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OAPA Lecture notes (WEEK 19)
Criminal Law notes for WEEK 19 Kent Law School
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Criminal LawWEEK 19
LECTURES
Lecture 1 - OAPA Assault
● Non fatal offences are where the victims are not dead but suffered different degrees of
violence and use of force.
● Categories of non fatal offences against the person:
○ Common assault: Assault and battery
○ Assault occasioning actual bodily harm (ABH)
○ Wounding and inflicting grievous bodily harm (GBH)
○ Wounding and inflicting GBH with intent
What is common assault?
● Least serious non fatal OAP.
● Assault: D intentionally or recklessly causes V to apprehend immediate and unlawful
force.
○ Where somebody threatens someone with the use of force.
● Battery: D intentionally or recklessly applies unlawful force to V.
○ Any level/degree of force, doesn’t have to be serious or violent.
○ Actually using force against the person.
● Both assault and battery are charged under S39 of the Criminal Justice Act 1998.
○ But the section doesn’t actually define what amounts to assault or battery nor
does it define the elements.
○ S39 just defines the mode of trial and sentencing for common assault.
○ So common law (case law) defines and sets the requirements not the statute.
○ S39 says common assault is a summary offence; sentence up to 6 months of
imprisonment or a level 5 fine: up to 5k.
● For common assault, prosecution must prove beyond a reasonable doubt:
○ Actus reus: D did an act which caused V to apprehend immediate and unlawful
force.
■ Assault is only constituted through an act, but not an omission, failure to
act does not equal assault.
■ Force doesn’t need to be violent, the threat of touching may be sufficient.
● EX: Raising your fist or a weapon in someone’s direction, or
making threats.
■ Assault is a result crime, meaning the crime has to show an obvious
result.
■ Rules of causation apply which means that the action of the D was the
factual and legal cause of the unlawful assault.
● Factual: Had it not been for the action of the D, the V would not
have apprehended the use of force.
, ● Legal: D was the substantial and operating cause of the unlawful
result.
■ Assault is based on the understanding of the victim, not what the D
wanted to do. If there was no apprehension of force then there was no
assault.
● Empty threats may constitute assault.
○ (Logdon 1976) D jokingly threatened V with a toy gun; held
that this amounted to assault.
● If D makes a threatening gesture they can negate this by words.
○ (Light 1857) D raised a shovel against the wife and said if it
weren't for the police outside I’d shove your head in; but
courts said this didn’t negate the threat; but on other
occasions words can negate.
■ The threat of assault or apprehension needs to be based on the
immediate use of force. Threat of violence should not be about doing
smth in the distant future, but immediate force in a short period of time.
● Costanza (1997): D sent 100s of threatening letters to a woman
he was stalking; court held that the D must anticipate use of force
at some point, not excluding immediate future
● Ireland (1998): D made numerous silent calls to a number of
women to cause emotional distress and make them feel
threatened; victims didn’t know if he was even going to use force
or carry threats out; but courts held that this was enough to
establish assault
● Smith v CSI of Working Police Station (1983): D was standing
outside the victims house, looking at her through her window;
court held that this was sufficient for assault as she anticipated the
possibility of use of force
■ Threat of force needs to be unlawful; lawful force doesn’t equal assault
such as self defence, lawful arrest.
○ Mens rea: D’s intention or recklessness as to causing V to apprehend force.
■ Two ways to establish mens rea: Intention or recklessness.
● Intended to cause V to apprehend force.
● Recklessness as to causing V to apprehend force.
○ Subjective Cunningham recklessness: D personally
foresaw the possibility that V may apprehend violence and
took the risk unjustifiably.
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