legaleasy

30 November, 2007

Links To Module 6

W/E 30th November 2007

 This week we had a brief look at how the concepts we studied in Module 4 could relate to Module 6.

 As you aware, Module 6 is a synoptic unit. This means you will have to illustrate your exam answers with examples from the whole of your AS and A2 studies. 

One way of trying to think about links is to consider an individual case such as Stone v Dobinson. Write down the facts of the case and the legal principle it demonstrates. Then consider the the areas studied under Module 6 i.e Morals, Justice, Fault, Conflicting Interests and Judicial Creativity. Does this case raise any questions in this area. For example the mens rea required for the offences, is an omission criminally liable, how do we balance the conflicting interests of a defendant and the victim / and or society at large.

 I appreciate this is hard to do, but the ealier you start to consider such connections the easier you will find Module 6.

Additional Reading

You should now be revising in earnest for your Module 3 and 4 exams in January.

Please see me with any questions regarding revision.

2 November, 2007

Non-Fatal Offences Against the Person

Filed under: A2-Level,additional reading,domestic law,Non Fatal Offences — legaleasy @ 1:03 pm

W/E 2nd November 2007

This week we recapped on the five non-fatal offences against the person. These are; common law assault, common law battery, s47 ABH, s20 GBH or malicious wounding and s18 GBH or malicious wounding.

The relevants Acts are – The Offences Against The Person Act 1861 and the Criminal Justice Act 1988.

To be guilty of most criminal offences, it is necessary to show two things – the actus
and the mens rea. Each crime has its own actus and mens rea.

The actus reus is the physical element of the crime. The mens rea is the mental element of the crime – what was the defendant thinking or not thinking about before or during the committing of the crime.

The actus reus can be:-

  • An act;
  • A failure to act (an omission);
  • A state of affairs or strict liability issue.

The actus reus must be a voluntary act – not a reflex action. If there is an absence of fault in an action then a person is generally not liable. The criminal law is usually concerned with fault of the defendant.

There are however, exceptions to these rules – these are known as state of affair cases or strict liability cases. Please refer to your revision guides and class notes for more details.

The normal rule is that an omission or failure to act is not an actus reus. However, there are exceptions to this rule. These are:-

  • Where the defendant has a contractual duty
  • Where there is a duty because of a relationship – between parent and child for example
  • Where a duty has been taken on voluntarily
  • Where there is a duty because of the defendant’s official position – e.g. a policeman
  • Where a duty arises because the defendant has set in motion a chain of events

Mens rea has different levels. The “highest” form of mens rea is intent where the defendant decides deliberately to commit an offence (see Mohan). There is also indirect intent. To prove this you need to show that the defendant was aware of the risks they were taking and that the defendant undertook a voluntary act which you could be virtually certain would lead to serious bodily harm or death (see Nedrick). Finally, there is recklessness – where a defendant knowingly takes an unjustifiable risk. The test for this was set out in Cunningham.

Causation

Causation is the direct link from the defendant’s conduct to the consequence to the victim. There are two types of causation; factual and legal causation.

The test for factual causation is set out in R v White (1910) – the “but for” test.

The test for legal causation is set out in Smith (1959) – is the defendant the “substantial and operating cause”.

The chain of causation can be broken if there is an intervening act (novus actus interveniens). This act has to be significant and sufficiently separate from the defendant’s actions.

The following incidents will not break the chain of causation in law:

  • Physical characteristics of the victim (Hayward)
  • Reasonable consequences of the defendant’s actions (Pagett)
  • Reasonable attempts to escape (Roberts)
  • Negligent medical treatment (Smith)
  • Refusal of medical treatment (Blaue)
  • The switching off of a life support machine (Malcherek)
  • The victim committing suicide (Dhaliwal)

With regards to medical treatment remember the exceptions laid out in cases such as Cheshire and Jordan.

Common Assault

Common assault is the lowest level of offence against the person. It is part of the common law which means it is not in any Act of Parliament but has been built up over centuries through cases and judge made law.

To commit an assault the defendant must intentionally or subjectively recklessly cause another person to fear immediate unlawful violence.

The actus reus requires some words or acts. An omission is not enough. There is no need for physical contact. Examples are: raising a fist; making a threat “I am going to punch you”; pointing a loaded gun at someone (even if it is a replica).

The mens rea for an assault is either the intention to cause another to fear immediate unlawful personal violence or recklessness as to whether such fear is caused. The test for recklessness is subjective.

Common Battery

This is beyond common assault where the defendant intentionally or subjectively recklessly applies unlawful force to another. Usually a battery follows an assault. You raise your fist, you commit an assault, and then hit the victim – this is the battery. You can have battery without assault – if you are hit from behind for example – you have no fear as you don’t see it coming.

The actus reus requires some force, however slight. It can be continuing (as in Fagan) or can be an indirect act such as laying a booby trap. Unlike assault, a battery can be committed by an omission – Santana-Bermudez.

The mens rea for battery is either the intention to apply unlawful physical force or recklessness that the force will be applied. Recklessness is subjective – the defendant must realise the risk and take the risk.

s47 offence

The actus reus for this offence is an assault or battery. There must be actual bodily harm inflicted on the victim. The mens rea for this offence is the same as that for assault or battery. There is no need to prove the defendant intended to injure the victim. All that is required is a simple causal link between the defendant’s actions and the victim suffering an injury (Roberts

s20 offence

The actus reus for this offence is a direct or indirect act or omission. There is no need to prove an assault. A wound is defined as a cutting of the whole skin. Grievous bodily harm means serious harm and can include psychiatric harm. The mens rea is the intention or subjective recklessness as to causing some injury (although this does not need to be serious). (Savage and Parameter)

s18 offence 

The actus reus for this offence is a direct or indirect act or omission which causes an injury to the victim. The injury must be a wound as defined or grievous bodily harm. The mens rea is that the defendant has the specific intention to wound or to cause grievous bodily harm  or to resist or prevent arrest. The CPS have a criteria that they use to suggest evidence of intent – for example a repeated or planned attack; selection of a weapon etc.

Remember – be aware of the CPS charging standards. Ask yourself – can I identify the offence from the injuries sustained to by the victim? You need to be able to do this for the exam.

Additional Reading

Please see my comments previously about keeping up to date with the news. This will help you identify the offences in the exam. Remember if you are not sure if it is a common assault / battery or ABH in the exam DISCUSS BOTH OPTIONS! The examiner knows you are not a CPS lawyer – but does want evidence of your knowledge of the subject.

Blog at WordPress.com.