Non-Fatal Offences Against the Person
- Elliot Tierney
- Aug 20, 2022
- 7 min read
Common Law Assaults (Assault and Battery):
Max Sentence: 6 months imprisonment and/or fine. [1]
Mens Rea: Intention / Recklessness, but not Negligence.
In Venna, the police (P) were called to deal with a disturbance caused by V and others. The group refused to listen to P and P started to arrest them. V fought so violently that 4 officers were required to take him to the station. V alleges that he did not know that P was an officer or that he was being arrested. The court held V's recklessness to be sufficient mens rea.
Assault (Technical / Psychic Harm):
Actus Reus: Conduct causing V to fear the immediate application of unlawful force.
Threats in the distant future are not assaults.
In Smith, S entered a young woman’s (V) garden and peered through her window late at night. V screamed when she saw him but did not move. V did not move and phoned the police. For a criminal conviction, prosecution had to prove that S had assaulted V, therefore making his entrance into the garden unlawful.
Assault may be the ‘fear the possibility of immediate personal violence’.
In Ireland, I made a series of silent phone calls over 3 months to 3 different women. I convicted of ABH but appealed on the grounds that silence cannot amount to an assault and that psychiatric injury is not bodily harm. The conviction was upheld on both grounds.
Battery (Physical Harm):
Actus Reus: The infliction of unlawful force.
Everyday touching is not battery due to implied consent and necessity, unless V makes it clear that they do not wish to be touched. [2]
For an assault to be battery, it must have physical contact.
‘Plainly there was no battery as at no time was there any kind of physical contact between the appellant and his victims’. [3]
In Fagan, F accidentally drove onto a policeman’s foot while following his directions. When he realised what he had done, F did not do anything, leaving the car on the V’s foot. F was convicted of assaulting a police officer. The court held that an omission could not establish an assault. However, doing nothing was part of a ‘continuing act’, so F was guilty.
In Haystead, H punched V twice in the face while she was holding her child. The child fell and hit their head. H was convicted of assault by beating of the child (assault and battery). It was held that direct infliction was not necessary.
Offences Against the Person Act 1861:
s47 (Assault Occasioning) Actual Bodily Harm:
Common assault + causing ABH = ‘aggravated assault’
Defining ABH: ABH is when there was a common assault that caused harm that was more than a mere battery but is non-permanent.
Maximum Sentence: 5 years.
Mens Rea: Intention or Recklessness as to Common Assault.
There is no need to show that D intended or foresaw ABH. Therefore, the mens rea for ABH is a form of constructive liability. See Savage and Parmenter below.
Actus Reus: Assault or Battery which causes V to suffer ABH.
‘any injury which is calculated to interfere with the health and comfort of the victim’ [4] but does ‘not include mere emotions such as fear or distress nor panic’ [5].
In DPP v Smith, cutting off a ponytail was amounted to ABH.
In R v DPP, a brief loss of consciousness amounted to ABH.
In Roberts, R began making sexual advances towards V while driving her home. V opened the car door and jumped out as it was moving, sustaining injuries. R's ABH charge was upheld as V’s act was a natural consequence of R's actions. Therefore, there was no break in the chain of causation.
In Santana-Bermudez, S lied to a female police officer about the presence of a sharp object in his pockets during a search. P was injured and conviction upheld.
‘where someone (by act or word) creates a danger and thereby exposes another to a reasonably foreseeable risk of injury which materialises, there is the evidential basis for the actus reus of assault occasioning ABH’
Grievous Bodily Harm:
Defining GBH: A harm that is serious in regard to the particular victim.
V’s consent is not a valid defence to ABH or GBH. [6]
s20 Maliciously (Intentionally or Recklessly) Wounding or Inflicting GBH:
Maximum Sentence: 5 years.
Mens Rea: Intention / Recklessness causing some harm, even minor.
As with ABH, there is no need to show that D intended or foresaw GBH. Therefore, the mens rea for GBH is also a form of constructive liability.
In Savage and Parmenter, S threw beer over her husband’s ex-girlfriend in a bar. The glass slipped from S’s hand and V was cut. S was convicted of inflicting GBH. (In another case) P injured his new-born son, but claimed it was an accident. P was also convicted of inflicting GBH.
The court held that a defendant does not need to foresee or intend that their unlawful act might cause GBH. Foresight of some harm being inflicted is satisfactory. S's appeal was dismissed; P's conviction was changed to ABH.
Actus Reus: Either Maliciously Wounding or Inflicting GBH.
Wounding: Breaking of the outer and inner skin. [7]
Inflicting GBH: Causing ‘very serious harm’. [8]
Inflict can merely mean cause’, so no force has to be applied. The harm caused could be psychiatric [9] or indirect [10].
In Martin, M played a practical joke on theatre goers. He barred exits to the playhouse, cut the lights and proclaimed there was a fire to cause panic. Several Vs were injured. The court held that it was sufficient for ‘inflicting’ that M committed, an illegal act and it was reasonably foreseeable that that act may cause harm. His GBH conviction was upheld.
s18 Maliciously Wounding or Causing GBH, with Intent to Cause GBH:
Maximum Sentence: Life imprisonment.
Mens Rea: Intention to cause GBH.
The prosecution must show that the defendant had specific intent or that they appreciated a risk of it occurring and ignored it (subjectively). [11]
Actus Reus: Either Wounding with Intent or Causing GBH.
In Bollom, B marked a child (V) with a pen. He was charged with maliciously causing GBH with intent. The Court of Appeal found that the jury was entitled to find that this amounted to GBH due to the vulnerability of V.
The language of inflicting vs causing GBH means that the more serious offence (s18) has a wider causal basis. This has been heavily criticised over the years. Gardener argues that this is rational since the fault element (intention) is narrower. [12]
s16 Threats to Kill:
Maximum Sentence: 10 years.
Actus Reus: Making a threat.
Mens Rea: Intent to cause fear.
Facts:
Over 26,000 prosecutions annually for s18, 47 and 20 offences.
Over 100,000 prosecutions for common assault.
10% of prosecutions concern domestic violence.
Only around 1500 common assault cases go to the Crown Court. In reality, since most of the cases are dealt with in the magistrates’ court, many cases do not attract a judgement that amount anywhere close to the maximum sentence.
Other Statutory Offences:
Reform Proposals:
Home Office Draft Bill 1998:
Would seek to remove constructive liability.
Suggested Offences:
Intentionally causing serious injury.
Recklessly causing serious injury.
Intentionally or recklessly causing injury.
Intentionally or recklessly causing an impact on the body of another; or causing the other to fear that such impact is imminent
Law Commission [18]:
The Law Commission found that most charges of ABH were prosecuted in Magistrates court, so the maximum sentence was only ever 6 months, despite the 5-year legal maximum.
Suggested Offences:
Intentionally causing serious injury (Crown Court only, maximum life sentence).
Recklessly causing serious injury (Triable either at Magistrates or Crown Court, 7 years maximum).
Intentionally or recklessly causing injury (Triable either at Magistrates or Crown Court, 5 years maximum).
Assault causing injury (‘aggravated assault’, Magistrates Court Only).
Causing a physical impact intentionally or recklessly (Magistrates Court Only).
Psychic assault (Magistrates Court Only).
A disease should be counted as an ‘injury’.
Making hate-related crimes an aggravating feature of an offence. Can apply to any offence, rather than having separate offences.
Example Issues of Disease Transmission:
(Consent Given) Dica:
In Dica, D was diagnosed with HIV. Knowing this, they had unprotected sex with 2 women (V). The women became infected. D claimed that the women knew of the risk and consented. Vs disputed this. D was charged under s20.
The trail judge prevented the issue of consent to be put before the jury. The Court of Appeal held that this should have been put before the jury. If the victim does consent, D has a valid defence to s20. This creates an issue as you cannot consent to your own harm.
(Consent not Given) Konzani:
In Konzani, D informed that they had HIV and had unprotected sex with V. D did not disclose that they had HIV with V. D was convicted under s20.
There is a conflict between the public interest of avoiding the spread of illness and the public interest of protecting personal autonomy. As deceit is not ordinary social contact and informed consent was therefore not given, D could not rely on the judgement in Dica.
The discrepancies between these rulings potentially creates a perverse incentive to not get tested so that you cannot be liable. [21]
The less serious the infection, the more problematic it becomes as to whether the infected has a duty to disclose their disease as the harm will boarder between ABH and GBH more closely.
Alternatives:
Offences could concentrate on deception, not just a mere failure to disclose.
A separate offence for the unlawful transmission of disease.
Resources:
References:
[1] Criminal Justice Act 1988 s39
[2] Collins v Wilcock [1984] 1 WLR 1172 [3] R v Ireland and Burstow [1997] UKHL 34 [4] R v Donovan [1934] 2 KB 498 [5] R v Chan Fook [1994] 1 WLR 689 [6] R v BM [2018] EWCA Crim 560
[7] JCC v Eisenhower [1983] 3 All ER 230 [8] DPP v Smith [1961] AC 290 [9] R v Burstow [1997] UKHL 34 [10] R v Martin [1881] 8 QBD 54 [11] R v Morrison (1989) 89 Cr App R 17 [12] J. Gardner, ‘Rationality and the Rule of Law in Offences against the Person’ [1994] Camb LJ 502 [13] UK Borders Act 2007 s22 [14] Emergency Workers Act 2006 [15] Protection from Harassment Act 1997 [16] Legal Aid, Sentencing and Punishment of Offenders Act 2012 [17] Modern Slavery Act 2015 [18] Law Commission Scoping Paper (2014)
Cases Mentioned:
R v Venna [1976] Q.B.421, [1975] 3 All ER 788, 794
Smith v Superintendent of Woking Police [1983] Crim LR 323
R v Burstow and Ireland [1997] 4 All ER 225
Fagan v Commissioner of the Metropolitan Police [1969] 1 QB 439
Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890
DPP v Smith [2006] EWHC 94
R v DPP (2003) Crim LR 622
R v Roberts [1971] 56 CAR 95
Director of Public Prosecutions v Santa-Bermudez [2003] EWHC 2908
R v Savage and Parmenter [1992] 1 AC 699
R v Goulding [2014] EWCA Crim 889
R v Martin [1881] 8 QBD 54
R v Bollom [2004] 2 Cr App R 50
R v Dica [2004] 3 ALL ER 593
R v Konzani [2005] EWCA Crim 706; [2005] 2 Cr. App. R. 14
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