Non Fatal Offences Against The Person Notes

CRIMINAL LAW — TOPIC 4 —NON-FATAL OFFENCES AGAINST THE PERSON

ASSAULT AND BATTERY

These are separate crimes.

ASSAULT

Definition:

• AR: D caused the victim to apprehend imminent unlawful force.

• MR: D intended or was reckless that V would apprehend imminent unlawful force.

NB: the force must be ‘unlawful’ —if V apprehended that D would lawfully touch her (e.g. in self-defence) then there is no assault.

There are several issues in this area of law:

1. Can words alone amount to assault?

The key decision here is the following, in which Lord Steyn makes it clear that what matters is that D has caused V to apprehend imminent harm; exactly how that fear was created is immaterial.

R v Ireland and Burstow [1998]

Facts

• Ireland: admitted making a large number of telephone calls to three women and remaining silent when they answered. As a result each had suffered recognised psychological damage. I pleaded guilty to charges of assault occasioning ABH, contrary to s.47 of the OAPA.

• Burstow: B conducted a campaign of harassment against a woman with whom he had previously had a social relationship which she had terminated. For a period of eight months he made silent telephone calls, distributed offensive cards in the street where she lived, sent menacing notes to her, appeared at her home and place of work and took photographs of her and her family. She suffered from a severe depressive illness as a result. B plead guilty to unlawfuly and maliciously inflicting GBH contrary to s.20 of the OAPA.

House of Lords (Lord Steyn): an assault might be committed by words or gestures alone, depending on the circumstances; and that where the making of a silent telephone call caused fear of immediate and unlawful violence, the caller would be guilty of an assault.

• Imminent harm: “It would be natural for the victim to regard the callsas menacing. What may heighten her fear is that she will not know whatthe caller may do next. The spectre of the caller arriving at her doorstep bent on inflicting personal violence on her may come to dominate her thinking. After all, as a matter of common sense, what else would she be terrified about? The victim may suffer psychiatric illness such as anxiety neurosis or acute depression. [N.B because V thought D could arrive ‘at any time’ the imminence requirement is fulfilled —D has created a fear of imminent violence.].”

• Is there an assault? “There is no reason why something said should be incapable of causing an apprehension of immediate personal violence.” “Take … the case of the silent caller. He intends by his silence to cause fear and he is so understood. The victim is assailed by uncertainty about his intentions. Fear may dominate her emotions, and it may be the fear that the caller's arrival at her door may be imminent. She may fear the possibility of immediate personal violence.”

Indeed, it is clear that the words do not have to be spoken; written notices were part of the campaign of intimidation in Burstow and in the following case it was confirmed that writing could be enough:

Constanza [1997]

Facts: The defendant mounted a campaign of hate against an ex-work colleague over a period of 20 months. He sent over 800 threatening letters, would follow her home, wrote offensive word on her front door, drove past her house, stole items from her washing line. As a result she suffered clinical depression. He was charged with ABH under s.47 OAPA 1861. The defendant contended that words alone could not amount to an assault and that the letters could not amount to an assault as there was no immediacy.

Court of Appeal: D’s conviction was upheld. The jury were entitled in the circumstances to find that immediacy was present and words can amount to an assault.

2. Apprehension of force

V must apprehend force, so if he does not believe the treats will amount to anything, there can be no assault. Does the victim of assault have to apprehend violence, or is the apprehension of touching enough? Herring and Horder both suggest that it is well established in the case law that apprehension of touching will be enough.

3. Imminent

A threat of distant violence is not an assault (e.g. a threat from D that he will ‘beat up’ V in a week’s time). In Ireland Steyn thought that violence within ‘a minute or two’ would be enough. Where is the line drawn? We can’t really know without more guidance.

• Is it enough for V to fear there may be violence imminently, or in the future? Yes. This was confirmed in Constanza —among the V’s fears was one that the D would come and hurt her immininently.

4. Does the D have to carry out the threat?

No. This is clear from the following case.

Logdon v DPP [1976]:

Facts: D showed V a gun and announced he would keep V hostage. D argued that he did not intend to carry out his threat, and indeed because the gun was fake he was not able to and therefore he could not be guilty of assault.

Divisional court: His conviction was upheld because he had created fear of violence in the victim. The fact that he did not intend to carry out the threat and was incapable of doing so provided no defence.

5. What if the threat is conditional?

I.e. I will punch you unless you apologise. Could be argued that it’s still in V’s control whether to get punched, so the apprehension can’t be imminent. Courts haven’t resolved this issue. Need to distinguish this situation from words which negate a threat. E.g.

• Tuberville v Savage [1669]: while holding a sword the D said “if it were not assize time, I would not take such language.” Here the words negated the threat —V knew he would not be stabbed because it were assize time.

BATTERY

Definition:

• AR: D touched / applied force to the V

• MR: D intended or was reckless as to touching / applying force to the V.

There is no need for an injury for a battery — D does not even need to feel the touching.

1. How must the battery be carried out?

There seems little doubt that a battery can be carried out through an object.

Fagan [1969]

Facts: D drove his car...

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