Non-Fatal Scenario
Introduction
To understand whether (D) has committed any offences it is important to look at the
Offences Against the Person Act 1861 which sets out the main non-fatal offences
against the person.
A number of injuries were caused during…
To come to a conclusion as to whether any legal offences took place, we must
analyse the injuries caused and whether the person who caused these injuries held
the correct mens rea and actus reus for it to be certain they were responsible for
committing an offence.
Assault
Is it likely that D has committed assault, set out in s39 CJA 1988?
Maximum sentence: 6 months imprisonment or a fine of £5,000 (or both).
Actus Reus
AR: an act which causes V to apprehend the infliction of immediate unlawful force.
- Not likely if V has suffered psychological injury.
- The case of Chan Fook shows that psychiatric injury can be included under an
ABH offence as long as it is identifiable as a clinical condition.
Positive Act
In Fagan v Metropolitan Police it was suggested that an assault requires proof of a
positive act and cannot be committed merely by an omission.
Logdon v DPP – As a joke, D pointed a gun at V. She was frightened until he told her it
was a replica gun. Shows that D does not need to intend to carry out the threat for
there to be an assault.
Constanza/Ireland – Letters can amount to assault. Silent phone calls can amount to
assault.
- Can apply this same ratio to any written word e.g., text, email, pass on post-it.
Positive act?
Apprehend
Lamb – D killed a friend with a revolver, but both believed the gun would not fire, so
V was not frightened.
It is imperative that V is frightened.
Words can negate assault (Tuberville v Savage – if it were not assize time, I would not
take such language from you).
Does anything indicate that D will not actually be able to carry out the assault?
Conditional threats – What is the position if the defendant says, "I will punch you
unless you retract what you just said"?
, - On the one hand it could be argued that this isn't an assault as the victim could
avoid harm by retracting the statement, and therefore could not have foreseen
imminent force.
- However, it could also be argued that it is an assault because by acting in a lawful
way (staying silent) they may be subject to violence. There is no clear guidance on
this issue.
Immediate
The threat has to be ‘immediate’, though this has been interpreted liberally by the
courts as evidenced by the cases of Ireland, Constanza and Smith.
Smith v Woking – D was looking through V’s window. She thought he was about to
enter her room. Immediate does not mean instantaneous but imminent.
Mens Rea
MR: mens rea of assault as defined in the case of R v Savage, Parmenter is that the
defendant must have either intended to cause the victim to fear the infliction of
immediate and unlawful force or must have seen the risk that such fear would be
created (subjective recklessness).
Battery
Statute: S39 CJA 1988
Maximum sentence: 6 months imprisonment or a fine of £5,000 (or both).
Actus Reus
AR: the application of unlawful force.
Force can Include the Slightest of Touching
(Collins v Wilcock)
(R v Thomas)
Can be Committed through an Omission
DPP V Santa-Bermudez – D had something sharp in his pockets but failed to mention
this to the police officer who searched him.
Can be Committed through an Indirect Act
DPP v K – D put acid in a hand dryer and V was sprayed by the acid.
Introduction
To understand whether (D) has committed any offences it is important to look at the
Offences Against the Person Act 1861 which sets out the main non-fatal offences
against the person.
A number of injuries were caused during…
To come to a conclusion as to whether any legal offences took place, we must
analyse the injuries caused and whether the person who caused these injuries held
the correct mens rea and actus reus for it to be certain they were responsible for
committing an offence.
Assault
Is it likely that D has committed assault, set out in s39 CJA 1988?
Maximum sentence: 6 months imprisonment or a fine of £5,000 (or both).
Actus Reus
AR: an act which causes V to apprehend the infliction of immediate unlawful force.
- Not likely if V has suffered psychological injury.
- The case of Chan Fook shows that psychiatric injury can be included under an
ABH offence as long as it is identifiable as a clinical condition.
Positive Act
In Fagan v Metropolitan Police it was suggested that an assault requires proof of a
positive act and cannot be committed merely by an omission.
Logdon v DPP – As a joke, D pointed a gun at V. She was frightened until he told her it
was a replica gun. Shows that D does not need to intend to carry out the threat for
there to be an assault.
Constanza/Ireland – Letters can amount to assault. Silent phone calls can amount to
assault.
- Can apply this same ratio to any written word e.g., text, email, pass on post-it.
Positive act?
Apprehend
Lamb – D killed a friend with a revolver, but both believed the gun would not fire, so
V was not frightened.
It is imperative that V is frightened.
Words can negate assault (Tuberville v Savage – if it were not assize time, I would not
take such language from you).
Does anything indicate that D will not actually be able to carry out the assault?
Conditional threats – What is the position if the defendant says, "I will punch you
unless you retract what you just said"?
, - On the one hand it could be argued that this isn't an assault as the victim could
avoid harm by retracting the statement, and therefore could not have foreseen
imminent force.
- However, it could also be argued that it is an assault because by acting in a lawful
way (staying silent) they may be subject to violence. There is no clear guidance on
this issue.
Immediate
The threat has to be ‘immediate’, though this has been interpreted liberally by the
courts as evidenced by the cases of Ireland, Constanza and Smith.
Smith v Woking – D was looking through V’s window. She thought he was about to
enter her room. Immediate does not mean instantaneous but imminent.
Mens Rea
MR: mens rea of assault as defined in the case of R v Savage, Parmenter is that the
defendant must have either intended to cause the victim to fear the infliction of
immediate and unlawful force or must have seen the risk that such fear would be
created (subjective recklessness).
Battery
Statute: S39 CJA 1988
Maximum sentence: 6 months imprisonment or a fine of £5,000 (or both).
Actus Reus
AR: the application of unlawful force.
Force can Include the Slightest of Touching
(Collins v Wilcock)
(R v Thomas)
Can be Committed through an Omission
DPP V Santa-Bermudez – D had something sharp in his pockets but failed to mention
this to the police officer who searched him.
Can be Committed through an Indirect Act
DPP v K – D put acid in a hand dryer and V was sprayed by the acid.
