Lecture 3- Non-Fatal Flashcards
Key Principle
Key to the law is the right to bodily integrity: a person should not be touched against their wishes
Thomas
Statute
Offences against the Person Act 1861
Non-Fatal Offences
Assault (common law)
Battery (common law)
Assault occasioning actual bodily harm (OAPA s.47)
Maliciously wounding or inflicting GBH (OAPA s.20)
Wounding or causing GBH with intent (OAPA s.18)
Assault and Battery Provisions
Criminal Justice Act 1988, s.39
“Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment not exceeding six months or to both.”
Assault Definition
any act which intentionally— or … recklessly—causes another person to apprehend immediate and unlawful personal violence’
Fagan v Metropolitan Police Commissioner [1969]
Assault AR
any act which causes another person to apprehend immediate and unlawful personal violence
Assault MR
any act which intentionally— or … recklessly—causes another person to apprehend immediate and unlawful personal violence
Venna
It must be shown that the defendant foresaw the apprehension of imminent unlawful violence. It is not enough to show that the defendant should or could have foreseen it
Assault Omissions
Generally considering positive acts.
Failure to rectify a dangerous situation and the relevant MR will suffice (Miller).
Must V fear violence?
The V does not have to fear violence-it must be apprehended
No apprehension Case
Lamb [1967]
Mens rea being an essential ingredient, manslaughter could not be established in relation to the first ground except by proving that element of intent without which there could be no assault.
Words negate assault
Tuberville v Savage (1669)
If it were not assize time, I would not take such language.’ Here the defendant was making it clear he was not going to attack the victim.
Assault Omissions
Fagan v Metropolitan Police Commissioner [1969]
The dicta in Fagan imply that he could not be guilty. However, a strong case can be made for saying that an omission can amount to an assault if the defendant is acting unlawfully.30 So if a trespasser is suddenly aware that his presence in the victim’s garden is startling the victim, he may be committing an offence by remaining there.
Can words amount to assault?
Constanza [1997] -
Words can constitute assault/Immediacy does not exclude the immediate future
Silent phone calls
Ireland; Burstow [1998]- Held that silent phone calls can amount to assault
It is clear from Lord Steyn’s judgment that what matters is that the defendant has caused the victim to apprehend imminent harm. Exactly how that fear was created is immaterial (be it by acts, silence, writing,10 or words).
What is immediacy?
Lord Steyn in Ireland indicated that p. 320↵a fear of violence ‘within a minute or two’ might be sufficient to constitute an assault
Battery
A battery is an act (or omission) by which D intentionally or recklessly applies unlawful personal force to V.
How much force?
Collins v Wilcock- Slightest Touch/ Highlighting implied and expressed consent.
Thomas (1985) - Does not require the V to feel the touch/ touch of clothes is sufficient.
Indirect Force
Martin (1881)
He acted “unlawfully and maliciously,” not that he had any personal malice against the particular individuals injured, but in the sense of doing an unlawful act calculated to injure, and by which others were in fact injured.
something must still touch the victim
Battery Omissions
Fagan v Metropolitan Police Commissioner [1969]- Generally, battery cannot be committed through an omission.
Except for when a dangerous situation is created (R v Miller [1983]
Dangerous situation Case
Santana-Bermudez [2004]
where someone (by act or word or a combination of the two) creates a danger and thereby exposes another to a reasonably foreseeable risk of injury which materialises, there is an evidential basis for the actus reus of an assault occasioning actual bodily harm.
Assault Occasioning ABH (s47)
Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable … to be imprisoned for any term not exceeding five years.
S47 AR
1.The Assault or Battery
2.Occasioning (the rules of causation)
3.The ABH
What is occasioning?
‘Occasioned’ has been interpreted as meaning the same as caused.65 (Roberts (1971))