Non-Fatal Offenses help slides

Topic 5 Topic 5

Non-fatal offences

Topic 5

Assault

Non-fatal offences: assault

Topic 5

Definition

Assault is not defined in an Act of Parliament, as it is a common-law offence.

Section 39 of the Criminal Justice Act 1988 provides that assault is a summary offence with a maximum sentence on conviction of 6 months’ imprisonment or a fine.

R v Venna (1976) provided the accepted definition of assault as ‘the intentional or reckless causing of an apprehension of immediate unlawful personal violence’.


Topic 5

Actus reus• The actus reus of assault is any act that makes the victim fear that unlawful force is about to be used against him or her. No force need actually be applied, and actions such as raising a fist, pointing a gun or brandishing a sword will be sufficient.

• Words can amount to an assault (R v Wilson, 1955), as can a silent telephone call.

• There is no assault if it is obvious to the victim that the defendant cannot or will not carry out his or her threat of violence.

• The victim must fear immediate threat of harm, not at some time in the future.


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Mens rea

The mens rea of assault is either:

• intention or

• Cunningham recklessness

The defendant must have either intended to cause the

victim to fear the infliction of immediate and

unlawful force, or must have seen the risk that such

fear would be created.


Topic 5 Non-fatal offences: battery

Battery

Topic 5

Introduction

Section 39 of the Criminal Justice Act 1988

provides that battery is a summary offence,

punishable by up to 6 months’ imprisonment or a

fine. Like assault, it is a common-law offence.

Non-fatal offences: battery

Topic 5

Actus reus (1)

The actus reus of battery consists of the application of unlawful force on another. Any unlawful physical contact can amount to a battery. There is no need to prove harm or pain – a mere touch can be sufficient.

Battery can be direct or indirect. Direct battery is force applied directly by one person to another, e.g. a slap. Indirect battery can be applied using an implement or vehicle.


Topic 5

Actus reus (2)

The victim need not be aware that he or she is about to be struck. Therefore, if someone is struck from behind this will still constitute battery, and he or she need not have seen it coming.

There can be a battery when there is no direct contact with the victim’s body – touching his or her clothing may be enough to constitute this offence (R v Thomas, 1985).An omission can amount to the actus reus of battery (R v Santana-Bermudez, 2003).


Topic 5 Non-fatal offences: battery

Mens rea

The mens rea of battery is intention or

Cunningham recklessness, i.e. intention or

recklessness as to the application of unlawful

force.

Topic 5

Joint Charging Standards

Often, the offences of assault and battery occur at the same time. This is known as common assault. The police and Crown Prosecution Service have agreed the Joint Charging Standards, which set out the types of injury that will be regarded as common assault. Such injuries include:• minor bruising• grazing• small cuts• swelling


Topic 5

Actual bodily harm

Non-fatal offences: actual bodily harm

Topic 5 Non-fatal offences: actual bodily harm

Definition

Section 47 of the Offences Against the Person Act

1861 states that it is an offence to commit ‘any

assault occasioning actual bodily harm’. The

offence is triable either way and carries a

maximum sentence of 5 years’ imprisonment.


Actus reus

The actus reus of ABH has been interpreted as assault or battery that causes ‘actual bodily harm’. This has been given the wide definition of ‘any hurt or injury calculated to interfere with the health or comfort of the victim’ (R v Miller, 1954). Thus, ABH can occur where discomfort to the person is caused.

However, in R v Chan-Fook (1994), Lord Justice Hobhouse said in the Court of Appeal that ‘the word “actual” indicates that the injury (although there is no need for it to be permanent) should not be so trivial as to be wholly insignificant’.


Mens rea

The mens rea for ABH is the same as for assault

and battery. No additional mens rea is required

(R v Roberts, 1978, and R v Savage, 1991).


Joint Charging Standards

The police and Crown Prosecution Service have

agreed the Joint Charging Standards, which set

out the types of injury that will be regarded as

ABH. Such injuries include:

• minor fractures

• severe bruising and small cuts that require

stitches

• loss of consciousness

• psychiatric injury

Topic 5

Grievous bodily harm (s.20)

Non-fatal offences: grievous bodily harm (s.20)

Topic 5

Definition

According to s.20 of the Offences Against the

Person Act 1861:

‘Whosoever shall unlawfully and maliciously wound

or inflict any grievous bodily harm upon any

other person either with or without any weapon or

instrument shall be guilty of an offence triable

either way and being convicted thereof shall be

liable to imprisonment for 5 years.’


Topic 5

Actus reus

The actus reus of the s.20 offence is unlawfully

and maliciously wounding or inflicting grievous

bodily harm.

The word ‘inflict’ has been interpreted to mean

that the grievous bodily harm must be caused by

the direct application of force, e.g. hitting,

kicking or stabbing, but not digging a hole for

the victim to fall into. However, in practice the

courts have given a fairly wide interpretation as

to when force is direct.


Topic 5

Mens rea

The mens rea of s.20 GBH is described by the word ‘maliciously’. In R v Cunningham (1957), it was stated that for the purposes of the 1861 Act, ‘maliciously’ meant ‘intentionally or recklessly’.

There is no need to intend GBH or wounding, or to be reckless as to whether GBH or wounding might be caused. The defendant needs only to intend or be reckless that his or her actions could cause some physical damage.


Topic 5 Non-fatal offences: grievous bodily harm (s.18)

Grievous bodily harm (s.18)

Topic 5

Definition

Section 18 of the Offences Against the Person Act 1861 states that:

‘Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, with intent to do some grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of an offence triable only on indictment, and being convicted thereof shall be liable to imprisonment for life.’


Topic 5

Actus reus

The actus reus for s.18 is similar to that for

s.20 and requires proof of either GBH or

wounding. The actus reus of wounding and the

actus reus of GBH have the same meaning as under

s.20.


Topic 5

Mens rea

To satisfy the mens rea, the prosecution must

prove intention to cause GBH or intention to

avoid arrest. The crucial difference between s.20

and s.18 GBH is in the mens rea; while

recklessness can be sufficient for s.20,

intention is always required for s.18.


Topic 5

Evaluation

Non-fatal offences: evaluation

Topic 5 Non-fatal offences: evaluation

Evaluation

The non-fatal offences have been subject to much

criticism over the years:

• The wording of the statutory defences is

inconsistent and old-fashioned.

• Assault and battery are still common-law

offences.

• The sentencing of the offences is inconsistent.

Topic 5

Wording

Many of the words used to define non-fatal offences have

been criticised as being out of date and ambiguous. For

example:

• The use of the term ‘serious assault’ refers to

grievous bodily harm, rather than a fear of unlawful

force as it legally means.

• Battery only requires the slightest touch by the

defendant. However, the modern use of the word suggests

that there is a much greater level of harm.

• Section 18 uses the words to ‘cause’ GBH, s.20 uses the

words to ‘inflict’ GBH and s.47 uses the words to

‘occasion’ GBH. All of these words have required the

court to interpret them as meaning ‘cause’.


Topic 5

SentencingAssault and battery are summary offences, punishable by 6 months’ imprisonment. Such trials can be dealt with at the Magistrates’ Court, and the expense of a Crown Court trial is avoided.

Both ABH and s.20 GBH carry the same sentencing guideline of 5 years’ imprisonment. It seems unnecessary to have two offences that have the same penalty, even though GBH is supposed to be much more serious than ABH.

Section 20 GBH gets 5 years’ imprisonment, whereas s.18 GBH affords anything up to life imprisonment. The reason why the sentences are so different is due to the defendant’s mens rea. There is no recognition of the fact that the victim could be just as seriously hurt in both instances.


Topic 5

Inconsistency (1)

ChargeIt is quite common for a person to be charged with a lesser offence than the one that he or she has actually committed. For example, a person who has committed GBH may be charged with ABH that can be tried at the Magistrates’ Court. This will save the court time and money, as a charge of GBH would require an expensive Crown Court trial. It also makes no difference whether a person is charged with s.20 GBH or s.47 ABH, as both offences are punishable by a sentence of up to 5 years’ imprisonment.



Inconsistency (2)

Plea bargainingThe prosecution may charge the defendant with a lesser offence if he or she agrees to a guilty plea. This is known as plea bargaining and saves the court time and money, as it is not necessary to hold a trial and the defendant will be given a more lenient sentence for an early guilty plea.


The basis for liability

Liability is based upon the level of injury. An alternative would be to base it on the means of injury. Consider these examples:

1. D is angry with V and pushes him. V falls, and by bad luck fractures his skull. D is charged with GBH.

2. D lunges at V with a knife intending GBH, but V, by good luck, is just scratched. D is charged with the less serious ABH.

Is this fair?


Mens rea problems

There are difficulties in working out the mens

rea for several of the offences:

• For s.47 ABH, D only needs intent or

recklessness as to causing some physical harm –

not necessarily ABH.

• For s.18 wounding with intent, if D has intent

to resist or prevent an arrest, the offence is

committed even if he or she is only reckless as

to wounding/GBH or if he or she intends only

minor injury.


Actus reus problems

Assault

The requirement for V to fear an immediate battery leaves a gap in the law – a threat to kill V next week is not an assault.

Topic 5 Non-fatal offences: reform

Reform

Topic 5 Non-fatal offences: reform

Law Commission Report 1993

In 1993, the Law Commission produced a report entitled ‘Offences Against the Person and General Principles’. This report redrafted the non-fatal offences and criticised the current law for its:• complicated, obscure and old-fashioned language• complicated and technical structure• complete unintelligibility to the layman

The Law Commission also produced the Draft Criminal Law Bill, which redefined the offences. The recommendations of this report have never been adopted.

Topic 5

Home Office Report 1998 (1)

The Labour government produced the Draft Offences Against the Person Bill 1998, following the home office report ‘Violence: Reforming the Offences against the Person Act 1861’.

The new offencesClause 1: intentional serious injury (replaces s.18)Clause 2: reckless serious injury (replaces s.20)Clause 3: intentional or reckless injury (replaces s.47)Clause 4: assault

Non-fatal offences: reform

Topic 5


The new sentences

The proposed sentences are the same, with the

exception of clause 2. This would replace s.20

GBH, which carries a punishment of 5 years’

imprisonment. The new clause 2 would increase

this to 7 years’ imprisonment.


Topic 5


Other changes

• Clauses 1 and 2 will include wounds that are considered by the court to be ‘serious injury’.

• Clause 1 is the only offence that can be committed by omission.

• Intentional serious injury caused by disease would be allowed as a clause 1 offence. However, reckless injury caused by disease (clause 2) would not be allowed. It would be wrong to criminalise the transmission of minor illnesses such as measles.


Topic 5

Home Office Report 1998 (4)Other changes• The mens rea of recklessness used in both clause 2 and clause 3 would require proof that the defendant saw a risk of the injury that he or she actually caused. This changes the current law that recklessness only requires the defendant to foresee some harm (R v Roberts, R v Savage, R v Grimshaw).

Assault in clause 4 would be given the following statutory definition:(a) intentionally or recklessly applying force or causing an impact on the body of another; or(b) intentionally or recklessly causing the other to believe that any such force or impact is imminent


Topic 5

Pause for thought

1. The draft bill was revealed in 1998 and yet the law has not changed – why do you think this is?

2. Are the maximum sentences for clause 2 and clause 3 right? Should the gap between the two be wider?


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Non-Fatal Offenses help slides

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