NON-FATAL OFFENCES AGAINST THE PERSON

11

Non-fatal offences against the person

AIMS AND OBJECTIVES

After reading this chapter you should be able to:

Understand the actus reus and Menes Rea of common assault

Understand the actus rues and Menes Rea of occasioning actual bodily harm (s 47)

Understand the actus reus and mens rea of malicious wounding/inflicting grievous bodily harm (s 20)

Understand the actus reus and mens rea of wounding or causing grievous bodily harm with intent (s 18)

Understand factors which may aggravate an assault

Analyse critically the law on non-fatal offences against the person

Apply the law to factual situations to determine whether there is liability for non-fatal offences against the person

student mentor tip

“Reflecting on the actus reus and mens rea aspect of all new areas of criminal law you study will ensure you grasp the basics of criminal law thoroughly.” Gayatri University of Leicester

The main offences are set out in the Offences Against the Person Act 1861 (OAPA). This Act merely tidied up the then existing law by putting all of the offences into one Act. It did not try to create a coherent set of offences, and as a result, there have been many problems in the law. There have been many proposals for reform. In 1980, the Criminal Law Revision Committee made recommendations in its 14th Report, Offences Against the Person, Cmnd 7844 (1980). The Law Commission adopted these ideas, first in its Draft Criminal Code (1989) and then in 1993 in its report Legislating the Criminal Code: Offences against the Person and General Principles. In February 1998 the Home Office issued a Consultation Document, Violence: Reforming the Offences Against the Person Act 1861. This pointed out that the 1861 Act ‘was itself not a coherent statement of the law but a consolidation of much older law. It is therefore not surprising that the law has been widely criticised as archaic and unclear and that it is now in urgent need of reform’. The consultation document included a draft Bill (see section 11.5). Despite all of this, Parliament, as yet, has not reformed the law.

The main offences are based on whether the victim was injured; if there were injuries, their level of seriousness; and the intention of the defendant. The main offences, in ascending order of seriousness, are

assault — contrary to s 39 of the Criminal Justice Act 1988

battery — contrary to s 39 of the Criminal Justice Act 1988

assault occasioning actual bodily harm — contrary to s 47 OAPA

malicious wounding or inflicting grievous bodily harm — contrary to s 20 OAPA

wounding or causing grievous bodily harm with intent — contrary to s 18 OAPA.

11.1 Common assault

There are two ways of committing this:

assault

battery

Assault and battery are common law offences. There is no statutory definition for either assault or battery. However, statute law recognises their existence, as both of these offences are charged under s 39 Criminal Justice Act 1988 which states:

SECTION

‘39 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 imprison-ment for a term not exceeding six months, or to both.’

The definition of both assault and battery, therefore, come from case law. In Collins v Wilcock (1984) 3 All ER 374, Goff LJ gave the standard definitions:

JUDGMENT

‘The law draws a distinction … between an assault and a battery. An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person; a battery is the actual infliction of unlawful force on another person.’

As can be seen, the act involved is different for assault and battery. For assault there is no touching, only the fear of immediate, unlawful, force. For battery there must be actual force. There are often situations in which both occur. For example, where the defendant approaches the victim shouting that he is going to ‘get him’, then punches the victim in the face. The approaching and shouting are an assault, while the punch is the battery. As the act is different for each, it is easier to consider assault and battery separately.

11.1.1 Actus reus of assault

An assault is also known as a technical assault or a psychic assault. There must be

an act

which causes the victim to apprehend the infliction of immediate, unlawful, force

Act

An assault requires some act or words. In Fagan v Metropolitan Police Commissioner (1968) 3 All ER 442, where the defendant failed to remove his car from a police officer’s foot, the court thought that an omission was not sufficient to constitute an assault. However, they decided that there was a continuing act in this case (see section 11.1.2). In Lodgon v DPP (1976) Crim LR 121, D opened a drawer in his office to show another person that there was a gun in it, which D said was loaded. In fact the gun was a fake. The actions of D were held to amount to an assault.

Words are sufficient for an assault. These can be verbal or written. In Constanza (1997) Crim LR 576, the Court of Appeal held that letters could be an assault. D had written 800 letters and made a number of phone calls to the victim. The victim interpreted the last two letters as clear threats. The Court of Appeal said that there was an assault, as there was a ‘fear of violence at some time, not excluding the immediate future’. In Ireland (1997) 4 All ER 225, it was held that even silent telephone calls can be an assault. It depends on the facts of the case.

Apprehend immediate unlawful force

The important point is that the act or words must cause the victim to apprehend that immediate force is going to be used against them. There is no assault if the situation is such that it is obvious that the defendant cannot actually use force. For example, where the defendant shouts threats from a passing train, there is no possibility that he can carry out the threats in the immediate future. It was decided in Lamb (1967) 2 All ER 1282 that pointing an unloaded gun at someone who knows that it is unloaded cannot be an assault. This is because the other person does not fear immediate force. However, if the other person thought the gun was loaded, then this could be an assault.

Fear of immediate force is necessary; immediate does not mean instantaneous, but ‘imminent’, so an assault can be through a closed window, as in Smith v Chief Superintendent of Woking Police Station (1983) Crim LR 323.

CASE EXAMPLE

Smith v Chief Superintendent of Woking Police Station (1983) Crim LR 323

D got into a garden and looked through the victim’s bedroom window on the ground floor at about 11 pm. The victim was terrified and thought that he was about to enter the room. Although D was outside the house and no attack could be made at that immediate moment, the court held that the victim was frightened by his conduct. The basis of the fear was that she did not know what D was going to do next but that it was likely to be of a violent nature. Fear of what he might do next was sufficiently immediate for the purposes of the offence.

The same line of reasoning was taken in Ireland (1997) regarding the fear that a telephone call might generate. Lord Steyn in the House of Lords said

JUDGMENT

‘It involves questions of fact within the province of the jury. After all, there is no reason why a telephone caller who says to a woman in a menacing way “I will be at your door in a minute or two” may not be guilty of an assault if it causes his victim to apprehend immediate personal violence. Take now the case of the silent caller. He intends by his silence to cause fear and he is so understood. The victim is assailed by uncertainty about his intentions. Fear may dominate her emotions, and it may be the fear that the caller’s arrival at her door may be imminent. She may fear the possibility of immediate personal violence. As a matter of law the caller may be guilty of an assault: whether he is or not will depend on the circumstance and in particular on the impact of the caller’s potentially menacing call or calls on the victim.’

The force which is threatened must be unlawful. If it is lawful, there is no offence of common assault. When force is lawful or unlawful is discussed in detail under battery at section 11.1.2.

11.1.2 Actus reus of battery

The actus rues of battery is the actual infliction of unlawful force on another person. Force is a slightly misleading word as it can include the slightest touching, as shown by the case of Collins v Wilcock (1984).

CASE EXAMPLE

Collins v Wilcock (1984) 3 All ER 374

Two police officers saw two women apparently soliciting for the purposes of prostitution. The appellant was asked to get into the police car for questioning but she refused and walked away. As she was not known to the police, one of the officers walked after her to try to find out her identity. She refused to speak to the officer and again walked away. The officer then took hold of her by the arm to prevent her leaving. She became abusive and scratched the officer’s arm. She was convicted of assaulting a police officer in the execution of his duty. She appealed against that conviction on the basis that the officer was not acting in the execution of his duty but was acting unlawfully by holding the defendant’s arm as the officer was not arresting her. The court held that the officer had committed a battery and the defendant was entitled to free herself.

Goff LJ said in his judgment:

JUDGMENT

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‘The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to battery…. As Blackstone wrote in his Commentaries, “the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner.” The effect is that everybody is protected not only against physical injury but against any form of physical molestation.’

Goff LJ also pointed out that touching a person to get his attention was acceptable, provided that no greater degree of physical contact was used than was necessary but that while touching might be acceptable, physical restraint was not. He also said that ‘persistent touching to gain attention in the face of obvious disregard may transcend the norms of acceptable behaviour’.

Even touching the victim’s clothing can be sufficient to form a battery. In Thomas (1985) 81 Cr App Rep 331, D touched the bottom of a woman’s skirt and rubbed it. The Court of Appeal said, obiter, ‘There could be no dispute that if you touch a person’s clothes while he is wearing them that is equivalent to touching him’.

Hostility

There are conflicting case decisions on whether there needs to be any element of hostility in a battery. In Faulkner v Talbot (1981) 3 All ER 468, Lord Lane CJ said that a battery ‘need not necessarily be hostile’. However in Wilson v Pringle (1986) 2 All ER 440, a civil case, in which one schoolboy sued another for injuries caused when they were fooling around in the corridor at school, it was suggested that the touching must be ‘hostile’. Croome-Johnson LJ in the Court of Appeal said:

JUDGMENT

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‘In our view the authorities lead to the conclusion that in a battery there must be an inten-tional touching or contact in one form or another of the plaintiff by the defendant. That touching must be proved to be a hostile touching. That still leaves unanswered the question, when is a touching to be called hostile? Hostility cannot be equated with ill-will or malevolence. It cannot be governed by the obvious intention shown in acts like punching, stabbing or shooting. It cannot be solely governed by an expressed intention, although that may be strong evidence. But the element of hostility, in the sense in which it is now to be considered, must be a question of fact for the tribunal of fact.’…

In a later civil case, F v West Berkshire Health Authority (1989) 2 All ER 545, Lord Goff doubted whether there was a requirement that the touching need be hostile. Yet in Brown (1993) 2 All ER 75, a case on sadomasochism (see section 11.2.3), Lord Jauncey in the House of Lords approved the judgment of Croome-Johnson LJ in Wilson v Pringle (1986). However, he added that if the defendant’s actions are unlawful, they are necessarily hostile. This appears to remove any real meaning from ‘hostility’ in relation to battery as the key element of a battery is the application of unlawful force.

Continuing act

A battery may be committed through a continuing act, as in Fagan v Metropolitan Police Commander (1969).

CASE EXAMPLE

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Fagan v Metropolitan Police Commander (1969) 1 QB 439; (1968) 3All ER 442

D parked his car with one of the tyres on a police officer’s foot. When he parked he was junaware that he had done this, but when the police officer asked him to remove it, he irefused to do so for several minutes. The court described this as ‘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’.

Indirect act

A battery can also be through an indirect act such as use of a booby trap. In this situation the defendant causes force to be applied, even though he does not personally touch the victim. This occurred in Martin (1881) 8 QBD 54, where the defendant placed an iron bar across the doorway of a theatre. He then switched off the lights. In the panic which followed, several of the audience were injured when they were trapped and unable to open the door. Martin was convicted of an offence under s 20 of the OAPA 1861. A more modern example is seen in DPP v K (1990) 1 All ER 331.

CASE EXAMPLE

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DPP v K (1990) 1 All ER 331

D, a 15-year-old schoolboy, without permission took sulphuric acid from his science lesson to try its reaction on some toilet paper. While he was in the toilet he heard footsteps in the corridor, panicked and put the acid into a hot air hand drier to hide it. He returned to his class intending to remove the acid later. Before he could do so another pupil used the drier and was sprayed by the acid. The defendant was charged with assault occasioning actual bodily harm (s 47). The magistrates acquitted him because he said he had not intended to hurt anyone (see section 11.2.2 for the mens rea of s 47).

The prosecution appealed by way of case stated to the Queen’s Bench Divisional Court. On the point of whether a common assault (remember this includes both an assault and a battery) could be committed by an indirect act, Parker LJ said:

JUDGMENT

‘The position was correctly and simply stated by Stephen J in R v Clarence (1888) 22 QBD 23 where he said: “If man laid a trap for another into which he fell after an interval, the man who laid the trap would during the interval be guilty of an attempt to assault, and of an actual assault as soon as the man fell in.”

In the same way a defendant who pours a dangerous substance into a machine just as truly assaults the next user of the machine on.’ Another example of indirect force occurred in Haystead v Chief Constable of Derbyshire (2000) Crim LR 758, where the defendant caused a small child to fall to the floor by punching the woman holding the child. The defendant was found guilty because he was reckless as to whether his acts would injure the child. It is worth noting that, in this case, the conviction could also be justified by the principle of transferred malice.

Criminal liability can arise by way of an omission, but only if the defendant is under a duty to act. Such a duty can arise out of a contract or a relationship, from the assumption of care for another or from the creation of a dangerous situation (see Chapter 2, section 2.3). As the actus rues of battery is the application of unlawful force, it is difficult to think how examples could arise under these duty situations, but there has been one reported case, DPP v Santana-Bermudez (2003) EWHC 2908 where it appears possible that the Divisional Court accepted an omission as sufficient.

CASE EXAMPLE

DPP v Santana-Bermudez (2003) EWHC 2908

In this case a policewoman, before searching the defendant’s pockets, asked him whether he had any needles or other sharp objects on him. The defendant said ‘no’, but when the police officer put her hand in his pocket she was injured by a needle which caused bleeding. The Divisional Court held that the defendant’s failure to tell her of the needle could amount to the actus rues for the purposes of an assault causing actual bodily harm.

Kay J said:

JUDGMENT

‘…where someone (by an act or word or a combination of the two) creates a danger and thereby exposes another to a reasonable foreseeable risk of injury which materialises, there is an evidential basis for the actus rues of an assault occasioning actual bodily harm. It remains necessary for the prosecution to prove an intention to assault or appropriate recklessness.’

This appears to rely on the principle set in Miller (1983) 1 All ER 978 where D accidentally set fire to his mattress but failed to do anything to prevent damage to the building in which he was sleeping.

Another scenario which could make a defendant liable by way of omission under Miller is if there had been other people asleep in the room and D had not awakened them to warn them of the danger, and one of them had been hit by plaster which fell from the ceiling as a result of the fire, then there appears no reason why D could not have been charged with battery of that person. It is noticeable that in the draft Bill in 1998 (see section 11.5), it was proposed that only intentionally causing serious injury could be committed by omission; the equivalent of battery would not be able to be committed by omission.

Consent

Where the other person consents to the touching, then there is no battery as there is no unlawful force. This was illustrated by Slingsby (1995) Crim LR 570, which was a charge of involuntary manslaughter by an unlawful act.

CASE EXAMPLE

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Slingsby (1995) Crim LR 570

The defendant and the victim had taken part in sexual activity which was described as ‘vigorous’ but which had taken place with the victim’s consent. During this a signet ring which the defendant was wearing caused an injury to the victim, and this led to blood poisoning from which she died. The victim’s consent meant that there was no battery or other form of assault, and so the defendant was held to be not guilty of manslaughter as there was no unlawful act.

There must, however, be true consent. In Tabassum (2000) Crim LR 686, D had per-suaded women to allow him to measure their breasts for the purpose of preparing a database for sale to doctors. The women were fully aware of the nature of the acts he proposed to do, but they said they consented only because they thought that D had either medical qualifications or medical training. The Court of Appeal approved the trial judge’s direction when he said: ‘I should prefer myself to say that consent in such cases does not exist at all, because the act consented to is not the act done. Consent to a surgical operation or examination is not consent to sexual connection or indecent behaviour.’

Implied consent

There are also situations in which the courts imply consent to minor touchings. These are the everyday situations in which there is a crowd of people and it is impossible not to have some contact. In Wilson v Pringle (1986) it was held that the ordinary ‘jostlings’ of everyday life were not battery. This was also said in Collins v Wilcock (1984):

JUDGMENT

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‘Although we are all entitled to protection from physical molestation, we live in a crowded world in which people must be considered as taking on themselves some risk of injury (where it occurs) from the acts of others which are not in themselves unlawful.

Generally speaking, consent is a defence to a battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is (within reason) slapped.’

This also applies to contact sports. When a person takes part in sports such as rugby or judo, he is agreeing to the contact which is part of that sport. However, if the contact goes beyond what is reasonable, then it is possible for an offence to be committed. For example, a rugby player consents to a tackle within the rules of the game, but he does not consent to an opposition player stamping on his head. See Chapter 8, section 8.6, for a fuller discussion on consent as a defence.

Unlawful force

For a battery to be committed, the force must be unlawful. As seen above, the force may be lawful if the victim gives a genuine consent to it. Force may also be lawful where it is used in self-defence or prevention of crime (see Chapter 8, section 8.5). If the force used is reasonable in the situation, then the person using the force is not guilty of a battery. The police can use reasonable force to arrest a person, but if they are not arresting the person, then it is unlawful to use force, however slight. This was shown by Wood (Fraser) v DPP (2008) EWHC 1056 (Admin).

CASE EXAMPLE

Wood (Fraser) v DPP (2008) EWHC 1056 (Admin).

The police had received a report that a man named Fraser had thrown an ashtray at another person in a public house. The ashtray had missed the person but had been smashed. Three police officers went to the scene. They saw a man (the appellant, W) who fit the description of ‘Fraser’ coming out of the public house. One of the police officers took hold of W by the arm and asked if he was Fraser. W denied this and struggled, trying to pull away. At that point another officer took hold of W’s other arm. W was charged with assaulting two of the police officers while they were acting in the execution of their duty.

The police officer who had first caught hold of W’s arm said that he had done this in order to detain W, but was not at that point arresting him. It was held that as the officer had not arrested W, then there was a technical assault (battery) by the police officers. This meant that W was entitled to struggle and was not guilty of any offence of assault against the police.

Battery without an assault

It is possible for there to be a battery even though there is no assault. This can occur where the victim is unaware that unlawful force is about to be used on him, such as where the attacker comes up unseen behind the victim’s back. The first thing the victim knows is when he is struck; there has been a battery but no assault.

11.1.3 Mens rea of assault and battery

The mens rea for an assault is either an intention to cause another to fear immediate unlawful personal violence, or recklessness as to whether such fear is caused. The mens rea for battery is either an intention to apply unlawful physical force to another, or recklessness as to whether unlawful force is applied. So intention or recklessness is sufficient for both assault and battery.

In Venna (1975) 3 All ER 788, the Court of Appeal rejected arguments that only intention would suffice for the mental element of all assault-based offences:

JUDGMENT

‘We see no reason in logic or in law why a person who recklessly applies physical force to the person of another should be outside the criminal law of assault. In many cases the dividing line between intention and recklessness is barely distinguishable.’

The test for recklessness is subjective. For an assault, the defendant must realise there is a risk that his acts/words could cause another to fear unlawful personal violence. For a battery the defendant must realise there is a risk that his act (or omission) could cause unlawful force to be applied to another.

Assault and battery are classed as offences of basic intent. This means that if the defendant is intoxicated when he does the relevant actus rues he is reckless. This was considered by the House of Lords in DPP v Majewski (1976) 2 All ER 142, where D had consumed large quantities of alcohol and drugs and then attacked people in a public house and also the police officers who tried to arrest him. Lord Elwyn-Jones said:

JUDGMENT

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‘If a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition. His course of conduct in reducing himself by drink and drugs to that condition in my view supplies the evidence of mens rea, of guilty mind certainly sufficient for crime of basic intent. It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea in assault cases.’

This ruling can be criticised, as the point at which the drink or drugs is taken is a quite separate time to the point when the actus rues