#3092 - Non Fatal Offences Against The Person - GDL Criminal Law

Assault

• definition: ‘any act which intentionally, or recklessly, causes another person to apprehend immediate and unlawful personal violence’ – Fagan v MPC [1969] per [James J].

  • R v Ireland/Burstow [1998]: confirmed by HoL.

• DEBATE: assault + battery: common law or statutory offence?

  • common law: definitions.

  • statute: procedure + punishment – s39 Criminal Justice Act 1988.

    • DPP v Little: assault statutory offence under s39 CJA 1988.

• AKA: “common assault”, “technical assault”, “assault properly so called”.

Actus Reus: ‘any act which causes another person to apprehend immediate and unlawful personal violence’.

- Any act: words + silence sufficient.

• old position: words not assault – R v Mead & Belt [1823].

• words: R v Wilson [1955]: [Ld Goddard] obiter: words ‘get the knives out’ sufficient.

• words/silence: R v Ireland/Burstow: silent phone calls – [Ld Steyn]: ‘a thing said is a thing done’.

• words can negate assault: Tuberville v Savage [1669]: violence threatened ‘if it were not assize-time’.

- Apprehension of personal violence.

• apprehension: OED – ‘understand, perceive’; no actual contact needed.

• victim must actually apprehend violence:

  • R v Lamb [1976]: no assault when d. + v. believed brandished gun would not fire (also no MR).

• if apprehension, irrelevant that d. in fact unable to carry out threat:

  • Logdon v DPP [1976]: threat of holding v. hostage with gun assault, even though gun replica.

  • thin skull rule: irrelevant if victim unusually sensitive in perceiving threats (but may negate MR).

- Immediate, unlawful personal violence.

• personal violence: physical violence only – R v Ireland/Burstow.

  • not psychological violence: may be covered by other statutes – e.g. Protection from Harassment Act 1997.

• immediate: v. must apprehend violence in immediate future – but now liberal interpretation: sufficient for v. immediately to apprehend violence?

  • Tuberville v Savage: ‘if it were not assize-time’ no assault: threat not immediate.

  • Smith v Chief Supt Woking Police Station [1983]: d. immediately adjacent but on other side of window still assault: terrified victims unable to consider rationally.

  • R v Constanza [1997]: reading threatening letter from stalker (living nearby) sufficient for assault to be apprehended ‘at some point not excluding the immediate future’.

  • R v Ireland/Burstow: [Ld Steyn]: v. may fear ‘possibility of immediate personal violence’.

• unlawful: no defence applies – self-defence, necessity, consent.

Mens Rea: ‘intentionally or recklessly’.

• R v Venna [1976]: intention or recklessness as to causing v. to apprehend immediate unlawful violence.

  • facts: d. lashed out while being held down by police, injured officer assault occasioning ABH: sufficient that reckless.

• R v Savage/Parmenter [1992]: HoL: Cunningham recklessness needed: subjective – accused has foreseen particular kind of harm might be done + has gone on to take the risk.

Battery

• definition: ‘actual intended use of unlawful force to another person without his consent’ – Fagan v MPC (confirmed by Ireland/Burstow).

• s39 CJA 1988: procedure + penalties.

Actus Reus: unlawful application of force by d. upon v. – [Ld Steyn] (Ireland/Burstow).

• merest touch sufficient:

  • Collins v Wilcox [1984]: [Ld Goff]: ‘every person’s body is inviolate’.

  • R v Thomas [1985]: touching of clothes sufficient.

• no aggression/hostility needed: Faulkner v Talbot [1981]: consensual sex with minor.

• can be indirect:

  • Haystead v DPP [2000]: d. pushed woman holding baby, baby dropped battery to baby.

  • DPP v K [1990]: d. put acid in hand dryer, used by another student AR sufficient for battery (but no MR in this case).

• omission: mere omission not enough, but omission + positive act may be.

  • Fagan v MPC: d. accidentally drives car onto policeman’s foot, but then refuses to move but: AR continuum of action – MR can manifest at any point.

  • DPP v Santana-Bermudez [2003]: d. claimed no sharps in pocket, policewoman pricked when searching assault: d. created danger

• unlawful: no defences.

• trivial harm only: if more serious s47 OAPA 1861.

  • question of fact: jury decides.

  • Prosecution Charing Standards (not law): injuries no more serious than scratches, abrasions, minor bruises, swelling, reddening of skin, superficial cuts, ‘black eye’.

Mens Rea: intention or reckless application of force – R v Venna.

Assault Occasioning Actual Bodily Harm – s47 OAPA 1861

• s47 OAPA 1861: ‘whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be liable … to be imprisoned for any term not exceeding five years’.

Actus Reus: assault occasioning actual bodily harm.

- Assault: assault or battery: DPP v Little + Ireland/Burstow

- Occasioning: causation – normal principles apply.

• omission if d. creates danger: DPP v Santana-Bermudez [2003]: d. allowed officer to search pockets after denying needle present.

- Actual bodily harm:

• definitions:

  • R v Miller [1954]: ‘any harm calculated to interfere with health or comfort of victim’.

  • R v Chan-Fook [1994]: actual injury needed – ‘not be so trivial as to be wholly insignificant’.

  • Prosecution Charging Standards (not law): loss/breaking of teeth, temporary loss of sensory function, extensive/multiple bruising, broken nose, minor fractures/cuts requiring stitches.

• more than trifling AND transient, but need not be serious/permanent: R v Miller.

• but: can be trifling OR transient : T v DPP [2003]: momentary loss of consciousness.

• recognised psychiatric injury included (> mere emotions): R v Chan-Fook.

  • confirmed: R v Ireland/Burstow.

• extension: DPP v Smith [2006]: cutting of hair sufficient.

Mens Rea: only MR for the assault or battery needed – NOT need additional MR for ABH.

• R v Savage/Parmenter [1992]: [Ld Ackner]: only proof of assault + proof of fact of ABH needed prosecution does not need to prove that d. intended to cause ABH.

Malicious Wounding or Inflicting Grievous Bodily Harm – s20 OAPA 1861

• s20 OAPA 1861: ‘whosever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of an offence’.

  • 2 offences: 1. malicious wounding; 2. maliciously inflicting GBH.

Actus Reus: wound or inflict GBH on victim.

- Wounding: any breaking of the skin (dermis + epidermis) – C (a minor) v Eisenhower [1984].

• in practice, > minor: minor wounds would be charged under s47.

- Infliction of grievous bodily harm.

• infliction: now same as causation.

  • no need for assault/battery: R v Wilson [1984].

    • R v Burstow: nuisance phone calls sufficient (psychological injury).

    • R v Dica [2004] + R v Konzani [2005]: infection with STI (consensual sex: no battery).

• grievous bodily harm: ‘really serious harm’ (DPP v Smith); ‘serious harm’ (R v Saunders [1985]).

  • recognised psychiatric injury: Ireland.

  • effect on v. should be considered (taking into account age/health): R v Bollom [2004].

  • Prosecution Charging Standards (not law): loss of sensory function, more than minor permanent visible disfigurement, broken/displaced limbs, substantial loss of blood, injuries requiring lengthy treatment/incapacity, severe internal injuries, significant disablement (temporary or permanent).

Mens Rea: intention or (subjective) recklessness as to causing (any) harm.

• enough that any/minor harm foreseen: R v Mowatt [1968] confirmed by R v Savage/Parmenter.

• (vs. s18: intention to cause GBH).

Wounding or Causing Grievous Bodily Harm with Intent – s18 OAPA 1861

• s18 OAPA 1861: ‘whosever shall unlawfully and maliciously by any means whatsoever wound or cause grievous bodily harm to any person, with intent … to do some grievous bodily harm to any person … shall be guilty of an offence’.

  • 2 offences (as s20): 1. wounding; 2. maliciously inflicting GBH with intent to cause GBH.

Actus Reus: same as for s20 (since Wilson: ‘inflict’ and ‘cause’ given same meaning).

Mens Rea: intention to cause grievous bodily harm distinguishes s18 from s20.

• N.B. wounding: MR is still intention to cause GBH; intention to wound insufficient.

Administering Poison with Intent – s24 OAPA 1861

• s24 OAPA 1861: ‘whosoever shall unlawfully and maliciously administer or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, with intent to injure, aggrieve or annoy such person, shall be guilty of an offence…’

Actus Reus: R v Kennedy [2007]: (i) administering to; (ii) causing to be administered to; (iii) causing to be taken by any other person any poison or other destructive or noxious thing.

- Administer:

• R v Kennedy:

  • (i) d. administers noxious thing directly to v.: e.g. injecting v.; holding glass to v.’s lips; spraying v.’s face (as in R v Gillard).

  • (ii) d. does not directly administer noxious thing to v. but causes innocent 3^rd party to administer it to v.: e.g. d. instructs 3^rd-party to inject v. (if 3^rd-party thinks substance legitimate).

  • (iii) d. causes noxious thing to be taken by v.: e.g. d. puts noxious thing in food which v. is about to eat + v. eats it ignorant of presence of substance.

• direct application of force not needed: R v Gillard [1988]: inc. spraying, hosing etc.

- Poison, destructive or noxious thing: broad interpretation – dep. on facts of each case.

• anything ‘hurtful, unwholesome or objectionable’: R v Marcus [1981]: intrinsically harmless tablets in harmful quantity.

Mens Rea: ‘maliciously … with intent to injure, aggrieve, or annoy’

• maliciously: intention or recklessness (R v Cunningham).

• intent to injure, aggrieve or annoy.

  • either by effects of...