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Offences Against The Person Notes Real Notes

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Offences Against the Person (Non-Fatal)

Common thread to offences against the person is the right to be free of unwarranted intrusions upon the body (except the exigencies of normal life.)

Right to Privacy - Article 8 of the ECHR.
Distinction between Assault and Battery

Assault - apprehension

V is assaulted if D has "done something of a physical kind which cases someone else to apprehend that they are about to be struck"
(Nelson [2013] EWCA Crim 30)

Battery - infliction

It is suggested that the distinction is a matter of pedantry, and the two offences should be merged

Proposals to amend 
Criminal Law Revision Committee (Cmnd 7844, 1980)

Home Office, Violence: Reforming the Offences Against the Person
Act 1861, 1998 o
There are historical reasons for the distinction 
Battery arises from the tort of trespass against the person (Milsom,
1981), whereas the etymology of assault is adsaltare (to jump at)
indicates a focus on fright o
However practical difficulties to maintaining distinction

OAPA 1861 refers to assault occasioning ABH, not battery

Divisional Court held in DPP v Little [1992] QB 645 that the two remained two separate offences

No statutory definition.
Actus Reus:
Robert Goff LJ: Collins v Wilcock
''An assault is an act which causes another person to apprehend the infliction of immediate,
unlawful, force on his person.''
This can be broken down into key parts:

The defendant causes victim to apprehend the use of force against them.
The victim apprehends that use of force will be immediate.
This force is unlawful.

(i) The defendant causes the victim to apprehend force.
The actus reus is established through the causing of the apprehension of force and there does not need to be any application of actual force on the victim.
It does not matter whether the actual application of force was even possible, as long as the apprehension is caused. To illustrate this, consider the following example. The defendant points an unloaded gun at a stranger in a street. There is no way he could shoot them even if that was his intention but the stranger will be unaware of this so will fear the application of force. Now consider that the defendant and his friend are shooting enthusiasts and are in a gun shop looking at unloaded display models. If the defendant picked up a gun and turned and pointed it at his friend and shouted 'hands up or I'll shoot' the defendant's friend will know that this is an empty threat and will not be caused to apprehend a use of force, thus no assault will occur.

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Bryne- ''Mere words'' will not constitute an assault. Overruled.
R v Constanza [1997] Crim LR 576 states that words alone can cause the victim to apprehend harm and thus constitute an assault. For example, "I'm going to hit you" does not need to be accompanied by any action for an assault to occur. COA held that written threats by letter could found an assault. Presumably this would extend to threats by text message or social media.
R v Ireland [1997] 3 WLR 534 - silence can amount an assault. In this case the defendant made a series of silent phone calls to his victim causing them to fear immediate force and leading them to suffer severe psychological damage as a result of his on-going calls.
Tuberville v Savage [1669] EWHC KB J25.
Having been infuriated by some comments directed towards him, the defendant placed his hand on his sword as if to draw it. This would plainly cause the victim to fear the immediate application of unlawful force and thus constitute an assault, however the defendant accompanied his action with the words "if it were not assize time I would not take such language." In modern day context, this meant that as the judges were in town he would not commit an act of violence, thus negating the effect of this threatening action.Horder: may not always be the case ("if we were alone…", V may fear that they may be alone soon)

Just as words can negate an assault, the context and tone of such words can too negate an assault. In cases where menacing words were clearly intended as a joke and were taken as such there can be no assault. This is illustrated by the recent case of Chambers v
DPP[2012] EWHC 2157 where the defendant took to Twitter to threaten to resort to terrorism and 'blow the airport sky high' having become frustrated by his delayed flight! It was clear to all that taken in context, despite the menacing nature of the words they were clearly a joke, thus no apprehension of force was caused.
It is important to note the distinction between apprehension and fear. A victim may expect immediate force without being in fear of it; an assault will occur either way. For example, a world heavy weight boxer may be confronted by a particularly angry ex-girlfriend who raises her hand to slap him. He quite rightly at this point expects the immediate application of force,
however it would be quite wrong to say that he is in fear of it!
(ii) The victim apprehends that use of force will be immediate
To be guilty of assault D does not need to possess any intention to inflict violence on V; it is enough that he intentionally or recklessly causes V to apprehend immediate violence.
A threat to inflict violence later is not enough. Presumably this is to encourage V to escape the threat i.e. by going to the Police.
There is not an exact definition of what 'immediate' has come to mean but the following case examples provide some insight.
Smith v Superintendent of Woking Police [1983] Crim LR 323- the defendant stood up next to the window of a ground floor flat belonging to a woman living alone. She was terrified as he just stood there staring at her through the window. At trial the defendant argued there was no assault as the force apprehended was not immediate. He was outside and could not get to her without making his way inside. The Court held that despite this, the victim was clearly afraid by the prospect of some immediate violence. It was not thus unnecessary for the prosecution to establish exactly what the victim feared would happen as a general apprehension was sufficient.

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Constanza- D lived in the same neighbourhood as V, COA held that this was enough to prove
''fear of violence at some time not excluding the immediate future.''
Ireland came to a similar ruling whereby silent telephone calls were held to cause apprehension of immediate force as the phone calls had placed the defendant in immediate contact with the victims and the victims were placed in immediate fear. It was not necessary for there to be any physical proximity.-

Lord Steyn (HOL)- the immediacy requirement is satisfied if D's conduct caused V to apprehend the ''possibility'' of an immediate attack. Recommended that trial judges should advise juries that, if they found that V was put in fear they should consider
''what, if not the possibility of imminent personal violence, was the victim terrified about?''
Relaxes the imminence requirement in assault. Simester disagrees that assault should have been relaxed to this extent

Indeed, there should be legal protection from such conduct however the law of assault= the wrong medium (as Lord Steyn concedes at one point in his judgement.).
The point that can seemingly be taken from the presiding case law is that, in cases where the victims have no way of knowing what might happen, immediacy is satisfied. If some other factor came into play, for example a silent phone call was received and the number appeared with an Australian dialling code, this may negate this.
In the same sense that words can negate an assault, they can also negate immediacy. For example, "I'll get you next week for this" would not be an assault as there is no immediate force threatened.
(iii) The force is unlawfulIf = defensive or preventative force= 😊
The Victim's consent may also negate the actus reus.
Force applied in the performance of a legal duty?

Conditional Threats
A conditional threat cannot constitute an assault.
Blake v Bernard 1840- Held to be no assault where D pointed a pistol at V's head and said
''Shut up or I will blow your brains out''. The reasoning = no threat of immediate violence as V
could negate the threat by doing what they are told.

Cited Tuberville v Savage but = wrong because that was a case of a non-threat not a conditional threat.
Assault is as much about the protection of autonomy as protection from hurt. In Blake,
D had no right to put such a coercive condition to V. Accordingly V was under no duty to comply with the threat and was being confronted with a risk of violence should he assert his right to speak. Note: Dicta in the later case of Road v Coker might overrule this.

Mens Rea:
D must intend that V should fear the possibility of immediate violence or recklessly
(Cunningham recklessness) cause V to fear the possibility of immediate violence.

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R v Venna: D's argument that only intention would suffice, and recklessness was not enough was reject by the COA who stated:
''We see no reason in logic or in law why a person who recklessly applies physical force to the person of another should be outside the criminal law of assault. In many cases, the dividing line between intention and recklessness is barely distinguishable. This is such a case.''
The crime of assault therefore has 5 requirements:

1. The victim must apprehend the infliction of force on his person- No contact with victim's body required.

2. The victim must apprehend the infliction of immediate force- Literal interpretation =
without delay BUT courts= diluted this requirement i.e. R v Lewis.

3. The victim must apprehend the infliction of unlawful force. If force= not unlawful then=
no actus reus.

4. The defendant's actions must have been the cause of the victim's apprehension. (Factual and Legal).

5. The defendant must have either A. Intended to cause the victim to apprehend the infliction of the force or B. Been reckless as to whether the victim would be caused to apprehend the infliction of immediate, unlawful force. R v Savage confirms that Cunningham,
recklessness applies, meaning the defendant themselves must have realised the risk of causing an apprehension of violence.
R v Lewis
V (D's wife) claimed that her husband was violent with her so locked the door to their apartment and refused him entry. D then shouted threats including that he would kill her. V
then heard the sound of breaking glass and thought D was breaking into the flat. Fearfully,
she jumped out of the window, breaking both her legs in the process. Lewis (D) was charged with inflicting GBH (s.20 OAPA). COA held that V had apprehended the infliction of immediate force.
Ireland [1998] A.C. 147.
Can silence suffice for a charge of assault and is psychiatric harm sufficient for ABH
Facts: The Defendant in this case consistently called three separate women over the course of three months. During each call he did not speak, but instead breathed heavily on the line.
He was prosecuted and convicted for assault occasioning actual bodily harm contrary to s.47 of the Offences Against the Person Act 1861 c.100, on the grounds of the psychiatric injury suffered by the victims. The Defendant appealed his conviction and argued that silence cannot amount to assault and further that psychiatric harm was not actual bodily harm.
Held: The court held in the affirmative that silence causing psychiatric injury could constitute assault occasioning ABH under s.47 OAPA 1861. Silence could act as a threat where it was done in a way which could induce fear in the victim; where the victim is afraid that the threat will be acted on in the near future, this could amount to an assault. Proximity of the
Defendant to the victims is irrelevant to this determination as fear could be induced equally easily over the telephone as in person. It was held by the court that repeated phone calls of this nature could be expected to cause a victim to apprehend immediate and unlawful violence.
"the proposition… that words cannot suffice is unrealistic and indefensible. (the phone caller)
intends his silence to cause fear and intimidation." (Lord Steyn)

Supported in R v Burstow.

Note: Now Harassment Act 1997 that deals with this so can be convicted under that instead.

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Actus Reus:
Robert Goff LJ, Collins v Wilcock 1984:
''A battery is the actual infliction of unlawful force on another person.''
3 requirements:

1. The defendant must have inflicted force on the victim.

2. The force must have been unlawful.

3. The defendant must have either: A. Intended to inflict unlawful force on the victim or B.
Been reckless as to whether unlawful force would be inflicted on the victim.
How much force is necessary?
Robert Goff LJ, Collins v Wilcock:
''Incontestible…Any touching of another person, however slight, may amount to a battery. So,
held C.J in Cole v Turner (1704) that ''the least touching of another in anger is battery.''
''The law cannot draw the line between different degrees of violence and therefore prohibits the first and lowest stage of it.''

I.e. Children may be subject to reasonable punishment, Lawful exercise of arrest.

''A broader exception has been created to allow for the exigencies of everyday life.''
I.e. Jostling n a train or a busy street. ''A general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life.'' - See
Tuberville v Savage.

Touching a person to try and get their attention= okay as long as reasonably necessary physical contact.

''A distintion is drawn between a touch to draw a man's attention which is generally acceptable and a physical restraint which is not. See Rawlings v Till and Wiffen v

Persisten touching to gain someone's attention in the face of obvious disregard may transcend the norms of accepted behaviour. But this will be dependant on the facts of the case.

R v Thomas
Ackner LJ: ''There can be no dispute that if you touch a persons clothes whilst they are wearing them that is equivalent to touching him.''
Fagan v Metropolitan Police commissioner [1969]
Where driving a car over a person's foot was held to be a qualifying application for the purposes of battery. It was not the defendant applying force, he was merely driving the car,
but it doing so he caused the application of unlawful force to another.
Battery can occur when force if inflicted through the medium of an object.
A 15 year old boy took acid out of the classroom and to the bathroom without permission to test it on toilet paper. Whilst in the cubicle he heard footsteps and got scared so poured the acid into the nozzle of an air dryer and left intending to return and clean the drier later. In the

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o meantime the victim had gone to the bathroom to wash their hand and when they turned on the drier, acid was blown onto their face leaving a permanent scar.
D was charged with ABH (s.47 OAPA). The high court held this conviction. The infliction of force can be indirect and through a medium; V turned on the drier himself.
Haystead v Chief Constable of Derbuyshire [2000]:
John Haystead punched his ex-girlfriend in the face whilst she was holding her one year old son Mathew. Resultingly, she dropped the baby and he hit his head on the floor. Haystead was charged with batter of both his ex and her child even though force towards the baby was indirect.
DPP v Santana-Bermudez:
See earlier. Convicted of ABH. Battery can be committed by Omission.
The actus reus of this offence is the application of unlawful force on another. This application is usually direct, for example, the defendant punches the victim, thus the defendant himself physically applies the force to the victim's body. However, this does not need to be the case and force can also be applied indirectly.
R v Braham [2013] EWCA Crim 3.
A battery can also be committed where the behaviour was intended as affectionate. An unwanted kiss for example would suffice and the fact that it was motivated by misdirected affection will not prevent it from satisfying the actus reus of battery.
Smith (1866) F&F 1066
 Spitting on someone.
Smith [2006] EWHC 94
 Unauthorized cutting of hair.
Scott v Shephard
 Does not matter whether D causes violence by direct or indirect means, so long as it is attributable to D.
 Thrown grenade (which was therefore not a touching by D himself).
- Booby trap: Clarence (1888) 22 QBD 23
- Battery by inducing crowd panic: Martin (1881) 8 QBD 54
Wilson v Pringle
As per Lord Justice Johnson: The touching involved must be considered "hostile touching."-This was approved in R v Brown- the way it was interpreted in this case= renders the word meaningless. All the defendants had fully consented, yet the hostility requirement was found to have been satisfied. Thus, we may infer that conduct intentionally causing the degree of harm for a purpose not judicially recognised as acceptable will ipso facto be found to be hostile. - Meaning of the word rendered otiose.
This has come under significant judicial and academic attack. Lord Goff : ''too vague and restrictive.''. For him, the boundaries of ''physical contact which is generally acceptable in the ordinary conduct of daily life'' should inform decisions concerning the ambit of the offence.
Hostility requirement may have value in cases where bodily harm was unforeseen and unintended.

Mens Rea

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Same as that for assault. D must intend to inflict unlawful violence or do so recklessly
(Cunningham recklessness). Must have actually foreseen the risk of inflicting violence upon v.
This requirement is subject to the standard Majewski exception for voluntary intoxication.

Assault Occasioning ABH (Actual Bodily Harm)
S.47 OAPA.
This offence encompasses those assaults where a more serious injury is caused to the victim.
Liability for the offence is constructed from liability for the lessor offence of common assault.
It is a result crime in that the charge depends wholly on the result induced by the commission of the assault; it must result in actual bodily harm.
Actus Reus

1. The defendant must have committed an assault- here used to collectively include assault and battery. Therefore, the actus reus and mens rea for either of these qualifying offences must be established. No additional mens rea is required.

2. The Victim must have suffered ABH

3. The assault must have occasioned the ABH
This refers to causation. Applying the usual principles of causation, it must be established that the defendant's assault caused the victim to suffer actual bodily harm.
Actual bodily harm is defined in R v Donovan [1934] 2 KB 498 as an injury that is more than transient or trifling.
R v Miller [1954] 2 All ER 529 clarified this further stating it to be any hurt or injury calculated to interfere with the health and comfort of the victim.
R v Chan Fook [1994] 1 WLR 689 qualified this somewhat stating that the inclusion of the word 'actual' indicates that the injury whilst not needing to be permanent, cannot be so trivial so as to be wholly insignificant. For example, a concussion will not usually cause permanent damage, but it is clearly more than insignificant harm. Conversely a sore arm would be neither permanent or significant.


COA asserted that nonphysical harm falls within section 47 so long as it constitutes some form of psychiatric injury attested to by expert evidence. Has to be clinically recognised, can't be mere fright or distress.
Confirmed in Burstow.

Low Threshold therefore= the CPS Charging Guidelines also offer some direction as to what will be classed as ABH. According to these guidelines, the type of harm that will realistically be prosecuted as an ABH are injuries where significant medical intervention has been necessary or has caused lasting effects.
D argued that the consciousness was too short lived to amount to ABH. A loss of consciousness can amount to ABH as it involves ''an injurious impairment to the victim's sensory functions.''
Mens Rea

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