Unit 3 - OAPA - Non-Fatal Offences

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  • Created on: 31-01-15 13:40

Unit 3 - OAPA - Non-Fatal Offences


  • s20 involves D causing GBH upon another person. If found guilty, liable to impriosnment for upto 5 years. For s20 there is intention to cause some harm but no serious harm (GBH). 
  • Offence commonly known as malicious wounding.
  • AR= must be unlawful. Requires wounding or causing GBH. Wounding requires a break in the surface of the skin; Eisenhower. GBH means really serious harm; Brown and Stratton. Severity of injuries should be assessed according to V's age and health when considering as GBH; Bollom.
  • s20 involves word 'inflict'. This should generally be considered as requiring proof that D's actions led to V suffering GBH; Burstow.
  • MR= incolved word 'maliciously'. To prove D acted maliciously, it's sufficient to prove that he intended his act to result in some bodily harm to some other person, even if this was a minor nature, or subjectively reckless as to the risk that his act lead to; Mowatt.
  • Its enough that D should have foreseen that some physical harm to some person, even if it's a minor character might result. 
  • D would be convicted under s20 if it couldn't be proved that D intended to cause GBH; Parmenter. If so, D wouldn't be convicted of an assault causing actual harm under s47; Savage.
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Unit 3 - OAPA - Non-Fatal Offences


  • AR= must be an assault OR battery, occasioning ABH. 'Occasioning' means causing. 
  • Involves an injury which interferes with health of V. 
  • Either way offence (statutory offence)- max sentence 5 years imprisonment.
  • AR of assault= any act casuing V to apprehend immediate use of violence. 'Apprehend' doesn't require V to be afraid, merely to be aware something violent is going to happen. 
  • Assault includes physical threat; Logdon and indirect; Ireland
  • AR of battery= involves a person inflicting unlawful force on another. Touching is enough if hostile; Thomas. Some forms of contact are unavoidable, therefore not battery; Collins and Willcox.
  • Assault or battery must lead to ABH. Miller; judge ruled ABH must interfere with health of victim. Doesn't have to be permanent but needs to be more than trifling; Chan-Fook
  • ABH said to include psychiatric injury, confirmed in Ireland and Burstow.
  • Breaking of teeth, extensive bruising, minor fractures, cuts requiring stitches would be classed/charged under s47.
  • MR for s47 same as asaault or/and battery.
  • MR for assault= either an intention to cause another person to expect immediate, ulawful personal violence or recklessness as to whether such apprehension is caused. 
  • MR for battery= either an intention to cause unlawful physical force or recklessness, causing unlawful force.
  • s47 basic intent crime, can be committed with intention or cunningham subjective recklessness. 
  • D must have guilty mind to be charged with offence. 
  • For D to have MR, all that needs to be proved, that there is a link between the assault and harm; Roberts.
  • It's enough that V suffered ABH; Savage. If D intends to cause some serious harm, would be s20 offence; Parmenter.
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Unit 3 - OAPA - Non-Fatal Offences


  • Often referred to as wounding with intent. Requires D to have intent to cause GBH can lead to life imprisonment
  • AR= maliciously wounding or causing GBH.
  • MR= maliciously wounding or causing GBH.
  • Crime of specific intent- can't be caused with reckless intent.
  • The malicious wounding must be done with an intent to cause serious harm or resist arrest.
  • Offence can be commited by: 1) malicious wounding in which D intends to cause GBH or to resist arrest, 2) a malicious GBH with intention to cause GBH or to resist arrest.
  • You can be reckless when resisting arrest and if you cause GBH you will be liable for s18; Mowatt.
  • GBH means really serious harm. 
  • Objectively assessed; Brown and Stratton
  • Need to consider charactersistics of V, especially their age. Brusising caused to a baby could be GBH; Bollom.
  • GBH can include psychiatric harm; Burstow, Chan-Fook for ABH.
  • One way of committing s18 offence involves causing GBH with intent to resist arrest. This charge is easier to prove than intending to cause GBH.
  • AR of s18 can be caused by an ommision.
  • In s18 the word 'caused' is used.
  • MR= 1) intention to cause GBH OR 2) intention to cause GBH when resisting arrest (can be done recklessly). Direct intent; Mohan. Indiect intent; Woolin and Mathews and Alleyne. 
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Unit 3 - Non-Fatal Offences - Defences


  • Can be a defence to a common assault or battery where there is no injury caused.
  • However, where there is an inury caused, cosent is not a defence unless it is an exception to this rule based on public duty.
  • The defence of consent if successfully pleaded will mean that D has not committed a crime.
  • Consent is not a defence to s47, s20 and s18 unless it falls within any of the exceptions below:
  1. If consent is genuine; Richardson - consent wasn't genuine; Tabassum
  2. Sports injuries; Barnes
  3. Rough horseplay- a person can give consent to the risk of harm caused during rough horseplay if there is no intention to cause harm; Jones, Richardson, Irwin
  4. Surgery including tattooing and body piercing; Wilson
  5. Mistaken belief in consent
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Unit 3 - Non-Fatal Offences - Defences


  • Can be used to all offences 
  • If successfully pleaded, D not liable and acquitted
  • Two elemets to plead automatism; 1) act is volunatry, 2) harm/injury caused by an external factor

Involuntary act= involunatry defined as not controlling limbs in purposeful way; AG Ref

External Factor- must becaused by an external factor; Henessy, not internal e.g. a disease; Quick

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Unit 3 - Non-Fatal Offences - Defences


  • Can be used as a defence if D has the required MR
  • If D lacks required MR due to intoxication- may not be found guilty

Volunatry intoxication

  • When D chooses to become intoxicated with alcohol, illegal drugs etc 
  • Not excused from consequences of actions if volutarily intoxicated; Gallagher 
  • If proved intoxication prevented D from having necessary MR- charge can't be proved 

Involunatry intoxication

  • If D doesn't know he was taking intoxicating substances- eg. drink spiked or prescribed drug has unexpected effect
  • Must be proved intoxication prevented D forming required MR; Kingston
  • Unanticipated strength of intoxicant does not make intoxication involunatry; Allen
  • Non-dangerous drugs may lead to involuntary intoxication; Hardie

Specific intent

  • Intoxication can be a defence to specific intent crimes not basic intent crimes; Majewski
  • Specifc intent crimes defined as offences requiring specific MR- murder and GBH s18
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OAPA- Murder


  • AR= 'Unlawful killing of a reasonable creature in being and under the King's Peace'
  • Killing must be unlawful to be convicted of murder 
  • The AR must be an act or ommisison and D can't be guilty unless his actions caused death


  • D's guilty act caused V's death- rules of causation applied
  • no causation- act is not unlawful- no crimial liability 

Factual causation 

  • 'But for' D's actions consequences/death wouldn't have happened; Pagett opposite in White

Legal causation 

  • D's actions cause of death- more than minimal- not substantial
  • Slight and trifling link; Kimsey
  • Thin skull rule- D takes V as he finds them; Blaue
  • MR= stated as being a 'malice aforethought, express or implied'
  • Expresss (intention to kill)
  • Implied (intention to cause GBH)
  • In Vickers court held if D intends to inflict GBH and V dies, its always sufficient to imply malice aforethought,
  • Oblique/Direct intent
  • Foresight of consequences; Woolin
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OAPA- Murder- Defences (voluntary manslaughter)

Loss of control

  • Defence can used to allow those who lose self control to have a defence in favour of them 
  • Defence set out under Criminal Justice Act CJA
  • Replaces provocation modified under Homicide Act
  • One of these modifications- loss of control didn't have to be sudden; Ahluwalia
  • New partial defence must show- the act/ommision in killing resulted from a loss of control, the loss of control had a qualifying trigger and that a reasonable person of the same sex/age would've acted in a simialr way under the circumstances

Qulaifying triggers

  • Fear of violence; Martin
  • Things said or done, if extremely grave character 

Excluded matters

  • Sexual infidelity
  • Revenge; Ibrams and Gregory

If successful, offence reduced to voluntary mansalughter

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OAPA- Murder- Defences (voluntary manslaughter)

Diminished Responsibillity

  • Set out in s2 of Homicide Act, reviewed in s52 of the CJA
  • Act sets out a person can't be guilty/convicted if they are suffering from an abnormality of mental functioning which arose from a medical condition, or substaially impaired Ds ability to understand nature of their conduct, or form a rational judgement, or excercise self control
  • Burden would be on D to prove they were suffering from an abmormality of the mind, and that the abnormality impaired D's mental responsibility of the crime.
  • To meet the requirements of 'an abnormality of the mind' D must prove they didn't have the ability to from a rational judgement; R v Byrne and that they didnt know between right and wrong.
  • It's not neccessary to show the abnormality existed from birth; R v Gomez
  • If plead is successful offence reduced to voluntary manslaughter 
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Involuntary Manslaughter-Unlawful Act manslaughter

Unlawful Act Manslaughter 

  • Unlawful killing where D doesn't have the intention to kill or cause GBH
  • Also known as constructive manslaughter - as liabiliity is for death is built up from the facts that D has committed an unlawful act which caused death -  therefore liable although D did not realise that death or injury might occur.
  • Maximum sentence life, but can be non-custodial
  • AR- elements; D must commit unlawful act, act must be dangerous on an objective test, act must cause death and D must have the required MR for the unlawful act.
  • Unlawful act- death caused by unlawful act must be criminal- a civil wrong is not enough; Franklin 
  • Lamb- D and V were playing with gun/as a joke D fired killing V/ no fear of violnce/ no assault/ not guilty 
  • Omission not enough- an ommision can't create a liability for an unlawful act manslaughter; Lowe and backed up in Khan and Khan 
  • Dangerous Act- unalwful act must be dangerous on an objective test/ reasonable person would've foreseen harm/ not necessarily D/ risk needs to be some harm not serious harm; Church 
  • Does not matter that D did not realise there was a risk of harm; Larkin- threat was not necessarily aimed at V/ D brandished knife/ threaten another/ V intoxicated fell into knife/ manslaughter conviction upheld/ assault against another/ act was dangerous as likely to injure someone
  • Act doesn't need to be aimed at the victim; Mitchell, and can be aimed at property; Goodfellow
  • Risk of harm must be physical and cause a person to suffer shock. 'Emotional disturbance'is not enough; Dawson 
  • However, if D is aware of V's frailty and risk of physical harm, then D liable; Watson 
  • Causing the death- unlawful act must be cause of death/ if an intervening acts breaks the chain of causation/ D can't be liable for manslaughter- Difficult when D supplies V with drugs; Cato  
  • Kenendy;D filled an injection with heroin/ V injected himself and died/ HoL upheld convition/ V voluntarily injecting himself was intervening act. 
  • MR- must be proved that D had MR for unlawful act, not necessary for D to realise the act was unalwful or dangerous; Newbury and Jones 
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Involuntary Manslaughter-Gross Negligence Manslaug

Gross Negligence Manslaughter (GNM)

  • Committed when D owes V a duty of care but breaches that duty, V dies as a result of D's negligence
  • Can be committed by an act or omission, which doesn't have to be unlawful
  • AR- negligent must be sufficiently serious to be liable; Adamako- anaesthetist failed to notice disconnected pipe during an operation/ was abysmal/ sufficient for liability.
  • From Adomoko, four elements needed to prove GNM; D's duty of care towards V, breach of duty causes death, jury considers gross negligence to be criminal and gross negligence was substatial cause of death.
  • Duty of care- neighbour principle is used; Donaghue v Stevenson 
  • Liability imposed for omissions in limited situations- Contractual duty; Litchfield, Singh, voluntary duty; Stone and Dobinson, complicity in a crime.
  • May be determined by public policy; Willoughby 
  • Can also exist if D contributed to a state of affairs which he knows is life threatening; Evans 
  • Gross Negligence - D's negligence must be gross; Bateman 
  • Risk of Death- risk of death caused by D's conduct, referred in Adamoko
  • Stone and Dobinson test was expressed as the risk to the 'health and welfare' of the sister
  • previous test was 'disregard for the life and safety of others'; Bateman 
  • MR- involunatry manslaughter, D doesn't have the intention to kill or cause serious harm 
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Involuntary Manslaughter-Subjective Reckless Mansl

Subjective Reckless Manslaughter (SRM)

  • Subjective approach
  • When D either intended injury or realised there was a risk of injury and took that risk
  • unlaful act manslaughter/ act must be objectively dangerous; Newbury and Jones/ but for non-fatal assaults test can be subjective; Cunningham
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Unit 3 - Non-Fatal Offences - Defences


  • Where an attack of violent, unlawful or indecebt nature is made so that the V fears for her safety- he/she is entitled to protect herself 
  • V can use no more force than is necessary
  • s3 CRiminal Law Act states that a person may use reasonable force to prevent a crime
  • Sometimes the victim can make a mistake when using self-defence; Williams- as long as v had a genuine belief that his actions were reasonable he would be able to use self-defence to negate his criminal liability
  • The D can't rely on any mistake made due to him/her being voluntarily intoxicated; Lipman
  • The Criminal Justice and Immigration Act states that if a person uses force when defending themselves, that force must be reasonable not excessive 
  • If the v honestly thought that the level of force used to protect themself was neccessary they will be able to use this as a defence
  • If force is used after all danger is from the attacker is over, this is a revenge attack and can't be used as a defence
  • A person does not have to wait untill they are attacked before they can use force to defend themselves. If the D honesty thought that they wre about to be attacked, can react to save herself; AG Ref
  • The D does not have to wait for an attack to start but can get in the first blow but must be reasonable; Bird 
  • When a person is defending themselves they can only do what is reasonably neccessary; Palmer. It will depend on the circumstances of the case
  • For eg, in Clegg- soldier(D) at checkpoint/ shot at speeding stolen car/ evidence showed that v killed by shot fired once car had passed/ no argument for self-defence/ D's conviction upheld for murder on appeal
  • Martin similar in that the D was unsuccessful in pleading self-defence because the amount of force used was excessive. Self-defence requires the force to be reasonable 
  • s76 of The Criminal Justice Act states that reasonable force depends on the danger percieved by the defendant. If the defendant's psychiatric condition makes him genuinely believe that force is neccessary, the act then implies that self-defence can be used 
  • The burden of proof is on the prosecution to prove that self-defence was not excessive use of force and was needed to protect the individual
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Unit 3 - Non-Fatal Offences - Evaluation and Refor

Self defence- Evaluation & Reform- Introduction 

  • The main advantage of self defence is that it allows a victim to protect himself from an attack of violent or unlawful nature. It will allow a victim to use a reasonable amount of force and will allow self defence even if a mistake is made about a situation; Williams
  • The D does not have to wait for an attack to start but can get in the first blow; Bird. The courts will have to decide if the victim was acting reasonably.
  • Self defence also allows people to use reasonable force to defend their property; Ferrie. The Legal aid, Sentecing and Punishment of Offenders Act tries to give reassurance to householders about their rights.
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Unit 3 - Non-Fatal Offences - Evaluation and Refor

Self defence- Evaluation 

  • In evaluating self defence/prevetion of a crime, courts have to deceide if its reasonable to allow a person to get in the first blow(pre-emtive strike) or wait untill they are attacked before they do so; AG Reference
  • Case of Bird shows the problem of this rea of the law when a man lost eye during a pre-emtive strike 
  • Seems like the law works in favour of D, even if they defend themselves when they have made a mistake about circumstances of the situation; Gladstone Williams. The law can protect the D even if they've done something wrong, as long as the mistake is honest. Is it fair that the law does this? The law seems to be helping the D avoid liabillity.
  • The main problem with sef defence is the issue of reasonable force. However a number of cases have shown thats its difficult for the courts to decide what level of force is appropriate. In the heat of the moment a person may use what the courts think is excessive force becauase they are frightened; Clegg, Hussain
  • Another problem is that the courts may have to consider the D's characteristics when deciding if self defence can be used; Martin. Martin was convicted of murder, however he had a medical condition that made him think there was more danger than what would be thought by an average person. Before The Criminal Justice Act the courts did not consider a D's characteristics.
  • However, the Coroners and Justice Act has reduced this problem because a defence of loss of control can be decided in situations where the defendant uses excessive force because he is easily frightened. This lead to Martins conviction of murder to manslaughter as he was suffering from diminished responsibility.
  • Finally there has been considerable public concern about whether the police can use force in the prevetion of or defending thmeselves. In 2005, the police shot a brazillian who they thought was a terrorist.  The courts would have to decide whether the police could use self defence or if this was likely to go against the Human Rights Act where a person has the right to live.
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Unit 3 - Non-Fatal Offences - Evaluation and Refor

Self defence- Reform 

  • The Law Commision in 2006 looked at self defence. It rejected excessive force when using self defence as a defence to murder. However, it suggested a defence of provocation could be used which would reduce first degree to murder to second degree murder. The defence of provocation allowed a defence where the D killed when they had been provoked as long as the reasonable person would've done the same. 
  • The Coroners and Justice Act states that a loss of control replaces provocation. The defence would be based on the D fearing serious violence and therefore needed to protect himself. Even if there was an over reaction as in the case of Clegg and Martin they would be able to use this partial defence which means that the charge would be reduced to manslaughter. The loss of control would need a qualifying trigger; Martin having burglars in his secluded farmhouse.
  • At the moment self defence is an all or nothing defence. If successfully pleaded the D is acquitted. If not he is convicted of the crime. However, part of this problem has been solved by the Coroners and Justice Act which would prevent D's like Martin being convicted of murder. 
  • This act would enable him to use a defence of diminished responsibility which states that if they kill somebody they should not be charged with murder if they are suffering from a medical condition which prevents them from knowing what they are doing. Martin's medical condition made him highly nervous and could explain why he over reacted to the burglary in his house. The defence will not succeed where the D is simply very angry or motivated by revenge. Being intoxicated would not provide a defence for the loss of such control.
  • One of the main problems with self defence is that there is a high mandatory life sentence for murder. Therefore, D's tried to find a way to reduce the charge of murder to manslaughter by pleading self defence. 
  • The government has introduced The Legal Aid and Sentencing and Punishment of Offenders Act to provide reassurance to people about their rights at home. It makes it clear that a person can use reasonable force to defend their property and themselves. Therefore, if an intruder comes into your home you have no legal duty to retreat, Bird. Any force is acceptable unless it's grossly disproportionate such as stabbing a burglar who was already lying on the floor unconscious. However, it could be argued that this is already covered by the reasonable force test.
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Unit 3 - Non-Fatal Offences - Evaluation and Refor

Consent- Evaluation & Reform- Introduction 

  • There are some strengths in the defence of consent, eg the law will not interfere with peoples rights to do what they want; Slingbury, Williams (tattooing). However V's are protected if they suffer an injury and normally the D will not be able to use consent; Dica
  • Implied consent also allows people to participate in contact sports such as rugby without fear of prosecution; Barnes. Implied consent will also allow doctors to perform emergency surgery if a victim was unconscious from a road accident 
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Unit 3 - Non-Fatal Offences - Evaluation and Refor

Consent- Evaluation

  • There are numerous problems with the law on consent. The first problem is that the law is inconsistent. The courts seemed to be prepared to allow acts between consenting heterosexual adults; Wilson but not where the parties are consenting homosexuals; Brown. It seems that the courts may be trying to impose their own model standards on the law. 
  • Secondly, the courts seemed to be prepared to accept consent as a defence for horseplay, even when such behaviour results in serious injury; Jones, Aitken. The legal reason for this is that the aggressor does not have the mens rea for the assault. However, the courts have decided that if the aggressor honesty believed that the V had given their consent, this will provide a defence even if the V did not give his consent
  • In the case of Jones and Aitken, the courts accepted the defence of concent even though it was a mistaken belief. Again this seems inconsistent with the refusal of consent in Brown. Why should the consent be refused as a defence for some sexual behaviour but allowed for horseplay which results in serious injury even when the V was not consenting?
  • Another problem in the law on consent is it involves sexual offences with girls under the age of 13. The law states that girls of this age are never able to consent to sexual intercourse. In the case of G, a 15 year old boy had sex with a girl who gave her consent but he was still guilty of **** even though he genuinely believed her to be the same age as himself. He appealed against this conviction, on the basis that his human rights had suffered. The Supreme Court rejected hs appeal by 3 to 2, but the fact that two judges decided the case in his favour shows how difficult an area of the law this is
  • Consent can cause problems when euthanasia is looked at. This is because no one can consent to their own death. This means that if an terminally ill patient wishes to die, they must take their own life. If anybody kills them, it is murder, even if the V wants them to; Preety. Is the law correct when other countries allow this? Tony Nicholson was paralyzed and wanted to commit suicide, however the courts had refused. 
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Unit 3 - Non-Fatal Offences - Evaluation and Refor

Consent- Reform

  • In 1996 The Law Commission published a consultation paper. The main point raised in this paper was how much a person should be able to consent to injury inflicted upon him. 
  • They suggested that a defendant could use a defence of consent if injury was caused as long as this injury was not serious; Donovan
  • The Law Commission suggested that surgical treatment, circumcision; R v J, tattooing; Wilson and ear piercing could all use as a defence. However, you wouldn't be able to use consent for something like horsepelay which leads to serious injury; Jones.
  • They suggested that there would need to be special rules for sporting activities and consent would be able to use; Barnes.
  • The government has not introduced these proposals into law but in general cases like Brown are more likely to be able to use consent now because attitudes have changed. 
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Unit 3- Evaluation and Reform on Non-Fatal Offence

Non-Fatal Offences- Evaluation

  • The courts have successfully clarified the the law in respect on the following issues: 
  • 1) The meaning of assault in s47 OAPA and in the CJA s40 (s3) has been consistently interpreted to mean assault and/or battery
  • 2) Following the Supreme Courts decision is R v Savage; Parmenter, the MR for ABH is now clear, ie intention or recklessness is needed for the initial assault but not for the harm this occasions
  • 3) The potential conflict between 'inflict' in s20 and 'cause' in s18 has been resolved, inflict means 'cause' and does not require a prior assault
  • The courts have also continued to develop the law. The law on battery was developed to include indirect batteries; Haystead and omissions; Santa-Bermudez. The law for ABH has adapted to meet new circumstances, eg the inclusion of psychological harm; Chan-Fook and cutting a person's hair; DDP v Smith. The law on GBH has also developed to meet new circumstances such as the inclusion of serious psychological harm; Burstow and serious biological harm; Dica. The age of the V as a relevant factor; Bollom and the possible cumulative efect of a series of minor injuries; Brown and Stratton is now recognised by the AR of GBH.
  • However the law surrounding non-fatal offences 
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