Non-Fatal Offences Against The Person

1. Non-Fatal OffencesAgainst The Person Assault and Battery

2. Lesson Objectives • I will be able to state the meaning of assault and battery • I will be able to distinguish between assault and battery • I will be able to explain cases that illustrate assault and battery • I will be able to apply the rules to a given situation

3. Assault and Battery Assault and battery are together referred to as ‘common assault’, but it needs to be recognised that they are two separate and distinct offences. Assault – causing victim to fear harm, but no requirement that harm is suffered Battery – actual infliction of harm In theory, one can be committed without the other. Both – fist pulled back (assault) punch (battery) Battery – punch from behind Assault – fist pulled back, punch misses

4. Non-fatal offences: assault Assault

5. 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’.

6. 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 Constanza (1997), 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.

7. Actus Reus In Ireland; Burstow (1997) the HoL confirmed that an assault is committed when the accused intentionally or recklessly causes the victim to apprehend immediate and unlawful violence. The actusreus of assault is: • An act • Causing the victim to apprehend immediate and unlawful violence

8. An Act • An act or words from the defendant must cause the victim’s fear. An omission does not count. Assault could be gesticulating a finger across the throat • Constanza (1997) – words alone were sufficient for an assault – 812 letters to victim. Victim read them as threats, hence there was asault • R v Burstow (1997) – silence can amount to an assault – silent phone calls • Tuberville v Savage (1669) – words spoken by the defendant will prevent an act from being assault if they clearly show that there is no intended action

9. Causing the victim to apprehend immediate and unlawful violence • Cause – same principle of causation from AS • Apprehend – if the victim does not apprehend immediate force then an assault has not been committed – Lamb (1967). Fear is not actually needed, it is anticipation – heavyweight boxer expecting a slap from old lady is technically assault

10. Immediate – traditionally it must be immediate, but there is amore liberal view when relating to harassment and stalking campaigns. Smith v Chief Superintendent of Woking Police Station (1983) – immediate does not mean the same as instantaneous. R v Burstow – only has to cause the possibility of an immediate attack, also the fear does not have to be rational, just genuinely held • Unlawful violence – ‘violence’ is misleading and so the word ‘force’ can be used. Generally a lack of consent to the feared violence will make it unlawful

11. Non-fatal offences: assault Mens rea • The mens rea of assault is either: • intention – Savage (1992) or • Cunningham (1957) 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.

12. Non-fatal offences: battery Battery

13. 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.

14. 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. – Ireland; Burstow (1997) 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.

15. Actus Reus • Collins v Willcock (1984) – any touching of another person, however slight, may amount to a battery. – policeman taking arm of prostitute • Slap, kiss, throwing drink, touching clothes – have all been considered as meeting the requirements for battery • Thomas (1985) – school caretaker rubbing the hem of a girl’s skirt • Most common assault batteries do involve some sort of minor harm – grazes, scratches, minor bruising, reddening of the skin

16. Unlawful Physical Force • The fact that the victim has not consented to the battery will usually make the act unlawful • However, genuine consent will not always make the act lawful – defences , discussed later in year • Certain force is lawful without consent – policeman – contrast with Collins v Willcock – what was the difference? • Lord Goff in Collins v Willcock – some touching is acceptable in everyday life

17. Indirect Batteries • Batteries can be inflicted indirectly – Martin (1881) – bar across theatre exit • DPP v K (1990) – sulphuric acid in hand drier • Further developed in Haystead v Chief Constable of Derbyshire (2000) – punch lady who dropped her baby – woman became an instrument to commit the battery

18. Omissions • A battery can be committed by an omission but only where there is a duty to act • Santana-Bermudez (2004) created a dangerous situation and failed to act – hypodermic needle in drug search

19. Non-fatal offences: battery Mens rea The mens rea of battery was confirmed in Venna (1976) as the intention to apply force to another or recklessness as to whether such force is so applied. This intention or recklessness is only required for the act of physical contact itself, not in respect of harm that might arise from it. Defendant may be liable under the rle of transferred malice – Latimer (186) Belt buckle

20. 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

21. Other resources

22. Non-fatal offences against the person Assault and battery

23. Common assault • Common assault includes two separate offences, assault and battery • They are common law offences (hence the name), and are not defined in any statute • However, the Criminal Justice Act 1988s 39 classifies them as summary offences and they are charged under this section • Assault is to cause someone to apprehend immediate and unlawful personal violence • Battery is the unlawful application of force • They often go together, but the law for each is different

24. Assault: actus reus • The actus reus of assault is an act which causes another to apprehend immediate, unlawful violence, or force • The law has developed through cases but this definition was confirmed in Ireland • So there are two things to consider • Is there an act? • What effect did it have on the victim?

25. An act • The act can include words, or even silence • Look up Constanza and Ireland • What were the ‘acts’ in each case?

26. Apprehend immediate, unlawful force • It is the effect on the victim which is important • If the other person is not afraid there can be no assault – Lamb • The fear must be of immediate force but this is quite wide • In Smith v Chief Superintendent of Woking Police Station the victim feared ‘immediate’ force even though the man was outside

27. Other issues • Words can also prevent an assault – see Turbeville v Savage • Why was there no assault? • Also the fear must be of unlawful force

28. Assault: mens rea • The mens rea for assault matches the actus reus. It is: • intention to cause the victim to apprehend unlawful and immediate violence, or • recklessness as to whether the victim apprehends unlawful and immediate violence

29. Summary of assault

30. Battery: actus reus • The actus reus of battery is the application of unlawful force to another • Assault and battery often, but not always, go together • A threat with a raised fist followed by a punch would be both • A threat alone would just be assault • A punch from behind would just be battery

31. Unlawful force • In Collins v Wilcockthe police officer who took hold of the woman’s arm was acting unlawfully. If the arrest had been lawful it would not have been battery • A similar case is Wood. What happened in this case? • The force can be slight, as in Thomas. What was said to be unlawful force?

32. Continuing act • Remember Fagan? That was a case of battery. What happened? • The court held that there was a continuing act of battery by leaving the car on the police officer’s foot

33. Indirect force • In DPP v Ka schoolboy put acid in a hot air drier • Another pupil used the drier and was injured • The court held such an indirect act could be a battery • Note this was a case of assault occasioning actual bodily harm, but this offence requires common assault which is either an assault or a battery • Another example is Haystead

34. Making force lawful • If the victim consents to the force this will make it lawful • Can you think of an example? • There would be consent in sports such as rugby where using force is part of the game • Also in surgical procedures, or a trip to the dentist • Acting in self-defence also makes force lawful • Both consent and self-defence come later under defences

35. Battery: mens rea • As with assault, the mens rea is intent or subjective recklessness • For battery it is intent or recklessness as to whether unlawful force is applied • D must intend or see the risk of unlawful force being applied to another

36. Summary of battery