Non Fatal Offences Law 02

Notes: S20 and S18 OAPA Case notes S20 and S18 OAPA Case notes  Battery Cases Battery Cases  Assault cases Assault cases  ABH Cases ABH Cases  Summary Table Offences Against the Person Summary Table Offences Against the Person Nfoshortnotes2015nfoshortnotes2015.doc

 

Common injuries to look out for in a problem question

 

Note: Remember if there is no contact between D and V and no ‘bodily harm’ it can only be an assault.

Common Assault:

Battery

S47 Common Assault occasioning actual Bodily Harm

Section 18 and S20 GBH or wounding

Grazes or scratches

Loss or breaking of a tooth

Injury causing permanent disability or disfigurement.

Abrasions

Temporary loss of consciousness

Broken bones

Minor bruise

 

Extensive or multiple bruising,

E.g. if V fall’s down or downstairs as a result of a D’s touch or V’s apprehension of violence.

Dislocated joints

Swelling

Displaced broken nose

Injuries causing substantial loss of blood

Reddening of the skin

Minor fractures

Injuries resulting in lengthy treatment

Superficial cuts

Minor cuts requiring stitches

 

A black eye

Psychiatric injury – more than fear, distress and panic

Severe psychiatric injury – more than fear, distress or panic, and requiring specialist treatment.

 

 

 

 

 

 

Note: The above are used as guidelines by the Crown Prosecution Service but you must remember the definitions of the offences are more important.

Offences Against the Person - Overview

 

 

Assault and Battery Overview

 

Assault

 

Under S39 of the Criminal Justice Act 1988, assault is a summary offence with a maximum penalty of six months imprisonment.  The elements of the offence have been developed at common law.

 

The actus reus of assault

An assault is an act by D that makes V apprehend immediate, unlawful personal violence. This can occur by deed or word. There is no need for any physical contact between defendant and victim: the emphasis is on what the victim thought was about to happen. 

 

Smith v Superintendent of Woking Police Station (1983) QB

The defendant stood in the garden of his victim, staring through the window at her dressed only in her night-dress.  He was guilty of assault: even though he could not attack her at that very moment, her fear was of something sufficiently immediate and violent.

 

R v Ireland (1996) HL

Ireland had made a series of unwanted silent telephone calls to three women, causing them to suffer palpitations, cold sweats, anxiety, dizziness and insomnia.  He appealed against his conviction for abh on the ground that he had not committed an assault on the women (as required for conviction for abh).  His conviction was upheld.

 

The mens rea of assault

The mens rea of assault is either intention or Cunningham recklessness.  In other words the defendant must either have intended to make his victim apprehend immediate, unlawful violence, or have seen the risk of this and yet gone ahead with his act.

 

R v Venna (1975) CA

The defendant was arrested after being involved in a fracas with the police during which he had fractured with his foot the hand of one of the officers.  He was convicted of assault occasioning abh.  He appealed on the ground that recklessness was insufficient mens rea for the offence.  It was decided that recklessness was sufficient for the offence. 

 

Battery

 

Under Section 39 of The Criminal Justice Act 1988 battery is a summary offence with a maximum penalty of six months imprisonment or a level 5 fine.  The elements of the offence have been developed at common law.

 

The actus reus of battery

Battery is the infliction of unlawful personal violence by the defendant upon the victim.  It does not necessarily involve an assault prior to it, but the two often accompany each other.  In Cole v Turner 1705 battery was defined as “the least touching of another person in anger”.  This includes the clothes a person wears.  For example, in Thomas 1985 the rubbing of a girl’s skirt was held to be sufficient for a battery.

 

A battery can be committed without the defendant touching the victim himself.

Fagan v MPC (1969) QB

The defendant accidentally drove his car onto a policeman’s foot and then intentionally left it there.  This was a battery.  The actus reus occurred when Fagan drove onto the policeman’s foot.  The mens rea occurred when he decided to leave the car there.

 

R v Haystead (2000) DC – Indirect AR of battery

The defendant committed a battery against a woman when he punched her.  He also committed a battery against her child when it fell out of her arms onto the floor, even though there was no direct contact between Haystead and the child.

 

The mens rea of battery

The mens rea of the offence is intention or recklessness as to causing a battery.

It was said in Venna: “…the element of mens rea in the offence of battery is satisfied by proof that the defendant either intentionally or recklessly applied force to the person of another”.

 

Actual Bodily Harm

 

 

 

Section 47 of the Offences Against the Person Act 1861 provides:

“Whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be ........ (liable to punishment).”

 

The actus reus of Actual Bodily Harm

There are two elements:

   (i)    an assault or a battery

The assault can be the common law offence of either assault or battery described above.  The assault or battery must cause the bodily harm.  Therefore it is necessary to consider the chain of causation at this point. 

 

   (ii)  actual bodily harm

The assault or battery must cause the actual bodily harm.  Actual bodily harm has been widely interpreted, including not just physical injury but also psychological injury such as shock.  In the 1954 case of R v Miller, in which the defendant was charged with the abh of his wife, Judge Lynskey said. 

“Actual bodily harm  .... includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor.”  Because a nervous condition came within this definition, the defendant was convicted of abh. 

 

However, a more recent decision of the Court of Appeal would indicate a greater degree of harm is required.

 

R v Chan-Fook (1994) CA

The defendant had locked his victim in a room and questioned him robustly, believing him to have stolen an engagement ring.  He was injured while trying to escape from the second floor room. 

In determining whether this amounted to actual bodily harm, the CA stated that:

“The word harm is a synonym for injury  .....  the injury should not be so trivial as to be wholly insignificant.... Bodily injury may include injury to any of those parts of his body responsible for his mental and other faculties.”

 

However, Hobhouse LJ made it clear that, although abh does include psychiatric injury, it does not extend to states of mind such as fear or distress or panic unless these are evidence of some identifiable clinical condition.

 

The definition of actual bodily harm was extended to hair being cut without the consent of the victim in DPP v Smith (2006), where the court determined that hair was to be treated as part of the body and noted that cutting a woman’s hair without her consent is a ‘serious matter amounting to actual (not trivial or insignificant) bodily harm’. It was also stated, obiter, that if paint or a similar material was put on the hair, that could also be actual bodily harm. In T v DPP (2003) loss of consciousness, even momentarily, was held to be ABH.

 

The Assault or battery must cause (occasion) the ABH – indirect ABH

 

DPP v K: A 15 year old school boy took some acid from a science lesson. He placed it into a hot air hand drier in the boys' toilets. Another pupil came into the toilet and used the hand drier. The nozzle was pointing upwards and acid was squirted into his face causing permanent scars. It was held that the application of force could be indirectly applied. D was found guilty of ABH.

 

The mens rea of actual bodily harm

The mens rea is intention or Cunningham recklessness for the assault or the battery.  The defendant does not have to intend or foresee any actual bodily harm.

 

R v Savage (1991) HL

The defendant had thrown a glass of beer over her husband’s former lover.  The glass slipped out of her hand, broke and cut the victim’s wrist. The HL ruled that the mens rea for the offence of assault occasioning abh was the same as for assault or battery i.e. the defendant did not need to intend or foresee the actual harm suffered by the victim.  Rather it was sufficient for him to have caused the harm as a result of:

either putting the person, intentionally or recklessly, in apprehension of unlawful personal violence (assault),

or touched the victim unlawfully, either intentionally or recklessly (battery).

 

Inflicting Grievous Bodily Harm / Malicious Wounding - S20 OAPA

Under S20 of The Offences Against The Person Act 1861 is the offence of inflicting grievous bodily harm or maliciously wounding. 

(a) The actus reus a Section 20 offence        

The actus reus of this offence can be either grievous bodily harm or wounding.

 

(i)  Grievous Bodily Harm

The actus reus of grievous bodily harm has been re-examined by the courts in recent years.  In DPP v Smith (1961) grievous bodily harm was described as “really serious harm”.  The normal examples are fractured bones, disablement, and the rupturing of internal organs. 

 

This offence does not require any direct contact between the defendant and his victim, GBH or a wound can be indirectly caused by D without any touching at all.

R v Martin (1881)

The defendant placed a bar across the entrance to a theatre and then caused panic by shouting “Fire!”.  Many people inside the theatre were injured, some seriously, in their stampede to get out.  Martin was convicted of gbh for the injuries that his actions caused.

 

The courts have extended the scope of gbh to cases involving stalking.

R v Burstow (1997) HL

A woman was subjected to a campaign of harassment by her former lover.  There was no direct contact.  This led to her suffering severe depression. The HL decided that inflicting meant causing, and that the degree of harm she suffered was serious.

 

 

(ii)  Maliciously wounding

The prosecution has to prove that the defendant either inflicted grievous bodily harm or wounded the victim.  The wounding requires there to be a break in the surface of the skin.  A graze is therefore insufficient, as is the causing of internal bleeding.

 

C (a minor) v Eisenhower (1983)

The defendant hit the victim in the eye with a pellet from an air rifle, rupturing a blood vessel and causing internal bleeding, but not breaking the skin.  The offence of wounding had not therefore been committed.

 

(b)  The mens rea of a Section 20 offence

The mens rea for the offence is defined in the word “maliciously”.  In Cunningham it was held that the word maliciously means either intentionally or recklessly.  It is enough for the prosecution to prove that the defendant either intended or was reckless about causing some harm.  He does not have to intend or foresee serious harm.

 

R v Mowatt (1968) CA

The defendant had attacked a police officer and subsequently convicted under Section 20.  He appealed arguing that he had not foreseen serious harm.

His appeal was dismissed: as long as he had foreseen the possibility of some harm he could be convicted under Section 20.

 

Causing GBH with Intent - S18 OAPA

Under Section 18 of The Offences Against the Person Act 1861 there is a more serious form of malicious wounding or inflicting gbh.  The actus reus is virtually the same as for a S20 offence.

 

The mens rea of a Section 18 offence

It must be shown that the defendant intended (direct or oblique) serious harm or to have intended to resist or prevent the lawful arrest of a person.  Recklessness is not sufficient, nor is intention of some harm.

 

R v Belfon (1976) CA

The defendant slashed his victim with a razor causing severe wounds to his face and chest.  He was convicted under Section 18.  The trial judge had told the jury to convict if they were satisfied that the defendant had foreseen gbh as a probable result of his actions.  He appealed.  His appeal was upheld: the prosecution had to establish that it was the defendant’s purpose to do some gbh, and recklessness was not sufficient.

 

S18 must be proved either that D directly (R v Mohan) or obliquely (R v Woollin) intended GBH or a wound on V.

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