Assault Laws and Consent: A Legal Analysis, Study notes of Law

Download Assault Laws and Consent: A Legal Analysis and more Study notes Law in PDF only on Docsity! Assault (Consent to Harm and Offences) Consent to Harm Brown (1994) HoL (UK) - Consent is no defence if what you have done to the other person carries with it a risk of serious injury in circumstances where the victim/complainant is unable to express their distress or withdrawal of consent. Exceptions: sparring/boxing, ‘contact’ sports, surgery, ritual circumcision, tattooing/piercing, lawful chastisement/correction, dangerous pastimes, bravado, religious mortification, rough horseplay Stein (2007) VCA (pimp (A) and regular client of prost. (V)) - S&M is lawful – it is when ABH becomes a risk that it becomes unlawful (victim cannot consent to this level of risk of harm - death) Emmett (1999) UKCCA - Court held that these activities went ‘well beyond’ the line which consent becomes immaterial -> risk was so grave. McIntosh (1999) VSC - chocking in S&M -> consent is no defence Wilson (1997) UKCCA (branded wife’s buttocks w/ hot knife) - distinguished Brown on 3 grounds -> here there was no aggressive intent, Brown involved physical torture, this activity amounted to ‘tattooing’ and not ‘sadomasochism’ Aitken (1992) UKCCA - no offence committed by this consensual act of ‘horseplay’ (officers tested fire resistant clothing – 3rd officer suffered serious burns) R V BM (2018) UKCCA - body modification: series of medical procedures performed for no medical reason. Personal autonomy of customers did not provide the defendant with a justification for removing b.m. from the ambit of the law of assault. The personal autonomy of one individual did not extend to involving another in what would otherwise be a crime. There was no good reason why b.m. should be placed in a special category of exemption from the general rule that the consent of an individual to injury provided no defence to the person who inflicted that injury if the violence caused ABH or more serious injury. Section Result of D’s Act Mens Rea Max. Penalty 61 common assault (battery) No/trivial harm – incl. threats Intends to touch or cause V’s apprehension of immediate physical violence (recklessness also suffices – Edwards v Police (1998)) 2 years 54 cause GBH GBH Unlawful or negligent act/omission* 2 years 59 assault occasioning ABH ABH (incl. psychiatric illness) Intends to touch or cause apprehension of immediate physical violence 5 years 35(4) reckless wounding Wounding Realises ABH possible 7 years 35(2) Reckless GBH GBH Realises ABH possible 10 years 33(1) Intentional GBH or W GBH/W Intends GBH 25 years S 61 Common Assault - Battery: unlawful physical contact (mere touching) - Assault: act of D that causes V to fear immediate or imminent unlawful touching (mere words may be sufficient) - Acts not omissions (Fagan v Commissioner of Metropolitan Police (1969)) -> has to be a positive act not a failure to act - Consent Bonora (1994) -> assault with consent is not an assault at all (Crown generally does not need to prove) Lawful justification (safety/police powers) - Apprehension of immediate infliction of force Knight (1988) -> appellant threatened police, judge and magistrate over the phone. No immediate connection between calls and threat therefore conviction quashed. Zanker v Vartzakas (1988) -> She was confined to the van which induced in her mind apprehension of injury later on. Conditional threat must be immediate and cause continuing threat and fear. R v Gabriel (2004) -> mere words not enough, need to have actual threat (weapon) - The victim’s apprehension – psychic assault Barton v Armstrong (1969) -> psychic assault: victim must be put in fear of imminent unlawful contact - Conditional Threats Police v Greaves (1964) -> where a person threatens to inflict violence only if certain circumstances occur. Conditional threat may constitute an assault if it was a condition that the person could not lawfully impose (your money or your life) - Spitting DPP v JWH (1997) ‘the act of spitting did not constitute an application of force’ Aggravated Assault Common assault + aggravating factors (harm caused, method used, status of the victim, setting) S 59 Occasioning ABH Donovan (1934) – ‘bodily harm’ takes on an ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor Chan-Fook (1994) – can include psychiatric injury (depression or anxiety) S 35(4) Reckless wounding Shepherd (2003) – generally assumed to be the infliction of an injury which breaks the continuity of the skin. A split lip is a ‘wounding’ only in the most technical sense 35(2) Reckless GBH DPP v Smith (1961) – ‘grievous’ means ‘really serious’ Haoui (2008) – need not require that the injuries are permanent or that the consequences are long-lasting, or life threatening, but that the injury is a really serious one + death of a foetus, causing a grievous bodily disease If you are establishing aggravated assault you do not need to establish common assault – by establishing the aggravating factors the common assault is assumed. Homicide (Manslaughter and Defences) Involuntary Manslaughter: unlawful and dangerous act manslaughter (UDAM) Wilson (1992) - > approved Holzter decision that: - Act must be intentional - ‘circumstances must be such that a reasonable man in the accused’s position would have realised that he was exposing another or others to an appreciable risk of serious injury’ (objective test) Appreciable risk = real or significant, rather than remote Serious injury = more than trivial or negligible Reasonable person = Same age (maturity) as accused (DPP v Ty 2006); ‘in the accused’s position (e.g. same perception)’; has the ‘unclouded reasoning power of a healthy, reasonable mind’ (Wills 1983); always sober (Crimes Act s428F) Unlawful Act: contrary to criminal law (Wilson 2003) Base offence must first be established (assault): Downes (1985), Lamb (1967), Pemble (1971) -> base offence must be disproven to disprove whole offence (either weren’t there or one of the elements of assault wasn’t there or there is a defence) Dangerousness test: ‘some harm, albeit not serious harm’ = Newbury (1977)/Church (1966) → somewhere in the middle? Dropped the word really → ‘really serious injury’ Holzer (1968) Involuntary Manslaughter: Criminal Negligence Manslaughter STEPS: 1) A had a duty of care* to D 2) A was negligent in that his/her act or omission was in breach of that duty of care 3) A’s (voluntary) act cause death of D; and 4) that such act merited criminal punishment because (Nydam (1977) test): a) it fell so far short of the standard of care which a reasonable person would have exercised in such circumstances; and b) it involved such a high risk that death or really serious bodily harm would follow; and c) the degree of negligence involved in the conduct is so serious that it should be treated as criminal (or ‘wicked’) conduct * general duty not to harm others: R v Doherty (1887); Callaghan v R (1952); Moore v R (2015) Reasonable person = same personal attributes as defendant; same age, having same experience/knowledge, and the circumstances in which found him/herself (Lavender 2005, Sam & Sam 2011) Manslaughter/Murder by Omission - murder (rare) MR: doing nothing -> with intent V dies/suffers GBH; knowing V’s death is probable - criminal negligence manslaughter (most common) - AR = failure to act. Must first be a legal duty to act (not mere moral obligation) Special Relationship Cases: Russell (1993) – wife and kids drowning, only charged with mbo of kids, no obligation to wife Burns (2012) HCA – no duty between drug supplier and drug user Sam & Sam (2011) – parents failed to treat daughter’s eczema BW & SW (2009) – Ebony’s case (starvation and neglect over 20 month period) Voluntary assumption of care cases - deaths in custody - Stone and Dobinson (1977) (UK) - R v Peake (2017) - Taktak (1988) - Wacker (2002) Defences Whole: (results in acquittal) = Insanity & fitness to plead – becomes forensic patient, Automatism (non-insane), Self- defence, Intoxication (but may be charged with a lesser offence), Necessity Partial: reduce from murder to manslaughter = Substantial impairment, Infanticide, Provocation, Excessive self-defence Insanity defences – Mental Illness M’Naghten (1843-1860) – a jury has to ask whether, at the time of committing the act: - Whether the accused was labouring under a defect of reason due to a disease of the mind; and - That due to this disease of the mind, the accused either: - Did not know the nature and quality of their act or did not know what they were doing was wrong. Substantial Impairment by Abnormality of the Mind 2 limb test: 1. At the time of the act causing death, A’s capacity to: a. Understand events, or b. Judge whether his/her actions were right or wrong, or c. Control him or herself Was substantially impaired by an abnormality of mind arising from an underlying condition; AND 2. The impairment was so substantial as to warrant liability for murder being reduced to manslaughter Self Defence - Crimes Act 1900 s418 + s421 - Also extends to defence of other persons, of property, the prevention of a serious crime and effecting a lawful arrest - Available when: Katarzynski 2002 o Reasonable possibility that D believed his/her conduct was necessary to defend him/herself ▪ Subjective consideration o Reasonable possibility that what D did was reasonable response to the circumstances as he/she perceived them ▪ Objective consideration ▪ Assessment of reasonableness of D’s response: nexus b/w offence + threat Extreme Provocation Provocative conduct: within sight/hearing of A (Davis 1998 + s23(2)(a) – ‘towards or affecting the accused’); more than mere words (Lees 1999) – must be of an inappropriate violent character, blackmail/extortion (s249K), demand property with intent (s99), innocuous words + viewed in context of relationship (R v R 1981); not sexual advances (s23(3)(a)) Time: s23(4) -> conduct of A may constitute extreme provocation even if the conduct did not occur immediately before the act/omission causing death Ordinary person: Stingel (1990) -> age (maturity) FOR Automatism see 39-43 FOR Intoxication see legislation and 54-57