Non-Fatal Offences Against The Person - Lecture 4 PDF

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Summary

There are five offences that will be examined are based on whether or not the V was injured, the level of severity of the injury, and the intention. These offences are namely;  Assault and Battery (Common Assault) (S Criminal Justice Act 1988)  S Assault Occasioning Actual Bodily Harm (S Offences ...

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Non-Fatal Offences Against The Person 2012 There are five offences that will be examined are based on whether or not the V was injured, the level of severity of the injury, and the intention. These offences are namely;  Assault and Battery (Common Assault) (S.39 Criminal Justice Act 1988)  S.47 Assault Occasioning Actual Bodily Harm (S.47 Offences Against The Person Act 1861)  S.20 Malicious Wounding or Inflicting Grievous Bodily Harm (S.20 OAP Act 1861)  S.18 Wounding or Causing Grievous Bodily Harm with Intent (S.18 OAP Act 1861) Common Assault: Common Assault is a summary offence and there are two ways of committing this: (i) Assault, and (ii) Battery. Although both are common law offences the statute (S.39 CJA 1988) sets out the maximum punishment of 6 months’ imprisonment or/and a fine of £5,000. Assault (Basic Intent Offence): ‘The D must intentionally or recklessly cause another person to fear immediate unlawful personal violence’. Actus Reus

Mens Rea

D does an act which causes the V to apprehend (expect) the immediate application of unlawful violence.

D intends V to have apprehension referred to in the A.R, or D foresees (i.e. is reckless) V might have such apprehension. Venna (1975).

This is an offence defined by common law – Haystead v CC of Derbyshire (2000) – and is only a statutory offence (S.39 CJA 1988) in respect of governing the mode of trial and sentence. Actus Reus – It occurs when the D does any act which causes the V to fear that unlawful force is about to be used against him. There is no need for physical contact although it cannot be an omission. This requires some act, words, or gesture – Lamb (1967). The threat must be unlawful (no consent?) The fear of violence must cause the V to fear that immediate force is going to be used against them (if it is clear the threat cannot be carried out immediately it will not amount to common assault). Words alone may amount to a technical assault – Ireland & Burstow (1998) Words may negate what would otherwise be an assault – Tuberville v Savage (1669) Silence may amount to an assault – Ireland & Burstow (1998) Immediate does not necessarily mean instantaneous but imminent – Smith (1983)/ Constanza (1997)  Apprehend does not mean fear. It means expect. The V may be in fear, but V does not have to be afraid for there to be an expectation. However, if V does not expect to be harmed, there is no technical assault – Lamb (1967).  A threat of conditional nature can be assault – Read v Coker  Irrelevant if D cannot carry out the threat, as long as V believes he can – Logdon v DPP (1976)  Meaning of violence: The V can only apprehend physical violence and not psychological violence – Ireland & Burstow (1998) Mens Rea –    

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Non-Fatal Offences Against The Person 2012 D must intend to cause V to apprehend immediate and unlawful personal violence … OR … D must be reckless as to whether to cause V to apprehend immediate and unlawful personal violence. R v Venna (1976) – The Intention or Recklessness as to causing the V to apprehend immediate and unlawful violence. R v Savage; R v Parmenter (1922) confirmed R v Cunningham – Subjective Recklessness Battery (Basic Intent Offence): ‘Where the D intentionally or recklessly applies unlawful force to another person without his consent’ – R v Fagan (1969) and Ireland & Burstow (1998) Actus Reus

Mens Rea

D applies unlawful force to the V.

D intends to apply unlawful force, or D foresees (i.e. D is reckless) that he might apply unlawful force.

This is an offence defined by common law – Haystead v CC of Derbyshire (2000) – and is only a statutory offence (S.39 CJA 1988) in respect of governing the mode of trial and sentence. Actus Reus – There must be some application of force (contact with the V) as this marks the difference from an assault.       

Force includes the merest of touching (implied daily consent) – Collin v Wilcock (1984) If you touch a person’s clothes while he is wearing them that is equivalent to touching them – R v Thomas (1985) No pain of injury is required – R v Lynsey (1995) The application of force need not be rude, aggressive or hostile – Faulkner v Talbot (1981) The force need not be applied directly – Haystead v DPP (2000) and DPP V K (1990) Battery can be by an omission – Fagan (1986) and DPP v Santana-Bermudez (2003) The fore applied must be unlawful; If the V gives genuine consent then the force may be lawful. Consent negates the unlawfulness of the conduct and therefore there is no actus reus. See Consent.

Mens Rea – D must intend to use unlawful force on V without V’s consent … OR … D must be reckless as to whether to use unlawful force on V without V’s consent – R v Venna (1976).

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Non-Fatal Offences Against The Person 2012 S.47 ABH (Basic Intent Offence): ‘Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable … to be imprisoned for any term not exceeding five years’. Actus Reus  ‘Assault’ (which can be either a technical assault or a battery or both).  Occasioning which means causing (causation).  Actual Bodily Harm (ABH).

Mens Rea  If the ‘assault’ is a technical assault, the prosecution has to prove the mens rea of a technical assault ... or ...  If the ‘assault’ is a battery, the prosecution has to prove the mens rea of a battery.

Actus Reus – S.47 can be thought of as an aggravated assault or an aggravated battery: Either assault which causes actual harm = S.47 or battery which causes actual harm = s.47 – DPP v Little (1992)  

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It must be established that the assault or battery caused the actual bodily harm – DPP v Santana-Bermudez 2003 The harm which must result from the assault or battery must amount to ABH, which means ‘any hurt or injury calculated to interfere with the health and comfort of the V’ – R v Miller (1954) It may include psychiatric harm; medical evidence required – R v Ireland (1998) ‘The word actual indicates that the injury should not be so trivial as to be wholly insignificant’ – R v Chan-Fook (1994) Liability for S.47 offence is constructive (mini offence in big offence). Arguably this goes against the basic principle of criminal liability. I.E. that the MR should be related to the AR of the offence in order to be convicted of that offence – R v Savage (1992) Cutting hair can also amount to ABH – DPP v Smith (2006)

Mens Rea – The only Mens Rea required is that of EITHER an assault or a battery. There is no mens rea attached to the actual bodily harm element – R v Roberts (1971) confirmed in R v Savage & Parmenter (1992) The D does not have to intend or be reckless as to causing ABH.

N.B: Although this offence includes any injury, even a small bruise, the CPS will be unlikely to charger the D with S.47 unless the injury is more serious (CPS Charging Standards do not have legal effect).

S.20 GBH (Basic Intent Offence):

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Non-Fatal Offences Against The Person 2012 ‘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, and being convicted thereof shall be liable … to imprisonment for a term not exceeding 5 years …’ Actus Reus

Mens Rea

D unlawfully wounds or inflicts grievous bodily harm.

Maliciously which means intentionally or recklessly and in this context it means intending or foreseeing some harm.

S.20 is a triable-either-way offence and the maximum sentence for imprisonment is 5 years. Actus Reus –  The D’s must unlawfully and maliciously wound or inflict GBH – R v Burstow (1997)  A wound; this means a cut or a break in the whole of the skin. Internal bleeding where there is no cut is insufficient – JCC v Eisenhower (1983)  In DPP v Smith (1961) it was held that GBH means ‘really serious harm’ but does not need to be life threatening. In R v Saunders (1985) it was held that there is no difference between ‘serious harm’ and ‘really serious harm’ and that ‘really’ was not necessary.  CoA stated bruising could amount to GBH and the severity of the injuries should be assessed according to the victim’s age and health – Bollom (2004)  Multiple minor injuries collectively they were considered by the court as GBH under s.20 – Brown and Stratton (1998)  Psychiatric injury can be GBH provided it is sufficiently serious – Burstow (1997)  Biological case of recklessly transmitting HIV – Dica (2003)  R v Lewis (1970)

Mens Rea – D must intend … OR … foresee (apply Cunningham test when considering what the D foresaw) that his act might cause some physical harm to some person, even if the harm is of a minor nature (albeit not serious harm) – R v Savage; Parmenter (1992). Constructive Liability: The MR does not correspond to the AR. The prosecution does not have to prove D intended to wound or intended GBH, or even foresaw the wound or the GBH. It is enough for the prosecution to prove D foresaw some harm – Mowatt (1968)

N.B: What seems to be an injury amount to ABH can actually be GBH where the victim is very young (or perhaps even unusually vulnerable).

S.18 GBH (Specific Intent Offence):

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Criminal Law – Year 2!

Non-Fatal Offences Against The Person 2012 ‘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, or with intent to prevent the lawful apprehension … shall be guilty of an offence …’ Actus Reus

Mens Rea

D unlawfully wounds or causes grievous bodily harm.

D intends to cause GBH, or D foresees some harm and intends to resist lawful arrest.

This offence is considered much a more serious offence than S.20 and the maximum sentence is life imprisonment. Actus Reus – Similar to S.20 (see above); there are four ways of committing this offence: 1. 2. 3. 4.

Wounding with intent to cause GBH Wounding with intent to resist arrest Causing GBH with intent to cause GBH Causing GBH with intent to resist arrest

In terms of AR, the terms wound and GBH are the same as S.20 and the words ‘cause’ and ‘inflict’; carry the same meaning – R v Wilson (1984)

Mens Rea – D must intend to cause grievous bodily harm … Bryson (1985)   

OR … intent to resist or prevent lawful arrest – R v

It is an offence of specific intent Intention MUST be proved as recklessness is not sufficient Intention has the same meaning as in the law of murder (aim/objective/purpose) … possibly following onto oblique intent.

N.B: http://www.cps.gov.uk/legal/I_to_o_/offences_against_the_person/#P73_2396 Start your answer with the most serious offence which may have been committed for that particular incident, and if the elements are not present drop down to a less serious offence.

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Non-Fatal Offences Against The Person 2012 CASENOTE

Venna (1975)

FACTS

The D lashed out at police officers who were trying to arrest him. Two officers held the D’s arms while he was on the floor, the D kicked out, fracturing the hand of an officer.

DECISIONS

Convicted of S.47. It was held that the mens rea is intention or recklessness as to causing the V to apprehend immediate and unlawful violence.

CASENOTE

Haystead v CC of Derbyshire (2000)

FACTS DECISIONS

CASENOTE

Lamb (1967)

FACTS

D, in jest, pointed a revolver at V, who joined in the game. The revolver had five chambers, in two of which were live bullets, neither of which was in the chamber opposite the barrel when D pulled the trigger. The chamber rotated before firing, a bullet was struck by the striking pin and V, D’s friend, was killed.

DECISIONS

CoA held that the prosecution had been unable to prove D had MR for assault (intention or recklessness to cause V to apprehend immediate unlawful harm).

CASENOTE

Ireland (1998)

FACTS

The defendant made a series of silent telephone calls over three months to three different women. He was convicted under s.47 Offences Against the Person Act 1861. He appealed contending that silence cannot amount to an assault and that psychiatric injury is not bodily harm.

DECISIONS

His conviction was upheld. Silence can amount to an assault and psychiatric injury can amount to bodily harm.

CASENOTE

Burstow (1998)

FACTS

The defendant had a brief relationship with a woman She ended the relationship and he could not accept her decision and embarked on a campaign of harassment against her over a period of 8 months. He made silent telephone calls, abusive telephone calls; he appeared at her house,

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Non-Fatal Offences Against The Person 2012 took photos of her, and distributed offensive cards to her neighbours and hate mail. As a result she suffered a severe depressive illness. DECISIONS

Psychiatric injury could amount to bodily harm (dicta in Chan-Fook applied) and the word 'inflict' in s.20 simply means cause. There was thus no requirement that physical force is directly or indirectly applied.

CASENOTE

Tuberville v Savage (1669)

FACTS

The defendant put his hand on his sword and stated, 'if it were not assizetime, I would not take such language from you'. Assize-time is when the judges were in the town for court sessions.

DECISIONS

It was held that this did not amount to an assault as the words indicated that no violence would ensue.

CASENOTE

Smith v Chief Superintendent of Woking Police Station (1983)

FACTS

The defendant peered through the window of a young woman's home late at night. He had entered the garden and went up to the window and peered through a gap in the curtain. The woman saw him and screamed but he did not move but kept staring she phoned the police. He was charged with an offence under the Vagrancy Act 1864 which required proof of an assault. He was convicted and appealed contending that the prosecution had failed to establish the victim had apprehended immediate unlawful personal violence. He accepted that she was frightened but that she could not have been frightened of personal violence as he was outside the house and she was inside.

DECISIONS

The D was convicted; the courts now take a more relaxed view of what is immediate in order to achieve justice for V’s. Fear of what he might do next was effectively immediate for the offence of assault.

CASENOTE

Constanza (1997)

FACTS

The defendant mounted a campaign of hate against an ex-work colleague over a period of 20 months. He sent over 800 threatening letters, would follow her home, wrote offensive word on her front door, drove past her house, and stole items from her washing line. As a result she suffered clinical depression. He was charged with ABH under s.47 OAPA 1861. The defendant contended that words alone could not amount to an assault and that the letters could not amount to an assault as there was no immediacy.

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Non-Fatal Offences Against The Person 2012 DECISIONS

The defendant's conviction was upheld. The jury were entitled in the circumstances to find that immediacy was present and words can amount to an assault.

CASENOTE

Read v Coker (1853)

FACTS

The Plaintiff rented a building from the defendant. The Plaintiff was behind in his rent by 16 weeks, so the defendant sent Holliwell to collect some of his materials pertaining to his employment as collateral. The defendant took possession of the goods as it was as if they were square on the rent. The plaintiff continued to work for a weekly wage using the supplies and building owned by the defendant. The plaintiff was fired by the defendant. Two days later, the plaintiff returned to the premises owned by the defendant and refused to leave. The defendant gathered up some of his men and threatened him that if he didn’t leave, they would break his neck. The plaintiff left fearing the men would strike him.

DECISIONS

A threat of conditional nature can amount to an assault (gesture and intent), and the V can only avoid the immediate force by complying.

CASENOTE

Logdon v DPP (1976)

FACTS

The defendant pointed an imitation gun at a woman in jest. She was terrified. The defendant then told her it wasn't real.

DECISIONS

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.

CASENOTE

R v Savage

FACTS

D threw the contents of a glass of beer over the V and as she did so, the glass broke and cut the V.

DECISIONS

Her conviction for a S.20 offence was substituted for a S.47. S.20 requires the prosecution to prove the D foresaw some harm to V, but the S.47 offence does not. The prosecution must simply prove the offence of a technical assault or a battery.

CASENOTE

R v Parmenter

FACTS

The defendant was convicted on four counts of causing GBH to his baby son under s.20. The baby suffered injuries to his boney structures of his legs and forearms due to the heavy handed way the defendant handled the baby. The defendant was not used to handling young babies and did not know that his

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Non-Fatal Offences Against The Person 2012 actions would result in injuries. The trial judge directed the jury that they were to convict if the defendant should have foreseen that his handling of the child would result in some harm albeit of a minor nature. The defendant appealed contending that it was necessary to establish that the defendant appreciated the risk and it was not sufficient that he should have foreseen a risk of injury. DECISIONS

The appeal was allowed. His convictions under s.20 were substituted with convictions for ABH under s.47.

CASENOTE

R v Cunningham (1957)

FACTS

D went into the cellar of a house that was converted into two. He tore the gas meter from the wall and from its pipes and stole money from it. He did not turn off the gas at a stop tap nearby and gas escaped, seeped through the dividing wall of the cellar and partially asphyxiated his prospective mother-inlaw, who was asleep in her bedroom. D was charged, with having unlawfully and maliciously administering a certain noxious thing, coal gas, so as thereby to endanger her life.

DECISIONS

Not guilty. The D could not be guilty unless he realised that there was a risk, that escaping gas could injure someone. He had not foreseen the type of harm that actually occurred.

CASENOTE

Fagan v MPC (1969)

FACTS

A policeman was directing the defendant to park his car. The defendant accidentally drove onto the policeman's foot. The policeman shouted at him to get off. The defendant refused to move. The defendant argued at the time of the AR, the driving onto the foot, he lacked the mens rea of any offence since it was purely accidental. When he formed the mens rea, he lacked the AR as he did nothing.

DECISIONS

The dri...