Assault Battery S47 Notes (Non Fatal Offences) PDF

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Summary

General notes on the non fatal offences of criminal law...

Description

Non-Fatal Offences Against the Person assault, battery and ‘assault occasioning ABH Notes

Hierarchy of Main Offences /Ladder

Fatal Offence Murder

Location Common Law

Manslaughter

Common Law/ Partial Defence

Sentence Mandatory life sentence Max = life

Non Fatal Offence Wounding/Causing gbh with intent Wounding/Inflicting gbh maliciously Assault Occasioning actual bodily harm (abh) Battery Assault

Location s.18 Offences against the Person Act A 1861 s.20 Offences against the Person Act 1861 s.47 Offences against the Person Act 1861 Criminal and Justice Act 1988 s.39 Criminal and Justice Act 1988 s.39

Sentence Max = life Max = 5yrs Max = 5yrs

Max = 6m Max = 6m

Hypothetical Questions •

Making harmful, upsetting or threatening comments using social media/mobile phones? Safe distance with social media (not something someone in 1861 would have thought about)

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Causing another person to suffer injury that manifests in mental rather than physical harm?

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Transmission of HIV or COVID 19 and other similar conditions? (Lectures 18 and 19 will address this in some detail)

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How does this fit with the ladder that seems primarily concerned with direct physical injury

Historical Issues/ Previous law regarding Assault and Battery

“Assault … which is an attempt or offer to beat another, without touching him, as if one lifts up his cane, or his fist, in a threatening manner at another, or strikes at him but misses him.” “ Battery… which is the unlawful beating of another. The least touching of another’s person wilfully, or in anger, is a battery for the law cannot drawn the line between different degrees of violence, and thus prohibits the first and lowest stages of it.” (Blackstone’s Commentaries, vol III p.120 (1768), referenced in Collins v Wilcock (above)). ‘Threatening to beat’ and ‘beating’ remain sufficient but the two crimes have moved beyond this historical restriction:

Other ‘adaptations’ include the extension of assault to cover ‘stalking’ ….

Assault

Definition Haystead v CC Derbyshire [2000] 2 Cr App R 339. Assault and battery are charged under s.39, but depend on the common law for definition: cf

Collins v Wilcock (PO laid hand on somebody to detain them) “An assault is an act which causes another person to apprehend the infliction of immediate, unlawful force on his person; NB ‘apprehend’ is a better word than ‘fear’ because there is no requirement for V to be ‘afraid’ of D - V need only anticipate the immediate use of force.

Combination of Assault and Battery s.47 OAPA - Assault occasioning ABH means assault or battery occasioning ABH Assault and battery are separate offences. But the terms ‘assault’, and ‘common assault’, are (confusingly) sometimes used to include battery, eg in s.47 OAPA. The context should make the meaning clear – but be aware!

Penalty S. 39 Criminal Justice Act 1988 (only provides this/ what type of offence they are and the maximum penalty) : provides that ‘common’ assault and battery are summary offences only (Max 6 months / level 5 fine).

AR for Assault Actus reus of assault involves the creation of a mental state in another person (‘apprehension’) The legal definition does not require D to make any physical contact with V The actus reus of assault is therefore less concerned with the conduct of D, and rather more concerned with the impact of that conduct on V

Unlawful Personal Violence Unlawful personal violence includes any non-consensual contact with V. Thus, the actus reus of assault will be satisfied where V is caused to apprehend even low-level violence; V need not believe that the ‘violence’ would be serious or cause injury

No Apprehension For example, if D motions to strike V (ie performs conduct that would usually cause V the relevant apprehension), but V does not so apprehend, perhaps because she is asleep or she knows D is bluffing, the actus reus will not be satisfied. LOGDON V DPP [1976] CRIM LR 121 Facts: The defendant pointed an imitation gun at a woman in jest. She was terrified. The defendant then told her it wasn't real. Held: An assault had been committed as the victim had apprehended immediate unlawful personal violence and the defendant was reckless as to whether she would apprehend such violence.

Spitting

Misalati [2017] EWCA 2226 –spitting and missing can constitute an assault. How imminent must V believe the violence will be?

V must be caused to apprehend immediate or imminent unlawful personal violence. Threats of violence at some (p. 222) non-imminent point in the future (eg ‘I will beat you up next month’), however serious, will not constitute an assault. Subjective: we ask what facts V is caused to believe; what V believes the nature of the threat is (eg point unloaded gun, Ar for assault if V doesn’t know this) Objective: based on the facts that V is caused to believe, whether this belief amounts to an apprehension of imminent violence is an objective one for the court. V is caused to believe she will be shot in one hour, whether this is imminent will be a question for the court. The tendency of the court has been to interpret the requirement of imminence very broadly, allowing for liability even where V knows that the threat will involve some delay.7 This approach has been adopted consistently by the courts,8 as illustrated by the case of Constanza.

Silence/Words as assault

R v Ireland; R v Burstow [1997] 4 All ER 225 Facts D harmed 3 victims over a period of time by making phone calls/ made them ill as a consequences/ he didn’t say anything/ victims ultimately built up and they became unwell/ Case Hol decided not to go through this and SAID HL held that ‘a thing said is also a thing done’ (Lord Steyn) Words can constitute AR for assault

Significance Prosecution must prove that phone call caused apprehension of immediate unlawful force Fear may dominate [V’s] emotion, 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. As a matter of law, the caller may be guilty of an assault” “What may heighten her fear is that she will not know what the caller may do next. The spectre of the caller arriving at her doorstep bent on inflicting personal violence on her may come to dominate her thinking. After all, as a matter of common sense, what else would she be terrified about?”

R v Constanza [1997] 2 Cr App R 492 CA: “The essential issue … is whether it is enough if the Crown have proved a fear/apprehension of violence at some time not excluding the immediate future/ possibility of the harm being immediate and it is sufficient . In our judgment it is.” Since the Protection from Harassment Act 1997 (as amended) was introduced, no further need to use assault for stalking offences (Essentials 7.9.1)

Tuberville v Savage (1669) 1 Mod Rep 3 It had been decided that words could have the effect of negating one If it were not assize-time, I would not take such language from you.” This was not an assault because his words made it clear that he did not intend to strike.

Read v Coker (1853) 13 CB 850). If V has to do something to avert the immediate threat, it will remain an assault Eg unless you go I have to break your neck/ v has to leave to avoid harm/ can still be assault No assault if D’s actions or words do not suggest an immediate threat, even if V is understandably concerned about D’s future intentions (‘When I get out of jail I will break your legs’.)

Indirect Assault not necessary that such apprehension should involve violence from D. Thus, where D threatens V with a dog,10 or even attack from another person, D’s conduct will satisfy the actus reus.

MR for Assault R v Savage, Parmenter [1992] 1 AC 699 S threw beer from a glass at V, and accidentally let go of the glass It is common ground that the mental element of assault is an intention to cause the victim to apprehend immediate and unlawful violence or recklessness whether such apprehension be caused’ (citing Venna [1976] QB 421) Recklessness’ in non-fatal offences cases means ‘subjective’ recklessness – so D who causes V apprehension is only reckless if he realises this may be the effect of his conduct R v Venna D to intend or be reckless as to causing the result: D must intend or foresee the possibility that her act will cause V to apprehend imminent unlawful violence

Battery

Definition Haystead v CC Derbyshire [2000] 2 Cr App R 339. Assault and battery are charged under s.39, but depend on the common law for definition: cf

Collins v Wilcock [1984] 3 All ER 374). a battery is the actual infliction of unlawful force on another person” (Per Robert Goff LJ Minimal Force sufficient

DPP v Little [1992] QB 645) Battery is normally charged as ‘assault by beating’ (

Combination of Assault and Battery s.47 OAPA - Assault occasioning ABH means assault or battery occasioning ABH Assault and battery are separate offences. But the terms ‘assault’, and ‘common assault’, are (confusingly) sometimes used to include battery, eg in s.47 OAPA. The context should make the meaning clear – but be aware!

Battery v s47 •

Where injury occurs, battery remains a suitable charge, though if the injury is more than ‘transient or trifling’ a more serious charge under s.47 (see slide 17) may be appropriate:

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Requirement for ‘application of force’, means that the silent telephone caller, even if he causes V to become ill and thus to suffer harm, commits no battery (Ireland & Burstow [1997] 4 All ER 225).

Penalty S. 39 Criminal Justice Act 1988 (only provides this/ what type of offence they are and the maximum penalty) : provides that ‘common’ assault and battery are summary offences only (Max 6 months / level 5 fine

AR for Battery Collins v Wilcock Facts: A police woman took hold of a woman's arm to stop her walking off when she was questioning her. The woman scratched the police woman and was charged with assaulting a police officer in the course of her duty. Held: The police woman's actions amounted to a battery. The defendant's action was therefore in self defence and her conviction was quashed. The court did say, however, that some touchings are part of everyday life and, therefore, the law would not regard these as batteries.

actus reus of battery requires physical contact (‘force’) But minimum force suffices – there is no need to prove injury.

Indirect Haystead v CC of Derbyshire [2000] 2 Cr App R 339 A baby’s mother was punched by a police officer; resulting in the baby being dropped. Held: The police officer was found guilty of battery. Battery has been upheld where force is applied indirectly

DPP v K (1990) 91 Cr App R 23. D committed battery when he poured acid into a toilet hand-dryer, causing the next user to be sprayed Battery has been upheld where force is applied indirectly

R v Martin It was agreed that battery could be found where D digs a pit for V to fall into, or causes injury through the placing of an obstruction.

Other cases involve battery where D sets his dog25 or other animal26 on V.

No Touching of the Person

Omission

Santana-Bermudez [2004] Crim LR 471: Omissions liability, it should be remembered, requires D to have omitted in breach of a duty to act.29 In Santana-Bermudez, this is established by D’s creation of a dangerous situation: having sharp objects in his pocket and assuring V that he did not Battery has also been upheld without a positive act

Dangerous Situation

R v Miller 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 which materialises, there is an evidential basis for the actus reus of an assault occasioning actual bodily harm

Ordinary instances of life

Collins v Wilcock V cannot complain about contact which is ordinarily acceptable in daily life, eg touching to attract attention

Pegram v DPP [2019] EWHC 2673 PO close to the line he was holding on to somebody when warning them, trying to keep people apart, must draw the distinction

Consent

General point- Consent negatives battery

B [2013] Forced w to eat leaves In the garden against his will No intention, through genuinely it was good for her / not hostile IF he knew it was not something she wanted and he carried out and did it, fact he was motivated by misdirected affection wont save him from being an assault, refused to give the word hostile any operative effect if a person tells another that he or she refuses to be touched or struck in a particular way and the other carries on and does it, the fact that he is motivated by misdirected affection will not save it from being an assault

Brown [1994] 1 AC 212, HL (Lecture 19)). The five appellants were convicted on various counts of ABH and wounding a under the Offences Against the Person Act 1861. The injuries were inflicted during consensual homosexual sadomasochist activities The defence of consent cannot be relied on in offences under s.47 and s.20 OAPA 1861 where the injuries resulted from sadomasochist activities.

Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised MR for Battery As with assault, requires intention or recklessness as to the actus reus

R v Venna [1976] QB 421 -

D kicked out at a policeman trying to subdue him

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Broke a bone in his hand

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Recklessness sufficient for battery/ or was it crime of intention ONLY

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Court clear, either recklessness or intention enough

We see no reason in logic or in law why a person who recklessly applies physical force to the person of another should be outside the criminal law

Current Test for Recklessness G [2004] 1 AC 1034 in relation to criminal damage thus puts damage to property and nonfatal harm to people on the same (subjective) footing.

The appropriate test of recklessness

(i) a circumstance when he is aware of a risk that it exists or will exist;

(ii) a result when he is aware of a risk that it will occur;

Hostility? It is generally accepted that hostility is not an element of assault or battery

Assault (Assault or Battery) Occasioning ABH S47

Definition S47 Section 47 is satisfied where D commits an assault or battery that causes V to suffer actual bodily harm (ABH).

Penalty S47- Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm” is liable to imprisonment for a term not exceeding five years.

AR

Donovan [1934] 2 KB 498. The defendant caned a 17-year-old girl, with her consent, for sexual pleasure Was the defendant guilty of causing actual bodily harm under section 47 of the Offences Against the Person Act 1861? No Consent part The jury had been misdirected as to the burden of proof requirements of consent. Consent was treated as a defence to the offence and not as negating the actus reus "An unlawful act cannot be rendered lawful because the person to whose detriment it is done consents to it. No person can licence another to commit a crime". Essentially the defence is limited on a case by case basis.

What is bodily harm part Bodily harm’ has its ordinary meaning and includes any hurt calculated to interfere with the health or comfort of the victim: such hurt need not be permanent, but must be more than transient and trifling

Hair

DPP v Smith [2006] EWHC 94 (Admin); -

D cut off ex hartners ponytail

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ABH didn’t have to involve injury, hair which his part of the body could be subject of the charge/ dead tissue

Stefanski [2019] EWCA Crim 831. -

Cut of off chunk of his wife's hair

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Brought prison sentence

Assault or Battery

The term ‘assault’ in section 47 should be read as ‘assault or battery’. The actus reus elements of these base offences have been discussed earlier. Most cases will involve a battery that occasions ABH. However, a base offence of assault is also possible as, for example, where D causes V to apprehend imminent violence (assault) and V hurts herself when attempting to escape (ABH).55

Causation In S.47, ‘occasioning’ ABH requires proof of EITHER assault or battery PLUS a causal link to the ABH Simple link from assault or battery to the ABH Same as Roberts principle, causal link between what victim did and what the D did Having demonstrated an assault or battery, the prosecution must prove that this assault or battery occasioned ABH. ‘Occasioning’ has been interpreted to mean nothing more than ‘causing’.56 Thus, D’s conduct must have caused (a) the result element of the assault or battery, and (b) ABH.

Actual Bodily Harm Factors to consider whether s47 or Battery (AR)

1. The culpability of the offender, 2. the injuries suffered by the complainant 3. and the overall harm caused; 4. Aggravating factors in the case; 5. The likely sentence on conviction

Distinction- As soon as the more serious offence is charged ,penalty goes up Look for range of injuries as serious, BUT actual NOT grievous Not GBH

Examples of ABH and NOT GBH Distinct from mere battery, it is clear that ABH will not be found where V’s injury is merely ‘transient and trifling’.58 However, ABH has been described in expansive terms to include ‘any hurt or injury that is calculated to interfere with the health or comfort’ of V Serious injuries include damaged teeth or bones, extensive and severe bruising, cuts requiring suturing and those that result in loss of consciousness. That the injuries required medical treatment, because they could not be treated by the victim alone and required medical assessment at least, may indicate a serious injury.” (CPS Guidance)

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scratches, grazes, and abrasions; bruising and swelling; temporary loss of consciousness;60 (p. 236) cutting a substantial amount of hair;61 psychiatric injury; etc.62

Psychiatric Injury

Chan Fook -

D had unlawfully detained X whom he thought stolen from him

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Mentally challenged on the person who detained

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Were these sort of farm counted as bodily injury

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COA said can, nervous system injuries counted as do injuries that affect the brain and trauma involved

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Courts do expect injury caused is a recognized psychiatric injury

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Mere grief or distress not sufficient

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Must be a condition that can be pointed to

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ABH may include recognized psychiatric injury: ‘bodily’ incorporates the nervous system and brain

R v Ireland (Lord Steyn) -

Bodily should be confined to what it meant

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Act of parliament is always speaking

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It can be interpreted in light of current scientific appreciation of the link between body and psychiatric injury

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rejecting the idea that the court was confined to what ‘bodily’ meant

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R v Dhaliwal [2006] EWCA Crim 1139

The defendant had verbally abused his wife for many years The wife committed suicide as a result of this abuse Did the defendant cause his wife’s death? NO Whilst mental harm by way of a recognised mental condition can be classed as harm, mere emotions are not enou...