Criminal Law - Offences Against the Person

• Common Assault is where assault and battery are committed together. They are both common law offences but are recognised under s39 of the Criminal Justice Act which sets out the maximum punishment of 6 months imprisionment/a fine of £5,000.
• Assualt - An act which causes the victim to apprehend the infliction of immediate, unlawful force with either an intention to cause another to fear immediate unlawful personal violence, or recklessness as to whether such fear is caused.
• Battery - The application of unlawful force to another person and intending to apply unlawful physical force or recklessness as to whether unlawful force is applied. An assault requires an act or words. An ommission is not sufficent to constitute an assault. Words can be verbal or written as seen in Constanza. In the case of Ireland it was held that silent phone calls can constitute assault.
• The act must cause the victim to apprehend that immediate force is going to be used against them. There is no assault if it is clear the defendant cannot actually use force against them. In Lamb, pointing a gun at someone when they do not know it is loaded is not an assault because they do not fear the use of force. Fear of immediate force is necessary - it must be 'imminent', as seen in Smith v Woking Police Station. Words indicating there will be no violence may prevent an act from being assault, as seen in Tuberville v Savage. However, in Light, the words did not negate the force. Fear of any unwanted touching is sufficent.

• Mens Rea for Assault is intention to/recklessness as to causing another to fear unlawful and personal violence. The test for recklessness is subjective, the d must realise there is a risk that his acts/words could cause another to fear unlawful personal violence

• The Actus Reus of Battery is the application of unlawful force to another person. Force can include the slightest touching as seen in Collins v Wilcock, although it was pointed out that touching a person to get their attention was acceptable, provided no greater degree of physical contact was used than necessary. Physical restraint was not acceptable. Wood v DPP. Touching the victims clothing can be a battery as in Thomas.
• A battery can be committed through a continuing act as seen in the case of Fagan. It can also be commited by an indirect act as seen in the case of Martin and DPP v K and in the case of Haystead. The concept of transferred malice could have been applicable.
• Criminal Liability can arise through an ommission, but only if the defendant is under a duty to act, and was seen in DPP v Santa-Bermudez and was mentioned in the obiter of Miller.
• If the victim gives genuine consent then it is lawful, and also if used in self-defence, but the force has to be reasonable
• Mens Rea for Battery is intention or recklessness as to whether unlawful force is applied. The d must realise that there is a risk that his act/ommission could cause unlawful force to be applied to another

"An assault or battery which causes actual bodily harm, with the intention to cause the victim to fear unlawful force, or subject to unlawful force, or being subjectively reckless as to whether the victim fears or is subjected to unlawful force"

• It is necessary to prove there was an assault or battery, and that this caused 'actual bodily harm'. In Miller it was held that actual bodily harm meant 'any hurt or injury calculated to interefere with the health and comfort of the victim'. In T v DPP it was held that momentarily losing consciousness satisfied this. In DPP v Smith it was held that cutting off a significant amount of hair could amount to actual bodily harm and that physical pain was not a necessary ingredient. Psychiatric injury also counts, decided in the case of Chan Fook, however, actual bodily harm does not include mere emotions such as fear, distress or panic, it also doesnt include 'states of mind that are not themselves evidence of som identifiable clinical condition'. This was approved in Burstow.
• Mens rea for a Common Assault is sufficent for the mens rea. This decision was confirmed in Roberts, Savage and Parmenter

The defendant wounded or inflicted GBH and that he did this intending some injury to be caused or being reckless as to any injury being inflicted.

• 'Wound' means a cut or break in the continuity of the skin. Internal bleeding is not sufficent. This was seen in the case of Eisenhower and Wood.
• In DPP v Smith it was held that GBH meant 'really serious harm'. The harm does not have to be life threatening and in Saunders it was held that it should be directed to the jury as 'serious harm'. In Bollom it was held that the severity of the injuries should be assessed according to the victim's age and health. Burstow held that psychiatric harm can come under GBH, and in Dica it was held that infecting people with HIV is also GBH.
• Originally it was thought that there had to be a technical assault, as in the case of Lewis. However, the case of Burstow held that this was not the case. It only needs to be shown that the defendants actions have led to the consequence of the victim suffering GBH

• In Cunningham it was decided that 'maliciously' did not require any ill will towards the person injured, it just meant intention or recklessness as to some harm. In Parmenter, the HoL confirmed that Cunningham recklessness applied to all statutory offences which use the word 'maliciously'. There is no need for the defendant to forsee a level of serious injury.

" Wounding or GBH with intention to cause GBH or prevent the lawful apprehension/detention of any person." Maximum life sentance

• The meanings of 'wound' and 'GBH' are the same for s18 and 20.

• Intention must be proved, recklessness is not enough. The rules on intention are the same.
• Where the defendant is trying to resist arrest there is a lower level of intention regarding the injury. He must have specific intention to resist arrest, but only needs to be reckless as to causing injury. This was decided in Morrison

• The OAPA is over 150 years old, this has caused a number of problems. When it was created, people did not have the understanding of mental health that we have today, so the act only refered to 'bodily' harm. This was eventually added in Chan Fook and Burstow. There was also limited knowledge as to the spread of disease, which created uncertainty in Dica.
• There are inconsistencies  particularly with regard to mens rea for each offence. S47 has the same mens rea as common assault, but the max sentances are very different. It does not require the d to intent or be reckless as to some injury. A person who causes a small cut to the skin could be charged with a s20, even though there are different levels of 'wound' and in some cases it may be more just to charge a s47, they may not equate to 'serious harm'. The maximum sentance for s47 and s20 are the same, yet s20 is clearly more serious; it requires a higher level of mens rea and more serious injury. It seems unjust that they have the same sentance when the blameworthiness is so different. A defendant who intends/forsees minor injury can be convicted of a s18 if they intend to resist arrest. This does not seem fair.
• S20 uses the term 'maliciously', which in todays age suggests ill-will. However, in terms of legal statute it has been held to be referring to intention and recklessness. The law commission has proposed that the word 'reckless' should be used in its place. What is the difference between 'inflict' and 'cause'?

• The Law Commission recomended four main offences,
• Intentional serious injury
• Reckless serious injury
• Intentional or reckless injury
• Assault : (intentionally/recklessly applied force to or caused impact on the body of another/caused the other to believe that any such force or impact is imminent)
• Injury = both mental and physical
• Gets rid of 'wounding'.

• The Law Commission recomended four main offences,
• Intentional serious injury
• Reckless serious injury
• Intentional or reckless injury
• Assault : (intentionally/recklessly applied force to or caused impact on the body of another/caused the other to believe that any such force or impact is imminent)
• Injury = both mental and physical
• Gets rid of 'wounding'.

Common Law defence that justify the defendants action. Prevention of crime is outlined in statute under the Criminal Law Act, stating that ' a person may use such force as is reasonable in the circumstances in the prevention of crime'.

• The degree of force which can be used is explained in the Criminal Justice and Immigration Act. It allows for the fact that the defendants cannot be expected to calculate the exact amount of force that is 'reasonable' in the circumstances and that if there is evidence the defendant 'honestly and instinctively' thought the force they used to protect themselves was reasonable, this is strong evidence that the action was reasonable. If force is used after all danger has passed, the defence is not available.
• The defendant must be judged on the facts they genuinely believe them to be. In Williams it was ruled that the d should be judged on his mistaken view of the facts, regardless if the mistake was reasonable or unreasonable. This has since been put into statute under s76 of the Criminal Justice and Immigration Act. The defendant cannot rely on any mistaken belief, if it is made due to voluntary intoxication.

• Sometimes difficult to decide if it was necessary for the defendant to use force, the jury has to decide if they believed they were honestly being threatened. A defendant can use forc, even where there wasn't threat to him & where the mistake was unreasonable.
• Does a person have to wait until they are attacked before they can use force? It appears that a person should be allowed to act to 'prevent' force, it is not necessary for an attack to have started. It would be ridiculous for a defendant to wait until he had been stabbed until they were allowed to defend themselves. Somebody can also make preparations to defend themselves as in AG's ref (2 of 1983) (1984), even if this involves breaching the law.
• Excessive force will mean that the defence cannot be used, but can normally take it into account in sentancing, however this not available for murder.
• Another point is whether d's characterisitcs can be taken into account in deciding if d thought he needed to defend himself. In Martin (Anthony) it was held that psychiatric evidence that saw a d percieve a greater threat than there was, was not relevant to the question as to whether the d had used reasonable force, one reason being that self-defence is usually used in minor cases and that it would be inappropriate to encourage medical debates' This was followed in Cairns. However, s76 makes it clear that whether the force was reasonable is to be  decided by reference to the circumstances as d believed them to be. If d's psychiatric condition makes him genuinely believe that force is necessary, then d should be able to claim self-defence

• Consent is a defence to battery and other offence against the person, but is not a defence to murder, or situations with serious injury. Two cases where consent was used as a defence were Donovan and Slingsby.
• There must be real consent as seen in the case of Tabassum. The fact that a victim submits through fear does not mean the consent is real, as demonstrated in Olugboja. In Dica, the consent to sex was not real because they were unaware the defendant had HIV.
• There are some situations in which consent is implied, everyday situations where there are crowds or other people and it is impossible not to have some contact. In Wilson v Pringle it was held that 'ordinary jostlings' were not a battery. This applies to contact sports, however, if the contact goes beyond what is allowed in the rules then its possible for an offence to be committed. Breach of the rules of sport must be serious, as in Barnes
• There have been arguments over whether consent is a defence to s47. in AG's ref (6 of 1980) (1981) the court of appeal refused the use of the defence as it was not in public interest. This case also gave a list of exceptions where consent can be used for a s47, 'sports, lawful chastisement, surgical interference etc.'. It is a question of whether it is in public interest or not. Deciding what is in public interest is not very clear. If we look at the cases of Brown and Wilson, it appears that homosexual acts causing minimal injury with consent 'was not in the public interest' But a husband branding his wife, needing medical attention was held to be a 'personal adnornment' - like a tattoo.

• Where the defendant genuinely, but mistakenly believes a victim is consenting then there is a defence to assault. This was seen in the case of Jones and Aitken, but it is difficult to see how this is in line with public policy.
• It is important to have a defence of consent, otherwise contact sports would be illegal. There is a distinct difference between playing within the rules and not. An 'off the ball' tackle must surely be considered criminal behaviour if there is intent to cause serious injury.
• Barnes found that in deciding where conduct was criminal the following points should be considered. 1) intentional infliction of injury will always be criminal. 2) Did reckless infliction of injury occur during actual play, or in a moment of temper/over-excitement when play had ceased? 3) 'Off-the-Ball' injuries are more likely to be criminal. 4) The fact that the play is within rules and practice of the game and does not go beyond is a firm indication that what has happened is not criminal.
• Another exception is 'reasonable surgical interference'. Where surgery is needed to save a persons life, consent to the operation is a defence to assault. Mentally capable adults can consent to reasonable medical treatment or refuse it. If a persons consent cannot be asked, medical staff have to try and obtain consent from relatives. If this is not possible and treatment is necessary, such an operation can be performed without actual consent.

• It appears that courts are prepared to condone acts where parties are consenting adult heterosexuals, but not where they are homosexual - are the courts imposing moral values on the public? In Emmet, 'high risk' sexual activity meant that the defence could not be used.
• Public Policy was important in decisions such as Brown. In a civilsed society, cruelty should not be tolerated, victims should not be able to consent to injuries caused by infliction of cruelty. Violence involved degradation of the victims. In this respect, it is in public interest for the law to interfere in the freedom of individuals.
• Another issue surrounds 'horseplay', even when resulting in serious injury, the courts have ruled that consent can be a defence, on the basis that the defendant has not formed mens rea. Honest belief in consent can provide for a defence even where actual consent was not given. This was seen in Jones and Aitken. However, this contrasts with Brown and Emmet where actual consent was given.
• Some sexual offences are ones of strict liabilty, so in the case of G, although he honestly believed the girl was the same age as him, he was unable to use consent as a defence as a girl aged 13 cannot give consent to sex. In the case of G, he was only convicted at a majority of 3 judges to 2.
• Another issue is Euthanasia - Nobody can consent to their own death. If a terminally ill person wishes to die they must take their own life. This was seen in the case of R v Pretty.