Lecture 3- Non-Fatal

Question 1

Key Principle

Answer 1

Key to the law is the right to bodily integrity: a person should not be touched against their wishes
Thomas

Question 2

Statute

Answer 2

Offences against the Person Act 1861

Question 3

Non-Fatal Offences

Answer 3

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)

Question 4

Assault and Battery Provisions

Answer 4

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.”

Question 5

Assault Definition

Answer 5

any act which intentionally— or … recklessly—causes another person to apprehend immediate and unlawful personal violence’
Fagan v Metropolitan Police Commissioner [1969]

Question 6

Assault AR

Answer 6

any act which causes another person to apprehend immediate and unlawful personal violence

Question 7

Assault MR

Answer 7

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

Question 8

Assault Omissions

Answer 8

Generally considering positive acts.

Failure to rectify a dangerous situation and the relevant MR will suffice (Miller).

Question 9

Must V fear violence?

Answer 9

The V does not have to fear violence-it must be apprehended

Question 10

No apprehension Case

Answer 10

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.

Question 11

Words negate assault

Answer 11

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.

Question 12

Assault Omissions

Answer 12

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.

Question 13

Can words amount to assault?

Answer 13

Constanza [1997] -
Words can constitute assault/Immediacy does not exclude the immediate future

Question 14

Silent phone calls

Answer 14

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).

Question 15

What is immediacy?

Answer 15

Lord Steyn in Ireland indicated that p. 320↵a fear of violence ‘within a minute or two’ might be sufficient to constitute an assault

Question 16

Battery

Answer 16

A battery is an act (or omission) by which D intentionally or recklessly applies unlawful personal force to V.

Question 17

How much force?

Answer 17

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.

Question 18

Indirect Force

Answer 18

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

Question 19

Battery Omissions

Answer 19

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]

Question 20

Dangerous situation Case

Answer 20

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.

Question 21

Assault Occasioning ABH (s47)

Answer 21

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.

Question 22

S47 AR

Answer 22

1.The Assault or Battery
2.Occasioning (the rules of causation)
3.The ABH

Question 23

What is occasioning?

Answer 23

‘Occasioned’ has been interpreted as meaning the same as caused.65 (Roberts (1971))

Question 24

What is ABH?

Answer 24

Actual bodily harm has been defined as ‘any hurt or injury calculated to interfere with the health or comfort’ of the victim which is more than transient and trifling.(Donovan [1934])

Bruising, grazes, the causing of tenderness,57 temporary loss of consciousness,58 or breaking of teeth could be included within actual bodily harm.

Question 25

What about psychiatric illness?

Answer 25

The House of Lords in Ireland held that psychological injuries could be included in the term ‘actual bodily harm’, but only if they were medically recognized conditions which involved more than fear, panic, or distress.

R v Chan-Fook [1993]- Psychiatric injury with medical evidence =bodily harm
In any case where psychiatric injury is relied upon as the basis for an allegation of bodily harm, and the matter has not been admitted by the defence, expert evidence should be called by the prosecution.

Question 26

ABH
CPS Charging Standards

Answer 26

Requirement for “serious” injury.

In determining whether or not the injuries are serious, relevant factors may include, for example, the fact that there has been significant medical intervention and/or permanent effects have resulted.

Examples may include cases where there is the need for a number of stitches (but not the superficial application of steri-strips) or a hospital procedure under anaesthetic.

But there may be other factors which are also relevant and these will need to be carefully considered when deciding whether or not the injuries are serious.

Psychological harm that involves more than mere emotions such as fear, distress or panic can amount to ABH.

Question 27

ABH- What must D intend?

Answer 27

Section 47 is a ‘constructive’ crime – D only requires the MR for the assault/battery.

Savage and Parmenter [1992]

There is no need to show that the defendant foresaw the actual bodily harm.

Question 28

Wounding or inflicting GBH (s20)

Answer 28

Whosoever shall unlawfully and maliciously wound or inflict grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be liable … to imprisonment for a term not exceeding five years

Question 29

First Offence

Answer 29

Offence 1

D wounds V and;

D intends to cause some harm or

D is subjectively reckless that some harm will be caused

Question 30

Second Offence

Answer 30

Offence 2

D causes grievous bodily harm to V and;

D intends to cause some harm; or

D is subjectively reckless that some harm will be caused

Question 31

Wounding

Answer 31

Eisenhower [1984]
A break in the continuity of the whole of the skin
A rupture of an internal blood vessel is not a wound

R v M’Loughlin (1838)- Wound must be a cut through 2 layers of the skin/ not just the epidermis.

Question 32

Must the D foresee the wounding?

Answer 32

Section 20 wounding is a ‘constructive’ crime – D only requires the MR for the possibility of some harm, albeit minor.

Mowatt [1967]

Question 33

S20- Must the D foresee the GBH?

Answer 33

Section 20, GBH is a ‘constructive’ crime – D only requires the MR for the possibility of some harm, albeit minor.

Savage and Parmenter [1992] -Intention or foresight that the act will cause some harm.

Question 34

What does inflict mean?

Answer 34

However, in Burstow, Lord Steyn explained that although the words cause and inflict were not synonymous, ‘in the context of the Act of 1861 there is no radical divergence between the meaning of the two words’

Question 35

Negative Judicial Consideration

Answer 35

Clarence (1888) 22 QBD 23- Infliction requiring a blow or direct and aggressive touch.

Question 36

What is GBH?

Answer 36

Grievous bodily harm (GBH) means ‘really serious bodily harm’.75 (DPP v Smith [1961]

Grievous bodily harm can include very serious psychological harm.
(Burstow [1998]) To amount to grievous bodily harm there must be more than serious distress or upset: there must be a serious identifiable clinical condition.

Question 37

Golding [2014]

Answer 37

Genital herpes constitutes GBH

Question 38

Bollom [2003]

Answer 38

The factors of the victim must be taken into account/ multiple injuries can constitute GBH

Question 39

Biological Harm

Answer 39

R v Dica

The effect of this judgment in relation to section 20 is to remove some of the outdated restrictions against the successful prosecution of those who, knowing that they are suffering HIV or some other serious sexual disease, recklessly transmit it through consensual sexual intercourse, and inflict grievous bodily harm on a person from whom the risk is concealed and who is not consenting to it.

Question 40

Biological Harm Development

Answer 40

R v Konzani
Equally the defendant is not to be convicted if there was, or may have been an informed consent by his sexual partner to the risk that he would transfer the HIV virus to her. In many cases, as in Dica itself, provided recklessness is established, the critical factual area of dispute will address what, if anything, was said between the two individuals involved, one of whom knows, and the other of whom does not know, that one of them is suffering the HIV virus.

Question 41

Biological Harm Rulings

Answer 41

D is guilty:

of an offence under section 20 of the Offences Against the Person Act 1861 if:

D is aware that there is a risk that by having sexual relations they might cause the other person to suffer some harm (e.g. by becoming HIV-positive);

the victim has not given consent to run the risk of becoming HIV-positive;

(2) of an offence under section 18 of the Offences Against the Person Act 1861 if D intends to cause the victim to suffer grievous bodily harm as a result of the sexual intercourse. In such a case even if the victim consents to running the risk of acquiring the HIV virus there would be no defence.

Question 42

Maranguanda [2009]

Answer 42

gonorrhea

Question 43

Wounding or causing GBH with intent (s18)

Answer 43

Whosover shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person … with intent … to do some GBH to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of an offence and being convicted thereof shall be liable … to imprisonment for life

Question 44

Offence 1

Answer 44

D wounds V;
D intends to cause GBH.

Question 45

Offence 2

Answer 45

D wounds V;
D intends to cause some harm; or D is subjectively reckless that some harm will be caused
D intends to resist or prevent the lawful apprehension or detainer of any person.

Question 46

Offence 3

Answer 46

D causes GBH;
D intends to cause GBH.

Question 47

Offence 4

Answer 47

D causes GBH;
D intends to cause some harm; or D is subjectively reckless that some harm will be caused
D intends to resist or prevent the lawful apprehension or detainer of any person.

Question 48

Intention to cause GBH

Answer 48

Banton [2007]
Evidence must be required to convict D of lesser offence. Demonstrated intention through act (hitting with bottle)- S20 not allowed.

Question 49

CPS Charging Standards

Answer 49

repeated or planned attack, deliberation selection of a weapon or adaptation of an article to cause injury such as breaking a glass before an attack, making prior threats, using offensive weapon against or kicking the victim’s head

Question 50

Consenting to Harm

Answer 50

Rex v. Donovan [1934]

“it is an unlawful act to beat another person with such a degree of violence that the infliction of bodily harm is a probable consequence, and when such an act is proved, consent is immaterial

Question 51

More than Common Assault

Answer 51

R v Brown [1993]
Consent is not a defence to an offence with a higher level of harm than common assault

Question 52

Fighting

Answer 52

Attorney-General’s Reference (No. 6 of 1980) [1981] where two men quarrelled and fought with bare fists Lord Lane C.J., delivering the judgment of the Court of Appeal, said, at p. 719: “it is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason.

Question 53

Public Policy Exceptions

Answer 53

1.Surgery and body modification
2. Competitive Sports
3.Horseplay
4.Reasonable Chastisement of Children
5.Reckless Transmission of Disease

Question 54

Surgery + BM

Answer 54

Wilson [1996] - Branding as a form of tattooing/ Removed the requirement of infliction being a direct forceable act
R v BM [2018] EWCA Crim 560- body modification is not covered by the exception (serious nature/ requirement to have a medical license)

Question 55

Competitive Sports

Answer 55

Barnes [2004]

Consent is usually a defence to injuries received in the course of a sporting event, even if those injuries involve actual bodily harm.221 It is presumed that by deciding to play the sport the victim has consented to the infliction of the kind of force normally involved in the game.

the Court of Appeal held that if there was a foul ‘quite outside what could be expected to occur in the course of a football game’(28) that could be a criminal offence

Question 56

Consent depends on

Answer 56

Implied consent here depends on: (the context)

the nature of the act/ injuries

the specific rules of the game

NB: consent is not precluded simply because the game’s rules are broken – as this is accepted as part of the nature of the game.

Question 57

Horseplay

Answer 57

Jones [1987]- Rough and undisciplined horseplay as a public policy exception

Aitken [1992] - Genuine belief in consent is sufficient

Richardson and Irwin [1999]
Similarly students throwing each other off balconies were found to be engaged in rough horseplay and the victim’s consent (or the defendant’s belief in the victim’s consent) provided a defence to a criminal charge.

Question 58

Reckless Transmission of Disease

Answer 58

Dica [2004] QB 157
Konzani [2005] 2 Cr App Rep 14

“’Informed consent’ does not necessarily mean that the defendant must disclose his or her condition to the complainant.” (CPS Legal Guidance)

It is possible that, on rare occasions, a person can know that he or she is infected without undergoing the necessary medical tests. This will depend on all the circumstances and will be a matter for the jury to decide. … ‘Wilful blindness’ by not undergoing testing may be a factor that a jury can take into account when deciding the question of the defendant’s ‘knowledge’
(CPS Legal Guidance)