Topic 5

1. Topic 5 Non-fatal offences

2. Non-fatal offences: assault Assault

3. Non-fatal offences: assault Definition Assault is not defined in an Act of Parliament, as it is a common-law offence. Section 39 of the Criminal Justice Act 1988 provides that assault is a summary offence with a maximum sentence on conviction of 6 months’ imprisonment or a fine. R v Venna (1976) provided the accepted definition of assault as ‘the intentional or reckless causing of an apprehension of immediate unlawful personal violence’.

4. Non-fatal offences: assault Actus reus • The actus reus of assault is any act that makes the victim fear that unlawful force is about to be used against him or her. No force need actually be applied, and actions such as raising a fist, pointing a gun or brandishing a sword will be sufficient. • Words can amount to an assault (R v Wilson, 1955), as can a silent telephone call. • There is no assault if it is obvious to the victim that the defendant cannot or will not carry out his or her threat of violence. • The victim must fear immediate threat of harm, not at some time in the future.

5. Non-fatal offences: assault Mens rea • The mens rea of assault is either: • intention or • Cunningham recklessness • The defendant must have either intended to cause the victim to fear the infliction of immediate and unlawful force, or must have seen the risk that such fear would be created.

6. Non-fatal offences: battery Battery

7. Non-fatal offences: battery Introduction Section 39 of the Criminal Justice Act 1988 provides that battery is a summary offence, punishable by up to 6 months’ imprisonment or a fine. Like assault, it is a common-law offence.

8. Non-fatal offences: battery Actus reus (1) The actus reus of battery consists of the application of unlawful force on another. Any unlawful physical contact can amount to a battery. There is no need to prove harm or pain – a mere touch can be sufficient. Battery can be direct or indirect. Direct battery is force applied directly by one person to another, e.g. a slap. Indirect battery can be applied using an implement or vehicle.

9. Non-fatal offences: battery Actus reus (2) The victim need not be aware that he or she is about to be struck. Therefore, if someone is struck from behind this will still constitute battery, and he or she need not have seen it coming. There can be a battery when there is no direct contact with the victim’s body – touching his or her clothing may be enough to constitute this offence (R v Thomas, 1985). An omission can amount to the actus reus of battery (R v Santana-Bermudez, 2003).

10. Non-fatal offences: battery Mens rea The mens rea of battery is intention or Cunningham recklessness, i.e. intention or recklessness as to the application of unlawful force.

11. Non-fatal offences: battery Joint Charging Standards • Often, the offences of assault and battery occur at the same time. This is known as common assault. The police and Crown Prosecution Service have agreed the Joint Charging Standards, which set out the types of injury that will be regarded as common assault. Such injuries include: • minor bruising • grazing • small cuts • swelling

12. Non-fatal offences: actual bodily harm Actual bodily harm

13. Non-fatal offences: actual bodily harm Definition Section 47 of the Offences Against the Person Act 1861 states that it is an offence to commit ‘any assault occasioning actual bodily harm’. The offence is triable either way and carries a maximum sentence of 5 years’ imprisonment.

14. Non-fatal offences: actual bodily harm Actus reus The actus reus of ABH has been interpreted as assault or battery that causes ‘actual bodily harm’. This has been given the wide definition of ‘any hurt or injury calculated to interfere with the health or comfort of the victim’ (R v Miller, 1954). Thus, ABH can occur where discomfort to the person is caused. However, in R v Chan-Fook (1994), Lord Justice Hobhouse said in the Court of Appeal that ‘the word “actual” indicates that the injury (although there is no need for it to be permanent) should not be so trivial as to be wholly insignificant’.

15. Non-fatal offences: actual bodily harm Mens rea The mens rea for ABH is the same as for assault and battery. No additional mens rea is required (R v Roberts, 1978, and R v Savage, 1991).

16. Non-fatal offences: actual bodily harm Joint Charging Standards • The police and Crown Prosecution Service have agreed the Joint Charging Standards, which set out the types of injury that will be regarded as ABH. Such injuries include: • minor fractures • severe bruising and small cuts that require stitches • loss of consciousness • psychiatric injury

17. Non-fatal offences: grievous bodily harm (s.20) Grievous bodily harm (s.20)

18. Non-fatal offences: grievous bodily harm (s.20) Definition According to s.20 of the Offences Against the Person Act 1861: ‘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 triable either way and being convicted thereof shall be liable to imprisonment for 5 years.’

19. Non-fatal offences: grievous bodily harm (s.20) Actus reus The actus reus of the s.20 offence is unlawfully and maliciously wounding or inflicting grievous bodily harm. The word ‘inflict’ has been interpreted to mean that the grievous bodily harm must be caused by the direct application of force, e.g. hitting, kicking or stabbing, but not digging a hole for the victim to fall into. However, in practice the courts have given a fairly wide interpretation as to when force is direct.

20. Non-fatal offences: grievous bodily harm (s.20) Mens rea The mens rea of s.20 GBH is described by the word ‘maliciously’. In R v Cunningham (1957), it was stated that for the purposes of the 1861 Act, ‘maliciously’ meant ‘intentionally or recklessly’. There is no need to intend GBH or wounding, or to be reckless as to whether GBH or wounding might be caused. The defendant needs only to intend or be reckless that his or her actions could cause some physical damage.

21. Non-fatal offences: grievous bodily harm (s.18) Grievous bodily harm (s.18)

22. Non-fatal offences: grievous bodily harm (s.18) Definition Section 18 of the Offences Against the Person Act 1861 states that: ‘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, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of an offence triable only on indictment, and being convicted thereof shall be liable to imprisonment for life.’

23. Non-fatal offences: grievous bodily harm (s.18) Actus reus The actus reus for s.18 is similar to that for s.20 and requires proof of either GBH or wounding. The actus reus of wounding and the actus reus of GBH have the same meaning as under s.20.

24. Non-fatal offences: grievous bodily harm (s.18) Mens rea To satisfy the mens rea, the prosecution must prove intention to cause GBH or intention to avoid arrest. The crucial difference between s.20 and s.18 GBH is in the mens rea; while recklessness can be sufficient for s.20, intention is always required for s.18.

25. Non-fatal offences: evaluation Evaluation

26. Non-fatal offences: evaluation Evaluation • The non-fatal offences have been subject to much criticism over the years: • The wording of the statutory defences is inconsistent and old-fashioned. • Assault and battery are still common-law offences. • The sentencing of the offences is inconsistent.

27. Non-fatal offences: evaluation Wording • Many of the words used to define non-fatal offences have been criticised as being out of date and ambiguous. For example: • The use of the term ‘serious assault’ refers to grievous bodily harm, rather than a fear of unlawful force as it legally means. • Battery only requires the slightest touch by the defendant. However, the modern use of the word suggests that there is a much greater level of harm. • Section 18 uses the words to ‘cause’ GBH, s.20 uses the words to ‘inflict’ GBH and s.47 uses the words to ‘occasion’ GBH. All of these words have required the court to interpret them as meaning ‘cause’.

28. Non-fatal offences: evaluation Sentencing Assault and battery are summary offences, punishable by 6 months’ imprisonment. Such trials can be dealt with at the Magistrates’ Court, and the expense of a Crown Court trial is avoided. Both ABH and s.20 GBH carry the same sentencing guideline of 5 years’ imprisonment. It seems unnecessary to have two offences that have the same penalty, even though GBH is supposed to be much more serious than ABH. Section 20 GBH gets 5 years’ imprisonment, whereas s.18 GBH affords anything up to life imprisonment. The reason why the sentences are so different is due to the defendant’s mens rea. There is no recognition of the fact that the victim could be just as seriously hurt in both instances.

29. Non-fatal offences: evaluation Inconsistency (1) Charge It is quite common for a person to be charged with a lesser offence than the one that he or she has actually committed. For example, a person who has committed GBH may be charged with ABH that can be tried at the Magistrates’ Court. This will save the court time and money, as a charge of GBH would require an expensive Crown Court trial. It also makes no difference whether a person is charged with s.20 GBH or s.47 ABH, as both offences are punishable by a sentence of up to 5 years’ imprisonment.

30. Non-fatal offences: evaluation Inconsistency (2) Plea bargaining The prosecution may charge the defendant with a lesser offence if he or she agrees to a guilty plea. This is known as plea bargaining and saves the court time and money, as it is not necessary to hold a trial and the defendant will be given a more lenient sentence for an early guilty plea.

31. Non-fatal offences: evaluation The basis for liability • Liability is based upon the level of injury. An alternative would be to base it on the means of injury. Consider these examples: • D is angry with V and pushes him. V falls, and by bad luck fractures his skull. D is charged with GBH. • D lunges at V with a knife intending GBH, but V, by good luck, is just scratched. D is charged with the less serious ABH. • Is this fair?

32. Non-fatal offences: evaluation Mens rea problems • There are difficulties in working out the mens rea for several of the offences: • For s.47 ABH, D only needs intent or recklessness as to causing some physical harm – not necessarily ABH. • For s.18 wounding with intent, if D has intent to resist or prevent an arrest, the offence is committed even if he or she is only reckless as to wounding/GBH or if he or she intends only minor injury.

33. Non-fatal offences: evaluation Actus reus problems Assault The requirement for V to fear an immediate battery leaves a gap in the law – a threat to kill V next week is not an assault.

34. Non-fatal offences: reform Reform

35. Non-fatal offences: reform Law Commission Report 1993 • In 1993, the Law Commission produced a report entitled ‘Offences Against the Person and General Principles’. This report redrafted the non-fatal offences and criticised the current law for its: • complicated, obscure and old-fashioned language • complicated and technical structure • complete unintelligibility to the layman • The Law Commission also produced the Draft Criminal Law Bill, which redefined the offences. The recommendations of this report have never been adopted.

36. Non-fatal offences: reform Home Office Report 1998 (1) The Labour government produced the Draft Offences Against the Person Bill 1998, following the home office report ‘Violence: Reforming the Offences against the Person Act 1861’. The new offences Clause 1: intentional serious injury (replaces s.18) Clause 2: reckless serious injury (replaces s.20) Clause 3: intentional or reckless injury (replaces s.47) Clause 4: assault

37. Non-fatal offences: reform Home Office Report 1998 (2) The new sentences The proposed sentences are the same, with the exception of clause 2. This would replace s.20 GBH, which carries a punishment of 5 years’ imprisonment. The new clause 2 would increase this to 7 years’ imprisonment.

38. Non-fatal offences: reform Home Office Report 1998 (3) • Other changes • Clauses 1 and 2 will include wounds that are considered by the court to be ‘serious injury’. • Clause 1 is the only offence that can be committed by omission. • Intentional serious injury caused by disease would be allowed as a clause 1 offence. However, reckless injury caused by disease (clause 2) would not be allowed. It would be wrong to criminalise the transmission of minor illnesses such as measles.

39. Non-fatal offences: reform Home Office Report 1998 (4) • Other changes • The mens rea of recklessness used in both clause 2 and clause 3 would require proof that the defendant saw a risk of the injury that he or she actually caused. This changes the current law that recklessness only requires the defendant to foresee some harm (R v Roberts, R v Savage, R v Grimshaw). • Assault in clause 4 would be given the following statutory definition: • intentionally or recklessly applying force or causing an impact on the body of another; or • intentionally or recklessly causing the other to believe that any such force or impact is imminent

40. Non-fatal offences: reform Pause for thought • The draft bill was revealed in 1998 and yet the law has not changed – why do you think this is? • Are the maximum sentences for clause 2 and clause 3 right? Should the gap between the two be wider?