NON-FATAL OFFENCES AGAINST THE PERSON

Lecture 7 (November 26th.) 2. Offences against the Person (assault and battery).

We may start by noting the title of the legislation which governs the more serious non-fatal offences:
the Offences against the Person Act 1861.This old and unsatisfactory legislation (hereafter the OAPA) is
still, alas, very much with us.

An important point of interpretation is relevant throughout the OAPA: when it uses the word
“maliciously” it means “with foresight of the possibility of the consequences which occurred”. It does
not refer to any ill-will at all. In this context “maliciously” is a synonym for the legal meaning of
recklessness. Your previous study of recklessness is relevant here.

*R v Cunningham [1957] 2 QB 396

*R v Spratt [1991] 2 All ER 210
*R v G and R * [2003] UKHL 50;[2004] 1 AC 1034 (a criminal damage case, but relevant here)

- Thus subjective recklessness reigns here. Caldwell recklessness was abandoned

*Criminal Justice Act 1967, s.8

A court or jury, in determining whether a person has committed an offence,—

(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by
reason only of its being a natural and probable consequence of those actions; but
(b) Shall decide whether he did intend or foresee that result by reference to all the evidence,
drawing such inferences from the evidence as appear proper in the circumstances.

P RACTICAL DIFFICULTIES CAUSED BY THE SUBJECTIVE TEST

- Many crimes here caused by intoxicated people
o Crimes of basic intent: if D is not aware of the risk that he is causing, because of
voluntary intoxication, the law presumes that he had the necessary recklessness on the
basis of a sober person.
 In a way, in this area objectivism still reigns with regards to deciding the basis
intent of a drunk person
o Exception to the basic presumption: Malicious causing of gbh.
 S20 of 1861 Act is a crime of basic intent, while s18 (causing gbh with an intent
to cause gbh) is a crime of specific intent; for these evidence of intoxication is
admissible to throw doubts on the defence
- Where people lose their temper and get mad violent:
o In this situation, are they aware of the law? What is subjective? Cf. Parker

R v Parker [1977] 1 WLR 600 (another criminal damage case, but still instructive)

Facts: D falls asleep on the train, wakes up to find he’s overshot his station. A lot of problems trying to
get a taxi and the railway personnel aren’t helpful. Finds public phone to ring up a taxi, phone doesn’t
work. In fury, smashes down the receiver and this shatters into a lot of pieces. Charged with criminal
damage
To be charged with non-fatal offences against the person, must prove that he perceived the risk of
damage. D argued that he didn’t perceive the damage he’d do in smashing the receiver down.
Held: that D must have perceived the danger with his act even if he has put it in the back of his mind at
the time of his act. Thus convicted, on a subjective test, of criminal damage
- This back of the mind thing is not an empirical finding but a mere supposition!
- Simply reflects the message that courts aren’t receptive of claims for lack of foresight on the
basis of a self-inflicted, psychological state.

Assault and battery

Note that both of these are essentially CL crimes and there is no definition of them in statutory
provisions.

These are separate offences : DPP v Little [1992] QB 645.Although they are separate offences the term
assault is frequently used to cover both assault and battery as is the case in s.47, OAPA (assault
occasioning actual bodily harm).

(1) Assault: any act by which D, intentionally or recklessly causes V to apprehend immediate and
unlawful personal violence: R v Savage [1992] 1 AC 699,740.

THE CONDUCT E LEMENT IN A SSAULT

- It must be a positive act

Fagan v MPC [1969] 1 QB 673

Facts: D was backing a car onto a confined parking space and receiving instructions from a
police officer. D didn’t like the guidance but did as told. When the car came to rest, there was a
conversation between D and V: D had parked the car on V’s foot. D remains seated for a while, C
crying out for him to remove his foot.

There was no harm to the foot- the boot was dented. But D argued that the parking of the wheel
on the foot was inadvertent and that D was only aware of it when it was brought to his attention
by the policeman. This was the only act and done without intention, and moving the car off was
not assault

Held: Div Court reiterated the need for a positive act. Argue that D was in contact with V’s body
through the medium of the car and D maintained that contact with an intent: on that basis
conviction had to be sustained on failure to remove the car.

Smith v Superintendent of Woking Police Stati on (1983) 76 Cr App R 234

Facts: Prosecution for assault is based (soundly) on D, a peeping tom, going to the enclosed
space outside a basement flat and looking through the glass doors as V undressed for bed.

D argues that he was maintaining his presence outside the door. V, on seeing him, screams and
D scarpers. Caught and charged with assault. Hence V clearly experienced fear, but what was the
nature of the act?
Held: conviction sustained: to hold a posture was a form of conduct and here it was frightening
conduct

IMMEDIACY

- This is the requirement that the instigator must be physically close to V (fear of an imminent
battery)
- The principle is well established; particular difficulties are caused by harassment and other
forms of assault which don’t involve a ‘direct attack’ as such but still cause fear and distress.
- Note that Harassment is now covered by the Protection from Harassment Act. Nonetheless,
courts feel that the sentences in the Act are insufficient in some cases and thus have stretched
the immediacy requirement in assault to encompass harassment.

*R v Ireland [1997] 4 All ER 225;[1998] 1 AC 147

Facts: D made silent phone calls many miles away from where V resided- would keep ringing.

D conceded that a silent phone call could constitute assault; further will be occasions where a
silent phone call might indicate an intention to be violent very soon: on these occasions there is
no problem and the cases can fit into the assault requirements. But that given the location
differences between D and V, this was not such an occasion

Held: HL weighing if they can prosecute silent calls as assault. Held that anyone put in fear by
such a call must fear imminent violence, because if it wasn’t a fear of any imminent violence,
why would the victim be fearful? Any fear from the call would be a fear of violence.

- The reasoning is perhaps questionable. If one were to draw an analogy with horror
films, it is apparent that there are situations where one can be scared while knowing
they are perfectly safe.

R v Constanza [1997] 2 Cr App R 492

Facts: V opens a very unpleasant letter that makes her fearful

Held: D’s conviction confirmed on the basis that the woman had been assaulted at the point of
opening the letter, because V knew that the writer lived in her neighbourhood and so couldn’t
rule out the possibility that she might be imminently assaulted

*After these cases, it is clear that all that suffices for a finding of assault is if V cannot rule out
the possibility of imminent violence- enough that it is one of the possibilities that fleets through
her mind

MENS R EA

R v Savage (above) – either intention or recklessness required. (With regards to causing fear of an
imminent battery)

Battery

Battery: any act by which D inflicts unlawful personal violence on V: R v Rolfe (1952) 36 Cr App R 4. Thus
Ireland for example was not battery as there was no actual infliction of violence.
“VIOLENCE”

Any touching of the body not consented to. There is no need to threaten physical harm; it is enough if it
is clear the contact is unwanted. (e.g. an unwanted kiss can constitute a battery)

Faulkner v Talbot [1981] 3 All ER 468,471

*Collins v Wilcock [1984] 3 All ER374

Facts: a female police officer, suspecting that a woman was soliciting, tried to question her. The
woman walked away, and was followed by the police officer. The officer took hold of her arm in
order to restrain her. The woman scratched the officer's arm. She was arrested, charged with
assaulting a police officer and convicted.

Held: appeal was allowed, on the ground that the officer had gone beyond the scope of her duty
in detaining the woman in circumstances short of arresting her. The officer had accordingly
committed a battery.

“INFLICTS ”

- Technically, the contact must be direct. Thus, if it is more ‘circuitous’, there cannot be a battery.
However, the interpretation in the case-law has somewhat dumbed down this meaning.

R v Wilson [1984] AC 242

Facts: Driver punched a pedestrian in the face.

Held: HL debated the definition of battery. Accepted that there needed to be something in the
nature of directness for there to be a battery, but said that this directness requirement would be
satisfied as long as V could contrive circumstances when the force was inflicted in a percussive way.

Thus it is battery when D closes all the doors and dims the lights in a theatre and lets out a blood-
curling scream: because there would be pileups against the door with injuries resulting from the
piling up that could be attributed to D’s battery

Trap cases:
D deliberately setting up artefacts so that V will injure himself. All seen as direct infliction for the law
of malicious wounding

DPP v K [1990] 1 All ER 331

Facts: D placed acid in a hot air drier to hide it from his teachers. V then used the drier and the acid
caused burns on his face.

Held: Parker LJ: D had ‘just  as truly assaulted] the next user of the machine [V] as if [D] had himself
switched the machine on’.

Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890

R v Santana- Bermuda [2004]Crim LR 471

MENS REA

R v Savage * [1992] 1 AC 699 (Above) – Either intent or reckless

HOSTILITY ?

R v Brown [1994] 1 AC 212 – It was previously thought that D had to be ‘hostile’. This requirement has
had some doubt cast over it by Brown

Assault occasioning actual bodily harm (s 47 OAPA)

“Actual bodily harm” is widely interpreted:

Donovan [1934] 2 KB 498 – CA here described ABH as harm that is ‘more than merely transient or
trifling’.

*R v Chan-Fook [1994] 2 All ER 552 – CA Held that ‘body’ is not limited to flesh, skin and bones but
includes organs, nervous system and brain. Mere emotions such as fear, distress and panic are excluded
however. (HL confirmed this in Ireland [1998] but said that psychological injury should be a matter of
expert evidence and further in Morris [1998], CA said that in relation to psychiatric injury, the expert
had to be a psychiatrist not a GP)

*R v Burstow [1998] AC 147

Facts: A stalking case in which the defendants bombarded an acquaintance with unwanted attention for
three years. Resulting in V suffering depressive symptoms

Held: HL held that a sufficiently serious psychiatric injury could amount to serious bodily harm (S/GBH).
(Also, they recognised that it was clearly not contemplated that psychiatric injury would be covered
when the OAPA was drafted but the statute was ‘always speaking’ and expanded to accommodate new
developments such as a better understanding of the link between mind and body)

Note: D need only have intended or foreseen the assault/battery: it is not necessary to prove that he
also foresaw any actual bodily harm too.

R v Roberts (1971) 56 Cr App R 95

*R v Savage [1991] 4 All ER 698;[1992] 1 AC 699

Facts: D poured her drink over V (battery). The glass slipped out of her hand and smashed and cut the
victim. The (s47) conviction related to this injury. D’s appeal was based on a lack of mens rea arguing
that she neither intended the injury nor foresaw that it would be caused.

Held: HL dismissed the appeal, holding that the mens rea of s47 required intention or subjective
recklessness in relation to the common assault or battery only. There was no requirement of intention
or foresight in respect of the injury caused by the assault or battery.

Lecture 8 (December 3rd.) 1. Inflicting and Causing Grievous Bodily harm. 2. Consenting to Harm.
Inflicting and causing grievous bodily harm (ss 20, 18 OAPA)

Section 20 proscribes the malicious infliction of grievous bodily harm (hereafter gbh). (It also proscribes
the separate offence of malicious wounding which has little independent significance and is not part of
this syllabus).

DPP v Smith [1961] AC 290 – GBH is a general term meaning ‘really serious harm’

R v Saunders [1985] Crim LR 230 – The term GBH (particularly the use of the word grievous) in itself
doesn’t add anything to the notion of ‘serious harm’. Any broken limb or injury that needs sustained
medical attention can be GBH.

*R v Burstow [1997] 4 All ER 225;[1998] AC 147

Recall that it was held here that serious psychiatric injury could constitute GBH for the purpose of s20.
Here, the harm was inflicted through silent telephone calls and other non-physical intrusions.

Prosecution: phone calls could be regarded as a battery directly inflicting the GBH

Held: HL rejected this attempt to regard the intrusion as the direct infliction of GBH as too contrived.
Rather, they said that in the context of psychiatric injury, ‘inflict’ could be read as a synonym for ‘cause’.
Thus, there was no constraining value and essentially, the barrier posed by the term ‘inflict’ is dissolved
in the context of psychiatric injury.

Sullivan commends this development. Nonetheless it is a big step to apply s20 to psychiatric injury,
especially as the case-law has typically developed through cases involving ‘fighting’.

E.g. if psychiatric injury cases under s20 require a mere causal connection consider a case of a couple
where W is emotionally dependant on H and he knows that if he were to leave her, she’d become
mentally ill and may attempt suicide. Theoretically, as D can anticipate the impact, he can be liable
under s20 should he leave.

Note: There are many social policy issues to be addressed before (if ever) such conduct can be
criminalised.

Further significance of Burstow: the recent criminalisation of the passing on of infectious diseases.

*R v Dica [2004] 3 W.L.R. 213

Facts: D knew himself to be HIV positive and had sexual intercourse with a number of partners who,
consequentially, became positive themselves. Was charged with the malicious infliction of serious bodily
harm and his conviction was upheld on appeal

Held: V was unaware of the position of D when they had sex. D, who had unprotected sex with V, was
aware of the risk of passing on this infection. Under Burstow, the CA set aside the old case of Clarence.
- this involved D having sex with V, aware that he had gonorrhea, and charged with malicious
wounding [available at the time]
- held that the failure to disclose the condition didn’t vitiate the consent of V to the sexual act.
held that V was aware of the essential nature of the act

CA effectively overturned Clarence and said that though there might be consent to the sex on
the facts of Dica, one can segregate the sex from the infection. There was no consent to the
infection and under the terms of Burstow CA said that all one needed was a causal relationship
between the sex act and the subsequent infection. Importantly, Dica seems to hold that there
is no distinction between ‘cause’ and ‘inflict’ for physical harm as well.
- Again, a lot of social policy concerns in the criminalization of STD infections.

Art 7 ECHR (prohibits retrospective criminalisation and requires certainty of law. Significance here??)

Cf. the CPS Charging Standards at

http://www.cps.gov.uk/legal/l_to_o/offences_against_the_person/#Unlawful_wounding

MENS R EA OF THE OFFENCE:

Broadly, the Mens Rea is either intent or subjective recklessness.

R v Mowatt [1968] 1 QB 421

Facts: D caused GBH to another in a fight.

The prosecution conceded that while D was aware he would cause some harm, he was not aware of the
gravity of the harm he would cause.

The question for the court was thus whether this was an assault occasioning actual bodily harm (s47) or
the malicious wounding or infliction of GBH (s20)

Held: Mindful that s20 is a more serious offence, the CA somewhat fudged the mens rea issue. CA held
that recklessness as to whether some harm (albeit not necessarily serious harm) will be caused will
suffice for liability under s20.

This is also known as ‘the Mowatt gloss’.

*DPP v Parmenter [1991] 4 All ER 698

Facts: D’s rough handling of his child caused broken bones. It was accepted that he had not intended to
cause injury nor had he realised that there was a risk of injury. Trial judge however directed the jury in
terms of what D should have foreseen. (objective recklessness)

Held: HL upheld the ruling of the CA that this was a misdirection and also, endorsed Mowatt.

- The standard of recklessness is subjective based on what D actually foresaw not what he ought
to have foreseen
- Foresight of the consequences was required but not foresight of their magnitude. This confirms
Mowatt that mere foresight of some harm will suffice.

ss2 and 4 of the Protection from Harassment Act 1997 (causing harassment and putting people in fear of
violence – significance here?)

Grievous bodily harm with intent

Section 18 of OAPA prohibits intentional causing of gbh. The maximum sentence is life imprisonment, so
the difference between intended gbh in s.18 and “merely” risked gbh in s.20 is important.
THE RELEVANCE OF CONSENT

You have studied the decision of the House of Lords in R v Brown* [1994] 1AC 212; [1993] 2 All ER
75.You will know that the default position under English law is that a valid consent cannot be given for
the infliction of harm amounting to actual bodily harm or something more serious (so prima facie,
consent can only be given for injuries which are transient or trifling), a position endorsed by the
European Court for Human Rights: Laskey v United Kingdom [1997]EHRR 39.

But sometimes a valid consent can be given even in respect of serious harm. When will that be the
case? A useful place to start is is the following important passage from *Att-Gen's Reference (No 6 of
1980) [1981] QB 715, per Lord Chief Justice Lane at 719:

“…it is not in the public interest that people should try to cause or should cause each other actual bodily
harm for no good reason. So, in our judgment, it is immaterial whether the act occurs in private or in
public; it is an assault if actual bodily harm is intended and/or caused…”

Some other justifications flow from Brown;

- Paternalism: people might not be aware of the danger

- Legal Moralism: a revulsion going beyond distaste as to the activities of the defendants. That
what they did was intrinsically wrong. (Sullivan: where ‘most’ people will have such a reaction
to the activities of D and believe it merits punishment)
- Also endorses the need for the state to intervene to prevent injury and pain. Makes clear that
you cannot consent to harm that is more than transient or trifling.

There has been no legislative intervention in this area. The LC drafted a paper on the topic but no action
was taken. Thus exceptions are found in the common law.

Exceptions

1. Organised sports
2. Rough Horseplay
3. Lawful Surgery/Tattooing
4. Sexual Situations

Organised Sports

A “good reason” of long standing is organised sporting activity. In that context we must assume that for
some sporting activities even serious harm intentionally inflicted is permitted if we are to assume the
legality of boxing (cage-fighting? Full- contact karate?). The fact that sports have a body of rules and are
conducted in the open does not automatically make it a legal practice per se, but is highly persuasive
evidence that the participants in the game consent to the injuries which they may sustain while
participating. These are also mainly pursuits of strength, activity, and skill; and the law has always
allowed people to participate in them at their own risk.

R vBarnes [2005] 1 WLR 910

Facts: horrific soccer injury ‘so far outside the rules of the game’ that criminal liability was appropriate.
(these are indicative rules and not concrete). It was unlawful violence (just b/c you’re playing a sport
doesn’t give you carte blanche (free reign to choose whatever course of action you want) to be violent) -
but there is a ready acceptance that even serious injury is within the ambit of legitimate consent for a
recognized sporting activity (cricket, rugby, soccer)

Distinction: Injuries intentionally inflicted and injuries that are risked by way of participation in the game
- Lays open a question about the illegality of boxing: Lord Mustill questioned why the activities in
Brown would be categorised as illegal violence while the intentionally inflicted injuries in boxing
are not
- These events are televised and organized in the assumption that they are perfectly legal: but
what is the juridical basis of this legality? There is no statute that endorses the illegality of
boxing; there is no leading authority on it.
- At least in the UK, there is no underpinning of the legality of boxing: it rests on an assumption
that the activity is permitted.

Leads to the legality of hard-core and soft-core forms of cage-fighting etc. These are horrific and involve
infliction of gross, serious injury. In the UK, there are regularly promotions for soft-core forms of this: is
this legal activity or not?

Rough Horseplay

Other areas where the choices of autonomous adults are likely to be respected are rough play lacking
sexual connotations, tattooing, bodily piercing and cosmetic surgery.

R v Jones (1986) 83 Cr App R 375

Facts: V and others were officers who got wasted and decided to test the flammability of some air suits
that they wear (which were meant to be flame-resistant). V suffers horrendous burns: is there consent
to the GBH?

Held: that V had legitimately consented to the activity: boys will be boys etc and there is no cause for
the intervention of the criminal law

Or for example also, Atiken [1992] 1 WLR 1006 (CA) where defendants who set light to an RAF colleague
covered in white spirit as part of a prank were permitted a defence of consent.

R Wilson [2007] QB 237

Facts: V decided she wanted her husband to brand his initials on her bottom in the doctor’s surgery.
(check facts) The doctor reported them to the police and they were charged under the OAPA>

Held: What happens between a husband and wife in the privacy of the matrimonial home should not
concern the criminal law. On that basis, consent was available.

Sullivan feels that this is surely a repeat of Brown but with a heterosexual couple. Nonetheless, the
court declined to regard it as sexual activity but merely tattooing.

Sexual Situations

The exercise of autonomy in sexual matters is of uncertain scope. One attempt at explaining the sexual
cases goes along the following lines: if sexual pleasure is sought directly from the infliction of bodily
harm, the default ruling in Brown applies. But serious harm can be lawfully risked while seeking sexual
pleasure in a non-violent way. Does this explanation hold in the cases cited below? Give particular
thought to the decision in Wilson.

In other words, it seems that here the courts ignore the sex as such but focus on the physicality of the
situation.

R v Slingsby [1995] Crim LR 571

R v Emett;The Independent, 19 July 1999 – A soon-to-be-married couple experimented with fire and
were guilty of offences against the person

R v Wilson [2007] (above)

Thus with sex, it seems that only harm that is transient and trifling can be consented to. The moment
one crosses that line, the law intervenes. This position has been somewhat muddled by Dica.

*R v Dica [2004] 3 W.L.R. 213 (as above)

Facts: A person who didn’t disclose his HIV status and passed his infection on. This was held to be
malicious infliction of GBH, on the assumption that that V was unaware of his infection – with the
corollary that had she been aware and still consented to sex, there wouldn’t have been any offence
against her.

Held: CA separated the sex, that she had consented to, and the physical risk from the disease, which she
hadn’t consented to because she had been unaware of it. Had she been aware, her consent would have
been legitimate

This is hard to reconcile with the decision in Brown (default position being that outside of a good
reason, the capacity for consent to harm is very limited). CA differentiated Brown in that Brown involved
acts of positive violence- on that basis, said it would be perfectly legitimate for V to consent to the risk
of serious sexual infection: where, e.g. a couple seeking to have a baby or a Roman Catholic couple who
are against contraception  in these cases no offence and the consent to the infection would be
legitimate

*R v Konzani [2005] EWCA Crim 706

Recognition that one cannot give limited permission (in the examples of the Roman Catholics e.g.
above). Rather it is all about consent: if the person participating knows about the illness the other party
has and still consents to the sex (i.e. gives informed consent), then they are consenting to the risk of
getting the HIV. BUT there must be an explicit declaration on the part of D to V of his positive status-
only on the fact of this should the court construe a valid consent as anything else would not suffice

Good rule of public policy, but fudges the nature of consent: consent is very often implied from conduct.
In having sex in a casual basis, one may not want to criminalize infected partners in these situations. But
this case asks for an explicit admission of the condition before valid consent can be given.