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Non Fatal Offences Short Notes

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NON-FATAL OFFENCES AGAINST THE PERSON --- QUICK NOTES ASSAULT AND BATTERY ASSAULT AR: D caused V to apprehend imminent unlawful force MR: D intended / was reckless that V would apprehend imminent unlawful force NB: force must be unlawful --- if V apprehended D would lawfully touch her (e.g. in self-defence) then there is no assault. Words are enough R v Ireland and Burstow [1998]: what matters is that D caused V to apprehend imminent harm; how the fear was created is immaterial:
? Facts (Ireland): D made a large no. of telephone calls to three women (remaining silent when they answered). As a result, each suffered recognised psychological damage.
? Facts (Burstow): B harassed an ex-girlfriend for a period of 8 months --- making silent phone calls, distributing offensive cards in her street, sent menacing notes, appeared at her home and took photos of her / her family. She suffered from a depressive illness as a result.
? HL (Steyn): assaults can be committed by words / gestures alone --- if the making of a silent phone call caused fear of immediate and unlawful violence, that was assault. N.B because V thought D could arrive 'at any time' the imminence requirement is fulfilled --- D has created a fear of imminent violence. Would not have been enough is V thought D couldn't come until next week. Constanza [1997]: Writing can be enough (doesn't have to be a phone call):
? Facts: D harassed an ex-colleague over a period of 20 months. Sent over 800 threatening leters, would follow her home, wrote an offensive word on her front door etc. As a result she suffered depression. D contended that letters could not amount to an assault as there was no immediacy.
? CA: 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. Apprehension of force: V must apprehend force. If D does not believe the threats will amount to anything, then there can be no assault. Herring and Horder suggest that apprehension of touching (rather than anything more violent) is enough. Imminent: A threat of distant violence is not enough. In Ireland and Burstow Steyn thought violence within a minute or two would be enough. We don't have a clear line, however. It is enough that a fear of immediate violence is among V's fears: confirmed in Constanza --- enough that V fears D may hurt her imminently. D does not have to actually carry out the threat: Logdon v DPP [1976]: D showed V a gun and told him he was his hostage. D argued that he did not intend to carry out the threat and that the gun

was fake. Divisional court: conviction was upheld because D had created a fear of violence in V. The fact he could never have shot V and did not intend to do so was irrelevant. Threat is conditional? This is unresolved --- could argue that V is still in control of whether he will suffer harm --- e.g. apologise or I will punch you. Need to distinguish this situation from words which negate a threat: 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 was assize time. BATTERY Definition:
? AR: D touched / applied force to V
? MR: D intended / was reckless as to touching / applying force to V. NB: no need for an injury, nor for D to even feel the touching. A battery can be carried out through an object: Fagan [1969]: 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). This also seems to be a case of battery via omission. DPP v Santana-Burmudez [2003]: D was asked by police (prior to being searched) whether he had on him any sharp objects. He said no, but the officer was cut by a needle in his pocket. 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]: 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. It was immaterial that the boy had not directly applied the acid to his victim. Haystead v Chief Constable of Derbyshire [2000] 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. CA: conviction upheld: he had caused unlawful force to be applied to the baby.

Can everyday touching amount to battery? --- no there is implied consent in some circs.
??? ?Collins v Wilcox [1984]: 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.CA (Goff LJ): The police woman's actions amounted to a battery. D's action was therefore in self-defence and her conviction was quashed. 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:
??? ?AR: D must commit assault / battery which causes V to suffer actual bodily harm.
? MR: The D must intend / be reckless as to the assault or battery. NB: there is no need to show that the D intended / foresaw the ABH itself. There must be an assault / battery: both the AR / MR of either offence must be made out. V must suffer ABH: 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 gives some guidance:
? DPP v Smith [2006]: V was awoken by D, (her ex-boyfriend). D then pinned V down and cut off her ponytail with kitchen scissors. D was charged with ABH. D argued no ABH had been committed. CA (Judge LJ): Evidence of external bodily injury or a break / bruise to the surface of the skin was not required for the purposes of ABH. The cutting of a substantial part of a person's hair, without consent, in the course of an assault, was capable of amounting to an assault accessioning ABH."The hair is an attribute and part ofthe human body. It is intrinsic to each individual and to the identity of each individual ... I note that an individual's hair is relevant to his or her autonomy. Some regard it as their crowning glory."
? No doubt if just a small lock of hair had been cut off it would have been a battery. In Ireland it was confirmed that psychiatric injury could count. NB: the psychiatric injury must still have resulted from an assault / battery.Steyn: "I would hold that "bodily harm" in sections 18, 20 and 47 must be interpreted so as to include recognisable psychiatric illness."

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