Non Fatal Offences Against the Person

1. Non Fatal Offences Against the Person Non Fatal Offences – s.47 Offences Against the Person Act 1861 Assault Occasioning actual Bodily Harm (ABH)

2. Starter • Which act covers the most serious non-fatal offence against the person? • Is a threat to kill you next week an assault? • Is assault a basic intent crime? • What is the actus reus for assault? • Which non-fatal offence is a specific intent crime? • Why wouldn’t brushing past someone in a crowded Tesco’s be battery?

3. Starter answers • Which act covers the most serious non-fatal offence against the person? OAPA 1861 • Is a threat to kill you next week an assault? No • Is assault a basic intent crime? Yes • What is the actus reus for assault? An act which causes another person to apprehend immediate and unlawful violence • Which non-fatal offence is a specific intent crime? S.18 OAPA 1861 • Why wouldn’t brushing past someone in a crowded Tesco’s be battery? Implied consent

4. Objectives • Describe using authority the actus reus of s47 of the Offences against the Person Act 1861 • Describe using authority the mens rea of s47 of the Offences against the Person Act 1861 • Apply the actus reus and mens rea of ABH to problem questions

5. ABH– Key Principles • Least serious of the non fatal offences found in the OAPA 1861 • Section 47 states penalty only • Elements found in common law • Triable either way • Five years

6. Definition – OAPA 1861 s47 • Whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be liable … to imprisonment for any term not exceeding five years

7. Actus Reus • Actus reus of common assault Or • The actus reus of battery Plus • Occasioning Actual bodily harm

8. Actus Reus of ABH • S .47 is a common assault or battery that results in actual bodily harm • 2 different ways it can be satisfied • Assault resulting in ABH • Battery resulting in ABH

9. Occasions • Occasion appears to mean the same as ‘cause’ • Normal rules of causation applies • Confirmed in Roberts (1971)

10. Actual Bodily Harm • Common law definition is vague • Miller [1954] described it as ‘Any hurt or injury calculated to interfere with the health and comfort of the victim.’ Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling. • R v Chan Fook (1994) injury “should not be so trivial as to be wholly insignificant’

11. R v Miller (1954) Case Law Assault - ABH - actus reus - includes injury to state of mind D had non-consensual sexual intercourse with his wife, after which she was "in a hysterical and nervous condition.  Principle – Lynskey J: '"Actual bodily harm includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor..." There was a time when shock was not regarded as bodily hurt, but the day has gone by when that could be said. It seems to me now that, if a person is caused hurt or injury resulting, not in any physical injury, but in an injury to the state of his mind for the time being, that is within the definition of "actual bodily harm". Not Guilty Rape Guilty of ABH

12. ABH • Has been extended to hair cutting (DPP v Smith 2006))

13. DPP v Smith (2006) Case Law Assault – actus reus – cutting hair is ABH D caused actual bodily harm to V by cutting off her pony tail. D went to the home of his ex-partner and cut of her pony tail with kitchen scissors. The magistrates accepted that there was no actual bodily harm; the DPP appealed. Principle – Cutting off a person’s hair amounted to ABH. Harm was not limited to injury to the skin, flesh and bones and extended to hurt and damage. That the hair cut was "dead tissue" was not relevant. Obiter: If paint or some other unpleasant substance were to be put on a victim’s hair that would to could amount to actual bodily harm. Guilty

14. Psychiatric Injury • Injuries such as broken tooth, loss of consciousness, minor cuts requiring medical treatment (stitches), minor fractures and extensive bruising could all be ABH. • Now since a key ruling in 1994 psychiatric injury can be regarded as ABH.

15. R v Chan Fook (1994) Case Law Assault - ABH - includes psychiatric harm but not emotions – escape case D subjected V to questioning about the theft of a ring belonging to D's fiancée. D then dragged V upstairs to a room and locked him in. V feared D's return and injured himself when he fell to the ground escaping through a window. Principle – "Actual bodily harm" includes psychiatric injury but does not include emotions, such as fear or panic. ABH does not include states of mind that are not themselves evidence of some identifiable clinical condition. Only expert evidence to this effect should be made to the jury regarding psychiatric injury. Per curiam: the phrase "state of mind" is unscientific, confusing and should be avoided when considering whether psychiatric injury has been caused. Not Guilty

16. Psychiatric Injury • Injuries such as broken tooth, loss of consciousness, minor cuts requiring medical treatment (stitches), minor fractures and extensive bruising could all be ABH. • Now since a key ruling in 1994 psychiatric injury can be regarded as ABH. • This means that Miller is now inadequate as psychological injury can be quite serious

17. Psychiatric Injury Miller [1954] Injury to the victim’s state of mind ‘for the time being’ amounted to ‘bodily harm’ Chan Fook [1994] Held that the body is not limited to flesh, skin and bones but includes organs, nervous system and brain. Mere emotions such as fear, distress and panic are excluded Ireland [1998] HL confirmed Chan Fook and held that psychological injury could amount to actual bodily harm but that psychological injury should be a matter of expert evidence Burstow [1998] HL held that a sufficiently serious psychological injury could amount to GBH Morris [1998] In relation to psychological injury, expert evidence must be given by a psychiatrist not a general practitioner

18. Mens Rea • The mens rea of common assault or • The mens rea of battery • Mens rea relates to only the first pat of the actus reus (the assault or battery) • Therefore the mens rea of ABH is identical to the mens rea of assault or battery • Called – HALF MENS REA • This was established in the combined appeal cases of Savage and Parmenter (1992)

19. Savage (1992) • Case Law • Assault - ABH - actus reus of ABH and mens rea of common assault - not intention or recklessness – half mens rea • The defendant poured her drink over the victim (battery). The glass slipped out of her hand, smashed and cut the victim. Her conviction under s.47 related to this injury. Her appeal against conviction was based on lack of mens rea: she argued that she neither intended injury nor foresaw that injury would be caused. • Principle – The House of Lords dismissed the appeal, holding that mens rea of s.47 required intention or subjective recklessness in relation to the common assault or battery only. There was no requirement of intention or foresight in respect of the injury caused by the assault or battery. • S Guilty

20. (1) Common assault or battery (2) Actual bodily harm Actus reus Intention or recklessness as to the common assault or battery only Mens rea NOTE: There is no requirement that the defendant intends to cause ABH or that he foresees a risk that ABH will occur as a result of his actions

21. Objectives • Describe using authority the actus reus of s47 of the Offences against the Person Act 1861 • Describe using authority the mens rea of s47 of the Offences against the Person Act 1861 • Apply the actus reus and mens rea of ABH to problem questions

22. Plenary - Fit R v Savage to this diagram Actus reus Mens rea

23. Plenary - Fit R v Savage to this diagram Pouring the drink over the victim’s head The injury caused by the broken glass Actus reus Doing so deliberately Mens rea NOTE: even though defendant did not intend or foresee the injury, this was not necessary for conviction under s.47