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4 - Non-Fatal Offences Against the Person

4 - Non-Fatal Offences Against the Person

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Published by: manavmelwani on May 03, 2011
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04/20/2015

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NON-FATAL OFFENCES AGAINST THE PERSONLecture 7 (November 26th.) 2. Offences against the Person (assault and battery).
We may start by noting the title of the legislation which governs the more serious non-fatal offences:the Offences against the Person Act 1861.This old and unsatisfactory legislation (hereafter the OAPA) isstill, alas, very much with us.An important point of interpretation is relevant throughout the OAPA: when it uses the wordmaliciously it means with foresight of the possibility of the consequences which occurred. It doesnot refer to any ill-will at all. In this context maliciously is a synonym for the legal meaning of recklessness. Your previous study of recklessness is relevant here.
*R v Cunningham[1957] 2 QB 396*R v Spratt [1991] 2 All ER 210 *R v G and R * [2003] UKHL 50;[2004] 1 AC 1034 (a criminal damage case, but relevant here)
-
 
Thus subjective recklessness reigns here.
Caldwell 
recklessness was abandoned
*Criminal Justice Act 1967, s.8 
A court or jury, in determining whether a person has committed an offence,(a) shall not be bound in law to infer that he intended or foresaw a result of his actions byreason only of its being a natural and probable consequence of those actions; but(b) Shall decide whether he did intend or foresee that result by reference to all the evidence,drawing such inferences from the evidence as appear proper in the circumstances.
P
RACTICAL DIFFICULTIES CAUSED BY THE SUBJECTIVE TEST
 
-
 
M
any crimes here caused by
intoxicated people
 
o
 
C
rimes of basic intent: ifD is not aware of the risk that he is causing, because of voluntary intoxication, the law presumes that he had the necessary recklessness on thebasis of a sober person.
 
In a way, in this area objectivism still reigns with regards to deciding the basisintent of a drunk person
o
 
E
xception to the basic presumption:
M
alicious causing of gbh.
 
S20 of 1861 Act is a crime of basic intent, while s18 (causing gbh with an intentto cause gbh) is a crime of specific intent; for these evidence of intoxication isadmissible to throw doubts on the defence
-
 
Where people lose their temper and get
mad violent:
 
o
 
In this situation, are they aware of the law? What is subjective?
C
f.
P
arker 
 
R v Parker [1977] 1 WLR 600 (another criminal damage case, but still instructive)
Facts: D falls asleep on the train, wakes up to find hes overshot his station. A lot of problems trying toget a taxi and the railway personnel arent helpful. Finds public phone to ring up a taxi, phone doesntwork. In fury, smashes down the receiver and this shatters into a lot of pieces.
C
harged with criminal
 
damageTo be charged with non-fatal offences against the person, must prove that he perceived the risk of damage. D argued that he didnt perceive the damage hed do in smashing the receiver down.Held: that D must have perceived the danger with his act even if he has put it in the back of his mind atthe time of his act. Thus convicted, on a subjective test, of criminal damage
-
 
This back of the mind thing is not an empirical finding but a mere supposition!
-
 
Simply reflects the message that courts arent receptive of claims for lack of foresight on thebasis of a self-inflicted, psychological state.
Assault and battery
Note that both of these are essentially
CL
crimes and there is no definition of them in statutoryprovisions.These are separate offences :
DPP
v Little
[1992] QB 645.Although they are separate offences the termassault is frequently used to cover both assault and battery as is the case in s.47, OAPA (assaultoccasioning actual bodily harm).(1)
 
Assault: any act by which D, intentionally or recklessly causes V to apprehend immediate andunlawful personal violence:
R
v Savage
[1992] 1 A
C
699,740.
T
HE
C
ONDUCT
E
LEMENT IN
A
SSAULT
 
-
 
It must be a positive act
agan v MPC [1969] 1 QB 673
Facts: D was backing a car onto a confined parking space and receiving instructions from apolice officer. D didnt like the guidance but did as told. When the car came to rest, there was aconversation between D and V: D had parked the car on Vs foot. D remains seated for a while, Ccrying out for him to remove his foot.There was no harm to the foot- the boot was dented. But D argued that the parking of the wheelon the foot was inadvertent and that D was only aware of it when it was brought to his attentionby the policeman. This was the only act and done without intention, and moving the car off wasnot assault Held: Div Court reiterated the need for a positive act. Argue that D was in contact with Vs bodythrough the medium of the car and D maintained that contact with an intent: on that basisconviction had to be sustained on failure to remove the car.
Smith v Superintendent of Woking Police Station (1983) 76 Cr App R 234
Facts: Prosecution for assault is based (soundly) on D, a peeping tom, going to the enclosedspace outside a basement flat and looking through the glass doors as V undressed for bed.D argues that he was maintaining his presence outside the door. V, on seeing him, screams andD scarpers. Caught and charged with assault. Hence V clearly experienced fear, but what was thenature of the act?
 
Held: conviction sustained: to hold a posture was a form of conduct and here it was frighteningconduct 
I
MMEDIACY
 
-
 
This is the requirement that the instigator must be physically close to V (fear of an
imminent 
battery)
-
 
The principle is well established; particular difficulties are caused by harassment and otherforms of assault which dont involve a direct attack as such but still cause fear and distress.
-
 
Note that Harassment is now covered by the Protection from Harassment Act. Nonetheless,courts feel that the sentences in the Act are insufficient in some cases and thus have stretchedthe immediacy requirement in assault to encompass harassment.
*R v Ireland [1997] 4 All ER 225;[1998] 1 AC 147 
Facts: D made silent phone calls many miles away from where V resided- would keep ringing.D conceded that a silent phone call could constitute assault; further will be occasions where asilent phone call might indicate an intention to be violent very soon: on these occasions there isno problem and the cases can fit into the assault requirements. But that given the locationdifferences between D and V, this was not such an occasionHeld: HL weighing if they can prosecute silent calls as assault. Held that anyone put in fear bysuch a call must fear imminent violence, because if it wasnt a fear of any imminent violence,why would the victim be fearful? Any fear from the call would be a fear of violence.-
 
The reasoning is perhaps questionable. If one were to draw an analogy with horrorfilms, it is apparent that there are situations where one can be scared while knowingthey are perfectly safe.
 R v Constanza [1997] 2 Cr App R 492
Facts: V opens a very unpleasant letter that makes her fearfulHeld: Ds conviction confirmed on the basis that the woman had been assaulted at the point of opening the letter, because V knew that the writer lived in her neighbourhood and so couldnt rule out the possibility that she might be imminently assaulted*After these cases, it is clear that all that suffices for a finding of assault is if V cannot rule out the possibility of imminent violence- enough that it is one of the possibilities that fleets throughher mind
M
ENS
R
EA
 
R v Savage
(above)  either intention or recklessness required. (With regards to causing fear of animminent battery)
Battery
Battery: any act by which D inflicts unlawful personal violence on V:
R
Ro
lfe
(1952) 36
C
r App R 4. Thus
Ireland 
for example was not battery as there was no actual infliction of violence.

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