Non-Fatal Offenses Flashcards
- Non-fatal offences overview
1.1 Introduction
This is a hierarchy of non-fatal offences against the person:
* Wounding or grievous bodily harm with intent (s 18 Offences Against the Person Act 1861
(OAPA)), the most serious offence but committed less frequently;
* Wounding or grievous bodily harm (s 20 OAPA)
* Assault occasioning actual bodily harm (s 47 OAPA);
* Battery; and
* Assault, the least serious offence but along with battery committed most frequently.
- Assault
Assault: Assault is where the defendant intentionally or recklessly causes another person to apprehend immediate and unlawful personal violence (Fagan v Metropolitan Police
Commissioner [1969] 1 QB 439). The House of Lords confirmed this definition of the offence in the case of R v Ireland; Burstow [1998] AC 147.
2.1 Actus reus
‘Causing the victim to apprehend immediate and unlawful personal violence’
* Apprehension
- Apprehension means to make the victim expect or anticipate but not necessarily fear
immediate and unlawful personal violence (contrast R v Lamb and R v Logdon).
- Words alone and silence is enough (R v Ireland).
- Words can however negate an assault (Tuberville v Savage).
* Immediate
- Does not mean instantaneous but some time not excluding the immediate future (R v
Constanza) or imminent (R v Ireland).
* Unlawful
- Not done in self-defence or with the victim’s consent.
* Personal violence
- All the victim has to anticipate is an unwanted touch.
2.2 Apprehension
The defendant must do something to make the victim apprehend (ie anticipate or believe) they will suffer immediate and unlawful personal violence. There is no need for the defendant to have actually applied force or make physical contact for the
offence to be committed.
Some words or physical movement from the defendant, causing the victim to think that they are about to be struck (eg raising a fist towards the victim), would be sufficient
Key case: R v Lamb [1967] 2 QB 981 (CA)
Facts: Two teenage boys were playing with a revolver. This had two bullets in it, neither of which was opposite the barrel. Believing that this meant the gun was safe, the defendant pointed it at his friend and pulled the trigger. His friend was shot dead.
Held: No assault had taken place, since the victim at whom the gun was pointed did not fear the possible infliction of violence because he did not believe the gun, with which they were playing, would fire. Note there was also no assault because the defendant did not have the necessary mens rea. The defendant must cause the victim to believe D can and will carry out the threat of
force.
Key case: Logdon v DPP [1976] Crim LR 121
Facts: The defendant showed the victim a pistol in a drawer, saying that it was loaded and
declaring that he would hold her hostage. The defendant alone knew that the gun was a replica and unloaded, but his actions and words caused the victim to believe otherwise.
Held: The defendant was found to have committed an assault against the victim. 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.
2.2.1 Apprehension - can the threat to use force be of any nature/form?
- Physical gestures can form the basis for an assault.
- Words or silence alone can constitute an assault in some circumstances.
Key case: R v Wilson [1955] 1 All ER 744
Lord Goddard stated that the words ‘get out the knives’ would, on their own, be sufficient to constitute an assault.
Key case: R v Ireland; Burstow [1998] AC 147
Technically, on this issue, the comments made by their Lordships were obiter since the defendants in these two cases had repeatedly made silent telephone calls to their victims. No words had been spoken. Lord Hope of Craighead believed that silence conveyed a message to the victim and as such was capable of forming the basis of an assault. Indirectly, this confirms that words spoken may amount to an assault since they too convey a message and one that is arguably more direct than silence.
2.2.2 Apprehension - words can negate an assault
Key case: Tuberville v Savage (1669) 1 Mod Rep 3
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 that no physical action would be taken because the judges were in the vicinity.
Depends on whether the victim apprehended immediate unlawful personal violence.
If X comes across Y in a dark alleyway and Y says: ‘If you were not such a tiny squirt, I would punch your face in’, X may well apprehend immediate unlawful personal violence and Y would have committed the actus reus of assault.
2.3 Immediate
The victim must believe that immediate violence will be inflicted upon them. Apprehension that the
force might be applied sometime in the future would be insufficient. However, the courts have developed a rather generous interpretation of ‘immediacy’. The courts have not interpreted ‘immediate’ to mean instantaneous
Constanza [1997] 2 Cr App R 492
In the Constanza [1997] 2 Cr App R 492 case, immediate was
held to mean apprehension of personal violence at some time not excluding the immediate future. The victim in this case thought that personal violence could happen at any time as D had been following her, calling her and sending over 800 letters to her home.
Key case: R v Ireland, R v Burstow [1998] AC 147
Lord Steyn equated immediate with imminent: After all, there is no reason why a telephone caller who says to a woman in a menacing way ‘I will be at your door in a minute or two’ may not be guilty of an assault if he causes his victim
to apprehend immediate personal violence. Take now the case of the silent caller.
He intends by his silence to cause fear and he is so understood. The victim is assailed by uncertainty about his intentions. Fear may dominate her emotions, and it may be the fear that the caller’s
arrival at her door may be imminent. She may fear the possibility of immediate personal violence.
Key case: Smith v Chief Superintendent, Woking Police Station (1983) 76 Cr App
R 234
Facts: Smith entered the garden of a house at night and looked through the window of a ground floor bedroom at the victim who was in a nightdress. He pressed his face against the glass for several seconds. The victim recognised Smith and was terrified. He appealed on the ground that there was no evidence that he had the mens rea for assault. Held: The appeal was dismissed. Lord Justice Kerr stated that this was a situation where although
the victim did not know what the defendant was going to do next, she feared some immediate violence which was what the D in this case intended.
2.4 Unlawful
Occasionally, the application of force upon another person will be considered lawful. There are a number of reasons why it would not be unlawful, such as if the defendant threatens reasonable force in self-defence or the victim consents to the threat. You will consider defences in the ‘General defences’ chapter.
2.5 Personal violence
The Court of Appeal, in the case of Ireland, suggested that ‘violence’ could include a threat of psychological as well as physical damage. This view was expressly rejected by Lord Hope in the House of Lords. It would appear that, where the apprehension is of immediate psychological harm, charges under other statutes, such as the Protection from Harassment Act 1997, may be
more suitable. It is, therefore, clear that, for an assault, the victim must apprehend physical violence. It should be noted that, where the assault results in psychological harm which is more than trivial, the defendant will be liable for the more serious offence under s 47 OAPA.
2.6 Mens rea
The defendant intends or is reckless as to causing the victim to apprehend immediate unlawful personal violence (R v Venna).
* Assault is a basic intent crime, meaning it can be committed intentionally or recklessly.
* A defendant intends an assault if it was D’s aim or purpose (R v Moloney).
* A defendant is reckless as to an assault if they:
- See a risk that their actions will cause the victim to apprehend immediate and unlawful personal violence; and
- In the circumstances known to D, it was unreasonable to take that risk (R v G).
R v Savage; Parmenter [1992] 1 AC 714 (HL)
The case of R v Savage; Parmenter [1992] 1 AC 714 (HL) confirmed the view that subjective recklessness (as now set out in R v G) must be established for any assault charge based upon
recklessness.
- Battery
Battery: A battery is the actual intended use of unlawful force to another person without
consent (Fagan v MPC). The House of Lords confirmed this definition in the case of Ireland and further confirmed that it includes the reckless application of force.
3.1 Actus reus
Application of unlawful force on another. The pages that follow will explain the below in more detail:
* Application: Battery can be inflicted:
- Directly (Collins v Wilcock).
- Indirectly (R v Martin, DPP v K).
- By an omission (Santana Bermudez).
* Unlawful
- Means that the battery isn’t done in self-defence or with V’s consent for example.
- Consent can be express or implied consent to inevitable everyday contact (Collins v
Wilcock)
* Force
- 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 s 47.
3.2 Force
Key case: Collins v Wilcock [1984] 3 All ER 374
Goff LJ stated: The fundamental principle, plain and incontestable, is that every person’s body is inviolate […]. Any touching of another person, however slight may amount to a battery.
Key case: R v Thomas (1985) 81 Cr App R 331
…] there could be no dispute that if you touch a person’s clothes while he’s wearing them that is equivalent to touching them. (Per Ackner LJ)
Key case: Faulkner v Talbot [1981] 3 All ER 468
A battery is an intentional touching of another person without the consent of that person and without lawful excuse. It need not necessarily be hostile, or rude, or aggressive as some of the
cases seem to indicate (Lord Lane CJ). The application of force need not be aggressive
Key case: DPP v Santana-Bermudez [2003] EWHC 2908 (QBD)
Facts: The respondent was convicted of assault occasioning actual bodily harm (based on a battery). A police officer asked the respondent if he had any needles or ‘sharps’ on him. The respondent replied ‘No’. The officer then searched the respondent’s jacket pockets, where her
finger was pierced by a hypodermic needle.
Held: Although the respondent had not done an act which had directly caused the injury, the
Divisional Court held that he had created a danger (by exposing the officer to a risk), which he had failed to avert. Battery was constituted by an omission. An omission can constitute force.
3.3 The application of force & indirect battery
Most batteries are inflicted directly eg by the defendant hitting the victim with or without a weapon. Throwing a missile at the victim is also considered to be a direct application of force. However, a battery can be indirect.
Key case: R v Martin (1881) 8 QBD 54
Facts: The defendant closed the exit doors of a theatre. As the people were about to leave, he turned off the lights and panic ensued.
Held: This was an indirect battery. The court also gave the example of D digging a pit which V then falls into as being an indirect battery.
Key case: DPP v K [1990] 1 WLR 1067
Facts: K was 15. He splashed some acid on to his hand during a chemistry lesson and he asked for permission to go and wash his hand because it was sore. He took with him a boiling tube of concentrated acid. He poured some of the acid onto a piece of paper, but hearing footsteps outside, he panicked and poured the rest of the acid into the upturned nozzle of a hot air hand/face drier.
The footsteps receded and he re-joined the chemistry lesson intending to return later to deal with the acid in the drier. Another pupil used the drier and the acid was ejected on to his face, causing scarring.
Held: Although he was acquitted because of a lack of mens rea, the Court of Appeal stated that this had satisfied the actus reus of battery.
3.4 Unlawful
We must consider the circumstances when such contact may be justified. This can be for a number of reasons, but a common claim is that the victim consented to the application of force.
Consent can therefore make the application of force lawful, and thus prevent a battery from being committed.
