Non- fatal offences against a person 1

what is assault?

Where D intentionally or recklessly causes V to apprehend immediate and unlawful personal violence

what type of conduct is needed for assault?

• An act is required: Fagan v Metropolitan Police Commissioner [1969] 1 QB 439

 BUT note argument that an omission to act may suffice, e.g. where D creates a dangerous situation and has a duty to act, and fails to do so – this hasn’t been clarified by common law (Child & Ormerod, s. 7.2.1.1, p 231)

can conditional threats amount to assault?

• Tuberville v Savage (1669) 1 Mod Rep 3: “If it were not for assize-time, I would not take such language from you”

• His words indicated that the presence of the judges meant he would not take any action, and therefore no assault.

•  Conditional threats may negate assault

can words alone amount to assault?

Words alone couldn’t amount to assault but since Ireland and Burstow where a man made lots of phone calls to different women where he was silent, sometimes with heavy breathing to women. These women suffered from psychological and emotional damage. This led to the question of can words alone can be the conduct of violence and yes they can. Dependent on the victim and whether those words led to the immediate threat of unlawful force.

R v Ireland and Burstow [1998] AC 147

• Ireland admitted making repeated silent telephone calls to three women. Sometimes he resorted to heavy breathing. Burstow made silent calls to woman who refused his advances. He also made abusive calls to her. 

•  Medical evidence stated the women suffered psychological damage as a result of the telephone calls.

•  Issue: Whether there was an assault on which to base a conviction for s.47 ABH

•  Held: words alone could constitute an assault: “The proposition that a gesture may amount to an assault, but that words can never suffice is unrealistic and indefensible. A thing said is also a thing done. There is no reason why something said should be incapable of causing an apprehension of immediate personal violence…. I would, therefore, reject the proposition than an assault can never be committed by words”.

personal violence/ force

• Means any unwanted touching

 

•  V need not believe it would be serious or cause serious injury – Ireland and Burstow

The idea that the victim expects an immediate or imminent unlawful touching; it doesn’t require It to be serious but the victim has to just expect it to happen.

assault intention.

• direct or

• Indirect = the result was a virtually certain consequence of the D conduct and was the D aware of this.

recklessness and assault

did the d Forsee the risk and did they unjustifiably take that risk.

We only need to prove one of these as the Mens Rea for assault. Need to explain both in a problem question and decide on which one the defendant is guilty of if one at all.

 Not about touching more about the apprehension of unlawful touching

 

what is battery?

“Any intentional [or subjectively reckless] touching of another person without the consent of that person and without lawful excuse. It need not necessarily be rude, hostile or aggressive…” Faulkner v Talbot [1981] 3 All ER 468, 471 per Ld Lane CJ.  

Battery requires [hysical touch

what is rationale?

 “The fundamental principle, plain and uncontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery”: Collins v Wilcock [1984] 3 ALL ER 374 (QBD), per Ld Justice Goff

AR of battery.

conduct, causes touching, touching is unlawful

can you be charged for battery through omission.

You cannot commit battery through omission. Except if you have the duty to act based upon a dangerous act then yes you can be charged based on omission.

Fagan [1969]

a continuing act can (remember, D drove car onto police officer’s foot and stayed there)        

touching (battery).

The touching doesn’t have to be carried out person-to-person:

 Can be carried out through an object: Fagan [1969] through car; Savage [1992] 1 AC 699, HL, by throwing a beer on someone

ouching does not have to be to Vs body/person – it can be V’s clothing: Thomas [1985] 81 Cr App R 331 (CA): “There can be no dispute that if you touch a person’s clothes while he is wearing them that is equivalent to touching him”.

 

can there be indirect touching?

Something must touch V - force can be applied directly or indirectly

unlawful touching.

The touching must be “unlawful”

 Collins v Wilcock,  LJ Goff:

•  “apart from [self-defence, prevention of crime, lawful arrest] where the control or constraint is lawful, a broader exception has been created to allow for the exigencies of everyday life. Generally speaking consent is a defence to a battery and most of the physical contacts of everyday life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact”

•  The test in every case is: “whether the physical contact so persisted in has in the circumstances gone beyond generally acceptable standards of conduct and the answer to that question will depend on the facts of the particular case”.

different forms of touching.

distinction between touching someone to gain their attention (where providing is not persistent falls into the “everyday” exception) as against physically restraining someone (which does not fall into the exception)

 So physical contact generally accepted as part of everyday life ≠ battery.

what is s.47 OAPA? (ABH)

Whosoever shall be convicted upon an indictment of any assault occasioning ABH shall be liable to be inprisoned for any term not exceeding 5 years inprisonment.

what are the element for s47?

1. Assault or battery (AR and MR must be proven), which

2. Occasioned:  occasion = to cause – Roberts (1972) 56 Cr App R 95 CA [see causation lectures]

3. Actual bodily harm

how do you prove s47?

What you need is a base offence (assault/battery) which has occasion (caused) actual bodily harm.

You then need to prove the base offence like assault or battery. Define that base offence with the actus reus/ mens rea. You would then move onto second offence and define occasion and go through normal causation principles which then led to actual bodily harm.

When you need to pick between the 5 offence we need to figure out what happened.

With battery and assault we need little to no physicla  harm to be caused via touching.

what is ABH?

any hurt or injury calculated to interfere with the health or comfort of the victim. It need not be permanent, but it must be more than transient or trifling: Miller [1954] 2 QB 282 at 292; Donovan [1934] 2 KB 492 (CCA); T v DPP [2003] Crim LR 622

examples of ABH?

• Bruises, grazes, tenderness: R v Reigate Justices, ex p Counsel [1984] 148 JP 193 (QBD)

•  A temporary loss of consciousness: T v DPP [2003] Crim LR 622

•  Cutting off a pony-tail: Smith [2006] EWHC 94 (Admin)

•  Psychiatric injury, providing is a recognisable and diagnosed illness: Chan-Fook [1994] 1 WLR 689, 696; Ireland and Burstow; Dhaliwal [2006] EWCA Crim 1139

Mens rea and s47.

• The MR of the base offence (assault or battery) has to be proven

•  BUT is intention or recklessness required also for the harm caused (i.e. the ABH)?

•  Roberts [1972]: not required D had MR re V sustaining ABH

•  Spratt [1990]: however the court held that at least subjective recklessness was required with respect to causing ABH

• Savage and Parmenter [1991]: HL followed Roberts – It is not necessary to have MR as to the causing of the ABH

what is s.20 OAPA: Wounding of inflicting GBH.

Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be … liable to imprisonment for not more than 5 years.

What is the AR for s20?

a conduct that unlawfully inflicted wounds of GBH

What would constitute as a “wound”?

•  Moriarty v Brookes (1934) 6 C & P 684: continuity of whole skin must be broken e.g. stabbing​

• Waltham (1849) 3 Cox CC 442 : Breaking of internal membranes e.g. inside of cheek or lips​

•  M’loughlin (1838) 8 C & P 635: A scratch which does not break the inner skin is not a wound ​

•  C (a minor) v Eisenhower [1984] QB 331​: continuity of whole skin must be broken à bruise or burst blood vessel in an eye does not amount to a wound 

what is GBH?

Really serious harm. Defined in Smith [1961]

what does it include?

Serious psychiatric injury (Burstow [1998] AC 147 (HL)) providing it is a recognisable clinical condition (Chan-Fook)

Transmission of STIs: HIV (R v Dica [2003] EWCA Crim 1103); gonorrhea (Maranguanda [2009] EWCA Crim 60); genital herpes (Golding [2014] EWCACrim 889)

 

how to decide whether harm is GBH?

• In deciding whether harm = GBH, must look at the totality of the injuries: Grundy [1989] Crim LR 502; Birmingham [2002] EWCA Crim 2608​

•  The jury must also take into account the impact of the injuries on the particular victim, taking account of their age and health: Bollom [2003] EWCA Crim 2846

•  In considering whether any disease (e.g. an STI) = GBH, the jury must apply ‘contemporary social standards’: Golding, above

 

Have to look at the totality and the impact of the injury. You also need to take into account he age/ health of the victim.

GBH and inflicts.

•  D must “inflict” GBH

•  Historically it was thought “inflict” required proof of assault: Clarence (1888) 22 QBD 23 ​

•  Wilson [1984] AC 242, HL: held that GBH [and a wound] could be inflicted without proof of assault

•  BUT seemed to think that inflict was narrower than “cause” - required force being violently applied to the body

Inflict = cause.

  Ireland and Burstow [1998] HL: question whether s. 20 offence inflicting GBH can be committed without physical violence:

•  Yes [note this was in context of psychiatric injury]​

•  while “inflict” and “cause” are not synonymous, there is “no radical divergence between the meaning” of cause and inflict

•  S.20 no assault or battery or physical violence is needed​

what is the Mens Rea. s.20

• “maliciously” wound or inflict GBH​

•  Cunningham defined malicious: intention or foresight​

 Mowatt [1968] 1 QB 421, Ld Diplock

“the word ‘maliciously’ does import on the part of the person who unlawfully inflicts the wound or other grievous bodily harm an awareness that his act may have the consequence of causing some physical harm to some other person…. It is quite unnecessary that the accused should have foreseen that his unlawful act might cause physical harm of the gravity described in the section, i.e. a wound or serious physical injury. It is enough that he [foresaw] … that some physical harm to some person, albeit of a minor character, might result”​

what is s.18: Wounding or causing GBH with intent - most serious offence.

 Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause  GBH to any person … with intent … to do some … grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person shall be guilty of [an offences and shall be liable to imprisonment for life]

trial and sentencing for s18.

 indictable only, trial in Crown Court, life imprisonment 

What is AR of s18?

a conduct, unlawfully causes wound or GBH

what is the difference between s20 and s18?

The AR in section 18 talks about any means whatsoever. Section 20 inflicting a wound with and without a weapon. The difference between section 20 and 18 is that in section 18 there has to be intention. It cannot be just recklessness the D needs intent to cause GBH

What is MR in s18.

•  The key difference between s.20 and s.18 is the MR requirement​

•  s.18 requires not only that D was malicious, but also that he intended to cause GBH or to resist or prevent lawful apprehension or detainment – a much higher threshold!​

•  Intention only, recklessness will not suffice ​

• s.18 more serious – life imprisonment

what is the intention requirement?

• Requires an intention to cause GBH or an intention to resist/prevent lawful apprehension/detainer​

•  Intention means the same as intention in context of murder it can be direct or indirect (Woollin and VCC test). BUT indirect in rare cases only!​

•  It must be an intention to cause GBH (or prevent/resist arrest).​

• An intention to wound is not sufficient MR for s.18 - requires intention to cause GBH: Taylor [2009]​

Indirect intention is quite rare here.

Malicious in context of s18.

• Same as for s.20​

Note that it will not need to be shown in every case that D was malicious​

• Where D charged with unlawfully causing GBH with intention to cause GBH the malicious requirement is superfluous ​

• Where D is charged with unlawfully wounding with intention to cause GBH, the maliciousness requirement is superfluous ​

• If D is charged with wounding or GBH with intent to resist arrest etc, it will be necessary to prove he was malicious – i.e. had intention or subjective recklessness as to causing some harm.​

Comes in only sometimes.