ABH - The Law Bank

Report
Non Fatal Offences Against the Person
Non Fatal - ABH
Non Fatal Offences Against the Person
Non Fatal Offences – s.47 Offences
Against the Person Act 1861 Assault
Occasioning actual Bodily Harm
(ABH)
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Non Fatal Offences Against the Person
Non Fatal - ABH
Starter
1. Which act covers the most serious non-fatal
offence against the person?
2. Is a threat to kill you next week an assault?
3. Is assault a basic intent crime?
4. What is the actus reus for assault?
5. Which non-fatal offence is a specific intent
crime?
6. Why wouldn’t brushing past someone in a
crowded Tesco’s be battery?
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Non Fatal Offences Against the Person
Non Fatal - ABH
Starter answers
1. Which act covers the most serious non-fatal
offence against the person? OAPA 1861
2. Is a threat to kill you next week an assault? No
3. Is assault a basic intent crime? Yes
4. What is the actus reus for assault? An act which
causes another person to apprehend immediate
and unlawful violence
5. Which non-fatal offence is a specific intent crime?
S.18 OAPA 1861
6. Why wouldn’t brushing past someone in a crowded
Tesco’s be battery? Implied consent
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Non Fatal Offences Against the Person
Non Fatal - ABH
Objectives
• Describe using authority the actus reus of s47
of the Offences against the Person Act 1861
• Describe using authority the mens rea of s47 of
the Offences against the Person Act 1861
• Apply the actus reus and mens rea of ABH to
problem questions
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Non Fatal Offences Against the Person
Non Fatal - ABH
ABH– Key Principles
• Least serious of the non fatal offences found in the
OAPA 1861
• Section 47 states penalty only
• Elements found in common law
• Triable either way
• Five years
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Non Fatal Offences Against the Person
Non Fatal - ABH
Definition – OAPA 1861 s47
• Whosoever shall be convicted on indictment of
any assault occasioning actual bodily harm shall
be liable … to imprisonment for any term not
exceeding five years
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Non Fatal Offences Against the Person
Non Fatal - ABH
Actus Reus
• Actus reus of common assault
Or
• The actus reus of battery
Plus
• Occasioning Actual bodily harm
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Non Fatal Offences Against the Person
Non Fatal - ABH
Actus Reus of ABH
• S .47 is a common assault or battery that results
in actual bodily harm
• 2 different ways it can be satisfied
– Assault resulting in ABH
– Battery resulting in ABH
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Non Fatal Offences Against the Person
Non Fatal - ABH
Occasions
• Occasion appears to mean the same as ‘cause’
• Normal rules of causation applies
• Confirmed in Roberts (1971)
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Non Fatal Offences Against the Person
Non Fatal - ABH
Actual Bodily Harm
• Common law definition is vague
• Miller [1954] described it as ‘Any hurt or injury
calculated to interfere with the health and
comfort of the victim.’ Such hurt or injury need
not be permanent, but must, no doubt, be more
than merely transient and trifling.
• R v Chan Fook (1994) injury “should not be so
trivial as to be wholly insignificant’
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Non Fatal Offences Against the Person
Non Fatal - ABH
R v Miller (1954)
Case Law
Assault - ABH - actus reus - includes injury to state of mind
D had non-consensual sexual intercourse with his wife, after which she was "in a hysterical and
nervous condition.
Principle – Lynskey J: '"Actual bodily harm includes any hurt or injury calculated to interfere
with the health or comfort of the prosecutor..." There was a time when shock was not regarded as
bodily hurt, but the day has gone by when that could be said. It seems to me now that, if a person
is caused hurt or injury resulting, not in any physical injury, but in an injury to the state of his mind
for the time being, that is within the definition of "actual bodily harm".
Not Guilty Rape
Guilty of ABH
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Non Fatal Offences Against the Person
Non Fatal - ABH
ABH
• Has been extended to hair cutting (DPP v Smith
2006))
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Non Fatal Offences Against the Person
Non Fatal - ABH
DPP v Smith (2006)
Case Law
Assault – actus reus – cutting hair is ABH
D caused actual bodily harm to V by cutting off her pony tail. D went to the home of his expartner and cut of her pony tail with kitchen scissors. The magistrates accepted that there was no
actual bodily harm; the DPP appealed.
Principle – Cutting off a person’s hair amounted to ABH. Harm was not limited to injury to the
skin, flesh and bones and extended to hurt and damage. That the hair cut was "dead tissue" was
not relevant. Obiter: If paint or some other unpleasant substance were to be put on a victim’s
hair that would to could amount to actual bodily harm.
Guilty
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Non Fatal Offences Against the Person
Non Fatal - ABH
Psychiatric Injury
• Injuries such as broken tooth, loss of
consciousness, minor cuts requiring medical
treatment (stitches), minor fractures and
extensive bruising could all be ABH.
• Now since a key ruling in 1994 psychiatric injury
can be regarded as ABH.
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Non Fatal Offences Against the Person
Non Fatal - ABH
R v Chan Fook (1994)
Case Law
Assault - ABH - includes psychiatric harm but not emotions – escape case
D subjected V to questioning about the theft of a ring belonging to D's fiancée. D then dragged V
upstairs to a room and locked him in. V feared D's return and injured himself when he fell to the
ground escaping through a window.
Principle – "Actual bodily harm" includes psychiatric injury but does not include emotions,
such as fear or panic. ABH does not include states of mind that are not themselves evidence of
some identifiable clinical condition. Only expert evidence to this effect should be made to the
jury regarding psychiatric injury.
Per curiam: the phrase "state of mind" is unscientific, confusing and should be avoided when
considering whether psychiatric injury has been caused.
Not Guilty
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Non Fatal Offences Against the Person
Non Fatal - ABH
Psychiatric Injury
• Injuries such as broken tooth, loss of
consciousness, minor cuts requiring medical
treatment (stitches), minor fractures and extensive
bruising could all be ABH.
• Now since a key ruling in 1994 psychiatric injury can
be regarded as ABH.
• This means that Miller is now inadequate as
psychological injury can be quite serious
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Non Fatal Offences Against the Person
Non Fatal - ABH
Psychiatric Injury
Miller [1954]
Injury to the victim’s state of mind ‘for the time being’ amounted to ‘bodily harm’
Chan Fook [1994]
Held that the body is not limited to flesh, skin and bones but includes organs, nervous system
and brain. Mere emotions such as fear, distress and panic are excluded
Ireland [1998]
HL confirmed Chan Fook and held that psychological injury could amount to actual bodily harm
but that psychological injury should be a matter of expert evidence
Burstow [1998]
HL held that a sufficiently serious psychological injury could amount to GBH
Morris [1998]
In relation to psychological injury, expert evidence must be given by a psychiatrist not a general
practitioner
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Non Fatal Offences Against the Person
Non Fatal - ABH
Mens Rea
• The mens rea of common assault
or
• The mens rea of battery
• Mens rea relates to only the first pat of the actus reus (the
assault or battery)
• Therefore the mens rea of ABH is identical to the mens rea of
assault or battery
• Called – HALF MENS REA
• This was established in the combined appeal cases of
Savage and Parmenter (1992)
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Non Fatal Offences Against the Person
Non Fatal - ABH
Savage (1992)
Case Law
Assault - ABH - actus reus of ABH and mens rea of common assault - not intention or
recklessness – half mens rea
The defendant poured her drink over the victim (battery). The glass slipped out of her
hand, smashed and cut the victim. Her conviction under s.47 related to this injury. Her
appeal against conviction was based on lack of mens rea: she argued that she neither
intended injury nor foresaw that injury would be caused.
Principle – The House of Lords dismissed the appeal, holding that mens rea of s.47
required intention or subjective recklessness in relation to the common assault or battery
only. There was no requirement of intention or foresight in respect of the injury caused by
the assault or battery.
S Guilty
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Non Fatal Offences Against the Person
Actus reus
(1) Common assault or
battery
Mens rea
Intention or
recklessness as to the
common assault or
battery only
Non Fatal - ABH
(2) Actual bodily harm
NOTE: There is no
requirement that the
defendant intends to cause
ABH or that he foresees a risk
that ABH will occur as a result
of his actions
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Non Fatal Offences Against the Person
Non Fatal - ABH
Objectives
• Describe using authority the actus reus of s47
of the Offences against the Person Act 1861
• Describe using authority the mens rea of s47 of
the Offences against the Person Act 1861
• Apply the actus reus and mens rea of ABH to
problem questions
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Non Fatal Offences Against the Person
Non Fatal - ABH
Plenary - Fit R v Savage to this diagram
Actus reus
Mens rea
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Non Fatal Offences Against the Person
Non Fatal - ABH
Plenary - Fit R v Savage to this diagram
Actus reus
Pouring the drink over
the victim’s head
Mens rea
Doing so deliberately
The injury caused by the
broken glass
NOTE: even though defendant
did not intend or foresee the
injury, this was not necessary
for conviction under s.47
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