Non Fatal Offences - OAPA

ASSAULT:

Section 39 Criminal Justice Act 1988

-       Common law offence - no statutory definition

-       Punishable of up to 6 months imprisonment - summary offence

 

Definition àFagan v MPC [1969] House of Lords definition:

"When the defendant intentionally or recklessly causes the victim to apprehend immediate unlawful personal violence”

 

“An act by which D intentionally or subjectively recklessly causes the victim to apprehend immediate, unlawful force to his person.”

 

Actus Reus – causing the victim to apprehend immediate unlawful force (harm? Violence). 

 

Mens Rea – intention or recklessness to cause the victim to apprehend immediate force (etc). 

 

Apprehend:

The victim need not be in fear, but must be aware that they are about to be subjected to violence

 

R v Lamb [1967] 

V did not believe the gun would go off; there was therefore no assault. Did not apprehend immediate unlawful personal violence. NB: f V does apprehend unlawful contact, it matters not that there is not in fact any danger.

 

Logdon v DPP [1976] 

An imitation gun pointed at the victim still constituted an assault.

 

R v Constanza [1997] 

There needs to be a present fear of immediate violence not violent that may occur in the future. Case law seems to have stretched this concept.

Threatening letters. Words can amount to an assault.

 

R v Ireland; Burstow [1997] 

Persistent silent phone calls. silence can amount to an assault.

Lord Steyn stated that if the impact (of a silent call) on V was that she feared imminent violence that would suffice.

 

Tuberville v Savage (1669) 

Words accompanying a threating gesture can negate an assault. 

 

Immediate:

Threats of future violence will not suffice; however, the courts have adopted a more liberal approach.

 

Not instantaneous. 

 

R v Constanza [1997] 

A series of stalking and harassment amounted to an assault.

 

Smith v Chief Constable of Woking (1983) 

Fear of what D might do next, even through a window, was held to be sufficiently immediate. Held: magistrates were entitled to find V had feared immediate violence when D had peered through her window at 11pm. The violence could not be applied instantly but could follow sufficiently immediately. 

 

Unlawful:

Will be unlawful where D has no lawful excuse:

-       Reasonable punishment of a child - Section 58 Children Act 2004

-       Consent of the victim

-       Self-defence / prevention of a crime

 

Personal Violence:

The victim need only to apprehend the level of force that amounts to a battery.

 

Valid consent can be express or implied – Collins v Wilcock [1984] Everyday jostling, we consent to slight touching in every day. 

 

Express Consent

Express consent is where we give consent to a certain activity. For express consent to be valid, it must be to something you are legally allowed to consent to. 

 

It may not be valid;

-       Incapacity – due to age or mental disability. 

-       Duress or…