More in detail, in Latin terms mens rea means a guilty mind or blameworthiness and at common law it usually means intention or recklessness which have been hard to distinguish. Evaluation of Non-Fatal Offences Against the Person: Rarely in law does everyone agree on something, yet when it comes to the laws on non-fatal offences against the person, everyone agrees that they are in desperate need of an overhaul. To begin with, the least serious of all assault offences is known as common assault which the Criminal Justice Act s.39 divides as two separate crimes called technical assault and battery. 1 Step 1: Identify the crime (s) committed and write out the name in full. Hence, in Ireland & Burstow it was held that bodily harm includes recognizable psychiatric illness such as depression. A victim may expect immediate force without being in fear of it; an assault will occur either way. Consent may operate as a defence to a charge of assault, battery or the causing of actual bodily harm. 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. Do you think that the House of Lords majority judgment in Brown strikes Was prejudice had homophobic tones, Recent cases since 50 shades of grey The ring caused severe internal cuts which became septic and ultimately proved fatal. However, it was distinguished on the basis that (b) Coroners and Justice Act 2009. Once you have identified all three you need to break your answer down into subheadings and discuss each issue individually. Seminar Essay Question "In the present law of non-fatal offences against the person the question of consent lacks coherence and any kind of principled basis." Thesis Statement. (, The submission form, title page, appendices and reference list do not count as part of the, The file size limit for submissions to SurreyLearn via, The most reliable browsers for submissions are Firefox, Safari and Internet Explorer 10. Common Assault (S39 CJA 1988) There are two ways of committing this : assault and battery. 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 encompass a range of offences where a person is caused some harm but the harm does not result in death. For the victim's consent to be valid it must be an informed consent. Collins v Wilcock establishes that consent is automatically implied where there is jostling in busy places, or in relation to handshakes, back slapping, tapping on the shoulder to attract attention and other day to day activities, provided no more force was used than is reasonably necessary in the circumstances. 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! The actus reus is established through the causing of the apprehension of force and there does not need to be any application of actual force on the victim. Accordingly, in cases where ABH or more serious harm is intended and or caused Attorney General's Reference No 6 of 1980 [1981] states that a person's consent is irrelevant and cannot prevent criminal liability. 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. [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. Applying. These principles are the general action or conduct of the crime, called actus reus and the mental element of the criminal act or mens rea. Meanwhile, Chris and Nikki decide to spend the night in a nearby 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. Only pass on HIV through sex to be convicted, not criminalized through cuts, Copyright 2023 StudeerSnel B.V., Keizersgracht 424, 1016 GC Amsterdam, KVK: 56829787, BTW: NL852321363B01, Electric Machinery Fundamentals (Chapman Stephen J. Branding is like tattooing. (Cavendish, 2003, 5th edn). 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He finds it sexually stimulating though so gains pleasure from the In 1861, the Offences Against the Person Act (OAPA) was consolidated. Similarly, the presence of an intention should not lead to the conclusion that the defendant foresaw the possibility of wounding resulting from his conduct. uncivilised. (per Lord Templeman) Should the courts do more to protect these people or is this justified as being a core part of public culture worth protecting? Herring, Criminal Law: Text, Cases and Materials (Oxford, OUP, 7th ed., 2016) pp Disclaimer: This essay has been written by a law student and not by our expert law writers. To what extent would the Law Commissions proposals in relation to these offences improve the law? they are not able to give their full consent so the D should be held criminally liable If youre feeling confident then once you have done this you can have a go at producing an answer. acknowledged. Apprehending the immediate application means that that the victim fears he will be hit straight away. A Debdener 13 I've recently come across this past exam question, which has puzzled me a little. The keyword of the mens rea of s20 is maliciously meaning that the accused has foreseen the harm of the act but has continued to take the risk anyways (Cunningham test applied). The defendant points an unloaded gun at a stranger in a street. 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. Having established assess whether on the facts there can be a battery? unprotected sexual intercourse. The defendant tried to argue that consenting to unprotected sexual intercourse involved consenting to all of the associated risks, and indeed, in a time where society is well educated about such risks this is a line of argument that carries some weight. There is no way he could shoot them even if that was his intention but the stranger will be unaware of this so will fear the application of force. Info: 3315 words (13 pages) Essay Consent, as a defence against the victim, does not stand as a valid principled basis under the present law of non-fatal offences. At trial the defendant argued there was no assault as the force apprehended was not immediate. Each of these offences requires both actus reus and mens rea to be established. In Smith v Superintendent of Woking Police [1983] Crim LR 323, the defendant stood up next to the window of a ground floor flat belonging to a woman living alone. 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. under s20. As time has progressed the law has developed and has provided for a much wider scope of cases where consent will be invalidated due to fraud as to the quality of the act. necessary in a democratic society for the protection of health and the These are seen as in the public interest due to their cultural importance and long standing tradition. o Here, Nikki asks to brand Chris rather than Chris asking to get Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. Common assault is any act which intentionally or recklessly causes another person to apprehend immediate and unlawful . 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. The process of making this decision is a mental statement or cognition which became known as mens rea. still physical harm as your body has been harmed internally as a disease has If some other factor came into play, for example a silent phone call was received and the number appeared with an Australian dialling code, this may negate this. In principle there is a difference between violence which is incidental and endobj Criminal Law Seminar Prep 4 When evening falls, David invites Jason to share his tent and they have Registered office: Creative Tower, Fujairah, PO Box 4422, UAE. 314- Do you feel that the Court in Brown was right to state that S&M is not in the public interest or should this be left to autonomous individuals to consent to as they please? For the purposes of exams however you will need to understand the constituent elements of and differentiate between both assault and battery. In Collins v Wilcock[17] it was accepted that a battery could occur when there is an obvious refusal to consent to any touching. He passed the infection to his wife If this were to be a blanket ruling it is evident that a number of activities fundamental to modern day life would be rendered illegal. 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. Whole range of STD This would plainly cause the victim to fear the immediate application of unlawful force and thus constitute an assault, however the defendant accompanied his action with the words if it were not assize time I would not take such language. In modern day context, this meant that as the judges were in town he would not commit an act of violence, thus negating the effect of this threatening action. It can be seen then that fear or upset would not suffice for the purposes of ABH. consented to sex then they were aware of the risks of contracting in, even with the The non-fatal offences that I will describe in this video are assault, battery, assault occasioning actual bodily harm and grievous bodily harm/wounding. As a matter of fact, the Law Commission revised the proposals for reform of the OAPA Act 1861 and ended up with a new draft Bill for comment in 1998. I believe that the ultimate recommendations that the Law Commission has made in 2015 would improve the fairness of the defendants as well as the criminal justice system, and it would also make this scheme depend on the seriousness of the harm and the degree of foresight in a much more structured way than the 1861 Act. Published online: September 2021 Abstract 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 targeting of any non-consensual contact. Sophie, a girl that both Tim and Josh like, is going along to watch the game. Was not a (ii) Fraud as to the nature and quality of the act. 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. In contrast, in Cardwell[5] the objective test was applied and it meant that the defendant need not to realise that there were risks involved and Elliot v C[6] followed that those risks should only be obvious to a reasonable person. In cases where menacing words were clearly intended as a joke and were taken as such there can be no assault. <> Conviction was quashed. Moreover, any degree of foresight less than the one required for intention will constitute recklessness which can be referred as lacking caution or heedless of danger. The mens rea for assault is intending the victim to cause the apprehension of unlawful force or foreseeing that the victim might be caused such apprehension. It is in the interest of society to allow for these to continue and thus to consent to the obvious risk of harm they will often involve. hay barn. You should not treat any information in this essay as being authoritative. Age difference 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 The main offences are set out in the Offences against the Person Act 1861 (OAPA). The CPS Charging Guidelines indicate that offences against the person will be charged as a common assault where the injuries caused are not serious. Both Thus, the actus reus of this offence is exactly the same as in section 20. Case in focus: R v Richardson [1998] 2 CR App 200. At work Tim and his colleagues have a fantasy football league and this gets very competitive. As the case was of public interest and was between homosexuals, the courts Published: 9th Feb 2021. Time together in the relationship Non-Fatal Offences Against the Person. A careful study of the facts shows us that he didnt. felt that it was okay for them to get involved You must make sure the victim is not dead. o The defendant had sexual intercourse with his wife knowing that he On the other hand, the mens rea of this offence is that the defendant must intentionally or recklessly cause his victim to apprehend the infliction of immediate force. The actus reus of this offence is the application of unlawful force on another. As a result, it is submitted that intention under s18 bears the same meaning as that attributed by the House of Lords in Woollin[35]. It is clear that the OAPAS Act ranking of offences is impaired by dim terms, uncertainties and some overlapping. They need updating, changing, and some serious clarification. 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. Under the Mental Capacity Act 2005 there is a presumption of capacity but a person will be found to lack this if at the material time they are unable to make a decision in relation to the act due to a temporary or permanent impairment or disturbance of mental functioning. This refers to a sport played according to recognised rules. Non fatal offences - answering questions. entered the body. though? [10] 8* Discuss the problems with the offence of s47 Offences Against the Person Act 1861, and the extent to which reform of the law would make it more morally justifiable. If the defendant picked up a gun and turned and pointed it at his friend and shouted hands up or Ill shoot the defendants friend will know that this is an empty threat and will not be caused to apprehend a use of force, thus no assault will occur. o Conviction was quashed. 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. The offence of assault is defined in the Criminal Justice Act 1988, section 39. her to brand her date of birth onto his back. Especially consider the reference to husband and wife in the Wilson ruling and the fact that Brown involved a group of homosexuals, as it has been suggested that there may have been some prejudice by the courts in relation to this in considering what was in the public interest. A person, shopping in Tesco, becomes frustrated at the length of the queue so pushes the person in front of him forward, who then falls into the person in front of them and so forth, until all 3 people in the queue have fallen over. 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. To illustrate this, consider the following example. To gain a better understanding of this the requirements for valid consent must be considered. (Cavendish, 2003, 5th edition), SR Kyd, T Elliot & MA Walters. [10] END OF QUESTION PAPER Was underage when the case first started as were ten men can consent In Wilson the Court stated that the State has no business in invading the bedrooms of consenting adults and dictating how they should have sex. What is the law relating to offences against the person that best applies to this situation? Nevertheless, it is more likely to get service community order unless the offence is racially or religiously aggravated (in that case the higher maximum penalty could be of two years imprisonment). The Courts established two dominated views for intention. 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. There needs to be serious harm in order for conviction Just as words can cause an assault they can also prevent a potential assault from occurring. One Sunday afternoon, David, his friend Chris and Chriss girlfriend Nikki He intends to cause GBH as a result of Section 47 of the OAPA 1861 refers to the offence of actual bodily harm or ABH. Two common law (assault and battery) and three statutory (ABH) under s.47 Offences Against the Person Act 1861, GBH under s.20 OAP Act 1861 and GBH under s.18 OAP Act 1861. It can be properly explained then that only sexual activity that is not inherently violent in nature is can subject to consent. However, the Court held that there is a distinction between taking a risk of the wide ranging, potentially adverse and problematic consequences of sexual intercourse, and giving informed consent to a risk of infection with a serious and fatal disease. View examples of our professional work here. However, In Mandair[33] the House of Lords held that causing was wider or at least not narrower than the word inflict[34]. Research into Chris Eubank vs Michael Watson and more recently Chris Eubank Jr vs Nick Blackwell for examples of injuries sustained from a fight and also look into the impact on health of boxers after retirement, with Mohammad Ali being a notable example. 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. Still a leading judgment <>/XObject<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 595.32 841.92] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> 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 . 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! Potential risks of getting HIV to get AIDS to eventually kill This has been interpreted very widely and has included branding with a hot knife following the ruling in R v Wilson (1996) 2 Cr App Rep 241. intercourse and therefore no technical assault or battery occurred. (c) Criminal Justice Act 1988. No additional mens rea is required for this offence. Cases of Dica and Konzani endobj We all know the risks of unprotected sex potentially? Liability for the offence is constructed from liability for the lessor offence of common assault. In day to day speak it is used to refer to the individual offences of both assault and battery. Assault and battery are summary offences meaning that they will be tried at the magistrates court. The conduct crime where the external element of the offence is the prohibited conduct itself. Criminal Law Problem Question (non-fatal offences) - Concepts of Criminal Law Problem Question - - Studocu Based on offences under the Offences against the Person Act 1861 and the Criminal Justice Act 1988. Consider the London Underground in the height of rush hour. If an assault is understood to be an apprehension of force, a battery can be explained in simplistic terms as the actual use of unlawful force. If you dont do this, you may provide a fantastic answer on assault only to find that it was actually a homicide question. [7] Andrew Ashworth & Jeremy Holder, Principles of criminal law (Oxford, 8th edn). His boot crashes into Louis shin and sprains Louisankle. Registered office: Creative Tower, Fujairah, PO Box 4422, UAE. The women were consenting to touching purely for medical purposes and therefore although they had consent to the nature of the act, i.e. They knew exactly who she way. under s20. o Relate to case EB, Jason nothing wrong with having unprotected sex as is a choice so is not 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. ), 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. In Moriarty v Brookes[28] the term wound refers to the breakage of the dermis and epidermis of the skin, a cut. In this case the appellants were a group of SM who had consensual violent sex acts In boxing however, the ultimate aim of the sport is often to knock your opponent unconscious, which consists of a clear degree of very public violence, the kind of which Attorney Generals Reference No6 of 1980 expressly ruled against when considering fighting in the street. Sample Question Paper . Read this section very carefully as this is a favourite topic for examiners to set as an essay question. Although the group have never met Jason before, he and David seem to hit it 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 . changed). It forms the basis of over 26,000 prosecutions every year. 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. After work, Tim, Jack and Josh have planned to compete in the 5-aside football league they play in. . In your opinion can the two rulings be reconciled? running the risk of contracting the disease. The defendant, despite applying force to only one person in the queue, would be guilty of the battery of all three people as he has indirectly applied force to each of them.
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