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Non Fatal Offences Against The Person Notes

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? 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]
? 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 onto a policeman's foot and left it there. Divisional Court: this was a battery (see topic 2 notes on coincidence of MR / AR). Two points:


On assault: there was dicta that suggested that assault required a positive act and cannot be committed by omission.
? On battery: a battery can be committed through an object (e.g. a car). In Fagan the courts seemed to find a battery through omission (leaving the car on the police man's foot). DPP v Santana-Burmudez [2003]
Facts: D was asked by a police officer who was planning to search his clothing whether he had on him any sharp objects. He said that he did not, but when the officer put her hand in his pocket, she was cut by a needle. Divisional Court: there was a battery. "where someone (by act or word or combination of the two) creates a danger and thereby exposes another to a reasonably foreseeable risk of injury which materialises, there is an evidential basis for the actus reus of an assault occasioning actual bodily harm."

2. Does battery require the application of force The following are the two leading cases in this area DPP v K [1990]
Facts: a 15-year-old school-boy placed some acid he had stolen from a chemistry lesson into a hand drier (he was trying to dispose of it without being caught). Another pupil used the drier and the acid was blown onto him. Parker LJ: placing the acid in the drier was reckless, so D was guilty when the injury was caused. The facts indicated that D knew he had created a dangerous situation and was reckless to the consequences --- it was immaterial that the boy had not directly applied the acid to his victim. Haystead v Chief Constable of Derbyshire [2000]
Facts: D struck a woman who was holding her baby. As a result of the blows she dropped the baby. D was charged with battering the baby. It was held that he was properly convicted because he had caused unlawful force to be applied to the baby when the baby hit the floor.

3. Can everyday touching amount to battery?
Collins v Wilcox [1984]

Facts: A police woman took hold of a woman's arm to stop her walking off when she was questioning her. The woman scratched the police woman and was charged with assaulting a police officer in the course of her duty. Court of Appeal: The police woman's actions amounted to a battery. D's action was therefore in self defence and her conviction was quashed.
? Goff LJ stated that implied consent existed where there was jostling in crowded places, handshakes, back slapping, tapping to gain attention provided no more force was used than is reasonably necessary in the circumstances. There was no consent given for the grabbing of the arm. NB: the mens reae of the two offences are not interchangeable (this is the normal rule)
--- so if D approaches a sleeping V intending to touch them, but V wakes up and runs away (suffering the AR of an assault) D is not guilty because he intended an assault, but committed a battery (Note: although he may have been reckless as to whether V would apprehend a fear of violence --- i.e. because sleeping people do wake up when approached!). ASSAULT OCCASIONING ACTUAL BODILY HARM--- s.47 OAPA s.47 Offences Against the Person Act 1861: "Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable ... to imprisonment for a term not exceeding 5 years." Definition:
? Actus Reus: the D must commit an assault or battery which causes the victim to suffer actual bodily harm.
? Mens Rea: The D must intend or be reckless as to the assault or battery. NB: there is, therefore, no need to show that the D intended / foresaw the ABH itself.

1. There must be an assault or battery This means that both the AR and MR of the assault / battery must be shown.

2. The victim must suffer actual bodily harm This means a level of harm greater than a mere touching (a battery). The guidance issued to prosecutors recommends that "the fact that there has been significant medical intervention and / or permanent effects have been resulted" is to be taken into account when deciding whether to prosecute. The following case gives some guidance: DPP v Smith [2006]

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