault contrary to s 39 of the Criminal Justice Act 1988. battery contrary to s 39 of the Criminal Justice Act 1988. assault occasioning actual bodily harm contrary to s 47 OAPA. There is not an exact definition of what immediate has come to mean but the following case examples provide some insight. Applying. interest of others It does not matter whether the actual application of force was even possible, as long as the apprehension is caused. On the other hand, if someone can properly acknowledge the misbehaviour of an act and commits it anyways, he will be held liable. Have a look at this and try and use it to help you produce your own answer, or to check the answer you have already produced. It is important to note the distinction between apprehension and fear. endobj The Courts established two dominated views for intention. The actus reus of this offence has two requirements: there must be a common assault (either technical assault or battery) and it must occasion ABH. s.39 of the Criminal Justice Act 1988 sets out that the maximum sentence is six months imprisonment and/or a fine. Consider the implications allowing individuals to freely do this would have on general public morals, let alone the cost to the NHS in treating any injuries caused! For example, a world heavy weight boxer may be confronted by a particularly angry ex-girlfriend who raises her hand to slap him. Bachelor of Laws. Conviction was quashed. Once you have identified all three you need to break your answer down into subheadings and discuss each issue individually. and was convicted under s and s of the Offences Against the Mens rea: Tim is reckless as to whether force will be applied when going in for the late challenge. This is illustrated by the recent case of Chambers v DPP [2012] EWHC 2157 where the defendant took to Twitter to threaten to resort to terrorism and blow the airport sky high having become frustrated by his delayed flight! If you are the original writer of this essay and no longer wish to have your work published on LawTeacher.net then please: Our academic writing and marking services can help you! R v Brown [1994] 1 AC 212 Charged with Offences against the Person Act 1861 s. 47 and s. 20 following extreme sado-masochistic parties following 'operation spanner' Certified question: "Where A wounds or assaults B occasioning him actual bodily harm in the course of a sado-masochistic encounter, does the prosecution have to prove lack of consent on the part of B before they can . Take a look at some weird laws from around the world! module code + URN. uncivilised. (per Lord Templeman) First of all, the actus reus of technical assault is that the defendant must do something to make the victim apprehend imminent force. [10] 8* Discuss the problems with the offence of s20 Offences Against the Person Act 1861, and the extent to which reform of the law would make it more morally acceptable. If the person knew before that they had an STD and still For example, a concussion will not usually cause permanent damage but it is clearly more than insignificant harm. Josh went up behind and there was no prior threat issued so Tim was not aware that the force was about to be applied. The defendant causes victim to apprehend the use of force against them, and; The victim apprehends that use of force will be immediate. Issues in Non-fatal Offences Against the Person in Law - LawTeacher.net This is a Premium document. Potential risks of getting HIV to get AIDS to eventually kill In Collins v Wilcock[17] it was accepted that a battery could occur when there is an obvious refusal to consent to any touching. The present law on non-fatal offences is mostly set out in the Offences Against the Person Act 1861 1 (OAPA) however a lot of it can also be defined in the common law. Other types of violence that are still accepted such as in sport Therefore, had she known about the infection it would have made no difference as to the validity of her consent in this instance as this was held to be automatic. There is a gradient scale of offences based on the level of harm caused to the victim and the level of intent demonstrated by the defendant. Non-fatal Offences Against the Person, Essential Reading The woman rushing towards you looking at her phone who only dodges out of your way last minute would be hauled up on an assault charge, and the teenager with his headphones blaring and rushing down the platform who doesnt dodge you in time and smacks right into you would be convicted of battery. consented to sex then they were aware of the risks of contracting in, even with the In other words, that whatever the level of the actus reus is, it must be attributable to the mens rea[7]. In R v Tabassum [2000] 2 Cr App R 328 a case of similar facts to Richardson in that it involved false medical qualifications, the defendant held himself out to be a doctor conducting medical research in order to gain consent from female patients to perform breast examinations. Although the group have never met Jason before, he and David seem to hit it The Court held that there was no true consent in this instance. 16.00 - Add to Cart. The next aggravated offence is the one that s20 of the OAPA provides as maliciously wounding and inflicting grievous bodily harm or GBH. positive. If youre not ready to go it alone just yet, theres no need to panic! 2 0 obj Furthermore, the maximum punishment of this offence is five years imprisonment. [10] END OF . for pleasure by giving and receiving pain. Consent should be valid The court held that these were necessary ingredients of both ABH (the position in relation to GBH has subsequently To illustrate this, consider the following example. At work Tim and his colleagues have a fantasy football league and this gets very competitive. deception. This application is usually direct, for example, the defendant punches the victim, thus the defendant himself physically applies the force to the victims body. Chapter 7: Non-fatal offences against the person Problem Questions Below is an example of a problem question and a worked answer. he was asked if he wanted it, Chris agrees to be branded but it questions whether he can consent up to that Students also viewed He was in fact an IT lecturer who held no formal medical qualifications. The actus reus of this offence consists of two parts: For the purposes of this offence the term assault is properly taken to mean either an assault or a battery. Nikki finds an old branding iron and asks Chris if he would like necessary in a democratic society for the protection of health and the Non-fatal, Non-Sexual Offences Against the Person MCQs These are UK Law based questions 1. However, two mens rea elements are contained within s18. 7 Advise how the law relating to non-fatal offences against the person will apply to Adam. There is no application of force as Tim does not carry out his threat so there is no battery. This point was demonstrated in Haystead v DPP [2000] 3 All ER 690 where the defendant who punched a woman holding a baby, causing her to drop the baby, was found guilty of the battery to the baby. For a potential line of discussion in an essay question, consider some cases of extreme cosmetic surgery, for example horns being implanted into an individuals head or breast enhancements so large they cause crippling back pain. The main offences are Assault, Battery, ABH, Wounding and GBH. 6 Advise how the law relating to non-fatal offences against the person will apply to Mia. Although they are statutory offences the statute has not defined them and one therefore has to turn to the common law to discover their constituent elements. Copyright 2003 - 2023 - LawTeacher is a trading name of Business Bliss Consultants FZE, a company registered in United Arab Emirates. aware of the potential consequences so could not give full consent The battery causes Louis to break his leg which is harm of a nature that is clearly encompassed by both the. First consider the possibility of an assault occurring. Clarkson and Keating: Criminal Law (9th edition, Sweet & Maxwell 2017). [9] R vIrelandandBurstow[1997] UKHL 34, [10] Tuberville v Savage[1669] EWHC KB J25, [12] Smith vSuperintendentof WokingPolice[1983] Crim LR 323, [14] SR Kyd, T Elliot & MA Walters. It was not thus unnecessary for the prosecution to establish exactly what the victim feared would happen as a general apprehension was sufficient. This is a really good topic to discuss in a general essay question on consent and may be the subject of an essay question in its own right. malicious wounding or inflicting grievous bodily harm contrary to s 20 OAPA. Does Josh cause Tim to apprehend the application of immediate unlawful force? and GBH. and has been tested Criminal Law Seminar Prep 4 After D v DPP[20] the court of Appeal decided that the subjective test of Cunningham should be the one applied in these common assault offences. This is illustrated by an examination of the case of R v Dica [2004] 3 ALL ER 593 which involved an HIV positive defendant who, knowing of his condition, had sexual intercourse with 3 different women and infected them with the disease. The mens rea for battery involves either intention or recklessness as to the application of force. Section 47 conviction A victim may expect immediate force without being in fear of it; an assault will occur either way. Answering these questions takes a lot of practice and if this is the first time you have done it then it is going to be tricky. Moreover, the defendants state of mind is not defined in section 47. (a) Offences Against the Person Act 1861. Josh however is annoyed at Tim for threatening his friend. You should not treat any information in this essay as being authoritative. Now consider that the defendant and his friend are shooting enthusiasts and are in a gun shop looking at unloaded display models. Sophie, a girl that both Tim and Josh like, is going along to watch the game. His boot crashes into Louis shin and sprains Louisankle. In this case defendant told a woman with learning difficulties that he was performing surgery on her when in fact he was engaging in sexual intercourse with her. Surgical interference is invasive and will almost always involve an incision thus constituting harm to the body. Registered office: Creative Tower, Fujairah, PO Box 4422, UAE. virtual uncertainty they would get HIV so was willing to take the reckless Non- fatal Offences Against the Person - The principal statute dealing with crimes of violence is - StuDocu A complete guide to understanding and explore the law governing non-fatal offenses against the person. Dubious consent some men were 21 whereas others were middle aged, Could breed and glorify violence rise about how much consent you can give to such a high level of pain. unsuccessfully to CA and HoL. Personally, I agree with this statement due to the fact that the 1861 Act is perplexing and has a lot of inconsistencies as to the meaning of all the offences. It is an offence to assault or beat any other person. Similarly, the presence of an intention should not lead to the conclusion that the defendant foresaw the possibility of wounding resulting from his conduct. Non fatal offences. R v Miller [1954] 2 All ER 529 clarified this further stating it to be any hurt or injury calculated to interfere with the health and comfort of the victim. [10] 8* Discuss the problems with the offence of battery and the extent to which reform of the law would make it more morally acceptable. {1;8 d 2r And As Lord Mustill said in Faulkner v Talbot[18] the touching need not necessarily be hostile. Moreover, they considered the creation of a new offence of aggravated assault, to fill in the gap between common assault and the more serious ABH. Non-fatal Offences Against the Person Review 763. sex even if V knows they have HIV *You can also browse our support articles here >, Gillick v West Norfolk and Wisbeck Area Health Authority. Weait, 'Knowledge, Autonomy and Consent: R v Konzani' [2005] Criminal Law Regardless, the law permits for a patient to consent to surgery performed by a suitably qualified doctor as there is clear social benefit in such operations. If you dont do this, you may provide a fantastic answer on assault only to find that it was actually a homicide question. Children are not automatically held to give valid consent in all situations and are subject to further scrutinisation in this regard. Cases of Dica and Konzani Non-Fatal Offences - Law Revision Dica defined these as those cases where ABH is caused but the harm is not intentional, merely caused recklessly through the participation in the sexual activity. Exception Make sure you learn the actus reus correctly. Define: The actus reus of assault is an act which causes the victim to apprehend the infliction of immediate unlawful force. [7] Andrew Ashworth & Jeremy Holder, Principles of criminal law (Oxford, 8th edn). Immediately apprehending the application means that the victim is straight away caused to fear he will be hit later, which is not an assault! To gain a better understanding of this the requirements for valid consent must be considered. Can still become infertile from things such as chlamydia o In Wilson they were married, and Chris and Nikki are not so would However, following the ruling in Brown, a case involving a group of homosexuals engaging in extremely violent and painful acts for the purposes of achieving sexual pleasure, sadomasochistic acts have been held to be against public interest and thus not subject to consent. The ring caused severe internal cuts which became septic and ultimately proved fatal. Become Premium to read the whole document. This lecture presentation covers assault, battery and offences contrary to section 47, section 20 and section 18 of the Offences Against the Person Act 1861. Was prejudice had homophobic tones, Recent cases since 50 shades of grey Aside from the established case law, the CPS Charging Guidelines also offer some direction as to what will be classed as ABH. ), Principles of Anatomy and Physiology (Gerard J. Tortora; Bryan H. Derrickson), Commercial Law (Eric Baskind; Greg Osborne; Lee Roach), Public law (Mark Elliot and Robert Thomas), Marketing Metrics (Phillip E. Pfeifer; David J. Reibstein; Paul W. Farris; Neil T. Bendle), Introductory Econometrics for Finance (Chris Brooks), Rang & Dale's Pharmacology (Humphrey P. Rang; James M. Ritter; Rod J. (c) Criminal Justice Act 1988. use of protection so should not be held criminally liable. Does your under s20. Template: How to answer a scenario based on Non-fatal Offences Against Chan-Fook[23] stated that the harm could also affect the nervous system and brain. There can be few criminal law exams that do not contain at least one question requiring consideration of the non fatal offences against the person.