Criminal Law and Types of Assault - Essay Example

160815     The starting point in deciding what charges can be brought against Amy is to examine the different types of assault that she could be charged with and the charging standard set by the CPS. The most minor charge that could be brought in this instance is a charge for common assault as described under s39 of the Criminal Justice Act. Under this section an assault is committed if a person assaults another or commits a battery. An assault has been defines as when a person intentionally or recklessly causes another too apprehend the immediate infliction of unlawful force1. A battery is when a person intentionally and recklessly applies unlawful force to another2. Section 39 assaults are dealt with as a summary offence and carry a maximum of six months imprisonment. This can include a fine of up to £5,000 or the sentence can be replaced by a fine on its own. On some occasions a common assault can be counted as an indictment if the requirements laid down by section 40 of the Criminal Justice Act 1988 are met. If the courts are satisfied that the assault fits the criteria for a battery then the correct charge would be assault by beating3. The difference between a section 39 assault and a section 474 assault is in the degree of injury that results from the attack. In terms of sentencing the courts can issue higher sentences for a section 47 assault. The Code for Crown Prosecutors is aware that there will be factors that will influence the decision whether to charge at the highest level or whether a lesser charge is more appropriate. In general terms grazes, scratches, abrasions and minor bruising as well as swellings, reddening of the skin, superficial cuts and a black eye will fall under the remit of a section 39 assault. When the prosecutors are deciding on the charge they will consider the degree of injury first. There are also a few cases where the degree of injury would usually amount to a common assault but because there are aggravating features to the attack the more serious charge may be appropriate. Aggravating features can include the use of a weapon, biting, gouging or kicking of a victim whilst on the ground, or strangulation which is for more than a fleeting moment and which caused rea; fear to the victim. Other aggravating features can include the vulnerability of the victim such as the age of the victim or any disability the victim might have. The Domestic Violence, Crime and Disorder Act 2004 s11 makes common assault an alternative to more serious offences of assault even if the count has not been preferred in the indictment. Common assault is capable of being racially or religiously aggravated under the Crime and Disorder Act 1998. The racially/religiously aggravated version of section 39 is an either way offence. Under the Offences Against the Person Act 1861 the Act recognises that such an offence is committed when a person assaults another, thereby causing actual bodily harm5. The definition of bodily harm as been described as any hurt calculated to interfere with the health or comfort of the victim. The hurt caused need not be permanent but must be more than transient and trifling6. Such offences are either way offences which means that they can be tried in the Magistrates court or the Crown Court and can carry a maximum penalty of 5 years imprisonment if tried on indictment. Such injuries that might attract a charge of a section 47 assault include loss or breaking of a tooth or teeth, temporary loss of sensory functions which may include loss of consciousness7, extensive or multiple bruising, or a displaced broken nose. Minor fractures and minor cuts which require medical treatment as well as psychiatric injury8 can be classed as a section 47 assault. In proving such an assault the court applies the test of recklessness9. As with a section 39 assault, a section 47 is also capable of being racially aggravated. A higher level assault still would be a section 20 assault10 which is committed when a person unlawfully and maliciously, either inflicts grievous bodily harm on another or wounds another person. As with a section 47 assault this is an either way offence which carries a maximum penalty of 5 years on indictment. To charge this level of offence wounding is defined as the breaking of the continuity of the whole of the outer skin, or the inner skin within the cheek or lip. This does not include the rupture of internal vessels11. Wounding can include injuries that are relatively minor in nature such as a small cut or laceration. Injuries at this level are more likely to be charged under section 47. Grievous bodily harm involves serious bodily harm and it is left for a jury to decide whether the harm is serious12. Injuries that have fallen into this category in the past have included injuries which result in a permanent disability or disfigurement, or a permanent loss of sensory function, compound fractures, substantial blood loss or injuries that result in lengthy treatment or incapacity. Psychiatric injury can also be included. If there is reliable evidence that such a wound has been inflicted then the charge should be unlawful wounding13. In proving this offence the prosecution must prove that either the defendant intended, or actually foresaw, that the act might cause some harm. It is not necessary to prove that the defendant either intended or foresaw that the unlawful act might cause physical harm. It is enough that the defendant foresaw some physical harm to some person, albeit of a minor character, might result14. As before there can be a racially or religiously aggravated assault of this nature. A section 1815 assault occurs when the person unlawfully and maliciously assaults another with the intent to do some grievous bodily harm. As with a section 20 the assault can be charged as a section 18 if there has been a wounding. Section 18 offences are indictable only and therefore must be heard in the Crown Court. The maximum sentence in this case can be life imprisonment the distinction between a section 18 assault and a section 20 assault lies in the intent of the offender. a section 20 assault requires the infliction of harm whereas a section 18 assault requires the causing of harm. This distinction has been reduced in some instances16. Factors that indicate a section 18n assault would be a repeated or planned attack, a deliberate selection of a weapon an adaptation of an article to cause injury, making prior threats or using an offensive weapon against the victim. Kicking can also be considered under section 1817. Occasionally juries can find a lesser offence than that charged, but at present the jury ere not open to find a defendant guilty of common assault when one of the higher levels have been charged. There have been some cases where the courts have convicted a suspect with s s29 assault as an alternative to causing serious bodily harm with intent18 Defence counsel have a range of options open to them to counter the charges their client is facing. One of the most commonly used ones is the defence of consent19. Self defence is also another common plea20. Other such defences include defence of property21, prevention of crime22 and execution of process23. As a result of these anomalies of defences of self defence, defending one’ property and preventing crime. The use of force in these circumstances should aim to minimalise the number of cases heard in the court. When deciding on the issue of reasonable and unreasonable force the courts are reminder to consider the words of Lord Morris in Palmer v R [1971] A.C. 814 where he stated "If there has been an attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary that would be the most potent evidence that only reasonable defensive action had been taken”. From the above it would seem that for Part 1 Amy could be charged with a section 39 assault although as mentioned before this would depend on the nature and seriousness of the injuries. Lisa could argue that the fact that the fact that she was unconscious for a while should be taken into consideration when charging the offender as mentioned above24. Given that her other injuries are almost unnoticeable it is more likely for a s 39 to be charged. In the case of Michelle she would be able to bring charges against Amy under s47 or higher as the severity of injuries are the same. Valda could claim for psychiatric harm as well as alleging an assault. As she is coloured further charges regarding racial offences could be charged on the police. It is my opinion that Amy would be charged under s39 in respect of the assault on Lisa and a section 47 assault on Michelle. The outburst at Valda could be regarded as a racially aggravated assault due to her ethnic origin. Bibliography Ashworth, A Principle of Criminal Law, 5th Ed, 2003, Oxford Elliott, C and Quinn, F Criminal Law, 3rd Ed, 2000, Pearson Education Glazebrook, P.R, Statutes on Criminal Law, 10th Ed, 2000-2001, Blackstone’s Inns of Court School Of Law, Criminal Litigation and Sentencing, 2003 Oxford University Press Murphy, E, Blackstone’s Criminal Practice, 2002, Oxford university Press Richardson, J, Archbold: Criminal Pleading, Evidence and Practice 2007 Sweet & Maxwell Archbold 2007 Smith, J.C. and Hogan, B, Criminal Law, 7th Ed, 2002, London: Butterworths Table of Cases R v Burstow [1998] A.C 147 DPP v Little (1992) 1 All ER 299 DPP v Parmenter [1992] 1 A.C 699 Palmer v R [1971] A.C. 814 R v Chan-Fook, 99 Cr. App. R. 147, CA R v Cunningham [1982] AC 566 R v Donovan 25 Cr. App. Rep. 1, CCA R v Ireland [1998] AC 14 R v Mandair [1994] 2 W.L.R. 1376 H.L R v McCready (1978) 1 WLR 1376 R v Savage [1992] 1 AC 699 [1991] 2 WLR 914 R v Wilson, R v Jenkins & Jenkins (1983) 77 Cr. App. R. 319 H.L) T v Director of Public Prosecutions, [2003] Crim. L. R. 622 Table of Statutes Criminal Justice Act Domestic Violence, Crime and Disorder Act 2004 Offences Against the Person Act 1861 Read More