Assault and Battery

Assault and BatteryModule 3 Criminal LawWhat is an assualt?In Fagan v MPC [1969] 1 QB 439, the court said that an assault is any act which is the intentional or reckless application of unlawful force to the body of another person.

What is an assualt?Fagan v MPC:'Although "assault" is an independent crime and is to be treated as such, for practical purposes today "assault" is generally synonymous with the term "battery", and is a term used to mean the actual intended use of unlawful force to another person without his consent.'

Assault at StatuteSections 34- 43 of the Offences Against the Person Act (OAPA) provide some of the categories of assaults which exist in our jurisdiction. They range from assault of a clergyman in the performance of his duty (S. 34), assault of a magistrate (S.35), assault in the commission of a felony or on a constable (S.36) to aggravated assaults on women and children (s.40).

Assault at StatuteSection 39 of the OAPA provides that where any person shall unlawfully assault or beat any other person, two Justices, upon complaint by or on behalf of the party aggrieved, may hear and determine such offence, and the offender shall, upon summary conviction, be liable to imprisonment with or without hard labour, for a term not exceeding two months, or else shall forfeit and pay such fine not exceeding, together with costs (if ordered) the sum of one thousand dollars; and if such fine as shall be so awarded, together with the costs, if ordered, shall not be paid either immediately after conviction, or within such period as shall at the time of the conviction be appointed, the offender may be committed to imprisonment with or without hard labour, for a term not exceeding two months unless such fine and costs be sooner paid.

Actus Reus of AssaultThe actus reus of assault is any act which causes the victim to apprehend an immediate infliction of violence, e.g. raising a fist or pointing a gun.

APPREHENSION OF VIOLENCE

There is no need for any physical contact between the defendant and the victim. The emphasis is on what the victim thought was about to happen. So even if the defendant meant his threat as a joke, an assault is nevertheless committed if the victim is sufficiently frightened.APPREHENSION OF VIOLENCE

Logdon v DPP [1976] Crim LR 121The defendant, as a joke, pointed a gun at the victim who was terrified until she was told that it was in fact a replica. The court held that the victim had apprehended immediate physical violence, and the defendant had been at least reckless as to whether this would occur. His action constituted an assault.IMMEDIACY

The requirement of immediacy in the crime of assault is generally understood to mean that the victim must perceive the threat as one which can be carried out "there and then" by the defendant. The courts have on occasion however, given a somewhat liberal interpretation to the concept of immediacy in assault.IMMEDIACY

Smith v Superintendent of Woking Police Station [1983] Crim LR 323The defendant had terrified a woman occupying a ground floor flat by staring in through the windows at her. The Divisional Court was satisfied that even though the defendant was outside the building there was evidence to suggest that the victim was terrified by the prospect of some immediate violence. It was not necessary for the prosecution to establish precisely what the victim feared would happen; a general apprehension of violence was sufficient.

CAN MERE WORDS CONSTITUTE AN ASSAULT?

The case of R v Meade and Belt (1823) 1 Lew CC 184, where The defendants surrounded the victim's house singing threatening and menacing songs.

Held:

No assault was committed.Holyroyd J stated that "no words or singing are equivalent to an assault", is often cited as authority for the proposition that words alone, unaccompanied by physical gestures, cannot amount to an assault.

CAN MERE WORDS CONSTITUTE AN ASSAULT?

It is clear that words will not constitute an assault if they are phrased in such a way that negatives any threat that the defendant is making. See:Tuberville v Savage (1669) 2 Keb 545The defendant placed his hand on his sword hilt and told the victim, "If it were not assize-time, I would not take such language from you." This was held not to be an assault. The words accompanying the action (of placing the hand on the sword) clearly demonstrated that because the assize judge was in town, the defendant was not going to use his sword. There could thus be no apprehension of immediate force.

CAN MERE WORDS CONSTITUTE AN ASSAULT?

Compare Tuberville with R v Light 1857There D was held to be guilty of an assault for raising a sword over his wifes head and saying, were it not for the bloody policeman outside, I would split your head open.

Mens Rea of AssualtThe defendant must intentionally or recklessly cause his victim to apprehend the infliction of immediate force. Recap CunninghamThe Court laid down two (2) essential elements to determine recklessness; relying on an earlier principle of the law:The accused must have demonstrated an actual intention to do the particular kind of harm that in fact was done.The accused demonstrated recklessness as whether such harm should occur or not (that is, the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).

Mens Rea of AssualtThe subjective Cunningham test of recklessness applies here, in that the defendant had to be aware of the risk of causing another person to apprehend harm.

See case of R v VennaActus Reus of BatteryA battery is the infliction of unlawful force by one person upon another. The least touching of another will suffice: Cole v Turner (1705) 6 Mod 149HostilityIn Wilson v Pringle [1986] 2 All ER 440, the Court of Appeal (Civil Division) held that for a battery the "touching must be proved to be a hostile touching".

Actus Reus of BatteryIt is therefore Battery where D, hearing A approach, lets fly a trap door causing A to fall into a Dungeon, but it is not battery where D stands in a narrow path blocking As movement and, in diverting, A falls and breaks her wrist. In the second example it is clear that D is acting unlawfully, but there is no violence per se. Smith and Hogan (Criminal Law, 10th ed. p.415).Actus Reus of BatterySmith and Hogan (Criminal Law, 10th ed. P. 415) points out that It used to be said that every battery involves an assault; but this is plainly not so, for in battery there need be no apprehension of the impending violence.Actus Reus of BatteryThe act of violence itself is the essence of this offence. Mens Rea of BatteryIn R v Venna [1976] QB 421, James J stated "the element of mens rea in the offence of battery is satisfied by proof that the defendant intentionally or recklessly applied force to the person of another".Recklessness here bears its subjective Cunningham meaning.

Mens Rea of BatteryThe accused is not guilty of the offence if he does not foresee that he might occasion actual bodily harm. See R v Spratt

Mens Rea of BatteryR v SprattThe appellant fired an air pistol from his flat, hitting a young girl who was playing in the square below. He claimed to have been aiming at a rubbish chute and that he did not know anyone was there. His appeal against a conviction for assault occasioning actual bodily harm was successful, the Court holding that he would be guilty only if he foresaw the result, which occurred.

Assault Occasioning Actual Bodily Harm ACTUS REUSFor the actus reus of this offence to be complete there must be:(a) an assault, i.e. any act which causes the victim to apprehend an immediate infliction of violence or the actual infliction of violence (BATTERY)(b) occasioning (c) bodily harm.

Occasioning The word 'occasioning' can be taken to mean the same as 'causing', in that it must be shown that the defendant's actions have caused the bodily harm. The test that should be applied to determine whether the defendant was the cause, in law, of the victim's injury Occasioning This was explained in R v Roberts (1971) 56 Cr App R 95.The defendant gave a lift in his car, late at night to a girl. He made unwanted advances of a sexual nature to her which alarmed her. She feared he intended to rape her and as the car was moving, she opened the door and jumped out suffering grazing and concussion. The defendant was convicted under s47 of the U.K. OAPA and Stephenson LJ stated that the test for causation in law was to ask whether the result was the reasonably foreseeable consequence of what the defendant was saying or doing.

Actual Bodily HarmThe meaning of 'actual bodily harm' was explained by the Court of Appeal in:R v Chan-Fook [1994] 2 All ER 552

Actual Bodily HarmR v Chan-Fook [1994] 2 All ER 552The Court of Appeal held that 'harm' is a synonym for 'injury' (so that it would not be enough that the victim's health or comfort had been interfered with, if no injury had been caused), and that 'actual' indicates that the injury should not be so trivial as to be wholly insignificant.

Actual Bodily HarmR v Chan-Fook [1994] 2 All ER 552The Court also held that 'bodily harm' is not limited to harm to the skin, flesh and bones of the victim. It includes the organs, nervous system and brain. Accordingly, it can include psychiatric injury but it does not include mere emotions or states of mind which are not themselves evidence of an identifiable clinical condition.Telephone Calls Followed by SilenceThe House of Lords has upheld the decision of the Court of Appeal that a telephone call or a series of telephone calls, followed by silence, could constitute an assault causing actual bodily harmTelephone Calls Followed by SilenceR v Ireland [1997] 4 All ER 225.The defendant made repeated silent telephone calls, mostly at night, to three women, as a result of which they suffered psychiatric illness. He was charged with three counts of assault occasioning actual bodily harm under s47 of the 1861 Act.StalkingStalking may also amount to an assault occasioning actual bodily harm, where it causes a clinical illness (as opposed to simple anxiety and stress). StalkingR v Constanza [1997] Crim LR 576.The defendant was convicted of occasioning actual bodily harm. The victim was a female ex-colleague. Between October 1993 and June 1995 he followed her home from work, made numerous silent telephone calls, sent over 800 letters, repeatedly drove past her home, visited her against her expressed wishes, and on three occasions wrote offensive words on her front door. In June 1995 the victim received two further letters which she interpreted as clear threats. She believed that he had "flipped" and that he might do something to her at any time. In July she was diagnosed as suffering from clinical depression and anxiety. It was the doctor's view that the defendant's actions had caused this harm.Mens ReaLiability is established if the defendant has the mens rea of common assault (intention or recklessness). No mens rea at all is required as to causing actual bodily harm. All that need be proved is the causal link between the assault and the harm. Mens ReaR v Savage [1991] 4 All ER 698.The defendant was charged with unlawful wounding under s20, the prosecution having alleged that she had approached the victim and thrown the contents of a glass of beer at her, and that she had let go of the glass which broke, with the result that the victim suffered cuts. She admitted that it had been her intention to throw the beer over the victim but denied any intention to cut her with the glass. The defendant appealed successfully against her conviction under s20 of the U.K OAPA because of the trial judge's misdirection as to the mental element for that offence, but the court substituted a conviction for s47 of the U.K. OAPA, on the basis that the offence did not require proof of recklessness or 'maliciousness' in relation to the 'occasioning' of the actual bodily harm. The defendant had deliberately thrown beer over the victim, an act which was obviously an assault, and that 'assault' had undoubtedly occasioned the actual bodily harm which occurred.Mens ReaDPP v Parmenter [1991].The defendant had caused injury to his young baby by tossing him about in a way which would have been acceptable with an older child, but not with one so young. He did not realise that he might cause harm by this action. The House of Lords held that he could not be liable under s20 as he had not foreseen the risk of any harm. It was not necessary under s20 that he foresee the grievous bodily harm which must be caused, but the defendant must foresee that he might cause some harm. PenaltyPursuant to Section 43 of the OAPA whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable to be imprisoned for a term not exceeding three years, with or without hard labor; and whosoever shall be convicted upon an indictment for a common assault shall be liable, to be imprisoned for a term not exceeding one year, with or without hard labour.

ActivityPg 206Question 5Final End TestActivityBill and Archer are playing dominoes at Bills house and are arguing about politics and race. They differ greatly and the conversation soon becomes quite heated. Bill decides to quit the discussion but Archer persists. Annoyed that Archer will not quit, Bill goes upstairs and takes up his sons toy gun. He comes back downstairs , brandishes the toy gun at Archer and says Now this will keep you quiet. Archer is very upset at Bill for frightening me like that, even after he discovers that it was a toy gun. Bill apologises and agrees to pay all Archies medical expenses, but Archer insists on taking legal action.In no more than 250 words, give Archer your opinion on Bills criminal liability, if any.