June 2014 – Q1 - Feedback

Assault, S.47, S.20, self-defence

Grade Boundaries

• A* = 22/25 – 86%• A = 20/25 – 79%• B = 18/25 – 71%• C = 16/25 – 64%• D = 14/25 – 56%• E = 12.5/25 – 50%• Difference between each grade is only 2 marks

Potential Contents

1. Assault AND Self-Defence– Only one limits to weak clear

2. S.47 AND S.20 and/or S.18– Only one limits to weak clear

2 potential contents

• 25 – 2 S• 23 – 1S, 1C• 20 – 1S, 1 some / 2C• 17 – 1S / 1C, 1 some• 13 – 1C / 2 some / 2S explanation only• 11 – 1S explanation only / 2C explanation only• 8 – 1 some / 1C explanation only / 2 some

explanation only• 6 – 1 some explanation only

Assault – Common Mistakes

• Too many people rushed through the AR part• Some people thought the MR was about

whether Beck intended to send the text or whether he intended to go to the cinema

Assault

• First define the offence - Ireland; Burstow – D intentionally or recklessly causes the victim to apprehend immediate and unlawful violence

• 5 parts to the AR:– Act– Cause– Apprehend– Immediate– Unlawful violence

Assault - AR1. An Act• Constanza – Words alone are enough for an assault – D stalked V and content of letters was

an assault as V read them as threats – therefore other written communications like emails and texts can also constitute assault

• Apply to facts of scenario2. Cause• Usual rules of causation apply – but no issues in this question, too many people spent far

too long on this. Explain in 1 sentence and move on3. Apprehend• Longdon v DPP – V’s perception rather than D’s intention is important• Apply to facts of scenario4. Immediate• Quite a wide interpretation of this - Smith v Chief Superintendent of Woking Police Station -

immediate does not need to be instantaneous • Apply to facts – 20 minutes – but still fearful throughout5. Unlawful Violence• Force apprehended can be a mere touch, provided it is unwanted• Must be unlawful – usually due to lack of consent• Apply to facts

Assault - MR

• Matches the AR• Savage:

– Intention to cause the victim to apprehend unlawful and immediate violence; or

– Recklessness as to whether the victim apprehends unlawful and immediate violence

• Not relevant whether B intended to go to the cinema only whether he intended to make A apprehend that he would

• Not about whether B intended to send the text – whether he intended the text to make A apprehend immediate unlawful violence

Answering Questions on Assault

1. Was there an act? What was it?2. Did the act:– Cause (normal causation rules)– V to apprehend– Immediate– Violence/force?

3. Was there intention or recklessness to cause V to apprehend unlawful and immediate violence

S.47 – Common mistakes

• Lack of case law• Being unclear about the “assault

occasioning…” • Wasting time on causation – no issues, simple

sentence and move on• MR – saying that A needed MR to the harm –

it is only MR for the battery

S.47 – AR • 3 parts:1. Assault:• Must be an assault or battery• In this case battery – application of unlawful force2. Occasioning:• Causation – the assault or battery must occasion the harm• No issues in this case – punch caused injuries – simple sentence and move on3. Actual Bodily harm:• Must be some form of physical or psychological injury caused to V• Miller – “any hurt or injury calculated to interfere with the health or comfort of

the victim” but must be more than “transient or trifling”• Chan Fook – harm must be more than trivial• Apply to the facts – bruising, unconsciousness, loss of hearing – all injuries at

least more than trivial and therefore ABH

S.47 - MR

• Savage - only need mens rea for the assault or battery

• D does not need to intend or be reckless as to any harm

• Venna – MR for battery = Intent or subjective recklessness to apply force to another

S.20/S.18 - AR• Once S.47 is established, need to consider whether injuries are sufficient

for S.20/S.18• Definition - “Unlawfully and maliciously wound or inflict any grievous

bodily harm upon any other person, either with or without any weapon or instrument”

• In this case we would consider GBH• Saunders – serious harm • Unconsciousness, unless prolonged, not sufficient for GBH. Bruising more

likely to be ABH. Hearing loss, especially if permanent, could be GBH• Brown and Stratton – If V suffers minor injuries which, taken as a whole

amount to serious harm, this will constitute GBH despite the fat that the injuries viewed separately would not be GBH

• In this case there are a combination of injuries so could be GBH

S.20/S.18 - MR

• S.20:– Cunningham - D must intend to inflict the harm or be subjectively

reckless as to whether such harm will occur – Mowatt - Only need MR for some harm, not serious harm (do not

need MR for the wound or GBH)– In this case, it would seem that A did intend to cause some harm

• S.18:– “With intent to do some grievous bodily harm”– Need intent, recklessness not enough– Saunders – D must intend serious harm (compared to some harm

in S.20)– In this case, it was a “powerful blow” but only 1 blow, A was

suffering from fear and panic – might have prevented him from forming the necessary intention for S.18

Self-Defence – Common Errors

• Not using Criminal Justice and Immigration Act 2008

• Not using enough case law• Saying it was a partial defence or that it would

reduce sentence – total defence if successful

Self Defence

• Common law but restated in Criminal Justice and Immigration Act 2008.

• A person can use such force as is reasonable in the circumstances if he is:– Defending himself or his property against an

actual or imminent attack; or– Defending another against such an attack

Self-Defence - Requirements1. Necessity:• It will be seen to be necessary if it is seen to be so in the circumstances

which exist or which D genuinely believed existed (subjective) • Gladstone Williams –defence will apply if based on what D genuinely

believed was happening• In this case, he was mistaken about who was chasing him, but his

mistake was genuine• Defence comes into operation even if attack has not yet taken place

providing it is imminent• D can get in with the first blow – Bird - D does not have to wait for an

attack to start but can get in the first blow • So in this case, it doesn’t matter that A struck C first as long as he

believed the attack from C was imminent

Self- Defence – Requirements 2. Reasonableness• Jury must decide whether, in all the circumstances, the D used reasonable force• Palmer - Must recognise that a person defending themselves “cannot weigh to a nicety the

exact measure of his necessary defensive action”• Was it excessive force like in Clegg or Martin?• S.76(6) – the degree of force used by D not to be considered as reasonable in

the circumstances as he believed them to be if it was disproportionate in those circumstances

• S.76(7) – guidance as to whether degree of force used was reasonable in the circumstances:– A person acting for a legitimate purpose may not be able to weigh to a nicety the exact

measure of any necessary action; and– Evidence of D having only done what he honestly and instinctively thought was

necessary for a legitimate purpose constitutes strong evidence that only reasonable force was taken

• In this case, A had fear of gang violence, there was an apparent chase (as far as A was concerned), he only struck C once without using a weapon – good case for self-defence