Non-fatal offences

Question 1

What is the hierarchy of non-fatal offences?

Answer 1

Wounding or grievous bodily harm with intent (s 18 Offences Against the Person Act ‘OAPA’ 1861)- the most serious offence but committed less frequently (indictable);

• Wounding or grievous bodily harm (s 20 OAPA 1861) (either-way);
• Assault occasioning actual bodily harm (s 47 OAPA 1861) (either-way);
• Battery (summary); and
• Assault (summary)- the least serious offence but along with battery committed most frequently.

Question 2

What is the AR and MR for assault?

Answer 2

· Actus reus (AR)- causing the victim to apprehend immediate and unlawful personal violence; and

· Mens rea (MR)- intentionally or recklessly causing the victim to apprehend immediate and unlawful personal violence; and

· Absence of a valid defence- self-defence, intoxication or consent.

Question 3

What does apprehension mean for AR of assault?

Answer 3

Apprehension means to make the victim expect or anticipate but not necessarily fear immediate and unlawful personal violence

Words alone and silence is enough

If the victim is caused to apprehend such a threat, it is irrelevant that the defendant does not in fact have the means to carry out that threat.

Words can however negate an assault

Question 4

What does immediate mean for AR of assault?

Answer 4

Does not mean instantaneous but some time not excluding the immediate future (R v Constanza) or imminent (R v Ireland).

Question 5

What does unlawful mean for AR of assault?

Answer 5

Not done in self-defence or with the victim’s consent.

Question 6

What does personal violence mean for AR of assault?

Answer 6

All the victim has to anticipate is an unwanted touch.

for an assault, the victim must apprehend physical violence.

Question 7

What is the AR and MR for Assault occasioning actual bodily harm (s 47)?

Answer 7

Actus reus
* Assault- meaning an assault or battery
* Occasioning- normal principles of causation apply
* Actual bodily harm

Mens rea
* Mens rea for the assault or the battery. Intent or recklessness as to:
- causing the victim to apprehend immediate and unlawful personal violence; or
- applying unlawful force upon another.

Question 8

What is the AR and MR of battery?

Answer 8

· Actus reus (AR)- application of unlawful force; and
· Mens rea (MR)- intentionally or recklessly applies unlawful force; and
· Absence of a valid defence- self-defence, intoxication or consent

Question 9

What is application for battery?

Answer 9

Application- Battery can be inflicted:
* Directly (Collins v Wilcock).
* Indirectly (R v Martin, DPP v K). e.g. D digging a pit which V then falls into as being an indirect battery.
* By an omission (Santana Bermudez).

Question 10

What does force mean for battery?

Answer 10

Means the merest of touch (Collins v Wilcock) and doesn’t have to be rude, hostile or aggressive (Faulkner v Talbot).
* Touching someone’s clothes is enough (R v Thomas).
* Where the battery results in harm which is more than trivial, the defendant will be liable for the more serious offence under the OAPA 1861, s 47.

Question 11

What are examples of assault?

Answer 11

• Threats of violence only
• Victim anticipates violence but there is no actual touching
• Some words or physical movement from D (e.g. raising a fist towards the victim) would be sufficient
• Silence in some circumstances

Question 12

What are examples of battery?

Answer 12

Mere touch
* An unwanted kiss
* A slap
* Scratches/ grazes, minor bruising or superficial cuts

Question 13

What does occasioning mean for s 47?

Answer 13

the assault or battery must result in actual bodily harm being caused to the victim. Normal principles of causation apply.

This offence can also be committed through an omission

Question 14

What could constitute as ABH?

Answer 14

• Temporary loss of sensory function (e.g. sight or hearing)
• Temporary loss of consciousness
• Extensive bruising
• Cutting someone’s hair without their consent
• Minor fractures
• Psychiatric injury that is more than trivial- beyond mere fear, distress or panic

Question 15

What is the AR and MR for s20?

Answer 15

Actus reus
* Wound; or
* Infliction of grievous bodily harm.

Mens rea
D must intend or be reckless as to the causing of some harm.

Question 16

What constitutes as a wound?

Answer 16

There must be a break in the continuity of both layers of the skin. Both the dermis and epidermis must be broken.

Question 17

What does infliction mean?

Answer 17

The same as cause

Question 18

What does GBH mean?

Answer 18

Serious harm

Question 19

How is GBH assessed?

Answer 19

Psychiatric injury may amount to GBH if sufficiently serious, but its cause and effect will need to be proved by expert evidence.

The jury should consider the effect of the injuries on the victim, taking into account the victim’s age and health. The jury can also look at the totality of the injuries

Question 20

What are the AR and MR of s18?

Answer 20

Actus reus
* Wound; or
* Causing grievous bodily harm.

Mens rea
D must intend to cause grievous bodily harm or intent to resist or prevent the lawful apprehension or detention of any person,
coupled with the intention or recklessness as to causing some bodily harm.
Intention can be direct (aim, purpose, R v Moloney) or oblique, R v Woollin.

Question 21

When can juries find s18 by oblique intent?

Answer 21

Juries are not entitled to find s 18 by oblique intent unless they feel sure:
* serious injury was a virtual certainty as a result of the defendant’s action (objective element); and
* the defendant appreciated that (subjective element).

Question 22

What are examples of GBH?

Answer 22

Permanent loss of sensory function
Permanent disability
Broken bones
Fractured skull
Substantial blood loss
* Wound- breaking both layers of skin, the dermis and epidermis

Question 23

What is the mens rea of assault occasioning actual bodily harm?

Answer 23

The mens rea for the assault or battery

Question 24

What is the mens rea of section 20 Offences Against the Person Act 1861, malicious wounding or inflicting grievous bodily harm?

Answer 24

Intention or recklessness as to causing some harm

Question 25

What is the mens rea of section 18 Offences Against the Person Act 1861, malicious wounding or causing grievous bodily harm with intent?

Answer 25

Intention to cause grievous bodily harm

Question 26

A girl picks up a gun and points it at a boy’s head. The girl and the boy know that the gun is not loaded.

Which one of the following statements best describes the legal position?

Answer 26

The girl has no criminal liability as has not committed either an assault or a battery

The girl has not threatened unlawful violence on the boy nor touched him without consent, so does not fulfil the definitions of assault or battery.

Question 27

A youth has been kept inside by his mother after she discovered he has been delivering drugs for a gang. The youth’s handler telephones the mother and says, ‘I am outside your house with a brick which I am ready to put straight through your window. Let him out to do his job or you will regret it.’ In fact, the handler is 20 miles away. The mother, fearing that she and her son were about to get hurt, lets her son out.

Which of the following best explains whether the handler has committed an assault?

The handler will not have committed an assault as he cannot carry out his threat immediately

The handler will not have committed an assault as he gave the woman an option to avoid any harm and she took it

The handler will have committed an assault only if the mother feared she would be hurt by the brick or by broken glass should the handler carry out his threat

The handler will not have committed an assault as he has threatened to do criminal damage rather than apply personal violence

The handler will have committed an assault if he saw the risk that the mother would apprehend immediate unlawful personal violence

Answer 27

The handler will have committed an assault if he saw the risk that the mother would apprehend immediate unlawful personal violence

Correct. The mother has apprehended immediate unlawful personal violence. There is no requirement that the handler be able to carry out his threat, as held in Logdon v DPP. The mens rea is intention or recklessness as to causing another to apprehend immediate unlawful personal violence. It is very likely that the handler saw the risk of his words having this effect.
The other options are incorrect.
Where the victim does apprehend immediate and unlawful personal violence, the violence apprehended need not be the same violence as that threatened.
A conditional threat may be the basis of liability for an assault so long as the victim did apprehend immediate and unlawful personal violence.

Question 28

A boy balances a bucket of water on the top of the art room door. When the art teacher pushes open the door, the bucket falls. The bucket does not hit the teacher, but she is covered in water.

Which of the following best explains whether the boy committed a battery?

The boy has committed a battery indirectly

The boy has not committed a battery, as he applied force indirectly

The boy has committed battery directly

The boy has not committed a battery as the bucket missed the teacher but has committed an attempted battery

The boy has not committed a battery as the teacher broke the chain of causation by pushing open the door

Answer 28

The boy has committed a battery indirectly

Correct. All the elements of battery are made out. The boy has applied unlawful force to the teacher by an indirect battery. It does not matter that the force felt by the water was not hard. Collins v Wilcockheld that the merest touch counts as force. It seems the boy intended to apply unlawful force to the teacher, at least by the water falling over her.
The other options are incorrect.
Water falling over a victim will be considered the application of force, so it is not an attempted battery.
The teacher did not break the chain of causation by opening the door as her act was not a free, deliberate and informed act, R v Pagett. It is not an informed act as she does not know about the bucket.
A direct battery would be the boy hitting the art teacher or hitting the art teacher with the bucket.
Force can be applied indirectly. This scenario is similar to DPP v K where acid hitting a face from a hand dryer counted as battery.

Question 29

The leading actor in a play has upset the theatre staff by being arrogant, rude and demanding. A stagehand decides to teach the actor a lesson. He slips a drug into the wine glass from which the actor drinks during the play. The drug has a devastating effect. When the actor stands up and walks across the stage, he appears to be drunk. He tries to speak but cannot remember his words. Finally, he is sick all over the stage. The audience laughs. The effect of the drug wears off in the next 30 minutes, but the actor is very upset and feels humiliated. He gives up his part in the play. Despite not being particularly famous, he is reluctant to leave his house as he worries about appearing in public, believing everyone will recognise him and laugh at him again.

Has the stagehand caused the actor grievous bodily harm?

The stagehand has not caused the actor grievous bodily harm because serious physical injury is needed

The stagehand has caused the actor grievous bodily harm as he caused the actor to feel emotions such as upset and worry

The stagehand has caused grievous bodily harm if the actor perceives the harm done to him to be serious

The stagehand will have caused the actor grievous bodily harm if what the actor is suffering from is a serious recognised psychiatric illness

The stagehand will have caused the actor grievous bodily harm if what the actor is suffering from is a recognised psychiatric illness as all such illnesses are serious

Answer 29

The stagehand will have caused the actor grievous bodily harm if what the actor is suffering from is a serious recognised psychiatric illness

Correct. Grievous bodily harm means serious harm, R v Saunders. A recognised psychiatric illness can be actual bodily harm (R v Chan Fook) or grievous bodily harm if serious (R v Ireland).
The other options are incorrect.
A serious psychiatric illness may amount to grievous bodily harm, R v Ireland, but not all psychiatric illnesses will be considered serious.
Mere emotions such as distress, fear or panic do not count as bodily harm, so cannot amount to grievous bodily harm, **R v Chan Fook. **
Whether the harm done constitutes serious harm will be assessed objectively and not merely on the basis of the victim’s perception. Psychiatric injury may amount to GBH if sufficiently serious, but its cause and effect will need to be proved by expert evidence, R v Ireland.

Question 30

A man is sitting on a train late at night. There are several other people in his carriage. A drugs dealer who the man has recently swindled in a drugs deal, comes into the carriage and sits on the seat next to the man, blocking him in. The dealer whispers ‘Don’t worry – I’m not going to smash your face in with all these people about.’ The man knows the train is due at its final destination in two minutes and is frightened. The dealer sees this and is pleased.

Which of the following best explains whether the dealer has committed an assault?

The dealer has committed an assault as he has caused the man to apprehend immediate unlawful personal violence.

The dealer has not committed an assault because words can negate an assault.

The dealer has not committed an assault as he did not have the mens rea.

The dealer has not committed an assault as although the man apprehends violence, it is not immediate.

The dealer has committed an assault as the man is frightened.

Answer 30

The dealer has committed an assault as he has caused the man to apprehend immediate unlawful personal violence.

Correct. Immediate does not mean instantaneous. See Smith v Superintendent of Woking Police Station. It was held by Lord Steyn in R v Ireland that it could be in the next couple of minutes. In the next couple of minutes, the train will reach its final destination and the other people in the carriage will have gone. The man fears being hit at this point which would count as immediate violence. It is very likely that the dealer had intention to cause the man to apprehend immediate violence from the moment he sat down, but certainly he has it when he is pleased the man is frightened and at this point his act of causing the apprehension of immediate unlawful personal violence is still continuing.
The other options are incorrect.
While words can negate an assault, they do not automatically do so. Ultimately, liability will depend on whether the victim did apprehend unlawful personal violence. This scenario can be distinguished from the case of **Tuberville v Savage. **The words ‘Don’t worry – I’m not going to smash your face in with all these people about’ are unlikely to negate an assault in these circumstances because the train is due at its final destination in two minutes.
Evidence that the victim is frightened of the defendant is not sufficient to establish assault. The victim must apprehend immediate and unlawful personal violence.
Liability may be established so long as the defendant has mens rea at some point during the continuation of the actus reus of assault, see Fagan v Metropolitan Police Commissioner. It is very likely that the dealer had the mens rea from the moment he sat down, but he certainly has it when he is pleased the man is frightened and at this point his act of causing the man to apprehend immediate unlawful personal violence is still continuing and intentional.

Question 31

What is actual bodily harm?

Answer 31

The injury need not be
serious or permanent in nature, but it must be more than ‘transient or trifling’.

The defendant causes actual bodily harm where they:
*
give the victim a split lip;
*
stab the victim’s arm so that the injury requires three stitches;
*
cause significant bruising to the victim’s face;
*
kick the victim’s leg causing swelling to the knee;
*
cut a substantial piece of the victim’s hair; or
*
cause a temporary loss of consciousness;
but not where the victim only suffers:
*
a very small bruise;
*
a minor scratch; or
*
a red mark on the skin, from a slap, which quickly fades.

The question of whether harm could include psychiatric injury was considered in the combined
appeals of Ireland and Burstow . The judges confirmed that it could,
with the severity of the psychological harm determining the statutory assault for which the
defendant is liable. On a practical point, medical evidence will be required by the prosecution
to establish a more serious assault and, in this context, it would almost certainly be from a
psychiatrist.

Question 32

What is grievous bodily harm?

Answer 32

Grievous bodily harm is defined in the case of DPP v Smith [1961] AC 290 as ‘really serious
harm’. The judges were of the view that the term should be given its ordinary and natural
meaning. This is a question of fact for the jury, which considers the effect of the injuries on
the particular victim, taking account of their age and health; thus, it will be whatever the
magistrates or the jury regards as serious enough.
For example, grievous bodily harm would include:
*
a fractured skull
*
severe internal injuries
*
broken limbs
*
disfigurement caused by acid being thrown on the victim
*
really serious psychiatric injury.

Question 33

A woman was travelling on a train late at night when she was approached by a man holding a large knife. The woman ran away and fell, injuring her knee. The man had not intended to cause the woman any injury and had not realised that his actions created a risk of injury. The man did realise that his actions created a risk that the woman would fear that she would be subjected to immediate unlawful force.

Can the man be guilty of assault occasioning actual bodily harm?

A. No, because he did not realise that his actions created a risk of injury.

B. No, because he did not intend to cause an injury.

C. No, because injury was not a virtually certain consequence of his actions.

D. Yes, because he realised that his actions created a risk that the woman would fear immediate unlawful force and injury was caused.

E. Yes, because a reasonable person would have realised that there was a risk of injury and injury was caused.

Answer 33

D - Yes, because he realised that his actions created a risk that the woman would fear immediate unlawful force and injury was caused.