2.7 Non Fatal Offences Against the Person

Assault Actus Reus

Any act by the defendant which causes the victim to apprehend immediate unlawful violence. (Stephens v Myers (1830))

R v Ireland

Threatening violence over the phone is still immediate

R v Constanza

• Threatening letters constitute assault

• Words alone can amount to assault

Mens Rea of Assault

intention or recklessness as to actus reus (Venna [1976])

Actus Reus of Battery

unlawful personal violence (Cole v Turner (1705))

Definition of Violence

any touching without consent

Collins v Wilcock [1984]

Victims can withdraw implied consent to everyday touching if they make it clear

Authorities for indirect violence

• Fagan: committed via car

• DPP v K: acid in hand dryer

Authority for omission

DPP v Santana Bermudez

Mens Rea for Battery

intention or recklessness as to unlawful personal violence.

Actus reus of Section 47

assault or battery occasioning actual bodily harm.

Donovan [1934]

ABH: any hurt or injury interfering with the health or comfort of the victim. It does not need to be permanent, but must be more than transient and trifling.

CPS Guidance for ABH

• Stratches

• Bruises

• Grazes

• Minor FRactures

• Minor Losses of Consciousness

Psychiatric Injury and ABH Rule

Psychiatric injury can be ABH if it is a recognised psychiatric injury and there is a diagnosis (Dhaliwal)

Mens Rea for Section 47

intention or recklessness as to assault or battery

Section 20 Actus reus

wounding or inflicting grievous bodily harm.

Roberts [1971]

occasioned means caused

C v Eisenhower [1984]

Wounding: every layer of the skin is broken

GBH Definition under DPP v Smith

really serious harm

Hill [2015]

Defining GBH is up to the jury

Dica [2004]

GBH includes transmission of disease and STIs

Grundy [1977]

GBH includes totality of injuries. One bruise might be ABH, but a collection could be GBH

Section 20 Mens rea

intention or recklessness as to some harm.

• Awareness of some harm is enough, not the actual level of harm caused.

Parmenter

if the defendant punches a victim and foresees a bruise but instead breaks the jaw of the victim, there is section 20 liability.

Section 18 Actus reus

wound or cause grievous bodily harm

Section 18 Mens rea

• Intention to cause GBH

• Intention to resist or prevent lawful arrest or detention

Why is criminalising OAP justified?

• Bodily integrity

• Article 8 ECHR

R v Thomas

Touching of a girl’s skirt amounted to battery

Dhaliwal facts

In Dhaliwal, the victim hanged herself after years of abuse by her husband. However her symptoms before suicide did not amount to a recognisable psychiatric illness, so there was no ABH.

Summarise Finch’s View on Psychiatric Injury

Psychiatric injury in OAP is highly restrictive. A more expansive approach would create equality between physical and non-physical harm.

• The focus on diagnosis is harmful and we should instead look at the symptoms of the victim and ask the jury to decide if harm has been caused.

• It is wrong for the law to focus so heavily on diagnosis because medical and legal conceptions of harm are different.

• For physical injury, there is a ladder of seriousness, but for non-physical injury, it is psychiatric harm or nothing.

• Dhaliwal was decided wrongly. It is an unstable foundation for psychiatric injury in OAP.

Law Commission view on OAPA

The Offences Against the Person Act is defective on effectiveness and justice.

Reforms proposed by the Law Commission

§  S20 should become recklessly causing serious injury for 7 years.

§  S47 should become intentionally/recklessly causing injury for 5 years.

§  There should be no constructive liability.

Criticism of Psychiatric Harm and Disease Transmission

Psychiatric Harm and Disease Transmission were not originally contemplated in the act, and this has caused courts to strain the doctrine.

Hart’s view on the OAPA

the anomaly between S20 and S47 brings the law into disrepute. There should be morally distinguishable offences.

Correspondence Principle and the OAPA

there is constructive liability for S20. The level of harm should correspond to the mental state of the defendant.