Non Fatal Offences - OAPA
- Created by: siannolan
- Created on: 26-03-19 20:00
ASSAULT:
Section 39 Criminal Justice Act 1988
- Common law offence - no statutory definition
- Punishable of up to 6 months imprisonment - summary offence
Definition àFagan v MPC [1969] House of Lords definition:
"When the defendant intentionally or recklessly causes the victim to apprehend immediate unlawful personal violence”
“An act by which D intentionally or subjectively recklessly causes the victim to apprehend immediate, unlawful force to his person.”
Actus Reus – causing the victim to apprehend immediate unlawful force (harm? Violence).
Mens Rea – intention or recklessness to cause the victim to apprehend immediate force (etc).
Apprehend:
The victim need not be in fear, but must be aware that they are about to be subjected to violence
R v Lamb [1967]
V did not believe the gun would go off; there was therefore no assault. Did not apprehend immediate unlawful personal violence. NB: f V does apprehend unlawful contact, it matters not that there is not in fact any danger.
Logdon v DPP [1976]
An imitation gun pointed at the victim still constituted an assault.
R v Constanza [1997]
There needs to be a present fear of immediate violence not violent that may occur in the future. Case law seems to have stretched this concept.
Threatening letters. Words can amount to an assault.
R v Ireland; Burstow [1997]
Persistent silent phone calls. silence can amount to an assault.
Lord Steyn stated that if the impact (of a silent call) on V was that she feared imminent violence that would suffice.
Tuberville v Savage (1669)
Words accompanying a threating gesture can negate an assault.
Immediate:
Threats of future violence will not suffice; however, the courts have adopted a more liberal approach.
Not instantaneous.
R v Constanza [1997]
A series of stalking and harassment amounted to an assault.
Smith v Chief Constable of Woking (1983)
Fear of what D might do next, even through a window, was held to be sufficiently immediate. Held: magistrates were entitled to find V had feared immediate violence when D had peered through her window at 11pm. The violence could not be applied instantly but could follow sufficiently immediately.
Unlawful:
Will be unlawful where D has no lawful excuse:
- Reasonable punishment of a child - Section 58 Children Act 2004
- Consent of the victim
- Self-defence / prevention of a crime
Personal Violence:
The victim need only to apprehend the level of force that amounts to a battery.
Valid consent can be express or implied – Collins v Wilcock [1984] Everyday jostling, we consent to slight touching in every day.
Express Consent
Express consent is where we give consent to a certain activity. For express consent to be valid, it must be to something you are legally allowed to consent to.
It may not be valid;
- Incapacity – due to age or mental disability.
- Duress or…
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