Chapter 4 - Assaults

Question 1

How should assault be understood in legal terms?

Answer 1

Assault is a **generic term ** encompassing a **category of related offences **rather than a single crime.

Question 2

How does the law categorize different assault offences?

Answer 2

The law recognizes various assault offences on a sliding scale, distinguishing between severe attacks that nearly cause death and minor incidents that cause no injury.

Question 3

What factors determine the classification of assault offences?

Answer 3

The classification depends on the degree of harm caused to the victim and, to a more limited extent, the mens rea (mental state) of the defendant.

Question 4

What is the order of severity for assault offences, starting from the least serious?

Answer 4

he hierarchy of offences is as follows:
1. Simple and physical assault
2. Assault occasioning actual bodily harm
3. Maliciously wounding or inflicting grievous bodily harm
4. Wounding or causing greivous bodily harm with intent

Question 5

What are the two types of assaults derived from common law?

Answer 5

1. Simple assault
2. Physical assault
   * They are collectively referred to as common assault

Question 6

What is the main difference between simple assault and physical assault?

Answer 6

• In simple assault, the accused does not need to make any physical contact with the victim
• Physical assault involves actual physical contact. However, both often occur together (e.g., raising a fist before hitting).

Question 7

What does section 39 of the Criminal Justice Act (CJA) 1988 state about common assault?

Answer 7

• Section 39 of the CJA 1988 confirms that common assault is a summary only offence triable in the magistrates’ court, with a maximum sentence of 6 months’ imprisonment and/or a fine.
• No formal definition is provided.

Question 8

How is simple assault defined in criminal law? and what is the authority?

Answer 8

“Any act that intentionally or recklessly causes another person to apprehend immediate and unlawful personal force” (Fagan v Metropolitan Police Commissioner [1969]).

Question 9

What alternative terms are used for simple assault in legal contexts?

Answer 9

Simple assault may also be referred to as common assault or technical assault; all terms have the same legal meaning in this context.

Question 10

What constitutes the actus reus of simple assault?

Answer 10

• The actus reus involves causing the victim to** apprehend immediate and unlawful personal force.**
• It is crucial to analyze its components to determine whether the accused has fulfilled this requirement.

Question 11

When is an assault considered unlawful?

Answer 11

An assault is unlawful unless justified, such as when a police officer uses reasonable force to make an arrest or an individual uses reasonable force in self-defense or to protect others or property.

Question 12

Without knowing Biko’s specific actions, what constitutes assault in general terms?

Answer 12

Assault involves any act that causes another person to apprehend immediate and unlawful personal force, regardless of whether actual violence occurs or harm is inflicted.

Question 13

In a scenario where Biko threatens to punch a martial arts expert who is not afraid of him, does this still constitute assault?

Answer 13

Yes, it constitutes assault because the expert must still apprehend that he is about to be unlawfully touched, regardless of his lack of fear.

Question 14

If Biko creeps up on someone unnoticed and jumps on them, what determines whether this constitutes assault?

Answer 14

This does not constitute assault because the victim, Juliette, did not apprehend any unlawful force before Biko acted. Thus, he is not guilty of simple assault in this situation.

Question 15

What does the term “apprehension” mean in the context of simple assault, and why is it important?

Answer 15

“Apprehension” means the victim’s awareness of potential unlawful force. It is crucial because it establishes the basis for assault even without fear; the victim must believe they are about to be unlawfully touched.

Question 16

What must be established for the actus reus of simple assault regarding the threat?

Answer 16

The threat must involve** immediate unlawful personal force**; it is insufficient for the victim to merely anticipate that unlawful force may occur at some future time.

Question 17

How does a victim’s fear of immediate force affect the actus reus of simple assault?

Answer 17

If the victim fears that unlawful force could occur immediately, this satisfies the actus reus requirement for simple assault, regardless of when the threat is communicated.

Question 18

How does modern technology, like mobile phones, affect the context of threats in simple assault?

Answer 18

With modern technology, a defendant may be very close to the victim when making threats of violence, heightening the victim’s fear of immediate harm and satisfying the actus reus of assault.

Question 19

What were the facts and ruling in R v Burstow [1997]?

Answer 19

In R v Burstow, the defendant stalked the victim for years, sending letters and making phone calls, resulting in her suffering psychiatric injury. The court held that if the victim feared the defendant could strike at any time, this satisfied the actus reus of assault.

Question 20

Can words alone constitute assault, and what case clarified this?

Answer 20

• Yes, words alone can constitute assault.
• This was clarified by the House of Lords in R v Ireland [1997], which indicated that words can be more intimidating than actions.

Question 21

What would be an example of words that could constitute assault?

Answer 21

An example would be someone aggressively saying, “I’m going to beat you up to such an extent that even your own mother won’t recognize you,” which could lead to liability for assault despite no physical gesture.

Question 22

Can silent telephone calls amount to assault, and what did the House of Lords say?

Answer 22

• Yes, silent telephone calls can amount to assault depending on the circumstances.
• Lord Steyn in R v Ireland confirmed this, stating that a silent caller may intend to cause fear in the victim.

Question 23

What factors determine if silent calls constitute assault?

Answer 23

1. Liability for silent calls depends on the impact of the calls on the victim and whether the victim fears immediate unlawful force.
2. A pattern of silent calls is more likely to constitute assault than a single call.

Question 24

What is the justification for considering repeated silent calls as a form of assault?

Answer 24

The justification lies in the psychological impact of repeated calls on the victims, which can instill fear of potential immediate harm, thus satisfying the actus reus of assault.

Question 25

What constitutes a conditional threat in the context of simple assault, and how is it treated under the law?

Answer 25

• A conditional threat occurs when a defendant threatens to use force if a certain condition is not met, such as saying, “If you do not shut up, I will slap you.”
• The law considers this an assault because it unjustifiably restricts the victim’s personal liberty, assuming the threat satisfies the immediate force requirement (as established in Read v Coker [1853]

Question 26

What is the mens rea required for simple assault?

Answer 26

• Defendant intends to cause the victim to apprehend immediate unlawful personal force or is reckless as to whether such apprehension occurs.
• This was established in R v Venna [1976]

Question 27

How is recklessness assessed in the context of mens rea for simple assault, according to R v Spratt (1991)?

Answer 27

• In R v Spratt [1991] 2 All ER 210, the test for recklessness is subjective.
• The defendant must have foreseen the risk that the victim would apprehend immediate unlawful personal force and still taken that risk. It does not matter if others would have foreseen the risk; only the defendant’s perception is relevant.

Question 28

In the scenario where Ziliang threatens Simranjit by raising his fist and saying, “Don’t hassle me or I’ll smash your face in,” why is this considered an assault?

Answer 28

Ziliang has committed an assault because he:

1. Raised his fist (actus reus).
2. Threatened Simranjit (actus reus).
3. Both actions appear to be intentional (mens rea).
   Even though there was no physical contact, the unjustified threat satisfies both the actus reus and mens rea for simple assault.

Question 29

In the scenario where Felix is cheering at a football match and a wing player fears Felix is about to hit him, why is Felix not liable for assault?

Answer 29

Felix is not liable for assault because:

1. Although the wing player feared he was about to be hit (actus reus),
2. Felix did not intend to cause apprehension of immediate force (lack of mens rea).
3. Felix was merely shouting encouragement, without any intention or recklessness regarding causing fear of force.

Question 30

What are the key elements of mens rea required to establish simple assault?

Answer 30

1. Intention to cause apprehension of immediate unlawful personal force, or
2. Recklessness as to whether such apprehension occurs.
   This means the defendant must either intend the apprehension or be aware of the risk and disregard it.

Question 31

What is the definition of physical assault (battery)?

Answer 31

The infliction of unlawful personal force on the victim. It does not need to involve a serious attack—any unlawful touching with the appropriate mens rea is sufficient.

Question 32

Do simple and physical assault always occur together?

Answer 32

• No, while simple and physical assault often occur together, they do not have to.
• For example, a physical assault can occur without a simple assault, such as when the defendant hits the victim from behind, and the victim did not apprehend the force beforehand.

Question 33

Actus reus for physical assault (battery)?

Answer 33

The infliction of unlawful personal force on the victim. This can be through direct or indirect physical contact and does not require the victim to suffer any harm or injury.

Question 34

What is the Actus Reus of physical assault (battery)?

Answer 34

1. Direct physical contact, such as pushing, hitting, or using a weapon.
2. Indirect contact, such as throwing an object, spitting, or placing an obstacle to trip the victim (DPP v K [1990]).

Question 35

How did Haystead v Chief Constable of Derbyshire [2000] address indirect force in physical assault?

Answer 35

In Haystead, the defendant punched a woman, causing her to drop her baby. The court held that the defendant was guilty of physical assault on the baby, even though the force was applied indirectly through the mother.

Question 36

Can physical assault be committed without direct contact with the victim?

Answer 36

Yes, physical assault can occur through indirect force, such as setting an obstacle for the victim to trip over or causing a victim to drop someone (Haystead).

Question 38

What is the mens rea required for physical assault?

Answer 38

Intention or recklessness regarding the infliction of unlawful force; no need to show intent for injury.

Question 39

How does the subjective standard of recklessness apply in physical assault cases?

Answer 39

The defendant must foresee the risk of inflicting unlawful force and consciously decide to take that risk.

Question 40

Does a conditional threat, such as Craig threatening Tilly if she continues seeing Fay, constitute simple assault?

Answer 40

No, it does not constitute simple assault because Tilly does not apprehend immediate unlawful force; the threat is conditional.

Question 41

What offence is a s.47 of the OAPA 1861? What court is it tried in, and what is the maximum sentence?

Answer 41

1. A s.47 is **assalt occasioning actual bodily harm **
2. It is triable either way - in magistrates’ court or Crown Court
3. Carries maximum sentence of 5 years’ imprisonment.

Question 42

What are the key elements of the actus reus for assault occasioning actual bodily harm under s.47?

Answer 42

(a) an assault,
(b) which occasions (causes),
(c) actual bodily harm.

Question 43

What is the first requirement for an assault under s.47?

Answer 43

There must be an assault, either simply or physical will suffice, which causes actual bodily harm

Question 44

How is actual bodily harm defined according to R v Miller [1954]?

Answer 44

Actual bodily harm means any hurt or injury that interferes with the health or comfort of the victim. It does not have to be serious or permanent but must be more than transient or trifling.

Question 45

What are some examples of actual bodily harm?

Answer 45

• Split lip, significant bruising, temporary loss of consciousness, or cutting a substantial piece of hair.
• Minor injuries, such as a small bruise or a quickly fading red mark, do not qualify.

Question 46

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

Answer 46

Yes, as confirmed in R v Ireland [1997], actual bodily harm can include psychiatric injury, but it must be a recognisable clinical condition such as anxiety neurosis or reactive depression, not just strong emotions.

Question 47

What is the Mens Rea for a s.47 and what case established this?

Answer 47

• The mens rea is either intention or recklessness as to the assault only; there is no need to show intent or recklessness regarding the causing of harm.
• This was established in R v Savage; R v Parmenter (1991), where the defendant intended to throw beer but accidentally injured the victim, and the court held that the mens rea only needed to relate to the assault.
• All the prosecution has to prove is that the accused hit the victim deliberately, and provided injury is caused of sufficient gravity, they are guilty of a s.47.

Question 48

In the example where Vijay intentionally hits Blake, causing him to sustain a black eye, how is the mens rea of assault occasioning actual bodily harm (OAPA 1861, s 47) applied?

Answer 48

In this scenario, Vijay intentionally hits Blake, which results in a black eye. He satisfies the requirements for a s 47 assault because:
1. Actus reus: Vijay hit Blake (the assault) which caused (occasioned) a black eye (the actual bodily harm).
2. Mens rea: Vijay admits to intending to assault Blake, making him guilty under s 47 regardless of whether he intended to cause harm.

Question 49

What is the key difference between the mens rea for simple/physical assault and the mens rea for an assault under s.47?

Answer 49

There is no difference between the mens rea for simple/physical assault and the mens rea for an assault under s 47. The only distinction is that for s 47, some bodily harm must be caused, which pertains to the actus reus of the offence.

Question 50

What is the offence for an s.20, what is the sentence, and is it summary-only, either-way or indictable only?

Answer 50

1. The offence is “Wounding or inflicting grievous bodily harm”
2. It has a maximum sentence of 5 years’ imprisonment, which is the same as a s.47 as wounding or grievous bodily harm must be established rather than just actual bodily harm. In practice, however, sentences are usually heavier under s 20 than for s 47.
3. It is an either-way offence.

Question 51

What is the actus reus of a s.20 offence?

Answer 51

• The actus reus is to* unlawfully wound or inflict grievous bodily harm*.

Question 52

What does “unlawfully” mean and what is the authority?

Answer 52

• Unlawfully simply means that the act of wounding or inflicting grievous bodily harm was not done with any
  lawful justification, such as acting in self-defence or in defence of another.
• Authority is R v Horwood [2012].

Question 53

How is a “wound” defined in legal terms, and what case established this definition?

Answer 53

• A wound requires both layers of the skin to be broken, as established in Moriarty v Brookes (1834).
• Even a scratch that draws blood qualifies as a wound.

Question 54

What are common examples of what constitutes wounding?

Answer 54

Common examples include cuts, lacerations, or any injury that breaks the skin, though only significant cuts are generally charged.

Question 55

What constitutes a wound in the context of s. 20 OAPA 1861?

Answer 55

A wound requires both layers of the skin to be broken (Moriarty v Brookes ). This effectively means there must be bleeding. Cuts, lacerations, and even scratches that draw blood can constitute a wound, though in practice, more significant cuts are typically charged. Bruising and internal bleeding, even if severe, do not count as wounds as the skin is not broken (JJC (a Minor) v Eisenhower ).

Question 55

Can bruising or internal bleeding be classified as wounds under the law?

Answer 55

No, bruising or internal bleeding are not considered wounds since the skin has not been broken, as confirmed in JJC (a Minor) v Eisenhower (1984).

Question 57

How is grievous bodily harm defined, and what case provides this definition?

Answer 57

Grievous bodily harm is defined as** ‘really serious harm’** as per DPP v Smith (1961).
* Examples include a fractured skull, severe internal injuries, or broken limbs.

Question 58

What did the House of Lords conclude regarding psychiatric problems as grievous bodily harm and in what case?

Answer 58

In* R v Burstow* (1997), the court held that severe psychiatric problems could amount to grievous bodily harm if they were significant enough.

Question 59

What does “maliciously” mean in the context of mens rea for section 20 of the OAPA 1861 and what is the authority?

Answer 59

“Maliciously” means that the defendant acted with intention or recklessness (as per R v Cunningham (1957)). Spite or ill will is not necessary to prove.

Question 60

What must the accused intend or be reckless to (foresee) to commit a s.20? What is the authority for this?

Answer 60

The accused must intend or be reckless as to some bodily harm (ABH). It is not necessary to prove that the defendant foresaw really serious harm (GBH).
* Authority is R v Savage; R v Parmenter (1991)

Question 61

In Clint’s response, he says, “Bill was asking for it, I hit him really hard and wanted him to really suffer.” What does this indicate about his mens rea for s 20?

Answer 61

This response clearly establishes sufficient mens rea for s 20, as Clint intended to inflict really serious harm on Bill. His intent exceeds the requirement for s 20, thus satisfying the mens rea for the offence.

Question 62

In Clint’s response, he states, “OK I hit him really hard. I thought I would break his jaw, but I never intended he should fracture his skull. I’m really sorry about that.” What is the implication for his liability under s 20?

Answer 62

Clint is still liable for s 20 because he intended to cause grievous bodily harm (GBH). The specific injury he anticipated (a broken jaw) is irrelevant; what matters is that he intended to cause serious harm.

Question 63

In Clint’s response, he mentions, “I suppose when I think about it now I ought to have realised the risk of really hurting Bill, but it never crossed my mind at the time.” What does this indicate about his mens rea?

Answer 63

• The first part of his statement shows Clint did not intend to cause grievous bodily harm, nor was he reckless about it.
• However, he acknowledges being reckless regarding some harm, which satisfies the mens rea for s 20. The subjective nature of recklessness focuses on Clint’s personal foresight of risk.

Question 64

What is the offence for an s.20, what is the sentence, and is it summary-only, either-way or indictable only?

Answer 64

1. The offence for an s.20 is Unlawfully wounding or causing grievous bodily harm with intent
2. Maximum sentence of life imprisonment
3. Indictable-only offence, meaning it can only be tried in the Crown Court before judge and jury.

Question 65

How does the actus reus and mens rea of section 18 compare to that of section 20?

Answer 65

The actus reus for section 18 (wounding or causing grievous bodily harm) is the same as for section 20, but section 18 requires intent rather than recklessness, making it a more serious offence.

Question 66

Explain the difference between “inflict” (used in s. 20) and “cause” (used in s. 18) in relation to GBH.

Answer 66

While acknowledged as different in R v Burstow , no clear distinction has been provided in case law, and “cause” is considered broader than “inflict”. In practice, there is no practical difference for the actus reus of s. 20 and s. 18 offenses.

Question 67

Describe the mens rea of wounding or causing grievous bodily harm with intent (s. 18 OAPA 1861).

Answer 67

The mens rea requires intent to either:
1. Cause GBH, or
2. Resist or prevent lawful apprehension. In the latter case, the prosecution must also prove the defendant intended or was reckless in causing some bodily harm.

Question 68

What are the four variations of a s. 18 assault?

Answer 68

1. Ordinary victim: unlawfully and maliciously causing GBH with intent to cause GBH
2. Ordinary victim: unlawfully and maliciously wounding with intent to cause GBH
3. Police officer victim: unlawfully and maliciously causing GBH with intent to resist/prevent arrest, and intention/recklessness as to causing ABH (actual bodily harm)
4. Police officer victim: unlawfully and maliciously wounding with intent to resist/prevent arrest, and intention/recklessness as to causing ABH

Question 69

When can recklessness be sufficient mens rea for a s.18 assault?

Answer 69

Recklessness as to causing some bodily harm is only sufficient if the prosecution can also prove an intention to resist or prevent lawful arrest. This is rare in practice, as the severity of the injury usually doesn’t warrant a s.18 charge, and other offenses could be charged instead.

Question 70

What is the role of consent in assault offenses?

Answer 70

Consent, or the lack thereof, is a key element in assault offenses. The defense often raises the issue of consent to argue that the defendant should not be found guilty.

Question 71

Is consent a defense to common law assaults?

Answer 71

Consent can be a defense to simple or physical assault as long as no harm was caused or intended. The law recognizes implied consent in everyday social interactions involving touching.

Question 72

Is consent a defense to statutory assaults?

Answer 72

Generally, consent is not a defense to assaults under ss. 47, 20, or 18 of the OAPA 1861 if harm is intended or caused, even with valid consent (Attorney-General’s Reference (No 6 of 1980) ).

Question 73

What are some exceptions to the general rule that consent is not a defense to statutory assaults?

Answer 73

Exceptions include surgical operations, dangerous exhibitions, properly conducted sports, lawful activities like tattooing, and rough horseplay. These exceptions are generally based on public interest or “good reason.”

Question 74

Explain the key points of the R v Brown \ case regarding consent and sado-masochism.

Answer 74

In R v Brown, the House of Lords ruled that consent was not a defense to sado-masochistic activities, even among consenting adults, because it involved violence and was not considered in the public interest. The majority argued against creating a consent defense for such activities, citing concerns about the risks of corruption, disease, and uncontrolled pain. This decision remains controversial.

Question 75

Explain how R v Wilson \ contrasts with R v Brown regarding consent.

Answer 75

R v Wilson involved a husband branding his wife’s buttocks with her consent. The Court of Appeal allowed consent as a defense, likening it to tattooing and stating that consensual activity within a marriage was not a matter for the courts. This decision has been criticized for its potentially outdated views on marital relationships and for the disparity in outcomes compared to R v Brown.

Question 76

Explain the court’s decision in R v BM \ regarding body modification and consent.

Answer 76

R v BM involved extreme body modifications performed with the victim’s consent. The court ruled that consent was not a defense, stating that such serious, irreversible injuries could not be consented to. The court distinguished body modification from piercings or tattoos, deeming them “medical procedures” performed without medical justification.

Question 77

What are the key takeaways regarding the current position on consent as a defense to assault in English law?

Answer 77

• Consent must be valid, given by a fully informed, competent individual.
• Consent obtained through fraud about the defendant’s identity or the act’s nature and quality is invalid.
• Implied consent applies to harmless simple and physical assaults in everyday life.
• Consent is generally not a defense to ss. 47, 20, or 18 OAPA 1861 assaults unless the activity falls under recognized exceptions.
• The list of lawful activities where consent can be a defense is not fixed and may evolve.

Question 78

What is the general approach to determining the appropriate assault offense to charge a defendant with?

Answer 78

Begin by considering the most serious offense reasonably applicable based on the evidence, usually starting with s. 18. Analyze the actus reus and mens rea of that offense in light of the facts. If either element is not met, move down to the next less serious offense (e.g., s. 20 or s. 47).

Question 79

Summarize the steps involved in analyzing a defendant’s liability for assault.

Answer 79

1. Consider the most serious potential offense.
2. Assess whether the actus reus of that offense is present.
3. Determine if the mens rea for that offense is satisfied.
4. Consider any applicable defenses and apply them to the facts.
5. If either the actus reus or mens rea for the initial offense is lacking, move down to the next less serious offense and repeat the process.