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NON-FATAL OFFENCES AGAINST THE PERSON

NON-FATAL OFFENCES AGAINST THE PERSON. In this topic we will consider liability for: Assault Battery Section 47 Section 20 Section 18. When answering questions involving non-fatal offences against the person, which offence should one start with?. ASSAULT AND BATTERY.

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NON-FATAL OFFENCES AGAINST THE PERSON

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  1. NON-FATAL OFFENCES AGAINST THE PERSON • In this topic we will consider liability for: • Assault • Battery • Section 47 • Section 20 • Section 18

  2. When answering questions involving non-fatal offences against the person, which offence should one start with?

  3. ASSAULT AND BATTERY • Both are statutory offences (DPP v Little (1991)). • The charge is one of assault or battery contrary to s.39 Criminal Justice Act 1988. • The term “common assault” encompasses assault and battery (Lynsey (1995)).

  4. Assault • Definition of assault – any act by which D intentionally/recklessly causes V to apprehend immediate and unlawful personal violence. • Does this rule out assault by omission, see Fagan v Metropolitan Police Commissioner (1969)?

  5. Words alone may constitute an assault (Constanza (1997). • It is not a requirement of assault that V can see her assailant. Thus, an assault can be committed in the dark or over the telephone.

  6. CONDITIONAL ASSAULTS • Examples • D says to V: • (a) “I would hurt you if it wasn’t for… • (b) “I will hurt you unless...”

  7. In example 1, the words used by D make clear that, for whatever reason, he won’t do anything to V. There is, therefore, no assault. This is illustrated by Tuberville v Savage (1669).

  8. In example 2, the words used show that D will hurt V unless V complies with the specified condition. D is, therefore, liable for an assault on V. This is illustrated by Read v Coker (1853).

  9. How strictly is “immediate” interpreted? • Immediate is interpreted quite flexibly, seeSmith v Superintendent of Woking Police Station(1983)which adopted a broad view of immediate. • Also see Constanza and Ireland & Burstow (1997) HL.

  10. Battery • Definition – any act by which D intentionally/recklessly inflicts unlawful personal violence.

  11. Can contact with the clothes worn by a person constitute a battery? • Relevant caselaw: • Day (1845) - contact with the clothes worn by a person can constitute a battery as the person of V includes the clothes on his back. • Thomas (1985) - it is not necessary that V should be able to feel the impact through his clothes.

  12. Can a battery involve indirect violence? • Although most batteries are directly inflicted, e.g. D hitting V, it is not essential that the violence be direct. See, for example, Martin (1881) and DPP v K (1990).

  13. Mens rea of assault and battery • Both assault and battery can be committed intentionally or recklessly, seeVenna (1978). • Recklessness is subjective, seeSpratt (1990).

  14. ASSAULT OCCASIONING ACTUAL BODILY HARM – S.47 OAPA 1861 • Definition – Assault occasioning actual bodily harm • Actus reus • Assault means assault or battery • For the meaning of occasioning, see Roberts (1971). • For the meaning of actual bodily harm, see Chan-Fook (1994). • Examples

  15. It is possible to commit the s.47 offence by one or more silent phone calls (Ireland & Burstow).

  16. Mens rea of s.47 • Only the mens rea for assault or battery need be proven (Savage & Parmenter (1991) HL). • It is not, therefore, necessary to prove D foresaw a.b.h. only that he intended or was subjectively reckless as to whether V apprehend or sustain unlawful personal violence.

  17. S.20 • Definition – unlawful and malicious wounding or inflicting gbh • 2 offences created by the section - • unlawfully wounding • unlawfully inflicting gbh

  18. Wounding offence • For what constitutes a wound, see JCC v Eisenhower (1984)).

  19. Grievous bodily harm • It is sufficient for the trial judge to direct the jury that gbh simply means “serious harm” (Saunders (1985)). • Examples

  20. Is s.20, which refers to "inflict gbh," narrower in scope than s.18 which refers to "cause gbh"? • In Ireland & Burstow, the court held that gbh can be inflicted where no personal violence has been applied directly or indirectly to the body of V - the application of physical force is not required. • Thus, there does not appear to be any distinction between cause and inflict.

  21. Mens rea • The mens rea is “maliciously”. • This means intentionally or subjective recklessness (Savage and Parmenter) as to some physical harm (Mowatt (1968)). • Intention to frighten is not sufficient for s.20 • (Sullivan (1981)).

  22. S.18 • Definition – unlawfully and maliciously wound or cause gbh with intent to do gbh. • 2 offences created by the section – unlawfully wounding with intent and unlawfully causing gbh with intent • Actus reus is same as for s.20 save that the word cause is used instead of inflict. • Mens rea is intention only, recklessness will not suffice (Belfon (1976)). • The test for intention is the same as for murder (Bryson (1985)).

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