#14658 - Non Fatal Offences Against The Person - GDL Criminal Law

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Assault

Actus Reus

Collins v Wilcock

• Lord Goff: “An act which intentionally and directly causes another person to apprehend the infliction of immediate unlawful force”

What type of force?

R v Ireland and Burstow

D had a brief relationship with V which she ended; he then stalker her & smashed her car - and broke into her house. Stole her letters & carried out an extensive catalogue of harassment.

V suffered a nervous breakdown.

Held: there is no need for physical contact to found liability for assault

HOWEVER the apprehension must be of physical, not psychological, damage (R v Ireland and Burstow)

Whose perception of force?

R v Beasley

Held: apprehension does NOT conform to the take your victim as you find them line of cases with causation – it is an objective test

‘Unlawful’ force:

This excludes acts where the doctrines of necessity, self-defence and consent operate (which make force lawful)

‘Immediate’ force has been interpreted widely (Smith v Superintendent of Woking)

Mens Rea

R v Venna: assault as a crime of intention or recklessness

• Intention uses the general R v Moloney definition per Lord Bridge - a direct aim, purpose or want

• Recklessness – R v Savage confirms that Cunningham recklessness is used (see Mens Rea doc)

Battery

Fagan v MPC defines battery as the actual application of unlawful force to another person without their consent

Actus Reus

The unlawful application of force (R v Ireland and Burstow)

Collins v Wilcock

A police woman grabbed a woman’s arm to stop her walking away during questioning – the woman then scratched her

Held: the police woman had battered the woman as the merest touch might constitute an assault. The scratch was then self-defence. HOWEVER confirms that ordinary, everyday levels of contact are not usually a battery

R v Thomas

• Ackner LJ: contact can be through clothing for an assault

Faulkner v Talbot

• Lord Lane: no requirement of hostility or aggression alongside the application of force

Can be a crime of omission (see Actus Reus doc - Fagan v MPC & R v Santana Bermudez)

Mens Rea

Intention or recklessness

ABH

S.47 Offences Against the Persons Act 1861

Actus Reus

Assault/Battery + causation + actual bodily harm

Actual bodily harm:

R v Miller

A soon to be divorced couple were due to have their petition heard when the husband had intercourse with the wife against her will and physically assaulted her causing a serious psychological reaction

Held: the upcoming divorce didn’t affect the marital consent exception which negatived his liability for rape (since overruled in R v R thank god) however he was found liable for ABH – damage can be non-physical

• Lynsky J: "actual bodily harm includes any hurt or injury calculated to interfere with the health or comfort of the victim" – it must be “more than transient and trifling” however

Examples of harm amounting to ABH:

• Recognised psychiatric harm (R v Ireland and Burstow)

• Temporary loss of consciousness (T v DPP)

• Cutting off someone’s hair (DPP v Smith per Sir Igor Judge)

• See CPS charging standards for likely qualifying injuries

Mens Rea

Intention/recklessness as to the assault or battery – it is NOT a requirement that D intended/was reckless as to occasioning ABH (R v Savage)

GBH

S.20 Offences Against the Person Act 1861

Actus Reus

Unlawfully wounding/inflicting grevious bodily harm

DPP v Smith – ‘grievous’ bodily harm = really serious harm

Wound:

C (a minor) v Eisenhower

Held: wounding is only where both layers of skin are broken – internal bleeding alone will not amount to GBH

Inflict:

The old law found in R v Clarence was that there couldn’t be a GBH where there was no hostily for a battery - this has now been changed and R v Wilson confirms that an aggressive act is not required for GBH

R v Ireland and Burstow (above)

Held: (HL) in the context of the infliction of GBH we don’t need to show a battery nor aggressiveness / no need to show direct or indirect violence against the body. The word ‘infliction’ includes recognisable psychiatric harm i.e. body means the whole person including the mind.

Mens Rea

S.20 of the Act talks about malicious intention or being reckless to causing some harm

R v Savage

• Per Lord Ackner: ‘foresight of some physical harm, albeit minor, and D goes ahead inflicting more serious harm’

Thus D must only foresee that some harm might result, he doesn’t need to foresee that actual harm occurs or the gravity of that harm

S.18 Offences Against the Person Act 1861

Actus Reus

Wounding or causing grievous bodily harm

(See S.20 for definitions)

Mens Rea

Intention to cause grievous bodily harm i.e. recklessness will not be sufficient for a S.18

Disease Transmission as GBH?

R v Dica

Dica is the 1st appellate case that decided that the transmission of HIV, which D had recklessly infected two previous partners with without disclosure of his status, which determined a S.20 (infliction of GBH).

Held: decision in Clarence was expressly overruled. GBH could be transmitted through sex; D, knowing they were infected, had recklessly infected others. There was no informed consent to the risk of infection.

R v Golding

Summer 2009 D & V formed a relationship. D knew he had herpes virus; at the beginning of the relationship V was not infected. Acknowledged that he should have told the victim

Held: at first instance, S. 20 14 months imprisonment. Appeal: that the virus was not really within the scope of GBH & that there was insufficient evidence that he has recklessly transmitted the harm. Sentence reduced to 3 months, but they upheld the conviction.

• Genital herpes does = really serious bodily harm

• Re: recklessness; up to the jury to decide.

Racial/Religious Motives

Penalty of 7 years rather than 5 for racially motivated crimes. Imprisonment goes up to 2 years.

However, in some cases the courts have adopted a narrow meaning of whether a crime is racially motivated.

DPP v Pal

V was a community caretaker who was assaulted by a young D, who was also Asian. D referred to V with racial slurs.

Held: (CA) not racially motivated as no hostility to Asians as a group, but simply towards the victim for ejecting him. They felt that D would have attacked V regardless of race.

Reform

Law Commission Reform of Offences Against the Person:

• Adoption of correspondence principle (harm & fault together)

• Not suggesting a new offence for VD, but the present law should be fine if the correspondence issue is addressed

Consent

Can you consent to certain types of non-fatal force?

The principles in tension are:

• Autonomy

• Paternalism

Broad differentiation in academic approach: does consent make something lawful, or is it a defence? If it is a defence, then D must give evidence of consent.

AG’s Ref No. 6 of 1980

Two teenage boys consensually settling a disagreement by having a fight. V suffered a bruised face and a bleeding nose. D charged with common assault (battery); D argued consent.

Held: per Lord Lane

• It is not in the public interest to allow consent to work as a defence when people are trying to cause each other actual bodily harm - “for no good reason”

• However, public policy issues can apply where there is good reason to cause harm

• He was nonetheless not casting any doubt upon the “legality of properly conducted games and sport”, or “lawful chastisement” or “reasonable surgical interference” or “dangerous exhibitions” but these are needed in the public interest

So what is needed in the public interest?

R v Brown

Police entered the house as part of a lawful seize and search, and they found video recordings of a series of consensual sadomasochistic parties where a safe word was being used

Charged with S.43 & some S.20

Did the prosecution have to show a lack of consent on the victim’s part?

Held: (HL) per Lord Templeman in the majority:

• Consent is only a defence to the level of a common law battery, only if there is no injury caused and/or intended

• Where harm is intended and/or caused, then consent is never a defence in criminal law unless there is some reason to justify it as being in the public interest

In this case, 3 against 2, said this case was not a valid exception:

• Lord Templeman stated that this is not consensual sexual activity but cruelty & violence prima facie unlawful conduct “abnormal perverted homosexual activity”

• Concerned about the minds of minors, as there were young men at the parties

• Even though there’s no evidence of it having occurred, he was concerned about the spread of communicable diseases

Minority view completely disagreed, per Lord Mustill:

• His starting point is the complete opposite; instead of violence and cruelty, Lord Mustill saw the parties involved in private sexual acts: the law is not to intrude into private acts in D’s own home

• Felt the prosecution were reaching for a statute under which to convict

R v Laskey

Held: went to the European court; and although they agreed private life had been interfered, they concluded that it was for good reasons of health & moral protection (!)

R v Wilson

Married couple decided to tattoo the initials of the husband onto V’s bum, discovered by the doctor

Held: (CA) per Russell LJ, that this case was distinguishable from Brown, and upheld the privacy of the couple’s sexual relations, and also included it in the tattoo exception. He held that it was misplaced in the court.

R v Emmett

Lighter fluid poured on V’s breasts & set fire. Massive burns.

Held: (CA) different from Wilson, as this went far beyond the loving adornment & branding of...