AS LAW UNIT 2

ASSAULT

AR= causing v to fear the inflcition of immediate unlawful force

MR= to intend or be reckless about causing v to fear the inflcition of immmediate unlawful force

BATTERY

AR= the infliction of immmediate unlawful force

MR= to intend or be reckless about the application of immmediate unlawful force.

s47

AR= an assault or battery which causes ABH

MR= to intend or be reckless about committing an assault or battery. But, there is no need for D to be reckless about the ABH caused.

s20

AR= wounding or causing GBH

MR= to intend SOME harm or be reckless as to whether SOME harm is caused

s18

AR= wounding or causing GBH

MR= Intention to cause SERIOUS harm

State - Explain - Apply (SEA)

In a criminal scenario you need to remember to:

1. State your actus reus
2. Explain your actus reus with a case
3. Apply your actus reus

Mens rea

State the mens rea of the offence 

The mens rea of assault is intention or recklessness to cause the victim to apprehend immediate unlawful force

Explain the mens rea of the offence with a case 

Apply the mens rea - state which level of mens rea the defendant appears to have.  

LOGDON

D pointed imitation gun at V & V believed gun was real & was terrified that D was going to shoot him. HELD:  D was guilty of an assault.

NOT NECCESSARY TO TOUCH A PERSON TO COMMIT AN ASSAULT. JUST CAUSING FEAR IN V CAN AMOUNT TO AN ASSAULT.

if words are phrased in such a way as to negate any threat the D is making this, this will not ammount to an assault as in.... 

TUBERVILLE V SAVAGE

man pulled out sword & said 'If it were not assize I would not tke such language from you.' although man had done an act which couldve made V fear immediate unlawful force his word showed that no violence was going to be used. therefore, no assault has taken place.

THOMAS

school care taker rubbed hem of girl's skirt. HELD: D had committed a battry- touching a persona's clothing whilst theyre wearing it is equivalent to touching the person.

battery can be committed through an indirect act as in...

DPP V K (A minor)

child took acid from science lab into toilet with him to test on tissue. child heard someone coming got scared & disposed of acid in hand dryer nozzel intending to remove it later. V used dryer before removal & was burnt & scarred. HELD: D had commited battery indirectly as the battery had aused the injury to v.

ABH WAS DEFINED IN MILLER: AS ANY HURT OT INJURY CALCULATED TO INTERFERE WITH THE VICTIMS HEALTH OR COMFORT.

CHAN FOOK ALSO DECIDED THAT PYSCHIATRIC INJURY CAN BE CLASSED AS ABH.

MR: there is no need for D to be reckless about wether ABH is caused.

ROBERTS

V jumped out of a moving car to escape Ds sexual advances & was injured however D was only intending to pull Vs coat off. HELD; D was guilty of s47 as he had the mes rea for battery (pulling her coat off) & her injuries resulted from this therefore guilty of battery.

WOUND= a break in both layers of the skin.

court considers effects on injuries on V as in...

BOLLOM

D caused serious brusing & grazes to a 17 month old child. these injuries would normally amount to abh. HELD; Vs age & health are relevant when deciding whether an injury amounts to GBH.

psychiatric injury can be GBH as in BURSTOW....

constant harassment (phone calls, letters etc) of V by D (ex partner) led to V been diagnosed with severe depression.

serious disease as in DICA

D was HIV positive & had unprotected sex with 2 women without telling them of his disease. Both women contracted HIV. HELD; intentionaly/recklessly passing on a serious disease amounts to inflicting GBH.

intention to wound is not enough for the MR of s18 as in taylor...

V found with scratches & stab wound on back. Judge directed jury that D mustve intended to cause GBH or intended to wound. D appealed. HELD; inend to wound is not sufficent MR for s18.

Smith

D denied intending harm to V (who was police officer) who he threw off his bonnet in a run way chase into oncoming traffic. V was run over & seriously injured. HELD; this did suffice for serious harm.

Classes Bore People Lets Give Sweets Not Tasks 1) all summary offences are heard in the magistrates court. D is either charged or summoned.

1a) summons= a document sent to D stating details of the alledged offence & the date which he has to attend court (usually used for minor offences.)

1b) charge= D has been arrested by police on suspicion of committing a crime. Evidence is sent to crown prosecution who will decide wether or not to charge D & charge will specify when D has to appear in court.

2) bail (wether or not d recieves bail is decided upon by the police or the crown prosecution service.) IF bail is refused D will be held on remand in prison unitl the date of trial (if D pleads not guilty) or appearance in court.

3) 1st appearence at mags' court D will plead guilty or not guilty.

3a) GUILTY PLEA= D can be sentenced but theres usually an adjornment to allow mags' to gather pre-sentence reports to decide what sentence theyre going to impose. Mags' will also have to decide wether D is given bail in the meantime or remanded in custody.

3b) NOT GUILTY PLEA= an adjournment is needed to arrange for witness to be brought into court. Mags' will on decide on wether or not D recieves public funding for legal representation. Mags' must aslo decide on wether or not D is held on remand in prison or given bail. The trial will have 3 mags' & 1 district judge to decide on sentence if found guilty.

once the person has been charged by the police if may be weeks or even months until their trial SO... during this time the court has to decide wether or not to give D bail or remand D in custody.

the bail act 1976 set out a statutory presumption of bail. EG- court is obliged to grant bail unless there are circumstances to suggest otherwise such as=  abscond, commit further offences, interfere with witnesses, protection. (AICD)

factors taken into consideration when granting bail= type of offence, evidence against D
conditional bail= cerfew, tag, surrender passport, live at specified address, report regularly to police

unconditional bail= bail granted without any conditions attacthed to it. D is unlikely to committ any further offence, will attend court & not interfere with justic process.

restricted bail= D has been charged with a serious offence (murder ****), D was already on bail & reoffended, tested positive for class a drugs & refused to take part in an assessment for dependency.

remand= D is detained in prison until the case is heard & verdict has been given.

1) mags' hold a plea before venue hearing. D asked whether he pleads guilty/not guilty

2) issues of bail & public funding may be decided.

3) if D pleads guilty, D is either

adjourned and then sentenced at a later date

committed to crown court because Mags' powers are insufficent.

4) if D pleads not guilty mags' must...

5)carry out a MODE OF TRIAL proceedings to decide whether or not their case will be heard in the mags' C or the Crown Court.

6)mags will then listen to prosecution & defence & come to a decision about the seriousness of the crime.

7) if the mags' feel they have insufficent powers they will offer D either a trial in their court or choose trail at the CC 

8) even if D does choose MC for trial the case may still be referred to the CC for sentencing.

1) d is charged. bail or remand given

2) CC holds plea & case management hearing (PCMH) desinged to ensure all necessary steps have been taken in prep for trial. trial date is then arranged & defendent enters guilty/non guilty plea.

3) IF D pleads guilty, D can be sentenced immmediately.

4) IF D pleads not guilty, the prosecution & defence inform the courts on matters such as: issues of the case, no. of witnesses & the order they will be called in, docs used in case and their order, estimated length of trial so counsel & witness dates can be arranged.

5) judge excerises managerial role & will organise secotrs to ensure case is heard promtly. trial date will be fixed & cc send a notice

6) trial at CC before judge & jury

RRDI

retribution- punishment which appropriatelt punishes D for crime  MOST IMPORTANT AIM OF SENTENCING. punishment must be proportional to crime- tarriffs sentences given to assist.

rehabilitation- reform offender & rehabilitate them back into society. EG- community service often poplar aomngst young offenders as 70% reoffend within 2yr

detterence- ensure D doesnt reoffend as knows consequence & puts off potential offenders. 65% of prisoners reoffend. london riots good example of deterrence.

incapacitation- for the protection of the public. life imprisonment or long sentences for serious offneces.

custcodial

given if community service isnt sufficent. prison sentence.

mandatory

for murder, only sentence available in life imprisonment (judge sets minimum no. of yrs before D is released on license.)

discretionary

for a person who has commited s18 judge can impose life sentence but doesnt necessarily have to.

fixed term

fixed no. of years given, D will usually serve 1/2 setence & be released on license

suspended

if D doesnt commit any crimes in time given D wont go to prison... if he does, sentence will be activated plus another sentece for crime.

community

• compusory unpaid work
• cerfew
• exclusion from certain areas
• drugs & alcohol treatment
• youth offenders attendance

financial sentences

money paid by D to state (road traffic offences)

discharges

absolute discharge  no immmediate punishment imposed, normaly very minor offence

conditional discharge D isnt given a sentece providing he/she doesnt commit any further crime for a set time (usually given for minor 1st offences.)

• The law decides whether a duty of care is owed by using the general test, from Donoghue v Stevenson, the 'Neighbour Principle'.
• Lord Atkin stated that you have a general duty not to injure those who are directly affected by your acts or omissions.
• It was then narrowed down in the Caparo v Dickman test, which has three stages:

DOC was established in the leading case of donoghue v stevenson....

D went to a cafe with her friend and her friend bought her a giner beer. D drank abit of the beer then poured the rest into a cup where a decomposing snail fell into the glass & she became ill as a result. D couldnt sue the cafe under contract law as it was her friend who purchased the drink. D therefore sued the manufacturer for shock & illness. HELD; a manufacturer owes a DOC to the sonsumer to ensure the product is safe.... HL THEN WENT ON TO SAY WE OWE A DOC TO OUR NEIGHBOUR (ANY1 WHOM WE COULD FORSEE HARMED BY OUR ACTIONS) 

would a reasonable person have predicted that the claimant might suffer injury or damage?

kent v griffiths

c was ill so an ambulance was called. ambulance took a long time to arrive for no good reason. c suffered heat attack whilst waiting. HELD; was forseeable that if an ambulance took a long time the person might suffer further harm.

jolley v sutton borough council

council knew there was an abandened boat on coucil land which children played on. council failed to move boat. C was a 14 yr old boy who was injured whilst trying to repair the boat. HELD; the injury to C was forseeable.

relationship between C and D was sufficently close- should the wrongdoer have forseen harm to V? UNLIKE IN...

bourhill v young

c pregnant, got off a tram in centre of town, heard a crash & decided to immediately attend the scene. C saw blood on the road but no body. C suffered shock & claimed that was the reason why her baby was stillborn. HELD; there was NO proximity between C & D- she had chosen to go to the incident scene herself.

even though the harm was forseeable & there was sufficent proximity there sometimes is no duty of care because it wouldnt be fair, just & reasonable. courts are reluctant to find a duty of care exists where D is a public authority. AS IN....

hill V chief constable of S yorkshire 

imposing a DOC on the police would divert resources away from active policing & suppression of crime. therefore, not fjr.

BUT IS FJR TO IMPOSE DOC IN...

MPC V reeves

D was brought into police custody & was known to be a suicide risk & killed himself in a cell. HELD; Police did owe C a DOC & was FJR to impose a duty as the police were aware of the risk & ignored it.

breach means d has fallen below the standard of care expected of a reasonable man

when deciding who the reasonable man is we need to consider whether D is:

learner- (nettleship v western) C teaching D to drive on her 3rd lesson there was no dual controls & D hit a lamp post injuring C. HELD; a learner is expected to reach the standard of a reasonable driver- NO ALLOWANCES.

professional- (mullins v richards) 2 14yr old girls playing with rulers. Ds ruler snapped & injured Cs eye. HELD; duty wasnt breached as 2 14yr olf girls didnt realise the harm. Standard of care from a child is lower than that of a adult.

child- (bolam) a patient agreed to have electic shock therapy to treat mental illness. C wasnt strapped down or given drugs to prevent physical injury as a result C suffered injuries & sued for compensation. HELD; medical opinion was divided on sudating patients & strapping them down & because C had agreed to the treatment D wasnt liable.

courts will also consider other factors of C such as: special characteristics of c, size of the risk, whether all practical precautions have been taken, benefits of taking the risk.

special characteristics of c- (paris v stepheny borough council) C was already blind in one eye and wasnt given safety goggles to protect is other eye. at work a piece of mental entered his 'good' eye and blinded that eye leaving him completely blind. HELD; D knew of Cs special characteristics & therefor shouldve paid more attention & provided goggles- D was liable.

size of risk (1) & cost & practicality(2) -(BOLTON V STONE) cricket ball hit c in the street after going over a 5 metre & only (1) ever 6 crickets balls in 30 years had escaped the ground so the risk was very low & D had taken all precautions & therefore wasnt liable.

(2) nets & fences were a reasonable precaution & the only other alternative was to move the cricket ground & this wasnt practical.

Benefits of taking risk (watt v hertforshire county council)

fire service called out to a crash, specialist heavy jack was need but in a rush the jeck was put in the fire engine but not strapped down to prevent movement & possible injury. The loose jack hit C & injured him. HELD; D hadnt breached their duty as the injury to the fireman wasnt as significant as the benefit of saving the woman.

having esatblished a duty of care & breach of duty we need to show the damage has been caused by a breach.

causation- but for (BARNETT V CHELSEA & KENSINGTON HOSPITALS)

3 men went to a & e not feeling well. doc didnt examine men but advised them to see their GP. 1 man died a few hours later & cause was the arsenic poison in tea. HELD doc owed DOC & breached it by failing to examine him however evidence shows man showed up at hospital too late for treatment. therefor,, breach was cause of damage & wasnt liable.

remoteness- wagon mound

d negligenty split oil into harbour. oil spread to Cs dock bringing cotton debris in it. C was carrying out welding work & enquired whether welding work would ignite oil but he was told oil had too high of a ignition point to ignite. however sparks from dock set fire to cotton & fire spread amongst C's neighbouring ships. HELD; c claimed for oil fouling & fire damage. the oil damage was forseebale but the fire wasnt.

1) D completes a complain form

2)claim form is served on D by post

3) c chooses which county court he wishes to start the claim in

4) on receipt of the form D can...

- admit the claim & pay damages

-complete a defence form

-complete an acknowledgement forof service form which confirms the receipt of the claim

after the recieveing the claim everything must be completed within 14 days otherwise  C can file for a default judgement which in effect means C wins the case BUT if D disuputes the clai & completes the acknowledgement form of service it gives D additional time to complete the defence from 14 to 28 days.

When C recieves the defence form the court will also send an allocation questionnaire to alll parties & once completed the judge will allocate the case to the appropriate track.

The judge has a duty to attempt to get parties to settle using ADR methods. Trial should be a last resort.

Small Claims - up to £10,000/up to £1,000 for personal injury

• takes a few hours (district judge)

Fast track - £10,000 - £25,000/£1,000 - £5,000 for personal injury

• takes about one week (circuit judge)

Multi track - from £25,000 or £50,000/£5,000+ for personal injury

• no set time period (circuit judge)

All are heard in the County court and multi track claims and complicated cases can be heard in the High court.

Question may be written as 'how can the court calculate the award of damages' or something, which is talking about types of losses and what you can claim for, you don't actually need to add up and calculate the amounts! 

Special - losses + claims up to the trial SPECIFIC General - losses + claims anytime after the trial

Pecuniary Losses - Quantifiable - things you can put a value on (typically special) EXAMPLES: Loss of earnings, Property damage

Non-Pecuniary Losses - Non-quantifiable - things you can't put a value on/difficult to value (typically general) EXAMPLES..Pain and Suffering - emotion and physical hurt, Loss of amenity (loss of ability to do something or loss of enjoyment of life), Loss of faculty (senses) e.g Mullin v Richards and Paris v Stepney

Hedley Byrne v Heller - shows you cannot claim for pure economic loss such as loss on contract and no injury as it opens floodgates.

Payment Lump sum OR Structured settlement - installments

• It means "the thing speaks for itself".
• It suggests that there must have been negligence for this incident to have occurred and so that helps the claimant because if they are able to claim this, they will not have to prove that there has been a breach of duty.
• A case example is Scott v London and St. Katherine's Docks where a man was hit on the head by bags of sugar falling from a crane. It was clear that this wouldn't have occured if there wasn't negligence, so the claimant could use res ipsa loquitur.
• The three principles are that:
• The thing that caused the damage was wholly controlled by the defendant.
• The incident that caused the damage wouldn't have happened unless someone had been negligent.
• There is no other explanation for the injury/damage caused to the claimant/property.
• If these conditions are met then the burden of proof shifts to the defendant and they have to prove on the balance of probabilities that there was some other explanantion.
• Other cases are: Mahon v Osborne where a medical swab was left inside a patient after a stomach operation; Ward v Tesco where a customer slipped on yoghurt left on a supermarket floor.

Actus Reus

Omission

An involuntary act does not form the actus reus of a crime. 

Hill v Baxter 1958

Crashed car charged reckless driving, but he was unconscious whilst driving. 

Contractual duty created an omission. 

Pittwood 1902

Left train crossing gate open, man was killed. 

Person’s public position created liability for omission. 

Dytham 1979

Man kicked to death, policeman watched (off duty).

Failure to minimise harm of a dangerous situation he created.

Miller 1983

Squatting in a house, started a fire and moved into another room. 

Taking on responsibility for another person creates an omission. 

Stone v Dobinson 1977

Anorexic sister needed medical help but they didn’t seek assistance – she died. 

Acts of Parliament can create an omission.

Children and Young Persons Act 1933

Failure to look after a child creates an omission. 

Causation

factual causation

Pagett 1983

Used girlfriend as a shield, she died from police guns.  

The original act was the operating and substantial cause of the consequence. 

Smith 1959

Fighting soilders – stabbed and died hour later, poor medical treatment – died of blood loss. 

Take your victim as you find him – religious views. 

Blaue 1975

Victim stabbed, Jehova’s witness, refused blood transfusion and died. 

Victim’s own act – reasonable, chain of causation unbroken.  

Roberts 1971

Defendant made sexual advances and girl jumped out the car. 

Mens Rea

Intent

Example of direct intent

Mohan 1979

Police pulled defendant over, he stopped then drove at the police, then drove off. 

‘Virtual certainty’ for oblique intent. 

Woolin 1998

Threw his baby at a wall – died.

Definition of subjective recklessness. 

Cunningham 1957 

Broke gas meter, gas leaked – neighbour fell ill. 

Coincidence of the Actus Reus and Mens Rea

Continuing act, so coincidence of actus reus and mens rea was later formed. 

Fagan v MPC 1969

Accidentally stopped car on police’s foot, but when asked to move the car he refused. 

Mens rea formed for the first act, continued over a series of acts and a consequence later. 

Thabo Meli 1954

Thought he killed victim, threw him over the cliff, died of exposure. 

Example of characteristics of a strict liability offence, not truly criminal, but of social concern. 

London Borough of Harrow v Shah 2000

Selling lottery ticket to young person, not truly criminal, matter of social concern.

Guilty even though it could not be predicted – encourages vigilance in businesses. 

Alphacell v Woodward 1972

Papermakers, polluted water in river, company had no way of predicting the accident. 

Guilty even though company had taken all reasonable care. 

Smedleys v Breed 1974

Tin of peas - caterpillar, they had taken all reasonable care. 

Assault and Battery

The court decided that an assault could be by words and actions. 

Logdon 1976

Pointed a replica gun at victim as a joke, terrified, she apprehended physical violence, the defendant had been reckless. 

In this case there was an assault by actions alone.

Smith v Chief Superintendent of Working Police Station 1983

Victim in nightdress, defendant in garden staring through, she was expecting harm. 

Silence or words alone can be assault.

Ireland 1997

Silent phone calls.

Decided that touching a person’s clothes can be battery.

Thomas 1985

Caretaker touched schoolgirl’s skirt. 

Offences Against the Person Act 1861

Section 47 – Assault occasioning ABH

Decided that ‘harm’ includes physical or psychiatric injury. 

Chan Fook 1994

Theft of fiancée’s ring, locked in room and jumped out the window – injuries. 

ABH can include all parts of the body, including hair. 

Smith 2006

Cut off partner’s pony tail. 

Mens rea of section 47 is intention or recklessness as to assault or battery. 

Roberts 1971

Jumped out of car due to sexual advances. 

Section 20 – grievous bodily harm

Explains that a wound requires breaking both layers of the skin. 

JCC v Eisenhower 1984

Hit in the eye with airgun, bruising and internal bleeding, and no wounding as skin did not break.

Collection of relatively minor injuries amounted to grievous bodily harm

Brown v Stratton 1998

Transsexual son, father and cousin attacked him, broken nose, three lost teeth and concussion. 

Section 18 – grievous bodily harm, with intent

Decided that for there to be a conviction under section 18, the defendant must have had intent to do grievous bodily harm or resist arrest. 

Belfon 1976

Defendant mounted and slashed victim with razor, severe wounds to face and chest.

mens rea not require, actus rea must be proven. in absolute liability, not onlt is mens rea not needed but even the actus reus need nor be voluntary act (winzar)

strict liability is generally used for minor, statutory offences which are punishable by fine. many apply to businesses. the courts will insist that MR is needed if the offence is serious one- sweet v parsley shows this.

examples of strict liability offences are...

• selling alcohol, tobacco, lottery tickets to underage (harrow v shah)
• pollution offences (alphacell)
• selling unfit food (callow v tillstone; smedleys)

make the point that d is being found guilty even if s/he has took all possible precautions which is potentially unfair. advantages of sl...

• encourges businesses to maintain a high standard
• protects children from substances
• protects public health
• easy for courts to enforce as MR doesnt need to be proven

advantages outwiegh possible disadvantages.

define RIL

explain 3 conditions...

• the situation was wholly under Ds control
• the incident could've only occured if D was negligent
• there is no other explanation

explain one case

explain using RIL shifts the burden of proof from C to D

Scenario may ask how the principle applies to scenario

apply 3 conditions & conclude.

define damages= financial compensation paid to C to restore him to the position he wouldve been in if the negligence had not happend

define special damages & give examples then apply to scenario

define general damages & give examples then apply to scenario

mitigation of loss

method of payment- lump sum & structured settlements