Criminal law
General notes:
The test for recklessness is subjective- it is not about what the
reasonable person would have done. The test will be whether the
defendant was aware of the risk, which was an unreasonable or
unjustified one to take, and go on and take it anyway.
A victim’s escape may break the chain of causation if it was free,
deliberate and informed. The court will also look at how foreseeable
the victims response was. Similarly, the actions of a third party will
be assessed in the same way.
Transferred malice works so that if the defendant had the ‘malice’
to commit a crime against one person, or certain property, it is
transferred to the unintended victim and combines with the actus
reus to complete the offence.
o BUT- Will only apply if the same offence has been committed
as the one intended.
o No need to consider transferred malice where the offence can
be committed recklessly, as the defendant is only required to
foresee the risk of harm to anyone.
o EG- If the defendant intends to hurt a person, but instead
breaks a window, this will NOT be transferred malice.
If a person has been spiked and found carelessly driving, they will
not be found guilty of careless driving as this requires some
negligence, but they would still be found guilty of driving with
excess alcohol.
Trespassing is not a criminal offence
The hierarchy of assaults:
Offence Classificati Actus Reus Mens Rea Max sentence
on
(Simple) Summary Causing the victim Intention or recklessness 6 months
assault to apprehend as to causing the victim imprisonment
unlawful and to apprehend immediate and/or a fine
immediate personal and unlawful personal
force force. (Consent as
defence)
Battery Summary The infliction of Intentionally or 6 months
,(physical unlawful personal recklessly inflicting imprisonment
assault) force unlawful force and/or a fine
(Consent as
defence)
Assault Either way Committing an An intention or 5 years
occasionin assault or battery recklessness as to the imprisonment
g actual that causes actual assault or battery (NOT
bodily bodily harm (more the actual bodily harm)
harm than transient or
(s.47) trifling)
Maliciously Either way Unlawfully wounding Intention or recklessness 5 years
wounding or inflicting grievous as to causing actual imprisonment
or bodily harm bodily harm
inflicting
grievous
bodily
harm
(s.20)
Wounding Indictable Unlawfully wounding An intent to cause Life
or causing or causing grievous grievous bodily harm imprisonment
grievous bodily harm OR
bodily
harm with (Same as for s.20) An intent to resist lawful
intent arrest coupled with an
(s.18) intention or recklessness
to cause some bodily
harm.
(Simple) assault:
o Actus reus: Victim must apprehend immediate and unlawful
personal force
They do not have to fear the force, just be aware of it.
No need for violence, touching or injury
Words or silence can suffice (repeated silent telephone
calls)
Conditional threats may suffice if the immediacy
requirement is also met.
EG- If they raise their fists while also giving the
conditional threat.
NOT future threats
, o Mens rea: Intent to cause that apprehension or recklessness
as to whether it occurs.
Remember that the test for recklessness is subjective.
Battery (physical assault)
o Actus reus: Inflicting unlawful personal force
Can be done with a weapon
Even the least touching will satisfy- no harm needs to be
suffered.
o Mens rea: Intentionally or recklessly inflicting unlawful force
Note they must have intended or foreseen the infliction
of force, NOT the victims’ apprehension of it and NOT
the injury.
Assault occasioning actual bodily harm (s.47)
o Actus reus: Committing an assault or battery that causes
actual bodily harm
Includes (recognised) psychiatric harm.
Any injury that interferes with the health or comfort of
the victim
Must be more than transient or trifling
Will be satisfied if a substantial piece of hair is
pulled out.
o Mens rea: An intention or reckless as to the assault or battery
No need to show they actually intended or foresaw the
injury.
Maliciously wounding or inflicting grievous bodily harm
(s.20)
o Actus reus: Unlawfully wounding or inflicting grievous bodily
harm
Wounding will be where both the layers of the skin are
broken, resulting in bleeding
Grievous bodily harm will be really serious
NOTE- Psychiatric harm can amount to GBH if
severe enough and if there is clinical diagnosis.
o Mens rea: Intention or recklessness as to causing actual bodily
harm
Actual bodily harm will again in this context mean
anything that interferes with the health or comfort of the
victim.
Wounding or causing grievous bodily harm with intent (s.18)
o Actus reus: Unlawfully wounding or causing grievous bodily
harm
Same as or s.20 above
General notes:
The test for recklessness is subjective- it is not about what the
reasonable person would have done. The test will be whether the
defendant was aware of the risk, which was an unreasonable or
unjustified one to take, and go on and take it anyway.
A victim’s escape may break the chain of causation if it was free,
deliberate and informed. The court will also look at how foreseeable
the victims response was. Similarly, the actions of a third party will
be assessed in the same way.
Transferred malice works so that if the defendant had the ‘malice’
to commit a crime against one person, or certain property, it is
transferred to the unintended victim and combines with the actus
reus to complete the offence.
o BUT- Will only apply if the same offence has been committed
as the one intended.
o No need to consider transferred malice where the offence can
be committed recklessly, as the defendant is only required to
foresee the risk of harm to anyone.
o EG- If the defendant intends to hurt a person, but instead
breaks a window, this will NOT be transferred malice.
If a person has been spiked and found carelessly driving, they will
not be found guilty of careless driving as this requires some
negligence, but they would still be found guilty of driving with
excess alcohol.
Trespassing is not a criminal offence
The hierarchy of assaults:
Offence Classificati Actus Reus Mens Rea Max sentence
on
(Simple) Summary Causing the victim Intention or recklessness 6 months
assault to apprehend as to causing the victim imprisonment
unlawful and to apprehend immediate and/or a fine
immediate personal and unlawful personal
force force. (Consent as
defence)
Battery Summary The infliction of Intentionally or 6 months
,(physical unlawful personal recklessly inflicting imprisonment
assault) force unlawful force and/or a fine
(Consent as
defence)
Assault Either way Committing an An intention or 5 years
occasionin assault or battery recklessness as to the imprisonment
g actual that causes actual assault or battery (NOT
bodily bodily harm (more the actual bodily harm)
harm than transient or
(s.47) trifling)
Maliciously Either way Unlawfully wounding Intention or recklessness 5 years
wounding or inflicting grievous as to causing actual imprisonment
or bodily harm bodily harm
inflicting
grievous
bodily
harm
(s.20)
Wounding Indictable Unlawfully wounding An intent to cause Life
or causing or causing grievous grievous bodily harm imprisonment
grievous bodily harm OR
bodily
harm with (Same as for s.20) An intent to resist lawful
intent arrest coupled with an
(s.18) intention or recklessness
to cause some bodily
harm.
(Simple) assault:
o Actus reus: Victim must apprehend immediate and unlawful
personal force
They do not have to fear the force, just be aware of it.
No need for violence, touching or injury
Words or silence can suffice (repeated silent telephone
calls)
Conditional threats may suffice if the immediacy
requirement is also met.
EG- If they raise their fists while also giving the
conditional threat.
NOT future threats
, o Mens rea: Intent to cause that apprehension or recklessness
as to whether it occurs.
Remember that the test for recklessness is subjective.
Battery (physical assault)
o Actus reus: Inflicting unlawful personal force
Can be done with a weapon
Even the least touching will satisfy- no harm needs to be
suffered.
o Mens rea: Intentionally or recklessly inflicting unlawful force
Note they must have intended or foreseen the infliction
of force, NOT the victims’ apprehension of it and NOT
the injury.
Assault occasioning actual bodily harm (s.47)
o Actus reus: Committing an assault or battery that causes
actual bodily harm
Includes (recognised) psychiatric harm.
Any injury that interferes with the health or comfort of
the victim
Must be more than transient or trifling
Will be satisfied if a substantial piece of hair is
pulled out.
o Mens rea: An intention or reckless as to the assault or battery
No need to show they actually intended or foresaw the
injury.
Maliciously wounding or inflicting grievous bodily harm
(s.20)
o Actus reus: Unlawfully wounding or inflicting grievous bodily
harm
Wounding will be where both the layers of the skin are
broken, resulting in bleeding
Grievous bodily harm will be really serious
NOTE- Psychiatric harm can amount to GBH if
severe enough and if there is clinical diagnosis.
o Mens rea: Intention or recklessness as to causing actual bodily
harm
Actual bodily harm will again in this context mean
anything that interferes with the health or comfort of the
victim.
Wounding or causing grievous bodily harm with intent (s.18)
o Actus reus: Unlawfully wounding or causing grievous bodily
harm
Same as or s.20 above
