Non Fatal Offences Against The Person

Question 0

Non fatal offences of the OAPA 1861

Answer 0

Ss18
Ss20
Ss47

Question 1

Offences Against the Person Act 1861

Answer 1

The necessity for modernisation is underscored by the fact that the principal statute governing the area is dated 1861.

1998 Gov. Indicated its intention to introduced a comprehensive reform to rationalise but not ‘to alter fundamentally the scope or operation’ of the law by putting out a draft OAP Bill, based on ideas proposed by the Law Commission however nothing has changed and no sign of Bill being brought to Parliament.

Question 2

Common Assault

Answer 2

Criminal Justice Act 1988 s39= assault is a summary offence with a maximum sentence on conviction of 6 months imprisonment or a fine.

Question 3

Actus reus of assault

Ireland and Burstow 1998

Answer 3

Lord Hope: ‘an assault is any act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful violence’.

-it does not matter that it may have been impossible for the defendant to actually inflict any force, SO LONG AS THE VICTIM IS UNAWARE OF THE IMPOSSIBILITY OF THE THREAT BEING CARRIED OUT.

Question 4

R v Constanza 1997

R v Ireland and Burstow 1997

Answer 4

Constanza confirmed that words alone can amount to an assault.

Ireland and Burstow confirmed that silent phone calls could amount to an offence.

(Meade and Belt 1823- had formerly said that words alone are not equivalent to an assault, however this is no considered bad law).

Question 5

Tuberville v Savage 1669

Answer 5

Words can also prevent a potential assault occurring, so that of a person shakes their fist at someone but at the same time states that they will not harm that person, there will be no liability for this offence.

Question 6

Immediate apprehension of violence -how immediate does immediate need to be?

Smith v Chief Superintendent, Woking Police Station 1983

Answer 6

Definition laid down then endorsed by Ireland and Burstow requires there to be an apprehension of immediate violence.

Smith: the V was at home dressed only in nightdress, she was left terrified when she suddenly saw the D standing in her garden staring at her through the window.
-D was found liable for assault on the grounds that the victim feared the immediate infliction of force even though she was locked inside.

Question 7

R v Ireland and Burstow

R v Constanza

Answer 7

Have undermined the immediacy, although not discussed in Ireland as the D had pleaded guilty to the silent phone calls of 3 different women.

Constanza- stalked over a long period of time. court of appeal stated that in order to incur liability for assault, it is enough for the prosecution to prove a fear of violence at some time, not excluding the immediate future.

Question 8

Causation?

Answer 8

For all these offences against the person, the issue of causation may be relevant is there is any question that the D was not the cause of the relevant result.
-so in assault, if the victim was put in fear of immediate and unlawful force but the D did not cause that fear.

Question 9

Mens rea

Savage and Parameter 1991

Answer 9

Mens rea of assault = either intention or subjective recklessness.
D must either have intended to cause the victim to fear the infliction of immediate and unlawful force, or have seen the risk that such fear would be created.

Savage and Parmenter - where recklessness is relevant it is subjective recklessness that is applied.

Question 10

Battery

Answer 10

S39 of CJA88- battery is a summary offence punishable with up to 6 months in prison or a fine.
But as with assault it is left to the common law to define the offence.

Question 11

Actus reus of battery

Answer 11

Rolfe: a battery is any act by which a person intentionally or recklessly inflicts unlawful personal violence upon another.

Any unlawful physical contact can amount to a battery- no need to prove harm or pain, a mere touch can be sufficient.

Question 12

Actus reus- violence is widely defined.

Fagan v Metropolitan Police Commissioner

Haystead v DPP

Thomas 1985

Answer 12

-must be a positive act, although the force can be applied directly and indirectly.

Fagan- force was applied by running over officer’s foot.
Haystead- D had punched a woman 2 in face whilst she was holding a baby, causing her to drop the baby, baby hit head on floor.
-d was convicted of the offence of battery against the child been though he did not directly hit the child.

Thomas- stated, obiter, that touching the bottom of a woman’s skirt was equivalent to touching the woman herself.

Question 13

Mens rea of battery

Answer 13

Either intention or recklessness is sufficient - it is intention or recklessness as to the application of unlawful force.

Question 14

Offences Against the Person Act 1861 s47.

Answer 14

S47: whoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable…to imprisonment for 5 years.

Question 15

Actus reus of s47 ABH

Answer 15

-actus reus of assault or battery.

In addition the prosecution must show that the assault or battery caused ABH.

Question 16

What is ABH?

Donovan 1934

DPP v Smith

Miller

Answer 16

Miller 1954 - actual bodily harm includes hurt or injury calculated to interfere with health or comfort. (Accepted that ABH included not just physical harm but also psychological injury such as shock)

Donovan - the court states that the injury had to be ‘more than merely transient and trifling’
R v DPP- explained the judgement in Donovan, the injury had to be either transient or trifling.

DPP v Smith: High Court held that cutting someone’s hair can fall within s47 offence, as hair is part of the body.

Question 17

Mens rea of battery

Collins v Wilcock 1984

Burrell v Harmer 1967

Richardson 1998

Brown 1994

Answer 17

Collins v Wilcock -police woman was scratched whilst holding a woman’s arm on duty.
-D’s action was in self defence and conviction of battery was quashed
Lord Goff- implied consent exists where there is jostling in crowded places etc, provided no more force was used than is reasonably possible.

Question 18

Burrell v Harmer 1967

Answer 18

D tattooed 2 boys aged 12 and 13
-boys had consented to the tattoos however it was held that the boys consent was ineffective since court was of the opinion that they were unable to comprehend the nature of the act.
D was liable for assault occasionally actually bodily harm under OAPA1861.

Question 19

Richardson 1998

Answer 19

Dentist carried out work on patients after being suspended from practice.
Patients stated they would not have consented to the treatment had they known she had been suspended.
-she was doing dentistry, what they had consented to be there for.
Not liable for ABH.

Question 20

Brown 1994

Answer 20

5 appellants were convicted on various counts of ABH and wounding after homosexual sadomasachist activities.
Trial judge ruled out that consent conferred a defence.
-held by 3:2 on appeal that defence of consent can not be relied upon where the injuries resulted from sadomasochist activities.
Lord Templeman - society is entitled to prevent itself against a cult of violence.
Lord Mustill dissenting - just because many people would think that D’s actions were repulsively wrong, does not at the same time mean that prosecution of the appellant is well founded.

Question 21

Consent may be a defence to a number of crimes, including battery.

R v Barnes 2005

Answer 21

D caused a serious leg injury during a tackle in a game of amateur football.
Not guilty of assault or battery as sports had their own disciplinary procedures that would cater for improper behaviour on pitch.
-physical injury was risk of sport, and those participating consent to such injury.

Question 22

What must be consented to?

Dica 2004

Answer 22

-what must be consented to depends on the particular offence with which D is charged.

Dica: court of appeal stated that, where a victim became infected with HIV as a result of agreeing to have unprotected sex with D in ignorance of the fact that D was HIV positive - D would not be guilty of rape because V consented to sexual intercourse.
However, V would not have consented to run the risk of harm or disease so that D could be guilty of unlawfully inflicting GBH.

Question 23

Consent achieved by fraud.

Answer 23

Traditions rule is that if the apparent consent had been procured by fraud as to the identity of the accused or as to the nature of the act= invalid.

QUESTION OF CONSENT IS:
-Has V consented to (a) act which was done (as opposed to an act fundamental different, and that (b) that act being done by the person who did it and not somebody else. - Law Comission Report: Consent in sex offences?)

Question 24

Reform of assault and battery

Answer 24

The governments draft bill would amalgamate the currently distinct offences of assault and battery into one offence of assault which can be committed in either 2 ways:

1) where D intentionally or recklessly applies force to or causes an impact on the body of another; or
2) he intentionally or recklessly causes the other to believe that any such force or impact is imminent.

Question 25

Actus reus of s47

Answer 25

• an assault
• which causes
• actual bodily harm

Question 26

Savage 1991

Answer 26

House of Lords took the view that a technical assault causing actual bodily harm can be either a psychic or physical assault.

Question 27

Actual bodily harm

Miller

Answer 27

Classic definition of ABH comes from Miller and means any hurt or injury likely to interfere with the health or comfort of the victim.

Brown- injury does not have to be terribly serious although does have to be more than trifling or transient.

Question 28

Psychiatric harm as ABH

Chan-Fook 1994

Ireland

Dhaliwal 2006

Answer 28

Psychiatric injury is capable of amounting to ABH but it must result in some identifiable clinical condition.
-strong emotions such as extreme fear, distress or panic are not ABH.

Ireland: warmly endorsed the Chan Fook principles holding that bodily harm includes ‘recognisable psychiatric illness such as anxiety and neurosis and depressive disorders’.

Dhaliwal- Court of Appeal held that it was bound by Chan Fook principles and refused to enlarge the scope to include other psychological conditions as to do so would bring uncertainty to the law.

The Law Commissions proposed definition of injury seems to be even wider terms than the existing definition.

Question 29

Mens rea of s47

R v Roberts

Answer 29

No mens rea needed to be proved in relation to the causing of harm.
Roberts: D intended to apply force to his victim when he tried to take off her coat, the fact that he did not cause any harm or realise that he might cause harm was thereby irrelevant because no mens rea was needed in relation to the causing of harm.

Question 30

Mens rea:

Answer 30

Sprat overruled- the only mens rea needed for s47 is EITHER

• intention OR
• Subjective recklessness as to the application of force.

Unknown whether the recklessness required for assault or battery is Caldwell objective.
However any doubt dispelled by House of Lords decision in G- subjective recklessness is the correct standard for this offence.

Question 31

S47 and common assault

Answer 31

Only difference between the two is the requirement to cause actual bodily harm.

Question 32

S20 OAPA1861

Answer 32

S20 makes it an offence for anyone ‘to unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument’.

2 ways of committing this offence.

a) maliciously inflicting GBH
b) maliciously wounding.

Although considered more serious that s47 the maximum prison term for s20 is 5 years.

Question 33

DPP v Smith 1961

Answer 33

Despite DPP v smith being defined by the House of Lords as really serious harm the

Court of Appeal is Saunders held that it was not necessarily a misdirection for the trial judge to define it as serious harm by omitting really, as it is a matter for the judge in the light of the facts of the case.

Question 34

Janjua 1999

Bollom 2005

Answer 34

Confirmed that there is no me to prove the harm was life threatening, dangerous or permanent, or even required treatment.

Courts emphasised that the gravity of the injuries had to be assessed by reference to the particular person.

Janjua: deadly attack with a 5 and a half inch knife blade.

Bollom: bruising and abrasions to a 17 month baby even though superficial and able to heal without help.

Question 35

Burstow

Answer 35

House held held such psychiatric illness, if sufficiently serious will constitute GBH under s18/20.

Question 36

What does inflict mean?

Clarence 1888

Answer 36

S20- GBH must be inflicted

Clarence: universally accepted that inflict bore a narrower meaning than cause- INFLICT MEANT CAUSE BY MEANS OF A DIRECT ASSAULT.

Question 37

Wilson

Mandair

Answer 37

Ratio of Wilson - person can inflict GBH without an assault to battery being committed. (Shift away from Clarence).

However the House obiter approved the Australian stance of Salisbury that D inflicted GBH only if he caused it by means of an application of force to the body.

Question 38

Cause and inflict

Answer 38

-suggested that it is an unnecessary and inappropriate distinction which will be quietly ignored in future.
Lord Hope: for all practical purposes there is… No difference between these two words then defined the two.
-inflict = implies that the consequence of the act is something which the V is likely to find unpleasant or harmful.
Cause= is neutral and may embrace pleasure as well as pain (maybe not Brown definition)

Question 39

Wounding

JJC v Eisenhower 1983

Answer 39

For a wound to be suffered both the inner and outer skin (the dermis and the epidermis) must be broken.

Eisenhower- held that brown blood vessels in the victim’s eye caused by air gun pellets did not constitute a wound.

• an injury may constitute both a wound and GBH but it needed not necessarily .
• a wound will necessarily amount to ABH for purposes of s47 - the CPS’s Charging Standard recommends that prosecutors should charge s47 rather than s20 unless the wounds ‘are considered to be serious thus equating the offence with the infliction of grievous or serious bodily harm.

Question 40

Taylor 1869

Beasley 1981

Answer 40

Both cases hold that in order to wound D must cause the wound by means of an assault or battery- same rule in Clarence.

Clarence overturned by Wilson, however was obiter and disclaimed that any intention of affecting the meaning of wounding and that Taylor is still good law.

However if the point came before the courts not to impose this and expect the rule to be assimilated to the new position of inflicting GBH, without the need for battery or violence.

Savage: both the House of Lords and Court of Appeal obiter in Savage envisaged that there could be wounding without a battery, although the facts would have to be ‘quite extraordinary’- no elaboration of what this meant.

Question 41

Consent

Answer 41

The whole area of consent is ripe for legislative reform or at least reconsideration by the Supreme Court.

Question 42

Mens rea s20

Mowatt 1976

Answer 42

D must intend some harm, not necessarily GBH or a wound) or realise that some harm might result from his acts.

Mowatt- D need only have intended or foreseen the possibility of some physical harm occurring to the victim.
Endorsed in Sullivan.

Divisional Court in DPP v A warned that D was not required to foresee that harm would occur (might constitute intention under the Woolin rule) but only that it might occurs.

Question 43

Foresight of psychiatric harm?

Savage
Parmenter
Ireland

Answer 43

Although Mowatt talks of having to intend or foresee some physical harm, the principles of physchiatric harm particularly in Burstow, seems inevitable that Mowatt principle will bee tended to psychiatric harm.

Question 44

Reform of s20

Answer 44

S20 replacement of 5 years imprisonment to 7 - nicely simple.

Also that the requirement that D must recognise the risk of serious injury thus overturning the current Mowatt principle requiring sight of only some harm- whether serious or not.

-again no restrictions on the means by which the serious injury should be caused, this avoiding once and for all any argument about meaning of inflict or cause.

Question 45

S18 OAPA1861

Answer 45

S18 provides that it shall be an offence to ‘unlawfully and maliciously wound or cause any grievous bodily harm to any person by any means whatsoever with intent to do some grievous bodily harm, or with intent to prevent law apprehension or detainer of any person.

Question 46

Actus reus s18OAPA1861

Answer 46

Wound and grievous bodily harm bear the same meaning as s20.

No limits on how GBH may be caused apart from the normal principles of causation.

Question 47

Mens rea s18OAPA1861

Answer 47

Carries a maximum life sentence so much more serious crimes that s20.

One of the 2 alternative intentions must be proved.

1) Intent to do GBH is the usual one rendering maliciously redundant.
2) intention to resist/prevent arrest -maliciously as the alternative ingredient. Must intend or see the risk of causing some harm however slight.

Question 48

Belfon 1976

Bryson

Answer 48

D must be prove to have the aim or purpose of causing GBH (subjective recklessness as to causing of harm or even GBH is insufficient).

D slashed the victim with a razor causing severe wounds to face and chest- Court of Appeal held that in order to establish the offence under s18 it was essential to prove specific intent.

Post Moloney case of Bryson confirms the stance of Belfon with regards to s18.

Question 49

Moloney

Answer 49

Stricter definition of intention- must have an oblique intention to kill.

Question 50

R v Gregory (Matthew) 2004

Answer 50

The Judicial Studies Board Model direction on intention.

-it is important that the judge explains the essential elements of the offence to the jury and that the specimen directions are not meant to be following slavishly, rather helpful guidance and not a misdirection to depart from them so long as the direction given by the judge is accurate, helpful and correct in law.

Question 51

Reform of s18

Answer 51

Draft- s18 would be replaced by the offence of intentionally causing serious injury to another, also carrying max life sentence.

Would also create a sepearte offence committed where D causes serious injury to another intending to resist, prevent or terminate the lawful arrest or detention of himself or a third person.

Question 52

Lynsey 1995

Answer 52

Henry LJ- court of appeal put it ‘most, if not all, practitioners and commenters agree that the law concerning non-fatal offences against the person is in urgent need of comprehensive reform to simplify it, rationalise it and make it trap free.

The draft Bull would substitute a hierarchy of 4 core offences

1) intentional serious injury
2) reckless serious injury
3) intentional or reckless injury
4) assault.

Would also bring in more specific offences e.g, assault on a constable/ causing danger on railways etc.
Shows no sign of emerging