Presentation on theme: "NON-FATAL OFFENCES AGAINST THE PERSON"— Presentation transcript:
1NON-FATAL OFFENCES AGAINST THE PERSON In this topic we will consider liability for:AssaultBatterySection 47Section 20Section 18
2When answering questions involving non-fatal offences against the person, which offence should one start with?
3ASSAULT 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 1988.The term “common assault” encompasses assault and battery (Lynsey (1995)).
4AssaultDefinition 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)?
5Words 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.
6CONDITIONAL ASSAULTS Examples D says to V: (a) “I would hurt you if it wasn’t for…(b) “I will hurt you unless...”
7In 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).
8In 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).
9How 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.
10BatteryDefinition – any act by which D intentionally/recklessly inflicts unlawful personal violence.
11Can 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.
12Can 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).
13Mens rea of assault and battery Both assault and battery can be committed intentionally or recklessly, see Venna (1978).Recklessness is subjective, see Spratt (1990).
14ASSAULT OCCASIONING ACTUAL BODILY HARM – S.47 OAPA 1861 Definition – Assault occasioning actual bodily harmActus reusAssault means assault or batteryFor the meaning of occasioning, see Roberts (1971).For the meaning of actual bodily harm, see Chan-Fook (1994).Examples
15It is possible to commit the s It is possible to commit the s.47 offence by one or more silent phone calls (Ireland & Burstow).
16Mens rea of s.47Only 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.
17S.20 Definition – unlawful and malicious wounding or inflicting gbh 2 offences created by the section -unlawfully woundingunlawfully inflicting gbh
18Wounding offenceFor what constitutes a wound, see JCC v Eisenhower (1984)).
19Grievous bodily harmIt is sufficient for the trial judge to direct the jury that gbh simply means “serious harm” (Saunders (1985)).Examples
20Is s. 20, which refers to "inflict gbh," narrower in scope than s 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.
21Mens 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)).
22S.18Definition – 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 intentActus 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)).