Non Fatal Offences Againt The Person

Question 1

Assault and battery

Answer 1

• for an act to constitute assault, there is no touching, only the fear of unlawful force
• battery is the application of unlawful force to another person
• r v Nelson defines assault as something of physical kind that causes somebody to think that they are about to be struck (vocal threat, silent phone call, imitating a violent action etc)
• assaults require some acts or words. R v constanza - letters can be assault. R v Ireland - even silent phone calls, according to the details of this case, could also be regarded as assault

Question 2

‘Apprehend immediate unlawful force’

Answer 2

• the victim needs to think that the threat of force is real and possible
• r v lamb - pointing an unloaded gun at someone who knows the gun is unloaded is not assault, but if the person believed the gun to be loaded, then this is assault
• fear of ‘immediate’ force does not mean right now, but that it is imminent or possible shortly e.g, smith v chief superintendent of working police station
• the force threatened mist also be unlawful. If it is lawful, them there is no offence of common assault
• the mens Rea for assault is either the intention to cause fear of unlawful personal violence or recklessness causing fear. For recklessness to be proved, the defendant mist realise the risk of his acts/words

Question 3

Battery

Answer 3

• battery is the application of unlawful force to another wither through intention or recklessness
• ‘force’ can also include the slightest touching. E.g, Collins v Wilcock and wood v DPP
• in r v thomas the court of appeal said that in the obiter that in touching and rubbing the bottom of a woman’s skirt while she was wearing it is the equivalent to touching her
• all of these situations can form the actus reus of battery

Question 4

Continuing act and indirect act

Answer 4

• fagan v metropolitan police commissioner - the defedant was asked to move his car by a police officer and parked it on his foot. In this case, although the intention was not to hurt the victim, it became the offence of battery once the defendant had realised what he’d done and refused to move
• in an indirect act, the defendant causes force to be applied even though he hasn’t directly applied it himself e.g setting trap

Question 5

Omissions

Answer 5

• cases of assault caused by omission are rare, but there is one good example - DPP v Santa Bermudez. The police women asked D if he had needles in his pocket, he said no. When she put her hand in his pocket she was injured by a needle. It was judged that Ds refusal to tell the police officer the truth amounted to an omission leading to assault causing bodily harm
• in r v miller, the man who failed to try and put out the fire and was convicted of arson by way of omission, if another person had been involved and miller had done nothing to help him, this could also constitute battery if there’d been a problem

Question 6

Unlawful and lawful force

Answer 6

• the use of force does not mean battery if:
• the victim gives genuine consent
• in use of self defence
• prevention of crime
• however that lawful force needs to be judged as ‘proportional’
• the children act 2004 now provides that a battery committed on a child is unlawful if it results in any injury

Question 7

Battery without an assault

Answer 7

• if the victim if unaware that unlawful force is about to break used on him, for instance if the defendant sneaks up behind him, then battery occurs, but without assault since the victim was unaware of the threat
• mens Rea of battery - can be either intention to apply force or recklessness. In this situation however, the defendant must understand that his act or omission could cause unlawful force to be applied

Question 8

Assault occasioning bodily harm

Answer 8

• offences against the person act 1861
• actual bodily harm is the lowest level of injury under s 47
• triable either way offence
• must be done with the intention of subjecting the victim to unlawful force
• miller - ‘any hurt or injury calculated to interfere with the health or comfort of the victim’

Question 9

Psychiatric injury

Answer 9

• also classed as actual bodily harm but dose not include emotions like fear, distress or panic
• r v chan fook
• r v Burstow

Question 10

Men’s Rea of s 47

Answer 10

• no mention of men’s Rea in the act, but the courts have held it is sufficient for the underlying assault or battery
• where actual bodily harm occurs, there is no need for the defendant to intend to be reckless - r v Robert’s and r v savage
  Therefore:
• assualt - fear of unlawful violence - no consequence needed - mens Rea of causing fear
• battery - application of unlawful violence - no consequence needed - mens Rea, intention of doing so
• assault occasioning boldly harm - assault or battery - actual bodily harm must be incurred - mens Rea, intention to do either

Question 11

S 20 OAPA - malicious wounding/inflicting grievous bodily harm

Answer 11

• next offence in seriousness, can carry a sentence up to 5 years, same max sentence as s 47
• triable either way. Mens Rea must include intention or recklessness.
• a wound must mean an actual cut in the internal skin. Internal bleeding is not sufficient, JJ v Eisenhower, r v wood
• grievous bodily harm is really serious. It can include physical, physical, psychiatric or deliberate infection of a disease
• victims age and health can also be taken into consideration - r v bollom
• r v burstow, serious psychiatric injury
• r v dica - deliberate infection with a disease

Question 12

Inflicting grievous bodily harm

Answer 12

• s 20 interpreted quite widely. R v Lewis, r v burstow
• s 20 talks about ‘inflict’ and s 18 ‘cause’, although there is no practical difference between the two words
• Cunningham - uses the word ‘maliciously’ to determine the mens Rea either through intention to through recklessness
• parmenter - House of Lords decided that there is no need to foresee a level of serious injury just the intention to cause some harm or through recklessness

Question 13

S 18 OAPA 1861

Answer 13

• wounding without intent
• more serous than s 20 and carried a maximum sentence of life imprisonments
• indictable offence to be tried at crown court
• actus reus = wounding or causing grevious bodily harm and mens Rea =intention to do grievous bodily harm and or/resisting lawful apprehension
• intention to wound however is not enough r v Taylor
• s 18 demands specific intent. recklessness is not enough here

Question 14

Call for reform

Answer 14

• there have been many reports published on this area of law over the years
• not been high on governments priority list, so none have been implemented
• the most recent law commission report in 2015 had 28 recommendations
• 4 key needs for reform:
  1. The 1861 offences against the person act is out of date
  2. There are inconsistencies between the different offences
  3. No conformity in the correspondence principle
  4. Much of the language used is archaic

Question 15

The out of date factor

Answer 15

• the 1861 act is over 150 years old; this causes some problem
• there was no understanding of mental health problems at the time, therefore only a mention of bodily harm, not mental harm
• chan fook and burstow have gone some way to remedy this
• there was also not a very clear understating of the way diseases were transmitted from person to person
• dica has now interpreted the 1861 as including the deliberate infection of someone with a disease as inflicting grevious bodily harm

Question 16

Inconsistency between offences

Answer 16

• s47 has the same mens Rea as fro an assault and battery. It also doesn’t require the defedant to intend or even realise there is any risk of any injury
• s47 carries a max sentence of 5 years while assault and battery, 6 months - unjust
• somebody causing a small cut can be charged under s20 instead of ‘occasioning actual bodily harm’ under s47. A small cut often doesn’t equate to grievous bodily harm - unjust
• sentence for s20 and s47 are the same. 5 years, despite s20 being more serous. Unjust as the level of blame is so different
• no clear hierarchy of offences
• a defendant who intends or foresees the risk of minor injury can be convicted of the serious s 18 if a serious injury occurs when he intends to resist arrest. It is not fair that bu intending to resit arrest you could be liable for the same offence as somebody who intended to cause very serious injury

Question 17

Correspondence principle

Answer 17

• the results that defendant intends or foresees should match the result which actually occur
• in other words, he should not be held liable unless he meant to do it, or knowingly ran the risk of it
• the 2015 report points out however that a defendant can indeed be guilty of both a s20 and a s47 offence without intending to being reckless as to causing harm
• this is a clear breach of the correspondence principle

Question 18

The need for modern, simplified language

Answer 18

• s20 - ‘maliciously’. Modern language interprets this as deliberate intention with ill will to the victim. The 1861 act simply interprets it as simply intending to do harm or being reckless
• recommendation is that the word ‘reckless’ be used instead
• ‘inflict’ in s20 but ‘cause’ in s18. Did ‘inflict’ mean a technical assault had to take place?

Question 19

The 1998 draft bill

Answer 19

• the labour government issued a consultation document with the intention of replacing s18, 20, 47 and assault and battery
• the following are the clauses of that bill
  1. Clause 1 - international serious injury
  2. Clause 2 - reckless serious injury
  3. Clause 3 - internal or reckless injury
  4. Clause 4 - assault to be defined as a. Applied force or impact to the body of another, or b. Caused another to believe any force or impact was imminent
• levels of men’s Rea are clearly defined in each clause and so it the word ‘injury’

Question 20

Law commission report 2015

Answer 20

• proposed a new statute respecting the following principles:
• clear hierarchy of offences describing harm caused culpability of the defedant and the maximum penalty in proportion to
• clear and accurate labels for each offence
• all element’s of an offence to be set out clearly
• agreeing with the 1998 draft bill, the law commission suggested some additions
  1. Clause 1 - the word ‘wounding’ would only be included if it caused serious injury. Life sentence max
  2. Clause 2 - higher level of men’s Rea required than in the present s 20. The D would only be guilty if he was aware there was a risk of serious injury. Reckless still applies. Maximum sentence of 7 years
  3. Clause 3 - D is guilty if he intentionally or recklessly caused injury. The injury need not be serious. 5 years max

Question 21

Other suggestions - ‘aggravated assault’

Answer 21

• should be a term used to cover low level injuries
• mens Rea would remain the same as it is common for assault
• argument is that victims sometimes feel aggrieved that their case is only charged as common assault
• recommends a max term of 12 months

Question 22

Other suggestions - ‘physical assault’

Answer 22

• replaces common low battery
• would include unjustifiable touching or direct physical contact
• mens Rea remains the same
• recommends a max term of 6 months

Question 23

Other suggestions - threatened assault

Answer 23

• this would replace the old common law offence of assault
• all descriptors remain the same
• should carry a maximum sentence of 6 months also