Offences against the person

outline Covers 5 offences 1.Assault 2.Battery 3.Section 47 ABH 4.Section 20 gbh 5.Section 18 GBH with intent

Assault

Definition An act by which somebody intentionally or recklessly causes another person to apprehend immediate and personal violence this was confirmed in; Ireland 1997 Assault

Forms of assault Silent phone calls; Ireland 1997 Letters; Constanza 1997 Shaking of a fist; Stephens v Myers 1830 Showing a gun; Logdon 1976 Assault

Assault can be silence Ireland 1997 – The proposition that a gesture mat ammount to assault but that words can suffice is unrealistic and indefensible Assault

Effect of the act on the victim If the other person is not afraid then it is not assault – Lamb 1967 Fear has to be immediate Assault

Violence needs to be feared Smith 1983 – A peeping tom looked through v’s window at night – V feared violence as such the defendant was arrested Ireland and Constanza – In both cases v feared immediate violence through silence and stalking Immediate doesn't need to be instantaneous but imminent Assault

Unlawful violence Assault can be committed even where the force is a mere touch provided its unwanted No consent to violence is unlawful Exceptions are considered battery Assault

Mens rea Intention to cause the victim to fear violence Recklessness to whether the victim apprehends immediate violence Assault

Battery

Definition An act which leads to the application of unlawful force to another person. Although the use of the word force is misleading. such as in the case of; Collins v Wilcock 1984 Battery

Slightest of touch Force is misleading as it includes the slightest touch – Collins v Wilcock – Wood v DPP Case of Thomas established that by simply touching a persons clothes while they wear them is equivalent to touching them Battery

Continuous act Battery may be continuous Fagan 1981 – D parked his car on a police officers foot and was initially unaware – He then refused to move the car for 30 seconds after he was made aware of his action  initially the act was battery without intent but became an offence as soon as he refused to remove the vehicle from the foot of the officer Battery

Indirect act Battery can be indirect for example a prank (Martin) – D placed an iron bar over the handles of a theatres doors and yelled fire – In the panic that ensued several people were injured and D was convicted Other cases; – Haystead (2000) – DPP v K (1990) Battery

omissions Battery is the application of force and as such there are barely any authorities available Omissions constitute when d creates a dangerous situation which leads to the application of unlawful violence Battery

Unlawful force Force has to be unlawful Consent makes force lawful Self defence/ prevention of crime is also lawful Paternalistic battery is acceptable provided the force is reasonable A v UK Child Act 2004 means battery is not lawful on a child Battery

Self defence/ defence of another Where reasonable force is used self defence is lawful – Fraser v Dpp Force was lawful as the police had not lawfully arrested the defendant Battery

Battery without assault Occurs when the victim is unaware about the pending unlawful force – i.e where v is attacked from behind Battery

Mens rea Intent/ reckless as to whether unlawful force is applied D must intend or foresee the risk of unlawful force being applied to another Battery

Section 47 ABH

Statutory definition Whosoever shall be convicted of any assault occasioning actual bodily harm shall be liable to imprisonment for up to five years Offences Against the Person Act 1861 S.47 Section 47 ABH

The offence in general Any assault occasioning actual bodily harm Miller – abh is any harm or injury that interferes with health or comfort Harm is not just injury – cutting hair DPP v Smith 2006 – Mental injury Chan Fook 1994 – Loss of consciousness R v DPP 2003 – Fear Roberts/ Williams section 47 ABH

Mens rea No reference in the statute as to the mens rea however the courts have held that the mens rea for common assault is sufficient D must intend or be subjectively reckless as to v fearing unlawful force D doesn't need to intend or be reckless as to whether ABH is caused i.e Roberts Decision made in Roberts was confirmed by both Savage and parmenter 1991 section 47 ABH

Section 20

What the statute says Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm on another person either with or without a weapon or instrument shall be guilty of an offence and shall be liable to imprisonment for no more than five years Offences Against the Person Act 1861 S.20 section 20

Summary of offence Commonly known as malicious wounding Same max sentence as s.47 Requires greater degree of injury To be proved it must be shown that D: – Wounded – Inflicted gbh – Intended some injury – Was reckless to inflicting gbh section 20

wound A cut/ break of the whole skin Internal cut of the skin i.e cheek is sufficient Internal bleeding but no cut is not sufficient – i.e Eisenhower 1983  No cut means no wound  Cut must be of the whole skin as scratches are not wounding Broken bones are not considered a wound unless the skin is broken – Wood 1830 V’s collar bone was broken but his skin remained in tact section 20

Grievous bodily harm Harm doesn't need to be life threatening Dpp V Smith 1961 – gbh means ‘ really serious harm’ Saunders – To direct the jury there need only be serious harm Bollom – The severity of the injury should be assessed according to the vs sex and age Burstow – Serious psychiatric injury may be gbh Dica – Gbh can be biological section 20

Infliction of gbh ‘inflict’ is Widely interpreted Lewis 1974 – Threats are considered technical assault Burstow 1997 – ‘inflict’ means that it only has to be shown that d’s actions led to the victim suffering gbh – Decision meant that there was very little difference in the actus reus of S.20 and S.18 Lord hope – there is no difference between cause and inflict section 20

Mens rea ‘malicious’ is used by the act Cunningham 1957 – Maliciously doesn't require ill will towards the person but simply the Intention to cause harm Recklessness as to whether it should or should not occur Parmenter – Confirmed Cunningham reckless and applies to all offences that uses malicious in its definition – Although S.20 requires wound/gbh there is no need for D to foresee this level of injury Prosecution can prove either; Not necessary to prove that d has intent to cause or was reckless in causing serious harm section 20

Section 18

Statute definition Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm on another person with intent to do some grevious bodily harm or intend to resist or prevent lawful apprehension or detainer of any person shall be guilty of the offence Offences Against the Person Act 1861 S.18 Section 18

Outline of the offence Wounding with intent Needs to be shown that d: – Wounded – Inflicted gbh – Intended gbh – Acted recklesly Section 18

Actus reus Committed in two ways 1.Wounding 2.Causing GBH Words ‘wound’ and ‘gbh’ are the same as in S.20 Word ‘cause’ is very wide so it is only necessary to prove that the D’s act was a substantial cause of the wound or GBH Section 18

Mens rea D must prove to have intended to – Do some GBH – Resist or prevent lawful apprehension or detainer of a person Taylor 2009 – Intention to wound is not enough for the mens rea of S.18 Section 18

Intention to do some harm Maloney – Foresight of consequences is no intention – Only evidence from which intent can be inferred Nedrick & Woolin – Intention cannot be found unless the harm caused was a virtual certainty as a result of D’s actions and the D realised this was so Applicable principle to S.18 Section 18

Resisting/ preventing arrest When D tries to resist arrest intention to injure is lower Prosecutor needs to prove intention to resist Morrison 1989 – Recklessness to cause injury only needs to be proved Section 18

Reforms

Proposed reforms Home office draft bill 1998 “ Violence; Reforming OAPA 1861” proposed; 1.Replacing S.18 with “serious injury” 2.Replacing S.20 with “reckless serious injury” 3.Replacing S.47 with “intentional or reckless injury” 4.Replace assault and battery with “assault” Reforms

Criticism of reforms 1.The bills definition of “intentionally” would conflict with that of Woolin’s by D “knowing injury would occur in the ordinary course of events” rather than “ was it virtually certain to occur. Essentially meaning the test in Nedrick should be used 2.It deliberately omits a standalone offence of “Reckless injury” as the law commission said that it would over complicate the law 3.The bill makes intentional transmission of serious diseases an offence, not reckless transmission of a disease. Because the lc said it shouldn't criminalise reckless transmission of minor illnesses or those who carry diseases such as hiv 4.The bill defines injury to include mental/ physical injury yet fails to state what “serious” means Reforms

Cps charging guidlines

Actual bodily harm Cps guidelines state the following should be charged under S.47; – Loss of/ broken teeth – Loss of sensory functions – Extensive bruising – Displaced/broken nose – Minor fractures – Minor cuts that require treatment – Psychiatric injuries that are more than emotions Grievous bodily harm Cps stress that gbh means serious bodily harm and that it is the jury’s decision as to whether the harm is serious Examples of GBH/ Serious harm; – Injury resulting in permanent disability – Injury causing disfigurement – Broken or displaced limbs or bones – Psychiatric injuries