#3598 - Non Fatal Offences - Criminal Law

• Concerned with the right to bodily integrity – common law and Art 8 protection. Recent cases shows the value we put on this:

  • Thomas – touching the bottom of a girl’s skirt was a battery.

  • St George’s NHS Trust v S – performing a C-section on a woman who didn’t want it, despite being in her best interest, invaded her bodily integrity and was unlawful.

• The relationship between assault and battery is an interesting one since we commonly refer to the offence of battery as an assault. Note that after the pedantry of DPP v Little we should treat them clearly as separate.

Assault:

• AR: D causes V to apprehend immediate and unlawful personal violence.

• MR: D intended V to apprehend such force, or was reckless as to whether it would be apprehended (Cunningham recklessness).

• Assault is a common law offence. Some people claim (supported in Little) that it is a statutory offence because it is referenced in s.39 Criminal Justice Act 1988, but it provides no definition – it’s common law.

• ‘Apprehend’ – in a way this is not strictly true. The fact that V objects is sufficient, as in St George’s Trust.

• ‘Immediate’ – Steyn in Ireland said the apprehension of a possibility would suffice, but this should not be stretched too fair (which he seems to acknowledge at one point).

• ‘Unlawful’ – note that the some application of force is lawful when defensive or preventative. Consent it also important.

• ‘Violence’ – can really be any sort of touching to which V objects.

Conduct element:

• Requires an act, not an omission (hence the strange justification in Fagan v MPC). Where’s D’s presence is lawful but merely causing V discomfort, there is no offence.

• Non-physical acts:

  • In Ireland, where D made silent phone calls to three women, it was found that words can constitute an assault – it doesn’t matter how the fear of immediate harm is created. The point was that V did not know where D was when making the calls and could rightly apprehend imminent violence. This establishes the rule that words can cause assault.

    • But at the same time words can negate the threat of an assault.

      • Turberville v Savage – D drew his sword and said ‘if it were not assize-time, I would not take such language’. The words negated the reasonableness of the fear of violence and so there was no assault.

  • Constanza – written threats also work.

• Conditional threats:

  • Can be assault. It was suggested in Blake that they cannot, which relied on Turberville v Savage as a case in point – it is important to note the distinction between a conditional threat and words that negate a threat. Dicta in Read v Coker say they can be.

Battery

• AR: infliction of violence on V by D. Interpreted very widely to include spitting on someone (Smith), cutting someone’s hair off without authority (DPP v Smith) and touching someone’s clothes (Day).

  • The scope is wide – e.g. hot potato grenade would still result in liability for the thrower (Scott v Shepherd). Booby traps (similar to DPP v K) and things thrown also count.

    • The prosecution in Ireland argued battery but that was rejected decisively.

    • Debate over how direct the touching has to be. The answer is, arguably, not very.

  • Usually has to be an act, but the normal rule for an omission applies. If D creates a dangerous situation, he will be liable for failing to prevent damage e.g. man with syringe in his pocket in Santana-Bermudez who allowed a police officer to search him.

  • It is accepted that it requires hostility, but this is misleading and it simply means that V objects to the touching.

• MR: intent to batter or recklessness as to whether battery would be committed.

Assault occasioning ABH – s.47 OAPA

• AR: assault (or battery) that results in bodily harm to V. Most commonly this offence will be charged where a battery causes the requisite degree of bodily harm.

  • ABH = “any hurt or injury calculated to interfere with the health or comfort of V” (Donovan). Includes bruises, abrasions, bloody noses and superficial cuts. Note that if skin is pierced, this is wounding.

  • Non-physical harm can fall into ABH (Chan Fook, Ireland).

  • ‘Occasioned’ – seems to involve slightly lower proof of causal connection.

    • Roberts – V jumped from D’s car in order to prevent his sexual groping. Despite not ‘inflicting’ the harm necessarily, he had occasioned it and was guilty under s.47.

• MR: same as for assault or battery. No need to show a mental element for the ABH (Savage and Parmenter). So in a way this is strict liability. Some oppose its use as a constructive basis, but Gardner wholeheartedly supports it.

Malicious wounding/inflicting GBH – s.20 OAPA 1861

• Note that it carries the same max penalty as s.47, despite being considered the more serious offence. Isn’t this odd?

• AR: D ‘maliciously’ wounds or inflicts GBH on V, with or without a weapon.

  • ‘Malicious’ – completely irrelevant. Why is this even included?

  • Wound – all layers of skin are pierced.

  • GBH – ‘really serious harm’ (Metheram). Note that although one injury may not be ‘really serious’, a culmination of several injuries may well be (Bollom).

    • Burstow – psychiatric harm is included. D ‘inflicts’ GBH if his conduct is a cause of V’s illness. Great expansion because it requires no contact – it treats psychiatric harm as ‘bodily’ injury. This is unsatisfactory. Legislate.

  • Inflict – used to be thought that this was narrower than cause, but Burstow ruled that it should be treated as ‘caused’. “An injury caused by an impact or percussion set in motion by D”.

    • The wider interpretation allows for the inclusion of things like infections and diseases – relevant for Dica and Konzani.

• MR: intention or subjective recklessness that some harm will be inflicted on V. Note that there is no need for an MR element to the wounding/GBH (Savage and Parmenter). This is unacceptable and breaches the correspondence principle – made worse by the fact it is a serious violent offence.

Wounding with intent – s.18 OAPA

• AR: same as s.20 offence. Doesn’t contain the ‘infliction’ problem of s.20, though (but really this isn’t a problem after Dica clarification). Can be done by any means whatsoever (which is the same as s.20 but just differently worded – why?! Suggests a difference where there is none).

  • Again, requires malice. This may only be relevant for the resisting arrest offences, but one infers malice most of the time here. The only exception may be were the arrest is unlawful.

• MR: intention. This is the core of the offence. Intention to do some GBH, or to resist/prevent the arrest of someone.

  • Note that if D was resisting/preventing arrest, he need only be reckless as to the GBH.

Transmitting diseases and infection:

• Where the harm is intended:

  • If V dies as a consequence of AIDS and it can be proved that D infected him with HIV in order to kill him, he will be liable for murder (since year and a day doesn’t apply).

  • The offence against the person on contamination, when intentional, is s.18 – consistent with ruling in Clarence.

• Where the harm is knowingly risked (recklessness):

  • When we read ‘inflict’ as synonymous with cause, this can fall under s.20.

  • In Dica and Konzani and it was taken that V, although she consented to unprotected sex, did not consent to the risk of being infected with HIV. Where D foresees a risk but does not disclose he can be liable.

    • NOTE: this is not rape. Consent to the sexual activity is not vitiated. There is no deception as to the nature of the act.

  • The court in Dica accepted that V could consent to the risk of transmission, for example in family planning or religious objection to contraception.

  • It’s unclear whether you need to know you are HIV+ to be liable. Spencer says that recklessness requires no knowledge, but Weait rejects this. The decision in Dica accords with Spencer’s view.

  • Elliott says that D must appreciate the HIV is communicable, and how it is done etc. – basic principle of fairness.

  • Ryan sees knowledge of status as necessary. He discusses the arguments for and against liability for wilful blindness. He says the arguments come down against.

    • For:

      • Just as morally blameworthy.

      • Liability for only knowledge acts as a disincentive to HIV testing

    • Against:

      • Fairness – D should be aware of his status!

      • Widely spreads the net of criminal liability

      • Wilful blindness can be difficult to establish.

Administering noxious things – s.23 & 24 OAPA

• S.23 - Administering or causing to be administered noxious things that endanger life or inflict GBH.

• S.24 – with intent to aggrieve, injure, or annoy.

• Some have argued that the administration of HIV-infected semen could fall within the scope of the offence. It would apply to reckless and intentional transmission, although surely there is a better was to respond to this problem.

Harassment – Protection From Harassment Act 1997

• There are a few harassment offences: two in s.1 and a fear of violence offence in s.4 (on at least 2 occasions). Note that this differs from assault because the fear need not be immediate.

  • S.1 is harassment of another, and ‘persuasive harassment’ of a group. For the latter, conduct must only ‘involve’ harassment, whereas the former requires it to ‘amount to’ harassment. The distinction between these things is unclear.

• A course of conduct – must involve at least 2 incidents. They must be clearly linked so as to constitute a course of conduct. Two incidents may have their causal link severed by reconciliation (Kelly v DPP).

• Which amounts to harassment – includes causing V to be alarmed or distressed, but it is not necessarily limited to this. Curtis says that ‘the...