C5: Non-fatal offences against the person

Question 1

Are assault and battery the same thing?

Answer 1

No, they are not. They often get scooped up together as ‘assault’.

Question 2

Are assault and battery common law offences or statutory offences?

Answer 2

They are common law offences (albeit with a problematic judgment which is probably wrong).

Question 3

What is the definition of battery?

Answer 3

Battery is the intentional or reckless infliction of unlawful personal violence upon the victim.

Question 4

What are the elements of battery?

Answer 4

The elements of the offence are as follows:

(- there was some conduct on the part of the defendant;) - although battery could be committed by omission, it is good to identify what the conduct is.
- the victim suffered unlawful personal violence;
- this was inflicted as a result of the defendant’s conduct; and
- the defendant intended or was reckless to causing the unlawful personal violence.

Question 5

Can battery be committed by omission?

Answer 5

Yes, it can. This hasn’t been confirmed, but academic opinion is that it can.

Question 6

In ‘suffered unlawful personal violence’, what does unlawful mean?

Answer 6

That no defence applies.

Question 7

Give an example of a charge to do with the police that is battery?

Answer 7

An unlawful arrest amounts to battery.

Question 8

Does everyday touching (e.g. jostling on a train) amount to battery?

Answer 8

No, it is considered that there is implied consent in everyday life. However, limitations apply.

Question 9

Can a police officer make physical contact with another person to attract their attention?

Answer 9

According to Pegram v DPP [2019], it is lawful for a police officer, or any other person, to make moderate and generally acceptable physical contact with another person to attract their attention. Context is important though. In this situation, the officer needed to gain the protester’s attention to make him aware of his presence and keep his attention for long enough to receive the warning.

Question 10

In ‘suffered unlawful personal violence’, what does personal mean?

Answer 10

‘Personal’ violence means upon the person. This includes the infliction of violence on the victim’s body and upon the clothes that the victim is wearing.

Question 11

Is it necessary to prove that the victim felt the touching for suffering ‘unlawful personal violence’?

Answer 11

No, it is not necessary to prove that the victim felt the touching. In Thomas [1985] 81 Cr App R 331, it was suggested obiter that there could be a battery where the defendant touched the bottom of the victim’s skirt and rubbed it.

Question 12

In ‘suffered unlawful personal violence’, what does violence mean?

Answer 12

‘Violence’ includes any unlawful touching of another, however slight. Violence includes throwing water over the victim or spitting at the victim.

Question 13

What does ‘inflict’ in ‘violence was inflicted as a result of the defendant’s conduct’ mean?

Answer 13

Inflict means to cause, and both factual and legal causation must be established.

Question 14

Can a defendant legally cause the battery result if they didn’t directly touch them?

Answer 14

Yes, splitting, pouring water on the victim and causing them to fall over and come in contact with an object can all be battery. E.g. acid in a drier spitting on the next person who uses it, or punching a mother, causing her to drop her child and that child hitting its head.

Question 15

Can battery be committed recklessly?

Answer 15

Yes it can. The recklessness required is Cunningham [1957] recklessnes.This would require the defendant to realise that there was a risk that his conduct might cause the infliction of unlawful personal violence.

Question 16

What happened in Pegram v DPP [2019] that shows recklessness in the subjective sense?

Answer 16

When the victim (the police officer) took hold of the defendant’s arm to warn him about committing public order offences, the defendant (who was facing away from the victim at the time) pulled it away, striking the victim in the face in the process. The defendant argued that he was not aware that he had made contact with the victim’s face and that the contact was accidental and without mens rea. Dismissing the defendant’s appeal, the court held that the contact with the victim was reckless, in the subjective sense, as required by Venna [1976]

Question 17

What is the definition of assault?

Answer 17

The defendant commits an assault where they intentionally or recklessly cause the victim to apprehend immediate unlawful personal violence

Question 18

What are the elements of assault?

Answer 18

The elements of the offence are as follows:

• there was some conduct on the part of the defendant;
• the victim apprehended immediate unlawful personal violence (a battery);
• this was caused as a result of the defendant’s conduct; and
• the defendant intended or was reckless to causing the apprehension of unlawful personal violence.

Question 19

Can the conduct in ‘some conduct on the part of the defendant’ be words as well as actions?

Answer 19

Yes, even silence can be the conduct for assault. In Ireland and Burstow [1998], the defendant made a series of silent telephone calls to three women, as a result of which the women suffered significant psychological symptoms. The defendant’s silence amounted to ‘conduct’ so, logically, mere words will also suffice.

Question 20

What does ‘apprehended’ mean in the context of ‘the victim apprehended immediate unlawful personal violence’?

Answer 20

It means that there is a belief that a battery is about to occur.

Question 21

Is there a requirement for the victim to be put in fear for assault?

Answer 21

No, there is no requirement that the victim be put in fear, in the sense of being scared.

Question 22

Can there be assault where there is no touching?

Answer 22

Yes, there can be.

Question 23

Does the prosecution have to prove that the victim could have suffered actual personal violence for the offence to be assault?

Answer 23

No, they do not have to prove that there will be actual personal violence.

Question 24

If the defendant has no means to carry out a threat, can it still be assault?

Answer 24

Yes, it can be.

Question 25

Would there be assault if the defendant negates the threat of violence?

Answer 25

No, if the defendant negates the threat of violence, then there is no apprehension of violence and assault will not apply. In Tuberville v Savage [1669], the defendant placed his hand on his sword and said ‘if it was not for assize-time, I would not take such language from you’. This indicated that as the judges were in town the defendant would not use force, and the victim did not apprehend an immediate battery.

Question 26

If the victim apprehends lawful violence, will there be assault?

Answer 26

No, because it will be lawful personal violence, so there will be no AR. E.g. a person apprehends force where they are the subject of a lawful arrest.

Question 27

What does ‘immediate’ mean in the context of ‘the victim apprehended immediate unlawful personal violence’?

Answer 27

It means that there will be apprehension that the battery will result immediately. It will not be immediate if the defendant is unable to carry out their threat immediately, but the courts are quite lenient with this. E.g. ‘I will be at your door in a minute or two’ is not immediate, but depending on the facts, could mean the victim is apprehending personal violence in the near future. E.g. silent phone calls, even though the victim doesn’t know where the defendant is, they could apprehend immediate danger.

Question 28

Is assault a result or conduct crime?

Answer 28

Assault is a result crime - the result is the victim apprehending immediate unlawful personal violence.

Question 29

What is meant by ‘this was caused as a result of the defendant’s conduct’?

Answer 29

It means the defendant’s conduct has to be both the factual and legal cause of the victim apprehending immediate unlawful personal violence.

Question 30

What is the MR for assault?

Answer 30

Intention or recklessness as to the apprehension of immediate and unlawful personal violence.

Question 31

In which three ways can the defendant possess the MR for assault?

Answer 31

• where it is the defendant’s aim or purpose to cause somebody to apprehend immediate unlawful personal violence (direct intention);
• where it is virtually certain that the defendant’s conduct will cause somebody to apprehend immediate unlawful personal violence and the defendant foresees this as a virtual certainty (oblique intention – Woollin [1998]); or
• where the defendant realises the risk that their conduct might cause somebody to apprehend immediate unlawful personal violence, but they unreasonably decide to run the risk (subjective recklessness) (Cunningham [1957]).

Question 32

What is assault occasioning actual bodily harm?

Answer 32

It is an assault or battery that resulted in actual bodily harm to the victim.

Question 33

Where would you find the legislation around assault occasioning actual bodily harm?

Answer 33

s47 OAPA 1861 (Offences against the Person Act)

Question 34

What is the limit on imprisonment for assault occasioning actual bodily harm?

Answer 34

Not more than five years (s47 OAPA 1861)

Question 35

What are the elements of assault occasioning actual bodily harm?

Answer 35

The elements of the offence are as follows:

• the defendant committed an assault or battery (i.e. a base offence);
• that resulted in the infliction of ABH to the victim.

Question 36

How is assault occasioning actual bodily harm tried?

Answer 36

The offence is triable either way.

Question 37

What needs to be established first from the elements of assault occasioning actual bodily harm?

Answer 37

Whether the defendant has committed an assault or battery (i.e. the base offence). This is the one time where the less serious offence should be considered before the more serious one.

Question 38

What is the definition of injury/harm that amounts to ABH?

Answer 38

‘Actual bodily harm’ is any injury or hurt likely to interfere with the health or comfort of the victim. This includes physical (visible) and non-physical harm.

Question 39

What are the limitations of the description of injury/harm that amounts to ABH?

Answer 39

It must be more than trivial or minimal, but it does not need to be grievous or serious harm.

Question 40

If ABH is trivial or minimal, what will happen instead of ABH?

Answer 40

In cases where the harm does not reach this very low threshold (of being more than trivial or minimal harm), the prosecution will still have assault or battery as an alternative charge.

Question 41

What can ‘harm’ mean regarding ABH?

Answer 41

Not limited to injury, can also be hurt or damage.

Question 42

Give some examples of injury/harm that amounts to ABH?

Answer 42

Physical injuries like bruises, grazes, black eyes and burns. (E.g. 4 bruises from a belt = ABH)
Cutting hair or putting paint on hair.
Loss of consciousness (albeit not physically visible)
Psychological harm

Question 43

In terms of ABH, what is accepted as psychological harm?

Answer 43

Psychological harm entails a medically recognised psychiatric condition, including lesser neurotic disorders because these affect the central nervous system (e.g. clinical depression). E.g. Chan Fook, the defendant’s conviction was quashed because the victim had not suffered a psychiatric illness but had simply experienced certain emotions, stress and fear, from his ordeal. The victim did not suffer from a medically recognised psychological condition. In Morris [1998], sleeplessness, tearfulness, tension and anxiety did not amount to bodily harm.

Question 44

Do emotions like stress and fear amount to ABH?

Answer 44

No, it would need to be a psychiatric illness instead of simply experiencing certain emotions.

Question 45

Is ABH (s47) a result or conduct crime? What does that mean needs to be proven?

Answer 45

It is a result crim. It must be proved that the assault or battery committed by the defendant caused the ABH to the victim. To this end, the standard causation rules (factual and legal causation) must be applied.

Question 46

What MR does the defendant need in order to be liable for ABH?

Answer 46

They only need the MR of either the assault or the battery. This means the defendant will still be guilty even if they do not foresee that their conduct will cause any harm, as long as they have the MR for either assault or battery.

Question 47

What MR is needed if the defendant causes ABH by way of battery?

Answer 47

In most cases, but not all, the defendant will cause ABH by way of a battery. In such a case, all that the prosecution has to prove for MR purposes is that the defendant had the MR for battery. That is an intention or recklessness about whether unlawful personal violence would be inflicted

Question 48

What MR is needed if the defendant causes ABH by way of an assault?

Answer 48

If the prosecution case is that an assault committed by the defendant caused the ABH, then all that has to be proved in terms of MR is that the defendant possessed the MR for assault. That is an intention or recklessness about whether immediate unlawful personal violence would be apprehended.

Question 49

What is the general rule around using consent as a defence against an offence against the person that results in bodily harm?

Answer 49

That it is generally unavailable to any offence against the person that results in bodily harm, including s47 OAPA 1861 (ABH).

Question 50

What are the elements of the defence of consent for offences against the person?

Answer 50

In relation to offences against the person, to establish the defence it must be shown that:

• the situation is one where consent can operate as a defence;
• the person consenting was able to consent (i.e. they had the capacity to do so);
  consent was actually given; and
• the consent given was valid (a true consent).

Question 51

When can consent be a defence to non-fatal offences?

Answer 51

• consent can be a defence to assault or battery which does not involve ABH or greater harm, such as GBH; and
• consent is not a defence to situations where the defendant causes the victim ABH or greater harm, unless one of the public interest exceptions to the general rule applies.

Question 52

What 7 kinds of activities may allow consent to be a defence to ABH as a public interest exception?

Answer 52

Sporting activity
Medical treatment
Religious purposes
Therapeutic purposes
Cosmetic surgery, tattooing and body piercing
Horseplay
An STD where the victim is aware of the risk

Question 53

When can sporting activity (as a public interest exception) allow consent to be a defence to ABH?

Answer 53

Where the participants of the sport are playing inside the rules. The victim can only consent to the kind of harm that could be reasonably expected to happen during the game.

Question 54

What is there exception to boxing and martial arts (e.g. MMA, UFC) when talking about using consent as a defence to ABH?

Answer 54

The victim does not consent to intentional harm caused except during boxing under the official rules, conducted under official regulations. E.g. Prize fighting cannot use consent as a defence to ABH.

Question 55

When can medical treatment (as a public interest exception) allow consent to be a defence to ABH?

Answer 55

The victim can give consent to bodily harm intentionally caused as a result of reasonable medical treatment and to the risk of any incidental harm. E.g. victim cannot give consent to harm caused by the defendant’s negligence.

Question 56

Is consent presumed in medical treatment?

Answer 56

No, it must be expressly given, hence ‘consent forms’.

Question 57

If a quasi-medical procedure is unlawful, can consent still be a defence?

Answer 57

No, it cannot be used, even when the victim has given written consent.

Question 58

When can religious purposes (as a public interest exception) allow consent to be a defence to ABH?

Answer 58

Consent can be expressly given (often by parents because of the age of the child) to intentional harm, such as male circumcision, and to the risk of incidental harm caused. Again, the victim cannot consent to harm caused by the defendant’s negligence.

Question 59

Which article of the ECHR does religious purposes being protected by the defence of consent support?

Answer 59

Art 9 ECHR - protection of religious freedoms.

Question 60

When can therapeutic purposes (as a public interest exception) allow consent to be a defence to ABH?

Answer 60

Examples of this would include cosmetic surgery for therapeutic reasons, such as a sex-change operation, as in Corbett v Corbett [1970], and treatments such as acupuncture. For such treatments, consent must be expressly given to the intentional ‘harm’ and any incidental non-negligent risks associated with the treatment.

Question 61

When can cosmetic surgery, tattoos and body piercing (as a public interest exception) allow consent to be a defence to ABH? Is consent presumed?

Answer 61

Consent must be expressly given to this intentional harm and to any incidental non-negligent risks. Breast enhancements and reductions, body piercing and tattooing come within this category.

Question 62

When can horseplay (as a public interest exception) allow consent to be a defence to ABH?

Answer 62

Consent cannot be given to harm intentionally caused but is deemed to be given to incidental reckless harm caused during horseplay. In Jones [1986], boys at a youth club tossed two others into the air, one suffered a ruptured spleen and the other a broken arm. The Court of Appeal held that the defence of consent operates, as boys have always indulged in such antics.

Question 63

When can transmitting an STD (as a public interest exception) allow consent to be a defence to ABH?

Answer 63

Only where the victim is aware of the risk and gives informed consent. The victim cannot consent to intentional transmission of sexual disease, but can consent to reckless transmission. If the victim knows of the risk, the rule is that adults should be free to have lawful sex with whomever they please. If the victim contents to run a known risk, this should be a private matter between the parties and not a matter for the criminal courts

Question 64

Give examples of attempts to create other categories of lawful exception of consent as a defence to ABH that have failed?

Answer 64

Intentional ABH caused during sexual (sadomasochistic) activities for the purposes of sexual gratification.
ABH in the form of an intentionally transmitted sexual disease.
ABH caused by special needs pupils to teachers.
ABH caused by body modification

Question 65

What is the court’s view on sadomasochistic activities and whether consent is a valid defence to ABH?

Answer 65

‘Sadomasochism is not only concerned with sex … it is also concerned with violence … the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous’. In this case (Brown [1994]), the men were convicted to protect society against a cult of violence and it was deemed not to be in the public interest for consent to be a defence.

Question 66

Can consent apply as a defence to the base offence when looking at ABH?

Answer 66

Yes, it can. As consent can be a defence to the original battery, the charge is then dropped.

Question 67

Is intentionally transmitting an STD able to rely on the defence of consent?

Answer 67

No, It is not possible to consent to the intentional transmission of a sexual disease, even where the victim is aware of the risk. An example of intentional transmission is where the defendant contracts HIV from a sex worker and then, in a vendetta against sex workers, sleeps with others with the sole purpose of infecting as many as possible. There is certainly no ‘good reason’ to allow the defence to operate here.

Question 68

Do teachers consent to ABH from special needs pupils?

Answer 68

No, there is a difference between being aware of a heightened risk of violence and impliedly consenting to it.

Question 69

Why, in BM [2018], was body modification not able to create a new exemption as a public interest defence of consent?

Answer 69

The court held that new exceptions should only be recognised where there was a close analogy with an existing exception. Tattooing and body piercing was too far from body mutilation. Creating a new exception would be a very bold step that should only be taken by Parliament.

Question 70

What does the ability to consent depend on?

Answer 70

The victim’s age and mental ability. When they can understand the nature of the act and make an informed choice.

Question 71

What is the age of consent?

Answer 71

18 years old +, but this can be rebutted by evidence to the contrary, e.g. mental incapacity.

Those who are aged 16 and 17 can also give consent to surgical, medical, dental and cosmetic treatment (e.g. ear piercing) without their parents’ consent

Those below 16 are also capable of giving consent if they are of sufficient intelligence and understanding. In Burrell v Harmer [1967], for instance, the defendant was charged with ABH where he tattooed the arms of boys aged 12 and 13. The consent of the boys was not valid because they did not fully understand the nature of the act.

Question 72

How can consent be found? What if the patient is unconscious?

Answer 72

Consent can be either express or implied. If the patient is unconscious, the defence of necessity may apply.

Question 73

Is consent effective as a defence if induced by fraud?

Answer 73

If the defendant obtains consent from the victim by way of fraud, then the victim’s consent will not be valid. It will be negated or vitiated by the fraud.

Question 74

What is the leading case on consent obtained by fraud? What are the two (then four) ways in which fraud could negate consent?

Answer 74

Clarence [1888], there are two ways in which fraud could negate consent:
- if the defendant deceived the victim as to the nature of the act being performed; and
- if the defendant deceived the victim as to the identity of the person with whom the act was being performed.

Following Tabassum [2000] and Dica [2004], this can be extended to include:
- where the defendant deceived the victim as to the quality of the act being performed; and
- where the defendant deceived the victim as to their health status (particularly relevant in sexual cases).

Question 75

Give an example of consent as a defence being negated due to fraud as to nature?

Answer 75

In Williams [1923], a singing teacher was guilty of sexual assault where he deceived his pupil into believing that his actions would improve her voice. In this case the victim was deceived as to the nature of the act and the defendant could not rely on consent as a defence

Question 76

Will deliberate impersonation of another’s identity negate the victim’s consent?

Answer 76

Yes, it will.

Question 77

Will deliberation deception of the defendant’s status and qualification negate consent?

Answer 77

Not usually, unless the person’s identity was inextricably linked to their professional status, e.g. a dentist who had her licence suspended could use the defence of consent because she was a dentist, just currently suspended from practice. However, impersonating a doctor who wasn’t a doctor would mean that the defence of consent would be negated.

Question 78

Can consent be negated due to fraud as to quality/purpose and health status?

Answer 78

Yes, e.g. Tabassum [2000] where measuring women for research on breast cancer for no real reason was sexual assault, as the defendant had deceived them as to his purpose or a quality of his act.

Question 79

Can consent be valid if obtained by force, threat of force, duress or coercion?

Answer 79

No, consent must be freely given, otherwise it will be invalidated.

Question 80

Where can you find the offence for possession of an offensive weapon?

Answer 80

s1 PCA 1953 (Prevention of Crime Act 1988)

Question 81

What does s1 PCA 1953 provide for?

Answer 81

s1 PCA 1953 makes it an offence for someone to be in a possession of an offensive weapon in a public space without a reasonable or lawful excuse.

Question 82

What are the elements of possession of an offensive weapon?

Answer 82

The following conditions must be met:

• the defendant must be in possession;
• of an offensive weapon;
• in a public space;
• without lawful or reasonable excuse.

Question 83

What is classed as an offensive weapon according to PCA 1953?

Answer 83

Any article made or adapted for use for causing injury to the person, or intended by the person having it with him for such use by him or by some other person. E.g. knife, sharpened bone or screwdrivers.

Question 84

What is classed as a public place according to PCA 1954?

Answer 84

A ‘public place’ includes any highway and any other premises or place to which at the material time the public have or are permitted to have access. This means any public space, but N.B. a building that has areas open to public doesn’t always mean it is a public space. A side room not open for the public could let down this charge.

Question 85

When will a defendant not be proven to be ‘in possession’?

Answer 85

If there is no ‘geographical, temporal or purposive link between the knife’ and the defendant, then it is unlikely for this first element to be satisfied.

Question 86

What is important to establish when considering ‘the defendant must be in possession’?

Answer 86

That the defendant was knowingly in possession of the offensive weapon at hand. If there is doubt stated by the defendant, the prosecution must prove that the defendant knew about the weapon.

Question 87

What are the three types of offensive weapon as defined in s1(4) PCA 1953?

Answer 87

1. Articles that are offensive weapons per se (knife or gun)
2. Articles that are adapted for use to become an offensive weapon (e.g. sharpened bone)
3. Articles which were not specifically made to cause injury, but the defendant intended to use it for that purpose (e.g. screwdriver)

Question 88

If the defendant did not know that the weapon in question could be regarded as offensive, but the weapon was adapted for use to become an offensive weapon, can that act as a defence?

Answer 88

No, it cannot.

Question 89

What would be a lawful excuse to carry a weapon? Give a case example.

Answer 89

Jura [1954] where the defendant was at a shooting range with his friend when he turned his rifle on his friend and caused minor injuries after shooting at the target. He had a lawful excuse to be using his rifle in a public place. The OAPA 1861 can take care of the unlawful use of the rifle.

Question 90

Is it a subjective or objective test on whether the defendant is carrying an offensive weapon without lawful or reasonable excuse?

Answer 90

It is an objective test, the defendant’s excuse must be reasonable.

Question 91

If the defendant felt threatened and ran to get a weapon to defend themselves, where would the burden of proof lie? How about the standard of proof?

Answer 91

It is for the defendant to prove (on the balance of probabilities) that they had a reasonable or lawful excuse for being in possession of the offensive weapon.

Question 92

How will the courts judge whether the defendant has a lawful or a reasonable excuse for being in possession of an offensive weapon?

Answer 92

It is an objective question and each case will be assessed on its own merits.

Question 93

Where is the legislation for possession of a bladed article?

Answer 93

s139(1) CJA 1988 (Criminal Justice Act)

Question 94

What are the elements to possession of a bladed article?

Answer 94

The following conditions must be satisfied:

• the defendant must be in possession;
• of an article with blade or point;
• in a public space;
• without a good reason or a lawful authority; or that the article was not for use at work; for religious reasons; or as part of any national costume.

Question 95

When carrying a weapon, who bears the burden of proof and to what standard of proof should be found when the defendant has a lawful reason?

Answer 95

It is for the defence to prove on the balance of probabilities that the defendant had a good reason/lawful authority for being in possession of the relevant article.

Question 96

Where is the legislation for racially or religiously aggravated offences (RRAOs)?

Answer 96

ss28-32 Crime and Disorder Act 1998 (CDA 1998)

Question 97

Where is the legislation for the enhanced sentencing provisions?

Answer 97

s66 Sentencing Act 2020 (SA 2020)

Question 98

s28(1) CDA 1998 provides that the offences listed under ss29–32 can become racially or religiously aggravated in which two ways?

Answer 98

s28(1)(a): When the defendant (at the time of committing the base offence, or immediately before or after doing so), demonstrates hostility towards the victim’s actual or presumed membership of a racial or religious group.
s28(1)(b): Where there is evidence to suggest that the defendant’s criminality was motivated (wholly or partly) by hostility towards the victims’ actual or presumed racial or religious background.

Question 99

What are the 11 racially or religiously aggravated offences created under ss29-32 CDA 1998?

Answer 99

1. s20 OAPA 1861; (GBH)
2. s47 OAPA 1861; (ABH)
3. common assault (i.e. battery and assault);
4. criminal damage contrary to s1 CDA 1971;
5. fear or provocation of violence contrary to s4 POA 1986;
6. intentionally causing harassment, alarm or distress contrary to s4A POA 1986;
7. causing harassment, alarm or distress contrary to s5 POA 1986;
8. causing harassment contrary to s2 Protection from Harassment Act 1997 (PHA 1997);
9. stalking contrary to s2A PHA 1997;
10. causing fear of violence contrary to s4 PHA 1997; and
11. stalking involving fear of violence or serious alarm or distress contrary to s4A PHA 1997

Question 100

What must the prosecution establish if they want the defendant to be convicted of any of the 11 racially or religiously aggravated offences?

Answer 100

The prosecution must establish:
(i) liability for the base offence, such as common assault; and
(ii) that the offence was racially or religiously aggravated through s28(1)(a) and/or s28(1)(b) CDA 1998.

Question 101

What is the difference between a RRAO and their parallel crimes?

Answer 101

These RRAO offences can result in a more severe sentence than their parallel crimes. For instance, someone who is convicted of common assault faces a maximum sentence of six month’s imprisonment. Since common assault is a summary-only offence, the case will be tried at the Magistrates’ Court. Racially or religiously aggravated assault, however, is triable either way and carries a custodial sentence of two years and a fine. That is a 400 per cent uplift.

Question 102

Why is the defendant usually charged with RRAO contrary to s28(1)(a), instead of (b)?

Answer 102

Because the threshold that needs to be met for (a) is significantly lower than (b). s28(1)(a) focuses on ‘outward manifestation[s]’ of racial or religious hostility whereas s28(1)(b) is concerned with the perpetrator’s ‘inner motivation’ - something that can be extremely difficult to prove beyond reasonable doubt.

Question 103

In order to be a RRAO contrary to s28 CDA 1998, does hostility need to be a subjective or an objective test?

Answer 103

It is an objective test - what matters is whether the defendant’s conduct can objectively be regarded as a demonstration of hostility regardless of their intention/foresight, not whether the victim thought it may come across as a demonstration of hostility.

Question 104

Does the defendant need to hate the victim in order for an offence to be classed as a RRAO offence?

Answer 104

No, it matters whether the defendant’s conduct can objectively be regarded as a demonstration of hostility towards the victim’s actual or presumed ethnic or religious background. If it can, then the offence can be classed as a RRAO.

Question 105

What would happen if there was a delay between the demonstration of hostility and the commission of the base offence? Could there be a RRAO?

Answer 105

It depends whether the hostility based upon race or religion was evinced over a continuing period from the moment that the words were first used to the moment that the violence was used.

Question 106

Does the crime committed under s28(1)(b) CDA 1998 have to be motivated solely by the defendant’s hostility towards the victim’s actual or presumed racial or religious background?

Answer 106

No, it is enough for the commission of the offence to be partly motivated by ethnic or religious hostility.

Question 107

What do the enhanced sentencing provisions under s66 SA 2020 allow the sentencing court to do?

Answer 107

They allow the sentencing court to impose an enhanced sentence in cases where the offender has been convicted of an offence other than those listed in ss29–32 CDA 1998 and there is evidence to suggest that:
(i) ‘at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility’ based on their actual or presumed protected identity; or
(ii) that ‘the offence was motivated (wholly or partly) by hostility towards the victim’s actual or presumed protected identity’.

Question 108

Which offences is s66 SA 2020 for?

Answer 108

Racially or religiously motivated offences that do not fall under s28 CDA 1998, e.g. s18 GBH.

Question 109

What is a ‘sentence uplift’?

Answer 109

Given by s66 SA 2020, it is an enhanced sentence based on racially or religiously motivated offences.

Question 110

What must the sentencing court do in order to allow a sentence uplift for s66 SA 2020?

Answer 110

The sentencing court ‘must state in open court that the offence is so aggravated’. (i.e. racially or religiously motivated).

Question 111

Apart from race and religion, what do s66 SA 2020 cover that s28-32 CDA 1998 do not?

Answer 111

Sexual orientation
Disability
Transgender status