#17374 - Offences Against The Person Notes Real - Criminal law

Offences Against the Person (Non-Fatal)

Introduction

• Common thread to offences against the person is the right to be free of unwarranted intrusions upon the body (except the exigencies of normal life.)

• Right to Privacy – Article 8 of the ECHR.

Distinction between Assault and Battery

• Assault – apprehension o V is assaulted if D has “done something of a physical kind which cases someone else to apprehend that they are about to be struck” (Nelson [2013] EWCA Crim 30)

• Battery – infliction

• It is suggested that the distinction is a matter of pedantry, and the two offences should be merged o Proposals to amend -

  • Criminal Law Revision Committee (Cmnd 7844, 1980)

  • Home Office, Violence: Reforming the Offences Against the Person Act 1861, 1998

  • There are historical reasons for the distinction -

    • Battery arises from the tort of trespass against the person (Milsom, 1981), whereas the etymology of assault is adsaltare (to jump at) indicates a focus on fright

  • However practical difficulties to maintaining distinction

    • OAPA 1861 refers to assault occasioning ABH, not battery

• Divisional Court held in DPP v Little [1992] QB 645 that the two remained two separate offences

Assault

No statutory definition.

Actus Reus:

Robert Goff LJ: Collins v Wilcock

‘’An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person.’’

This can be broken down into key parts:

• The defendant causes victim to apprehend the use of force against them.

• The victim apprehends that use of force will be immediate.

• This force is unlawful.

(i) The defendant causes the victim to apprehend force.

The actus reus is established through the causing of the apprehension of force and there does not need to be any application of actual force on the victim.

It does not matter whether the actual application of force was even possible, as long as the apprehension is caused. To illustrate this, consider the following example. The defendant points an unloaded gun at a stranger in a street. There is no way he could shoot them even if that was his intention but the stranger will be unaware of this so will fear the application of force. Now consider that the defendant and his friend are shooting enthusiasts and are in a gun shop looking at unloaded display models. If the defendant picked up a gun and turned and pointed it at his friend and shouted ‘hands up or I’ll shoot’ the defendant’s friend will know that this is an empty threat and will not be caused to apprehend a use of force, thus no assault will occur.

Bryne- ‘’Mere words’’ will not constitute an assault. Overruled.

R v Constanza [1997] Crim LR 576 states that words alone can cause the victim to apprehend harm and thus constitute an assault. For example, “I’m going to hit you” does not need to be accompanied by any action for an assault to occur. COA held that written threats by letter could found an assault. Presumably this would extend to threats by text message or social media.

R v Ireland [1997] 3 WLR 534 - silence can amount an assault. In this case the defendant made a series of silent phone calls to his victim causing them to fear immediate force and leading them to suffer severe psychological damage as a result of his on-going calls.

Tuberville v Savage [1669] EWHC KB J25.

Having been infuriated by some comments directed towards him, the defendant placed his hand on his sword as if to draw it. This would plainly cause the victim to fear the immediate application of unlawful force and thus constitute an assault, however the defendant accompanied his action with the words “if it were not assize time I would not take such language.” In modern day context, this meant that as the judges were in town he would not commit an act of violence, thus negating the effect of this threatening action.

• Horder: may not always be the case (“if we were alone…”, V may fear that they may be alone soon)

Just as words can negate an assault, the context and tone of such words can too negate an assault. In cases where menacing words were clearly intended as a joke and were taken as such there can be no assault. This is illustrated by the recent case of Chambers v DPP[2012] EWHC 2157 where the defendant took to Twitter to threaten to resort to terrorism and ‘blow the airport sky high’ having become frustrated by his delayed flight! It was clear to all that taken in context, despite the menacing nature of the words they were clearly a joke, thus no apprehension of force was caused.

It is important to note the distinction between apprehension and fear. A victim may expect immediate force without being in fear of it; an assault will occur either way. For example, a world heavy weight boxer may be confronted by a particularly angry ex-girlfriend who raises her hand to slap him. He quite rightly at this point expects the immediate application of force, however it would be quite wrong to say that he is in fear of it!

(ii) The victim apprehends that use of force will be immediate

To be guilty of assault D does not need to possess any intention to inflict violence on V; it is enough that he intentionally or recklessly causes V to apprehend immediate violence.

A threat to inflict violence later is not enough. Presumably this is to encourage V to escape the threat i.e. by going to the Police.

There is not an exact definition of what ‘immediate’ has come to mean but the following case examples provide some insight.

Smith v Superintendent of Woking Police [1983] Crim LR 323- the defendant stood up next to the window of a ground floor flat belonging to a woman living alone. She was terrified as he just stood there staring at her through the window. At trial the defendant argued there was no assault as the force apprehended was not immediate. He was outside and could not get to her without making his way inside. The Court held that despite this, the victim was clearly afraid by the prospect of some immediate violence. It was not thus unnecessary for the prosecution to establish exactly what the victim feared would happen as a general apprehension was sufficient.

Constanza- D lived in the same neighbourhood as V, COA held that this was enough to prove ‘’fear of violence at some time not excluding the immediate future.’’

Ireland came to a similar ruling whereby silent telephone calls were held to cause apprehension of immediate force as the phone calls had placed the defendant in immediate contact with the victims and the victims were placed in immediate fear. It was not necessary for there to be any physical proximity.

• Lord Steyn (HOL)- the immediacy requirement is satisfied if D’s conduct caused V to apprehend the ‘’possibility’’ of an immediate attack. Recommended that trial judges should advise juries that, if they found that V was put in fear they should consider ‘’what, if not the possibility of imminent personal violence, was the victim terrified about?’’

• Relaxes the imminence requirement in assault. Simester disagrees that assault should have been relaxed to this extent

Indeed, there should be legal protection from such conduct however the law of assault= the wrong medium (as Lord Steyn concedes at one point in his judgement.).

The point that can seemingly be taken from the presiding case law is that, in cases where the victims have no way of knowing what might happen, immediacy is satisfied. If some other factor came into play, for example a silent phone call was received and the number appeared with an Australian dialling code, this may negate this.

In the same sense that words can negate an assault, they can also negate immediacy. For example, “I’ll get you next week for this” would not be an assault as there is no immediate force threatened.

(iii) The force is unlawful

• If = defensive or preventative force=

• The Victim’s consent may also negate the actus reus.

• Force applied in the performance of a legal duty?

Conditional Threats

A conditional threat cannot constitute an assault.

Blake v Bernard 1840- Held to be no assault where D pointed a pistol at V’s head and said ‘’Shut up or I will blow your brains out’’. The reasoning = no threat of immediate violence as V could negate the threat by doing what they are told.

Criticism:

• Cited Tuberville v Savage but = wrong because that was a case of a non-threat not a conditional threat.

• Assault is as much about the protection of autonomy as protection from hurt. In Blake, D had no right to put such a coercive condition to V. Accordingly V was under no duty to comply with the threat and was being confronted with a risk of violence should he assert his right to speak. Note: Dicta in the later case of Road v Coker might overrule this.

Mens Rea:

D must intend that V should fear the possibility of immediate violence or recklessly (Cunningham recklessness) cause V to fear the possibility of immediate violence.

R v Venna: D’s argument that only intention would suffice, and recklessness was not enough was reject by the COA who stated:

‘’We see no reason in logic or in law why a person who recklessly applies physical force to the person of another should be outside the criminal law of assault. In many cases, the dividing line between intention and recklessness is barely distinguishable. This is such a case.’’

The crime of assault therefore has 5 requirements:

1. The victim must apprehend the infliction of force on his person- No contact with victim’s body required.

2. The victim must apprehend the infliction of immediate force- Literal interpretation = without delay BUT courts= diluted this requirement i.e. R v Lewis.

3. The victim must...