Common Assault- Actus Reus and Mens Rea of Assault & Battery Flashcards
What are the two types of Common Assault?
- assault
- battery
What type of offences are assault and battery?
common law offences
What does assault and battery not have?
statutory defintion
Although there is no statutory deffiniton for either assault or battery, what does statute law recognise?
that their existence of these offences are charged under s39 of the Criminal Justice Act 1988
What is the maximum punishment for common assault under s39 of the Criminal Justice Act 1988?
6 months imprisonment or a fine of £5,000
How is the act involved different for assault and battery/
For assault, there is no touching, only the fear of immediate, unlawful force. For battery, there must be an actual force
What would be an example of a situation which both assault and battery occurs?
If D approaches victim shouting that he is going to ‘get him’ then punches victim in the face
What is the definition of assault?
An which causes the victim to apprehend the infliction of immediate, unlawful force with either an intention or a subjective recklessness to cause such fear
What is the definition of battery?
The application of unlawful force to another person intending either to apply unlawful physical force to another or reckless as to whether unlawful force is applied.
What is assault also known as?
technical assault or psychic assault
For an assault there must be what?
-an act which causes the victim to apprehend the infliction of immediate, unlawful force
An assault requires some act or words. What does not suffice to constitute an assault?
an omission
Although an omission does not suffice to constitute an assault, what does?
words, both verbal and written
What was the overall decision made in Constanza 1997?
the COA held that letters could be an assault
happened in the case of Constanza 1997?
D had written 800 letters and made a number of phone calls to the victim. V interpreted the last two letters as clear threats. COA said there was an assault as there was a ‘fear of violence at some time, not excluding the immediate future’
D had written 800 letters and made a number of phone calls to the victim. V interpreted the last two letters as clear threats. COA said there was an assault as there was a ‘fear of violence at some time, not excluding the immediate future’
What case is this?
Constanza 1997
What was decided in the case of Ireland 1997?
it was held that even silent telephone calls can be an assault, but it depends on the facts of the case
When can the offence of assault not be charged?
when the situation is such that it is obvious that the defendant cannot actually use force
What is an example of when an assault would not have taken place?
If D shouts threats from a passing train there is no possibility that he can carry out the threats in the immediate future
In what case was it decided that pointing an unloaded gun a someone who knows that it is unloaded cannot be an assault?
Lamb 1967
In the case of Lamb 1967 why was it decided that pointing an unloaded gun a someone who knows that it is unloaded cannot be an assault?
as the other person does not fear immediate force
fear of immediate violence does not mean instantaneous, but what?
imminent
As fear of immediate violence does not mean instantaneous, but imminent, what is an example?
an assault can be through a closed window
What case reflects that an assault can be through a closed window?
Smith v Chief Superintendent of WPS 1983
What happened in the case of Smith v Chief Superintendent of WPS 1983
D broke into a garden and looked through V’s window at 11pm, causing V to be terrified that D might enter. Although no immediate attack could be made, the court held V was frightened by conduct and the conduct of D was likely to be violent, this was sufficient for the purposes of the offence
In regards to words, what can prevent an act from being an assault?
if the words indicate that there will be no violence
Words indicating that there will be no violence may prevent an act from being an assault. Where does this principle come from?
an old case of Tuberville v Savage 1669
What happened in the case of Tuberville v Savage 1669?
D placed one hand on his sword and said ‘If it were not assize time, I would not take such language from you’ This was held not to be an assault as what he said showed he was not going to do anything
D placed one hand on his sword and said ‘If it were not assize time, I would not take such language from you’ This was held not to be an assault as what he said showed he was not going to do anything
What case is this?
Tuberville v Savage 1669
What happened in the case of Light 1857?
D raised a sword above the head of his wife and said that if it were not for the policeman outside he would split her head open. It was held that this was assault. The wife feared that force was going to be used on her and the words used were used were not enough to negate that fear
What are 4 examples of an assault
- raising a fist as though about to hit V
- throwing a stone at V, but misses
- pointing a loaded gun at someone within range
- making a direct threat
If the force used in an assault is lawful, what does this mean?
this means that there is no offence of common assault
What is the actus reus of battery?
this is the application of unlawful force to another person
How is force a slightly misleading word?
as it can include the slightest touching
What case reflects that force is misleading because it can include the slightest touching?
Collins v Wilcock 1984
What happened in the case of Collins v Wilcock 1984?
police officer took hold of woman’s arm whom he believed to be soliciting for prostitution. She scratched police officer but convicted quashed as the officer was found to have committed a battery
in the case of Collins v Wilcock 1984, what did the court point out that was allowed?
that touching a person to get his attention was acceptable provided that no greater degree of physical contact was used than was necessary
What happened in the case of Wood v DPP 2008?
= Police officers went down and saw a man matching description of someone who threw an ashtray, took him by the arm and asked if he was Fraser. Man denied and tried to pull away. Man was charged with assaulting police officer. However as officer was not arresting the man at the time, this meant he was entitled to struggle and not guilty of the offence
police officer took hold of woman’s arm whom he believed to be soliciting for prostitution. She scratched police officer but convicted quashed as the officer was found to have committed a battery
What case is this?
Collins v Wilcock 1984
= Police officers went down and saw a man matching description of someone who threw an ashtray, took him by the arm and asked if he was Fraser. Man denied and tried to pull away. Man was charged with assaulting police officer. However as officer was not arresting the man at the time, this meant he was entitled to struggle and not guilty of the offence
What case is this?
Wood v DPP 2008
What happened in the case of Thomas 1985?
D touched the bottom of a woman’s skirt and rubbed it COA said obiter that there could be no dispute that if you touch a person’s clothes on someones person then it is equivalent to touching them
D touched the bottom of a woman’s skirt and rubbed it COA said obiter that there could be no dispute that if you touch a person’s clothes on someones person then it is equivalent to touching them
What case is this?
Thomas 1985
What is a way that a battery may be committed?
through a continuing act
What case is an example of when a battery may be committed through a continuing act?
Fagan v Metropolitan Police Commander 1968
What happened in the case of Fagan v Metropolitan police Commander 1968?
D parked his car with one of the tyres on a police officers foot. He was unaware he done this, but when the police officer asked him to remove it, he refused to do so for several minutes. court said that at start of the act there was no offence of battery because there was no intention. Moment intention was formed, there was an offence of battery
D parked his car with one of the tyres on a police officers foot. He was unaware he done this, but when the police officer asked him to remove it, he refused to do so for several minutes. court said that at start of the act there was no offence of battery because there was no intention. Moment intention was formed, there was an offence of battery
What case is this?
Fagan v Metropolitan Police Commander 1968
Battery can be committed through an indirect act. What is an example of this?
a booby trap
Why can someone be convicted of a battery through an indirect act?
as they can still cause force to be applied, even though D may not physically touch the victim
What case is an example of an indirect act?
Martin 1881
What happened in the case of Martin 1881?
D placed an iron bar across the doorway of a theatre and switched off the lights. In a panic members of the audience were injured when they were tapped. Martin was convicted of an offence under s.20 OAPA 1861
D placed an iron bar across the doorway of a theatre and switched off the lights. In a panic members of the audience were injured when they were tapped. D was convicted of an offence under s.20 OAPA 1861
What case is this?
Martin 1881
In Martin 1881, what was D convicted of?
s.20 OAPA 1861
What is are two modern examples of an indirect act?
DPP v K 1990
Haystead v Chief Constable of Derbyshire 2000
What happened in the case of DPP v K 1990?
D was a schoolboy who stole and hid acid in a dryer, scared he would be caught. D charged with assault occasioning ABH, magistrates acquitted. Prosecution appealed, D was liable as it was held that common assault could be committed by an indirect act
D was a schoolboy who stole and hid acid in a dryer, scared he would be caught. D charged with assault occasioning ABH, magistrates acquitted. Prosecution appealed, D was liable as it was held that common assault could be committed by an indirect act
What happened in this case?
DPP v K 1990
What 3 cases are under indirect acts?
Martin 1881
DPP v K 1990
Haystead v Chief Constable of Derbyshire 2000
What happened in the case of Haystead v Chief Constable of Derbyshire 2000
D caused child to fall after punching the women holding the child. D found guilty as he was reckless as to whether or not his acts would injure the child
In the case of Haystead v Chief Constable of Derbyshire 2000, D was found guilty as he was reckless as to whether or not his actions would injure the child, but how else could his conviction be justified?
by the principle of transferred malice
Criminal liability can arise by way of an omission, but only if the defendant is what?
under a duty to act
What are the duties to act under criminal liability by an omission?
- statutory duty
- contractual duty
- duty because of a relationship
- duty which has taken out voluntarily
- duty through official position
- duty which arises because defendant has set in motion a chain of events
Why is it difficult to think how examples of criminal liability for assault and battery through an omission?
this is because the actus reus of battery is application of unlawful force
What is one reported case whereby an omission has led to criminal liability of a common assault?
DPP v Santa Bermundez 2003
What happened in the case of DPP v Santa Bermudez 2003?
Policewoman asked D if there was an sharp objects in pockets. D said no. Policewoman was injured by a needle, causing bleeding. DC held failure to tell V meant that this could amount to the actus reus for the purposes of an assault causing ABH
Policewoman asked D if there was an sharp objects in pockets. D said no. Policewoman was injured by a needle, causing bleeding. DC held failure to tell V meant that this could amount to the actus reus for the purposes of an assault causing ABH
What case is this?
DPP v Santa Bermudez
What case acts as an analogy for an omission which could make a defendant liable as D created a dangerous situation which may have lead to force being applied to the victim/
Miller 1983
What happened in the case of Miller 1983?
D accidentally set mattress on fire but failed to do anything to prevent damage where he was sleeping. Convicted of arson
D accidentally set mattress on fire but failed to do anything to prevent damage where he was sleeping. Convicted of arson
What case is this?
Miller 1983
How could Miller 1983 have been an example of someone liable for common assault battery?
as if someone else was sleeping in the same room as Miller and he had failed to wake them up and warn them of danger, then he would have been liable for a battery if there had been a problem, such as plaster falling from ceiling.
When may unlawful force not be used to convict D?
if the victim gives genuine consent in some cases
When may force be lawful? (3)
in cases of self defence or in the prevention of crime, though only reasonable to the situation
in the correction of a child by a parent
What does English law recognise regarding force allowed by a parent to correct a child ?
recognises that moderate and reasonable physical chastisement of a child is lawful
What happened in the case of A v UK 1998?
a jury acquitted a father who had beaten his son with a garden cane but ECHR ruled that force on children offends Art 3
What Act now provides that a battery committed to a child is unlawful if it results in injury?
Children Act 2004
a jury acquitted a father who had beaten his son with a garden cane but ECHR ruled that force on children offends Art 3
What case is this?
A v UK 1998
What was the main point of law made in Constanza 1997?
Written words can be an assault if they cause V to fear immediate violence
What was the main point of law made in Smith v Chief Superintendent 1983?
Fear of what D would do next was sufficient for actus reus of assault
What was the main point of law made in Tubercle v Savage 1669?
Words can prevent an act from being an assault, but it depends on circumstance
What was the main point of law made in Collins v Wilcock 1984?
Any touching may be a battery, and always is if there was any physical restraint
What was the main point of law made in Wood v DPP 2008?
This was a battery by the police and W was entitled to struggle to release himself
What was the main point of law made in Fagan v MPC 1968?
The actus reus of an assault can be an on going act so that ehe complete offence is committed when D forms the mens rea
What was the main point of law made in DPP v K 1990?
An indirect act can be the actus reus of assault
What was the main point of law made in DPP v Santa Bermudez 2003?
An omission is sufficient for the actus reus of assault
What was the main point of law made in DPP v Majewski 1976?
Getting drunk is a reckless course of conduct and is sufficient for the mens rea of an assault
What is the mens rea for assault?
either an intention to cause another to fear immediate unlawful personal violence, or recklessness as to whether such fear is caused
What is the mens rea for battery?
either an intention to apply unlawful physical force to another or recklessness as to whether unlawful force is applied
What 2 things are sufficient for both assault and battery?
intention or recklessness
What is the test for recklessness?
subjective
How can a person have committed an assault under subjective recklessness?
if they realised that there was a risk that their actions could cause another to fear unlawful personal violence
What are Assault and battery classed as?
offences of basic intent
How can a person have committed a battery under subjective recklessness?
The defendant must have realised that there is a risk that his actions (or omission) could cause unlawful force to be applied to another
Assault and battery are classed as offences of basic intent, what does this mean?
this means that if the defendant is intoxicated when he does the relevant actus reus he is considered as doing it recklessly
In what case did the HOL state that defendants who are intoxicated when they do the relevant actus reus are considered as doing it recklessly?
DPP v Majewski 1976
What happened in the case of DPP v Majewski 1976?
D had taken drink and drugs, attacked the landlord of a pub and police officers. Law Lords held that becoming intoxicated was a reckless course of conduct and is enough to constitute the necessary mens rea
D had taken drink and drugs, attacked the landlord of a pub and police officers. Law Lords held that becoming intoxicated was a reckless course of conduct and is enough to constitute the necessary mens rea
What case is this?
DPP v Majewski 1976
Why can the ruling in DPP v Majewski 1976 be criticised?
Law Lords held that becoming intoxicated was a reckless course of conduct and is enough to constitute the necessary mens rea
AS the point at which the drink and drugs are taken is a seperate time to the point the actus reus is committed, and it would be more reasonable to say that the defendant is reckless when he takes drink or drugs, but this does not necessarily mean that when he commits an assault or battery that he is reckless for the purposes of the offence
Why can the ruling in DPP v Majewski 1976 be criticised?
Law Lords held that becoming intoxicated was a reckless course of conduct and is enough to constitute the necessary mens rea
AS the point at which the drink and drugs are taken is a seperate time to the point the actus reus is committed, and it would be more reasonable to say that the defendant is reckless when he takes drink or drugs, but this does not necessarily mean that when he commits an assault or battery that he is reckless for the purposes of the offence
Where is the lowest level of injury, ‘actual bodily harm’ referred to?
s.47 of the Offences Against the Person Act 1861
Within s.47 of the Offences Against the Person Act 1861 what is not included? (3)
the definition of assault or ABH, or mentioned of level of mens rea required
What is the deffiniton of assault occasioning ABH?
An assault or battery which causes actual bodily harm, with the intention to cause the victim to fear unlawful force, or to subject unlawful force, or to be subjectively reckless as to whether the victim fears or is subjected to unlawful force
In which case was it said that ABH is ‘any hurt or injury calculated to interfere with the health or comfort of the victim?
Miller 1954
What in T V DPP 2003 were held to be actual bodily harm?
-loss of consciousness, even momentarily
What happened in the case of T V DPP 2003?
D and a group of youths chased V. D kicked V. V was momentarily unconscious and remembered nothing until being woken by a police officer. D convicted of assault occasioning ABH
D and a group of youths chased V. D kicked V. V was momentarily unconscious and remembered nothing until being woken by a police officer. D convicted of assault occasioning ABH
What case is this?
T v DPP 2003
