Criminal - Non-fatal Offences

Question 1

Define assault.

Answer 1

CL
Act by which a person either intentionally or recklessly causes another to apprehend immediate and unlawful violence.
Ireland v Burstow, per Lord Hope

S.47
Intentionally or recklessly committing an act against another which occasions ABH

Question 2

Define battery

Answer 2

An act by which a person intentionally or recklessly INFLICTS unlawful personal violence upon another. CL.

Question 3

The 5 statutory provisions?

Answer 3

S.47 assault occasioning ABH
S.20 wounding or inflicting GBH
S.18 wounding or inflicting GBH with intent

S.23 administering poison so as to endanger life
S.24 administering poison with intent.

Question 4

Which two cases set out the definition of CL assault and battery?

Answer 4

Fagan
Assault = intentionally or recklessly causing another to apprehend immediate unlawful force.
Battery = application of unlawful force to another without their consent

Santana-Bermudez
Battery case but highlighted that commission through omission (didn’t reveal sharps) can be enough for assault and battery.

Question 5

Which case was about silent phonecalls? What was the point of law?

Answer 5

Ireland v Burstow
Silence can covey the fear of unlawful act violence
Only the application of physical (not psychological) damage will suffice

Ireland - s.47 psychological damage (ABH) inflicted
Burstow - s.20 conviction since he had followed her too

Question 6

What may negate an assault?

Answer 6

Words
Turberville v Savage
Sword
I would run you through with my sword if it weren’t for the fact..
He had qualified his statement, therefore fear of immediate physical force was not reasonable.

Question 7

Which case is the authority for the fact apprehension will be judged objectively?

Answer 7

Beasley
An unusually sensitive person will not be said to have apprehended violence if a reasonable person in their circumstances would not have done the same.

Question 8

Will it matter if D is not actually able to carry out the threat of violence?

Answer 8

No. So long as D convinces V of the fact he will (even if he actually cant) then assault
Logdon v DPP

Question 9

Which case is the authority for the fact apprehension will be judged objectively?

Answer 9

Beasley
An unusually sensitive person will not be said to have apprehended violence if a reasonable person in their circumstances would not have done the same.

Question 10

Will it matter if D is not actually able to carry out the threat of violence?

Answer 10

No. So long as D convinces V of the fact he will (even if he actually cant) then assault
Logdon v DPP

Question 11

For assault can the fear of violence be extended over a long period of time?

Answer 11

Yes
Constanta
‘Immediate’ is construed widely for assault - can be fear of violence over an extended period, provided it covered violence in the immediate future.
In this case D followed V for 2 years, bombarded her with letters and phonecalls

Smith v Woking superintendent
Woman in night apparel opened window to see neighbour looking in.
Violence was immediate, as was the apprehension.
So wide definition of immediacy.

Question 12

Mens rea for assault and battery?

Answer 12

Intentionally (Moloney, Lord Bridge) or recklessly (Cunningham) causing v to apprehend immediate unlawful force (assault) or the application of unlawful force to a person without their consent (battery)
Venna
Test for recklessness: D must have been SUBJECTIVELY aware of the risk yet disregarded that risk and gone ahead anyway.

Savage - love rivalry beer glass bounce, cut wrist.muse for s.47 and s.20 mens rea.
Lord Ackner said it is not necessary to foresee the actual/type of harm, but must foresee SOME harm
Harm is that’s usual consequence of the action.
So have to show assault and that it was intentionally or recklessly caused.

Question 13

What must the application of force be/not be for battery?

Answer 13

Contact through clothing is sufficient
Thomas, per Ackner LJ

It need not be hostile or aggressive or rude
Faulkner

May be indirect
Haystead (struck V while holding baby: indirect harm to baby)
DPP v K (acid in the hand dryer, planned to remove but didn’t)

Ordinary, everyday contact is not unlawful
Collins v Wilcock

Omissions can amount to battery where continuous (Fagan, Santana-Bermudez)

Question 14

S.47
What is it?
Three examples?

Answer 14

Assault (Ireland and Burstow) occasioning (need in law and in fact causation - White , however D’s act does not need to have been the only cause but must be an operating or substantial cause (Pagett) and more than minimal (Cato)) ABH

Three examples of ABH:
Temp loss of consciousness or function (T v DPP)
Recognised psychiatric injury (Chan-Fook)
Cutting off someone’s hair (DPP v Smith)

Mens res is the same as for assault and battery - intention or recklessness
Savage. Some harm, not the type, must be foreseen.

Question 15

S.20
What is it?
Mens rea?

Answer 15

Unlawfully wounding (both layers of skin must be broken, Eisenhower, internal bleeding not enough) or inflicting GBH.

Inflict
An assault isn’t required (Wilson branding buttocks, consent allowed as a defence), can be transmission of an STD (Dica). V can never consent to the deliberate infection of HIV (Konzani). But V can consent to the RISK of becoming infected, if this consent is informed.
In Golding 2014 incurable herpes was GBH - couldn’t be s.47 as no assault, so was s.20.

GBH
Can take into account the age and health of V - look at the total harm caused by the injuries (Bollom).
Can include a recognised psychiatric injury (Ireland and Burstow)

Mens rea: maliciously intentionally or recklessly causing GBH. Only SOME harm need be foreseen (savage)
(Intention Moloney, Recklessness Cunningham)

Question 16

S.18

What is it? What’s the difference with s.20?

Answer 16

Wounding or causing GBH with intent
Actus: wound (Eisenhower both layers of skin), cause (Wilson inflict, doesn’t matter if direct or indirect) GBH (serious or really serious harm).

Mens - with intent - different to s.20 since have to intend to commit really serious harm, not just some harm. Recklessness will not suffice.

Question 17

What is the reform point to remember for offences against the person?

Answer 17

Law Com report 361, November 2015
Correspondence principle. Recommends that the harm foreseen should be matched with the harm realised. So effectively replacing Savage for the mens rea element.
Idea = make sure that the harm done genuinely reflects the defendant’s fault.
S.18 intent to cause GBH
S.20 recklessly causing GBH. Must have foreseen a serious RISK of harm.
Prediction: Will lead to fewer convictions for more serious offences.

Want to introduce ‘aggravated assault’ to replace s.47
Simplify the endangerment offences (23 and 24)
So battery to become ‘physical assault’ and CL assault to become ‘threatened assault’
Definition of injury should include ‘Disease’ (codifies Dica and Konzani) but should not include mental harm other than recognised psychiatric conditions. This suggestion is a little unclear - some have pointed out that coming to work with a cold (a disease) could make you criminally liable!