Trepass to the person!!!!!!!!!!

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  • Created by: Tanny96
  • Created on: 10-03-16 17:33

Battery!!!

'The actual infliction of unlawful force on another person' Requirements: intentional application of unlawful force (the touching or contact)- must have intention or recklessness as to ones actions causing the application of force to another person. Through the principle of transferred intent (Livingstone v Ministry of Defence (1984). There is no requirement for the person to actually intend to cause harm. (Williams v Humpfrey 1975- friend pushed other friend into pond breaking his ankle, D was guilty because he had intended to touch the claimant. If D commits the battery involuntarily but then has a chance to remove the unlawful contact but fails to do so, then a battery has been committed (Fagan v Metropolitan Police Commissioner (1969). Unlawful touching- touching will only amount to a battery where it does not fall within the catagory of physical contacts 'generally acceptable in the ordinary conduct of daily life' (Lord Goff).

which is direct and immediate- Scott v Shepherd (1773) D threw squib into market where it was caught by market vendors who threw it away to protect themselves when it hit C in eye. This was direct and immediate force. DPP v (A minor) (1990) 15 yr old boy who hid acid in hand dryer.

Lawful justification or excuse: are the same for assault and false imprisonment.

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Assault!!!

Definition: Collins v Wilcock, 'an act which causes another person to apprehend the infliction of immediate, unlawful force on his person'. It makes no difference if the threat can actually be carried out or not, as long as C believes that it will be (R v St George 1840). However if C knows the threat is incapable of being carried out then there will be no assault. 

D intends that the C apprehends the application of unlawful force: D must intend or be subjectively reckless as to the possibility that their actions will cause the claimant to apprehend the application of such force. The claimant reasonably apprehends the immediate and direct application of unlawful force- the claimant must reasonably anticipate or expect the application of unlawful force. Reasonable apprehension is an objective test (Stephens v Myers (1830) it does not matter if the claimant was overly timid or could have successfully defended themselves). Immediate and direct application of force- C must apprehend the immediate and direct application of force, if they know there is no means of the threat being carried out there is no assault. 'It is not every threat, when there is no actual violence, that constitutes an assault, there must, in all cases, be the means of carrying that threat into effect' (Stephens v Myers). R v Ireland (1998) even words could constitute an assualt or the lack of words (silent phonecall).Lawful justification or excuse: same as battery and false imprisonment. 

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Assault!!!

Definition: Collins v Wilcock, 'an act which causes another person to apprehend the infliction of immediate, unlawful force on his person'. It makes no difference if the threat can actually be carried out or not, as long as C believes that it will be (R v St George 1840). However if C knows the threat is incapable of being carried out then there will be no assault. 

D intends that the C apprehends the application of unlawful force: D must intend or be subjectively reckless as to the possibility that their actions will cause the claimant to apprehend the application of such force. 

The claimant reasonably apprehends the immediate and direct application of unlawful force- the claimant must reasonably anticipate or expect the application of unlawful force. Reasonable apprehension is an objective test (Stephens v Myers (1830) it does not matter if the claimant was overly timid or could have successfully defended themselves). Immediate and direct application of force- C must apprehend the immediate and direct application of force, if they know there is no means of the threat being carried out there is no assault. 'It is not every threat, when there is no actual violence, that constitutes an assault, there must, in all cases, be the means of carrying that threat into effect' (Stephens v Myers). R v Ireland (1998) even words could constitute an assualt or the lack of words (silent phonecall).Lawful justification or excuse: same as battery and false imprisonment. 

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False Imprisonment!!!

Collins v Wilcock (1984) defines false imprisonment as involving the 'unlawful imposition of constraint on another's freedomof movement from a particular place'.  D must intend (or be subjectively reckless) as to completely restricting the claimants freedom of movement; The case of Iqbal states that subjective recklessness also applies so that there will be liability even where the D does not set out to imprison the Claimant but he is nonetheless aware that this is a likely consequence of his actions. It is a necessary requirement for D to restrict the claimants movements unlawfully. In R v Governor of Brockhill prison, ex parte Evans, the prisoner was lawfully detained however due to a mistake in paperwork was imprisoned for longer than she should have been. Even though the prison governor did not intend to keep her any longer than the lawful duration, C's claim was successful. There must be a COMPLETE restriction of C's freedom of movement, if C can move in another direction (Bird v Jones 1845, Hicks v Young (2015) or if there is a reasonable means of escape (though if C is reasonably unaware of the means of escape, their detention is likely to amount to false imprisonment) then the tort will not be satisfied. It does not matter for how long the Claimants movements were restricted (Walker v The Commissioner of the Police of the Metropolis (2014) where a police officer falsely imprisoned a man for a few seconds before he arrested him). Where D imposes reasonable conditions on the manner in which the visitor leaves the premises, these will be considered to amount to a reasnable means of escape.

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False Imprisonment!!!

Robinson v Balmain New Ferry Co ltd (1910) D refused to let C leave the whalf without paying the penny and so C tried to claim false imprisonment, which was rejected as he knew the charges when he entered the whalf. In Herd v Weardale Steel, Coke and Coal Co Ltd (1915) a miner was stopped from leaving the mine because it was not the end of his shift. His claim was rejected, because he was under a contract of emplyoment and knew that he would not be allowed back to the surface until the end of his shift. Iqbal v Prison Officers Association (2009) states that false imprisonment could only be committed by omission where there was a positive duty to act in relation to the claimant. 

There is no requirement that the claimant needs to be aware of the restriction, nor does the claimant have to suffer any additional harm (Murray v Ministry of Defence (1988), however a person who is unaware of their imprisonment is likely to receive only nominal damages. In R v Bournewood Mental Health Trust (1999)  the potential deprivation of a claimants liberty was not held to be sufficient to ground a claim. In this case C was voluntarily admitted to an unlocked hospital ward but it was decided that if he tried to leave that he would be detained under the Mental Health Act 1983. C's claim failed.

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Defenses for Assault, battery and the False impris

Consent: If C gave consent then there will be no liability. Necessity: Where intereference with another person was necessary to protect them from a 'greater evil'. F v West Berkshire HA (1990) where the defence of necessity was used to authorise the sterilisation of a mental patient who was in a sexual relationship with another patient. 

Self-defence: D's belief that they were about to be attacked must be honest and reasonable (Ashley v Chief Constable of West Sussex Police (2008). D's actions must also be proportionate to the force that C applied to them (Cross v Kirby 2000, Lane v Holloway 1968, Cockcroft v Smith 1705).

Defences for False Imprisonment: Reasonable condition for release- if there is a reasonable condition which must be performed by D before he is released i.e. pay a toll, but he refuses to do so then this will negate liability for false imprisonment.Lawful Arrest: an arrest that is made properly according to the Police and Criminal Evidence Act 1984 will not amount to FI nor will detention made in furtherance if the common law right to effect a citizens arrest. Medical detention:when a personr requires protection from their own behaviour and therefore their detainment is authorised under the Mental Health Act 1983.

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Wilkinson v Downton (1897)

Requirements were clarified in Wong v Parkside NHS Trust (2003):

There must be actual harm (physical or recognised pscyhiatric illness).Wilkinson v Downton … does not provide a remedy for distress which does not amount to recognised psychiatric injury …Wainwright v Home Office (2004).

D must have acted intentionally: he must have intended to cause physical harm or severe mental or emotional distress. Recklessness is not sufficient (Rhodes v OPO 2015).

The conduct must be of such a degree that it is calculated to cause harm so that D cannot say he did not mean to cause it. 

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Protection from Harassment Act 1997!!!

S1) the D pursues a course of conduct- (3) A “course of conduct” must involve – a)in the case of conduct in relation to a single person …, conduct on at least two occasions in relation to that person, or b)in the case of conduct in relation to two or more persons …, conduct on at least one occasion in relation to each of those people.

 (2) that amounts to harrassment of another- s7 (2)  provides that harrassment includes causing alarm or distress. This is a subjective test that is based solely on the claimant's reaction to D's conduct. 'It describes conduct targeted at an individual which is calculated to produce the consequences described in section 7 and which is oppressive and unreasonable.’Thomas v News Group Newspapers Ltd (2001) (Lord Phillips). 

(3)

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Defences!

1.— Interpretation of this group of sections. (3)Subsection (1) … does not apply to a course of conduct if the person who pursued it shows –a)That it was pursued for the purposes of preventing or detecting crime; b)That it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or c)That in the particular circumstances the pursuit of the course of conduct was reasonable.

  ‘[Section 1(3) is designed] to protect the police, security agencies and others such as journalists, private investigators and debt collectors, whose legitimate activity might, on occasions, resemble the conduct pursued by stalkers.’  The Lord Chancellor (Lord Mackay of Clashfern) – 2nd Reading of the PfHA Bill; Hansard HL Vol.577, Col.918 (January 24, 1997)

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