Non-fatal offences against the person

• Type, statute, court tried, sentence

  • Assault (common law offence but recognised in S39 of the Criminal Justice Act 1988), summary (Magistrates court), 6 months in prison and/or up to £5000 fine
  • Battery is the exact same as assault
  • Assault occasioning actual bodily harm (ABH S47 of the offences against the person act 1861), triable either way (mags or crown), 5 years max
  • Malicious wounding or inflicting grievous bodily harm (GBH S20 OAPA 1861 recklessness), tracible either way, 5 years max
  • Wounding/ causing GBH with intent (GBH S18 OAPA 1861), indictable, life imprisonment
• Issues?

  • Assault and battery have no statutory definition of the crime and they sound much serious then they are which could impact employment despite how minor they really are
  • It's hard to differentiate between what injuries would be ABH or GBH and the sentences are the same maximum (5 years) but GBH is much more serious...
  • Issues with language in GBH S20 & S18 eg difference with inflicting and causing, malicious meaning intention in law has problems for S20 recklessness
  • 2 statutes but it's better to combine them into a new, updated, detailed statute
  • 1861's very outdated
• CJA 1988 s39?


  Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both.
• Is assault physical?


  No - the mens rea of assault is intention to cause another to apprehend (to think) immediate unlawful personal violence or recklessness (Logdon) whether that fear is caused. Based on precedent they don't need to be frightened but must believe they're going to do it.
• Is battery physical?


  Yes - battery is intention to cause apply unlawful physical force to another or recklessness as to whether unlawful physical force is applied
• Test for recklessness in both assault and battery?

  Subjective - D themselves must realise there is a risk that their acts or words could cause another to fear personal violence or there is risk that unlawful force could be applied to another, making them BASIC INTENT crimes.
• Common assault (Fagan)

  
  

  Committed either by an assault or battery although the courts often now refer to the offence of 'common assault' there's still technically 2 offences
• Assault

  • can be from an act or words - not omission
  • V must apprehend that immediate (issue) unlawful force is going to be used on them either intentionally or recklessly eg they must grasp that there is a genuine threat of force imminently
  • Lawful force includes everyday jostling (Wilson & Pringle), medical, self defence, to save from harm or will harm someone else
  • the apprehension need not be serious violence - any unwanted touching is sufficient
  • the 'force' threatened must be unlawful
• Is the apprehension specific in assault?

  No - Smith where it was said it wasn't necessary for the prosecution to establish precisely what V feared
• What can stop words becoming an assault?

  If they negate the threat eg Tuberville v Savage. But in situations where the words become more specific and it's a special case of domestic abuse then this won't apply eg Light. The tow cases were distinguished
• What happened in Lamb?

  Since there was no apprehension of immediate violence there was no assault to fulfil the requirements of unlawful act manslaughter
• Assault summary


  If V doesn't fear immediate personal violence then you can't be charged for assault. Assault isn't physical it can be things like staring intimidatingly or even silence (R v Ireland). It's about the threat of violence that v thinks D has, therefore it can be either intentional or recklesslessly.
• Battery

  • application of unlawful force to another
  • 'force' doesn't have to be serious, in fact the slightest touching can suffice even if it's to clothes (R v Thomas)
  • if D acts in self-defence they cannot be convicted of battery (Collins and Wilcock)
  • A parent chastising their child is considered a lawful use of force unless the force was unreasonable (what's unreasonable?)
  • the force must be unlawful
• Fagan (battery)


  The mens rea (intention to apply unlawful physical force or recklessness) can be present within the course of a continuing act
• Can an omission amount to a battery?


  No unless there's a duty to act (Santana-Bermudez)
• Can battery be committed indirectly?

  Yes (DPP V K)
• Assault occasioning ABH

  • Roberts- established that it must be reasonably foreseeable the the consequences of what D was saying or doing (the assault) would cause the ABH
  • Williams- it wasn't reasonably foreseeable here
• Assault occasioning ABH in relation to it's wording?

  • Chan-Fook- actual = more than trivial, harm = injury, 'bodily harm' = harm to skin, flesh, bones, organs, nervous system and brain but it can include psychiatric injury but not just mere emotions there must be evidence of a clinical condition
  • R v Ireland- silent phone calls causing psychiatric illness account to assault occasioning ABH, 'bodily harm' also covers recognised psychiatric illnesses but it must be distinguished from simple states of fear or problems coping with everyday life, the silent phone calls amounted to an assault
• R v Constanza (ABH)

  • numerous silent phone calls, 800 letters, visited her
  • V interpreted 2 letters as clear threats, diagnosed with depression and anxiety, doctor believed D caused this
  • question of if it could be proved there was a fear of violence at some point not excluding the immediate future
  • D lived near V so thought something could happen any time - jury had to decide if V had fear of immediate violence, found she did
  • V can still have fear of immediate violence even if unable to see D, an assault can be words alone and doesn't require a physical action (the threatening letter)
• R v Savage; DPP v Paramenter(ABH)


  When an assault was established the only remaining question was whether V's injury was the natural consequence of that assault. This matter can be resolved by applying an objective test which doesn't involve enquiring into D's state of mind. The prosecution is not obliged to prove that D intended to cause some ABH or was reckless as to whether such harm would be caused. It was not necessary to demonstrate the defendant had the mens rea in relation to level of harm inflicted. It was sufficient that they intended or could foresee that some harm will result.
• What do serious aggravating factors do according to the CPS charging standards?

  Serious aggravating factors like the nature of the assault (use of a weapon, biting, kicking V on the ground, strangulation more than fleeting and caused real fear or the victims vulnerability) will take injuries from V usually amounting to common assault and make it possible to charge S47
• What happens if the vulnerability of the victim is a child assaulted by an adult according to the CPS charging standards?

  The list (bar reddening skin) for the line between S39 and ABH will be different for a child because of their vulnerability so it will be ABH despite usually being S39.
• Assault occasioning ABH injuries according to the CPS charging standards?

  • loss or breaking of tooth
  • temporary loss of sensory functions, may include loss of consciousness, extensive or multiple bruising,
  • displaced broken nose
  • minor fracture
  • minor but not merely superficial cuts of a sort probably requiring medical treatment (stitches)
  • psychiatric injury more than mere emotions such as fear, panic or distress
• Unlawful wounding/inflicting GBH S20 according to the CPS charging standards?

  • injury causing permanent disability or permanent loss of sensory function
  • results in more than minor permanent visible disfiguration, broken or displaced limbs or bones including fractured skull
  • compound fractures, broken cheek bone, jaw, ribs etc
  • substantial loss of blood necessitating a transfusion
  • result in lengthy treatment or incapacity
  • psychiatric injury as with ABH appropriate expert evidence is essential to prove injury
• GBH S18 according to the CPS charging standards?

  • a repeated or planned attack
  • deliberate selection of a weapon or adaptation of an article to cause injury such as breaking a glass
  • making prior threats
  • using offensive weapon against or kicking V's head
• Mens rea of S20?

  intention or recklessness
• S20 AND S18 defined?

  • S20: shall unlawfully and maliciously wound or inflict any GBH upon any person
  • S18: shall unlawfully and maliciously by any means whatsoever wound or cause any GBH to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person
• Key cases clarifying GBH and simplifying the terms?

  • Martin- 'inflict' means CAUSING harm direct or not
  • Mowatt- 'Maliciously' means D had an awareness that his actions would cause SOME physical harm
  • Burstow- 'bodily harm' covers psychiatric harm, point of law in Martin also confirmed here- inflicting GBH S20 could be committed without physical violence applied directly or indirectly to V's body
  • Ireland & Constanza dealt with the same issues as Burstow so it's clear that psychiatric injury is classed as bodily harm but it must be recognised and not just mere emotions
• GBH further cases?

  • DPP v Parameter- S20 not necessary to foresee GBH which must be caused, but D must foresee he might cause some harm
  • R v Savage- S20 substituted for S47 because the offence didn't require proof of recklessness or 'maliciousness' in relation to the 'occasioning' of the ABH
  • R v Bollom- vulnerability of victim as child, the severe bruising would be considered much more serious than on an adult and could therefore amount to a GBH instead of ABH
  • Dica- D's unprotected sex led to HIV spread to 2 women, S20 conviction because S18 hard to prove intent
• What does wound mean in GBH?

  Moriarty v Brookes stated 'an injury to the person by which the skin is broken... and there was a bleeding'. In JJC v Eisenhower a man shot in the eye with a shotgun had internal bleeding but as it wasn't external it was deemed to not be a wound.
• What does 'grievous' bodily harm mean?

  In DPP v Smith and confirmed in Saunders it means 'serious'
• What do the Law Commission have to say about NFOAP?

  The law commission proposed to repeal S18, 20, 47 and replace them with new provisions. In Legislating the Criminal Code: OAP and general principles, 3 issues were criticised:

  1. language is complex obscure and outdated
  2. the structure of the offences is incoherent
  3. the ineffectiveness of the current law
• Criticisms of NFOAP?

  • language in OAPA 1861 is outdated eg 'grievous' & 'malicious' not used now and have required interpretation. Should be written in statute as precedent can be overruled
  • Malicious is thought to be evil or hatred but in law it means intention or reckless- not expected
  • misleading language eg assault conjures an image of a physical attack but legally no contact is required
  • 'battery' suggests a higher level of force
  • bodily harm under S18/20/47 includes psychiatric harm according to Ireland, Constanza & Burstow but Victorian draftsmen wouldn't have had this in mind...
• Criticisms of NFOAP?

  • 'inflict' is problematic in court- first interpreted as requiring proof of an assault/battery (Clarence), Wilson- the direct application of force, yet Martin D was liable despite indirect force, currently from Burstow it simply means cause
  • no statutory definition of assault & battery and no clear boundaries between offences
  • intentional touching without consent is battery (Collins v Wilcock) but any hurt or injury calculated to interfere with the comfort of V amounts to ABH (Miller)- seems little difference between the two yet battery has a max of 6 months and ABH 5 years
• Criticisms of NFOAP?

  • no clear boundary between ABH and GBH, based on jury opinion of 'serious harm'
  • ABH & GBH have v different levels of severity yet S20 & 47 have same max (5), yet S18 jumps to life despite being same injury as S20
  • illogical to have separate offences of wounding considered alongside GBH, the wording in Moriarty v Brookes suggests even a pinprick which is clearly not really serious harm could suffice
  • common assault not punishable- not reported or prosecuted, problem for domestic abuse, P charges lesser offence to secure and plea bargains used, costs outweigh benefits
• Examples of some law commission proposals that modified the Home Office's 1998 draft Bill?

  • changes of wording eg 18 = intentionally causing serious injury, 20 = recklessly causing serious injury, 47 = intentionally or recklessly causing injury (whether or not by assault) where D must intend or be reckless to the risk of some injury
  • new offences eg aggravated/physical/ threatened assault, assault on a constable during his duty, expanding threats to kill to include threats to cause serious injury and rape
  • new sentencing eg S20 7 years, new expanded offence of threats all 3 have max 10 years