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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
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
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)).