3 - Non-Fatal Offences (Assaults)

Question 1

What is the hierarchy of assaults? - INC OVERVIEW TABLE.

Answer 1

In order of severity, beginning with the least serious, the offences are:

1. Assult
2. Battery
3. Assult occasioning actual bodily harm (ABH)
4. Maliciously wounding or inflicting grievous bodily harm
5. Wounding or causing grievous bodily harm with intent.

Assault is a common law offence.

Question 2

What is the classification and maximum sentence for each non-fatal offence?

Answer 2

In order of hierarchy:

1. Assault
   Classification: Summary only.
   Maximum sentence: 6 months imprisonment and/or fine.
2. Battery
   Classification: Summary only.
   Maximum sentence: 6 months imprisonment and/or a fine.
3. Assult occasioning actual bodily harm (ABH)
   Classification: Either-way
   Maximum sentence: 5 years’ imprisonment.
4. Maliciously wounding or inflicting grievous bodily harm
   Classification: Either-way.
   Maximum sentence: 5 years’ imprisonment.
5. Wounding or causing grievous bodily harm with intent.
   Classification: Indictable only.
   Maximum sentence: Life imprisonment.

Summary only means that the offence can only be dealt with in the magistrates’ court.
Either way offences may be tried in either the magistrates’ court or the Crown Court.
Indictable only offences are the most serious and must be heard in the Crown Court.

Question 3

What are the two types of common law assaults, and how do they differ?

Answer 3

The two types of common law assaults are:
- Simple assault (also known as ‘technical’ assault)
- Battery (sometimes called ‘physical’ assault)

Key difference: For simple assault, there is no need for physical contact with the victim, while battery involves the infliction of unlawful personal force.

In practice, assault and battery often occur together (e.g., raising a fist in threat before hitting the victim).

Statutory reference: These are summary-only offences triable in the magistrates’ court.

Question 4

What constitutes a simple assault under common law?

Answer 4

Simple assault occurs when the defendant intentionally or recklessly causes the victim to apprehend immediate and unlawful personal force.

There is no need for actual contact with the victim. If contact is made, it would be battery.

Example: Rhys is an angry person. He threatens someone by raising his arm to strike or sending a threatening message. Even without physical contact, the victim’s apprehension of force is enough to constitute simple assault.

Question 5

What is the actus reus of simple assault?

Answer 5

The actus reus is causing the victim to apprehend immediate and unlawful personal force.

This can be done by actions, words, or even silence.

Example: Rhys points a gun at someone or sends a message stating “u r dead.” The victim’s apprehension of force, even if no physical harm occurs, is sufficient for assault.

Question 6

Can words or silence amount to an assault?

Answer 6

• Yes, words alone can amount to an assault.
• A silent telephone call can also constitute an assault depending on the circumstances.
• The key factor is whether the victim apprehends immediate and unlawful force.

Example: Repeated silent phone calls that cause distress can be considered an assault if the victim apprehends potential harm.

Question 7

What is the requirement of ‘immediacy’ in simple assault?

Answer 7

• For simple assault, the victim must apprehend that the unlawful personal force could occur immediately.
• A threat of future violence, like “I’ll hit you next week,” does not satisfy this requirement.
• However, modern technology (e.g., mobile phones) can create immediacy if the defendant could strike at any moment.
• Conditional threats (e.g., “If you don’t shut up, I’ll slap you”) can also count as long as the threat creates immediate apprehension.

Question 8

What is the mens rea of simple assault?

Answer 8

The mens rea requires that the defendant either:
- Intended to cause the victim to apprehend immediate and unlawful personal force, or
- Was reckless as to whether such apprehension would occur.

The test for recklessness is subjective, meaning the defendant must personally foresee the risk of causing the apprehension and proceed anyway.

Example: Brendan, of low intelligence, fires an air rifle near his cousin. He is liable for assault if he personally foresaw the risk of causing her to apprehend unlawful force.

Question 9

What is the distinction between simple assault and battery in terms of the force involved?

Answer 9

Simple assault involves causing the victim to apprehend immediate and unlawful personal force, without any physical contact.

Battery (or physical assault) involves the infliction of that force. Any unlawful touching may suffice for battery.

Question 10

What is the actus reus of battery?

Answer 10

The actus reus of battery is the infliction of unlawful personal force on the victim.

Force can be applied in various ways:
- Direct bodily contact (e.g., pushing, hitting, or using a weapon like a knife or stick).
- Indirect force (e.g., throwing an object, spitting, setting a dog on the victim, or creating a trap that causes the victim to trip).

Even the slightest touching will satisfy the actus reus of battery, and there is no need to prove any harm to the victim.

Question 11

What is the mens rea of battery?

Answer 11

The mens rea of battery is the intention or recklessness in relation to the infliction of unlawful force on another person.

The defendant must have intended or foreseen the actual infliction of force.

There is no need to show intent or recklessness in causing any injury, only the application of force itself.

Question 12

How do assault and battery typically occur together in practice, and when do they not?

Answer 12

Assault and battery usually occur together, where the victim believes they are about to be hit (assault), and then they are actually hit (battery).

However, battery can occur alone, for example, when the defendant approaches the victim from behind and hits them without the victim’s awareness, meaning there is no assault, only battery.

Question 13

Can a conditional threat amount to simple assault?

Answer 13

A conditional threat may not amount to simple assault if the victim does not apprehend immediate unlawful violence.

Example: Craig tells Fay that he threatens to break every bone in Tilly’s body if she continues to see Fay. This is a conditional threat, and because it is not immediate, Craig is not guilty of simple assault.

Question 14

What happens when the defendant actually inflicts force on the victim after making a threat

Answer 14

If the defendant inflicts unlawful force on the victim, this constitutes battery.

Example: Craig, after making a threat, punches Tilly in the face. This action amounts to battery because unlawful force has been inflicted on her.

Question 15

What is the statutory basis for Assault Occasioning Actual Bodily Harm (OAPA 1861, s 47)?

Answer 15

The offence is defined under s 47 of the OAPA 1861 and creates the offence of assault occasioning actual bodily harm.

It is classified as an either-way offence, meaning it can be tried in either the magistrates’ or Crown Court.

A conviction for this offence can lead to imprisonment for a term not exceeding five years.

Question 16

What is the actus reus of Assault Occasioning Actual Bodily Harm?

Answer 16

The actus reus consists of committing a simple assault or battery that causes actual bodily harm to the victim.

This means it is an aggravated form of common assault as it requires proof that both an assault or battery has been committed and that harm has been caused to the victim.

The second element of the actus reus is that the assault or battery must cause harm, and the usual rules on causation (factual and legal) will apply.

Question 17

How is “actual bodily harm” defined under s 47?

Answer 17

“Actual bodily harm” refers to any hurt or injury that is calculated to interfere with the health or comfort of the victim, as established in the case R v Miller [1954] 2 QB 282.

The injury does not need to be serious or permanent, but it must be more than transient or trifling in nature.

Each case will be decided based on its facts, and even a bruise or swelling may suffice, depending upon the severity.

Examples of actual bodily harm include:
- A split lip
- Stabbing that requires three stitches
- Significant bruising to the victim’s face
- Kicking the victim’s leg causing swelling to the knee
- Cutting a substantial piece of the victim’s hair
- Causing a temporary loss of consciousness

Minor injuries, such as a very small bruise, minor scratch, or a red mark on the skin from a slap that quickly fades, do not constitute actual bodily harm.

Question 18

Can psychiatric injury be considered actual bodily harm under s 47?

Answer 18

Yes, the question of whether harm could include psychiatric injury was considered in the combined appeals of Ireland and Burstow.

The judges confirmed that it could, with the severity of the psychological harm determining the statutory assault for which the defendant is liable.

To establish a more serious assault, medical evidence will be required, almost certainly from a psychiatrist.

The psychiatric condition must be a **recognisable clinical condition **(e.g., anxiety neurosis, reactive depression) to qualify, while strong emotions such as rage, extreme fear, or distress, and panic attacks do not meet the threshold.

Question 19

What is the mens rea required for Assault Occasioning Actual Bodily Harm?

Answer 19

The mens rea is that the defendant must intend or be reckless as to a simple assault or battery only.

Specifically, there is no need to show the defendant intended additionally to cause actual bodily harm.

This principle was confirmed by the case of R v Savage; R v Parmenter [1991] 1 AC 699, where the defendant intended to throw a pint of beer over the victim, but a piece of glass from the broken glass cut the victim’s wrist. Despite the lack of desire to cause harm, she was convicted of the offence.

Question 20

What is the relationship between the mens rea of simple assault and that of s 47 Assault Occasioning Actual Bodily Harm?

Answer 20

There is no difference in the mens rea required for simple assault or battery and that for s 47 of the OAPA 1861.

The only distinction lies in the actus reus—for s 47, some bodily harm must be caused.

Question 21

What must be established for a defendant to be criminally liable for Assault Occasioning Actual Bodily Harm under s 47?

Answer 21

To be criminally liable for a s 47 assault, the defendant must cause some harm (actual bodily harm), but it is crucial to note that they do not need to intend or foresee the specific injury suffered, or indeed any injury at all.

They need only intend or be reckless as to the assault or battery itself, meaning that as long as injury of sufficient gravity is caused, the defendant will be guilty of a s 47 assault.

Question 22

What is the statutory basis for maliciously Wounding or Inflicting Grievous Bodily Harm under OAPA 1861, s 20?

Answer 22

Section 20 of the OAPA 1861 creates the offences of inflicting grievous bodily harm or wounding.

The statute states: “Whoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person… shall be liable… to imprisonment for a term not exceeding five years.”

It is an either-way offence, meaning it can be tried in either the magistrates’ or Crown Court.

Despite being a more serious offence than s 47 (which involves actual bodily harm), it carries the same maximum penalty of five years’ imprisonment.

Question 23

What constitutes the actus reus for Wounding or Inflicting Grievous Bodily Harm under s 20?

Answer 23

The actus reus involves the defendant unlawfully wounding or unlawfully inflicting grievous bodily harm on the victim.

Grievous bodily harm is defined as ‘really serious harm’ (DPP v Smith [1961] AC 290), meaning the term should be given its ordinary and natural meaning.

The jury considers the effect of the injuries on the victim, including their age and health.

Examples of grievous bodily harm include:
- A fractured skull
- Severe internal injuries
- Broken limbs
- Disfigurement caused by acid being thrown on the victim
- Really serious psychiatric injury.

The statute uses “inflicted” rather than “caused,” but courts confirm they are equivalent in criminal law.

Question 24

How is wounding defined in the context of s 20?

Answer 24

Wounding is defined as the breaking of both layers of the skin, resulting in bleeding (Moriarty v Brookes (1834) 6 C&P 684).

Notably, there is no requirement for the wound to be serious, so even a minor cut suffices.

Examples of a wound include:
- A cut of any size or severity
- A scratch that draws blood
- A cut to the inside of the mouth.

However, it does not include:
- Bruising
- Internal bleeding
- Rupture of blood vessels in the eye.

Differentiating injury types is essential for establishing the appropriate offence.

Question 25

What is the mens rea required for Wounding or Inflicting Grievous Bodily Harm under s 20?

Answer 25

The mens rea is to ‘maliciously’ wound or inflict grievous bodily harm.
The term “maliciously” has a modern interpretation meaning either intention or recklessness.

The defendant must intend or foresee causing some bodily harm (actual bodily harm) but does not need to intend or foresee grievous bodily harm or the specific nature of the injury that occurs.

The House of Lords (R v Savage; R v Parmenter) clarified that the defendant need only foresee a risk that some physical harm will result, not the precise injury or its severity.

Question 26

What is a summary of the elements required for a s 20 assault (malicious GBH)?

Answer 26

For a s 20 assault, the actus reus requires a wound or grievous bodily harm, while the mens rea requires intention or recklessness regarding some bodily harm.

There is an inconsistency in that the smallest cut (e.g., pricking a finger with a pin that draws blood) satisfies the actus reus, but a really serious harm is required for liability.

The level of harm anticipated by the accused is lower, focusing on actual rather than grievous bodily harm

Question 27

How does the practical application of s 20 assault depend on the defendant’s mindset during the assault?

Answer 27

The defendant’s liability for a s 20 offence largely hinges on their mindset at the time of the assault.

For example, if a defendant admits they did not intend to hurt the victim badly but acknowledged the possibility of harm, they may still be liable for a s 20 assault due to recklessness.

The prosecution needs to establish the defendant’s intention or recklessness regarding causing some physical harm or injury, which is a vital element of the mens rea for s 20.

In contrast, if the defendant claims they did not foresee any risk of harm, this could negate the mens rea for s 20 but may allow for a charge under s 47.

Question 28

What is the definition and penalty for wounding or causing grievous bodily harm with intent under s 18 of the OAPA 1861?

Answer 28

The most serious assault is to be found in s 18 of the OAPA 1861.

It states: Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person with intent to do some grievous bodily harm to any person or with intent to resist arrest or prevent the lawful apprehension or detainer of any person, shall be guilty of an offence.

This offence is indictable only and must be sent to the Crown Court for trial, with a maximum sentence of life imprisonment.

Question 29

What is the actus reus required for a s 18 GBH with intent offence?

Answer 29

The actus reus of this offence is unlawfully wounding or causing grievous bodily harm to a person.

This definition is almost identical to that of s 20, with the only difference being the use of the word “cause” rather than “inflict.”

Case law has established that “cause” and “inflict” are interchangeable.

There are two ways to commit the actus reus of a s 18 offence:
(a) By wounding
(b) By causing grievous bodily harm

Question 30

What are the two ways to satisfy the mens rea for a s 18 offence?

Answer 30

The mens rea of s 18 may be satisfied in two distinct ways:
(a) With intent to cause grievous bodily harm.
(b) With intent to resist or prevent the lawful apprehension or detention of any person, coupled with the intention or recklessness as to causing some bodily harm.

Question 31

How is the intention to cause grievous bodily harm with intent assessed in practice?

Answer 31

In most prosecutions for s 18 assault, the defendant will be charged on the basis that they intended to cause grievous bodily harm.

It is important to note that an intention to cause lesser harm or a wound will not suffice; nor will recklessness.

Example: If Valerie lunges at Samrita with a kitchen knife causing a deep cut to her face, and admits her aim was to scar Samrita permanently, she has the (direct) intent to cause grievous bodily harm and satisfies the mens rea for s 18.

Conversely, if Valerie states her aim was only to cut Samrita in a very minor way, she has an intention to wound, but this is insufficient for a s 18 assault.

Question 32

Under what circumstances can a defendant be prosecuted for a s 18 assault regarding resisting arrest?

Answer 32

The alternative mens rea applies where the defendant intended to resist or prevent the lawful apprehension of any person.

This means the accused intended to resist or prevent an arrest, which is only one of the requirements; the other element needed is that the defendant intended or foresaw that some harm would be caused.

Example: If PC Gore is called to attend a fight and tells Tracey he is arresting her for a public order offence, and in a panic she lashes out at him, causing a deep scratch to his face, she satisfies the actus reus of a s 18 assault.

However, Tracey did not intend grievous bodily harm as her intention was to escape; she did have the intention to resist arrest and was reckless as to causing bodily harm.

Question 33

What are the four ways of committing a s 18 GBH with intent assault?

Answer 33

The effect of the wording of s 18 is that there are four different ways of committing this most serious of assaults:

1. Ordinary Victim:
   AR: Wound;
   MR: Intention to cause grievous bodily harm.
2. Ordinary Victim:
   AR: Grievous bodily harm;
   MR: Intention to cause grievous bodily harm.
3. Police Officer Victim:
   AR: Wound;
   MR: Intention to resist/prevent arrest and intention or recklessness as to causing actual bodily harm.
4. Police Officer Victim:
   AR: Grievous bodily harm;
   MR: Intention to resist/prevent arrest and intention or recklessness as to causing actual bodily harm.

Note that while categorised into ‘ordinary’ victims and ‘police officers’ as victims, this is an oversimplification.

Question 34

What is the summary of the differences between s 18 and s 20 assaults?

Answer 34

Unlawfully wounding or causing grievous bodily harm with intent is a statutory offence under s 18 of the OAPA 1861.

The only difference to s 20 lies in the mens rea as both require a wound or grievous bodily harm for the actus reus.

The mens rea for s 20 is ‘maliciously’ intending or recklessness as to actual bodily harm, while for s 18 it is:
- Intention to cause grievous bodily harm, or
- An intention to resist/prevent arrest, coupled with intention or recklessness as to causing some bodily harm.

Question 35

Provide a summary of the actus reus and mens rea of assaults.

Answer 35

Simple assault – s 39 CJA 1988 and common law
Actus Reus: Acts or words that cause the victim to apprehend immediate and unlawful personal force.
Mens Rea: Intention or recklessness as to causing the victim to apprehend immediate and unlawful personal force.

Battery (physical assault) – s 39 CJA 1988 and common law
Actus Reus: Infliction of unlawful personal force upon the victim.
Mens Rea: Intention or recklessness as to the infliction of unlawful personal force.

s 47 OAPA 1861 - ABH
Actus Reus: Simple or physical assault causing actual bodily harm (which can include psychiatric harm).
Mens Rea: Intention or recklessness as to the simple or physical assault (no need for the defendant to have intended or foreseen the actual bodily harm).

s 20 OAPA 1861 - Malicious GBH
Actus Reus: To wound or inflict grievous bodily harm (which can include really serious psychiatric harm).
Mens Rea: ‘Maliciously’ ie intention or recklessness as to actual bodily harm.

s 18 OAPA 1861 - GBH with intent
Actus Reus: Wound or cause grievous bodily harm (as for s 20).
Mens Rea: Intention to cause grievous bodily harm or ‘Maliciously’ ie intention or recklessness as to actual bodily harm plus an intent to resist/prevent arrest.

Question 36

What role does consent play as a defence in criminal law, particularly in relation to assault?

Answer 36

Consent (or lack thereof) is crucial in the prosecution proving the offence.

It is usually raised by the defence to persuade the court that the accused should not be found guilty of the assault charged.

Question 37

How does consent apply to simple assault and battery?

Answer 37

• Consent can amount to a defence for simple assault or battery.
• This approach is based on common sense in a modern society where people frequently interact.
• It would be nonsensical for every touch to involve criminal law, making social interactions like shaking hands or greeting with a kiss challenging.
• The law states that people impliedly consent to the inevitable physical contact occurring in everyday life.

Question 38

How does consent relate to statutory assaults under the law?

Answer 38

The general rule is that consent is not a defence to any assault where harm is intended or caused.

In Attorney General’s Reference (No. 6 of 1980), consent was not a defence to a charge under s 47 of the OAPA 1861 for actual bodily harm because “it is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason” – Lord Lane CJ.

Several exceptions to this rule exist, which have been subject to judicial scrutiny.

Question 39

What are the established exceptions where consent is a valid defence to assault causing harm?

Answer 39

Valid exceptions include:
- Surgery: Essential medical procedures must be lawful.
- Dangerous exhibitions: Such as circus acts.
- Sport: Properly conducted sports allow for some consent.
- Ear-piercing and tattooing: Accepted forms of body modification.
- Sexual gratification/accidential infliction of harm.

The controversial exception of ‘rough and ill-disciplined behaviour’ (horseplay) is also recognised, acknowledging that some youthful behaviour is part of growing up.

Question 40

Summary of Consent as a Defence

Answer 40

Consent is a defence for:
Simple assault and battery (✔️)

Consent is not a defence for:
Sections 18, 20, and 47 of the OAPA 1861 (✖️), unless it falls within one of the recognised exceptions.

Question 41

What are the limits to the exceptions regarding consent in criminal law?

Answer 41

Public policy is the determining factor for recognised exceptions, but some are more easily justified than others.

Behaviour previously classified as horseplay may now be viewed as bullying.

Tattoos and piercings are not harmful but also not beneficial to society, complicating the legal standing.

Judges have ruled that:
- Sado-masochism and body modifications (like nipple removal) are not exceptions to the defence of consent.

Question 42

What constitutes valid consent in the context of assault?

Answer 42

Consent must be: Freely given by a fully informed and competent adult.

Consent is invalid if: Obtained by fraud regarding the defendant’s identity or the nature/quality of the act.

There are two elements to consent, whether the:
- Either the victim consented, or the defendant believed the victim consented.
- The offence is one which a victim can consent to.

It is for the prosecution to prove both that the victim did not consent and that the defendant did not believe in the victim’s consent. So, if the defendant wrongly believed the victim consented, the defence could be available. Equally if the victim consented, even if the defendant did not know this, the defence could be available. Whether the defence of consent is available will depend on the level of harm inflicted on the victim and the circumstance in which the harm was inflicted.

Examples of invalid consent:
- Zara (with learning difficulties) believes ink will wash off, so her consent for tattooing is invalid.
- Harriet consents to a breast examination, thinking the unqualified Clarence is a doctor; her consent is invalid as she is deceived about the quality of the act.

Question 43

What is the importance of informed consent in non-fatal offences?

Answer 43

Consent must be informed; for instance, a victim who has sexual intercourse with someone unaware of their HIV positive status has not given informed consent.

There is a critical distinction between taking risks in sexual intercourse and giving informed consent to potentially fatal conditions.

Question 44

What are the key principles regarding consent as a defence in criminal law?

Answer 44

• Consent must be valid.
• Consent is implied for simple or physical assault if no harm is intended or caused.
• Consent is not a defence for assaults under ss 47, 20, or 18 of the OAPA 1861 unless the behaviour is one of the recognised exceptions.