Presentation on theme: "NON-FATAL OFFENCES AGAINST THE PERSON In this topic we will consider liability for: Assault Battery Section 47 Section 20 Section 18."— Presentation transcript:
NON-FATAL OFFENCES AGAINST THE PERSON In this topic we will consider liability for: Assault Battery Section 47 Section 20 Section 18
When answering questions involving non-fatal offences against the person, which offence should one start with?
ASSAULT AND BATTERY Both are statutory offences (DPP v Little (1991)). The charge is one of assault or battery contrary to s.39 Criminal Justice Act The term “common assault” encompasses assault and battery (Lynsey (1995)).
Assault Definition of assault – any act by which D intentionally/recklessly causes V to apprehend immediate and unlawful personal violence. Does this rule out assault by omission, see Fagan v Metropolitan Police Commissioner (1969)?
Words alone may constitute an assault (Constanza (1997). It is not a requirement of assault that V can see her assailant. Thus, an assault can be committed in the dark or over the telephone.
CONDITIONAL ASSAULTS Examples D says to V: (a) “I would hurt you if it wasn’t for… (b) “I will hurt you unless...”
In example 1, the words used by D make clear that, for whatever reason, he won’t do anything to V. There is, therefore, no assault. This is illustrated by Tuberville v Savage (1669).
In example 2, the words used show that D will hurt V unless V complies with the specified condition. D is, therefore, liable for an assault on V. This is illustrated by Read v Coker (1853).
How strictly is “immediate” interpreted? Immediate is interpreted quite flexibly, see Smith v Superintendent of Woking Police Station (1983) which adopted a broad view of immediate. Also see Constanza and Ireland & Burstow (1997) HL.
Battery Definition – any act by which D intentionally/recklessly inflicts unlawful personal violence.
Can contact with the clothes worn by a person constitute a battery? Relevant caselaw: Day (1845) - contact with the clothes worn by a person can constitute a battery as the person of V includes the clothes on his back. Thomas (1985) - it is not necessary that V should be able to feel the impact through his clothes.
Can a battery involve indirect violence? Although most batteries are directly inflicted, e.g. D hitting V, it is not essential that the violence be direct. See, for example, Martin (1881) and DPP v K (1990).
Mens rea of assault and battery Both assault and battery can be committed intentionally or recklessly, see Venna (1978). Recklessness is subjective, see Spratt (1990).
ASSAULT OCCASIONING ACTUAL BODILY HARM – S.47 OAPA 1861 Definition – Assault occasioning actual bodily harm Actus reus Assault means assault or battery For the meaning of occasioning, see Roberts (1971). For the meaning of actual bodily harm, see Chan-Fook (1994). Examples
It is possible to commit the s.47 offence by one or more silent phone calls (Ireland & Burstow).
Mens rea of s.47 Only the mens rea for assault or battery need be proven (Savage & Parmenter (1991) HL). It is not, therefore, necessary to prove D foresaw a.b.h. only that he intended or was subjectively reckless as to whether V apprehend or sustain unlawful personal violence.
S.20 Definition – unlawful and malicious wounding or inflicting gbh 2 offences created by the section - unlawfully wounding unlawfully inflicting gbh
Wounding offence For what constitutes a wound, see JCC v Eisenhower (1984)).
Grievous bodily harm It is sufficient for the trial judge to direct the jury that gbh simply means “serious harm” (Saunders (1985)). Examples
Is s.20, which refers to "inflict gbh," narrower in scope than s.18 which refers to "cause gbh"? In Ireland & Burstow, the court held that gbh can be inflicted where no personal violence has been applied directly or indirectly to the body of V - the application of physical force is not required. Thus, there does not appear to be any distinction between cause and inflict.
Mens rea The mens rea is “maliciously”. This means intentionally or subjective recklessness (Savage and Parmenter) as to some physical harm (Mowatt (1968)). Intention to frighten is not sufficient for s.20 (Sullivan (1981)).
S.18 Definition – unlawfully and maliciously wound or cause gbh with intent to do gbh. 2 offences created by the section – unlawfully wounding with intent and unlawfully causing gbh with intent Actus reus is same as for s.20 save that the word cause is used instead of inflict. Mens rea is intention only, recklessness will not suffice (Belfon (1976)). The test for intention is the same as for murder (Bryson (1985)).