Non Fatal Offences

What is Assault

Common law offence

AR
Any act by D which causes V to apprehend immediate and unlawful violence

MR
intention or recklessness

What is Battery

Common law offence

AR
unlawful touching

MR
intention or recklessness

Battery must be PHYSICAL
can be INDIRECt - DPP v K
Omissions can amount to Battery - DPP v Santana Bermudez
Any unlawful touching can be battery BUT there is implied consent for the exigencies of everyday life - Collins v Wilcocks.

What is ABH

Offence under the OAPA 1861 section 47
maximum sentence: 5 Years

This is a constructive offence, built upon the common law offences.

AR
assault OR battery + actual bodily harm

MR
as for assault or battery
- This was affirmed in the Appeal case of Savage in Savage and Parmenter.


Psychiatric harm can ABH - recognised psych illness.
- established in Chan Fook and R v Ireland.

What is GBH (general)

An offence under section 20 of OAPA 1861
Constructive offence.
AR

• Wounding - breaking all lawyers of the skin (C v Eisenhower)

• OR Really serious harm - DPP v Smith
  
  Note that serious psych harm can constitute GBH
  
  MR
  The courts interpret maliciously from the statute. - r v mowatt
  - can be done with intention or recklessness to cause SOME harm
  - Notably, D doesn’t need to intent/foresee the LEVEL of harm they cause, just need to intend/forsee that they will cause SOME harm. - Savage and Parmenter.
  
  
  

what is GBH (with intent)

An offence under section 18 of OAPA 1861
life sentence

AR

• cause very serious harm/ GBH

• MR

• intention to cause GBH

• Intention to resist or prevent lawful arrest
  

  
  So the main difference between s.18 and s.20 is:

• the difference in sentence

• the lawful arrest stipulation

• the MR element of intention to cause GBH rather than do so some harm (higher threshold of MR)

Limits of psych harm threshold

In order for psych harm to amount to ABH it must be a recognised psych illness.

This threshold is borrowed from Tort law - understandable due to floodgates and over excessive liability but does the threshold have the same place in the criminal law when the role of criminal law is not the same as tort? - meant to serve Justice and arguably as the CPS have discretion as to what cases are progressed, the floodgates concern is not that relevant.

the problem of this threshold was illustrated in the case of Dhaliwal.

• lack of justice because of the need for recognised psych illness

• D was charged with UAM (unlawful act in this case would have been GBH) and GBH but was acquitted because of the need for recognise psych illness.

Issues with ABH and GBH s.20

They are constructive offences.

• People who believe in the correspondance principle think that this is wrong. arguing that constructive liability violates this principle because it holds people responsible for outcomes they did not foresee or intend. For example:

• A person who recklessly causes a minor injury can end up being punished for serious harm (s 47 or s 20) even though they didn’t foresee it.
  
  

• if we look at penal theory, the point of having different sentences is to reflect different levels of harm caused and culpability. If ABH is more serious than the common law offences and if GBH is more serious than ABH, these offences should have higher MR requirementst reflecting the increase in harm and culpability.
  
  
  correspondence is also recommended by the law commission.

Issues with OAPA 1861

Along with the issues of constructive liability

OAPA is too complex - shown in the many ways to commit a s.18 offence.

My own analysis issues with OAPA 1861

section 20 - ‘maliciously’ - the courts have interpreted this to mean with intent or recklessness - it should be more clear (communicative function of crim law) - Law Commission suggest that the description be ‘Recklessly causing serious injury’

removal of wounding for GBH - it complicates it and wounding can be serious injury or just injury (law commission)

R v Chan Fook

Facts: The defendant subjected the victim to questioning about the theft of a ring belonging to the defendant's fiancée. The defendant then dragged the victim upstairs to a room and locked him in. The victim feared the defendant's return and injured himself when he fell through a window.

Held: The defendant was not guilty. To amount to actual bodily harm, the injury need not be permanent but should not be so trivial as to be wholly insignificant. Feelings of fear and panic are emotions rather than an injury and without medical evidence to support recognised psychiatric condition a conviction for ABH could not stand.

R v Constanza

Words can be assault

R v Ireland

Silence can be assault

Tuberville v Savage

Conditional threats are not imminent so cannot be assault

If it were not assize time, I would not take such language from you” if the condition negates the immediacy of the assualt, then there is no assualt. eg: i would hit you right now if the teacher were not in the room.