Non- fatal offences week 11.docx

NON- Fatal offences against the person

ASSAULT

Categories of OAP

Common Assault: Assault & Battery
Assault Occasioning Actual Bodily Harm (ABH)
Wounding & Inflicting Grievous Bodily Harm (GBH)
Wounding & Inflicting GBH with Intent

Common Assault

Least serious non-fatal OAP.
Different terminology from common usage.

Assault: D intentionally or recklessly causes V to apprehend immediate and unlawful force.

Battery: D intentionally or recklessly applies unlawful force to V.

Charged under s.39 Criminal Justice Act 1988.
Summary offences: up to 6 months imprisonment and/or level 5 fine.
Definition & elements from common law.
Distinct offences, charged separately

ASSAULT

D intentionally/recklessly causes V to apprehend immediate & unlawful force.

Prosecution must prove beyond a reasonable doubt:

Actus Reus D did an act

which caused V to apprehend

immediate & unlawful force

Mens Rea D’s intention or recklessness

as to causing V to apprehend force

Assault- Actus Reus

D’s act causing V to apprehend immediate & unlawful force

An act, but not omission
Force Need not be violent; threat of touching may suffice
Causing V to Apprehend
Result Crime: rules of Causation apply
V must anticipate use of force (No apprehension = No assault)
An empty threat may constitute Assault: Logdon (1976)
Threat may be negated by words: Light (1857)
Immediate Need not be instantaneous

V must apprehend possibility of imminent violence

Constanza (1997)

Ireland (1998)

Smith v CSI of Woking Police Station (1983)

Unlawful Threat of lawful force cannot constitute assault

e.g. consensual activity, Self-defence, Lawful arrest

ASSAULT- MENS REA

Intention to cause V to apprehend force

Recklessness as to causing V to apprehend force

Subjective Cunningham recklessness:

D personally foresaw the possibility that V may apprehend violence; and took the risk unjustifiably.

BATTERY: Part 2

D intentionally or recklessly applies unlawful force to V

Prosecution must prove beyond a reasonable doubt:

Actus Reus D’s application of unlawful force to V

Mens Rea D’s intention or recklessness

as to applying such force to V

battery – actus reus \n application of unlawful force to V

Can be an act or omission (only if duty to act exists)

Fagan (1968) Santana-Bermudez (2004)

Violence or injury not necessary
Slight, non-consensual touching may suffice: Thomas (1985)
Beyond accepted everyday touching: Collins v Wilcock (1984)
No physical contact = No battery: Ireland (1997)
Battery is a conduct crime (no causation needed)
Application of force may be
Direct By D’s person

Spitting: Misalati (2017)

By an instrument: Fagan (1968)

Indirect DPP v K (1990) Haystead (2000)
‘Unlawful’ Lawful application of force is not battery

e.g. consensual activity, Self-defence, Lawful arrest

battery – mens rea

Prosecution must prove beyond a reasonable doubt:

D’s intention to apply unlawful force to V

D’s Subjective recklessness
D personally foresaw the risk of force being applied to V; and took the risk unjustifiably.

Part 3: ASSAULT OCCASIONING ABH

Common Assault (Assault & Battery)
Assault Occasioning ABH
Wounding or Inflicting GBH
Wounding or Inflicting GBH with Intent

When D commits assault or battery which causes actual bodily harm

Charged under s.47 Offences Against the Person Act 1861
Definition & elements from common law
Either-way offence:

Magistrates’ court: up to 6 months imprisonment and/or fine.

Crown court: up 5 years imprisonment.

S.47 Assault Occasioning ABH

Prosecution must prove beyond a reasonable doubt:

D committed assault/Battery + it caused ABH

Actus Reus

AR of Assault or AR of Battery + Causing ABH

Mens Rea

MR of assault or battery

s.47 – actus reus

AR for assault or battery must be established.
Assault: D caused V to apprehend immediate & unlawful force
Battery: D applied unlawful force to V.
D’s assault/battery caused ABH
Result crime: Causation rules apply.
D’s conduct must be the factual and legal cause of ABH.
No break in the chain of causation: Roberts (1972)

S.47 AR: What is abh?

Question of fact for the jury to decide if D caused ABH.

Chan Fook (1994): Ordinarily, trial judge should not elaborate.

An injury not so trivial as to be wholly insignificant.

Donovan (1934): An injury calculated to interfere with the health or comfort of V.

Must be more than transient and trifling.

Cutting of hair? Smith (2006)

May include Recognised Psychiatric illness, supported by medical evidence.

>> Excluding fear, panic, or emotional distress

Ireland & Burstow (1998) Dhaliwal (2006) Miller (1954)

S.47 – mens rea

MR requirements for S.47 = MR for Assault/Battery
Assault: Intention/recklessness as to causing apprehension of force
Battery: Intention/recklessness as to applying unlawful force
No need to show intention or recklessness as to causing harm

Savage & Parmenter (1991)

Part 4: WOUNDING

& INFLICTING GBH

Malicious Wounding & Inflicting GBH
Charged under s.20 Offences Against the Person Act 1861

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 guilty…

Either-way offences (same as s.47)

Magistrate court: up to 6 months imprisonment and/or fine

Crown court: Jury trial; up 5 years imprisonment

Wounding & Inflicting GBH with Intent
Charged under s.18 Offences Against the Person Act 1861

Whosoever shall unlawfully and maliciously…wound or cause any grievous bodily harm…with intent to do some GBH or to resist or prevent the lawful apprehension of any person… shall be liable to be kept in penal servitude for life.

Indictable offences:

Jury trial in Crown court

Punishable by Maximum life imprisonment

ELEMENTS

Prosecution to prove beyond a reasonable doubt:

S.20 - Malicious Wounding & Inflicting GBH

AR: D caused wound or GBH

MR: D’s Intent/recklessness as to causing some harm

S.18 - Wounding & Inflicting GBH with Intent

AR: D caused wound or GBH

MR: D’s intent to cause GBH or to Prevent lawful arrest

ss.18 & 20 – actus reus \n D’s conduct caused wound or GBH

Act, Omission (only if duty to act exists)
Result Crime: Rules of causation apply (factual & legal)
Wounding: Break in both layers of skin
Grievous means ‘really serious’: Smith (1960)
Jury may take into account V’s characteristics: Bollom (2004)
Transmission of serious disease: Golding (2014) Dica (2004)
Serious psychiatric harm: Ireland & Burstow (1998)
Excludes Lawful conduct: e.g. self-defence, lawful arrest, CONSENT?

S.20 – mens rea \n D’s Intention/recklessness as to causing some harm

D intends to cause some harm
NO requirement for specific intent to cause wound or GBH (🡪 s.18)
D is reckless as to causing some harm
D personally foresaw that some harm might occur,

and took the risk unjustifiably.

Savage & Parmenter (1991)

Konzani (2005)

S.18 – mens rea

Specific Intent offence

Wounding/inflicting GBH with intent to cause GBH
D intends to cause really serious harm
Wounding/inflicting GBH with intent to prevent lawful apprehension
D intends to prevent lawful apprehension

And D foresaw the risk of some harm

Summary of oap

Wounding or Inflicting GBH with Intent (s.18 OAPA)

Wounding or Inflicting GBH (s.20 OAPA)

Assault Occasioning ABH (s.47 OAPA)

Assault & Battery (s.39 CJA)

Part 5: REFORM

Reforming oapa 1861

Need to modernise:

Offences are not clearly classified in order of seriousness

“Each of the non-fatal offences against the person is, to varying degrees, confusing and uncertain. ….In relation to each other, they are incoherent and fail to represent a hierarchy of seriousness.”

Clarkson & Keating, Codification: OAP under the draft Criminal Code (1986)

Need to modernise: Archaic and obscure language

Lord Mustill in Mandair (1994):

“this unsatisfactory statute is long overdue for repeal and replacement by legislation which is soundly based in logic and expressed in language which everyone can understand.”

M Jefferson, Criminal Law, 2007:

“judges find difficulty in fitting modern methods into the 1861 statute… it is possible to substitute all the terms [and] produce an authoritative modern version of the crimes which gets rid of all the difficult and case-encrusted phraseology.”

Irrelevant offences
s.26: ‘Not providing apprentices or servants with food’
Classification of harm: Actual, Grievous, Wounding
Meaning of bodily harm: Psychiatric and biological injury
Punishment : s.47 and s.20

Recodification

Home Office:

Consultation and draft Bill (1998)

Law Commission:

Reform of Offences against the Person (2015)

http://www.lawcom.gov.uk/project/offences-against-the-person/