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criminal 9: assault and battery, LLB London

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Assault sentencing: maximum sentences: CJA 1988: Assault 5000, 6 months or both Battery : same OAPA 1861 : A causing bodily harm : up to 5 years malicious wounding or inflicting GBH, up to 5 years wounding or causing GBH with intent: max life.

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assault: assault committed when a person intentionally or recklessly to apprehend immediate and unlawful violence. no physical contact necessary, psychic. do not need to prove that D caused injury, not necessary that he fears (e.g. he can defend). force must be immediate. not required to prove there was harm. AR NOTE: No matter what the defendant's intention was and no matter what he did, if the victim did not apprehend unlawful force perhaps because he was asleep, had his back turned to the defendant, was blind or was a twoday-old baby - there can be no offence of assault. MR: intention or recklessness. (Venna) 'recklessness' in this context is subjective, i.e. it must be proved beyond reasonable doubt that the defendant foresaw the risk of causing the victim to apprehend the application of violence. See Savage and Parmenter [1991]If doubt in the jury's mind as to whether or not the D did foresee the risk then D must be acquitted.

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battery: committed when a person intentionally or recklessly inflicts unlawful violence. do not need to prove that D caused injury Callis v Gunn [1964] Pursell v Horn (1838) Collins v Wilcock [1984] Wilson v Pringle [1986] Re F [1990] Ommission Fagan v MPC [1969] DPP v Santana-Bermudez [2003] Need not be Direct: Martin (1881), DPP v K 1997,Haystead v Chief Constable of Derbyshire [2000]

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statutory or common law offence. Haystead (2000): Haystead confirms that they are common, but CPS (crime prosecution service) says it should be statutory under s. 39. purely procedural.

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Smith v Chief Superintendent of Woking police station 1983. Immediacy: it was assault to stand outside the victim's window and stare in. with intent to frighten her and causing her to apprehend contact. what is mens rea requirement for A and B: intentionally or recklessly Battery by omission Fagavn v MPC 1969 DPP v Santana Bermudez 2003: Fagan: the defendant accidentally drove his car on to a policeman's foot but, despite repeated requests, refused to remove it. It was held that there was an assault but not merely by omission. The defendant's conduct, from accidentally driving on to the policeman's foot to refusing to move, was a continuing act. Santana: syringe in pocket, but does not tell officer

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what are aggravated assaults: A and B are gateway offences, required for more serious crimes. e.g. Assault with intent to resist arrest -occasioning actual Bodily Harm : OAPA -constructive manslaughter

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consent :: negates liability e.g. doctor, rugby limitations to consent:: consent must be real (fraud or duress) informed (Dica 2004, Konzani 2004) infected with HIV consent to BH: not generally valid except when in public interest: piercing, tatoos, doctors, sport.

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What are the key cases related to assault?: Fagan v MPC [1969] 1 QB 439 Savage and Parmenter [1991] 1 AC 699 Venna [1975] 3 All ER 78 Ireland [1997]

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assault AR: the defendant causes another to apprehend the application of immediate unlawful force. Faulkner v Talbot [1981] what is assault?: An assault is any intentional touching of another person without the consent of that person and without lawful excuse. It need not necessarily be hostile or rude or aggressive, as some of the cases seem to indicate. what is the test for assault in Constanza [1997] defendant sent numerous letters to the victim, drove past her door on many occasions and made a number of silent telephone calls. V was concerned that the defendant had 'flipped' and that something could happen 'at any time'.: The test was whether there was a 'fear of violence at some time not excluding the immediate future'

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R v Ireland and Burstow [1998] assaul and words conclusion: can constitute an assault where the victim apprehends the possibility of imminent force. aussault MR from Venna: must be proved that the defendant either intended to cause, or was aware of a risk of causing, the victim to apprehend the application of immediate unlawful violence Savage and Parmenter [1991] recklessness, MR Savage threw beer over the victim and, in the struggle, the glass broke and cut the victim. It was held that section 47 did not require proof of recklessness in relation to the 'occasioning'. The throwing of the beer was an assault, and that "assault" had occasioned the actual bodily harm which occurred in the continuing struggle. Parmenter injured his baby by tossing him about too roughly. Even though the baby was too young to apprehend the physical contact, there was voluntary contact that caused injury, so Parmenter was liable under section 47 because the injury resulted from his intention to play with his son.: it is subjective. BRD required If there is any doubt in the jury's mind as to whether or not the defendant did foresee the risk then the defendant must be acquitted.

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Battery Wilcock 1984: A person commits a battery if he intentionally or recklessly inflicts immediate unlawful violence on another person. R v Miller 1982: Miller test: omissions: conduct which consists of failing to take measures that lie within one's power to counteract a danger that one has oneself created, if at the time of such conduct one's state of mind is such as constitutes a necessary ingredient of the offence

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Santana-Bermudez [2004]: syringe in pocket, but does not tell officer: Divisional Court of the Queen's Bench, applying the Miller principle, held that where a person creates a danger and exposes another to a reasonably foreseeable risk, there is an evidential basis for the actus reus of common assault

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R v Williams [1923] 1 KB 340 Consent: the defendant was guilty of rape (and, therefore, battery) as he obtained the claimant's consent to sexual intercourse by falsely representing to her that it was a breathing exercise which would improve her singing voice

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Clarence consent and fraud: had sexual intercourse with his wife knowing that he had a venereal disease (a sexually transmittable disease). He did not tell her he was suffering from this condition. His wife became infected. She argued that there had been an assault as she would not have consented to the intercourse had she known that he had the condition. It was held that as there was no deception

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Dica: (overrules clarence): followed in R v Barnes [2004] EWCA 3246 and R v Feston Konzani: consent to sexual activity <> consent to risk of HIV Factors mitigating consent: fraud, duress (also based on relationship to V (Nichol schoolteacher/student), capacity, intent (Donavan) consent and capacity Gillick v West Norfolk Health Authority [1986],: cunder 16 could consent to advice and treatment without the need for any parental consent provided the child had the ability to appreciate the situation. -full age person may lack capacity (19 year and abortion) T v T 1988

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Tattooing of Minors Act, consent of minor: child cannot give consent Burrell v Harmer Donovan [1934] consent and intent, also A Gen Ref 1980, consent: D caned a 17-year-old girl for his own sexual gratification. It was held that a victim's consent was immaterial where the conduct of the D was likely or intended to cause bodily harm. AGF: infliction of any degree of bodily harm which is more than transient or trifling or where harm was intended but not caused, consent is a D only when harm is in public interest (sports, surgery)

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Brown [1993] SM behavior: Where A wounds or assaults B occasioning him actual bodily harm in the course of a sadomasochistic encounter, does the prosecution have to prove lack of consent on the part of B before they can establish A's guilt under OAPA: HL says NO. CONCERNS:concern at the possible corruption of young men who might be lured into these activities at a young age and then become entrenched in them for life - spread of aids -possible injury beyond the level to which a V had consented

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Laskey v United Kingdom (1997) 24 EHRR 611 complains to ECHR under article 8 right to a private and family life.: Sm behaviour, confirmed The rights guaranteed under Article 8, however, are not absolute right if the prosecution of the defendants did amount to an interference in their private lives, this was necessary in a democratic society in pursuance of the legitimate aim of protection of health and morals.

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Slingsby 1995: consent, but death results due to ring which inflicted injury. verdict?: but for the fact that the defendant was wearing a signet ring, no injury at all would have been caused or could have been contemplated. The question of consent to injury did not arise because neither party anticipated or considered it. The deceased sustained her unfortunate injuries as an accidental consequence of the sexual activity which was taking place with her consent. It would be contrary to principle to treat as criminal activity something which would not otherwise amount to assault merely because in the course of the activity an injury occurred.

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Boyea [1992]: conviction for indecent assault, claims that jury misdirected, should have required that , appealed, whether an act would be likely to cause bodily harm meant "did the defendant do the act recklessly?": follows Donovan, dismisses appeal: an assault intended or which was likely to cause bodily harm, accompanied by indecency, was an offence irrespective of consent provided the injury was not transient or trifling. The question whether the act of the defendant was "likely or intended to do bodily harm to the victim" is objective. The issue of recklessness did not arise.

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Boyea [1992]: consent and burden of proof: burden of proof on prosecution once D claims consent. where in the course of the incident which is said to constitute the indecent assault the jury are satisfied so that they are sure that things were done by the defendant which were likely or intended to cause bodily harm to the victim, the question of consent does not arise and the prosecution does not have to prove that the victim did not consent

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Wilson [1996] Mrs Wilson's husband, with a hot knife, branded his initials onto her buttocks. Mrs Wilson had consented to this and it only came to light when she underwent a medical examination. Emmett [1999], semi-asphyxiated and poured lighter fuel on the breast of partner: Consensual activity between a husband and wife in the privacy of the matrimonial home is not in our judgment a proper matter for criminal investigation, let alone prosecution. Emmett: convicted partly follows Wilson, but it was held that Wilson could be distinguished on the basis that the harm was less serious.

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Medical treatment , battery?: No matter how altruistic the doctor's motive, if a patient has not consented to medical treatment then it will, subject to any defence which may be available, amount to a battery or more serious offence. Body adornment/mutilation , consent and battery?: consent is valid in respect of such practices even though they result in bodily harm. consent to such interventions as the piercing or tattooing and perhaps even branding (see Wilson above) of parts of the body is valid provided, it would seem, that it is not done for sexual gratification. It seems that a parent can consent to a child's ears being pierced on behalf of that child

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Barnes [2005], sporting and consent: it was held that criminal proceedings should only be brought against a player who injured another player in the course of a sporting event if his conduct was sufficiently grave to be properly categorised as criminal. Lawful correction or chastisement: battery?: lawful at common law for parents to use moderate and reasonable force to discipline their children, provided the child was old enough to understand its purpose. To administer corporal punishment in spite, anger or for the purposes of gratification, or where the degree of force used was unreasonable, was unlawful. if any injury is caused or where there was cruelty there would be no D. Children Act 2004.

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Ireland and Burstow Steyn view on silence not sufficient for assault: The proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible. A thing said is also a thing done. There is no reason why something said should be incapable of causing an apprehension of immediate personal violence. e.g. a man saying to woman come or I will stab...

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Ireland can silent caller be guilty of assault: Yes, depending on the facts. Take now the case of the silent caller. He intends by his silence to cause fear and he is so understood. Up to jury, base on circumstances. R v St George (1840): St. George had an argument with Mr Durant and took out a gun. Before he could shoot another person prevented him from shooting. Assault. The person was in fear that he would be shot by the gun.

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Tuberville v. Savage 1669 Savage had made some insulting comments to Tuberville. In response, Tuberville grabbed the handle of his sword and stated, "If it were not assize-time, I would not take such language from you." Savage responded with force, causing Tuberville to lose his eye. Tuberville brought an action for assault, battery, and wounding, to which Savage pleaded provocation, to-wit Tuberville's statement.: To be liable for assault at least one of the following must be present: 1. an act intending to cause harmful control to another person, or imminent apprehension, or 2. a third person put in apprehension if he believes the person can do damage. An assault exists even if the other party can defend against the action and the action is not inevitable. Mere threats of future harm are insufficient. In this case the court held that the declaration of Tuberville was that he would not assault Savage at that point in time. To commit an assault there must be intention followed by an act. An assault is present if the fear is reasonable. The court held that in this case there was clearly no intention of assault.

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EX X and Y were arguing on the telephone. X became very angry and said to Y: 'If you were here I would punch you on the nose'. Has X assaulted Y?: Where the victim is aware of the threat being made but knows that it will not or cannot be carried out, there can be no assault as there will have been no apprehension of contact (Turberville v Savage (1669) 1 Mod Rep 3).

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EX X pointed an unloaded gun at Y intending to alarm him. Is X guilty of assault?: Pointing a loaded gun at a person would amount to an assault and the law is probably the same if the gun is unloaded unless the person at whom the gun is pointed knows or believes it to be unloaded (R v St George (1840) 9 C & P 483)

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Would it be correct to say that for there to be an assault the victim must fear the apprehension of immediate unlawful force?: It would be correct to some extent but the term 'fear' is incorrect. It is apprehension which is required and not fear. The victim does not have to be 'afraid'. It follows that it is irrelevant that the victim is courageous and is not frightened by the threat or that he could easily defeat the defendant's attack; if he apprehended the application of force then that element of the actus reus of assault would be made out.

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Words an assault cases: R v Meade (1823): words or singing cannot NO R v Wilson [1955]: words get out the knives t R v Ireland and Burstow [1998]: words/silence yes

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R v Ireland and Burstow [1998]: defendants made intimidatory phone calls to women; in both cases when the women answered the telephone they remained silent. In the case of Burstow there were other forms of harassment as well, Also note conviction for bodily harm even for psychiatric effects

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Callis v Gunn [1964]: Wrongly taking a persons fingerprint could be a battery Pursell v Horn (1838): Throwing water at the victim - although not at clothes she is wearing - is a battery Collins v Wilcock [1984]: The tapping of a person on the shoulder by a police officer to get their attention is unlikely to be a battery but a subsequent restraint could be Wilson v Pringle [1986] A boy went to school, having his bag over his shoulder. Boys came and told him that it was not allowed to take the bag over the shoulder and hit him on the floor. The question whether there is horse-play or hostile battery has to be decided by the situation that is given (open).: touching must be 'hostile' to amount to a battery.

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Re F [1990]: Hoffman: doubted whether the term 'hostile' connoted anything more than contact beyond that which is ordinarily acceptable in everyday life, saying: A prank that gets out of hand, an over-friendly slap on the back, surgical treatment by a surgeon who mistakenly thinks that the patient has consented to it, all these things may transcend the bounds of lawfulness, without being characterised as hostile. If you say there has to be hostility you do not save people enough from being touched if they do not want to be touched. Ratio decidendi questioned

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Martin (1881): defendant turned off the lights in a theatre and barred the exits causing a crush in which several people were injured DPP v K [1997]: defendant, a schoolboy, put acid into a hot air drier which resulted in the victim being burnt when he used it. Haystead v Chief Constable of Derbyshire [2000]: Striking A and thereby causing injury to B might amount to a battery to B, as in Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890 where the defendant punched A who was holding a child in her arms. The child fell, hitting its head on the floor. The defendant was guilty of a battery in respect of the child.

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Consent as a defence to assault and battery: Where a person freely consents to what would otherwise be a common assault there is no offence. Care must be taken with consent as limits have been placed on the extent to which consent will negate criminal liability. One of the limits is, for example, where the defendant caused or intended some harm, even harm of a fairly minor nature. Wilson v Pringle Re F [1990] Consent : FRAUD nature of act R v Williams [1923],Hegarty v Shine (1878) R v Clarence (1888) Bolduc v Bird (1967) R v Tabassum [2000] R v Barnes [2004] R v Feston Konzani [2005] Richardson [1998] Dica Consent :Duress Nichol (1807) Capacity Gillick v West Norfolk Health Authority [1986] Burrell v Harmer [1967] T v T [1988] Re F [1989]

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battery, consent and public policy cases: Attorney General's Reference (No. 6 of 1980) approved by Brown [1993] Donovan [1934] Dica [2004] Laskey v United Kingdom (1997) Slingsby [1995] Crim LR 570 Boyea [1992] Wilson [1996] Emmett [1999]

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R v Williams [1923] COMPARE R v Clarence (1888): was guilty of rape (and, therefore, battery) as he obtained the claimant's consent to sexual intercourse by falsely representing to her that it was a breathing exercise which would improve her singing voice. Thus, there was a fraud as to the nature of the act.

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R v Clarence (1888): sexual intercourse with his wife knowing that he had a venereal disease (a sexually transmittable disease). He did not tell her he was suffering from this condition. His wife became infected. She argued that there had been an assault as she would not have consented to the intercourse had she known that he had the condition. It was held that as there was no deception as to the nature of the act - she knew the nature of the act and the identity of the person performing it - it was irrelevant that she was mistaken about a collateral detail of it.

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R v Dica (2004) followed in R v Barnes (2004) ECWA 3246 and R v Feston Konzani (2005) guilty of s20 OAPA: ECWA Crim 1103 - the defendant infected two sexual partners with HIV, the court of appeal decided that Clarence was no longer useful application. The victim had not been raped but they had not consented to bodily harm. However they note that: an adult can consent to the risk of a sexually transmitted disease, even AIDS

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R v Tabassum [2000]: defendant was found guilty of indecent assault where he had examined the breasts of women who had consented because they believed that it was for medical purposes. Therefore, the court held that although there was, in essence, consent to the nature of the act there was no consent in relation to its quality. This introduced a new dimension of 'quality'.

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Richardson [1998]: 200 patients consented to dental treatment performed by a dentist who had been suspended by the General Dental Council, and thus was behaving unlawfully by practising dentistry. The patients said that they would not have consented had they known that she had been suspended. The defendant was convicted of assault occasioning actual bodily harm contrary to s.47 OAPA - the trial judge having ruled that the victims' mistake vitiated consent being a mistake equivalent to identity. The Court of Appeal, however, quashed the conviction. The identity of a person did not extend to their qualifications or attributes.

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Nichol (1807): Duress may be implied from the relationship according to the case of Nichol (1807) where a school teacher committed an indecent act on a schoolboy and tried to argue that the boy had consented.

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Burrell v Harmer (1967),: Consent is accepted as a valid defence to tattooing, as demonstrated by Burrell v Harmer (1967), in which the defendant was convicted of ABH after tattooing two boys aged 12 and 13, but this was only because the court held the boys did not understand the nature of the act and thus there was no real consent. If there had been real consent then the defendant would not have been liable for the tattooing.

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Attorney General's Reference (No. 6 of 1980): CA: Where there is either: 1. infliction of any degree of bodily harm which is more than transient or trifling, or 2. where such harm was intended but not caused, consent will only be a defence where the harm caused or intended was in the public interest. Street fighting was not such an activity. The Court of Appeal ruled that conduct such as properly conducted games and sports, reasonable surgical interference and lawful chastisement or correction were in the public interest.

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Brown [1993] S&M: group of sado-masochistic homosexuals who, for sexual pleasure, perpetrated acts of violence against each other. This conduct took place at private gatherings and, for their further pleasure, they videoed these encounters. None of the participants complained to the police and there was no evidence that any of them had ever sought medical treatment following any of the gatherings. These activities came to the attention of the police when they found one of the video recordings whilst investigating another matter. CA Where A wounds or assaults B occasioning him actual bodily harm in the course of a sadomasochistic encounter, does the prosecution have to prove lack of consent on the part of B before they can establish A's guilt under s.20 or s.47 of the Offences Against the Person Act 1861? The House of Lords in a majority decision answered the question in the negative and upheld the convictions.

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Brown [1993] S&M followup complained to the European Court of Human Rights that the convictions infringed their right to a private and family life guaranteed by Article 8 of the European Convention on Human Rights (Laskey v United Kingdom (1997) 24 EHRR 611).: rights guaranteed under Article 8, however, are not absolute rights and the European Court of Human Rights ruled that if the prosecution of the defendants did amount to an interference in their private lives, this was necessary in a democratic society in pursuance of the legitimate aim of protection of health and morals.

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Slingsby [1995] compare Boyea 1992=> inconsistent application public policy: victim died after having engaged in 'vigorous' sexual activity - to which she had consented - with the defendant. She died of septicaemia having been injured by the defendant's signet ring when he inserted his hand into her vagina and rectum. He was charged with unlawful and dangerous act manslaughter but Judge J ruled - as Smith and Hogan point out at p.598 - that 'it would be contrary to principle to treat as criminal, activity which would not otherwise amount to an assault merely because an injury was caused'. Boyea however, where the facts were similar and bodily harm was caused, the defendant was found guilty of assault.

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Wilson [1996] compare Emmett 1999 inconsistent: Mrs Wilson's husband, with a hot knife, branded his initials onto her buttocks. Mrs Wilson had consented to this and it only came to light when she underwent a medical examination. The Court of Appeal quashed Mr Wilson's conviction under s.47 OAPA. Some of the reasons given were that there was no logical difference between what happened in this case and tattooing. It was not in the public interest that consensual activity between a husband and wife in the privacy of their home should be visited by the sanctions of the criminal law where there was no aggressive intent.

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Emmett 1999: defendant semi-asphyxiated and poured lighter fuel on the breast of his female partner his conviction for assault occasioning actual bodily harm was upheld by the Court of Appeal. Although reliance in this case had been placed on Wilson, it was held that Wilson could be distinguished on the basis that the harm was less serious. Here the potential damage was far greater, a fact of which the defendant was aware.

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Medical treatment: if a patient has not consented to medical treatment then it will, subject to any defence which may be available, amount to a battery or more serious offence. Body adornment/mutilation: parent can consent to a child's ears being pierced on behalf of that child - it is common practice for parents to do so - although presumably they could not validly consent to anything more invasive unless it was for a therapeutic purpose.

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sports Barnes [2005]: it was held that criminal proceedings should only be brought against a player who injured another player in the course of a sporting event if his conduct was sufficiently grave to be properly categorised as criminal. Woolf: the starting point was that criminal prosecution was to be reserved for those situations in which the conduct was sufficiently grave properly to be regarded as being criminal, having regard to the fact that most organised sports had their own disciplinary procedures and to the availability of civil remedies.

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Lawful correction or chastisement: Article 3 of the European Convention on Human Rights provides a right not to be subjected to inhumane and degrading treatment and in A v UK (Human rights: punishment of a child) [1998] Following the implementation of the Children Act 2004, reasonable and proportionate punishment only resulting in an assault or battery would still amount to lawful chastisement. But if any injury is caused or where there was cruelty there would be no defence.

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defences to assault and battery: in addition D may use general defences such as self-defence or necessity