non fatal non sexual offences against the person

Question 1

what are the 5 non fatal non sexual offence against the person

Answer 1

assault
battery (assault by beating)
assault occasioning ABH
wounding or inflicting GBH
wounding or causing GBH with intent

Question 2

assault details
-source of the offence
-mode of trial
-sentence

Answer 2

common law/ criminal justice act 1988

-summary only

-6 months imprisonment

Question 3

battery details

Answer 3

source= common law/criminal justice act 1988

-summary only

-6 months imprisonment

Question 4

assault occasioning abh

Answer 4

source= oapa s47

triable either way

5 years imprisonment

Question 5

wounding or inflicting gbh

Answer 5

OAPA S20

Triable either way

5 years imprisonment

Question 6

wounding or causing gbh with intent

Answer 6

oapa s18

indictable only

life imprisonment

Question 7

summary only meaning

Answer 7

What does Summary Only Offence mean?
A criminal offence which is normally tried in a magistrates’ court and which is generally considered to be less serious than other types of offences.

Question 8

triable either way meaning

Answer 8

What does Triable either way mean?
A criminal offence which can be tried in either the magistrates’ court or the Crown Court.

Question 9

indictable only meaning

Answer 9

An offence which is triable only on indictment in the Crown Court.
An adult defendant must be sent forthwith to the Crown Court from the magistrates’ court if charged with an indictable-only offence

Question 10

purpose of OAPA

Answer 10

Key to the law is the right to bodily integrity: a person should not be touched against their wishes.1 This right is protected under the common law2 and Article 8 of the European Convention on Human Rights. The significance the law attaches to this right is revealed by these two cases:

Question 11

CASE OF THOMAS

Answer 11

In Thomas it was held that the unwanted touching of the bottom of a girl’s skirt amounted to a battery. The rubbing of someone’s clothing might appear to some to be too trivial a harm to justify the intervention of the criminal law, but it reveals the weight attached to the right not to be touched without one’s consent.

Question 12

CASE OF ST GEORGES HEALTHCARE NHS TRUST V S

Answer 12

It reveals that the right to bodily integrity is protected, even if there may be some very good reasons for infringing it.

There, a woman in the late stages of labour was advised that she should have a Caesarean section operation, without which her life and that of her unborn child were in danger. She refused to consent to the operation, wanting a natural delivery.

The hospital authorities, having obtained a court order permitting them to do so, carried out the operation against her will.

The Court of Appeal held that the court order should not have been granted. The woman’s right to bodily integrity was held to be preciously guarded by the law. Even if her decision might appear to be irrational to others, and even if abiding by her decision might lead to her own death and that of her child, it had to be respected by doctors, as long as the woman was competent.

Question 13

difference between assault and battery

Answer 13

Technically assault and battery are two separate crimes.
In brief, a battery involves an unlawful and unwanted contact with the body of another, while an assault involves causing another to apprehend the possibility of imminent unlawful contact.

Question 14

assault actus reus

Answer 14

Actus reus: the defendant caused the victim to apprehend imminent unlawful force

D causes V to apprehend immediate unlawful personal force
(force can be minimal eg spitting at someone, not necessarily violent, any form of apprehended unwanted contact eg someone attempting to kiss you can be considered assault )

Question 15

assault mens rea

Answer 15

Mens rea: the defendant intended or was reckless that the victim would apprehend imminent unlawful force. Although the basic meaning of ‘assault’ is straightforward, the courts have struggled with the precise parameters of the offence.

D intends or is reckless that V will apprehend immediate unlawful personal force

Question 16

must v fear violence?

Answer 16

Don’t have to show the victim is afraid just have to show an apprehension- e.g. thinking someone’s going to punch you- you’re not afraid but you apprehend the person is going to punch you

Question 17

can an omission constitute an assault?

Answer 17

Omission usually not enough – however the miller case is an exemption

Question 18

miller case

Answer 18

The defendant, Mr Miller, had been the husband of the victim who, at the time of the alleged offence, had left the respondent and filed a petition for divorce on grounds of adultery. During this period, the defendant met with the victim and had intercourse with her against her will. This caused the victim to suffer significant mental distress. The defendant was charged with both rape and, in the alternative, assault occasioning actual bodily harm under section 47 OAPA. An appeal was brought on the basis that the defendant had no case to answer; a husband could not rape his wife, as a wife impliedly consented to intercourse for the duration of the marriage.

That the appellant could not be guilty of rape, as the implied consent of a wife to have intercourse with her husband could only be revoked by court order or a binding separation agreement. In the circumstances, this consent had not been revoked. Nevertheless, a husband was not entitled to use force or violence for the purposes of exercising his right to intercourse; to do so would amount to an assault.

Question 19

can words constitute an assault

Answer 19

house of lords decision in R V IRELAND
-makes it clear words can constitute an assault

In that case silent telephone calls were held to be assaults. 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 20

r v ireland case details

Answer 20

Robert Ireland made a large number of telephone calls to three women. When they answered he remained silent. The women as a result suffered psychological harm. He pleaded guilty to a charge of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861, following the direction of the trial judge that the facts of the case could justify such a conviction. He appealed on the basis that the admitted facts were incapable of amounting to the offence.

Question 21

aprehension of force?

Answer 21

If the victim suffers no apprehension there can be no assault. So if the defendant utters vile threats against the victim, which do not perturb the victim at all (e.g. because they do not believe for a moment that the defendant will carry them out) there can be no assault

Does the victim of an assault have to apprehend violence, or is the apprehension of a touching sufficient? Although the House of Lords in Savage and Parmenter and in Burstow and Ireland defined an assault as involving the apprehension of violence, it is well established in the case law that an apprehension that one is about to be stroked or kissed can amount to an assault.

Question 22

what does imminent mean

Answer 22

The victim’s apprehension must be of imminent harm. It is well established that a threat to be violent in the distant future (e.g. ‘I will beat you up next week’) is not an assault.
But what about a threat to cause violence in the near future? Lord Steyn in Ireland indicated that a fear of violence ‘within a minute or two’ might be sufficient to constitute an assault.
This leaves open the question of exactly where the line is to be drawn: is fear of violence in ten minutes enough, an hour, a day? We can know only when we have further guidance from the courts.

Question 23

Is it enough for the victim to fear there may be violence?

Answer 23

Lord Steyn stated that an assault would occur if the victim feared the defendant might come round within a minute or two.

The significance of this was revealed in Constanza where the defendant sent over 800 letters to the victim, repeatedly drove past her home, and on three occasions wrote offensive words on her front door.

On 4 and 12 June she received two letters which she interpreted as threatening. It was accepted that when she opened the letters and read them she feared that the defendant might harm her ‘at some time not excluding the immediate future’.
This was sufficient to amount to an assault because among her fears was that the defendant might inflict some force imminently.

Question 24

Must the threat be of a touching from the defendant?

Answer 24

What if the defendant threatens to ask someone else to cause harm to the victim? Could this be an assault?
The issue has not been addressed directly by the courts, but the answer is likely to be yes. It is an assault for a defendant to threaten to set an animal on the victim.
By analogy, threatening to set a boyfriend on the victim should also be an assault. But it would seem unlikely for there to be an offence where the defendant simply tells the victim that she is being followed by someone.

This is not an assault because, although as a result of what the defendant has said the victim may apprehend imminent force, there is nothing in the nature of a threat in what the defendant has said.

Question 25

Does the defendant have to intend to carry out the threat?

Answer 25

The fact that the defendant does not intend to carry out the attack does not mean that an act cannot constitute an assault.
In Logdon v DPP the defendant showed the victim a gun and announced he would keep the victim hostage.

The defendant argued that he did not intend to carry out his threat, and indeed because the gun was a fake he was not able to and therefore he could not be guilty of an assault.

His conviction for assault was upheld because he had created fear of violence in the victim. The fact that he did not intend to carry out the threat and was incapable of doing so provided no defence.

Question 26

What if the threat is conditional?

Answer 26

What is the position if the defendant says, ‘Unless you retract that insult I will punch you’? The argument could be made that this is not an assault because the victim has it in their power to avoid the violence by acting as requested and so cannot apprehend imminent force.

However, there are also arguments that the victim is still placed at risk of violence because by acting in a lawful way (e.g. keeping silent) she will still be liable to violence and this should amount to an assault.

The courts have not provided clear guidance on this issue. In R (Kracher) v Leicester Magistrates’ Court24 the words ‘Fuck off. If you come round the back I will beat you up’ were held to be an assault, although arguably they only threaten to beat up the defendant if he ‘comes round the back’.

Question 27

conditional threats

Answer 27

It is important to distinguish a conditional threat from words which negate a threat.

For example, in Tuberville v Savage, while holding a sword the defendant stated: ‘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.

The case has been widely interpreted as one where the defendant’s words negated what would otherwise be an assault (the holding of the sword).

Jeremy Horder has argued that in some cases there can be an assault even if the defendant’s words negative the threat: if the defendant said to the victim ‘If we were alone I would attack you’ this might be seen as an implied threat that the moment the other people left an attack would be carried out.

Question 28

Does an assault require an act?

Answer 28

In Fagan v Metropolitan Police Commissioner it was suggested by the Divisional Court that an assault requires proof of a positive act and cannot be committed merely by an omission.

Consider the following: a man is looking up at a house when he sees a woman come to the window, notice him, and appear frightened.

Is it an assault if he remains standing where he is and does not move? 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.
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 29

What does it mean that the apprehension must be of unlawful force?

Answer 29

The force which the victim apprehends must be unlawful. So if the apprehended touching would not be a criminal offence, for example because it would be done lawfully in self-defence, then there would be no assault.

Question 30

What is the mens rea for an assault?

Answer 30

The defendant must be shown to intend or be reckless as to the creation of apprehension of imminent unlawful violence.

This was made clear in the Court of Appeal’s decision in Venna, which was approved obiter by the House of Lords in Savage and Parmenter.

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 31

battery actus reus

Answer 31

Actus reus: the defendant touched or applied force to the victim.

Question 32

battery mens rea

Answer 32

Mens rea: the defendant intended or was reckless as to touching or applying force to the victim.

Question 33

how can a battery be committed

Answer 33

A battery can be committed without the victim suffering any kind of injury.
So a touching can constitute a battery.
Indeed, even touching the clothes that someone is wearing can be.

So the offence of battery does not necessarily involve a harming of the body (as the more serious offences against the person do); it includes an invasion of ‘personal space’.
It is no defence to show the touching was trivial.
This is shown by the fact that a battery can take place even if the victim did not feel the touching.

Question 34

Can the battery be carried out via an object?

Answer 34

There seems little doubt that a battery can be carried out through an object. In Fagan the defendant committed a battery by placing his car on the victim’s foot and leaving it there. By virtue of similar reasoning it has been well established that spitting on someone40 or throwing beer on them41 constitutes a battery.

Question 35

Can the battery be carried out by omission?

Answer 35

It is clear from Fagan that the courts are willing to find a battery even if in a sense the case involved an omission.
There, by placing the car on the policeman’s foot and not removing it, the defendant was continually committing a battery.

Question 36

dpp v santa bermudez

Answer 36

In DPP v Santa-Bermudez the defendant was asked by a police officer who was planning to search his clothing whether he had on him any sharp objects.
He said he did not, but when the officer put her hand in the pocket she was cut by a needle.
The Divisional Court had no difficulty in finding a battery, holding that ‘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 37

Does a battery require the application of force?

Answer 37

Must a battery involve the application of force or can a battery be committed indirectly

cases prove battery can be committed indirectly

Question 38

contrast to this

Answer 38

savage case;
Obiter in Savage Lord Ackner appeared to suggest otherwise, giving an example of a person who interfered with the braking mechanism of a car so that the driver subsequently had a car accident and was injured. He suggested that that might not amount to a battery (although it could be a wounding).

Question 39

newer cases

Answer 39

battery can be committed indirectly;
In DPP v K a schoolboy had placed some acid he had stolen from the science laboratory in a hand-drier. Another pupil used the hand-drier and acid was splashed upon him. It was held that this amounted to a battery, even though the schoolboy had not directly applied the acid.

Question 40

another indirect case

Answer 40

In Haystead v Chief Constable of Derbyshire the defendant struck a woman who was holding her baby.

As a result of the blows she dropped the baby. The defendant was charged with battering the baby. It was held that he was properly convicted because he had caused unlawful force to be applied to the baby when the baby hit the floor.

Question 41

Can everyday touchings amount to a battery?

Answer 41

If you were to board a tube train in London during the rush hour, inevitably you would touch others and they would touch you. Indeed, some touchings are part of everyday life. The law would not regard such touchings as batteries, as the case collins v wilcock demonstrates

Question 42

collins v wilcock

Answer 42

Two police officers suspected that two women were soliciting for the purpose of prostitution.

They approached the women, but one (the appellant) refused to answer questions and walked away. One police officer took hold of her arm.

The appellant responded by scratching the officer, and for that she was later convicted of assaulting a police officer in the execution of her duty, contrary to section 51(1) of the Police Act 1964

. She appealed against the conviction on the basis that when the assault occurred the police officer was not acting in the execution of her duty. The key question on appeal was whether in grabbing hold of the appellant the police officer was committing a battery.

The fact is that the prosecutrix took hold of the defendant by the left arm to restrain her. In so acting, she was not proceeding to arrest the defendant; and since her action went beyond the generally acceptable conduct of touching a person to engage his or her attention, it must follow, in our judgment, that her action constituted a battery on the defendant, and was therefore unlawful. It follows that the defendant’s appeal must be allowed, and her conviction quashed.

Appeal allowed. Conviction quashed.

Question 43

Must the battery be hostile?

Answer 43

There has been some debate whether a battery must involve a hostile act. The view with the most support in the case law is that there is no need for the touching to be hostile, rude, or aggressive.

A person who lovingly strokes another’s hair without that person’s consent is guilty of a battery.
The issue is in doubt, in part because Lord Jauncey in Brown suggested that a battery must involve hostility. However, he seems to have understood hostility to mean that the act was not consented to, rather than to require the act to be aggressive.

Question 44

Are the mentes reae of assault and battery interchangeable?

Answer 44

What if the defendant intends to commit a battery, but in fact commits an assault? Consider this scenario: Tom approached Sean, who was asleep, intending to touch his hair and Sean suddenly awoke and saw Tom close to him and, terrified, ran away before Tom touched him. Here Tom had the mens rea for battery, but committed only the actus reus of an assault. But does that matter?

The courts are yet to provide a clear answer. One argument is that, as the offences are so closely linked, it is possible to use the actus reus of an assault and the mens rea of the battery to establish the offence.
Another view is that Nelson states that the offences are separate and that this distinction needs to be taken seriously. Normally it is not possible to combine the mens rea of one offence with the actus reus of a different offence.

Question 45

assault occasioning abh actus reus

Answer 45

Actus reus: the defendant must commit an assault or battery which causes the victim to suffer actual bodily harm.

Question 46

mens rea

Answer 46

Mens rea: the defendant must intend or be reckless as to the assault or battery. (NB: There is no need to show that the defendant intended or foresaw actual bodily harm.)

Question 47

what is the defence broken down into

Answer 47

(1) It must be shown that there was an assault
(2) The victim must suffer actual bodily harm
(3) It must be shown that the actual bodily harm was occasioned by the common assault or battery of the defendant
(4) The mens rea requirement

Question 48

(1) It must be shown that there was an assault

Answer 48

This means either an assault or a battery. Both the mens rea and actus reus of the assault or battery must be shown

Question 49

(2) The victim must suffer actual bodily harm

Answer 49

The phrase ‘actual bodily harm’ is used to indicate a level of harm which is greater than a mere touching (a battery). Actual bodily harm has been defined as ‘any hurt or injury calculated to interfere with the health or comfort’ of the victim.

Question 50

where was any hurt or injury calculated to interfere with the health or comfort of the victim case from

Answer 50

donovan case

Question 51

case stating ‘The harm need not be permanent, but it should ‘not be so trivial as to be wholly insignificant’.

Answer 51

Hobhouse LJ in Chan-Fook [1994] 1 WLR 689, 696.

Question 52

what case describes types of injuries that are abh

Answer 52

R v Reigate Justices, ex p Counsell [1984] 148 JP 193.

Question 53

where was ‘temporary loss of consciousness constituting abh’ derived from

Answer 53

T v DPP [2003] Crim LR 622

Question 54

what guidance is issued to prosecutors

Answer 54

recommends that ‘the fact that there has been significant medical intervention and/or permanent effects have resulted’ is taken into account in deciding whether the injuries amount to actual bodily harm.

Question 55

dpp v smith

Answer 55

In DPP v Smith60 the defendant cut off a woman’s pony tail. This was held to be actual bodily harm. There was no need to show pain because ‘harm’ included hurt or damage. Hair was included as part of the body, as would be the nervous system or brain of a victim. The court did emphasize that hair was intrinsic to the identity of the individual. Cresswell J said that ‘to a woman her hair is a vitally important part of her body’. Surely this is true of some men too. No doubt if only a small piece of hair had been cut off this would have been just a battery.

Question 56

r v ireland- psycholoigcal injuries classed as ABH

Answer 56

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.

Although it might be thought to be stretching the meaning of ‘bodily’ to include psychological, the House of Lords accepted the argument that ‘the body’ includes all the organs, including the brain.

Question 57

dhaliwal case

Answer 57

In Dhaliwal it was clear that through a campaign of domestic violence the defendant had caused the victim severe psychological harm, but experts were not able to conclude it was an actual recognized illness.

The Court of Appeal held that this could not therefore amount to actual bodily harm. It would be stretching the law too far, they held, to extend the meaning of bodily harm to psychological harms which were not recognized illnesses

Question 58

3=bodily harm was occasioned by the common assault or battery of the defendant

Answer 58

‘Occasioned’ has been interpreted as meaning the same as caused.

In the case of battery this is normally straightforward.

If A hits B in the face, that is a battery; if that leaves B with a bruise then clearly there has been an assault (i.e. a battery) which has occasioned actual bodily harm. It is also possible for the offence to involve an assault.

Question 59

case example

Answer 59

A good example is Roberts, where the Court of Appeal convicted a defendant who started to sexually assault a woman in his car; she was so frightened that she jumped out of the car.

Here he assaulted her and this assault caused her to jump out of the car and suffer actual bodily harm.

In a case like Ireland it may be hard to show that the psychological harm was caused by the apprehension of imminent harm rather than by something else.

Question 60

(4) The mens rea requirement

Answer 60

It should be stressed that the only mens rea requirement for an assault occasioning actual bodily harm is intent or recklessness that the victim will suffer an assault or battery.
There is no need to show that the defendant foresaw the actual bodily harm. This was made clear in the House of Lords decision in Savage and Parmenter.
This offence therefore infringes ‘the correspondence principle’

Question 61

MALICIOUS WOUNDING

ACTUS REUS

Answer 61

Actus reus: the defendant unlawfully either:

(1)
wounded the victim; or

(2)
inflicted grievous bodily harm to the victim.

Question 62

MENS REA

Answer 62

Mens rea: the defendant foresaw that the victim might suffer some harm. (NB: It is not necessary to show that the defendant intended or foresaw that the victim would suffer grievous bodily harm.)

Question 63

(1) Unlawfully MEANING

Answer 63

This means that the defendant acted without lawful justification. An example of a lawful justification is where the defendant was acting in self-defence.

Question 64

(2) Wound MEANING

Answer 64

This has been interpreted in C v Eisenhower to mean a break in the continuity of the whole of the skin.

A rupture of an internal blood vessel is not a wound.
However, the breaking of an inner membrane which is analogous to skin may constitute a wound. So it is generally accepted that an injury to the inside of a mouth was a wound.

The requirement that the whole of the continuation of the skin be broken means that a scratch may draw blood but may not be deep enough for a wound if it only disturbs the outer layer of the skin.

Question 65

(3) Grievous bodily harm MEANING

Answer 65

Grievous bodily harm (GBH) means ‘really serious bodily harm’.75 It is for the jury to decide whether the injuries amount to GBH using ‘contemporary social standards’ - DERIVED FROM Golding [2014] EWCA Crim 889.