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Generally, non-fatal offences against the person fall into two broad
categories, assault (from common assault to aggravated assault) and
offences of a sexual nature. These offences are either offences at
common law or were created by statute, notably the Offences against
the Person Act (OAPA) and the Sexual Offences Act.
Assault
This is the least serious of assault offences, the essence of which is
that the victim fears the direct application of force against him. There
has been much debate as to whether the offence, like battery, is an
offence at common law. Both were developed via common law. The
definition of both is determined by common law, however the statute
relating to them, the Criminal Justice Act 1998, section 39, prescribes
the penalty. By virtue of Section 39 of the Criminal Justice Act,
common assault like battery, is punishable with the maximum penalty
of six (6) months and/or a fine of 5,000.00
In Fagan v Metropolitan Police Commissioner it was noted that an
assault is any act which intentionally or possibly recklessly- causes
another person to apprehend immediate and unlawful personal
violence. See also Venna (1976).
The Actus Reus of the Offence
The actus reus involves the creation of an expectation of immediate
unlawful violence in the mind of the victim.
Apprehension of Violence
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Immediacy
The threat must be of immediate violence or unlawful touching. The
Courts have however taken a liberal approach to the meaning of the
word immediate.
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BATTERY
The offence of battery involves:
1)
2)
c)
d)
e)
2)
3)
DPP v K (1990) (This case has since been overruled but not on the
point in issue)
D, a school boy had been carrying out an experiment using sulphuric
acid in a chemistry class. He had some acid on his hands and went
to the toilet, wrongly taking a test tube of the acid with him. He
intended to test its reaction on toilet paper but heard someone
coming and placed it in the hot air drier intending to return to retrieve
it. Before he could however, another boy used this equipment and
was permanently scarred. The court held that the defendant was
guilty of assault occasioning actual bodily harm.
4.
Common Assault
In many instances rather than charging assault or battery the
prosecution will charge the offence of common assault. Common
assault comprises both assault and battery and is viewed as an
offence against s39. Where force has been applied, the actus reus
and mens rea will be that of battery. If no force is applied but there is
the apprehension of harm the actus reus and mens rea is that of
assault.
Unlike other, more serious nonfatal offences, assault and battery are
not tried on indictment, unless the defendant has also been charged
with other serious crimes. If the charges relate solely to assault or
battery the accused will be tried by judge alone, without a jury.
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the Court of Appeal rejected the view that one of the considerations
should have been whether the defendant foresaw the victim suffering
injury as a result of his actions. The court ruled that the only issue
was one of causation. This decision was confirmed by the House of
Lords in Savage; DPP v Parmenter (1992)
Savage
D committed a battery on V, a former girlfriend of Ds husband, when
she threw a pint of beer over her. V was soaked but she was also cut
by a piece of flying glass, because D had let go off the glass and it
shattered as it fell to the floor. It is not clear whether D deliberately
threw the glass or whether it accidentally slipped from her grasp. D
was charged with unlawfully and maliciously wounding V contrary to
sction 20 OAPA. She was convicted. The C/A overturned the
conviction and substituted a verdict for assault O.B. harm contrary to
section 47. The issue taken to the House of Lords was whether such
an offence would only have been established if foresight as to the risk
of bodily harm resulting from the battery had been proved. The House
of Lords approving Roberts, ruled that the prosecution did not have
to prove that the defendant, charged with a s. 47 offence, intended to
cause some actual bodily harm or was reckless as to whether such
harm could be caused.
Parmenter
D shook his child so violently, he was seriously injured. The court
ruled that there was no requirement for the prosecution to establish
foresight of harm.
Wound
To constitute a wound the inner and outer skin must be broken (a
break in the continuity of the skin). A bruise or broken bone is not
sufficient. There is however no need for the act to be serious.
Inflict
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For a number of years the courts view on this term was restricted to
mean that the grievous bodily harm was suffered as a result of an
assault.
Clarence (1888)
D, knowing he had a venereal disease, had sexual intercourse with
his wife and infected her. He was convicted of offences under both s.
20 and s.47 of the OAPA 1861. On appeal the convictions were
squashed. The court held that where there was no assault there
could be no infliction of harm.
In 1998 the House of Lords in Wilson declined to view this matter in
so restricted a manner. It held that there could be an infliction within
the ambit of section 20 without an assault. The court noted that the
prosecution can establish infliction in one of two ways:
a) A direct application of force on the victim
b) By intentionally committing an act which, although not directly
applying force, results in force being applied to the victim who
suffers gbh. For example D who knows that V is blind digs a
deep trench in front of VS front door as a joke. V falls in and
breaks his leg. Although the application of force is not direct, D
may be convicted for inflicting GBH
After Wilson the House of Lords in Ireland; Burtsow again
categorically stated that the application of force is not required for
infliction.
As a result of these decision any act which causes G.B.H. constitutes
inflicting such harm. Thus causing someone to suffer G.B.H. by
infecting him with a disease is now an offence contrary to s. 20 of the
OAPA.
Dica 2004
The appellant was convicted of inflicting G.B.H. on two women with
whom he had sexual relations. He was HIV positive and had infected
them with the virus. The C/A ruled that if the victims were aware of
the appellants status and had consented to the risk of acquiring the
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