Non-Fatal Offences

Question 1

What are non-fatal offences defined under?

Answer 1

Most are defined under the Offences Against the Persons Act 1861.

Question 2

What non-fatal offences are defined under common law?

Answer 2

Assault and battery

Question 3

What offences are defined under the Offences Against the Persons Act 1861?

Answer 3

Section 47: Assault occasioning ABH
Section 20: Inflicting GBH or wounding
Section 18: Causing GBH or wounding with intent

Question 4

What offence is under section 47 of the Offences Against the Persons Act 1861?

Answer 4

Assault occasioning ABH

Question 5

What offence is under section 20 of the Offences Against the Persons Act 1861?

Answer 5

Inflicting GBH or wounding

Question 6

What offence is under section 18 of the Offences Against the Persons Act 1861?

Answer 6

Causing GBH to wounding with intent

Question 7

What is the Actus Reus for assault?

Answer 7

Any act where the defendant causes the victim to apprehend the immediate application of unlawful force. Such as raising a fist as if about to hit the victim, throwing a stone at the victim and missing or making a threat.

Question 8

What does apprehend mean in assault?

Answer 8

Apprehend does not necessarily mean fear, the victim does not have to be scared, only to believe that the defendant is about to apply some unlawful force.

Question 9

Must the threat be immediate for assault?

Answer 9

The threat must be immediate, a threat to use force in the future will not be an assault.

Question 10

Smith V Chief Superintendant of Woking Police Station 1983?

Answer 10

The defendant was standing in the victims garden at around 11pm and looking at her getting ready for bed in her ground-floor flat. The defence argued that there was no immediacy of threat but the court held that as far as she was concerned the threat was immediate.

Question 11

Logdon V DPP 1976?

Answer 11

The defendant pointed a gun at the victim as a joke. She was frightened until he told her it was a replica gun. The court held that the victim had apprehended immediate physical violence and that the defendant had been at least reckless as to whether this would occur.

Question 12

R V Constanza 1997?

Answer 12

The House of Lords said it is sufficient for the prosecution to prove an apprehension of force at some time, not excluding the immediate future.

Question 13

Can words be an assault?

Answer 13

Yes

Question 14

R V Ireland 1997?

Answer 14

The House of Lords ruled that even silent phone calls could amount to assaults.

Question 15

Can words negate an assault?

Answer 15

Yes, it can cancel it out

Question 16

Tubberville V Savage 1669?

Answer 16

The defendant put his hand on his sword and said ‘if it were not assize time I would not take such language from you’. It was held that this did not amount to an assault as the indicated that no violence would ensue.

Question 17

Does force mean violence?

Answer 17

No, even touching could be seen as force.

Question 18

What is the Mens Rea for assault?

Answer 18

The defendant either intends to cause the victim to apprehend they will inflict force on them or is reckless as whether the victim will believe that. The defendant must realise there is a risk that they will cause the victim to believe that.us

Question 19

What is the Actus Reus for battery?

Answer 19

The defendant actually applies unlawful force to the victim. It could happen without an assault e.g. if the defendant hits the victim over the back of the head. Any unlawful physical contact can amount to battery.

Question 20

R V Thomas 1985?

Answer 20

It was stated that even touching a woman’s skirt could be a battery.

Question 21

Must the force be direct?

Answer 21

No, it can be indirect.

Question 22

R V Martin 1881?

Answer 22

The defendant put an iron bar against the doors of a theatre, put the lights out and shouted fire. He was actually convicted of GBH as some people were seriously injured in the panic but the court said that he had also committed a battery though he had not directly applied force.

Question 23

Collins V Wilcock?

Answer 23

A police woman took hold of a woman’s arm to stop her walking off when she was questioning her. The woman scratched the policewoman and was charged with assaulting a police officer in the course of her duty. It was held that the police woman’s actions amounted to battery. The defendant’s action was therefore in self-defence and her conviction was quashed. It also stated that there is an allowance for the hustle and bustle of daily life.

Question 24

R V Haystead 2000?

Answer 24

A man punched a woman who was holding a small child. She dropped the baby as a result of the punch and he was convicted of battery even though he had no direct contact with the child.

Question 25

Must the force be hostile?

Answer 25

In Wilson V Pringle it was said that the application of force should be hostile. In this case a child had pulled another child bag off his shoulder in the playground. The courts held it was not a battery as it was not hostile.

Question 26

What are some examples of battery given by the CPS?

Answer 26

• Grazing
• Scratches
• Abrasions
• Minor bruising
• Swellings
• Reddening of the skin
• Black eyes.

Question 27

Can battery be committed by omission?

Answer 27

Yes

Question 28

DPP V Bermudez 2004?

Answer 28

Bermudez was being searched by the police and lied saying he had no sharp objects in his pockets. However, he had a hypodermic needle used for drug taking in his pocket which stabbed the police officer. This was held as a battery.

Question 29

What is the mens rea for battery?

Answer 29

The defendant intends or is reckless as to the application of force. The defendant does not have to foresee any risk of harm to the victim. It was confirmed in R V Venna 1976.

Question 30

Section 47, Offences Against the Persons Act 1861: Assault Occasioning ABH

Answer 30

This is a triable either way offence (tried at the magistrates or the crown court. The maximum sentence is 5 years.

Question 31

What is the Actus Reus for Section 47 ABH?

Answer 31

It has 3 elements:

• assault or battery must be proved
• the chain of causation must be established between the act and the harm caused
• ABH must occur, either physical or psychological

Question 32

What does the word occasioning mean?

Answer 32

Causing.

Question 33

Miller 1954?

Answer 33

The court stated that ABH includes hurt or injury calculated to interfere with the health or comfort of the victim.

Question 34

R V Chan-Fook 1994?

Answer 34

Lord Hobhouse said that the word actual indicates that though injury does not have to be permanent, ‘it should not be so trivial as to be wholly insignificant’.

Question 35

DPP V Smith 2006?

Answer 35

Cutting someones hair was held to be ABH, where the defendant had cut his ex-girlfriends ponytail without her consent.

Question 36

What are the CPS charging standards for ABH?

Answer 36

• loss or breaking of teeth
• loss of consciousness
• extensive or multiple bruising
• displaced broken nose
• minor fractures
• minor cuts, which might need stitching
• psychiatric injury

Question 37

Whats the Mens Rea for Section 47 ABH?

Answer 37

It is the same for assault or battery. The defendant does not have to be intending or even aware of any risk of harm, they need only to be aware that there is a risk that the victim might apprehend that they are about to apply some unlawful force.

Question 38

R V Roberts 1971?

Answer 38

The defendant was convicted of ABH when he made advances to a girl in his car and she jumped out and was injured. He argued that he did not intend or foresee any risk of her being caused harm. This failed, he had the Mens Rea for battery and that was enough.

Question 39

R V Savage 1991?

Answer 39

The defendant went into the local pub and saw her husband’s new girlfriend with some friends. She went to the table and threw a pint of beer over her but the glass slipped and cut the woman’s wrist. The court said she did not need to be aware of the risk that she might cause harm, she did intend to apply the unlawful force and that was enough for a Section 47 offence.

Question 40

Section 20 Offences Against the Persons Act 1861: Wounding and GBH

Answer 40

This is a triable either way offence (tried at the magistrates or the crown court. The maximum sentence is 5 years.

Question 41

What is the Actus Reus for Section 20: GBH

Answer 41

The prosecution must prove that the defendant either wounded the victim or inflicted GBH.

Question 42

Wounding?

Answer 42

Breaking the surface of the skin, internal bleeding is not a wound, even though it might be serious and a minor cut could still be a wound.

Question 43

Wood 1830?

Answer 43

The defendant broke the victim’s collar bone but as the skin was still intact he could not be guilty of wounding.

Question 44

JCC V Eisenhower 1984?

Answer 44

The victim was hit in the eye with a shot-gun pellet. This caused internal rupturing of the blood vessels but as there was no cut it was held that there was no wounding.

Question 45

What is GBH?

Answer 45

In DDP V Smith 1961 it was held that it means ‘really serious harm’.

Question 46

Saunders 1985?

Answer 46

The trial judge omitted the word ‘really’ but the Court of Appeal still upheld his conviction.

Question 47

Can the courts take into account the characteristics of the victim?

Answer 47

Yes, the courts can take into account the characteristics of the victim such as their age and health, as it may mean really serious harm to them.

Question 48

R V Bollom 2003?

Answer 48

The victim was a 17 month old child who suffered bruising and abrasions to her body, arms and legs. The court ruled this was GBH taking into account her age and frailty.

Question 49

Can biological harm be accepted as GBH?

Answer 49

Yes, biological harm such as HIV and other STD’s can be accepted as GBH.

Question 50

R V Dica 2004?

Answer 50

The defendant infected two women with HIV when he had unprotected sex with them knowing he was HIV positive but he did not tell them that.

Question 51

R V Clarence 1889?

Answer 51

The defendant had sex with his wife, knowing he had an STI. He passed it to his wife and convicted of Section 47 and Section 20 but it was quashed due to there being no assault or battery.

Question 52

Is an assault or battery needed for GBH?

Answer 52

Not now, previously it was but it was considered bad law.

Question 53

R V Burstow 1997?

Answer 53

The defendant was obsessed by a woman at work. He stalked her, damaged her car and over several months carried out a campaign of harassment including silent phone calls, hate mail and stealing her underwear from her washing line. She suffered severe depression as a result and his conviction under Section 20 was upheld by the House of Lords. This was a significant turning point in the law, it was the first time psychological GBH was allowed.

Question 54

What was the word ‘inflict’ held to mean?

Answer 54

Section 20 uses the word ‘inflict’ and it used to be thought there had to be a direct application of force. The case of R V Burstow 1997 made it clear this was not necessary and that inflict means the same as cause. If the defendant’s actions have led to the consequence that the victim suffered GBH, that is enough.

Question 55

What are the CPS charging standards give examples of GBH?

Answer 55

• injury resulting in permanent disability
• injury resulting in disfigurement, displaced limbs or bones
• compound fractures
• injuries causing substantial loss of blood
• injuries resulting in lengthy treatment or incapacity
• psychiatric injury

Question 56

What is the Mens Rea for Section 20 GBH?

Answer 56

The defendant must either intend to cause some harm or be subjectively reckless. The word used in the Act is ‘maliciously’ but this was held in R V Cunningham 1957 just to mean intention to do the particular kind of harm that was in fact done or recklessness as to whether such harm occurred or not.

Question 57

R V Parmenter 1991?

Answer 57

The defendant threw his three month old baby in the air and caught him, causing serious injuries to the baby’s legs. The defendant did not realise that this might cause injury so his conviction for GBH was quashed, he was however guilty under Section 47.

Question 58

R V Grimshaw 1984?

Answer 58

The defendant heard someone insult her boyfriend while they were in a pub so she pushed the glass she was holding into his face. She was guilty of GBH as she had foreseen the risk of some harm even though the harm she caused was more serious than she had considered.

Question 59

Section 18: Offences Against the Person Act 1861: wounding or causing GBH with intent?q

Answer 59

The maximum sentence for this is life.

Question 60

What is the actus reus for Section 18?

Answer 60

It is the same as Section 20, The prosecution must prove that the defendant either wounded the victim or inflicted GBH.

Question 61

What is the mens rea for Section 18?

Answer 61

The prosecution must prove intention. It is not sufficient to direct a jury using recklessness. The prosecution must prove the defendant intends to cause serious injury. The defendant must either directly intend the harm. The defendant must maliciously wound or cause GBH. The defendant must have the specific intent to either cause GBH to the victim or to resist or prevent the lawful apprehension or detention of any person.

Question 62

R V Nedrick 1986?

Answer 62

The jury can decide if s/he intended the harm if s/he was virtually certain that it would occur as a result of his/her actions.

Question 63

Reform suggestions for non-fatal offences?

Answer 63

The law commission recommended changes and based on those recommendations the then Government produced a Draft Offences Against the Persons Bill 1998. This proposed to created a clearer hierarchy of offences.

• Intentionally causing serious injury, maximum sentence to be life
• Recklessly causing serious injury, maximum sentence of 7 years
• Intentionally or recklessly causing injury, maximum sentence of 5 years
• Intentionally or recklessly applying force or causing another to believe application of force imminent, would be a summary offence with a maximum of 6 months.

They also proposed a new offence of threatening to cause death or serious injury, maximum of 10 years. Would there be problems even then? If intention and recklessness are separated out in serious injury? What do we mean by serious? The Ministry of Justice asked the Law Commission to carry out a scoping consultation exercise as a first step towards potential reform of the law on non-fatal offences. The consultation finished in February 2015. The Law Commission hopes to create a new offence of causing minor injury and resolve some current inefficiencies in how trial are allocated between the courts. It proposed using the 1998 draft bill with some amendments to reflect legal developments since 1998 and the need for increased efficiency in the Criminal Justice System.

Question 64

Criticisms and evaluation of Offence Against the Persons Act 1998?

Answer 64

• the law commission have stressed the need for reform, most recently in 2011.
• the act was passed in 1861, the language is outdated and confusing for a jury, for example grievous, occasioning and actual. The language needs simplifying and modernising.
• there are no statutory definitions of assault, battery, wound and grievous harm.
• it is also out of date terms of its understanding of mental health, so it only considers ‘bodily harm’. However case law has developed and plugged this gap , Chan-Fook, Constanza, Burstow.
• The act does not deal with the transmission of disease/conditions. Judicial creativity has extended the law and criminal liability, Dica, Konzani, Yaser.
• there is no clear definition of offences and some overlap. The AR of Section 20 and 18 is identical. There are no real definitions of which injuries should be charged as ABH and which as GBH.
• the MR of Section 47 ABH is exactly the same as for assault and battery, the only difference is the actual injury caused. This can lead to constructive liability when a defendant may not even be aware of a risk of any sort of injury as in Savage and Roberts.
• the sentencing structure is chaotic. A defendant may be sentenced to 6 months imprisonment for assault or battery but 5 years for ABH even though the MR is exactly the same. Section 20 is meant to be more serious than Section 47 but the potential maximum sentence is the same.
• Does the difference in MR between Section 18 and Section 20 justify a jump from 5 years to life? It may be justified if the defendant intends injury in the sense that he wishes to injure the victim, but intention has the same meaning as in the rest of criminal law with all the problems that entails.
• For GBH the defendant need only be aware of some injury, not necessarily serious injury, such as in Grimshaw.
• At present wounding means a break in the surface of the skin. Even a minor cut could mean a conviction for Section 18 or Section 20 when a more serious but still fairly trivial injury might only amount to a Section 47.
• For assault the threat to cause harm must put the victim in immediate fear. This leaves a gap in the law where injury threatened at some point in the future.
• It has been suggested that the whole area needs restructuring so as to represent a true hierarchy of seriousness, ‘Principles of justice or fairness between different offenders require morally distinguishable offences to be treated differently and morally similar offences to be treated alike’ - Professor Hart.