Criminal Law : Non Fatal Offences Against the Person
Criminal Law : Non Fatal Offences Against the Person Arguably most important set of offences because: o (1) Most common in terms of number brought to court. o (2): usually (not always) the key to the offence of unlawful act manslaughter. Consider in conjunction with other topics. especially defences (such as consent, self-defence), which are of general application. Offences o 1. Assault o 2. Battery o Offences Against the Person Act 1861: o 3. S 47: Assault Occasioning Actual Bodily Harm o 4. S 20: Wounding/Inflicting GBH o 5. S 18 Wounding/causing GBH with intent o 6. S 23: Administering poison so as to endanger life o 7. S 24: Administering poison with intent
Assault and Battery
Common Law or Statutory Offences: o The definition of offences came from common law. o The offences come form statute: Crim Justice Act 1988, s39 (max 6 months prison; fine at level 5). o So they are common law offences with statute fixing the penalty. 1. Assault from Fagan v MPR: ‘An assault is any act which intentionally, or recklessly, causes another person to apprehend immediate and unlawful personal violence’, per James J . Confirmed by HL in R v Ireland; Burstow (1998). Crim Justice Act 1988, s39, prescribes the penalties. Actus Reus ‘Any Act’: Does this include words alone? Yes. o Old authority says NO: R v Mead & Belt (1823). o But now, words can constitute an assault: R v Wilson. Wilson a poacher, stopped by a gamekeeper, he called out to his colleagues ‘get out the knives’. Ruled to be an assault on the gamekeeper. o This was obiter, but resolved in: o R v Ireland; Burstow. Silent and abusive telephone calls over 3 months. Lord Steyn: words can amount to assault, ‘a thing said is also a thing done’. Reject proposition that an assault can never by committed by words alone. [[technically, this was obiter, because in this case the phone calls were silent]]. And in this case, said silence can amount to assault, if it conveys a message to the victim. 1
‘Causes another person to apprehend . . . violence’ o What does ‘apprehend’ mean: OED = ‘anticipate; believe; understand; perceive’. It doesn’t mean fear. You can perceive/understand that you’re going to get hit, without being frightened, eg rugby players apprehending pain from a tackled. o No need for the defendant to have actually applied force or make physical contact. o What if victim does not apprehend violence? Then no assault. o R v Lamb: Lamb and victim playing with a revolver a game of Russian roulette as a joke. The barrel had 2 bullets, one of which was in chamber next to the striking pin. Both assumed that when Lamb pulled trigger, the pin would fall into the empty chamber, and the barrel would revolve to bring loaded chamber in line with pin. In fact, the gun fired and the victim was killed. Lamb charged with unlawful act of manslaughter. CA: no assault, because victim hadn’t apprehended any violence, hadn’t thought there was any chance of him being shot. [NB: also no assault because defendant didn’t have the necessary MR]. o If the victim is caused to apprehend a threat, then it is irrelevant that Defendant is unable to carry out the threat, or doesn’t intend to carry it out? o Logdon v DPP: Defendant showed the victim a pistol in the drawer, saying it was loaded and declaring he would hold her hostage. Defendant alone knew the gun was a replica. HELD: the issue was causing the victim to apprehend violence, and it was irrelevant that the violence could not be carried out because the gun was a replica. o What if victim is unusually sensitive in perceiving threats? o ‘Think skull rule’: although if victim was ridiculously sensitive, there might not be MR. o So unusual offence in that the AR depends on the mental state of the victim. Eg if the victim is unusually stupid, or is deaf, so doesn’t apprehend a threat, there will be no assault. o Words may negate the threat: Tuberville v Savage (1669). Defendant drew out sword, said ‘If it were not assizetime . . . ‘ . . . o Though note at time of this case, words could not be an assault. Ultimately, depends on whether the victim apprehends unlawful immediate personal violence. ‘Personal Violence’—what is meant by violence? o R v Ireland; Burstow: HL: must be physical violence, a threat of psychological harm is insufficient.
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o NB: where the assault results in psychological harm which is more than trivial, D will be liable for the more serious offence of s47 OATP 1861. ‘Immediate . . . personal violence’ o Courts recently taken liberal view of ‘immediate’, not meaning instantaneous o Smith v Chief Supt Woking Police Station: Smith a tramp, entered grounds of victim’s house, made nasty face through window. She was scared. Smith argued: not assault, because no apprehension of immediate violence, window and locked door between them. o HELD: Kerr LJ; ‘when one is in a state of terror, one is very often unable to analyse precisely what one is frightened of as likely to happen next . . . ‘ The person here was immediately adjacent, albeit on other side of a window. So assault occurs notwithstanding ability of defendant to carry it out, like Logdon above. o Several cases dealing with stalking: o R v Constanza: letters and telephone calls, threats made to victim. CA: There are occasions when the threat takes place at such a distance time that it can no longer be deemed immediate. The issue to be decided is whether it is enough to prove a ‘fear of violence at some time not excluding the immediate future . . . In our judgment, it is’ o Professor Smith: they got this wrong, because it’s about apprehension of violence, not fear of violence. o Also, not clear what ‘some time not excluding the immediate future’ means. Better would be to say there must be apprehension of violence in the immediate future. If no such apprehension, then no assault. o R v Ireland; Burstow: HL. Ireland made series of mostly silent telephone calls to 3 women over 3 months. No mobile phones in those days, so presumably he was not making calls from nearby. Question: did this cause apprehension of immediate violence. Lord Steyn: a telephone caller saying ‘I will be at your door in a minute or two’ may be guilty of assault. o Conclusion from this: immediate doesn’t mean instantaneous, it’s a fairly fluid concept. ‘Unlawful violence’ o Various factors might make the application of force upon another person lawful: consent, self-defence, necessity. Later lectures for this. Mens Rea (intention or reckless as to causing apprehension of immediate & unlawful personal violence) From Fagan v MPC, confirmed in R v Venna: CA: ‘intentionally or recklessly’ as to causing the victim to apprehend immediate and unlawful person violence.
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and in HL in R v Savage; Parmenter. : a useful case for MR for lots of these offences. It confirmed the view that Cunningham recklessness (as now set out in R v G) must be established for any assault changed based upon recklessness.
2. Battery Again, defined in Fagan v MPC: ‘the actual intended use of unlawful force to another person without his consent’. o Later in judgement added that it could be a reckless use of force. So MR: intentional or reckless (HL confirmed this in Ireland). Crim Justice Act 1988, s39: prescribes penalties. Actus Reus = ‘use of unlawful force to another person’ ‘Application of Force’: unlike assault, you need some contact with victim. Force includes the ‘merest touching’, Collins v Wilcock. Here, a police constable, seeking to stop a suspected prostitute walking away. She took hold of her arm. Was police constable holding the arm liable for battery? Divisional Court: yes, this was a battery. ‘every person’s body is inviolate . . . any touching of any person, however slight, may amount to a battery’, per Goff LJ. Can include touching clothes, R v Thomas, touching through clothing. Ackmer LJ. Touching a person’s clothing whilst he’s wearing them is equivalent to touching him. No hostility required, Faulkner v Talbot, force doesn’t have to be ‘hostile, rude or aggressive’, Lord Lane CJ. Can be indirect application of force, doesn’t need direct contact between D and V. o Haystead v DPP, can be touching of a 3rd party which causes harm to victim: Haystead punched W in the fact, causing W to drop baby. Haystead charged with battery of the child. HELD: there was a battery to the child. ‘Most batteries are directly inflicted . . . but it is not essentially that the violence should have been so directly inflicted’. NB: the courts considered throwing a missile was a direct battery. o Even less direct in--DPP v K: battery doesn’t require the direct touching of any one at all. This was case of K putting sulphuric acid in a hand dryer. Later, victim tried to use dryer, acid splashed onto his face. HELD:there was the necessary AR for battery [although acquitted as no MR]. Parker LJ, other situations which would be a direct battery: building a hole, laying a trap for somebody. o R v Martin: defendant closed exist doors of a theatre. As ppl were about to leave, he turned of the lights, and panic ensued. HELD: this was an indirect battery. Court also gave eg of D digging a pit which V then falls into. Failure to act/Omission? Can this amount to ‘force’?
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Assault and Battery
Common Law or Statutory Offences: o The definition of offences came from common law. o The offences come form statute: Crim Justice Act 1988, s39 (max 6 months prison; fine at level 5). o So they are common law offences with statute fixing the penalty. 1. Assault from Fagan v MPR: ‘An assault is any act which intentionally, or recklessly, causes another person to apprehend immediate and unlawful personal violence’, per James J . Confirmed by HL in R v Ireland; Burstow (1998). Crim Justice Act 1988, s39, prescribes the penalties. Actus Reus ‘Any Act’: Does this include words alone? Yes. o Old authority says NO: R v Mead & Belt (1823). o But now, words can constitute an assault: R v Wilson. Wilson a poacher, stopped by a gamekeeper, he called out to his colleagues ‘get out the knives’. Ruled to be an assault on the gamekeeper. o This was obiter, but resolved in: o R v Ireland; Burstow. Silent and abusive telephone calls over 3 months. Lord Steyn: words can amount to assault, ‘a thing said is also a thing done’. Reject proposition that an assault can never by committed by words alone. [[technically, this was obiter, because in this case the phone calls were silent]]. And in this case, said silence can amount to assault, if it conveys a message to the victim. 1
‘Causes another person to apprehend . . . violence’ o What does ‘apprehend’ mean: OED = ‘anticipate; believe; understand; perceive’. It doesn’t mean fear. You can perceive/understand that you’re going to get hit, without being frightened, eg rugby players apprehending pain from a tackled. o No need for the defendant to have actually applied force or make physical contact. o What if victim does not apprehend violence? Then no assault. o R v Lamb: Lamb and victim playing with a revolver a game of Russian roulette as a joke. The barrel had 2 bullets, one of which was in chamber next to the striking pin. Both assumed that when Lamb pulled trigger, the pin would fall into the empty chamber, and the barrel would revolve to bring loaded chamber in line with pin. In fact, the gun fired and the victim was killed. Lamb charged with unlawful act of manslaughter. CA: no assault, because victim hadn’t apprehended any violence, hadn’t thought there was any chance of him being shot. [NB: also no assault because defendant didn’t have the necessary MR]. o If the victim is caused to apprehend a threat, then it is irrelevant that Defendant is unable to carry out the threat, or doesn’t intend to carry it out? o Logdon v DPP: Defendant showed the victim a pistol in the drawer, saying it was loaded and declaring he would hold her hostage. Defendant alone knew the gun was a replica. HELD: the issue was causing the victim to apprehend violence, and it was irrelevant that the violence could not be carried out because the gun was a replica. o What if victim is unusually sensitive in perceiving threats? o ‘Think skull rule’: although if victim was ridiculously sensitive, there might not be MR. o So unusual offence in that the AR depends on the mental state of the victim. Eg if the victim is unusually stupid, or is deaf, so doesn’t apprehend a threat, there will be no assault. o Words may negate the threat: Tuberville v Savage (1669). Defendant drew out sword, said ‘If it were not assizetime . . . ‘ . . . o Though note at time of this case, words could not be an assault. Ultimately, depends on whether the victim apprehends unlawful immediate personal violence. ‘Personal Violence’—what is meant by violence? o R v Ireland; Burstow: HL: must be physical violence, a threat of psychological harm is insufficient.
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o NB: where the assault results in psychological harm which is more than trivial, D will be liable for the more serious offence of s47 OATP 1861. ‘Immediate . . . personal violence’ o Courts recently taken liberal view of ‘immediate’, not meaning instantaneous o Smith v Chief Supt Woking Police Station: Smith a tramp, entered grounds of victim’s house, made nasty face through window. She was scared. Smith argued: not assault, because no apprehension of immediate violence, window and locked door between them. o HELD: Kerr LJ; ‘when one is in a state of terror, one is very often unable to analyse precisely what one is frightened of as likely to happen next . . . ‘ The person here was immediately adjacent, albeit on other side of a window. So assault occurs notwithstanding ability of defendant to carry it out, like Logdon above. o Several cases dealing with stalking: o R v Constanza: letters and telephone calls, threats made to victim. CA: There are occasions when the threat takes place at such a distance time that it can no longer be deemed immediate. The issue to be decided is whether it is enough to prove a ‘fear of violence at some time not excluding the immediate future . . . In our judgment, it is’ o Professor Smith: they got this wrong, because it’s about apprehension of violence, not fear of violence. o Also, not clear what ‘some time not excluding the immediate future’ means. Better would be to say there must be apprehension of violence in the immediate future. If no such apprehension, then no assault. o R v Ireland; Burstow: HL. Ireland made series of mostly silent telephone calls to 3 women over 3 months. No mobile phones in those days, so presumably he was not making calls from nearby. Question: did this cause apprehension of immediate violence. Lord Steyn: a telephone caller saying ‘I will be at your door in a minute or two’ may be guilty of assault. o Conclusion from this: immediate doesn’t mean instantaneous, it’s a fairly fluid concept. ‘Unlawful violence’ o Various factors might make the application of force upon another person lawful: consent, self-defence, necessity. Later lectures for this. Mens Rea (intention or reckless as to causing apprehension of immediate & unlawful personal violence) From Fagan v MPC, confirmed in R v Venna: CA: ‘intentionally or recklessly’ as to causing the victim to apprehend immediate and unlawful person violence.
3
and in HL in R v Savage; Parmenter. : a useful case for MR for lots of these offences. It confirmed the view that Cunningham recklessness (as now set out in R v G) must be established for any assault changed based upon recklessness.
2. Battery Again, defined in Fagan v MPC: ‘the actual intended use of unlawful force to another person without his consent’. o Later in judgement added that it could be a reckless use of force. So MR: intentional or reckless (HL confirmed this in Ireland). Crim Justice Act 1988, s39: prescribes penalties. Actus Reus = ‘use of unlawful force to another person’ ‘Application of Force’: unlike assault, you need some contact with victim. Force includes the ‘merest touching’, Collins v Wilcock. Here, a police constable, seeking to stop a suspected prostitute walking away. She took hold of her arm. Was police constable holding the arm liable for battery? Divisional Court: yes, this was a battery. ‘every person’s body is inviolate . . . any touching of any person, however slight, may amount to a battery’, per Goff LJ. Can include touching clothes, R v Thomas, touching through clothing. Ackmer LJ. Touching a person’s clothing whilst he’s wearing them is equivalent to touching him. No hostility required, Faulkner v Talbot, force doesn’t have to be ‘hostile, rude or aggressive’, Lord Lane CJ. Can be indirect application of force, doesn’t need direct contact between D and V. o Haystead v DPP, can be touching of a 3rd party which causes harm to victim: Haystead punched W in the fact, causing W to drop baby. Haystead charged with battery of the child. HELD: there was a battery to the child. ‘Most batteries are directly inflicted . . . but it is not essentially that the violence should have been so directly inflicted’. NB: the courts considered throwing a missile was a direct battery. o Even less direct in--DPP v K: battery doesn’t require the direct touching of any one at all. This was case of K putting sulphuric acid in a hand dryer. Later, victim tried to use dryer, acid splashed onto his face. HELD:there was the necessary AR for battery [although acquitted as no MR]. Parker LJ, other situations which would be a direct battery: building a hole, laying a trap for somebody. o R v Martin: defendant closed exist doors of a theatre. As ppl were about to leave, he turned of the lights, and panic ensued. HELD: this was an indirect battery. Court also gave eg of D digging a pit which V then falls into. Failure to act/Omission? Can this amount to ‘force’?
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