OAPA handout - Lecture notes 14 PDF

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Non-fatal, non-sexual offences against the person 1. Assault and Battery s. 39 Criminal Justice Act 1988 (CJA 1988): ‘Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both’.

Terminology issues? Collins v. Wilcock [1984] 3 All ER 374. - Lord Justice Goff confirmed the distinction between assault and battery. ‘’a battery involves an unlawful and unwanted contact with the body of another whilst assault involves causing another to apprehend an unlawful unwanted contact’’. DPP v. Little [1992] QB 645. R v. Nelson [2013] EWCA Crim 30.

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Assault ‘An assault is any conduct by which D, intentionally or recklessly, causes V to apprehend immediate and unlawful personal violence’.

The definition above was: - adopted in Fagan v. Metropolitan Police Commissioner [1969] 1 QB 439; - approved in R v. Savage and Parmenter [1992] 1 AC 699; and - applied by the House of Lords in R v. Ireland; R v. Burstow [1998] AC 147. Actus reus: An act that causes the victim to apprehend immediate personal violence 1. An Act Any act which makes the victim apprehend that immediate violence is going to be used against them. This includes the use of words only.  R v. Constanza [1997] 2 Cr App R 492. - Stalker sent 812 letters. Letters of words can form an assault. It was held to be enough for V to prove a fear of violence at some time not excluding the immediate future.  R v. Ireland - Silent phone calls could constitute an assault but they reinforce the requirement of a fear of immediate unlawful violence. Its not enough that you fear harm in the future, the fear of immediate harm must be for harm that occurs there and then.  R v. Burstow (above).  Blake v. Barnard (1840) 9 C & P 626. – D pointed pistol at V’s head and said ‘ IF V was not quiet he would blow his brains out’. D acquitted but the fact an additional threat can be an assault confirmed in Read v Coker.  Read v. Coker (1853) 13 CB 850. – D and his servants surrounded V and threatened to break V’s neck if he didn’t leave the premises. Conditional threat amounted to assault. * J. Horder, ‘Reconsidering Psychic Assault’ [1998] Criminal Law Review 392.

2. Which causes V to apprehend  R v. Lamb [1967] 2 QB 981. – Fake gun pointed at V. If V does not apprehend personal violence not assault  Logdon v. DPP (above). – Fake gun pointed at V. It doesn’t matter if there was no actual threat, if V apprehends immediate personal violence it is an assault.  Tuberville v. Savage (1669) 1 Mod Rep 3 – D and V were having an argument and D was carrying a sword. D laid his hand on his sword to make threatening gesture to V but D said ‘If it were not assizes time I would not take such language’’ meaning the Assize courts were in the area and he weren’t going to hurt V as the courts were in

3 the area. Therefore words indicating there will be no violence can negate the threat in D’s actions.

3. The infliction of immediate The law requires the V apprehends immediate personal violence. A threat to inflict harm next week cannot amount to an assault but the courts have taken a broad view of what counts as immediate (ie does not have to mean there and then)  R v. Lewis [1970] Crim LR 647. – D was uttering threats to V his wife who was in another room. The threats were such that V his wife jumped out of an upstairs window and broke her legs. Assault because V was in sufficient proximity to D to apprehend immediate contact.  Smith v. Chief Superintendent of Woking Police Station (1983) 76 Cr App R 234. – Looking through a window at woman in nightdress. Assault because D and V were in close proximity. (Lord Justice Kerr) ‘’ where the person who causes one to be terrified is immediately adjacent, albeit on the other side of a window’’ The word immediate is not interpreted as instantaneous/ there & then but as imminent Fear of what will happen next was sufficiently immediate for the purpose of the offence.

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R v. Constanza [1997] 2 Cr App R 492. - Stalker sent 812 letters. It was held to be enough for V to prove a fear of violence at some time not excluding the immediate future.

Mens rea: D intended, or was subjectively reckless as to, V’s apprehension of immediate unlawful violence. 

Intention OR recklessness will suffice:

R v. Venna [1976] QB 421 - . 

Standard of recklessness?

DPP v. K [1990] 1 WLR 1067 (‘Caldwell’ recklessness). R v. Spratt [1990] 1 WLR 1073 (‘Cunningham’ recklessness). R v. Savage and Parmenter (above) (‘Cunningham’ recklessness ... now presumed to be the test in R v. G + R [2003] UKHL 50).

4 Battery

‘A battery consists of the infliction of unlawful personal violence by D upon V which D commits, either intentionally or recklessly’.

Violence? ‘the law cannot draw the line between different degrees of violence, and therefore prohibits the first and lowest stages of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner’. Blackstone (1760s), Commentaries, iii, 120, cited by Goff LJ in Collins v. Wilcock (above), at p. 378. Violence or mere contact? Faulkner v. Talbot [1983] All ER 468. – Lord Lane described battery as ‘ the unlawful touching of another person without the consent of the other person and without lawful excuse’. It need not necessarily be either hostile or rude or aggressive. ‘’

Implied consent and ‘everyday’ personal contact? Cole v. Turner (1704) 6 Mod Rep 149. - To touch another in anger, though in the slightest degree, or under pretence of passing, is, in law, a battery .—S. C. Holt, 108. Collins v. Wilcock (above).- Lord Goff : ‘’Generally speaking consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is, within reason, slapped’’ Coward v. Baddeley (1859) 4 H & N 478.

5 Actus reus : The application of unlawful personal ‘violence’ upon V.

1. An Act or omission  Fagan v. Metropolitan Police Commissioner- A battery may be committed through a continuing act.

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Innes v. Wylie (1844) 1 Car & Kir 257. – held that battery has to be committed by an act BUT from further cases battery can be by omission

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DPP v. Santana Bermudez [2003] EWHC 2908 (Admin). – An omission can amount to a battery when there is a duty to act.

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R v. Martin (1881) 8 QBD 54. - D put the lights out in a crowded theatre and placed an iron bar across exit during performance. D shouts fire to audience. Stampede to get out. Many injured. Court said at the very least these injuries amount to batteries or be it indirect batteries. Force can be indirect for a battery. R v. Hirst (1999, unreported) R v. Clarence (1888) 22 QBD 23.- Justice Wills decided that use of a booby trap can be a battery. Force can be indirect for a battery DPP v. K [1990] 1 All ER 331.- Acid in hand dryer. Force can be indirect for a battery

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2. Amount of Force  R v. Thomas. –Touching clothing is equivalent to the touching of the person.  R v. Day (1845) 1 Cox CC 207 – D slashed V’s clothes with a knife. Surely its an assault on a mans person to inflict injury to the clothes on his back. In the ordinary case of a blow on the back there is clearly an assault even though the blow is received by the coat on the person. V need not feel the impact on clothing .  Collins v Wilcock – The slightest amount of unwanted touching can amount to a battery.  Murgatroyd v. Chief Constable of West Yorkshire (2000) All ER (D) 1742.- Undoubtable be a battery to set a dog on somebody.  R v. Ireland; R v. Burstow (above). – HoL - psychiatric harm is too remote.  R v. Smith (1866) 176 ER 910. – Spitting is sufficient  R v. Savage and Parmenter (above).- throwing beer is sufficient Other cases: R v. Sherif [1969] Crim LR 260. R v. Hanson (1849) 2 Car & Kir 912. Gibbons v. Pepper (1695) 2 Salk 637. Scott v. Shepherd (1773) 2 Wm Bl 892. Haystead v. Chief Constable of Derbyshire [2000] 3 All ER 890.* M. Hirst, ‘Assault, Battery and Indirect Violence’ [1999] Criminal Law Review 577.

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3. The force must be unlawful  Wilson v. Pringle [1987] QB 237. - hostility suggested as a requirement. Been diluted since. There is implied consent to the jostlings of everyday life so this will not amount to a battery.  R v. Brown [1994] 1 AC 212.- - hostility suggested as a requirement. Been diluted since.  Faulkner v. Talbot (above).

Mens rea: D intended, or was subjectively reckless as to, the application of force or touching to V. R v. Venna (above). Standard of recklessness? DPP v. K (above) (‘Caldwell’ recklessness). R v. Spratt (above) (‘Cunningham’ recklessness). R v. Savage and Parmenter (above) (‘Cunningham’ recklessness ... now presumed to be the test in R v. G + R (above)).

Common Assault and Battery: The CPS Charging Standards CPS (Crown Prosecution Service)- decide if there is enough evidence to produce an argument for conviction. S. 39 CJA 1988: charged where no aggravating features and minor injuries: - Minor injuries? - Aggravating features? * C. Clarkson, A. Cretney, G. Davis, and J. Shepherd, ‘Assaults: The Relationship between Seriousness, Criminalisation and Punishment’ [1994] Criminal Law Review 4.

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s. 47, Offences Against the Person Act 1861 (OAPA 1861): ‘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’.

As we will see, s. 47 creates a result crime: D’s conduct results in V either apprehending immediate and unlawful personal violence or sustaining personal violence, which subsequently also results in actual bodily harm. Actus reus: Assault occasioning actual bodily harm Assault This means assault or battery Occasioning Occasion means the same as cause. The normal rules of causation apply. R v. Roberts (1971) Cr App R 95.-Victims own actions. D tried to remove V’s clothing (battery), jumped out of car (abh). Battery caused ABH. DPP v. Santana Bermudez (above). R v. Ireland; R v. Burstow (above).- ABH can also include neurotic disorders. * J. Gardner, ‘Rationality and the Rule of Law in Offences Against the Person’ [1994] Cambridge Law Journal 502.

Actual bodily harm 

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R v. Miller [1954] 2 QB 282 (cf. R v. Donovan [1934] 2 KB 498). – Justice Lindsey quoted decision in Donovon that Harm is defined as ‘any hurt or injury calculated to interfere with the health and comfort of the victim. R v. Chan-Fook [1994] 1 WLR 689.- Aggressive interrogation of victim trapped in room. Actual’ means there must be more than merely trivial hurt or injury. The harm must not be so trivial as to be effectively without significance. R v. Chan-Fook [1994] 1 WLR 689 - Psychiatric injury does not include mere emotions like fear, distress or panic. R v. Dhaliwal [2006] EWCA Crim 1139. – ABH does not include phycological conditions that do not amount to psychiatric injury. DPP v. Smith [2006] EWHC 94 (Admin).- Cutting off a ponytail or other hair can be abh. Obiter so can gum or paint being put in hair. T v. DPP [2003] Crim LR 622.- Momentary loss of consciousness can be abh

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Other Cases: R v. Morris [1998] 1 Cr App R 386. R v. Reigate Justices, ex parte Counsell [1984] 148 JP 193.R v. Burns [2010] EWCA Crim 1023.-

Mens rea: D intended, or was (subjectively) reckless, as to the assault or battery on V. DPP v. K (above) (‘Caldwell’ recklessness). R v. Spratt (above) (‘Cunningham’ recklessness). R v. Savage and Parmenter (above) (‘Cunningham’ recklessness ... now presumed to be the test in R v. G + R (above)). 

There is NO need to show that D intended or foresaw the actual bodily harm.

R v. Roberts (above). R v. Savage and Parmenter (above). - Culpability and sentencing? - Correspondence of AR and MR? * J. Gardner, ‘Rationality and the Rule of Law in Offences Against the Person’ (above). * J. Horder, ‘A Critique of the Correspondence Principle in Criminal Law’ [1995] Criminal Law Review 759. * B. Mitchell, ‘In Defence of a Principle of Correspondence’ [1999] Criminal Law Review 195. S. 47 :The CPS Charging Standards - Distinguished from assault/battery. - Degree of injury for actual bodily harm? - Alternative verdicts? Battery loss or breaking of teeth/temporary loss of sensory functions which may include temporary unconsciousness/extensive or multiple bruising/broken nose/minor fractures/minor cuts requiring medical treatment e.g. stitches/psychiatric harm.

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s20 Unlawfully or Maliciously Wounding or Inflicting GBH Contained in s. 20, OAPA 1861: ‘Whosoever shall unlawfully and maliciously wound or inflict grievous bodily harm upon another person, either with or without any weapon or instrument, shall be liable ... to imprisonment for a term not exceeding five years’.

Overlap between ss. 47 and 20? Note CPS Charging Standards for s. 20 (below). - R v. Savage and Parmenter (above). * J. Gardner, ‘Rationality and the Rule of Law in Offences Against the Person’ (above).

Actus reus: The AR may be committed in one of two ways, with or without any weapon or instrument. Either: i) D unlawfully wounded V; or, ii) D unlawfully inflicted GBH on V.

With or without any weapon or instrument  The courts shouldn’t be concerned with the way the harm is caused  R v. Rigg, unreported, The Times, 4 July 1997- D headbutted V. Court held there is No requirement for the use of a weapon. Unlawfully  R v. Stokes [2003] EWCA Crim 2977. – This element of unlawfulness should always be drawn to the jurys attention. it simply means that there must not be a defence e.g self defence Wounding.

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Moriarty v. Brookes (1834) 6 C & P 684. – The continuity of both layers of the skin must be broken for there to be a wound. R v. Morris [2005] EWCA Crim 609. R v. M’Loughlin (1838) 173 ER 651. C (a minor) v. Eisenhower [1984] QB 331. - V hit in eye with pellet gun. A wound is a continuous break in both layers of skin. No wound in this case.

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R v. Wood (1830) 1 Mood CC 278 . – Broken bones are not wounds if the skin is not broken.

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R v. Waltham (1849) 3 Cox CC 442. – The breaking of an inner membrane which is analogous to skin may constitute a wound.

GBH.  DPP v. Smith [1961] AC 290. – GBH is really serious harm.  R v. Janjua and Choudhury [1999] 1 Cr App R 91. – ‘really’ is superfluous. Serious harm is enough.  R v. Grundy [1977] Crim LR 543. –The jury can take the totality of the injuries into account if they would amount to GBH.  R v. Brown [2005] EWCA Crim 359. –The totality of injuries are sufficient even when Injuries inflicted over the course of a several days.  R v. Bollom [2004] 2 Cr App R 50.- Bruising could amount to GBH - The age and sex of the V should be taken into account whilst deciding the severity of the injuries (Objective).

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R v. Hicks [2007] EWCA Crim 1500. – Unconsciousness can amount to GBH.( More applicable to longer lasting unconsciousness) R v. Gower [2007] EWCA Crim 1655. - Possible to have a wound without GBH. R v. Ireland; R v. Burstow (above). – Serious psychiatric harm is sufficient for GBH. R v. Gelder, unreported, The Times, 25 May 1994. R v. Wood (1830) 1 Mood CC 278 . – Broken bones are not wounds but a broken collar bone amounts to GBH.

Transmission of serious infection and disease.  R v. Clarence (1888) 22 QBD 23. – (19th C) Disease transmission did not fall under GBH.   

R v. Clarence-Wilson [1984] AC 242. R v. Chan-Fook (above). R v. Ireland; R v. Burstow (above)

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R v. Dica [2004] EWCA Crim 1103. – Transmitting HIV or other diseases intentionally or recklessly with actual knowledge of the disease can be GBH.

R v. Konzani [2005] EWCA Crim 706. – D had actual knowledge of his HIV status. Omitted to tell his sexual partners his HIV status. Unprotected sex. Disease transmitted. Transmission of disease can amount to GBH. R v. Golding [2014] EWCA Crim 889. – D had herpes and had actual knowledge of his  status. Omitted to tell sexual partner he had herpes- gave her herpes. D pleaded guilty of S20. Transmission of herpes amounts to GBH. (provides an extension on the types of STI’s that are sufficient for GBH). ^^All of these – transmission of D can be done recklessly so long as D has ‘actual knowledge’ of his sexual health status. This requirement for actual knowledge is criticised as it encourages people to not get tested.

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11 Academics think that if the D ‘suspects’ he has a STD that should be sufficient however that is not the case. Failure to Disclose STI status= GBH Lying about STI status= Rape G. Mawhinney, ‘To be Ill or to Kill: The Criminality of Contagion’ (2013) 77 Journal of Criminal Law 202

‘Inflicted’ GBH  R v. Clarence (1888) (above).  R v. Ireland; R v. Burstow (above). - Infliction just means ‘caused’  R v. Dica (above).  R v. Brady [2006] EWCA Crim 2413. Mens rea: Intentionally or recklessly as to inflicting some kind of bodily harm, although not serious harm   

R v. Savage and Parmenter (above) (‘Cunningham’ recklessness ... now presumed to be the test in R v. G + R (above)). R v. Dica (above). R v. Konzani (above).

MR as to SOME kind of bodily harm? R v. Mowatt [1968] 1 QB 421. – Lord Diplock said ‘it is enough that D intended or foresaw some physical harm to some person or so be it of a minor character’ . R v. Savage and Parmenter (above). Flack v. Hunt (1979) 70 Cr App R 51. - Culpability and sentencing? - Correspondence of AR and MR? * See trio of articles above by Gardner, Horder, and Mitchell.  

S. 20 :The CPS Charging Standards - Distinguished from s. 47. - Degree of injury for wounding and GBH? - Alternative verdicts? Permanent disability/permanent loss of sensory function/visible disfigurement/broken limbs and bones incl. fractured skull/broken cheekbones. jaw ribs/ injuries causing substantial blood lossusually resulting in transfusion/ psychiatric injury.

S18 Unlawfully or Maliciously Wounding or Causing GBH with Intent

12 Contained in s. 18, OAPA 1861: ‘Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person with intent to do some grievous bodily harm to any person ... shall be guilty of an offence and being convicted thereof shall be liable to imprisonment for life’.

Actus reus: Either (i) D unlawfully wounded V; or, (ii) D caused V grievous bodily harm. Mens rea: Either: (i) an intention to do GBH ; or (ii) an intention to resist/prevent the lawful apprehension or detention of any person.

Accordingly, for our purposes, s. 18 operates where: (a) D unlawfully wounded V with ulterior intent to do GBH; or (b) D caused V grievous bodily harm with intent to do GBH. You will notice that an intention to wound is not sufficient under s. 18. So, under (a) above, even if D causes a wound (so as to satisfy the AR of s. 18), D will not be liable under s. 18 if D only intended to wound (and did not have ulterior intent to cause GBH). In such circumstances, D would still be liable under s. 20. 

‘Maliciously’ ?- outdated term.

R v. Morrison (1989) 78 Cr App R 17 – Intention or recklessness (Ulterior) intent to do GBH Re: Knight’s Appeal (1968) FLR 81. – only intention will suffice u...