Ocr A2 Law (criminal): Offical Thread! Watch

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sonya_p
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#361
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#361
by the way has any1 got notes on ABH GBH s20 and s18.
im still getting confused with these.
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Multiplexed
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(Original post by Nicci1187)
First, only a threat of death/serious injury will suffice. Nothing less (VALDERRAMA-VEGA)
What? The court in VALDERRAMA-VEGA upheld the ruling in GRAHAM that there must be a threat of death or serious physical harm BUT these do not have to be the sole reason for the defendant's actions. You gave the direction of the trial judge (who was proven incorrect) in saying that he could not have the defence unless such threats were the ONLY reason for criminal conduct.

In CAIRNS the courts said that there does not actually have to BE a threat of death or serious injury, as long as the dft reasonably believes that one exists.

Many problems surrounding the imminency of the threat (R v ABDUL-HUSSIAN) used to be thought threat had to be IMMEDIATE but R v HUDSON + TAYLOR now says an imminent threat will suffice.
Isn't this the other way round? It was Abdul Hussain & Others that replaced immediate with imminent.
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Nicci1187
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(Original post by sonya_p)
by the way has any1 got notes on ABH GBH s20 and s18.
im still getting confused with these.
ABH - S47 Offences against the Person Act 1861
'assault (or battery) occaisoning Actual Bodily Harm.
Mens rea intention or recklessness as to the assualt or battery NOT the ABH - only need to see a risk of some physical harm SAVAGE, PARMENTER!
Described in Chan-Fook as 'injury not so trivial as to be wholly insignificant'.
IRELAND and BURSTOW confirmed serious psychiatric injury can suffice.

GBH - S20 OATPA 1861
unlawful or malicious wounding that inflicts GBH
don't have to intend/foresee GBH, just some harm
Described in SAUNDERS as really serious injury but courts must make a distinction between s20 and s18 so they say s20 is 'some harm'
BURSTOW again confirmed serious psychiatric injury will suffice.
Wounding - must be a break in both layers of the skin - EISENHOWER (internal bleeding won't suffice) Very worrying decision as a pin can cause blood.

GBH S18 OATPA 1861
wounding with intent - can be committed in 4 ways
1)causing GBH with intent to cause GBH
2)wounding with intent to cause GBH
3)causing GBH with intent to resist arrest
4)wounding with intent to resist arrest
'really serious injury must be intended' - SAUNDERS

hpe that helps
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Multiplexed
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(Original post by Nicci1187)
ABH - S47 Offences against the Person Act 1861
'assault (or battery) occaisoning Actual Bodily Harm.
Mens rea intention or recklessness as to the assualt or battery NOT the ABH - only need to see a risk of some physical harm SAVAGE, PARMENTER!
Described in Chan-Fook as 'injury not so trivial as to be wholly insignificant'.
IRELAND and BURSTOW confirmed serious psychiatric injury can suffice.

GBH - S20 OATPA 1861
unlawful or malicious wounding that inflicts GBH
don't have to intend/foresee GBH, just some harm
Described in SAUNDERS as really serious injury but courts must make a distinction between s20 and s18 so they say s20 is 'some harm'
BURSTOW again confirmed serious psychiatric injury will suffice.
Wounding - must be a break in both layers of the skin - EISENHOWER (internal bleeding won't suffice) Very worrying decision as a pin can cause blood.

GBH S18 OATPA 1861
wounding with intent - can be committed in 4 ways
1)causing GBH with intent to cause GBH
2)wounding with intent to cause GBH
3)causing GBH with intent to resist arrest
4)wounding with intent to resist arrest
'really serious injury must be intended' - SAUNDERS

hpe that helps
Are you sure it's SAUNDERS & not SMITH?
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sonya_p
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yeh nicci that helps. nicely broken down. have u got the evaluation?
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Nicci1187
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(Original post by Multiplexed)
What? The court in VALDERRAMA-VEGA upheld the ruling in GRAHAM that there must be a threat of death or serious physical harm BUT these do not have to be the sole reason for the defendant's actions. You gave the direction of the trial judge (who was proven incorrect) in saying that he could not have the defence unless such threats were the ONLY reason for criminal conduct.

In CAIRNS the courts said that there does not actually have to BE a threat of death or serious injury, as long as the dft reasonably believes that one exists.



Isn't this the other way round? It was Abdul Hussain & Others that replaced immediate with imminent.
Abdul-Hussain and Hudson + Taylor both changed it from immediate to imment, i was merely pointing out both cases could be used to illustrate that point
I didn't say anything about it having to be the ONLY (as in sole) threat i was saying how Valderrama-Vega said death/serious injury would be the ONLY level of threat to suffice, not threats againt pets or property
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Nicci1187
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#367
(Original post by Multiplexed)
Are you sure it's SAUNDERS & not SMITH?
I'm positive its SAUNDERS but Smith can be used as well depends which case u've learnt to illustrate the point
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sonya_p
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(Original post by Multiplexed)
Are you sure it's SAUNDERS & not SMITH?

this is what my text book says...

smith --> House of Lords held that 'GBH simple means really serious harm.

Saunders ----> it would not be a misdirection to leave out the word 'really' , the words 'serious harm' would suffice.
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Multiplexed
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(Original post by sonya_p)
this is what my text book says...

smith --> House of Lords helf that 'GBH simple means really serious harm.

Saunders ----> it would not be a misdirection to leave out the word 'really' , the words 'serious harm would suffice.
Coolio.
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Nicci1187
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(Original post by sonya_p)
yeh nicci that helps. nicely broken down. have u got the evaluation?
1) ANTIQUATED TERMINOLOGY
malicious and grievous very old fashioned words no longer used in 2days language.
battery in law means slightest touch (THOMAS) but to be battered means beaten up.
bodily harm includes mental harm

2) STRUCTURAL ISSUES
majority are stautory offences except assaut and battery but they have statutory penalties - s39 CJA 1988
little difference between battery and ABH but big difference between 6months and 5 years
big difference between ABH and GBH s20 but both have same penalty
s20 and s18 doesn't warrant the jump from 5 years max. to life

3) BASIS FOR LIABILTIY
liabilty is currently based on the LEVEL of injury but alternative would be to base it on the MEANS
eg - d lunges at v with knife intending to do serious harm but by good luck v gets tiny scratch. d gets ABH
d argues with v and mearly pushes him but by bad luck he fractures his skull
d gets GBH!

4) MENS REA PROBLEMS
ABH only requires some harm not necessarily ABH
GBH s20 only requires mens rea as to ABH, not necessarily GBH

5) ACTUS REUS PROBLEMS
assault - problems with 'immediate'. A threat to kill v next month is not an assualt - leaves a gap in the law

u want reforms??
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sonya_p
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(Original post by Nicci1187)
1) ANTIQUATED TERMINOLOGY
malicious and grievous very old fashioned words no longer used in 2days language.
battery in law means slightest touch (THOMAS) but to be battered means beaten up.
bodily harm includes mental harm

2) STRUCTURAL ISSUES
majority are stautory offences except assaut and battery but they have statutory penalties - s39 CJA 1988
little difference between battery and ABH but big difference between 6months and 5 years
big difference between ABH and GBH s20 but both have same penalty
s20 and s18 doesn't warrant the jump from 5 years max. to life

3) BASIS FOR LIABILTIY
liabilty is currently based on the LEVEL of injury but alternative would be to base it on the MEANS
eg - d lunges at v with knife intending to do serious harm but by good luck v gets tiny scratch. d gets ABH
d argues with v and mearly pushes him but by bad luck he fractures his skull
d gets GBH!

4) MENS REA PROBLEMS
ABH only requires some harm not necessarily ABH
GBH s20 only requires mens rea as to ABH, not necessarily GBH

5) ACTUS REUS PROBLEMS
assault - problems with 'immediate'. A threat to kill v next month is not an assualt - leaves a gap in the law

u want reforms??

thanks for the evaluation.

yeh it will help to have reforms.
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*lulu7*
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THIS IS WHAT I HAVE GOT>> U THINK IV MENTIONED EVERYTHING PLZ GIVE ADVICEE!!!!!!!!!!!!!!!!!!!

Revision notes
The non fatal offences against the person:

Common Assault (assault + battery)-s39 Criminal Justice Act

ACTUS REAS
• no injury is required


MENS REA
• intention or subjective reckless to cause V to fear immediate unlawful violence or applying unlawful force.


SENTENCE?
summary offences that can only be tried at magistrates out with max sentence of 6 months


















(Assault) ABH-s47 OAPA

ACTUS REAS
• ABH (e.g extensive bruising, loss or breaking of a tooth, victim lost consciousness, broken nose, minor fractures, stitches, psychiatric injuries-hard to prove)

MENS REA
• intention or subjective reckless to cause V to fear immediate unlawful violence or applying unlawful force.


SENTENCE?
• Either way offences so can be tried at Crown court max 5years.






Defining ‘bodily harm’ .C.O.A stated it was capable for psychiatric injury to be ABH. But did not include fear, distress, panic or nervous condition

CHAN FOOK
• D suspected V had stolen his gf engagement ring

• D dragged him to 2nd floor of building and locked him in room.

• V jumped from the building as he was frightened

• Judge directed jury that nervous condition was capable of being ABH.

• Convicted C.O.A quashed and said that what V had suffered did not qualify as ‘psychiatric injury’.



Maliciously wounding or inflicting GBH-s20 OAPA

ACTUS REAS
• A direct, indirect act or omission

• WOUND (cutting of the whole skin)

• GBH (really serious harm including psychiatric harm)


MENS REA
• intention or subjective reckless to cause V to cause some injury (not serious)


SENTENCE
• Either way offences so can be tried at Crown court max 5years.

















Defining ‘wound’

Eisenhower
• Shot in the eye with an airgun

• Internal eye vessel broke, no external bleeding therefore did not count as a wound and charge for GB H did not succeed.




Distinction between inflicting GBH and causing GBH and defining ‘immediate’
Ireland
• D had made silent phone call to three women.

• There was evidence that the victims had apprehended of what he might do next and where he was, where he was making the phone calls from.

















Defining ‘infliction’
Clarence
• D had sex with his wife, knowing he had a venereal disease without telling her

• The crown court decided he had not assaulted her because of her consent to sex.

• This forced them to quash conviction of inflicting GBH (much narrower interpretation of ‘infliction’ then than now)

• Therefore the decision that to ‘inflict; would be interpretated to ‘cause





Defining ‘grievous’
Bollom
• D had beenn vonvicted under s18

• 17 month year old baby had abrasions on her legs

• D appealed arguing that the trial judge hadn’t directed the jury of the baby’s age, health or other factors in deciding whether injuries amounted to really serious harm.

• C.O.A qushed conviction substituting a conviction under s47

• Grevious means no more and no less than “really serious”.






Maliciously wounding or inflicting causing GBH with intent or to resist the lawful arrest-s18 OAPA

ACTUS REAS
• A direct, indirect act or omission to cause V’s injury

• WOUND (cutting of the whole skin)

• GBH (really serious harm including psychiatric harm

MENS REA
• Specific intention to wound or inflict or to resist an arrest

SENTENCE?
• Tried at crown court , max life




In terms of insofar mens rea of defining intention :

MOHAN

• Two people attacked V with a particular sort of knife. V was killed, only one wound was fatal.

• PROBLEM-who did when they both had the common intention to cause harm.

• C.O.A defined ‘intent’ as D’s power and operation of the offence alleged D attempted to commit regardless of D’s desired consequence



Defining ‘maliciously’
MOWATT.
• The word ‘malicoulsy’ is seen as adding nothing, however in other crime charges this word is very important.

• D would not be liable under sect.18 if with intent to resist arrest they accidently injured a policeman.

• D needs to have the intention to resist arrest and intend or be reckless whter a wound or GBH is caused























Average person can’t understand complicated, archaic language and in technical structure. It is outdated, unclear and creates unnecessary confusion in the courts.

Four new offences that are presently going through and the OAP bill would abolish all the current offences.:

• Assault (replace s39)

• Intentional or reckless injury (replace s47)

• Intentional serious injury (replace s18)

• Reckless serious injury (replace s20)
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Nicci1187
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The Law Commission drafted a Bill in 1993 with suggested reforms - nothings been done.
1)INTENTIONALLY CAUSING SERIOUS INJURY - would replace s18 and max sentence would be life.
2)RECKLESSLY CAUSING SERIUOS INJURY - would replace s20 and max penalty increased from 5 years to 7 years
3)INTENTIONALLY OR RECKLESSLY CAUSING INJURY - would replace s47, max sentence 5years
4) NEW OFFENCE OF ASSAULT...guilty of assault if..
a - intentionallly or recklessly apply force or cause an impact on the body of another OR
b - intentionally or recklessly cause a person to believe that such force or impact is imminent
BOTH WOUL REPLACE CURRENT ASSAULT AND BATTERY - max sentence 6 months

Transmission of disease would only come under CLAUSE 1 because it would be wrong to criminalise reckless transmission of minor diseases eg- measles AND wrong to discriminate against those with AIDS

Arguable that gap between clauses 2 and 3 should be widenened. Not 7/5 but 10/5 or 7/3 years
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sonya_p
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(Original post by Nicci1187)
The Law Commission drafted a Bill in 1993 with suggested reforms - nothings been done.
1)INTENTIONALLY CAUSING SERIOUS INJURY - would replace s18 and max sentence would be life.
2)RECKLESSLY CAUSING SERIUOS INJURY - would replace s20 and max penalty increased from 5 years to 7 years
3)INTENTIONALLY OR RECKLESSLY CAUSING INJURY - would replace s47, max sentence 5years
4) NEW OFFENCE OF ASSAULT...guilty of assault if..
a - intentionallly or recklessly apply force or cause an impact on the body of another OR
b - intentionally or recklessly cause a person to believe that such force or impact is imminent
BOTH WOUL REPLACE CURRENT ASSAULT AND BATTERY - max sentence 6 months

Transmission of disease would only come under CLAUSE 1 because it would be wrong to criminalise reckless transmission of minor diseases eg- measles AND wrong to discriminate against those with AIDS

Arguable that gap between clauses 2 and 3 should be widenened. Not 7/5 but 10/5 or 7/3 years


thanku!
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*lulu7*
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(Original post by Nicci1187)
The Law Commission drafted a Bill in 1993 with suggested reforms - nothings been done.
1)INTENTIONALLY CAUSING SERIOUS INJURY - would replace s18 and max sentence would be life.
2)RECKLESSLY CAUSING SERIUOS INJURY - would replace s20 and max penalty increased from 5 years to 7 years
3)INTENTIONALLY OR RECKLESSLY CAUSING INJURY - would replace s47, max sentence 5years
4) NEW OFFENCE OF ASSAULT...guilty of assault if..
a - intentionallly or recklessly apply force or cause an impact on the body of another OR
b - intentionally or recklessly cause a person to believe that such force or impact is imminent
BOTH WOUL REPLACE CURRENT ASSAULT AND BATTERY - max sentence 6 months

Transmission of disease would only come under CLAUSE 1 because it would be wrong to criminalise reckless transmission of minor diseases eg- measles AND wrong to discriminate against those with AIDS

Arguable that gap between clauses 2 and 3 should be widenened. Not 7/5 but 10/5 or 7/3 years
cheers..
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sonya_p
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lol

we've covered everything on this thread besides Criminal damage.
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*lulu7*
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hmm theres loads for provocation.. u think it is really necessary to revise it ppl?????
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*lulu7*
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yeh a bit earlier on we covered criminal damage me ode xx
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Nicci1187
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(Original post by lulu7)
yeh a bit earlier on we covered criminal damage me ode xx
Does any1 know the reforms for criminal damage? Just know the basic requirements for provocation i think, its normally incorporated into a murder question anyway
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*lulu7*
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(Original post by Nicci1187)
Does any1 know the reforms for criminal damage? Just know the basic requirements for provocation i think, its normally incorporated into a murder question anyway
no i don't know the reforms. i wasn't aware we had to know the reforms for every defence etc ya know!!!lol
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