Non-fatal offences

Question 1

The hierarchy of non-fatal offences against the person and their statutory/common law references

Answer 1

(1) Wounding or grievous bodily harm with intent (s 18 Offences Against the Person Act 1861)
(2) Wounding or grievous bodily harm (s 20 OAPA 1861)
(3) Assault occasioning actual bodily harm (s 47 OAPA 1861)
(4) Battery (Fagan v MPC, charged under s 39 CJA 1988)
(5) Assault (Fagan v MPC, charged under s 39 CJA 1988)

Question 2

Assault - definition

Answer 2

Intentionally or recklessly causing another person to apprehend immediate and unlawful personal violence (Fagan v MPC)

Question 3

Assault - sentence

Answer 3

6 months in prison and/or a £5,000 fine (s 39 Criminal Justice Act 1988)

Question 4

Assault - actus reus

Answer 4

Causing the victim to apprehend immediate and unlawful personal violence;

• Apprehension
• Immediate
• Unlawful
• Personal violence

Question 5

Assault - mens rea

Answer 5

Intentionally or recklessly causing the victim to apprehend immediate and unlawful personal violence

Question 6

Assault - extra element

Answer 6

Absence of a valid defence e.g. self defence, intoxication or consent.

Question 7

Assault - actus reus: apprehension

Answer 7

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

R v Lamb - Two teenage boys were playing with a revolver, believing it was safe. The defendant pointed it at his friend and pulled the trigger. No assault because the victim at whom the gun was pointed did not anticipate violence because he did not believe the gun would fire. The defendant must cause the victim to believe D can and will carry out the threat of force.

Logdon v DPP - The defendant showed the victim a pistol in a drawer, saying it was loaded and declaring he would hold her hostage. The defendant alone knew the gun was unloaded, but his actions and words caused the victim to believe otherwise. This was assault.

Question 8

Assault - actus reus: apprehension; can the threat to use force be of any nature/form?

Answer 8

• Physical gestures can form the basis of assault.
• Words or silence alone can also constitute assault in some circumstances.

R v Wilson - saying ‘get out the knives’ = assault
R v Ireland, R v Burstow - The defendants had repeatedly made silent phone calls to their victims. Obiter the judges said that silence conveyed a message to the victim and as such as capable of forming the basis of an assault.

Question 9

Assault - actus reus: apprehension; words can negate an assault

Answer 9

Tuberville v Savage - The defendant placed his hand on his sword and said, ‘If it were not assize-time, I would not take such language from you.’ The action of putting his hand on the sword was threatening but was found to be negated by his words, which clearly implied no physical action would be taken as judges were nearby.

Ultimately it all depends on whether or not the victim actually apprehended (expected/anticipated) immediate unlawful personal violence.

Question 10

Assault - actus reus: ‘immediate’

Answer 10

Courts have not held ‘immediate’ to mean ‘instantaneous’.

Constanza - ‘immediate’ was held to mean apprehension of personal violence at some time not excluding the immediate future. The victim in this case thought personal violence could happen at any time as D had been following her, calling her and sending 800 letters to her home.

R v Ireland - ‘immediate’ equated with ‘imminent’

Smith v Chief Superintendant, Woking Police Station - Smith entered the garden of a house at night and pressed his face against the glass of the victim’s house. Although the victim did not know what the defendant was going to do next, she feared some immediate violence.

Question 11

Assault - actus reus: ‘unlawful’

Answer 11

There are a number of reasons why an assault may not be unlawful, e.g. if the defendant threatens reasonable force in self-defence or the victim consents to the threat.

Question 12

Assault - actus reus: ‘personal violence’

Answer 12

R v Ireland - the suggestion that ‘violence’ could include psychological as well as physical violence was expressly rejected in the HoL. The victim must apprehend physical violence.

Question 13

Assault - mens rea explained

Answer 13

• The defendant intends or is reckless as to causing the victim to apprehend immediate unlawful personal violence (R v Venna)
• Use R v G as usual for recklessness and R v Moloney for intention

Question 14

Battery definition

Answer 14

The actual intended use of unlawful force to another person without consent (Fagan v MPC). Includes the reckless application of force (R v Ireland).

Question 15

Battery - statutory reference/sentencing

Answer 15

s 39 Criminal Justice Act 1988 - maximum penalty of 6 months in prison or £5,000 fine.

Question 16

Battery - actus reus

Answer 16

Application of unlawful force

• Application
• Unlawful
• Force

Question 17

Battery - mens rea

Answer 17

Intentionally or recklessly applies unlawful force

Question 18

Battery - actus reus: force

Answer 18

• Means physical contact or force. The merest touch is enough and it doesn’t have to be rude, hostile or aggressive (Faulkner v Talbot)
• Touching someone’s clothes is enough (R v Thomas)
• ‘every person’s body is inviolate…any touching of another person, however slight may amount to a battery.’ (Collins v Wilcock)

Question 19

Battery - actus reus: application; three ways

Answer 19

(a) Directly (Collins v Wilcock)
(b) Indirectly (R v Martin, DPP v K)
(c) By an omission (Santana Bermudez)

Question 20

Battery - actus reus: application; does not need to be aggressive

Answer 20

DPP v Santana Bermudez - Convicted of assault occasioning ABH, based on battery. Police officer asked respondent if he had any needles or ‘sharps’ on him. The respondent said no. The officer then searched the respondent’s jacket pockets, and his finger was pierced by a needle. The defendant had created a danger he had failed to avert; he had committed battery by omission.

Question 21

Battery - actus reus: application; force need not be applied directly

Answer 21

R v Martin - Defendant closed the exit doors of a theatre. As people were about to leave, he turned off the lights, causing panic. This was an indirect battery. Court also gave example of D digging a pit which V then falls into it.

DPP v K - K took a boiling tube of acid with him to the toilet at school, but hearing footsteps outside, he panicked and poured the acid into a hot air hand drier. Another pupil used the drier later and the acid was ejected into his face, causing scarring. K was acquitted because of lack of mens rea but CoA stated the actus reus was fulfilled by indirect application.

Question 22

Battery - actus reus: unlawful

Answer 22

• Consent can make the application of force lawful.
• Collins v Wilcock: a police officer grabbed a woman’s arm to prevent her from walking away. Court explained a certain amount of physical contact must be accepted to move around in society, e.g. jostling in the supermarket, underground or a busy street. However, the police officer’s action went beyond implied consent.

Question 23

Battery - mens rea explained

Answer 23

Intention or recklessness as to applying unlawful force on another person (R v Venna)
- A basic intent crime.

Question 24

Assault occasioning actual bodily harm - statutory reference

Answer 24

s 47, OAPA 1861 - ‘Whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be liable…to be imprisoned for any term not exceeding five years.’

Question 25

s 47 Assault occasioning ABH - actus reus

Answer 25

• Assault (meaning assault or battery)
• Occasioning: normal principles of causation apply
• Actual bodily harm

Question 26

s 47 Assault occasioning ABH - mens rea

Answer 26

Mens rea for the assault or battery, i.e. intent or recklessness as to either causing the victim to apprehend immediate and unlawful personal violence, or applying unlawful force upon another.

Question 27

s 47 Assault occasioning ABH - actus reus: ‘assault’

Answer 27

This has been interpreted to mean either an assault or a battery (DPP v Little, R v Ireland). Both the actus reus and the mens rea of either an assault or battery must be established.

Question 28

s 47 Assault occasioning ABH - actus reus: ‘occasion actual bodily harm’

Answer 28

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

The offence can also be committed through an omission (DPP v Santana-Bermudez)

Question 29

s 47 Assault occasioning ABH - actus reus: summary of causation recap

Answer 29

(1) Factual causation - ‘but for’ the acts or omissions of the accused, the relevant consequence would not have occurred in the way it did (R v White)
(2) Legal causation - the defendant must be the ‘operating and substantial’ cause of the prohibited consequence (R v Pagett)
‘Substantial’ means a cause which is more than de minimus (R v Hughes)
‘Operating’ means there is no novus actus interveniens.

Question 30

s 47 Assault occasioning ABH - actus reus: omissions

Answer 30

General rule that a defendant cannot be criminally liable for a failure to act (R v Smith (William)). There are circumstances in which a defendant may be convicted for an omission because they have failed to act when under a duty to do so e.g. statutory duty, special relationship, vol. assumption of care, contractual duty, creating a dangerous situation, public office.

DPP v Santana-Bermudez - The defendant had created a danger, which he failed to avert. ‘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…there is an evidential basis for the actus reus of an assault occasioning actual bodily harm.’

Question 31

s 47 Assault occasioning ABH - actus reus: ‘actual bodily harm’

Answer 31

R v Donovan - actual bodily harm was said to include ‘any hurt or injury calculated to interfere with the health or comfort’ of the victim. It does not need to be serious or permanent but must be more than transient or trifling.

R v Chan-Fook - Conviction overturned. ‘it does not include mere emotions such as fear or distress or panic nor does it include…states of mind that are not themselves evidence of some identifiable clinical condition’

T v DPP - A momentary loss of consciousness was held to be capable of amounting to actual bodily harm as it involved an injurious impairment of the victim’s sensory functions.

DPP v Smith - Defendant cut off his girlfriend’s ponytail. Held that this was still part of the body, which by cutting had amounted to an assault.

Question 32

s 47 Assault occasioning ABH - mens rea

Answer 32

All that it is required is the mens rea for either assault or battery.

R v Savage - ‘The prosecution are NOT obliged to prove that the defendant intended to cause some actual bodily harm or was reckless as to whether such harm would be caused.’

Question 33

Malicious wounding or inflicting GBH - statutory reference

Answer 33

s 20 OAPA 1861:
‘Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of an offence…’

Question 34

s 20 Malicious wounding or inflicting GBH - actus reus

Answer 34

• Wound; OR

- Infliction of grievous bodily harm

Question 35

s 20 Malicious wounding or inflicting GBH - mens rea

Answer 35

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

Question 36

s 20 Malicious wounding or inflicting GBH - actus reus: (1) wound

Answer 36

C (a minor) v Eisenhower - The rupture of blood vessels internally is not sufficient to constitute a wound. There must be a break in the continuity of both layers of skin. Both dermis and epidermis must be broken. If there is proof of this, the actual injury does not need to be severe; any breaking of the skin will suffice.

The word ‘wound’ in this section is a verb, meaning to cause a wound. Normally causation will not be an issue, but sometimes it may need to be considered e.g.

• when D chases the victim, causing them to fall and cut their head
• when D throws a knife and V attempts to intercept it

Question 37

s 20 Malicious wounding or inflicting GBH - actus reus: (2) infliction of GBH

Answer 37

• ‘Infliction’ bears the same meaning as ‘cause’ and the normal rules of causation should apply.
• R v Wilson - there can be an infliction of GBH contrary to s 20 without need for an assault to be committed.
• R v Burstow - the accused made nuisance phone calls, but never actually attacked the victim. HoL upheld conviction for inflicting GBH for psychological injury. ‘Inflict’ did not require an assault.

Question 38

s 20 Malicious wounding or inflicting GBH - actus reus: meaning of ‘grievous bodily harm’

Answer 38

DPP v Smith - simply means ‘really serious harm’
Saunders - it would not be a misdirection to leave out ‘really’; ‘serious harm’ would suffice
R v Ireland - Psychiatric injury may amount to GBH if sufficiently serious, but its cause and effect will need to be proved by expert evidence.
R v Bollom - 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, e.g. in this case a baby with multiple cuts and bruises which on their own would not be enough, taken together, could amount to serious harm

Question 39

s 20 Malicious wounding or inflicting GBH - mens rea explained

Answer 39

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

R v Savage - ‘It is quite unnecessary that the accused should have foreseen that his unlawful act might cause physical harm of the gravity described in the section…It is enough that he [foresaw]…that some physical harm to some person, albeit of a minor character, might result.’

Question 40

Wounding or causing GBH with intent - statutory reference

Answer 40

OAPA 1861, s 18:
‘Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause grievous bodily harm to any person, with intent…to do some grievous bodily harm to any person…shall be guilty of an offence…’

Question 41

s 18 Wounding or causing GBH with intent - actus reus

Answer 41

• Wound; OR

- Causing grievous bodily harm

Question 42

s 18 Wounding or causing GBH with intent - mens rea

Answer 42

D must intend to cause grievous bodily harm.

Question 43

s 18 Wounding or causing GBH with intent - actus reus explained

Answer 43

Wound - bears the same meaning as under s 20, so breaking both layers of skin (Eisenhower)
Causing - Normal rules of causation apply (R v Wilson)
GBH - bears the same meaning as under s 20 OAPA 1861, so serious harm (R v Saunders)

Question 44

s 18 Wounding or causing GBH with intent - mens rea explained

Answer 44

The defendant must actually intend to cause harm which amounts in law to GBH (serious harm). Recklessness is not enough. (s 18 OAPA 1861)

Where the actus reus is a wound, the mens rea is still intention to cause GBH.

Intention can be direct (R v Moloney) or oblique (R v Woollin).

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

Question 45

s 47 Assault occasioning ABH - examples of injuries

Answer 45

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

Question 46

s 20 and s 18 - examples of injuries

Answer 46

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