law- omissions and MR/ AR

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  • Created by: fatma
  • Created on: 23-12-21 09:12
omission
An omission is a failure to act, which generally attracts different legal consequences from positive conduct. In the criminal law, an omission will constitute an actus reus and give rise to liability only when the law imposes a duty to act and the defenda
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omission cases
Fagan v Metropolitan Police Commissioner
DPP v Santana-Bermudez
Airedale NHS Trust v Bland
R v Dytham
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DPP v Santana-Bermudez [2003]
(Battery, Actus Reus)
D injured a woman police officer by allowing her to search him, knowing he had hypodermic needles in his pockets which stabbed her. D denied having any needles or sharps when asked.
Force can be applied by an omission (opposite of an
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Airedale NHS Trust v Bland [1993] AC 789
withdrew life support on Anthony Bland. Patient was in vegetative state for 4 years. Had no prospect of recovery. Not a breach of duty by the doctor as he is not obliged to continue in a hopeless case. Also, the interloper that comes in a switches it off
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R v Dytham (1979)
Police officer witnessed a violent attack on V outside night club (V died), took no steps to intervene, drove away from scene.

Not charged with manslaughter as impossible to prove 'but for' test in causation.
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Fagan v Metropolitan Police Commissioner [1969]
(Coincidence/ Contemporaneity of Actus Reus and Mens Rea and Battery, Actus Reus where force can be applied via a continuing act)
D told by police to put their car on the curb, D then accidentally drove the car onto policeman's foot. Policeman shouted to
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first instance court
Courts of first instance are where trials are first held. The court that will be used will depend on the seriousness of the offence. The courts of first instance include the Magistrates' Courts and the Crown Court for criminal trials, and the County Court
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Non-fatal offences
Non-fatal offences include assault and battery, assault occasioning actual bodily harm, wounding and inflicting grievous bodily harm, wounding or causing grievous bodily harm with intent
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Non-fatal offences against the person
Assault, Battery, ABH and GBH
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non- fatal OATPA
Non-fatal offences against the person mainly derive from the Offences against the Person Act 1861, although no definition of assault or battery is given there.
Offences against the person include minor forms of battery (any unlawful touching of another pe
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Recklessness
Whilst recklessness is sufficient for most offences against the person - that the defendant foresaw the risk of the proscribed injury occurring without necessarily intending it to happen - this is insufficient for crimes of intent.In general terms, being
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Recklessness cases
R v G and R
R v Cunningham
DPP v Morgan
R v Parmenter
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R v Cunningham (1957)
Recklessness - Pulled gas meter off of the wall to steal the money. Gas leaked into neighbours house. Test for criminal liability was held to be subjective (D saw risk but still ran it). D did not intend to cause harm & didn't see risk
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DPP v Morgan
Objective test for reasonable belief in consent.
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R v Parmenter
The defendant was convicted on four counts of causing GBH to his baby son under s.20. The defendant appealed contending that it was necessary to establish that the defendant appreciated the risk and it was not sufficient that he should have foreseen a ris
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R v G and R
D is reckless if he is aware of a risk and it is unreasonable to take that risk
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Caldwell recklessness test
a wrongdoer is found guilty of recklessness based upon the subjective test rule, where the accused must have had the same reasonable knowledge or ability to know the circumstances surrounding the incident in order to be found guilty of recklessness.
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subjective test rule
A subjective test is evaluated by giving an opinion. A subjective test is concerned with the defendant's perspective. ... Ie Would a reasonable person have foreseen the degree of probability of the result occurring from the defendant's actions.
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Negligence
failure to take proper care in doing something. carelessness
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negligence case:
R V Adomako: The appellant was an anaesthetist in charge of a patient during an eye operation. During the operation an oxygen pipe became disconnected and the patient died. The appellant failed to notice or respond to obvious signs of disconnection. The j
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Transferred malice
When the mens rea of one offence can be transferred to another offence. THE LEVEL OF MENS REA MUST BE THE LEVEL REQUIRED FOR THE CRIME.
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Cases for transferred malice
R v Pembliton
R v Latimer
R v Mitchell
R V GNANGO
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R v Latimer (1886)
Transferred Malice - D meant to hit a man who had attacked him but the belt he was using bounced off the man and hit the woman. D guilty of assault on woman.
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R v Mitchell
The appellant tried to jump the queue at a Post Office. An elderly man took issue with the appellant's behaviour and challenged him. The appellant hit the old man and pushed him. The man fell back onto others in the queue including an elderly lady who fel
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R V GNANGO
A person who agrees to the joint enterprise of having a shootout and causes another to shoot at him is guilty of attempted murder of himself
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R v Pembliton
Transferred mens rea- threw stones into crowd but accidentally broke window- can't transfer intent between different crimes
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Contemporaneity rule
the general rule in English law that the actus reus and the mens rea must occur at the same time
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cases for Contemporaneity rule
R v Moloney
R v Thabo Meli
Fagan v MPC
R v Church
DPP v Hyam
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Fagan v MPC
An assault is committed where D intentionally or recklessly causes V to apprehend immediate unlawful personal violence.
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R v Thabo Meli (1954)
(Coincidence/ Contemporaneity of Actus Reus and Mens Rea)
D wants to kill V, D hits V repeatedly over the head. D thinks V is dead but V isn't. D then disposed of V's body over a cliff and V died from exposure not from a blow to the head.
Court said beati
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R v Church
Mens rea followed by actus reus- knocked out woman- threw her into a river thinking she was dead- drowned- act within series of acts
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DPP v Hyam [1975]
Desire is seperate from intention, "it does not matter in those circumstances whether the defendant desires those consequences to ensue or not, and in none of these cases does it matter that the act and the intention were aimed at a potential victim other
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R v Moloney (1985)
D shot and killed step-father in drunken challenge to see who was quicker on the draw.
D's conviction for murder quashed and substituted for manslaughter. HOL held foresight isn't actually intention but only evidence from which intention may be inferred.
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assault
inflicting intentional or reckless harm towards another individual is the general definition of assault in the United Kingdom. Assaults are typically referred to as offences against the person. Harm encompasses both physical and psychological harm, which
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Mens rea of assault
Intention or recklessness to cause V to apprehend use of immediate force. The mens rea of assault is intention to cause the victim to apprehend immediate unlawful personal violence or being reckless as to whether such apprehension is caused.
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Actus reus of assault
An act which causes the victim to apprehend the infliction of immediate unlawful force
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Actus reus: of assault
The victim must apprehend
Immediate
Unlawful
Personal violence
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Assault Cases
Smith v Chief Constable of Woking
Fagan v MPC
R v Lamb
R v Constanza
R v Ireland
Tuberville v Savage
R V LIGHT
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R v Light (1857)
-accused was holding a shovel over his wife's head and at the same time stated "Were it not for the bloody policeman outside, I would split your head open"
-D found guilty of assault
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Fagan v MPC
Continuing act
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R v Lamb
No fear no assault
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R v Constanza (1997)
Words can amount to an assault
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R v Ireland
Silence can amount to assault
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Tuberville v Savage
Words can negate an assault
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Smith v Chief Constable of Woking
D looked into a woman's window but did not do anything. She screamed but he did not move so she phoned the police.
Held, D intended to frighten the woman and succeeded. Did not know what D would do next but feared immediate violence.
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Battery
Battery is a common law offence within England and Wales. As with the majority of offences in the UK, it has two elements: Actus reus: The defendant unlawfully touched or applied force to the victim. Mens rea: The defendant intended or was reckless as to
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Actus reus of battery
.The defendant unlawfully touched or applied force to the victim.
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Mens Rea of Battery
The defendant intended or was reckless as to the unlawful touch or application of force.
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battery cases
R V IRELAND
DPP v K
Fagan v MPC
Collins v Wilcock
Faulkner v Talbott
R V MARTIN
DPP V MAJEWSKI
R V THOMAS
Haystead v Chief Constable of Derbyshire
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R v Thomas
Touching clothes counts as battery.
School caretaker rubbed his hand on a girl's skirt.
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Haystead v Chief Constable of Derbyshire (2000)
accused punched the complainant who dropped the child she was holding
-Divisional Court held that he was guilty of battery on the child
-he had direct physical contact with the complainant which had caused her to drop the child
-court held obiter that for
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DPP v Majewski [1977]
D had taken both alcohol and drugs. Very intoxicated. Attacked people in a pub and police officers trying to arrest him. Convicted of 3 offences of assault occasioning ABH and 3 of assaulting a police officer in the execution of his duty.
HOL upheld all c
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R v Martin (1881)
GBH, Actus Reus
D, as a joke, placed an iron bar in a theatre across an exit, turned out the lights on a staircase and yelled "FIRE!". As a result, several people were badly injured and suffered injuries such as broken limbs in their attempt to escape.
GB
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R v Ireland (1997)
Conviction for assualt upheld as silent telephone calls could cause someone to believe they could be assaulted.
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DPP v K
Acid in a hand dryer.
Held, for a battery, the application of force need not be direct.
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Fagan v MPC (battery)
The driving on to the foot and remaining there was part of a continuing act.
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Collins v Wilcock
A police officer grabbed a woman's arm to stop her from walking off while she was being interrogated. The woman scratched the officer.
Held, the police officer's action amounted to a battery and the woman's action was an act of self-defence.
Consent is gi
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Faulkner v Talbott (1981): common battery
- touching without consent
- doesn't need to be rude/hostile'aggressive
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Actus Reus (guilty act)
The external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law
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Mens Rea
the intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused.
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Direct intention
ordering one's practical reason to do an action and achieve its desired effects
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Oblique intention
The defendant foresees that the consequence of their actions is virtually certain.
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cases for direct and oblique intention
R V WOOLIN
HANCOCK AND SHANKLAND
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Woolin (1998)
Established a test for foresight of consequences; the jury is entitled to find intention where death or serious injury are a virtual certainty from D's actions and where D appreciates this certainty. D through his baby at his pram several feet away. The b
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Hancock and Shankland (1986)
The greater the probability of a consequence the more likely it is that D foresaw and intended it
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MEDICAL TREATMENT
Medical treatment is unlikely to break the chain of causation unless it was potent in causing death.
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medical treatment CASES:
R v Malcherek
R v Smith
R v Jordan
R V Cheshire
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R v Smith (1959)
Causation - Two soldiers were fighting, one was stabbed. V carried to medical centre by other soldiers but was dropped on the way. Poor medical treatment contributed to his death. D guilty of murder because D was still an 'operating' and 'substantial' cau
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R v Jordan (1956)
Causation - V stabbed in the stomach. Treated in hospital and wounds were healing. V given an antibiotic but was allergic to it. Doctor accidentally gave V large dose of antibiotic, killing V. D was not guilty because doctor was novus actus interveniens.
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R v Cheshire
'substantial and operating cause'- must make a significant contribution to V's death
Novus actus interveniens-
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R v Malcherek
The doctor witched off a life support machine
HELD- Switching off a life support machine by a doctor when it has been decided that the victim is brain dead doesn't break the chain of causation
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but for causation
the retaliatory action would not have occurred if it were not for the defendant's discriminatory intent
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Strict Liability
The legal responsibility for damage or injury even if you are not negligent
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strict liability state of affairs cases:
Winzar v Chief Constable of Kent
R V larsonneur
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R v Larsonneur (1933)
(Actus Reus- State of Affairs)
Women on holiday with 28 day visa, on the last day flew to Ireland. She had no Irish visa and was deported back to England. She was charged as her visa had run out.
Guilty of being an illegal alien- it didn't matter that she
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Winzar v Chief Constable of Kent (1983)
D's conviction was upheld because all that was required for liability was that the D was drunk on a highway. There was no need for the court to have any regard as to how he came to be there
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state of affairs
a situation or set of circumstances
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R v Prince (1875)
D charged with taking unmarried girl under 16 out of possession of father against will, contrary to S.55 OAPA 1861. D knew the girl was in possession of her father but thought she was 18.
D convicted, had intention to remove girl from possession of her fa
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State of affairs case
R v Hibbert
R V PRINCE
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R v Hibbert (1869)
D charged with taking unmarried girl under 16 out of possession of father against his will, contrary to S55 of OAPA 1861. D met 14yr old on street.
Acquitted of the offence as it wasn't proved he knew the girl was in custody of her father. Even though the
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no-fault case:
Callow v Tillstone
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Callow v Tillstone (1900)
(Strict Liability)
Butcher got Vet to confirm the meat he was selling was fit for human consumption- vet said it was. Meat turned out to be unfit.
Butcher was found guilty because it is a strict liability crime.
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Defence of mistake
Where the defendant acts under a mistaken belief of the circumstances they may be afforded the defence of mistake. Where a defendant acts under such a mistake, the mistake prevents them forming the mens rea of the crime and thus mistake is not really a de
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DEFENCE OF MISTAKE CAESES:
Cundy V Le cocq
Sherras v de rutzen
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Cundy v Le Cocq (1884)
Sold alcohol to an intoxicated person as customer didn't appear drunk.

Strict liability offence
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Sherras v De Rutzen (1895)
D was charged with serving an on duty officer with liquor. Officer had removed his armband (which they wear when on duty).
D not guilty. Offence not one of strict liability, according to a genuine mistake provided the defendant with a defence.
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strict liability in common law:
Public nuisance, outraging public decency, and the publication of a defamatory libel.
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Gibson and Sylveire (1991)
Demonstrates the only common law strict liability offense with modern examples. D used real frozen human foetuses in an art exhibit. As this was a strict liability offense, it didn't matter whether D knew he was outraging public decency.
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strict liability statuary:
tend to be regulations
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Sweet v Parsley (1970)
Linked to Presumptions
D charged with being 'concerned in the management of premises, which were used for the purposes of smoking cannabis'.
Elements of the offence were satisfied, but she had no mens rea. Conviction was quashed.
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Gammon test
Set down in Gammon v AG for Hong Kong it includes a presumption that crimes require Mens Rea unless a statute specifically excludes a need for Mens Rea.
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Harrow LBC v Shah and Shah (1999)
D owned a newsagents, reiterated regularly that lottery tickets weren't to be sold to someone under 16. one of D staff sold one, D charged s offence was one of strict liability.
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Alphacell v Woodward (1972)
Alphacell were convicted of causing a river to be polluted despite having pumps and employing someone to ensure the river was not polluted
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B v DPP (2000)
D was a 15 year old boy who asked a 13 year old girl to perform oral sex on him on the bus. believed she was over 14, charged with inciting a child under 14 to commit an act of gross indecency. HOL quashed conviction as MR required for the offence.
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Section 47 OAPA 1861
Assault occasioning ABH
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Chan Fook (1994)
student lodging at a house. The house owners ring goes missing, accuses student of stealing. The student was locked upstairs in a room. He begins to fear for his safety. He uses curtains to jump out of the window, sustaining injuries.
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T v DPP (2003)
D chased V. V fell and was kicked in the head by D. V lost consciousness and remembered nothing.
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R v Smith 2006
D's ex-girlfriend went to his house while he was asleep. She went to his bedroom and woke him up. He pushed her down and cut her pony tail off. No physical harm, only emotional.
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Savage (1991)
D threw a pint of beer over the victim in a pub. The glass slipped out of her hand and smashed and cut V's wrist. The victim was her husband's ex girlfriend and there had been bad feeling between the two.
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Roberts (1971)
D offered to give V a lift home after a party in his car. After a while, D began to make sexual advances at her. V was scared so jumped out of the car and sustained injuries.
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R v Parmenter
Intention or subjective recklessness of assault or battery
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section 20 OAPA 1861
section 20 OAPA 1861
wounding GBH
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R v Wood (2008)
Defence of DR arising as a result of consumption of alcohol was a matter to be considered by the jury.
Test was whether D's syndrome was of such an extent/nature that it constituted an abnormality of mind induced by illness.
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JCC v Eisenhower (1984)
V hit with a shotgun pellet in eye. It did not penetrate the eye but caused severe bleeding under the surface of the eye.
- Court held that a wound is 'a break to the whole skin', which V did not suffer as it did not break their skin. Therefore D was coul
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R v Dica (2004)
D knew that he had HIV. D had unprotected sex with 2 women and failed to tell them he had HIV

- Court held that D failing to tell the women that he had HIV amounted to GBH
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R v Bollom (2004)
The severity of injuries should be assessed according to the victim's age and health.
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R v Burstow (1997)
The V broke up with her ex-boyfriend D, the D then decided to harass her by making silent phone calls, abusive phone calls and sending hate mail to her neighbors. This resulted in the V being in a state of depression.
Held: The word 'inflict' found in S.2
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DPP v Smith (1961)
GBH means 'really serious harm'.
Harm does not have to be life-threatening.
Held: In DPP v Smith, the House of Lords allowed the appeal by the prosecution. The House found that the intent of the defendant was immaterial because any reasonable person who i
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R v Cunningham (1957)
D had broken a pre pay gas meter to steal the money in it - it escaped into the next door house.
The V became ill and her life was endangered.
Court said that the mens rea of the offence could be intention or recklessness and defined recklessness as
"bein
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R v Parmenter (1991)
You have to have the mens rea for GBH, D did not intend to cause any harm nor was he reckless as he did not foresee any harm to the baby due to doing it to slightly older kids which were fine. Therefore D was not guilty of anything.
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Section 18 OAPA 1861
Wounding/Grievous Bodily Harm (GBH) with intent.
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R v Martin (1881)
GBH, Actus Reus
D, as a joke, placed an iron bar in a theatre across an exit, turned out the lights on a staircase and yelled "FIRE!". As a result, several people were badly injured and suffered injuries such as broken limbs in their attempt to escape.
GB
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R v Mohan (1976)
The defendant was in his car at a near dangerous speed, a police officer had signalled him to stop, he slowed down, and then sped back up, nearly knocking over the police officer, who fortunately got out of the way. The defendant was convicted of attempte
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R v Woollin (1998)
D lost cool feeding baby son, threw towards pram hit. Baby hit wall and died. D convicted of murder, trial judge say jury could infer intention if satisfied there was a 'substantial risk' of causing serious harm.substituted a conviction of manslaughter.
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R v Taylor (2009)
V found with scratches and stab wound in back. Medical evidence was not clear as the stab wound had began to heal, so it was difficult to determine whether there was serious harm
- Court held that CPS only had to establish that D intended to cause serious
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R v Morrison (1989)
a police officer seized hold of the defendant and told him that she was arresting him
-he dived through a window, dragging her with him as far as the window so that her face was badly cut by the glass
-the COA held that as the word 'maliciously' is used i
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R v Maloney 1985
Mens Rea & Murder - D and step father were drunk and playing around with shotguns. They were seeing who could load and shoot faster then step father dared D to shoot. He accidentally shot and killed V. D was not guilty. Death had to be a natural consequen
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Cunnigham (1957)
Explains that subjective recklessness is not present if the defendant did not realise the risk of their actions. D tore off a gas canister to steal money. D did not realise that gas might seep into the next house. V was harmed by the gas. D was innocent o
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Other cards in this set

Card 2

Front

Fagan v Metropolitan Police Commissioner
DPP v Santana-Bermudez
Airedale NHS Trust v Bland
R v Dytham

Back

omission cases

Card 3

Front

(Battery, Actus Reus)
D injured a woman police officer by allowing her to search him, knowing he had hypodermic needles in his pockets which stabbed her. D denied having any needles or sharps when asked.
Force can be applied by an omission (opposite of an

Back

Preview of the back of card 3

Card 4

Front

withdrew life support on Anthony Bland. Patient was in vegetative state for 4 years. Had no prospect of recovery. Not a breach of duty by the doctor as he is not obliged to continue in a hopeless case. Also, the interloper that comes in a switches it off

Back

Preview of the back of card 4

Card 5

Front

Police officer witnessed a violent attack on V outside night club (V died), took no steps to intervene, drove away from scene.

Not charged with manslaughter as impossible to prove 'but for' test in causation.

Back

Preview of the back of card 5
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