#4609 - Non Fatal Offences Against The Person - GDL Criminal Law

Assault and Battery

• Penalty for Assault/Battery: 5,000/6 months in prison – both in S39 CJA 1988

• Common law or statutory offences?

  • Criminal Justice Act 1988 s39 – but only sets the penalty – doesn’t explain AR or MR

  • DPP v Little: judges here think that they are statutory offences

  • But – still need to give common law explanations – so easier to think of it as a common law offence

Assault

• Committed when the accused ‘intentionally or recklessly causes another person to apprehend immediate and unlawful personal violence’

Actus Reus

• An assault is committed when the accused ‘intentionally, or recklessly, causes another person to apprehend immediate and unlawful personal violence;’ Fagan v MPC: confirmed by Hl in R v Ireland, Burstow

• There must be apprehension of personal violence

  • The D must do something to make the V apprehend (ie anticipate, believe) he will suffer immediate and unlawful personal violence- no need for D to have actually applied force

1. The defendant must cause the victim to believe he can and will carry out the threat of force

   • R v Lamb

     • Revolver had 2 bullets in it– believing that it was safe – the D pointed it at his friend and pulled the trigger – his friend was shot dead

     • No assault because the victim did not fear violence

2. if the victim is caused to apprehend such a threat, it is irrelevant that the defendant does not in fact have the means to carry out the threat

   • Logdon v DPP: D found to have committed assault against V by showing her a pistol in a drawer saying that it was loaded and claiming he would hold her hostage – only the D knew that the gun was a replica and unloaded – but his actions/words caused the victim to believe otherwise

   • What if the victim is unusually sensitive?

     • Doesn’t matter – thin skull rule

• Can the threat to use force be of any nature/form?

  • Earlier dicta - R v Mead & Belt: ‘no words or singing could ever constitute an assault’ per Holroyd J

  • But opinion has changed - R v Wilson: the words ‘get out the knives’ would on their own be sufficient to constitute an assault’

  • R v Ireland/Burstow: Accused had made several silent phone calls

    • Lord Steyn said the proposition that words won’t suffice is ‘unrealistic and indefensible’ : held here that silence conveyed a message to the victim as was as such capable of forming the basis of assault – indirectly confirms that words spoken may amount to an assault

    • A thing said is a thing done – so words alone can amount to assault

  • Words spoken can also negate an assault: Tuberville v Savage

• The threat of violence must be unlawful: occasionally it will be considered lawful (e.g. self-defence/consent)

• The violence apprehended must be immediate and personal

  • Focus on what the V actually apprehended

  • Smith v Chief Superintendent Woking Police Station: Smith entered grounds of large house - stared through window of the bedsit where the victim lived – she thought he was going to attack her: D argued that threat wasn’t immediate as he could not have got through the window etc.

    • but court said it was assault – V cannot be expected to be rational in that situation

  • R v Constanza: stalker pursued victim for 18 months – followed her home from work on numerous occasions, made silent phone calls, sent and delivered 800 letters to her home; charge of assault arose from 2 particular letters sent in June 1995 – CA said that the key thing is that there must be a threat of violence not excluding in the immediate future – hand-delivered, so he must be close – violence could happen at any time

  • Ireland/Burstow

    • Ireland: heavy breathing down the phone - question of immediacy Lord Steyn – ‘fear may dominate her emotions … she may fear the possibility of immediate personal violence’ – victim not necessarily thinking logically so fears there could be immediate personal violence

      • Almost re-writes the test – rather than apprehension of immediate personal violence – could be immediate apprehension of personal violence

      • Change hasn’t actually happened - but seems courts will take liberal view

Mens Rea

• Fagan – ‘an assault is any act which intentionally or possibly recklessly – causes another person to apprehend immediate and unlawful personal violence’

• R v Venna: recklessness could be enough for the MR

• R v Savage;Parmenter: confirmed the view that Cunningham recklessness must be established

• Direct Intention: See Chapter 3 – Maloney: Lord Bridge – ordinary meaning – “desire/motive”

• Cunningham recklessness: subjective: D must actually know of the existence of the risk and have deliberately taken it anyway

Battery

• Fagan v MPC– ‘the actual … use of unlawful force to another person without his consent’

Actus Reus

Ireland/Burstow: Lord Steyn – ‘the unlawful application of force by the defendant upon the victim’

• “Force”

  • Doesn’t need degree of violence

1. Can Collins v Wilcock: Goff LJ: fundamental principle is that any touching of another person, however slight, may amount to a battery

   • Touching clothes can be enough – R v Thomas: involved sexual assault: ran his hand along the hem of a girl’s skirt – he said he never touched her

2. No hostility required: Faulkner v Talbot: D had consensual sex with 14 year old boy– still a battery even though no hostile intent

3. Don’t have to touch the person yourself - indirect application enough

   • Haystead v DPP: D pushed a woman who dropped a baby – D caused the baby to be dropped

   • DPP v K: stole sulphuric acid – poured it into hand dryer - went over another boy’s face – didn’t matter that he wasn’t in the room – he had caused it

4. The force must be unlawful: common claim is that the V consented to the application of force

   • Collins v Wilcock: Lord Goff - a certain amount of physical contact must inevitably be accepted

5. Failure to act: Fagan –act can be viewed as a continuing act

   • R v Santana Bermudez: said he did not have any needles or ‘sharps’ etc. in his pocket – but he did –charged with battery: court applied R v Roberts and R v Miller: held that he had created a danger (by exposing the officer to the risk)

Mens Rea

• Intentional or reckless application of unlawful force upon another

  • R v Venna: intention or recklessness

  • As with assault – application of Cunningham recklessness

Assault Occasioning Actual Bodily Harm: S47

• Offences Against the Person Act 1861 s 47: imprisonment for any term not exceeding 5 years

• “Assault”

  • Can actually be assault or battery: DPP v Little and Ireland;Burstow

• “Occasioning”: Cause (DPP v Santana-Bermudez)

• “Actual Bodily Harm”

  • R v Miller: too broad – any interference with ‘health or comfort’

  • R v Chan Fook: better case

    • CA: injury must ‘not be so trivial as to be wholly insignificant’ - there must be actual harm so interference with health/comfort not enough

    • Harm can include psychological injury as long as it amounts to a recognised medical condition (analogy with nervous-shock) not ‘mere emotions such as fear or distress’

    • Confirmed in R v Ireland: Burstow

  • Examples of ABH:

    • DPP v T:momentary loss of consciousness held to be capable of amounting to actual bodily harm –injurious impairment of victim’s sensory functions

      • emphasised that in order to be excluded needs to be transient and trifling – not transient or trifling

    • DPP v Smith: (2006) Smith cut off estranged girlfriend’s ponytail - court held that despite not leaving mark on the body or breaking the skin there was still assault as ‘dead tissue’ was still part of the body

Mens Rea: s47

• Mens rea required for the assault or battery

• But – no mens rea required for the harm itself:

  • R v Savage/Parmenter

    • Offence of mens rea – need it for the first part but not the second

Malicious Wounding Or Inflicting Grievous Bodily Harm: S20

• Section 20 of the Offences Against the Person Act 1861:

  • ‘whosoever shall unlawfully and maliciously would or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument shall be guilty of an offence…’

• Note: s20 creates two separate offences, one of malicious wounding, the second of maliciously inflicting grievous bodily harm

Actus Reus

• “Wound”

  • ‘the continuity of the whole skin must be broken’ – both layers of skin – need for external bleeding

  • C (a minor) v Eisenhower: no wound because no external bleeding

• “Infliction of grievous bodily harm”

1. Infliction: Now bears the same meaning of ‘cause’ so usual causation rules apply

   • Difficult to determine in the past, but following R v Wilson it was decided that it is possible that there could be an infliction of GBH contrary to s20 without an assault being committed

   • R v Ireland/Burstow: nuisance phone calls - GBH for psychiatric injury – confirming that an assault did not need to be committed

   • R v Dica: open to a jury to convict a D under s20 for recklessly infecting another person with a sexually transmitted disease

     • R v Konzani: unprotected consensual sex with 3 women without disclosing his HIV status

2. Grievous bodily harm

   • “really serious harm” – DPP v Smith but no need for the ‘really’ so “serious harm” R v Saunders

   • “psychological harm” – Ireland;Burstow – cause and effect will need to be proved by expert evidence

   • R v Bollum – CA held that jury should consider the effect of injuries on the victim – take into account age and health – look at totality of the injuries: here a baby with endless cuts and bruieses which on their own would not have been enough but taken together amounted to serious harm

   • Prosecution Charging Standards: typical injuries amounting to GBH include those resulting from loss of sensory function, more than minor permanent...