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Nfoap2014

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Nfoap2014

  1. 1. Starter: What‟s the offence? All of you should be able to work out at least two of the offences. Most of you should be able to work out all of the offences, and what connects them L Some of you should be able to tell me which offence is missing, and explain what is meant by it.
  2. 2. Offence Two: Battery “It has long been established that any touching of another, however slight, may amount to battery”  How is it applied?  Can you omit a battery?  Does it have to be hostile?  Does motive matter? What about all those everyday batteries on your way to work or school?
  3. 3. Got it? Were you listening? All of you are going to see 10 crimes, and you need to decide whether it is battery, assault or no crime. Some of you should be able to support your conclusion with reference to a case. D has an argument with V and throws a drink in her face D is on a bus and trips getting up, falling into V D says to V “If it wasn‟t for the police in the street, I‟d take out this knife and use it on you,” whilst putting his hand in his pocket. D picks up gun and holds it in V‟s face, without saying anything. Neither think that it is loaded D texts V every hour claiming that they are coming to kill V. It has been 12 hours since they started D puts a metal bar across the door and shouts fire D likes to touch freshly dried clothes, when they are on the line. D sings threatening songs outside V‟s house every night for an hour. D sneaks up on V while they are sleeping and cuts their hair. D climbs up a ladder and stares in V‟s window every night.
  4. 4. Offence Three: Assault occasioning Actual Bodily Harm The offence is committed when a person assaults another, thereby causing actual bodily harm, which is an either way offence and carries a maximum penalty on indictment of five years' imprisonment and/or an unlimited fine not exceeding the statutory maximum s.47 Offences Against the Person Act 1861
  5. 5. “Actual bodily” “any hurt calculated to interfere with the health or comfort of the victim” Miller 1954 “no so trivial as to be insignificant” Chan-Fook 1994 “more than transient and trifling” What kind of harm is included?
  6. 6. So, physical harm is easy- after all it leaves marks. But what about psychiatric harm? Chan Fook 1994 V was accused of stealing an engagement ring. D locked V in a room and threatened violence unless he gave back the ring. V tried to escape out of the window, using a curtain pole and a curtain and hurt himself. Challenge: why were the physical injuries not considered the basis of the charge? D charged with s.47 on the basis of fear and panic caused to V. 1. What does the „body‟ include? 2. What is excluded from psychiatric harm? 3. What evidence should the prosecution advance? 4. Do they think there will be a lot of cases? 5. What is the outcome of the appeal? Do you agree? Why/why not? Linking the Law: what impact does this decision have on the law of manslaughter?
  7. 7. What about that all important guilty mind? There is no mention of this in the section, but as it relies on assualt or battery, the mens rea is the same as for those offences. Savage An issue: Does D have to intend or be reckless as to the higher level of harm he causes? … the short answer is no! Roberts
  8. 8. So, now you should know ABH. True or false to each one of the following statements... E grade: T or F 1. Assault here carries the same meaning as elsewhere in the law. 2. D can be found liable for ABH, where he never intended or was reckless as to that level of injury. 3. Transient harm is sufficient to a charge of ABH 4. Panic and fear are enough for a charge of ABH 5. Loss of consciousness is enough for ABH C grade: Case as evidence A grade: exception, development or however...
  9. 9. Starter: How good is your understanding? You have 7 minutes to answer as many of these questions as you can. The winner will be the person with the most points overall… 1 Define assault! How might you only commit a battery on V? What level of force do you need for a battery? The key case on NFOAP? Which section defines ABH? 2 Which NFOAP can you not commit by omission? What does bodily include? How was the battery inflicted in DPP v Khan? Which case confirms that concussion is at least ABH? What happened in Savage? 3 Which case determined that words may not negate actions? What is „actual bodily‟ harm? How do we tell whether a contact is battery or not? What is the mens rea of ABH? What is meant by implied consent?
  10. 10. Offence Four: Malicious Wounding or inflicting grievous bodily harm Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without a weapon or instruments shall be guilty of an offence and shall be liable to imprisonment for not more than five years. s.20 Offences Against the Person Act 1861 What is the sentence? How does this compare to s.47? What are the two types of AR? What is the mens rea?
  11. 11. What is this wounding? AO1 Wound “A cut or break in the continuity of the skin” Develop your understanding... What about a broken bone? Wood 1830 JCC v Eisenhower 1983 What is classed as ‘skin’? Shadbolt What issues with this definition can you identify?
  12. 12. „Grievous‟ Harm “no more and no less than serious” Saunders 1985, confirmed in Brown 1994 Thinking: What if the harm would be less on another, does that matter? Bollom 2004 Linking the Law: which other legal rule could explain the decision in this case? Applying the law. Look at these injuries. Which would you class as „serious‟?
  13. 13. “Inflict” Classic Criminal Problem: D digs a hole in the road, meaning to harm V. He then waits until V drives by and drives into the hole, causing V to break his leg. Has he inflicted the harm? Historically this meant… R v Lewis R v Wilson (Clarence) What issues are there with this approach to the law?
  14. 14. The consequences of this decision… Burstow 1997 “I am not saying that the words cause and inflict are exactly synonymous. They are not. What I am saying is that in the context of the Act of 1861 one can nowadays quite naturally speak of inflicting psychiatric injury. Moreover, there is internal contextual support in the statute for this view. It would be absurd to differentiate between sections 18 and 20 in the way argued on behalf of Burstow.” Psychiatric Injury 1. Is an assault necessary for a conviction under s.20? 2. Can you „inflict‟ a psychiatric injury? Biological GBH 1. What does it mean? 2. Why is this reliant on the broad interpretation? 3. How can you inflict it recklessly
  15. 15. “Maliciously”  This sounds like it should mean.... Parmenter 1991  But the court has said it actually means....  And therefore means that the test is... G&R (confirming Cunningham)
  16. 16. Plenary: How do these pictures relate to what you have learnt today?
  17. 17. Starter: Name the case... Love doesn‟t pease everyone Despite the sword, my actions aren‟t savage. Run... fall... I don't remember anything else. Pretty skirt. Bite back. Girls and coats can be dangerous. Brum! That was a hairy crime! Words can constantly hurt Eye eye, that's gotta to (bleeding) hurt! Silence is golden at convicting you Look, can‟t touch Beer can be bloody Were they barred from the theatre? I told you school toilets were dangerous! Naval officers can be remarkably quiet... (and scary) All of you should be able ti identify the case Most of you should be able to identify the NFOAP the case is relevant to Some of you should be able to link the cases across offences to demonstrate the development of the law.
  18. 18. A Special Issue: Transmission of Disease Clarence His conviction for s.20 GBH and s.47 ABH was quashed on appeal... why? But meanwhile in Canada... Cuerrier Charged with aggravated assault Fraudulent transmission of HIV may be an offence (informed consent) “duty to disclose” And then a decision by our courts seems to open the door… Burstow How might this affect the interpretation of biological GBH under s.20?
  19. 19. Transmission of Disease What happened next? Dica 2004 We must “remove some outdated restriction against the successful prosecution of those who, knowing that they are suffering HIV or some other serious sexual disease, recklessly transmit it through consensual sexual intercourse and inflict GBH on a person from whom threat is concealed.” This approach was confirmed in Konzami 2005 Linking the Law: What defence might this issue link to?
  20. 20. A Moral issue: Criminal transmission... or public health issue? This is a very controversial area of the law. Many people feel that the criminal law is an inappropriate place to deal with these issues. What do you think?  D, who was 18, transmitted HIV to her boyfriend, also 18. She was infected by a previous partner when she was 15, and heard rumours he was HIV+. 30% of people with HIV do not know they have it Has also been expanded to include Herpes and Hepatitis. Your homework is to consider the arguments for and against the criminalisation of this issue. Should reckless transmission of disease be a prosecutable offence?
  21. 21. Application of the Law in Practice: Prosecutions for transmission under s.20 OAPA 1861 http://www.nat.org.uk/media/Files/Policy/2013/Criminal%20prosecution%20case%20table%20-%20March2013.pdf
  22. 22. Offence Five: Wounding or causing grievous bodily harm with intent This is the most serious non-fatal offence we have. Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any GBH to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person shall be guilty of an offence and be liable on indictment for a sentence of up to and including life. s.18 Offences Against the Person Act 1861 1. Which words can you already define and explain? 2. Can you spot all the offences?
  23. 23. Mens Rea... “.. with intent” To do some serious harm but… “the word ‘maliciously’ adds nothing to the definition.” Mowatt 1968 Types of Intent Direct Oblique
  24. 24. Let’s start with the odd offence… “…with intent to resist or prevent the lawful apprehension or detainer of any person.” Morrison 1989 s.18 requires an unlawful and malicious wounding with intent apprehension of the person. to resist the lawful
  25. 25. Some Practicalities... The Charging Standards Student Task: Use the information to outline some of the key types of harm which the CPS will using to decide what to charge you with Examples of Harm Aggravating factors? Common assault & battery s.47 assault occasioning ABH s.20 inflicting GBH or wounding s.18 causing GBH or wounding with intent Alternative convictions... s.18  s.20 s.20  s.47 Savage Mondair
  26. 26. Stop and Check: Can you match the definition to the origin for the NFOAP?
  27. 27. Got it? Applying what you have learnt Working in pairs or threes, you are going to answer one section C question using paper chains But before the creative bit... What are the essential things to remember when answering a section C? Our list for success:
  28. 28. Martin sleeps with Claire but doesn’t tell her he has HIV, as he hasn’t been officially diagnosed. Claire’s brother, Wayne, later finds out from a friend that Martin is HIV positive, and is furious. He sends Martin over fifty text messages threatening to harm him and let him ‘bleed to death’. Martin does not know who is sending the messages, but is now too terrified to leave his house. Meanwhile, Claire has been diagnosed with HIV and wants revenge. She takes her airgun to Martin’s house and fires it through the letter box. Martin, terrified, leaps backwards and breaks his leg. In addition, the pellet hits him in the stomach, causing his stomach to bleed internally. Evaluate the accuracy of each of the four statements A, B, C, and D individually, as they apply to the facts in the above scenario. Statement A: Martin is liable for a s.20 offence by transmitting HIV to Claire Statement B: Wayne is not liable for an assault as he did not touch Martin. Statement C: Claire is liable for s.20 wounding for causing the internal bleeding Statement D: Claire is not liable for Martin’s broken leg as she didn’t cause it directly.
  29. 29. Sergei is driving his car at speed. Dasha, a pedestrian, has to leap out of Sergei’s way and she falls over, suffering cuts and bruises. Adrian, a passer by, helps Dasha to her feet. Dasha’s boyfriend, Miroslav, sees Dasha fall. He runs over and shouts at Adrian “Let her go or die!”. Miroslav drags Sergei from the car and kicks him repeatedly, breaking three of Sergei’s ribs. Evaluate the accuracy of each of the four statements A, B, C, and D individually, as they apply to the facts in the above scenario. Statement A: Sergei will be liable for a section 20 OAPA 1861 offence. Statement B: Sergei will be liable for a section 47 OAPA 1861 offence. Statement C: Miroslav will not be guilty of an assault on Adrian. Statement D: Miroslav will be liable for a section 20 OAPA 1861 offence
  30. 30. So what are the problems with the old law? Law Commission 1993 “Complicated, obscure and old-fashioned language.” Battery Fear and apprehend Resist arrest Cause and inflict Assault Grievous 4. There is a lot of inconsistency in the act. Because it was a consolidating statute, different terms have been used, and are now held by the courts to mean the same thing. If Parliament stepped in and clarified it, it would be helpful! 1. Although this only requires the slightest touch by D, the modern use of the word implies more serious harm 5. The word fear used to be used to describe V's reaction. This was a problem as many men wouldn't admit it, and it is too broad. Apprehend has been interpreted quite widely. 2. This is a confusing inclusion, and seems unduly harsh. 6. This means something different legally and has adopted a different meaning over the years, meaning to cause harm. When we are talking about a 'serious assault' we are really talking about GBH rather than fear of unlawful force 3. Hard to tell what this means. 'serious' is the current definition, and is quite a subjective word.
  31. 31. Next step… a Draft Bill Yes, that‟s right they actually took the next step! The proposed clauses…
  32. 32. The Draft Bill… So what did they propose? Present Offence s.18 s.20 s.47 Assault & Battery Proposed New Offence Changes? MR? Max Penalty
  33. 33. What about the language of the reforms? injury assault cause serious recklessnes s
  34. 34. Plenary: True or False? Based on your understanding of this lesson, answer the following questions. The government proposed a bill to reform non-fatal attempts Serious was not defined in the bill The maximum sentence for reckless serious injury would be 5 years Assault would stay the same The mens rea for clauses 2 and 3 would stay the same as for the current offences (s.20 and s.47) Transmission of a disease would still be an offence under the new act. Injury would include physical and psychiatric harm Wounding does not appear in the bill
  35. 35. Starter: Will you be hexed by the hexagon? Lollipop Level: No handouts, just brains and teamwork Sticker level: a third player in the team... Your handout or textbook! Too easy? Can you explain how the laws on harassment have developed since the 1997 Act?
  36. 36. Sinita and Mina share a flat. One night Sinita finds Mina kissing Sinita’s boyfriend, Alberto. She picks up a glass of water, raises it in the air and shouts at Mina, “You hussy, I’ll kill you!” She tries to throw the water at Mina but the glass slips from her hand and strikes Mina in the face cutting her forehead. Alberto is so angry that he pushes Sinita and she falls backwards over a stool onto the floor and is knocked unconscious for a few seconds. When Sinita recovers consciousness she is still dizzy and stumbles towards Mina knocking her onto the floor. Mina suffers a fractured arm. Later that evening, when Sinita is sleeping, Mina gets a pair of scissors and cuts off Sinita’s ponytail in an act of revenge. Discuss the potential criminal liability of Sinita, Alberto and Mina for the above incidents. [50] This is a problem question and will appear in part b of the paper. You will have three and must answer one of them. They are worth 50 marks (25 AO1, 20 AO2 and 5 Ao3) and should be logical, detailed and well applied... In fifty minutes You should refer to at least eight well explained cases and will need to know your definitions to help. You should deal with each defendant seperately (subheadings can be useful) You need to remember: O C D In structuring your answer.
  37. 37. Stage One: highlight and annotate the problem, identifying relevant cases, statutes and definitions. Sinita and Mina share a flat. One night Sinita finds Mina kissing Sinita’s boyfriend, Alberto. She picks up a glass of water, raises it in the air and shouts at Mina, “You hussy, I’ll kill you!” She tries to throw the water at Mina but the glass slips from her hand and strikes Mina in the face cutting her forehead. Alberto is so angry that he pushes Sinita and she falls backwards over a stool onto the floor and is knocked unconscious for a few seconds. When Sinita recovers consciousness she is still dizzy and stumbles towards Mina knocking her onto the floor. Mina suffers a fractured arm. Later that evening, when Sinita is sleeping, Mina gets a pair of scissors and cuts off Sinita’s ponytail in an act of revenge. Discuss the potential criminal liability of Sinita, Alberto and Mina for the above incidents. [50]
  38. 38. Stage Two: Start planning your answer by noting down the OCD issues for each defendant. Sinita and Mina share a flat. One night Sinita finds Mina kissing Sinita’s boyfriend, Alberto. She picks up a glass of water, raises it in the air and shouts at Mina, “You hussy, I’ll kill you!” She tries to throw the water at Mina but the glass slips from her hand and strikes Mina in the face cutting her forehead. Alberto is so angry that he pushes Sinita and she falls backwards over a stool onto the floor and is knocked unconscious for a few seconds. Sinita Mina: When Sinita recovers consciousness she is still dizzy and stumbles towards Mina knocking her onto the floor. Mina suffers a fractured arm. Later that evening, when Sinita is sleeping, Mina gets a pair of scissors and cuts off Sinita’s ponytail in an act of revenge. Discuss the potential criminal liability of Sinita, Alberto and Mina for the above incidents. [50] Alberto:
  39. 39. Hint: with non-fatal offence questions, focus on the harm as the starting point! Stage Three: Plan and write the essay! Introduction: This should identify the issues that the problem has raised and what you are going to talk about... Main: This considers the issues as they apply to each character. You must ensure that you are clearly explaining each element (definitions and origins... Including the facts of any relevant case) and then applying these to the situation to come to a conclusion. Remember: even the obvious must be stated! The examiner cannot mark what you do not write down! Conclusion: “Sinita may be liable for inflicting a wound under s.20 OAPA 1861 for the Overall, what do you think the court is likely to find them liable for and why? cut to Mina’s head. This is because the courts have clearly defined a wound as a cut in all layers of the skin, which seems to be the case here. This definition was confirmed by the courts in the case of Eisenhower, who shot V in the eye with a pellet. The court held that although it caused the blood vessels in his eye to burst, it was not a wound as it had not broken the skin.”
  40. 40. Homework: Finally... 1. Continue revising for your Mock Criminal Law Exam next week 13A 13C How confident are you with what you’ve got to do for a problem question? 25th April 2012 26th April 2012 2. Write up the problem question we have just planned. If you want it marked and back before the mock exam ensure it gets to me before the end of school on Monday 23rd April. Not at all Very

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