#16762 - Oapa Offences - Criminal Law

OAPA offences

Overview

1. Introduction

   1. Five key offences

      1. Assault

      2. Battery

         1. Involves an actual unlawful and unwanted contact with the body of another

      3. Assault occasioning ABH (s.47)

      4. Malicious wounding or inflicting GBH (s.20)

      5. Wounding or causing GBH with intent (s.18)

   2. Assault & battery

      1. 2 separate offences – upheld in Little

         1. Etymology of assault – adsaltare, means “to jump at”, indicating that the focus is on frightening

         2. In s.47 of OAPA, however, the term assault is to embrace both assault in the pure sense of the term and the offence of battery

   3. Ashworth & Horder see these as a ladder of offences, in escalating seriousness

   4. Etc. offences

      1. Poisoning offences

      2. Racially aggravated assaults

      3. Harassment offences

2. Mixing & matching

   1. If D charged with one type of assaults, & jury acquits, jury can nevertheless convict D of a lesser assault

   2. E.g. S.18, then consider S.20/S.47

Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both.

1. Basic definition

   1. AR – D caused V to apprehend imminent unlawful force (Ireland)

   2. MR – D intended or was reckless that V would apprehend imminent unlawful force (Venna, Savage & Parmenter)

2. Points of interest

   1. According to Little, assault is a statutory offence – but there is no statutory definition

      1. S.47 of OAPA & merely states punishment for assault occasioning ABH

      2. S.39 of Criminal Justice Act states punishment for common assault & battery

3. Elements of the offence

   1. There must be apprehension of unlawful force

      1. Does V have to apprehend violence, or mere touching suffice?

         1. Well established by Horder that apprehension that one is about to be stroked or kissed can amount to assault

         2. But perhaps not every form of touching, though threshold of violence in assault is set at a low level

         3. There can be assault for the threat of things that, should they happen, will not even hurt

      2. Wells – apprehension of psychological harm caused by D should be sufficient for assault

      3. Consent of V may legitimate what would otherwise be unlawful force

         1. There is uncertainty whether lack of consent is an element of AR or a defence to assault – former is the better view (S&S)

         2. Forceful, well-intentioned interventions may constitute assault – respect for V’s autonomy to decide what is best for himself or herself

      4. Not necessary for V to be frightened by what D intends to do – enough that she does not want D to do it

      5. Summary – AR made out if V apprehends imminent touching by D to which she has not consented and which is not an inevitable concomitant of ordinary life

   2. Imminence – what does this mean?

      1. Apprehension must be of imminent harm, not distant future

      2. Lord Steyn in Ireland indicated that a fear of violence “within a minute or two” would suffice – but where exactly should the line be drawn?

         1. We can’t know until further guidance from the courts is available

   3. V only need fear the possibility of imminent violence

      1. Established by Lord Steyn in Ireland, upheld in Constanza, where D sent 800 letters to V, repeatedly drove past her home and wrote offensive words on her front door – sufficient that when V opened the letters she feared that D might harm her at some time not excluding the immediate future

   4. D does not have to intend to carry out the threat

      1. Logdon – D showed V a gun and announced he would keep V hostage – D argued he did not intend to carry out his threat, and knew the gun was fake. However, this was no defence

   5. Controversy – conditional threats

      1. D says “unless you do X I will punch you” – Courts have not provided clear guidance (Herring)

      2. On one hand, argued to not be assault since V has it in his or her power to avoid violence by acting as requested and so cannot apprehend imminent force

         1. Blake – where D pointed a pistol at V’s head and said “shut up or I will blow your brains out”, there was no assault – possible mistake as to interpretation of Tuberville

      3. However, V still placed at risk of violence because by acting in a lawful way she will still be liable to violence

         1. In principle, such threats should normally constitute assaults (S&S)

      4. Conditional threats must be distinguished from cases where words negate a threat. In Tuberville – D while holding a sword said “if not for assize time, I would not take such language” – making it clear that he was not going to attack V, no fear of imminent violence

   6. Omission may cause assault if unlawful

      1. Smith – if a trespasser is suddenly aware that his presence in V’s garden is startling V, he may be committing assault by remaining there

      2. Similarly, if D, believing himself to be alone, puts on a horror mask to amuse himself, and in fact V is also in the carriage, and was caused to fear imminent attack from D, AR has occurred, and continues while D does not remove the mask. Hence, it is possible for D to commit the offence later, when he becomes aware of V’s presence (S&S)

LOGDON V DPP [1976] CRIM LR 121

1. Legal significance

   1. An assault had been committed at the point where V had apprehended immediate unlawful personal violence and D was reckless as to whether she would apprehend such violence – that D did not intend to carry out the threat is immaterial

2. What happened

   1. D showed V a gun and announced he would keep V hostage – D argued he did not intend to carry out his threat, and knew the gun was fake

   2. Held – conviction upheld

3. Legal significance

   1. Recklessness in use of force would suffice to satisfy MR for criminal assault

4. What happened

   1. D resisted arrest, fighting violently, & in so doing fractured the hand of an officer

   2. D charged with s.47

1. Basic definition

   1. No statutory definition given, only mentioned in s.39 of CJA 1988

   2. AR –

      1. Unlawful touching of V, however slight (Collins)

   3. MR –

      1. D intended or was reckless as AR (Savage, Parmenter)

2. Elements of offence

   1. Battery can be committed without V suffering any injury

      1. Collins – touching would suffice

   2. Touching the clothes that someone is wearing can be battery, and even if V did not feel the touching

      1. Thomas – concept of an invasion of ‘personal space’

   3. Battery can be carried out through an object

      1. Fagan – similarly, case law established that spitting on someone or throwing beer on them constitutes battery

   4. No hostility requirement (Faulkner)

      1. Lord Jauncey in Brown seemed to have understood hostility to mean that the act was not consented to, rather than require the act to be aggressive

   5. Collins argued that the test should be whether the act is outside “physical contact which is generally acceptable in the ordinary conduct of daily life”

      1. But this requirement does not provide a clear distinction – suppose V is embraced by D, an exuberant stranger, in a crowded bar one night, & V does not like it – is this battery, or an acceptable standard of conduct?

   6. Omission can lead to battery

      1. DPP v Santa-Bermudez – D asked by police officer planning to search his clothing whether he had any sharp objects, he said he did not, but when officer put her hand in the pocket she was cut by a needle – Divisional Court found battery from creation of danger leading to duty

   7. Battery can be committed indirectly

      1. DPP v K – schoolboy placed acid in a hand-drier, another used the hand-drier and acid was splashed upon him – battery found

      2. Haystead – D struck a woman holding her baby, as a result the woman drops the baby. D held to have committed a battery

      3. Martin – battery found in D using an iron bar to block the exit, thereafter shouting fire

      4. *Throwing a pint of beer at someone, and placing a pint of beer on the top of a door so that it falls on them seems equally blameworthy – would be artificial to draw a distinction between them (Herring)

      5. Further examples – when a person sets a booby trap which the victim falls into, or someone shouts ‘fire’ in a crowded theater, having blocked the exists, causing people to be crushed

   8. Everyday touching not considered battery

      1. See Collins – either from implied consent or necessity argument

   9. Not battery

      1. Established in Ireland that silent phone calls cannot suffice

   10. MR – intent or Cunningham reckless as to AR

1. Legal significance

   1. *Assault, but not battery, can be committed by words (silent calls)

   2. *V only need fear the mere possibility of imminent violence

   3. *Imminence = within a minute or two

2. What happened

   1. D made a number of telephone calls to three women & remained silent when they answered – women suffered psychological harm.

3. Reasoning

   1. How an assault is committed is immaterial, so words can suffice – e.g. “come with me or I will stab you”

   1. For the question of imminence – V is assailed by uncertainty about his intentions – fear may dominate her emotions, and it may be fear that D’s arrival at her door may be imminent, and that of immediate personal violence. Whether D guilty of assault depends impact of his call on the V (+ MR) – Established by jury asking themselves “what, if not possibility of imminent personal violence, was the V terrified about?”

      1. However, this has been criticized by Simester – often fear doesn’t have a particular focus

   2. Not sufficient that V is frightened – it must be shown that V fears an imminent attack

   3. Obiter – silent telephone calls definitely cannot constitute battery

MARTIN (1881) 8 QBD 54

1. Legal significance

   1. Indirect application of...