[NON-FATAL OFFENCES AGAINST THE PERSON]
Revision: Criminal
[NON-FATAL OFFENCES AGAINST THE PERSON] Assault and Battery •
Penalty for Assault/Battery: £5,000/6 months in prison – both in S39 CJA 1988
•
Common law or statutory offences? o
Criminal Justice Act 1988 s39 – but only sets the penalty – doesn’t explain AR or MR
o
DPP v Little: judges here think that they are statutory offences
o
But – still need to give common law explanations – so easier to think of it as a common law offence
Assault •
Committed when the accused ‘intentionally or recklessly causes another person to apprehend immediate and unlawful personal violence’
Actus Reus •
An assault is committed when the accused ‘intentionally, or recklessly, causes another person to apprehend immediate and unlawful personal violence;’ Fagan v MPC: confirmed by Hl in R v Ireland, Burstow
•
There must be apprehension of personal violence o
The D must do something to make the V apprehend (ie anticipate, believe) he will suffer immediate and unlawful personal violence- no need for D to have actually applied force
a) The defendant must cause the victim to believe he can and will carry out the threat of force •
R v Lamb o
Revolver had 2 bullets in it– believing that it was safe – the D pointed it at his friend and pulled the trigger – his friend was shot dead
o
No assault because the victim did not fear violence
b) if the victim is caused to apprehend such a threat, it is irrelevant that the defendant does not in fact have the means to carry out the threat 1
Revision: Criminal
[NON-FATAL OFFENCES AGAINST THE PERSON]
Logdon v DPP: D found to have committed assault against V by showing her a pistol in a drawer saying that it was loaded and claiming he would hold her hostage – only the D knew that the gun was a replica and unloaded – but his actions/words caused the victim to believe otherwise
What if the victim is unusually sensitive? •
•
Doesn’t matter – thin skull rule
Can the threat to use force be of any nature/form? o
Earlier dicta - R v Mead & Belt: ‘no words or singing could ever constitute an assault’ per Holroyd J
o
But opinion has changed - R v Wilson: the words ‘get out the knives’ would on their own be sufficient to constitute an assault’
o
R v Ireland/Burstow: Accused had made several silent phone calls
Lord Steyn said the proposition that words won’t suffice is ‘unrealistic and indefensible’ : held here that silence conveyed a message to the victim as was as such capable of forming the basis of assault – indirectly confirms that words spoken may amount to an assault
o
•
A thing said is a thing done – so words alone can amount to assault
Words spoken can also negate an assault: Tuberville v Savage
The threat of violence must be unlawful: occasionally it will be considered lawful (e.g. selfdefence/consent)
•
The violence apprehended must be immediate and personal o
Focus on what the V actually apprehended
o
Smith v Chief Superintendent Woking Police Station: Smith entered grounds of large house - stared through window of the bedsit where the victim lived – she thought he was going to attack her: D argued that threat wasn’t immediate as he could not have got through the window etc. 2
Revision: Criminal
[NON-FATAL OFFENCES AGAINST THE PERSON] o
but court said it was assault – V cannot be expected to be rational in that situation
R v Constanza: stalker pursued victim for 18 months – followed her home from work on numerous occasions, made silent phone calls, sent and delivered 800 letters to her home; charge of assault arose from 2 particular letters sent in June 1995 – CA said that the key thing is that there must be a threat of violence not excluding in the immediate future – hand-delivered, so he must be close – violence could happen at any time
o
Ireland/Burstow
Ireland: heavy breathing down the phone - question of immediacy Lord Steyn – ‘fear may dominate her emotions … she may fear the possibility of immediate personal violence’ – victim not necessarily thinking logically so fears there could be immediate personal violence •
Almost re-writes the test – rather than apprehension of immediate personal violence – could be immediate apprehension of personal violence
•
Change hasn’t actually happened - but seems courts will take liberal view
Mens Rea •
Fagan – ‘an assault is any act which intentionally or possibly recklessly – causes another person to apprehend immediate and unlawful personal violence’
•
R v Venna: recklessness could be enough for the MR
•
R v Savage;Parmenter: confirmed the view that Cunningham recklessness must be established
•
Direct Intention: See Chapter 3 – Maloney: Lord Bridge – ordinary meaning – “desire/motive”
•
Cunningham recklessness: subjective: D must actually know of the existence of the risk and have deliberately taken it anyway
Battery •
Fagan v MPC– ‘the actual … use of unlawful force to another person without his consent’
Actus Reus Ireland/Burstow: Lord Steyn – ‘the unlawful application of force by the defendant upon the victim’ •
“Force” 3
[NON-FATAL OFFENCES AGAINST THE PERSON] Assault and Battery •
Penalty for Assault/Battery: £5,000/6 months in prison – both in S39 CJA 1988
•
Common law or statutory offences? o
Criminal Justice Act 1988 s39 – but only sets the penalty – doesn’t explain AR or MR
o
DPP v Little: judges here think that they are statutory offences
o
But – still need to give common law explanations – so easier to think of it as a common law offence
Assault •
Committed when the accused ‘intentionally or recklessly causes another person to apprehend immediate and unlawful personal violence’
Actus Reus •
An assault is committed when the accused ‘intentionally, or recklessly, causes another person to apprehend immediate and unlawful personal violence;’ Fagan v MPC: confirmed by Hl in R v Ireland, Burstow
•
There must be apprehension of personal violence o
The D must do something to make the V apprehend (ie anticipate, believe) he will suffer immediate and unlawful personal violence- no need for D to have actually applied force
a) The defendant must cause the victim to believe he can and will carry out the threat of force •
R v Lamb o
Revolver had 2 bullets in it– believing that it was safe – the D pointed it at his friend and pulled the trigger – his friend was shot dead
o
No assault because the victim did not fear violence
b) if the victim is caused to apprehend such a threat, it is irrelevant that the defendant does not in fact have the means to carry out the threat 1
Revision: Criminal
[NON-FATAL OFFENCES AGAINST THE PERSON]
Logdon v DPP: D found to have committed assault against V by showing her a pistol in a drawer saying that it was loaded and claiming he would hold her hostage – only the D knew that the gun was a replica and unloaded – but his actions/words caused the victim to believe otherwise
What if the victim is unusually sensitive? •
•
Doesn’t matter – thin skull rule
Can the threat to use force be of any nature/form? o
Earlier dicta - R v Mead & Belt: ‘no words or singing could ever constitute an assault’ per Holroyd J
o
But opinion has changed - R v Wilson: the words ‘get out the knives’ would on their own be sufficient to constitute an assault’
o
R v Ireland/Burstow: Accused had made several silent phone calls
Lord Steyn said the proposition that words won’t suffice is ‘unrealistic and indefensible’ : held here that silence conveyed a message to the victim as was as such capable of forming the basis of assault – indirectly confirms that words spoken may amount to an assault
o
•
A thing said is a thing done – so words alone can amount to assault
Words spoken can also negate an assault: Tuberville v Savage
The threat of violence must be unlawful: occasionally it will be considered lawful (e.g. selfdefence/consent)
•
The violence apprehended must be immediate and personal o
Focus on what the V actually apprehended
o
Smith v Chief Superintendent Woking Police Station: Smith entered grounds of large house - stared through window of the bedsit where the victim lived – she thought he was going to attack her: D argued that threat wasn’t immediate as he could not have got through the window etc. 2
Revision: Criminal
[NON-FATAL OFFENCES AGAINST THE PERSON] o
but court said it was assault – V cannot be expected to be rational in that situation
R v Constanza: stalker pursued victim for 18 months – followed her home from work on numerous occasions, made silent phone calls, sent and delivered 800 letters to her home; charge of assault arose from 2 particular letters sent in June 1995 – CA said that the key thing is that there must be a threat of violence not excluding in the immediate future – hand-delivered, so he must be close – violence could happen at any time
o
Ireland/Burstow
Ireland: heavy breathing down the phone - question of immediacy Lord Steyn – ‘fear may dominate her emotions … she may fear the possibility of immediate personal violence’ – victim not necessarily thinking logically so fears there could be immediate personal violence •
Almost re-writes the test – rather than apprehension of immediate personal violence – could be immediate apprehension of personal violence
•
Change hasn’t actually happened - but seems courts will take liberal view
Mens Rea •
Fagan – ‘an assault is any act which intentionally or possibly recklessly – causes another person to apprehend immediate and unlawful personal violence’
•
R v Venna: recklessness could be enough for the MR
•
R v Savage;Parmenter: confirmed the view that Cunningham recklessness must be established
•
Direct Intention: See Chapter 3 – Maloney: Lord Bridge – ordinary meaning – “desire/motive”
•
Cunningham recklessness: subjective: D must actually know of the existence of the risk and have deliberately taken it anyway
Battery •
Fagan v MPC– ‘the actual … use of unlawful force to another person without his consent’
Actus Reus Ireland/Burstow: Lord Steyn – ‘the unlawful application of force by the defendant upon the victim’ •
“Force” 3
