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PBL of Criminal Law- W4A1 #CanISlapMykid Cr.Pb.
- To what extent does corporal punishment amount to an
assault or another offense (of a minor)?
14.3.1.2 Corporal punishment of children
Corporal punishment of children occurs primarily during the education process or at the hands of
parents or guardians. The United Nations Human Rights Committee noted in its General Comment
that the prohibition in Art 7 of the ICCPR also includes corporal punishment and excessive
chastisement as educative or punitive measures. Arguably a school dispensing corporalpunishment is
acting on delegated parental powers. The use of the tawse (belt), a then popular and widely accepted
form of punishment in Scottish schools, did not infringe the European Convention (Campbell and
Cosans v United Kingdom), the reason being that no evidence was led to show that the boy in
question had been degraded in his own eyes or those of his peers when given the belt.
The punishment was thus accepted as an integral part of the education process, neither reaching the
required level of severity nor the required mental anguish to occasion a violation (note that a violation
was found in respect of the right to education in accordance with parental philosophical convictions—
Art 1(2), First Protocol).
As with the right to life (Chapter 13), States may be under a positive obligation to act when an
individual’s rights under the salient articles are infringed. For example, in A v United Kingdom, the
European Court in Strasbourg opined that the United Kingdom had violated the Convention (Art 13) in
not providing an adequate remedy for an individual subjected to treatment by a non-State actor. The
treatment, severe beating (with an implement) of a child by a step-parent, was not within the direct
responsibility of the State. However, failure of the State to punish the offender (due to the invocation
of the defence of reasonable chastisement) opened the State to liability under the European
Convention.
Parental chastisement of children has not received the same level of condemnation. As yet, no
international body has found a State in breach of international human rights by not prohibiting
physical parental chastisement of children (or conversely by prohibiting it). Of their own
volition, and in accordance with popular support, many States have banned the practice
(particularly in Europe). This has led to the United Nations Committee on the Rights of the
Child urging States to consider their laws in this respect. Article 37 of the United Nations
Convention on the Rights of the Child does not expressly address the issue. Nevertheless, the
interpretation by the Committee, in light of State practice and evolving norms, is shaping the
law in this area. General Comment 8 (2006) addresses the right of the child to protection
from corporal punishment in considerable detail. The submission is that the spirit of the
Convention demands that any physical assault on a child is treated seriously by the State.
1
,Criminal Justice Act 1988
39Common assault and battery to be summary offences.
[F1(1)]Common assault and battery shall be summary offences and a person guilty of either of them shall
be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six
months, or to both.
[F2(2)Subsection (1) is subject to section 1 of the Assaults on Emergency Workers (Offences) Act 2018
(which makes provision for increased sentencing powers for offences of common assault and battery
committed against an emergency worker acting in the exercise of functions as such a worker).]
Fagan v Commissioner of Police of the Metropolis [1969] 1 Q.B.
439; [1968] 3 W.L.R. 1120
Summary: Assault; policeman, on; leaving car wheel on constable's foot
For an assault to be committed, both the elements of actus reus and mens rea must be
present at the same time. The actus reus is the action causing the effect on the victim's
mind. The mens rea is the intention to cause that effect. It is not necessary that mens rea
should be present at the inception of the actus reus; it can be superimposed on an existing
act. On the other hand, the subsequent inception of mens rea cannot convert an act which
has been completed without mens rea into an assault. A police constable asked the defendant
to park his car nearer the kerb. The constable stood in front of the car indicating a suitable
place. One of the wheels of the car came to rest on the constable's foot and the engine then
stopped. In answer to the constable's repeated requests to the defendant to move the car the
defendant merely used abusive language. The car engine stopped running but afterwards the
defendant somewhat reluctantly moved the car backwards, off the constable's foot. The
defendant was accused of assaulting the constable, contrary to the Police Act 1964 s.51(1) .
Held, that whether or not the placing of the wheel on the constable's foot was intentional or
not and whether or not the car engine was stopped by the defendant the charge was proved.
Held: James J described the distinction between an assault and a battery: ‘For an
assault to be committed both the elements of actus reus and mens rea must be
present at the same time. The ‘actus reus’ is the action causing the effect on the
2
, victim’s mind . . The ‘mens rea’ is the intention to cause that effect.’
The appeal failed. ‘On the facts found the action of the appellant may have been
initially unintentional, but the time came when knowing that the wheel was on the
officer’s foot the appellant (1) remained seated in the car so that his body through
the medium of the car was in contact with the officer, (2) switched off the ignition of
the car, (3) maintained the wheel of the car on the foot and (4) used words indicating
the intention of keeping the wheel in that position. For our part, we cannot regard
such conduct as mere omission or inactivity.
There was an act constituting a battery which at its inception was not criminal
because there was no element of intention, but which became criminal from the
moment the intention was formed to produce the apprehension which was flowing
from the continuing act.’
Assault is sometimes described as a statutory offence; why? Section 39 Criminal Justice Act
1988 governs mode of trial and sentence, but it does not define the offence, which is one defined
at common law.
Technical assault
1. 1. A technical or psychic assault. This offence need not involve physical contact.
2. 2. As a collective noun encompassing the separate crimes (DPP v Little (1992)) of
technical assault and battery. The correct term to cover the crimes together is
‘common assault’.
Definitional elements of a technical assault
This is a common law offence (see Haystead v CC of Derbyshire [2000]).
The elements of technical assault
Actus reus Mens rea
D does an act which causes V to D intends V to have the apprehension referred to in the actus re
apprehend (expect) the immediate or D foresees (ie is reckless) V might have such an
application of unlawful violence. apprehension, Venna[1975].
Examples of technical assault include a person raising his fists to another, meaning the other is afraid
that the fist is going to harm him. It could also involve, say, waving a knife or a gun in a threatening
manner. It does not, however, include these types of actions if the other (the ‘victim’) has no
expectation of being harmed there and then.
Lamb [1967] 2 QB 981
D, in jest, pointed a revolver at V, who joined in the game. The revolver had five chambers, in two of
which were live bullets, neither of which was in the chamber opposite the barrel when D pulled the
trigger. The chamber rotated before firing, a bullet was struck by the striking pin and V, D’s friend, was
killed. The Court of Appeal held that the prosecution had been unable to prove D had the mens
rea for assault (intention or recklessness to cause V to apprehend immediate unlawful harm). It also
seems the actus reus may not have been present as V did not fear force, believing it was a game.
The main issues
• Words alone may amount to a technical assault (Constanza [1997], see ‘Key cases’, p 63).
• Words may negate what would otherwise be an assault (eg where D raises a fist and says ‘I would hit
you but the police are nearby’ (Tuberville v Savage (1669)).
• Silence may amount to an assault (Ireland [1998]).
3
, • Immediate does not necessarily mean instantaneously. In Ireland [1998], fear of an attack in ‘a minute
or two’ was sufficient to amount to an assault. In Constanza [1997], a fear of an attack at any time in the
future, including the immediate future, was found to be sufficient for an assault.
• Apprehend does not mean fear. It means expect. The victim may be in fear, but V does not have to be
afraid for there to be an expectation. However, if V does not expect to be harmed, there is no
technical assault (Lamb (1967)).
Battery
A battery, also known as a physical assault, is an act or omission which always involves
physical contact between D and V (although it might be indirect), but it does not necessarily
include any harm to V.
Revision tip
If harm is caused, you should be considering an offence under the OAPA instead of, or as
well as, a battery.
The usual example of a battery is where D hits V, but a commonly cited example is an
unwanted kiss.
Definitional elements of a battery
Table 5.2 summarizes the elements of battery.
Table 5.2 The elements of battery
Actus reus Mens rea
D applies unlawful force D intends to apply unlawful force, or D foresees (ie D is reckless) that he migh
to V. apply unlawful force.
The main issues
• Any unlawful touching may be a battery (Thomas (1985)). It is no defence that the touching
was trivial (Austen v CPS[2016]).
• There need not be an injury for there to be a battery, but very minor injuries are
often charged as batteries rather than one of the statutory crimes (see the CPS Charging
Standards (which do not have legal effect)).
• It is possible to commit a battery indirectly, for example through an object or by pushing
someone into the victim (see ‘Key debates’ on p 65 and Haystead v CC of Derbyshire [2000]).
• It is possible to commit a battery by omission (DPP v K [1990], DPP v Santana-
Bermudez [2004], cf Fagan [1968]).
Avoiding common mistakes
• Do not confuse the mens rea for a battery (as to contact) with the harm caused for a s
47 offence, as to which there is no mens rea. Take your time to think about this and
understand it.
4
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