Comprehensive Study Notes on Non-Fatal Offences Against the Person

Introduction and Administrative Logistics

• Questions and Discussion Board:

  • Questions arising after the lecture should be posted on the discussion board rather than asked in person at the podium.
  • This is due to the high turnover of the lecture hall and the need to vacate the room quickly for the next group.
  • Using the board ensures that all students have equal access to the answers provided.

• Lecture Availability:

  • The recording of the lecture will not be uploaded to Canvas until Friday afternoon.
  • This delay is because the lecture must be repeated for the entire cohort on Friday morning, and the instructor wishes to avoid "spoiling" the content for those yet to attend.

• Lecture Scope:

  • The material covers non-fatal offences against the person, specifically assault, battery, and those defined under the Offences Against the Person Act $1861$ (Sections $47$, $20$, and $18$).
  • The lecture also addresses specific and general defenses applicable to these offences.

The Hierarchy of Non-Fatal Offenses

• The "Ladder" Framework:
  • Non-fatal offences against the person are structured as a ladder, ranging from non-consensual contact to serious, albeit non-fatal, injuries.
  • The hierarchy is defined largely by the degree of harm suffered by the victim, with the most serious at the top ($1$) and the least serious at the bottom ($4$):
    1. Section $18$: Wounding or causing Grievous Bodily Harm (GBH) with intent.
    2. Section $20$: Malicious wounding or inflicting GBH.
    3. Section $47$: Assault occasioning Actual Bodily Harm (ABH).
    4. Assault and Battery (Common Assault).

Assault and Battery: Definitions and Distinction

• Legal Basis:

  • The power to charge assault and battery stems from Section $39$ of the Criminal Justice Act $1988$.
  • However, the actual definitions are found in common law.

• Terminology and Misconceptions:

  • In academic, statutory, and case law contexts, the terms are often used interchangeably, inconsistently, or cumulatively (e.g., "the defendant assaulted the victim" might imply assault, battery, or both).
  • It is critical to distinguish the two formally for legal analysis.

• Specific Definitions:

  • Assault: Any conduct by the defendant that intentionally or recklessly causes the victim to apprehend imminent, unlawful personal violence.
  • Battery: Any conduct by the defendant, intentionally or recklessly, which inflicts unlawful personal violence upon the victim.

Detailed Analysis of Assault

• Physical Contact Requirement:

  • In contrast to everyday usage, the legal definition of assault requires no physical contact. Assault can be committed through words alone.

• Actus Reus (AR) of Assault:

  • The AR is satisfied when the defendant causes the victim to "apprehend" (expect, anticipate, or believe) that they are about to suffer personal violence.
  • The test is focused on the effect on the victim rather than the defendant's conduct itself.
  • Actual Apprehension: If a defendant motions to strike but the victim does not apprehend the violence—perhaps because they are asleep or believe the defendant is bluffing—the AR is not satisfied.

• Key Elements of the Actus Reus:

  • Unlawful Personal Violence: This includes even low-level, non-consensual contact. The victim does not need to believe the violence will cause injury; the threshold is very low.
  • Imminence: The apprehension must be of "immediate" or "imminent" violence. Threats of violence in the far future (e.g., "next month") do not constitute assault regardless of seriousness.
    • Subjective Test: What the victim believed based on the facts they were caused to believe (e.g., pointing an unloaded gun).
    • Objective Test: Whether that belief, once transferred to the court, amounts to an apprehension of "imminent" violence.
  • Indirect Causation: The defendant can cause the apprehension indirectly (e.g., threatening the victim with a dog or an attack by another person).
  • Words and Omissions: Words (oral or written) can satisfy the conduct element. Omissions may also potentially satisfy it.
  • Conditionality and Implication: Conditional threats satisfy the AR unless the condition undermines the threat entirely.
    • Example: "If the coin lands on heads, I will hit you" is an assault if the victim apprehends the hit.
    • Tuberville Savage (1669): The defendant put his hand on his sword but stated, "if it were not for his eyes time, I would not take such language." The court found no assault because the words made clear no attack would follow.

• Mens Rea (MR) of Assault:

  • Based on the case of Crown against Venner, the MR requires the defendant to intend or be reckless as to causing the result (apprehension of imminent unlawful violence).
  • The conduct must be voluntary, and the defendant must be aware the victim was a person.

Detailed Analysis of Battery

• Actus Reus (AR) of Battery:

  • Infliction of unlawful personal violence, encompassing any unlawful contact.
  • Physical Contact: Some force must be applied, though it need not be substantial. It can be satisfied even if the victim is unaware (e.g., while asleep) or if the defendant touches only the victim's clothes.
  • Indirect Causation: Battery is frequently indirect, such as throwing an object, spitting on the victim, or causing a third party to impact the victim.
    • Haystead Case: The defendant punched someone, causing them to drop a child. This was found to be a battery against the child.
  • Omissions: While typically an act, battery can be committed by omission.
    • Santa Bermudez Case: A defendant told a police officer he was not carrying sharps before a search. He was carrying hypodermic needles, and the officer was injured. The Divisional Court confirmed that creating a dangerous situation and failing to rectify it through an omission gave rise to battery.

• Mens Rea (MR) of Battery:

  • According to Venna/Venner, the MR requires intention or recklessness regarding the application of unlawful force to the victim's body.

Specific Defenses to Assault and Battery

• Overview: If the elements of the crime are met, the defendant may avoid liability through specific defenses (Lawful Chastisement, Consent, or Belief in Consent) or general defenses (to be covered in future lectures).

• Lawful Chastisement:

  • Historically a common law defense for parents and teachers using corporal punishment.
  • Now codified in Section 58 of the Children Act 2004.
  • Restricted scope: Applies only to parents, only to assault and battery charges, and only where force is reasonable, proportionate, and involves no cruelty. In Wales, this defense no longer exists.

• Consent:

  • Consists of two elements for assault and battery:
    1. Consent must be communicated (expressed or implied) in a recognized manner.
    2. Consent must be effective (victim must have capacity, freedom, and information).

• Implied Consent:

  • Applies to the foreseeable physical contact of everyday life (e.g., rubbing shoulders on a busy train, standing on someone's foot).
  • Wood against Counsel: A police officer restrained a man without a lawful arrest just to establish identity. The court ruled the victim (the officer) was not entitled to restrain him; therefore, there was no implied consent, and the defendant's resistance was lawful.
  • H against CPS: A teacher's awareness of the risk of assault in a special needs school did not amount to implied consent to be attacked.

• Effective Consent and Capacity:

  • Mental Capacity Act 2005: Capacity must be assessed individually and based on specific decisions. A person lacks capacity if they cannot make a decision for themselves due to an impairment or disturbance in the brain or mind.
  • Capacity can change over time and fluctuates based on the complexity of the decision.

• Informed Consent:

  • The level of knowledge required depends on the degree of harm. For HIV cases, the courts distinguish between consent to the central activity and consent to associated risks.
    • Konzani Case: The defendant had unprotected sex with three victims without disclosing his HIV status. He was charged with maliciously inflicting GBH. The court ruled that concealment of such a fact meant consent was not properly informed.
  • Three Categories of Risk Knowledge:
    1. No knowledge/deception: Defendant unaware of risk; no liability.
    2. Knowledge/no deception: Defendant informs victim; valid consent.
    3. Knowledge and deception: Defendant hides risk; consent is ineffective.

• Fraud and Consent:

  • Identity: If the defendant impersonates Person X to gain consent, it is ineffective.
    • Melin Case: A defendant pretended to be a doctor to give Botox injections. For the first victim (where the lie induced consent), the conviction was upheld. For the second victim (where the claim of being a doctor came after consent), the appeal was allowed.
  • Nature of the Act: Mistake regarding a "collateral issue" does not usually undermine consent.
    • Line v Gains: A defendant pretended to use an instrument for diagnostic purposes while acting for sexual gratification; the court found the nature of the act was still understood as insertion, so consent remained valid.
  • Associated Risks: Deka Case: Like Konzani, the defendant infected partners with HIV. While they were not misled about the sexual act (so no rape charge), they were misled about the risk of bodily harm, making consent to the infection ineffective.

• Duress and Belief in Consent:

  • Consent is ineffective if gained by threats or pressure (e.g., a "lighter beating" to avoid a "greater beating").
  • Belief in Consent: A very rare defense where the defendant genuinely believed the victim consented, even if they had not. This is difficult to prove in court.

Section 47: Assault Occasioning Actual Bodily Harm (ABH)

• Definition: Committed where an assault or battery causes the victim Actual Bodily Harm. It carries a maximum sentence of $5$ years.

• Actus Reus (AR):

  • Requires the AR of assault or battery plus the result of ABH.
  • "Occasioning" means "causing."
  • Definition of ABH: Any hurt or injury calculated to interfere with the health or comfort of the victim that is more than "transient and trifling."
  • Examples (from CPS charging standards): Scratches, grazes, bruising, swelling, temporary loss of consciousness, cutting someone's hair, and recognized psychiatric injury (e.g., clinical depression).
    • Psychiatric Injury: Must be a recognized condition. Simple fear or anxiety does not qualify.

• Ireland; Burstow Case: The House of Lords found that psychiatric injury (severe depression caused by silent phone calls) is capable of amounting to ABH or GBH.

• Mens Rea (MR):

  • Only requires the MR of the base offence (assault or battery). There is no requirement for the defendant to intend or foresee the actual ABH.
  • Roberts Case: A defendant made sexual advances in a car, grabbed the victim's coat, and she jumped out, sustaining injuries. He was liable for s.$47$ even though he did not foresee her jumping out.
  • Savage and Parmenter: Confirmed that s.$47$ is a "constructed liability" offence requiring no MR for the ABH itself.

Section 20: Malicious Wounding or Inflicting GBH

• Actus Reus (AR):

  • Two methods: Wounding or Inflicting GBH.
  • Wounding: The skin must be broken (all layers).
    • Wood Case: A broken collarbone with skin intact is not a wound.
    • Internal membranes (like in the mouth) count as skin, but purely internal ruptures do not.
  • Grievous Bodily Harm (GBH): Interpreted by the House of Lords as "serious bodily harm."
    • It does not need to be permanent or life-threatening. Examples include broken bones, disfigurement, and recognized psychiatric conditions.
  • Inflict vs. Cause: It is now settled that "inflict" and "cause" should be interpreted identically.

• Mens Rea (MR):

  • Refers to acting "maliciously," defined as intentionally or recklessly.
  • The Mowatt Rule: The defendant must intend or foresee that some bodily harm might occur, but they do not need to foresee wounding or serious injury (GBH).

Section 18: Wounding or Causing GBH with Intent

• Verbatim Definition: "Whosoever shall unlawfully, maliciously, by any means whatsoever, wound or cause any GBH to any person with intent to do some GBH to any person or with intent to resist or prevent the lawful apprehension or detainer of any person…"

• Actus Reus (AR):

  • Effectively the same as Section $20$. No strictly required assault or battery element.

• Mens Rea (MR):

  • Requires specific intent to cause GBH. Recklessness is insufficient.
  • Taylor Case: An intention to wound alone is insufficient for s.$18$. There must be evidence of intent to cause serious bodily harm.
  • Role of "Maliciously":
    • If the defendant intends GBH, maliciously adds nothing.
    • If the defendant intends to resist arrest, maliciously becomes crucial—the defendant must additionally foresee the possibility of causing some harm (likely GBH) during that resistance.

Defenses to Sections 47, 20, and 18

• The Brown Rule: For more serious offences, consent is only valid if the activity falls into a "legally accepted category" recognized by common law. These are based on public policy rather than strict principle.

• Accepted Categories:

  1. Surgery: Includes essential medical and non-essential cosmetic surgery. Consent is invalid if there is no legitimate medical basis (e.g., virginity testing is now criminalized under s.$136$ Health and Care Act $2022$).
  2. Body Modification:
     • Wilson Case (1996): Husband branded initials into his wife's bottom with a hot butter knife at her request. The Court of Appeal allowed the appeal, viewing it as akin to tattooing or "personal adornment" performed in matrimonial privacy.
     • BM Case: A professional tattooist removed an ear, a nipple, and split a tongue. The Court of Appeal found these were akin to "unlicensed surgery" and could not be validly consented to.
  3. Sports: Regulated by the context of the game (Barnes).
  4. Horseplay: Recognized as a category.
  5. Religious Flagellation: Recognized but rare.
  6. Sexual Pleasure: Following R v Brown, sadomasochistic acts causing ABH or wounding cannot be validly consented to for the purpose of sexual pleasure.

• Questions and Discussion:

  • Student: "I received an email to the House counsel…"
  • Instructor: (Promptly moves into the section on s.$47$ after the break).

• Self-Directed Study: Students are encouraged to read more on the categories of sport and horseplay, as time ran out during the lecture.