Comprehensive Study Guide on Non-Fatal Offences Against the Person

Overview of Non-Fatal Offences against the Person

Scope of Offences: Non-fatal offences against the person range from basic assault to serious sexual offences, such as rape.
Implied Consent in Daily Life: Most physical contacts occurring in ordinary life are not actionable because they are impliedly consented to by all who move in society. By existing in society, individuals expose themselves to the risk of bodily contact (Collins v Wilcock [1984] 1 WLR 1172).
Statutory vs. Common Law Basis: Assault and battery are categorized as statutory offences by Parliament. However, they are defined under common law. * Haystead v Chief Constable of Derbyshire [2000]: The Court held obiter that battery is a common law offence. * The relevant statutes contain no internal definitions for these offences.

Common Assault under Section 39 Criminal Justice Act 1988

Classification: Section 39 of the Criminal Justice Act 1988 classifies assault as a summary-only offence.
Sentencing: Upon conviction, the maximum sentence is 6 months’ imprisonment or a fine.
Definition of Assault: According to Fagan v MPC [1969], assault is defined as ‘intentionally or recklessly causing V to apprehend immediate and unlawful personal violence’.

Actus Reus of Assault

Core Requirement: Any act that makes the victim apprehend that immediate, unlawful personal violence is about to be used against them. This is subjectively assessed.
Nature of the Act: * It must be an act, not an omission. * Force does not need to be applied. Examples include: raising a fist, pointing a gun, or brandishing a knife.
Words and Silence: * R v Wilson (1955): Established that words alone can amount to an assault. * R v Ireland & Burstow [1998] AC 147: Silent telephone calls can amount to an assault. D's actions were causative of harm (psychiatric injury). * Meade and Belt (1823) contrast: In this case, shouting ‘get out the knives’ during a fight led to a Section 47 OAPA 1861 charge. Lord Goddard stated obiter that these words alone would constitute an assault.

Psychiatric Injury as Bodily Harm

R v Ireland & Burstow [1998] Case Details: Ireland made silent phone calls to three women (convicted under Section 47 ABH). Burstow harassed a victim causing psychiatric injury.
Legal Question: The conjoined appeal asked if psychiatric injury can be classified as bodily harm under sections 18, 20, and 47 of the 1861 Offences Against the Person Act (OAPA).
House of Lords (HL) Ruling: * Psychiatric injury counts as Actual Bodily Harm (ABH) under Section 20. * It qualifies as bodily harm under Section 18, 20, and 47 OAPA. * Public policy dictates providing recourse to women in these situations.
Terminology: Lord Steyn noted that in criminal contexts, the words ‘cause’ and ‘inflict’ are interchangeable regarding the D's causative actions.

Requirement of Apprehension

Apprehension vs. Fear: Apprehension refers to expectation, not necessarily fear.
Unlawful and Immediate Harm: The victim must expect immediate harm (R v Lamb 1967).
Actual Threat: Apprehension is required even if there was no actual threat made (Logdon v DPP [1976]).
Ability to Carry Out Threat: No assault exists if it is obvious to the victim that the defendant cannot or will not carry out the threat (Tuberville v Savage 1669).
Case Study: R v Lamb (1967): Boys playing with a gun where no intention to harm existed. The judge failed to properly direct the jury on mens rea. Involuntary manslaughter on the grounds of an unlawful and dangerous act was not established because the essential mens rea for assault was missing.
Case Study: Logdon v DPP [1976]: The defendant pointed a fake gun at V. No physical harm was intended, but the defendant intentionally or recklessly caused V to believe force was immediate. This was a valid assault conviction.
Conditional Threats: As seen in Read v Coker (1853), it does not matter if a threat is conditional; it can still constitute an assault.

The Concept of Immediacy

Smith v Chief Constable of Woking [1993]: A Superintendant looked through a window. Even though there were only words/looking, there was an intention to frighten. V had a fear of potential violence. There was no need to identify the specific nature of the fear or if the threat would be carried out.
R v Constanza [1997]: Harassment over a two-year period. The court stipulated words alone constitute assault. V feared violence ‘at some time not excluding the immediate future’. The fear in V's mind is subjective and the method of its arrival is irrelevant. This is now largely covered by the Protection from Harassment Act 1997.

Meaning of Unlawful Violence

Lawful Excuses: Acts do not amount to assault if the defendant has a lawful excuse: * Consent (e.g., in contact sports). * Lawful chastisement of a child. * Self-defence or the prevention of a crime.

Mens Rea of Common Assault

Intent: Can be direct or indirect.
Subjective Recklessness: Based on Cunningham [1957] and R v G [2004].
Standard: The defendant must have intended to cause the victim to apprehend immediate and unlawful force or must have foreseen the risk that such apprehension would be created.

Battery: Definition and Actus Reus

Classification: Section 39 of the Criminal Justice Act 1988 makes battery a summary offence (up to 6 months’ imprisonment or a fine).
Definition: Any act by which the defendant intentionally or recklessly inflicts or applies unlawful personal violence or force upon the victim.
Actus Reus: * The infliction of unlawful force. * Any unlawful physical contact; no need to prove harm or pain. * The degree of force can be very slight but must go beyond the physical contact of everyday life (Collins v Wilcock [1984]).
Collins v Wilcock Example: A police officer grabbed a woman's arm to question her (without power to detain). A struggle ensued. The woman was entitled to defend herself against the unlawful contact.
Touching Clothing: Force is widely construed. Touching a person's clothes while they are wearing them (e.g., rubbing the hem of a skirt) is equivalent to touching the person (R v Thomas 1985).

Unwanted Touching and Sexual Assault

Attorney General’s Reference (No 1 of 2020) [2020] EWCA 1665: Involved an unwanted kiss.
Sexual Offences Act 2003 (Section 3): Requires intentional touching, the touching being sexual, and no consent (or reasonable belief in consent).
Ruling: D was acquitted because the touching was not intended to be sexual.
Goff LJ Quote on Everyday Life: A broader exception exists for the ‘exigencies of everyday life’ where physical contacts are impliedly consented to. The test is whether contact ‘persisted in’ has gone ‘beyond generally acceptable standards of conduct’.

Consent and Aggravated Violence

R v Brown [1994]: Consent is generally no defence to inflicting ABH, GBH, or wounding (sections 20 and 47 OAPA 1861).
Exceptions: Sports, surgery, taking the risk of infection in sexual acts.
Principles: Violence incidental to an activity is different from violence inflicted for ‘the indulgence of cruelty’. Considerations include health risks and public morality.
Dissent: Lord Mustill viewed these as questions of private morality if consensual.

Indirect Application of Force in Battery

Direct vs. Indirect: Direct is a slap; indirect uses an implement, vehicle, or animal.
Haystead v Chief Constable of Derbyshire [2000]: D punched a woman holding a baby; the baby fell. D was convicted of reckless battery. The application of force used the mother as the ‘means’.
Victim Awareness: V does not need to be aware they are about to be struck (e.g., being hit from behind).
R v Martin (1881): D turned off theatre lights and placed an iron bar across the exit to cause panic. Injuries resulting from the stampede were charged under s.20. D was taken to have intended natural consequences and acted ‘unlawfully and maliciously’.
DPP v K (a minor) [1990]: A schoolboy put acid in a hand dryer; it squirted into another pupil's face. This was an indirect application of force; the boy was reckless to the fact that acid could inflict force.
Additional Examples of Indirect Force: Placing an obstacle behind a door for someone to trip over; setting a dog on a victim.

Assault by Omission

General Rule: Actus reus can include an omission where D exposed the victim to a reasonably foreseeable risk of injury through acts or speech, and force was not applied directly.
Santana-Bermudez [2003]: D (infected with HIV and Hepatitis C) lied to a police officer about sharp objects in his pocket. The officer was pricked during a search. Held to be a ‘wilful omission’ because D recklessly gave a false statement.
Statutory Update: Assault by omission is now specifically dealt with in the Sexual Offences Act 2003.

Further Defences to Battery

Consent: Collins v Wilcock notes consent is a defence unless contact exceeds reasonable bounds (e.g., inevitable jostling in supermarkets/trains or a friendly slap on the back).
Self-Defence: Or the defence of another.
Lawful Arrest: Use of reasonable force to effect an arrest.
Parental Chastisement: Reasonable chastisement of a child.

Mens Rea of Common Assault by Battery

Standard: Intend or foresee (subjectively) the actual infliction of force (R v Venna 1975).
R v Venna (1975): D resisted arrest and kicked a constable's hand. He either intended it or lashed out recklessly, not caring if he kicked someone.
R v Savage (1991): D threw beer and the glass. For s.47 OAPA, it was not necessary to demonstrate MR for the specific level of harm; it was sufficient that D intended or foresaw that ‘some harm’ would result.
DPP v Parmenter (1992): Rough handling of a baby. The charge under s.20 OAPA was reduced to s.47 on appeal. The court questioned whether D subjectively foresaw harm.
Classification: Common assault and battery are ‘basic intent’ crimes. Recklessness or negligence (in some contexts) suffices for MR.

Section 47 OAPA 1861: Actual Bodily Harm (ABH)

Statutory Basis: ‘Any assault occasioning actual bodily harm’.
Classification: Triable either way.
Max Sentence: 5 years’ imprisonment.
Actus Reus: An assault or battery that causes ABH.
ABH Definitions: * ‘Any hurt or injury calculated to interfere with the health or comfort of the victim’ (R v Miller 1954). * The injury should not be ‘so trivial as to be wholly insignificant’ but need not be permanent (R v Chan-Fook 1994). * Loss of consciousness constitutes ABH (T v DPP 2003). * Cutting of hair constitutes ABH (DPP v Smith 2006).

Psychological and Bodily Harm Details (ABH)

Bodily Definition: Includes skin, flesh, bones, organs, the nervous system, and the brain.
Psychiatric Injury: Extends to psychiatric injury (Chan-Fook 1994), but medical evidence is required. Mere emotions like fear, distress, or panic are not enough.
Mens Rea for ABH: Identical to assault and battery MR. There is no requirement to intend the ABH itself or be reckless as to the ABH; simply intending the initial assault/battery is sufficient (R v Roberts 1978; R v Savage/Parmenter 1992).

Section 20 OAPA 1861: Unlawful Wounding or Inflicting GBH

Definition: Unlawfully and maliciously either wounding another person or inflicting Grievous Bodily Harm (GBH).
Classification: Triable either way.
Max Sentence: 5 years’ imprisonment and/or a fine.
GBH Definition: Bears the ordinary meaning of ‘really serious’ harm (DPP v Smith 1960).
Saunders [1985]: Held that ‘really’ was unnecessary; ‘grievous’ simply means ‘serious’.
Jury Assessment: The assessment of harm is a matter for the jury based on contemporary social standards.

Wounding Definition

Moriarty v Brookes [1834]: Lord Lyndhurst CB defined a wound as an injury where the skin is broken and there is bleeding.
Technical Requirement: All layers of the skin must be broken. A graze technically satisfies this. Internal bleeding without breaking skin is NOT sufficient (JCC (a minor) v Eisenhower 1984).

Biological GBH

Cases: * Dica [2004] and Konzani [2005]: Knowing one is HIV positive and having unprotected consensual sex with women who are unaware results in a section 20 conviction. * R v Golding [2014]: Deliberate infection of a partner with incurable genital herpes was found capable of being reckless infliction of GBH.
Vitiating Consent: * R v B (2006): Failure to disclose HIV+ status did not vitiate consent for rape charges. * R v McNally (2013): An explicit lie (as opposed to mere failure to disclose) might be capable of vitiating consent.

Mens Rea for Section 20 OAPA

Malice: Statutory ‘malice’ means done intentionally or recklessly (Cunningham).
Specific Foresight: According to Mowatt (1967), the defendant must intend or be reckless as to causing ‘some harm’. It is not necessary for them to foresee the gravity of a wound or serious physical injury; foreseeing minor physical harm to someone is sufficient.

Section 18 OAPA 1861: GBH with Intent

Definition: Unlawfully and maliciously wounding or causing GBH with intent to do some GBH or with intent to resist/prevent lawful apprehension or detainer.
Classification: Triable only on indictment.
Max Sentence: Life imprisonment.
Actus Reus: Same as Section 20 (wounding or GBH).
Mens Rea: Requires specific intention to cause GBH (or resist arrest). Recklessness is not sufficient for Section 18, making it a crime of specific intent.

Problem Scenario Examples

Scenario 1: Larry sneaks up behind Josh and slaps his back at a party. Potential battery (exceeding implied consent of a friendly slap?).
Scenario 2: Jordan makes silent calls to Keisha from outside the UK; she suffers clinical anxiety. Potential assault occasioning ABH (Ireland & Burstow).
Scenario 3: Naomi tells her child she will smack her if she doesn’t shut up. Potential assault (conditional threat/parental chastisement issue).
Scenario 4: Jim runs with an axe at Thomas; Thomas is huge and not scared, laughs as Jim bounces off him. No apprehension of violence, so no assault. Potential battery if contact is unlawful.
Scenario 5: Jacob follows Jane and peers through train windows menacingly. Jane runs across live tracks to escape and is electrocuted. Issue of causation and whether the fear resulted in the injury (ABH or s.20).