4 offences against the person

• 4 OFFENCES AGAINST THE PERSON

  • NON-FATAL, NON-SEXUAL
  • COMMON LAW
• Assault and battery


  Summary offences under Criminal Justice Act 1988 s.39
• THE OFFENCES AGAINST THE PERSON ACT 1861

  • Assault occasioning actual bodily harm (ABH) (s.47)
  • Inflicting Grievous Bodily Harm (GBH) or wounding (s.20)
  • GBH or wounding with intent (s.18)
• Common assault


  Actus reus: Defendant caused the victim to apprehend imminent unlawful force

  Mens rea: Defendant intended or was reckless that the victim would apprehend imminent unlawful force (R v Venna [1975] 3 All ER 788)
• Imminence


  Smith v Chief Superintendent of Woking Police Station (1983) 76 Cr App R 234

  R v Constanza [1997] Crim LR 576
• Common assault case and statutory examples

  • R v Ireland [1998] AC 147, can words amount to an assault?

  Less imminent threats: Protection Against Harassment Act 1997; s16 OAPA 1861

  Logdon v DPP [1976] Crim LR 121, Irrelevant The defendant had no intention of carrying out the battery

  Words can negate the actions of an assault (Turberville v Savage (1669) 1 Mod Rep 3, 86 ER 684)
• Battery


  Actus reus: Defendant touched or applied force to the victim

  Mens rea: Defendant intended or was reckless as to touching or applying force to the victim
• Battery case examples


  • Collins v Wilcock [1984] 3 All ER 374

  R v Thomas (1985) 81 Cr App R 331 â€" No injury or sensation required for a battery

  R v Smith (1866) 176 ER 910 â€" Spitting

  R v Savage [1992] 1 AC 699) â€" Throwing beer

  DPP v K [1990] 1 All ER 331

  Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890

  DPP v Santa-Bermundez [2003] EWHC 2908 â€" "where someone (by act or word or a combination of the two) creates a danger and thereby exposes another to a reasonably foreseeable risk of injury which materialises, there is an evidential basis for the actus reus of an assault occasioning actual bodily harm"
• Consent to battery


  Collins v Wilcock [1984] 3 All ER 374 â€" "Generally speaking consent is a defence to battery and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street nor can a person who attends a party complain if his hand is seized in friendship, or even if his back, is (within reason) slapped" (LJ Goff)

  Wood v DPP [2008] EWHC 1056 (Admin)

  R v Melin [2019] EWCA Crim 557
• Assault occasioning actual bodily harm

  Section 47 OAPA 1861: Whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be liable to imprisonment for not more than five years

  Actus Reus: Defendant must commit an assault or battery which causes the victim to suffer actual bodily harm

  Mens Rea: Defendant must intend or be reckless as to the assault or battery [NOTE: no need that the defendant foresaw actual bodily harm]

  Occasioning meaning causing
• Meaning of 'actual'


  R v Chan-Fook [1994] 1 WLR 689: "not so trivial as to be wholly insignificant"

  R v Donovan [1934] 2 KB 498: "Any hurt or injury calculated to interfere with the health or comfort" of the victim

  R v Reigate Justices, ex p Counsell [1984] 148 JP 193 â€" bruises, grazes and tenderness

  T v DPP [2003] Crim LR 622 â€" temporary loss of consciousness

  DPP v Smith [2006] EWHC 94 â€" cutting off victim's ponytail
• Inflicting GBH or wounding

  Section 20 OAPA 1861: Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument shall be guilty of [an offence triable either way] and being convicted thereof shall be liable to imprisonment for five years

  Actus Reus: The defendant unlawfully either wounded or inflicted GBH to the victim

  Mens Rea: The defendant foresaw (Cunningham's recklessness) that the victim might suffer some harm
• Inflicting GBH or wounding case examples

  • Wound = A break in the continuity of the whole of the skin (C v Eisenhower [1984] QB 331)

  GBH = "really serious bodily harm" (DPP v Smith [1961] AC 290); R v Bollom [2004] 2 Cr App R 50; R v Dica [2004] QB 1257 (infection with HIV)

  Includes psychological harm (R v Ireland, R v Burstow [1998] AC 147)

  R v Wilson, Jenkins [1984] AC 242 - Doesn't need to be an assault (overturning R v Clarance (1888) 22 QBD 23)

  R v Golding [2014] EWCA Crim 889

  R v Savage; DPP v Parmenter [1992] 1 AC 699
• GBH or wounding with intent

  Section 18 OAPA: Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person with intent to do some grievous bodily harm to any person or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of [an offence triable only on indictment], and being convicted thereof shall be liable to imprisonment for life

  Actus Reus: The defendant unlawfully wounded or caused GBH to any person

  Mens Rea: The defendant intended to cause GBH or they intended to resist or prevent the lawful apprehension/detention of any person AND were Cunningham reckless to causing GBH
• s.18 GBH - Resisting arrest


  Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm or with intent to resist or prevent the lawful apprehension or detainer of any person

  Therefore only needs to be reckless as to causing GBH if intending to resist or prevent lawful arrest
• Law Commission proposes 3 new offences:
• Transferred malice/transferred intent


  Where the Mens Rea directed at one person is transferred to the unintended victim of the crime

  If Actus Reus is the same then MR can be transferred
• Transferred malice/intent case examples

  • R v Latimer (1886) 17 QBD 359

  R v Mitchell [1983] QB 741
• Consent to ABH and GBH


  The consent of the victim is a defence to an assault or battery but it is not a defence to an offence involving ABH or more serious injury unless the case is:

  Organised and regulated sporting activity

  Dangerous exhibitions or bravado

  Rough or undisciplined horseplay

  Surgery

  Tattooing and piercing

  Religious flagellation

  Consensual intimate acts during which a party is infected with a medical condition where the victim had consented to run the risk of being infected

  Consent can only be given by a mentally competent person (defined by the Mental Capacity Act 2005 ss. 2(1) and 3(1))

  Consent can be expressed or implied
• Consent to ABH and GBH case examples


  • R v Jones (1986) 83 Cr App R 375 â€" A genuine belief consent to rough and undisciplined play and no intention to commit an injury

  R v Wilson [1996] 3 WLR 125

  R v Emmett (1999) The Times 15/10/99 â€" Consent no defence where harm was more than transient or trivial injury

  R v Brown [1994] 1 AC 212 â€" "In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty. The violence of sadomasochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous. I am not prepared to invent a defence of consent for sadomasochistic encounters which breed and glorify cruelty and result in offences under ss47 and 20 of the 1861 Act." (Lord Templeman)

  Domestic Abuse Act 2021 s.71: 'It is not a defence that V consented to the infliction of serious harm for the purposes of obtaining sexual gratification'
• Consent to ABH and GBH case examples

  • Laskey v UK [1997] 24 EHRR 39 â€" no breach of Art.8 as the state had the right to interfere for the protection of health and interests of others

  R v Dica [2004] EWCA Crim 1103 â€" Consent to reckless rather than intentional transmission of HIV

  R v BM [2018] EWCA Crim 560 - Tongue splitting

  R v Barnes [2005] 1 WLR 910 â€" Difference between going for the ball late and just going for the victim

  R v Slingsby [1995] Crim LR 570 â€" Consent to the battery where ABH/GBH results
• Lawful chastisement


  A v UK (1998) 27 EHRR 611 - Common law defence of 'reasonable chastisement' failed to protect the rights of children under Art.3 ECHR

  R (on application of Williamson) v Secretary of State for Education and Employment [2005] QB 1300 â€" Teachers can't use corporal punishment and Art.9 not engaged by religious belief

  Children Act 2004 s58 â€" Offences under OAPA can no longer be justified by common law offence