Non-fatal offences against the person notes - from assault to S18
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Course
Criminal Law
Institution
University Of Westminster (UOW)
Non-fatal offences against the person notes including assault , battery , S47 , S20 , S18 , transmission of HIV , sporting activities etc
textbook linked with this is Clarkson and Keating criminal law 10th edition by SR Kyd , T Elliott and MA Walters chapter 7
Hierarchy of offences
1. Common assault ( least serious )
2. Battery
3. Assault occasioning actual bodily harm S47
4. Malicious wounding /inflicting GBH S20
5. wounding/causing GBH w/intent S18 (most serious )
Common assault
- committed in 2 ways . 1 is infliction of actual violence which should be described as charge
of assault by beating and other should be described as an assault meaning threat of
immediate violence w/o actual violence taking place - R (Kracher) v Leicester
magistrates’ court 2013
- Starting w 2nd definition , assault w/o infliction of violence .
- Common assault charged under CJA 1988 , S39 states its a summary offence (max penalty
6mths) unless racially aggravated in which case triable either way . However its AR +MR
come largely through case law
AR (actus reus) = conduct causing victim to apprehend imminent application of unlawful
force (Fagan confirmed in Savage and parmenter )
• Not necessary for V to apprehend a severe attack ; apprehension of any unwanted touching
is sufficient , all that V needs to apprehend is a battery .
• Must be a threat but that need not be verbal. Any threatening conduct will suffice e.g.
shaking a fist at someone/ pointing a gun as long as the V is put in fear so if gun pointed at the
back then not assault as they can see that .
• Tuberville v savage - words indicating there will be no violence may prevent an act from being
an assault
• Constanza - letters can be an assault , sent 800 letters and made number of calls to V
• Fagan - cannot be a omission must be an act
• Smith , ireland/burstow - immediate unlawful violence . In smith she didn’t know what he
would do in that short amount of time but she knew it would be something of violent nature .
In Ireland he made repeated silent calls mostly at night to 3 women who then suffered psychiatric
illness. S47 conviction x3 since the calls caused the Vs to apprehend immediate and unlawful
violence his conduct was capable of amounting to assault.
In Burtsow he conducted an 8 month campaign of harassment against a woman incl silent and
abusive calls. She was fearful of personal violence and psychiatrist testified she was suffering
depression. Stated psychiatric injury could amount to GBH under S20.
MR (mens rea)
1. MR of technical assault = intention to cause V to apprehend imminent unlawful personal
violence or recklessness as to whether such apprehension is caused - Venna
2.Recklessness = CoA held in every offence against the person recklessness was to be given the
cunningham meaning ‘in the sense of taking the risk of harm ensuing with foresight that it
might happen’ - decided in Spratt . Spratt was followed in parmenter.
Battery
- also charged under S39 CJA 1988
AR = infliction of unlawful personal violence by accused upon victim
Battery often follows from technical assault but not necessary for there to be technical assault
for D to be liable for battery
- Slightest touching if unlawful is often sufficient but courts recognise that ordinary everyday
life involved many incidents of contact with other persons which should not be treated as
, criminal - Wilson v Pringle where P + D both 13 year old boys attending same school , P sued
D for personal injury damages . P claimed D committed trespass to the person by intentionally
jumping on him and D contended P was carrying bag over his shoulder D pulled bag over
shoulder in act of ordinary horseplay . Denied jumping on P so it was said they were just
messing around so had not committed any unlawful act . For this claim to be successful P
would need to prove there was intentional touching or contact by D and it was hostile , didn’t
have to prove intention of injury.
- Touching clothing can amount to battery - Thomas 1985
- Battery can be committed by omission - DPP V Santana Bermudez where police stopped
somebody and asked if they have anything in pockets which may be dangerous to which he
replied no . When she reached into the pocket there was a needle .
- Battery can be a continuing act - Fagan , somebody drove onto policeman’s foot but hadn’t
realised he did that , PO asked him to get off his foot and he refused and at this point we
have the battery . Once he realised he was on the foot and refused to get off that’s where it
became criminally liable . Battery lasted for duration he was on POs foot
- No need for direct application of force - DPP v K ( 15 yr old schoolboy left science class to
wash hands after spilling sulphuric acid , took with him testable of acid . Hearing footsteps
approaching in a panic he poured the acid into a hot air dryer. Returned to class intending to
clean out acid , in meantime next user was squirted in face by acid and scarred. Here no body
to body contact but force applied ) , Haystead (punched woman who was holding a baby ,
baby falling on ground), Braham ( spitting in face )
MR = intention to apply unlawful force or subjective recklessness as to whether such force
may be applied (Venna)
Stated in Nelson 2013 that an allegation of battery doesn’t also include an allegation of
assault as in battery there doesn’t need to be apprehension of impending violence.
Pegram v DPP 2019 confirmed it was lawful for police officer to make moderate physical contact
with a person to get their attention.
S47 assault occasioning actual bodily harm - Committed by D assaulting V or battering
and causing V a level of injury amounting to ABH
S47 of OAPA 1861 provides :
- whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall
be liable to be imprisoned for any term not exceeding 5 years
- DPP v smith 2006 - D cut off Vs ponytail w/o her consent. No cuts or breaks in scalp or other
parts of skin however it was settled that evidence for external bodily injury or break in or
bruise to surface of skin not required for there to be an assault occasioning ABH. Applied
to all parts of body. Assault occasioning ABH might be committed with words/gestures alone
w/o need for physical contact at all.
AR = proof of technical assault or battery which in addition has caused bodily harm
- ABH as stated in miller is “ any injury which is calculated to interfere with the health and
comfort of the victim”. This would include minor cuts and bruises but in practice will not
charge ABH unless there is more serious injury (CPS charging standards for S47 e.gs of
harm include loss or breaking of tooth, temp loss of sensory functions , extensive bruising ,
minor fractures , minor cuts , psychiatric injury)
- Roberts concerting causation was said that charge of assault ocassioning actual bodily
harm the proper test of causation was whether the injury was something that could have
reasonably foreseen as consequence of what accused was saying/doing. Apply causation
in normal way for technical assault , for battery too ( result crimes ) but for S47 we have to link
assault/battery to level of harm that’s been caused by applying test in roberts.
- Can be physical or psychiatric harm i.e leading someone to having a mental condition -
Chan Fook states ABH can be psychiatric harm , confirmed in Ireland . Dhaliwal no evidence
she developed named psychiatric injury could not be liable for the death
- Cutting hair can be ABH - DPP v Smith
MR = savage and paramenter , mens rea same as for common assault or battery
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