Non Fatal Offences Against The Person

Where are the main offences set out?

Offences Against The Person Act (1861)

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What are these offences?

Assault (CJA 1988) Battery (CJA 1988) ABH (OAPA 1861) GBH S18+20 (OAPA 1861)

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Common Assault

Assault+Battery. No statutory definition, however statute law recognises them in s39 CJA. Max punishment 6 months custodial or £5,000 or both.

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Definition of Assault

An act which causes the victim to apprehend the infliction of immediate unlawful force with either the intention to cause another fear immediate unlawful personal violence or reckless as to whether such fear is caused.

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Definition of Battery

The application of unlawful force to another person intending either to apply unlawful physical force to another, or recklessness as to whether unlawful force is applied.

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Actus Reus of Assault

Must be an act which causes the victim to apprehend the infliction of immediate unlawful force.

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'An Act'

requires act or words, an omission is not sufficient

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Constanza (1997)

letters can be an assault.

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Ireland(1997)

silent phone calls can be an assault.

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Lamb (1967)

pointing unloaded gun at someone who knows this cannot be an assault. Would be an assault if loaded

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Immediate force

fear of immediate force is necessary. Immediate does not necessarily mean instantaneous but imminent.

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Tuberville v Savage (1669)

Words indicating there will be no violence may prevent an act from being an assault. However it can depend on the circumstances Light (1857)

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Actus Reus of Battery

application of unlawful force

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Collins v Wilcock (1984)

force is misleading as it can mean the slightest touching

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Fagan (1968)

battery may be committed through a continuing act (police officer driving over foot)

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Martin (1881)

indirect act, D can cause force to occur even if they don't touch them.

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Omission

Liability of common assault can only arise if they have a duty to act. eg Santana Bermudez (2003)

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Unlawful force

for battery to occur the force must be unlawful

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Battery without an assault

this is possible as the victim may be unaware that unlawful force is about to be used

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Intoxication

Specific intent, if they do it when intoxicated it is considered reckless- Majewski (1976)

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Mens rea of assault/battery

intention to cause another to fear immediate personal violence or recklessness as to whether this is caused. For battery it is either an intention to apply unlawful physical force to another or recklessness...

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ABH is a..

triable either way offence and can be liable for imprisonment for five years, no stat definition

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Definition of ABH

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

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Actus Reus of ABH

necessary to prove that there was an assault or battery that caused ABH.

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Miller (1954)

ABH is any hurt or injury calculated to interfere with health or comfort of the victim.

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T v DPP (2003)

Loss of conciousness even momentarily is ABH.

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DPP v Smith (2006)

Cutting someone's hair can amount to ABH (physical pain not necessary-hair is part of body)

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Chan Fook (1994)

psychiatric injury is also ABH, however this does not include being distressed or panicking

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Mens Rea for ABH

Mens Rea for common assault is sufficient for this offence(must intend or be subjectively reckless as to whether the victim fears or is subjected to unlawful force)

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Section 20 GBH definition

Whoever shall unlawfully and maliciously wound or inflict GBH upon any other person, either with or without a weapon or instrument shall be guilty of an offence and shall be liable to imprisonment for no more than five years

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s20 GBH is..

triable either way offence, max sentence 5 years.

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For the offence to be proved D must have..

Wounded or inflicted GBH, intending for some injury to be caused, or recklessness as to whether any injury occured

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Wound

Means cut or breakage of the skin, internal bleeding not sufficient- Einsenhower (1983)

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DPP v Smith (1961)

GBH means really serious harm, but the harm doesn't have to be life threatening

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Bollom (2004)

Severity of injuries should be assessed according to age and health

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Dica (2004)

first ever conviction for causing GBH through infecting people with HIV.

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Burstow (1997)

decided that 'inflict' does not require assault and battery.

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Mens Rea of s20

word used is 'maliciously' - cunningham held that it was intention to cause harm or recklessness as such harm should occur (taken risk)

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GBH S18 is..

more serious, life imprisonment, must be tired at Crown Court.

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Definition of s18

Whosoever shall unlawfully and maliciously wound or cause any GBH to any person with intent to resist or prevent the lawful apprehension or detainer of any person shall be guilty of an offence'

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Actus Reus of s18

Can be committed in two ways: wounding or causing GBH.

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Mens Rea of s18

Specific intent offence - must be proved to have intended to do GBH or resist or prevent the lawful apprehension or detainer of any person

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Taylor (2009)

Intention to wound is not enough for s18, must cause GBH

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Intent to cause GBH

'maliciously' s18 - intention must be proved recklessness is not enough, it is a specific intent crime.

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Charging Standards, Assault and Battery

graze, scratch, abrasion, minor bruising, black eye, swelling, reddening of skin, superficial cuts, undisplaced broken nose

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Charging Standards ABH

Loss/broken tooth, temporary loss of sensory function, extensive/multiple bruising, displaced broken nose, minor fractures, cuts requiring stitches, psychiatric injury

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Charging Standards GBH

Permanent disability, loss of sensory function,permanent visible disfigurement, broken/displaced bones, fractured skull, substantial loss of blood, requires lengthy treatment.

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Aggravating Features that make an assault more serious

using weapon, kicking them when they're on ground, vunerability of the victim - disabled/child

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Law Commission 2011

Announced that it was going to renew this part of the law, they pointed out some of the main problems: out of date, language needs modifying and simplifying, no clear hierarchy of offences

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Out of Date

150 years old. Created when there was no understanding of mental health - only 'bodily' harm not mental. Chan Fook (1994) made this clear. Also there was no knowledge of diseases being transmitted - dica (2004) (HIV)

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Inconsistency between offences

Inconsistencies especially with mens rea. s47 has same mens as assault or battery. s47 carries 5 years imprisonment whereas a+b is 6 months- unfair? unfair that someone should be charged with s20 and not 47 when they caused small cut. s20s47=5yrs

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Need for modern simplified language

'maliciously' in s20 - now it means deliberately but the act states that it means intention or recklessness. The law commission said 'reckless' should be used.

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1993 Law Commission

Proposed new law to take its place. Set out offences to take the place of s47,18,20. Defined injury for mental and physical. Wounding was not used(small cuts not considered injury) Government has done nothing else on this law.

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Non Fatal Offences Against The Person

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