Non Fatal Offences Against The Person Notes

Criminal Law Reading Session 4- Non fatal offences against the person Ashworth * Attempted murder is the most serious of non-fatal offences, despite not necessarily causing any actual harm. Same goes for attempting to cause GBH. Both have maximum sentence of life imprisonment. There must be intent to kill and evidence of something "more than merely preparatory" * S.18 offences Against the Person Act 1861 creates GBH/wounding with intent. This can be done either by causing a wound (an injury which breaks both inner and outer skin, but not a bruise or burst blood vessel in the eye). GBH is basically "really serious harm), including Dica (transfer of HIV through intercourse was judged to be GBH). Guidance on GBH refers to permanent disability, loss of sensory function, major permanent disfigurement, broken or displaced limbs or bones, substantial loss of blood, injuries causing lengthy treatment or incapacity. This can include really serious psychiatric injury (not merely emotions such as fear but the causing of actual conditions- see Ireland and Burstow 1998), though it may be hard to prove intention to cause this injury. Crimes as serious as GBH need to have been foreseen or at least foreseeable in such a case, making it a constructive form of liability. NB a wound can be "a relatively minor cut". * Recklessly inflicting a wound or GBH = s.20 Offences against the person act. "Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of [an offence], and being convicted thereof shall be liable to [imprisonment]."vMowatt (1968) established that so long as the offender was reckless to some form of physical harm he can be liable. It carries a maximum sentence of 5 years * Aggravated assault comes about in several ways: Assault with intent to rob has maximum sentence of life imprisonement (s.8 (2) Theft Act 1968); Assault with intent to resist arrest or prevent a lawful arrest (s.38 1861 Act) with a maximum of 2 years imprisonment; Occasioning actual bodily harm (s.47 1861 Act). The conduct element of occasioning actual bodily is causing discomfort to the health of the victim, provided it is not transient or trifling. It may include broken teeth, cut requiring stitches, broken noses, psychiatric harm which is more than just fear or panic. It is odd because the fault requirement is the same as a lesser offence (common assault) while the penalty is like that of a higher offence (5 years imprisonement max.). * Another aggravated assault is where occasioning actual bodily harm is racially or religiously motivated. This raises the penalty from 5 to 7 years imprisonment max. * Assaulting a police officer in the execution of his or her duty contrary to s. 89 Police Act 1996, carrying same max. penalty as common assault (6 months). It is only "aggravated" because courts tend to impose higher sentences on those who attack police officers. * Common Assault: battery is the unlawful touching or application of force to another person, while assault is causing another person to apprehend or expect such a thing to occur. Each is covered by s.39 CJA 1988 and carry max. penalty of 6 months imprisonment. It is arguable that mere touching ought to be a question of invasion of privacy, not assault or battery. Lord Goff excludes "those touchings that are incidental to ordinary everyday life and travel". DPP v Santa-Bermudez and DPP v K show that creating harm indirectly will suffice. E.g. digging a hole for someone to fall into. Ireland v Burstow established that an assault can be established by words. * There is an immediacy requirement to assault: Lord Steyn gave the example of a caller who threatened to arrive at the victim's house "in a minute or two" would satisfy the requirement. However Ashworth says that the requirement in loosened in Ireland-Burstow * Intention or advertent recklessness is required for common assault. Where racially or religiously motivated it is triable in the Crown Courts and has max. sentence of two years in jail. * Should the law allow consent to negative what would be a crime? Clearly in sexual offences like rape, lack of consent is part of the crime, not merely a defence. Similarly "touching" in the case of battery assumes a lack of consent. Consent doesn't have the same philosophical underpinning as defences such as self defence: instead it recognises that the autonomy of the other person is not being violated. However simply because nobody's autonomy is being harmed does not mean that the activity is right or should not be censured. * Only fully informed consent will suffice: Dica and Konzani had sex with people without telling them of their conditions and were therefore convicted, even though the sex was consensual. There is an argument that this is unfair: if V fails to enquire about D's sexual health then is V not taking a well known risk about STDs? The courts have imposed a duty on D and created a crime of omission. * In [1981] QB 715 two boys had decided to have a fight to settle a dispute. CA said that it was against interest that people should cause each other actual bodily harm for no good reason. Consent may negative assault or battery, but nothing more serious - see Lord Lane (AG ref no.6 of 1980): exceptions such as playing violent sports may be excused as the enjoyment of legal rights or public interest. Ashworth says it would be more convincing to have an approach which assumed consent makes any act lawful and then explains why not in the cases where this fails to apply (e.g. on his approach one would have to say "consent 

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