Assaults Flashcards
Hierarchy of assaults
Least serious to most serious
Assault
Battery
Assault occasioning bodily harm
Maliciously wounding or inflicting bodily harm
Wounding or causing grievous bodily harm with intent
What are the two types of common assault and the main difference between them?
There are two assaults that derive from the common law, namely:
* simple assault – also known as ‘technical’ assault; and
* battery – which may be referred to as ‘physical’ assault.
These two offences are collectively known as common assault and the main difference between them is that, for the offence of simple assault, the accused need not make any physical contact with the victim at all.
Simple assault
Simple assault occurs where the assailant intentionally or recklessly causes the victim to apprehend immediate and unlawful personal force. No need to touch the victim at all
Simple assault: actus reus
- It should be unlawful
- Requires the victim to apprehend unlawful force or violence
- Assaults by words or silence:
- Immediacy
- Conditional threats
Simple assault: Mens rea
For the mens rea, the prosecution must establish that the defendant intended to cause the victim to apprehend immediate and unlawful personal force, or was reckless as to whether such apprehension is caused.
The test for recklessness is subjective and so the defendant must personally foresee the risk and go on to take it
Battery: Actus reus
For the offence of battery, the actus reus is the infliction of unlawful personal force by the accused upon the victim. However, force may be applied in a variety of ways.
(a) By direct bodily contact between two people including pushing, prodding or hitting. This can be with, or without, a weapon such as a knife or a stick.
(b) The application of force may not involve direct contact and may include where the defendant throws an object or spits at a victim, or even purposely cycles over their foot.
(c) A defendant who sets their dog on the victim or who deliberately places an obstacle behind a door so that the victim trips over it are examples of the indirect application of force.
Battery: Mens rea
The mens rea of battery is intention or recklessness in relation to the infliction of unlawful force on another person. As with simple assault, the subjective standard of recklessness applies. However, for the prosecution to succeed in convicting the accused of battery, the defendant must have intended or foreseen the actual infliction of force, not just the victim’s apprehension of this. Furthermore, there is no need to show intent or recklessness as to causing any injury.
Assault occasioning actual bodily harm: Actus reus
Actus reus: The actus reus is that the defendant commits a simple assault or battery that causes (occasions) actual bodily harm. In other words, it is a common law assault with the added ‘extra’ of injury
Assault or battery: A s 47 assault is an aggravated form of common assault as it requires proof, not only that an assault or a battery has been committed, but also that harm has been caused to the victim. Because of this, it is a more serious crime
Occasioning: The second element of the actus reus is that the assault or battery causes harm and the usual rules on causation (factual and legal).
Actual bodily harm: Although the wording of s 47 makes it clear that the assault or battery must cause harm, there is no further guidance in the statute as to how serious the injury must be to satisfy this offence. Fortunately, case law provides some assistance.
Mental harm: The question of whether harm could include psychiatric injury was considered in the combined appeals of Ireland and Burstow.
Assault occasioning actual bodily harm: Mens rea
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.
The effect of this ruling is that all the prosecution have to prove is that the accused (for example) hit the victim deliberately and, provided injury is caused of sufficient gravity, they will be guilty of a s 47 assault
Wounding or inflicting grievous bodily harm: Actus reus
The actus reus is that the defendant unlawfully wounds or unlawfully inflicts grievous bodily harm on the victim.
Grievous bodily harm is defined in the case of DPP v Smith [1961] AC 290 as ‘really serious harm’
Wounding: Wounding is rather different. It is defined as the breaking of both layers of the skin resulting in bleeding – Moriarty v Brookes (1834) 6 C&P 684. Because there is no reference to the wound being serious, rather oddly, a minor cut would be sufficient.
Wounding or inflicting grievous bodily harm: Mens rea
The mens rea of s 18 may also be satisfied in two distinct ways:
(a) with intent to cause grievous bodily harm; or
(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.
Intention to cause grievous bodily harm
Intention to resist or prevent arrest: The alternative mens rea applies where the defendant intended to resist or prevent the lawful apprehension of any person. In simple terms, the accused intended to resist or prevent an arrest. However, this is only one of the requirements and the other element needed to satisfy this mens rea is that the defendant intended or foresaw that some harm would be caused.
Wounding or inflicting grievous bodily harm with intent:
Actus reus
The actus reus of this offence is unlawfully wounding or causing grievous bodily harm to a person. This is almost identical to the definition of s 20 with the only difference being the use of the word ‘cause’ rather than ‘inflict’. However, case law has established that these terms are interchangeable.
As a consequence, there are two ways in which a defendant may commit the actus reus of a s 18 offence, either:
(a) by wounding or
(b) by causing grievous bodily harm.
Wounding or inflicting grievous bodily harm with intent: Mens rea
The mens rea of s 18 may also be satisfied in two distinct ways:
(a) with intent to cause grievous bodily harm; or
(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.
Intention to cause grievous bodily harm: 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; and nor will recklessness.
When deciding whether to charge a defendant with a s 18 offence, there are practical difficulties for the prosecution to overcome in establishing the mens rea as the threshold is so high. Evidence of clear planning, the use of a weapon, or repeated punching or stamping would all suggest an intention to cause grievous bodily harm but each case will turn on its facts.
Intention to resist or prevent arrest: Thus, the only time a defendant who is reckless as to causing some bodily harm or worse may be successfully prosecuted for a s 18 assault is if the prosecution can also prove the ulterior intent, namely an intention to resist or prevent arrest of any person
Consent as a defence: simple assault
Consent as a defence: The statutory assaults
The general rule: The general rule is that consent is not available as a defence to any assault where harm is intended or caused.
Exceptions: In these situations, the defendant must be acquitted.
* Surgery, as otherwise, operations and other essential medical examinations and procedures could not be carried out lawfully and doctors would be at constant risk of being prosecuted.
* Dangerous exhibitions (such as circus acts).
* Sport provided it is properly conducted; whilst it is accepted that, in highly competitive sport, conduct outside the rules might be expected to occur in the heat of the moment, consent will not defend all behaviour in a sporting environment.
* Ear-piercing and tattooing.
Limits to the exceptions: Deciding what harm individuals may consent to is a question that has come before the courts on many occasions. Public policy is the determining factor and this underpins the recognised exceptions, although some are easier to justify than others.
- sado-masochism and
- body modifications (such as nipple removal and the division of a victim’s tongue) are not exceptions.
Valid consent: The law does not provide any detailed guidance on this issue and deciding whether the consent is valid will be a question of fact in each case. However, the present position is that:
* Consent is only valid if it is freely given by a fully informed and competent adult.
* Consent is not valid if it is obtained by fraud as to the identity of the defendant or fraud as to the nature and quality of the act.
