Non Fatal Offences

• what type of offence is assault?

  assault is a common law offence charged under s39 of the criminal justice act 1988
• is there a statutory definition of what assault is?

  no
• what are the punishments for assault?

  there is a maximum punishment of 6 months imprisonment or a fine of £5000 or both
• "for assault there is no touching, only the apprehension of immediate unlawful force" - is this true or false?

  true
• which case defined what assault is, and what is the definition?

  the case is Collins v Wilcock and it is defined as "an act which causes the victim to apprehend the infliction of immediate unlawful force"
• is an omission enough to consitutue an assault and which case clarifies this?

  an omission isn't enough to constitute an assault and this was clarified in the case Fagan v Metropolitan police commissioner
• AR elements of assault - 1) an act

  words are sufficient and they can be written or verbal

  words do not need to be accompanied by any actions

  sending a letter could be sufficient - R v Constanza

  silent phone calls can also be sufficient - R v Ireland

  spitting is also assault whether it makes contact with V or not - R v Misalati
• An act - Case example (R v Ireland)


  D made a series of silent calls over several months to 3 women

  V's experienced fear and distress from them

  Court found that silence can constitute an assault if it leads V to apprehend immediate harm

  Court expanded assault definition to include scenarios where silence creates a genuine apprehension of violence (force)
• An act - Case example (R v Constanza)


  D wrote over 800 letters and made several phone calls to V

  V interpreted the last 2 letters as being clear threats

  there was assault because there was a fear of violence at some time, not excluding the immediate future
• AR elements of assault - 2) apprehend

  the V must believe that immediate unlawful force is about to be used against them

  V doesn't have to be afraid

  there is no assault if it is obvious that D cannot actually use force in the situation
• Apprehend - Case example (R v Lamb)


  2 boys were playing with a revolver with 2 bullets inside - neither bullets were opposite the barrel so they didn't believe it would fire

  one of the boys pointed the gun at the other and fired - killing him

  D charged with unlawful act manslaughter (UAM)

  was held that there was no unlawful act as no assault had been commited as V didn't believe the gun would go off

  so there was no apprehension and no assault
• AR elements of assault - 3) immediate


  immediate actually means imminent - so assault can occur through a closed window

  the fear of immediate force is necessary
• Immediate - Case example (Smith v Chief superintendent of Woking police station)

  D broke into a garden and looked through V's bedroom window at 11pm

  V was terrified and thought D was about to enter the room

  was held that although D was outside and an attack couldn't be made at that immediate moment, V was frightened by D's conduct

  because V didn't know what D was going to do next - this was sufficiently immediate for the offence
• AR elements of assault - 4) unlawful force


  force must be unlawful but doesn't have to be violent (even though called violence in the definition of mens rea)

  if the force is lawful, then there is no offence of assault

  fear of unwanted touching is enough, doesn't have to be serious
• when is a force lawful for assault?

  when V had given genuine consent (e.g a massage)

  when V had given implied consent (e.g during a rugby match)

  when D threatened the force in the line of duty relating to their employment (e.g a police officer)
• how can words negate an assault?

  words indicating that there will be no violence (force) may prevent an act from being an assault (Tubberville v Savage)

  however this depends on the circumstances as the words may not be enough to negate the apprehension (R v Light)
• Words negating an assault case - Tubberville v Savage


  D placed his hand on his sword and said "if it were not assize-time, I would not take such langauge from you"

  during assize-time, judges were present in town so it was unlikely that violence would occur

  court held that D's words negated the threat of violence as they indicated that no immediate harm would follow so there was no assault
• Words failing to negate an assault case - R v Light


  D held a sword above wife's head and said "were it not for the bloody policemen outside, I would split your head open

  In this case, the words didn't negate the threat of immediate violence - weapon raised and explicit threat of harm made it reasonable for V to apprehend immediate violence (force)

  D was charged with assault
• what are the 2 possible elements of MR for assault?

  There can either be an intention to cause another to apprehend immediate unlawful force

  or

  recklessness as to whether such apprehension is caused
• MR elements of assault - 1) Intention

  It can be direct intent or oblique intent

  for direct intent in assault it is defined as - It was D's aim or purpose to cause V to apprehend immediate unlawful force (Case example - R v Mohan)

  for oblique intent in assault it is defined as - It was virtually certain that V would apprehend immediate unlawful force and D knew it (Case example - R v Woolin)
• MR elements of assault - 2) Recklessness

  In assault, recklessness is defined as - there was a risk of V apprehending immediate unlawful force but D takes that risk anyway (R v Cunningham)

  D must realise that there is a risk that his act (including words) could cause another to apprehend immediate unlawful force
• what type of offence is battery?

  battery is a common law offence
• does battery have a statutory definition? (yes/no)

  no
• which statute is battery charged under?

  battery is charged under s39 of the criminal justice act 1988
• what is the maximum punishment for battery?

  the maximum punishment for battery is 6 months imprisonment, a £5000 fine or both
• "for battery, there must be actual force" - is this true or false?

  true
• can there be battery without assault? (yes/no)

  yes, can occur when V is unaware that unlawful force is about to be used on them

  e.g an attacker coming up unseen behind V
• which case expanded the definiton of battery?

  the case Collins v Wilcock expanded the definition of battery to be - "a battery is the actual infliciton of unlawful force on another... any touching, however slight, may amount to battery"
• AR elements of battery - 1) Application/Infliction of force

  the application of force can be direct or indirect

  it can be through an act or an ommission (unlike assault)

  and it can be through a continuing act
• (Battery) Direct application of force case example - R v Thomas


  D (caretaker) grabbed the hem of a 12 year old girl's skirt (without sexual intent)

  court held that touching clothing can amount to battery
• (Battery) Indirect application of force case example - R v Martin


  D placed an iron bar across the theatre doorway - then shouted "fire" and turned off the lights

  in the panic, many injured when trying to escape
• (Battery) Application of force continuing act case example - Fagan v Metropolitan police commissioner


  Police officer told D to move his car - D did so but reversed onto V's foot

  V forcefully told D to move his car off his foot

  D swore at him and turned of the engine

  court held that it was not D's refusal to move the car but because he had decided not to cease the act of driving over V's foot - establishing a continued act of battery
• AR elements of battery - 1) application/infliction of force (ommissions)

  an ommission is the failure to act where there is a duty to do so

  the 6 situations where duty arises are:

  contractual duty e.g employment contract

  special relationship e.g parent/child

  duty voluntarily undertaken e.g sick relative

  creation of dangerous situation

  duty created by statute (act of pariliament)

  duty created by official position e.g police officer
• (Battery) infliction of force ommission case example - R v Santa-Bermudez


  Before searching D's pockets, V asked if D had any needles or sharp objects

  D said no but when V searched his pockets, she was injured by a needle causing bleeding

  court held that D's failure to tell her about the needle (ommission by official position) could amount to the AR of assault causing actual bodily harm
• AR elements of battery - 2) Unlawful force

  the force is lawful if

  V gave genuine consent e.g during a massage

  V gave implied consent e.g during a rugby match

  D applied the force in the line of duty relating to their employment e.g police officer

  D applied the force in self defence (under reasonable circumstances)
• (Battery) Unlawful force case example - Collins v Wilcock


  policewoman V grabbed D's arm to stop her walking away during questioning

  D scratched V & charged with assaulting a police officer in the execution of her duty

  policwoman (V's) actions amounted to battery therefore D's actions were in self defence and she wasn't charged
• what are the 2 possible elements of MR for battery?

  it is either an intention to apply unlawful force

  or

  recklessness as to whether unlawful force is applied
• MR elements of battery - 1)Intention

  Intention can be both direct and oblique

  for direct intent for battery, it is defined as - "It was D's aim or purpose to apply/inflict unlawful force" (R v Mohan)

  for oblique intent for battery, it is defined as - "It was virtually certain that unlawful force would be applied and D knew it" (R v Woolin)
• MR elements of battery - 2)Recklessness


  for recklessness for battery, it is defined as - "there was a risk of unlawful force being applied but D takes that risk anyway" (R v Cunningham)

  In order for this to apply, D must be aware of the risk
• what are the 3 sections of OAPA 1861?

  s47 OAPA 1861: assault occassioning actual bodily harm (ABH)

  s20 OAPA 1861: malicious wounding/inflicting grievous bodily harm (GBH)

  s18 OAPA 1861: wounding or causing grievous bodily harm (GBH with intent)