Offences Against The Person Act 1861 & Common Law Non Fatal Offences Against the Person

SOME COMMON LAW, SOME STATUTORY OFFENCES Common assault and battery Assault occasioning actual bodily harm Unlawful wounding or inflicting grievous bodily harm Wounding or causing grievous bodily harm with intent to cause grievous bodily harm

ASSAULT When the accused “…intentionally or recklessly causes the victim to apprehend immediate physical violence.” No physical contact is required

Requirements for the assault: 1. Victim must be frightened 2. Threat is capable of being carried out immediately Actus reus: Causing the victim to apprehend immediate physical violence Mens rea: Intention or recklessness Smith v Superintendent of Woking Police Station [1985] – D entered the grounds of a house where young woman was living and peered through her bedroom window through a gap in her curtains. 11pm at night and the woman was ‘absolutely terrified’. D was found guilty of assault i.e. causing the victim to apprehend immediate physical violence, despite the fact he was outside.

R v Constanza [1996] – Repeated phone calls, some silent, to the victim. Scrawled graffiti on her door and watched her house from inside his car Court gave a very wide interpretation to the idea of ‘immediate violence’. Held: It was not essential that the victim was able to see the potential perpetrator of the violence. Conduct accompanying words was capable of making the words an assault. The fear was of violence sufficiently immediate to be described as the fear of immediate violence.

Assault can occur by words alone: Assault can be caused by silent phone calls as in the cases of R v Ireland [1997] and R v Burstow [1997] Lord Steyn: "an assault can consist of any act causing the victim to apprehend an immediate application of force upon her.“ What is important is the perception of the victim I’m gonna bash your brains in and I’m gonna be at your house in 2 minutes…

BATTERY Intentionally or recklessly inflicting unlawful force upon another person Unlawful force can include any touching whatsoever Can be situations of implied consent to battery Does not need assault to be a component part and can range from finger tip touch or brushing against someone to a killing

Actus reus: Applying unlawful physical contact to a person Mens rea: Intention or recklessness Cole v Turner [1705] - The lightest angry touch constitutes battery. A gentle touch made in close quarters with no ill intention is not a battery. A forceful or reckless touch, in close quarters is a battery

Touching a person’s clothing can amount to a battery provided that the contact is both unauthorised and the victim feels it R v Thomas [1985] - D, a school caretaker assaulted a 12-year-old after taking hold of the hem of her skirt. Ackner LJ said obiter that there can be no dispute that if you touch a person’s clothes while he is wearing them, that is equivalent to touching him.

Haystead v DPP [2000] – D puched a woman in the face whilst she was holding her three month old baby, this caused her to drop the child and the baby hit his head on the floor. D was convicted of battery against the child showing that it can be indirect as well as direct Intentionally or recklessly inflicting unlawful force upon another person

There is the presumption that people impliedly consent to battery in the touching that occurs in everyday life Collins v Wilcock [1984] – Police officer thought a woman was soliciting and started to question her, woman walked away and police officer grabbed her arm to stop her. Woman scratched police officer’s hand. Battery on the part of the police officer and the woman acted in self defence as a result (Cole v Turner [1705])

CONSENT TO BATTERY? Consent to assault or battery can act as a defence R v Donovan [1934] – A woman gave D consent to hit her with a stick for sexual gratification. He went too far and ended up causing her ABH. His defence that the woman had consented to the beating failed as he had exceeded what she had consented to.

COMMON ASSAULT & BATTERY Assault and battery are both common law offences Technically separate offences but the term ‘common assault’ used to cover the both occurring at the same time (s39 Criminal Justice Act 1988) Other types of assault have been created by statute CPS Guidelines: “Injury amounts to no more than a graze, scratch, abrasion, bruise (inc black eye), swelling, reddening of the skin or a superficial cut”

ASSAULT OCCASIONING ACTUAL BODILY HARM (ABH) Governed by s47 Offences Against the Persons Act 1861: “Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable…” This can include assault, common assault or battery alone Actus reus: An assault or battery occasioning actual bodily harm Mens rea: Intention or recklessness

Causing ABH normally involves contact between attacker and victim but not always the case Prosecution need to show that D is the factual cause of V’s injuries ‘But for’ test – injuries would not have been suffered but for D’s actions R v Roberts [1971] – Whilst driving his car he touched the breasts of his passenger, she jumped from the car and suffered injuries. Roberts argued that he decision to jump from the car broke the chain of causation Court of Appeal did not allow his argument on the ground that the action was a reasonably foreseeable consequence of his actions – only if the victims actions were ‘daft’ would it be possible for the chain to be broken

WHAT IS ACTUAL BODILY HARM? R v Miller [1954] – “…an injury that is likely to interfere with the health and comfort of the victim” CPS Guidelines for S47 OAPA 1861: Loss or break of tooth Temporary loss of sensory functions Extensive bruising Minor fractures Cuts requiring stitches erson/#a01

Cutting of hair can also amount to ABH… DPP v Smith [2006] – D pinned his ex-girlfriend down and cut off her pony-tail. He was charged with and convicted of assault occasioning ABH under s47 OAPA He appealed but his conviction was upheld – “…body, for the purposes of the word ‘bodily’ in s47…includes all parts of the body including the hairs on the scalp…where a significant portion of a woman’s hair is cut off without consent this is a serious matter amounting to actual (not trivial or insignificant) bodily harm.”

We know that harm can be psychiatric as well as physical as seen in the cases of R v Ireland [1996] and R v Burstow [1996] Must be proven by medical evidence – R v Chan- Fook [1994]: To amount to actual bodily harm, the injury need not be permanent but should not be so trivial as to be wholly insignificant. Feelings of fear and panic are emotions rather than an injury and without medical evidence to support recognised psychiatric condition a conviction for ABH could not stand. The harm caused is important in determining which offence D will be charged with.

Can generally be no effective consent by V to ABH: R v Brown and Others [1993] - Group of sadomasochists were convicted of s47 and s20 (s20 Unlawful Wounding or Inflicting GBH) OAPA 1861 offences. They had consented to the acts but court held that injuries were so serious so as to negate consent.

There are anomalies depending on the court’s perception of the situation… R v Wilson [1996] - The appellant branded his initials on his wife’s buttocks with a hot knife. She had asked him to do so. Her skin became infected and she sought medical treatment from her doctor. The doctor reported the matter to the police and the husband was charged with ABH under s.47 Offences Against the Person Act The wife’s consent was valid. The branding was more akin to tattooing and cosmetic enhancement rather than infliction of pain for sexual gratification. The court further held that consensual activity between husband and wife in the privacy of the matrimonial home was not a matter for the courts. Also exceptions in the form of: Surgical intervention ‘Manly diversions’ (boxing, rugby etc) Rough horseplay (where no intent to harm)

UNLAWFUL WOUNDING OR INFLICTING GBH S20 OAPA 1861: “Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without a weapon or instrument, shall be guilty of an offence…” Wounding actus reus: Requires there to have been a break in all the layers of the victim’s skin e.g. where V is bleeding from a savage beating or cut from a knife C (a minor) v Eisenhower [1984]: Airgun pellet hit V in the eye causing the rupture of internal blood vessels leading to bloodshot eye. Not classed as wounding as it did not pierce all the layers of skin.

GBH actus reus: Really serious harm CPS Guidelines refer to injuries resulting in: Permanent disability or loss of sensory function More than minor permanent disfigurement Broken or displaced limbs or bones Substantial loss of blood (i.e. necessitating a transfusion) Lengthy treatment or incapacitation R v Brown and Stratton [1997] – the two Ds attacked Stratton’s father who was a undergoing gender reassignment and had turned up at Stratton’s place of work in a dress. They had been drinking and went round to V’s flat and beat her up causing broken nose, 3 lost teeth, swelling and lacerations to face and concussion. Court held this amounted to really serious bodily harm and so s20 rather than s47 OAPA

Mens rea: ‘Maliciously’ used to mean intentionally or recklessly. Intention or recklessness does not have to be in relation to wounding or GBH and applies only to some kind of physical harm Necessary to show that D was aware of the possibility of causing V some physical harm, although it did not have to be serious R v Martin (1881) - The defendant placed an iron bar across the exit of a theatre and then shouted fire. Several people were severely injured. He was charged under s.20 OAPA He contended that the word inflict required the direct application of force. Indirect application of force was sufficient for a conviction under s.20 meaning that use of the word ‘inflict’ in AR can apply to indirect as well as direct force.

WOUNDING OR CAUSING GBH WITH INTENT TO CAUSE GBH S18 OAPA 1861: “Unlawfully and maliciously by any means whatsoever to wound or cause any grievous bodily harm to any person…shall be guilty…” Actus reus: Same as s20 offence Mens rea: Requires specific intent of causing GBH; recklessness is not enough Although GBH commonly assumed to mean ‘really serious bodily harm’ court has held that judge’s direction need not include the word ‘serious’.

R v Saunders [1985] – D approached V and asked him what his problem was. He said he didn’t have a problem; D replied he would give him one and punched him in the face breaking his nose. Although not convicted of s18 as he did not have the specific intent, D was convicted of ‘inflicting GBH’ under s20 after judge directed that ‘…broken nose, on any view, was serious bodily harm…’ Commentary (L. Norman Williams, Barrister.) The word "really" is, as the Oxford Dictionary has it, "used to emphasise the truth or correctness of an epithet or statement." It means no more than "actually" or "as a matter of fact." In the context it does not add anything to "serious" but emphasises to the jury that the harm caused must be - actually or really - serious.