NON-FATAL OFFENCES AGAINST THE PERSON
Assault (max 6months imprisonment)
• Any conduct, intentionally or recklessly, causes V to apprehend imminent unlawful personal
violence
Actus Reus Mens rea
Conduct Any conduct causing the result Voluntary
Circumstance V is a person Knowledge
Result V apprehends an imminent Intention or
threat of unlawful force recklessness
Actus reus of assault
• Legal definition does not require any physical contract , actus reus satisfied when D causes V to
apprehend or believe V is about to suffer violence→ less concerned with conduct
• No apprehension of imminent violence= no assault e.g. motions to strike due to V asleep or
knows D is bluffing
• Unlawful personal violence= any non-consensual contact, with apprehension of such contract, V
does not need to believe violence is serious or cause injury. But not to interpret too widely e.g.
fear by watching scary film
• Imminence: immediate violence→ so future threats e.g. “will beat up next month” not assault.
Courts applied part subjective (V believes facts as such e.g. believes to be about to be shot by
fake gun→ still assault) and part objective approach (court questions if imminent e.g. V believes
to be shot in an hour) – Constanza (1997)
• Result can be caused indirectly: D causes V to apprehend imminent unlawful violence, e.g. by a
dog
• Words alone or omission: words make another apprehend violence (written/orally). Omission –
Ireland
• Conditional threats: mainly verbal assault e.g. “if coin lands on heads, I will hit you” – Tuberville v
Savage
Constanza [1997]
D harassed V over 20 months, sending threatening letters, writing on her front door and taking items
from her washing – V suffered from depression as a result. D charged with assault causing actual
bodily harm. D claimed letters could not have caused V to anticipate an immediate threat. Held guilty
of assault causing actual bodily harm, on basis that V was caused to apprehend violence at some
point not excluding the immediate future
R v Ireland [1998]
D made a series of silent telephone calls over three months to three different women, convicted
under s.47 Offences Against the Person Act 1861. Held: guilty, silence can amount to an assault and
psychiatric injury can amount to bodily harm.
Tuberville v Savage [1669]
The defendant put his hand on his sword and stated, 'if it were not assize-time, I would not take such
language from you'. Assize-time is when the judges were in the town for court sessions.
Mens rea of assault
Intention or recklessness→ to cause V to apprehend imminent unlawful violence
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,Battery (max 6months imprisonment)
• Unlawful physical contact with V
Actus Reus Mens rea
Conduct Any conduct causing the Voluntary
result
Circumstance V is a person Knowledge
Result Unlawful physical contact Intention or
with V recklessness
Actus reus of battery
• Infliction of unlawful personal violence, with the slightest amount of physical contact - Faulkner v
Talbot [1981]
• Has to have physical contact – Thomas (1985)
• Indirect contact – DPP v K (1990)
• Can be by omission, must show duty to act and breach – Santana-Bermudez v DPP (2004)
Faulkner v Talbot [1981]: Any touching with intention or recklessness without consent
Collins v Wilcock [1984]
• A police woman took hold of a woman's arm to stop her walking off. The woman scratched the
police woman and was charged with assaulting a police officer in the course of her duty.
• Held: The police woman's actions amounted to a battery. The defendant's action was therefore in
self-defence and her conviction was quashed.
DPP v K (a minor)[1990]
A 15 year old school boy took some acid from a science lesson, placed in air drier; another pupil used
the hand drier. The nozzle was pointing upwards and acid was squirted into his face causing
permanent scars. The defendant was charged under s.47 OAPA 1867. Held: guilty, application of
force can be indirect
Santana-Bermudez v DPP (2004)
D assured V, a policewoman, that he was not carrying any ‘sharps’ (hypodermic needles) before she
searched him. He was, and V was injured. D was charged with battery occasioning actual bodily
harm, offence that must be battery. Held: Ds omission was capable of giving risen to battery
Mens rea of battery
Intention or recklessness to unlawful violence voluntarily and knowing V is a person
Defences to assault and battery
• Lawful chastisement of children: allows parents/teachers to use physical force to discipline
children, codified in Section 58 of Children Act 2004→ does not apply to an offence more serious
than assault or battery. S.549(4) of Education Act 1996, member of school staff cannot rely on
defence for offence on a pupil for punishment
• Consent to assault and battery: with consensual contact e.g. shaking Vs hand, or consensually
causes V to apprehend contact by D motioning to shake hands, no liability
→Consent must be expressed or implied to D in a legally recognised manner; consent must be
effective with capacity, freedom, and information to make a choice
o Expressed and Implied Consent: consent not clear (expressed), and will be implied e.g. on
crowded train
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,Wood v DPP (2008)
D was restrained by V, a police officer, as he left a public house. V was not in the process of arresting
D, but restraining him to just establish identity. D resisted, and was charged for assault
Held: V was not entitled to restrain D in this manner outside a lawful arrest (no implied consent)
Effective consent
• Capacity: V may lack capacity to consent for various reasons e.g. mental disorder or learning
difficulties, infancy or temporary conditions e.g. intoxication – Burell v Harmer
• Informed consent: level of information required to measure; with a larger of potential harm,
there must be more knowledge to give informed consent – Konzani (2005)
• Consent procured by fraud
o Fraud of identity of D: impersonating someone else, characteristics or qualifications –
Richardson (1998)
o Fraud of nature of the act consented to – Dica (2004)
• Consent through duress: not effective consent if by threats (duress)
Burell v Harmer (1967)
D was charged with battery causing actual bodily harm, an offence which required proof of battery
after tattooing the arms of boys aged around 12years. D defence was that boys consented, having
actively instigated the tattooing
Konzani (2005)
D engaged in consensual unprotected sexual intercourt with three complainants. Each contracted
HIV, a condition that D was aware that he had but he had not informed the complainants Held: guilty
of inflicting GBH
Richardson (1998)
D suspended from practising dentistry, continued to treat patients. D was charged with assault
occasioning actual bodily harm in treatment of patients during suspension. Patients clear would not
consent if they knew D suspended
Held no fraud of identity, but rather of holding a license.
Dica (2004)
• D diagnosed as HIV positive, had unprotected sexual intercourse with two women, and
transmitted HIV.
• He claimed that both were aware of his condition and had consented to unprotected intercourse
with full knowledge of the risk. Held liable under s.20
Assault occasioning actual bodily harm, OAPA 1861, s.47 (Max 5 years sentence)
S47= where D commits an assault or battery that causes V to suffer from actual bodily harm
Actus Reus Mens rea
Conduct Any conduct causing the Voluntary
result
Circumstance V is a person Knowledge
Result V apprehends an imminent Intention or
threat of physical violence recklessness
OR
Physical contact is applied
and
V suffers from actual bodily
harm
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, ASSAULT OR BATTERY (BASE OFFENCE) + V SUFFERS ABH = S.47
Actus Reus of S47
Assault or battery, V suffers ABH
Occasioning
Prosecution must prove assault or battery occasioned ABH→ cause
Examples of ABH
• Scratches, grazes and abrasions
• Bruising and swelling
• Temporary loss of consciousness
• Cutting a substantial amount of hair
• Psychiatric injury – has to be recognised – Ireland
Ireland (1998)
Made silent phone calls to house phones to victims, but Vs apprehend possibility of immediate
unlawful violence. Ds conduct on remaining silent was conduct. Held: caused V to suffer psychiatric
harm, amounts to ABH
Mens rea of S47
Intention or recklessness as to making contact to V (battery)→ Assault or battery + ABH= S47
Lack of mens rea to cause ABH established in Roberts
Roberts (1971)
D made unwanted sexual advances towards V when driving her in his car. D tried to take off Vs coat
(battery), and this led to V jumping out of the moving car and sustaining grazes and concussion
(ABH). D charged for s47
Roberts now confirmed by Savage and Parmenter
Savage (1992)
D and V in a pub, D pours beer over V, glass slipped and cut Vs hand, intended battery, → convicted
of s.47
Parmenter (1992)
D held baby wrongly, and caused damage to bones→ guilty so s.47→ no means rea required for
causing ABH
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