NON-FATAL OFFENCES AGAINST THE PERSON

• In this topic we will consider liability for:

• Assault

• Battery

• Section 47

• Section 20

• Section 18

• When answering questions involving non-fatal offences against the person, which offence should one start with?

ASSAULT AND BATTERY

• Both are statutory offences (DPP v Little (1991)).

• The charge is one of assault or battery contrary to s.39 Criminal Justice Act 1988.

• The term “common assault” encompasses assault and battery (Lynsey (1995)).

Assault

• Definition of assault – any act by which D intentionally/recklessly causes V to apprehend immediate and unlawful personal violence.

• Does this rule out assault by omission, see Fagan v Metropolitan Police Commissioner (1969)?

• Words alone may constitute an assault (Constanza (1997).

• It is not a requirement of assault that V can see her assailant. Thus, an assault can be committed in the dark or over the telephone.

CONDITIONAL ASSAULTS

• Examples

• D says to V:

• (a) “I would hurt you if it wasn’t for…

• (b) “I will hurt you unless...”

• In example 1, the words used by D make clear that, for whatever reason, he won’t do anything to V. There is, therefore, no assault. This is illustrated by Tuberville v Savage (1669).

• In example 2, the words used show that D will hurt V unless V complies with the specified condition. D is, therefore, liable for an assault on V. This is illustrated by Read v Coker (1853).

How strictly is “immediate” interpreted?

• Immediate is interpreted quite flexibly, see Smith v Superintendent of Woking Police Station (1983) which adopted a broad view of immediate.

• Also see Constanza and Ireland & Burstow (1997) HL.

Battery

• Definition – any act by which D intentionally/recklessly inflicts unlawful personal violence.

Can contact with the clothes worn by a person

constitute a battery?

• Relevant caselaw:• Day (1845) - contact with the clothes

worn by a person can constitute a battery as the person of V includes the clothes on his back.

• Thomas (1985) - it is not necessary that V should be able to feel the impact through his clothes.

Can a battery involve indirect violence?

• Although most batteries are directly inflicted, e.g. D hitting V, it is not essential that the violence be direct. See, for example, Martin (1881) and DPP v K (1990).

Mens rea of assault and battery

• Both assault and battery can be committed intentionally or recklessly, see Venna (1978).

• Recklessness is subjective, see Spratt (1990).

ASSAULT OCCASIONING ACTUAL BODILY HARM –

S.47 OAPA 1861• Definition – Assault occasioning actual bodily

harm• Actus reus• Assault means assault or battery• For the meaning of occasioning, see Roberts

(1971).• For the meaning of actual bodily harm, see

Chan-Fook (1994).• Examples

• It is possible to commit the s.47 offence by one or more silent phone calls (Ireland & Burstow).

Mens rea of s.47

• Only the mens rea for assault or battery need be proven (Savage & Parmenter (1991) HL).

• It is not, therefore, necessary to prove D foresaw a.b.h. only that he intended or was subjectively reckless as to whether V apprehend or sustain unlawful personal violence.

S.20

• Definition – unlawful and malicious wounding or inflicting gbh

• 2 offences created by the section -

• unlawfully wounding

• unlawfully inflicting gbh

Wounding offence

• For what constitutes a wound, see JCC v Eisenhower (1984)).

Grievous bodily harm

• It is sufficient for the trial judge to direct the jury that gbh simply means “serious harm” (Saunders (1985)).

• Examples

Is s.20, which refers to "inflict gbh," narrower in scope than s.18 which

refers to "cause gbh"?

• In Ireland & Burstow, the court held that gbh can be inflicted where no personal violence has been applied directly or indirectly to the body of V - the application of physical force is not required.

• Thus, there does not appear to be any distinction between cause and inflict.

Mens rea

• The mens rea is “maliciously”.• This means intentionally or subjective

recklessness (Savage and Parmenter) as to some physical harm (Mowatt (1968)).

• Intention to frighten is not sufficient for s.20

• (Sullivan (1981)).

S.18

• Definition – unlawfully and maliciously wound or cause gbh with intent to do gbh.

• 2 offences created by the section – unlawfully wounding with intent and unlawfully causing gbh with intent

• Actus reus is same as for s.20 save that the word cause is used instead of inflict.

• Mens rea is intention only, recklessness will not suffice (Belfon (1976)).

• The test for intention is the same as for murder (Bryson (1985)).