NFOAP - TOPIC 2 & 3 - ASSAULT, BATTERY, ABH, GBH

The 5 principle NFOAP Offenses

Definition (AO1)

1. S.39 Assault (simple assault)

2. S.39 Battery (together with simple assault known as ‘Common Assault’)

3. S.47 ABH

4. S.20 GBH

5. S.18 GBH

s.39 Simple Assault & Battery (Common Assault) - Statute

(AO3)

Criminal Justice ACT 1988

Simple Assault (Assault)

Definition (AO1)

Any ‘Act’ (cannot be by omission) by which D intentionally or recklessly causes V to apprehend immediate and unlawful ‘personal’ violence

Assault - AR

Definition (AO1)

An ‘Act’ of the D where V is fearful / apprehensive of force i.e. that they are about to be struck.

‘The AR may be an act, by words or even silence’

However - D’s own words may negate D’s own threatening act (Words can cancel out a gesture)

Assault - AR

Cases

(R v Lamb) - No assault

Boy aimed a revolver at his friend. Both boys thought that gun wouldn’t fire and when it did, it accidentally killed the friend. No assault as victim did not apprehend immediate force.

(R v Constanza) - Words may amount to assault

D sent over 800 threats in letters to V and vandalised her door along with stealing her clothes. Jury said words can amount to assault.

(R v Ireland) - Assault may even by inflicted by silence

D made a series of silent telephone calls over three months to three different women.

Apprehend

Definition (AO1)

A general awareness of violence

Assault - What is immediate

Definition (AO1)

Immediate means ‘Imminent’ (About to happen) - Must be within a reasonable period of time

So

A threat of future violence will not be sufficient

Assault - What is immediate

Case

(Turbeville v Savage) - Future violence is not enough

D threatened V by saying he would harm him if it were not for the presence of the king's officers. Court held that this constituted a mere threat of future violence, which was insufficient for assault.

(Smith v CC Woking) - Did amount to assault

D trespassed in V’s garden late at night and looked at V through the window. Even though door was locked, assault was still present.

Assault - MR

Definition (AO1)

D intends (directly or indirectly) to assault V

Or

D is reckless as to whether V is assaulted

Assault - MR

Case

(R v Savage)

D threw beer over V but glass slipped and shattered. V was drenched by beer and hand was injured from broken glass. Court held that D's actions constituted an assault as he intended to apply force to V, satisfying the MR requirement.

Battery - Charged under the CJA 1988 S.39

Definition (AO1)

The intentional or reckless infliction by D of unlawful force (without consent) on another person.

Battery

Case

(Collins v Wilcock)

Police officer grabbed V’s arm even though V was not being arrested and so constituted battery.

Battery - AR

Definition (AO1)

Infliction of unlawful Force (The merest touch)

Infliction may be Direct (throwing water at V) or Indirect (Putting a bucket on top of a door which V subsequently walks through & is splashed)

Battery - AR

Case

(DPP v K) - Indirect Battery

D hid acid in hand drier. V was later sprayed by the acid.

(Haystead v CC Derbyshire) - Both Direct & Indirect

D punched mother who dropped baby. Baby hit the pavement. D convicted of direct battery on mother & indirectly on the baby

Meaning of Force

Definition (AO1)

There must be some physical contact.

Does not require hostility / violence or harm - and so included even the merest touch however it must go beyond the accepted norms of everyday conduct (i.e. bumping into someone on a busy train)

Meaning of Force

Case

(R v Roberts) - Touching clothes is sufficient

Touching V’s clothes while V is wearing them is sufficient for battery

Battery by Omission

Rule (AO1)

Where someone creates or contributes to a dangerous situation then they can commit battery through an omission.

Battery by Omission

Case

(DPP v Santa-Bermudez)

V was a policewoman who searched D. V asked if D had any needles or sharp objects in his pockets. D lies and says no. V is then injured and bleeds because of this.

Battery - MR

Definition (AO1)

Where D intends or is reckless as to infliction of unlawful personal force.

D cannot be guilty of battery with no MR

Common Assault

Definition (AO1)

The combination of both Simple Assault & Battery.

Comes from common law

Common Assault

Case

(DPP v Taylor)

s39 under CRJA 1988 - Sentencing

Definition (AO1)

• Both Assault & Battery are Summary Offences

• The maximum sentences is six months imprisonment or a £5,000 fine.

• If racially motivated however, then a triable either way offence with a maximum sentence of 2 years imprisonment

s39 - Law Commission Criticisms

Definition (AO1)

• The terms ‘Assault’ & ‘Battery’ are misleading and should be replaced with offences of ‘Threatened assault’ and ‘Physical assault’

• A new aggravated assault with a maximum sentence of 12 months where any type of injury results from threated assault or physical assault (no MR for injury required)

s47 ABH - Statute

(AO3)

Offences Against The Person Act 1861

s47 Assault Occasioning Actual Bodily Harm -AR

Elements required (3) (AO1)

1. An assault - can be simple assault or battery (need to prove AR & MR)

2. Which occasions (Factual & Legal causation)

3. Actual Bodily Harm

The assault / battery MUST cause the actual bodily harm to V

s47 Assault Occasioning Actual Bodily Harm - AR

Case

(R v Ireland) - Caused psychiatric harm

D made silent telephone calls and assaulted V. V suffered psychiatric harm as a result.

Harm element

Definition (AO1)

• Any hurt or injury calculated to interfere with V’s health or comfort

  &

• Should not be so trivial as to be wholly insignificant and the words should be given their ordinary & natural meaning.

  (So more than trivial but less than serious)

Harm element

Cases

(R v Miller) - Interfere with health or comfort

(Chan Fook) - Not so trivial as to be wholly insignificant and words should be given ordinary & natural meaning

V was accused of stealing items. D interrogated V and locked him in his room which caused V to fell abused, humiliated and frightened. The body includes the nervous system and brain (Ordinary meaning). Found that V did not suffer Psychiatric injury so conviction quashed.

Examples of S.47 ABH

(AO1) + cases

• Bruising

• Sprains

• Temporary loss of consciousness (T v DPP)

• Cutting pony tail (DPP v Smith)

• Psychiatric harm (R v Ireland)

(Psychiatric harm must be more than mere emotion so fear panic or distress is not enough)

Emotions like: Depression, Anxiety, Panic Disorder, Agoraphobia & Paranoia - would be enough

S.47 ABH - MR

Definition (AO1)

The same as for Simple Assault & Battery - Meaning that this offence is ‘Constructive Liability’ since D does not need MR to harm in order to be guilty of S.47

Assault - Intend (DI or II) or be reckless to apprehend unlawful personal force

Battery - Intend (DI or II) or be reckless to inflict unlawful personal force

S.47 ABH - MR

Case

(R v Roberts) - no need for MR of harm

D gave V a lift home and made advances at her. V jumped out of the car suffering injuries.

Constructive Liability

Definition (AO1)

Being guilty of a more serious offence than the one that was intended.

Constructive Liability

Case

(R v Savage) - Legal test Reasonable Foreseeability Test

D threw beer over V but glass slipped and shattered. V was drenched by beer and hand was injured from broken glass. D did not intend or was not reckless to cause harm but still liable for S.47

s47 ABH - Sentencing

• A triable either way offence.

• Maximum sentence is five years imprisonment, or seven years if racially aggravated.

s47 ABH - Law Commission Criticism

• Said to be unfair to held D liable for an outcome he may not have foreseen.

• Penalty can only be ascertained by reference to a chain of interlocking statutes - unclear

• The maximum sentence is the same as for the more serious s20 GBH offence which does not make sense.

• A new aggravated assault with a maximum sentence of 12 months where any type of injury results from threated assault or physical assault (no MR for injury required)

s20 & s18 GBH Statute

(AO3)

Offences Against The Person Act 1861

s20 GBH

Definition (AO1)

Unlawfully & Maliciously Wounding Or inflicting grievous bodily harm:

Wound = an injury which breaks both layers of skin but does not include internal bleeding

s20 GBH - AR

Definition (AO1)

Wounding or inflicting grievous bodily harm:

(Minor wounds are not necessarily serious harm e.g. scratches that cut the skin)

What is Wounding

Definition (AO1)

• An injury which breaks both layers of skin

• Does not include internal bleeding

• A cut to the skin inside a body cavity is a wound ‘IF’ it bleeds outside of the body

Wounding

Case

(JCC v Eisenhower) - Internal bleeding is not a wound

D shot a pellet from an air gun near V’s eye resulting in a ruptured blood vessel. Did not break both layers of skin

(R v McReady) - Internal cut to skin, bleeds outside the body

What is Grievous Bodily Harm (GBH)

Definition (AO1)

Means serious harm & is a question of fact for the jury

• Need not be life-threatening

• Includes psychiatric injury

• Also includes infection

• V’s vulnerabilities are relevant

Hints of GBH: Hospital treatment required, Broken bones and serious psychiatric harm

Grievous Bodily Harm (GBH)

Cases

(DPP v Smith) - Need not be life threatening

(R v Burstow) - Psychiatric injury

D harassed a woman for 8 months - similar to (R v Constanza)

(R v Dica) - Infection

D was HIV positive but recklessly had sex with 2 other people who contracted HIV from him.

(R v Bollom) - Vulnerabilities of the victim are considered

V = 17 month old baby, suffered extensive bruising. Much more serious than if it were a normal adult.

What is ‘inflicting’

Definition (AO1)

Means causing - D’s conduct must cause the wound or GBH.

s20 GBH - MR

Definition (AO1)

Maliciously - with intent or recklessness:

• D intends to cause some harm

  or

• D is reckless as whether his conduct causes some harm

(Another example of Constructive liability)

s20 GBH - MR

Case

(R v Parmenter)

D roughly handled baby - had done so previously with other children and no injury occurred. Baby was injured and D was convicted of s20 GBH. Conviction quashed as D did not foresee in anyway the baby could be injured so NO MR

s20 GBH - Sentencing

• Triable either way offence

• Maximum sentence of 5 years imprisonment

s20 GBH - Criticisms

• The AR and MR do not match so D is liable for an outcome that he did not foresee

• The penalty for s20 can only be ascertained by reference to a chain of interlocking statutes

• The 5 year maximum sentence is the same as ABH

• The offence of wounding is problematic as not all wounds constitute a level of harm commensurate with s20 & s18

s18 GBH

Definition (AO1)

Maliciously wounding or causing grievous bodily harm - with intent to do grievous bodily harm (serious harm)

s18 GBH - AR

Definition (AO1)

Same as s20!!!

s18 GBH - MR

Definition (AO1)

D intends grievous bodily harm (serious harm) - Recklessness does not apply

(Specific Intent)

s18 GBH - Sentencing

• An indictable only offence

• Maximum sentence of life imprisonment