Non Fatals~Assault and Battery

The main offences against the person are set out in the Offences Against the Person Act 1861 (OAPA) which codified the existing common law. It did not however try to create a coherent set of offences and as a result there have been many problems with the law, prompting many proposals for reform.

These offences are based on whether or not V was injured and if there were injuries, their level of seriousness; and the MR of the defendant.

The main offences in ascending order of seriousness are:

•  ASSAULT: Common law offence but charged under s.39 Criminal Justice Act 1988.
•  BATTERY: Common law offence but charged under s.39 Criminal Justice Act 1988.
•  ASSAULT OCCASIONING ACTUAL BODILY HARM: Contrary to s.47 OAPA 1861.
•  MALICIOUS WOUNDING OR INFLICTING GRIEVOUS BODILY HARM. Contrary to s.20 OAPA 1861.
•  WOUNDING OR CAUSING GRIEVOUS BODILY HARM WITH INTENT: Contrary to s.18 OAPA 1861.

This label refers to two separate offences: assault and battery. Both are common law offences, however, statute law recognise their existence as both are charged under s.39 Criminal Justice Act 1988.

“s.39 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 both.”

This is a relatively common offence, with almost 12,000 adults convicted of this crime in 2003. The Act does not provide their definition; this has been provided by the case law.

Collins v Wilcock [1984]

Goff LJ: “The law draws a distinction...between an assault and a battery. An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person; a battery is the actual infliction of unlawful force on another person.”

Definition~There must be an act, which causes V to apprehend the infliction of immediate, unlawful force. No force need actually be applied; therefore assault can be committed by raising a fist at V, or pointing a gun. Nor does it matter that it may be impossible for D to inflict the force, for example if the gun was not loaded, so long as V is unaware of the impossibility of the threat being carried out.

Logdon v DPP [1976]                                                                                               D opened his desk drawer to show V an (imitation) gun inside, which D said was loaded. D then told V he was going to take her hostage. In fact the gun was a fake, but the actions of D were sufficient to amount to an assault: V apprehended immediate unlawful personal violence and D was reckless as to whether she would apprehend such violence.

Words alone are sufficient (verbal or written).                                                                    R v Constanza [1997] CA                                                                                             D was convicted of s.47 ABH (which is based upon proof of either an assault/battery taking place). He had been stalking V (an ex colleague) for nearly 2 years (Oct 1993 – June 1995), following her home from work, made numerous silent phone calls, sent her over 800 letters, repeatedly drove past her home, wrote offensive words on her front door. In June 1995, she received 2 further letters which she interpreted as clear threats that he might do something to her. In July she was diagnosed as suffering from clinical depression and anxiety.

CA said that there was an assault as there was a “fear of violence at some time, not excluding the immediate future.” D lived near V and so he could harm her in the very near future. The CA rejected Ds claim that a person cannot apprehend immediate violence unless they can see the perpetrator. Therefore, a written threat is assault.

R v Ireland and Burstow [1997] HL

D (Burstow) had a brief relationship with V. She ended the relationship and he could not accept this so embarked upon on a campaign of harassment against her over the next 8 months. He made silent telephone calls, abusive telephone calls; he appeared at her house, took photos of her, and distributed offensive cards to her neighbours and hate mail. As a result she suffered a severe depressive illness. HL held that silent phone calls could amount to an assault. (D was actually convicted of s.20 GBH).

D (Ireland) made numerous silent phone calls to 3 women who suffered psychological harm as a result. (D was convicted of s.47 ABH).

This overrules:

Meade and Belt [1823]

People gathered around Vs house singing menacing songs with violent language. The judge ruled that “no words or singing are equivalent to an assault”.

If words indicate there will be no violence this may prevent/negate an act from being an assault. Tuberville v Savage [1669] Annoyed by someone’s comments to him, D put his hand on his sword which by itself would have been enough to constitute an assault, however, at the same time said “If it were not assize time I would not take such language from you.” (This meant that since judges were hearing criminal cases in town at the same time he had no intention of using violence). His statement negated the threat implied by touching his sword. However, this will depend on the circumstances. Light [1857] D raised a sword above his wife’s head and said “Were it not for the bloody policeman outside, I would split your head open.” This was still assault as he had raised the sword above her head and she apprehended force. His words were not sufficient to negate this.

The act or words must cause V to apprehend that immediate force is going to be used against them. If it is obvious D cannot use force at that time, there is no assault. For example, if D were to shout threats from a passing train. There is no possibility that he can carry out the threat in the ‘immediate’ future.

R v Lamb [1967]

Pointing an ‘unloaded’ gun at someone who knows that it is unloaded cannot be assault as V does not apprehend immediate force.

Even though apprehension of force some time in the future would not be sufficient, courts have given a generous interpretation of the concept of immediacy. Immediate does not mean ‘instantaneous’, instead it means ‘imminent’ (looming, about to happen). (see Constanza [1997]) This therefore means an assault can be committed through a closed window.

Smith v Chief Superintendent of Woking Police Station [1983]

At around 11pm, V was at home in her ground floor bedsit dressed only in her nightdress. She was terrified when she suddenly saw D standing in her garden, staring at her through the window. Although D was outside and no attack could be made at that immediate moment, D was convicted of assault as V nonetheless apprehended force, even though safely locked inside. Apprehension of what he might do next was sufficiently immediate for the purposes of the offence.

R v Ireland [1997]

“...there is no reason why a telephone caller who says to a woman in a menacing way ‘I will be at your door in a minute or two’ may not be guilty of an assault if it causes his V to apprehend immediate personal violence. Take now the case of the silent caller. He intends by his silence to cause fear and he is so understood. The V is assailed by uncertainty about his intentions. Fear may dominate her emotions and it may be the fear that the caller’s arrival at her door may be imminent...As a matter of law the caller may be guilty of an assault...”

Apprehension of any unwanted/unlawful touching is sufficient, which need not be serious.

o Raising a fist as though about to hit V.

o Throwing a stone at the V which just misses.

o Pointing a loaded gun at someone within range.

o Making a threat “I am going to hit you.”

This is the application of unlawful force on another person. “Force” is slightly misleading as it can include the slightest touching, and there is no need to prove any harm or pain has been caused.

Collins v Wilcock [1984]      Two police officers saw two women apparently soliciting for the purposes of prostitution. They asked one to get in the police car for questioning but she refused and walked away. As she was not known to the police, an officer walked after her to try and find out her identity. She refused to speak to her and again walked away. The officer then took hold of her arm to prevent her leaving and V scratched the officer’s arm. She was convicted of assaulting a police officer in the execution of her duty but appealed on basis that the officer was not acting within the execution of her duty and so acting unlawfully in holding her arm as she was not arresting her. Court held that the officer had committed a battery and D was entitled to free herself.

Lord Goff: “It has long been established that any touching of another person, however slight, may amount to battery...As Blackstone wrote, “the law cannot draw the line between different degrees of violence...

Lord Goff also said that touching someone to get their attention is OK, providing no greater degree of physical contact used than necessary (not physical restraint though). He also said that “persistent touching to gain attention in the face of obvious disregard may transcend the norms of acceptable behaviour.”

Wood (Fraser) v DPP [2008]

Police received a report that a man named Fraser had thrown an ashtray at another person in a pub. Three police officers went to the scene and saw a man who fitted ‘Fraser’s’ description. One officer took hold of this man’s arm and asked if he was ‘Fraser’. The man denied this and tried to pull away. At that point another officer took hold of his other arm.

After a struggle, D was charged with assaulting two police officers in the execution of their duty. On appeal it was held that as the officers were not actually arresting D, there was a common battery by the officer. This meant D was entitled to release himself and thus was not guilty of battery.

Even touching Vs clothing can be sufficient to form a battery, even if V feels nothing.

R v Thomas [1985]

A school caretaker was convicted of indecent assault after taking hold of the hem of a 12-year-old girl's skirt. His appeal was allowed as the act was not inherently indecent and there was no evidence of circumstances making it so. But the CA (Ackner LJ) said obiter that “There can be no dispute that if you touch a person's clothes while he is wearing them, that is equivalent to touching him.”

An act can be lawful and ‘accidental’ at first but become a battery as it is still continuing.

Fagan v Metropolitan Police Commissioner [1968]

D accidentally drove his car onto a policeman’s foot. He was initially unaware of doing this but then failed to remove it after being asked several times by the Officer. Court said that at the start there was an act (the battery) but it lacked the MR, but became the offence the moment he refused to move off foot (MR).

Often force will be directly applied by one person onto another. Force can however be applied indirectly, such as using an implement causing force to be applied.

Martin [1881] D placed an iron bar across the doorway of a theatre. He then switched off the lights and shouted “fire”. In the ensuing panic, several members of the audience were injured when they were trapped and unable to get out. D was convicted of s.20 GBH.

DPP v K [1990] A 15 year old schoolboy took sulphuric acid from a science lesson without permission to see what the reaction would be with some toilet paper. While in the toilet D heard footsteps in the corridor, panicked and hid the acid in a hot air hand drier. D returned to class intending to retrieve it later but before he could, a student was sprayed with the acid when he used the drier. D was convicted of s.47 ABH.

Haystead v Chief Constable of Derbyshire [2000] D punched a woman twice in face whilst she was holding her 3 month old baby. This caused her to drop the baby who hit its head on the floor. D was guilty for indirectly hurting the child (battery) because he was reckless as to whether his acts would hurt the child (also justified under transferred malice.)

Criminal liability can arise by omission, but only where D was under a duty to act (contract, relationship, voluntary assumption of care, creating dangerous situation.) As battery is the application of unlawful force, seems difficult to imagine how an omission can result in force except in:

DPP v Santana-Bermudez [2003]

D said there were no needles on his person when asked by a police officer before searching him. She put her hand in his pocket and was injured by the needle. Ds failure to tell her of the needle amounted to the AR for purposes of s.47 OAPA 1861.

Kay J: “...where someone (by an act or word or a combination of the two) creates a danger and thereby exposes another to a reasonable foreseeable risk of injury which materialises, there is an evidential basis for the AR of an assault occasioning actual bodily harm.”

Where there is consent to the touching, there can be no battery and thus no unlawful force.

Slingsby [1995]

D and V had taken part in sexual activity which was described as ‘vigorous’, but which had taken place consensually. During this a signet ring worn by D caused an injury to V which led to blood poisoning from which she died. Vs consent meant that there was no battery or other form of assault, and so D could not be convicted of unlawful and dangerous act manslaughter.

In many situations, courts will imply consent to minor touching, such as everyday situations involving crowds of people.                                                                               Wilson v Pringle [1986] A schoolboy, in fun seized the bag over Vs shoulder, causing him injury. The CA decided that the ordinary ‘jostlings’ of everyday life are not battery.      Collins v Wilcock [1984] “Although we are all entitled to protection from physical molestation, we live in a crowded world in which people must be considered as taking on themselves some risk of injury...from the acts of others which are not in themselves unlawful.

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, the 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.”

Force may also be lawful if applied in self defence or prevention of a crime, providing force used is reasonable in the situation. Force can also be lawful when chastising a child. It is only when force becomes excessive that it will be criminal.

V need not be aware that s/he is about to be struck as being struck from behind is still a battery, just without the assault.

Both are basic intent offences, therefore INTENTION or RECKLESSNESS is sufficient. ASSAULT:

 Intention to cause V to apprehend immediate unlawful force.

 Recklessness as to whether such apprehension is caused.

BATTERY:

 Intention to apply unlawful physical force to another.

 Recklessness as to whether unlawful force is applied.

* Subjective recklessness: D must realise there is a risk (Cunningham [1957] recklessness looking at what D foresaw, not what D should have foreseen.)*

As both are BASIC INTENT offences, if D is intoxicated when he does the AR, his MR is satisfied through his ‘reckless’ drinking.

D consumed large quantities of alcohol and drugs and then attacked the landlord of the pub. Landlord called the police and D also attacked officers who tried to arrest him.

HL: “If a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition.

His course of conduct in reducing himself by drink and drugs to that condition in my view supplies the evidence of MR, of guilty mind certainly sufficient for crimes of basic intent. It is a reckless course of conduct and recklessness is enough to constitute the necessary MR in assault cases.”

This can be criticised as the point at which drink or drugs are taken may be quite a separate time to the point when AR is committed. D may be reckless to drink, but this does not mean he is reckless when he commits the AR 3 or 4 hours later. However, public policy justifies this posititon.

Assault

(AR)

An act which causes V to apprehend infliction of immediate, unlawful force.

(MR)

Intention to or recklessness as to whether another apprehends.

Battery

(AR)

Actual infliction of unlawful force.

(MR)

Intention to apply or recklessness as to whether unlawful force is applied.