Oapa Offences Notes

OAPA offences

Overview

1. Introduction

   1. Five key offences

      1. Assault

      2. Battery

         1. Involves an actual unlawful and unwanted contact with the body of another

      3. Assault occasioning ABH (s.47)

      4. Malicious wounding or inflicting GBH (s.20)

      5. Wounding or causing GBH with intent (s.18)

   2. Assault & battery

      1. 2 separate offences – upheld in Little

         1. Etymology of assault – adsaltare, means “to jump at”, indicating that the focus is on frightening

         2. In s.47 of OAPA, however, the term assault is to embrace both assault in the pure sense of the term and the offence of battery

   3. Ashworth & Horder see these as a ladder of offences, in escalating seriousness

   4. Etc. offences

      1. Poisoning offences

      2. Racially aggravated assaults

      3. Harassment offences

2. Mixing & matching

   1. If D charged with one type of assaults, & jury acquits, jury can nevertheless convict D of a lesser assault

   2. E.g. S.18, then consider S.20/S.47

Criminal Justice Act 1988 s. 39

Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both.

[Assault]

1. Basic definition

   1. AR – D caused V to apprehend imminent unlawful force (Ireland)

   2. MR – D intended or was reckless that V would apprehend imminent unlawful force (Venna, Savage & Parmenter)

2. Points of interest

   1. According to Little, assault is a statutory offence – but there is no statutory definition

      1. S.47 of OAPA & merely states punishment for assault occasioning ABH

      2. S.39 of Criminal Justice Act states punishment for common assault & battery

3. Elements of the offence

   1. There must be apprehension of unlawful force

      1. Does V have to apprehend violence, or mere touching suffice?

         1. Well established by Horder that apprehension that one is about to be stroked or kissed can amount to assault

         2. But perhaps not every form of touching, though threshold of violence in assault is set at a low level

         3. There can be assault for the threat of things that, should they happen, will not even hurt

      2. Wells – apprehension of psychological harm caused by D should be sufficient for assault

      3. Consent of V may legitimate what would otherwise be unlawful force

         1. There is uncertainty whether lack of consent is an element of AR or a defence to assault – former is the better view (S&S)

         2. Forceful, well-intentioned interventions may constitute assault – respect for V’s autonomy to decide what is best for himself or herself

      4. Not necessary for V to be frightened by what D intends to do – enough that she does not want D to do it

      5. Summary – AR made out if V apprehends imminent touching by D to which she has not consented and which is not an inevitable concomitant of ordinary life

   2. Imminence – what does this mean?

      1. Apprehension must be of imminent harm, not distant future

      2. Lord Steyn in Ireland indicated that a fear of violence “within a minute or two” would suffice – but where exactly should the line be drawn?

         1. We can’t know until further guidance from the courts is available

   3. V only need fear the possibility of imminent violence

      1. Established by Lord Steyn in Ireland, upheld in Constanza, where D sent 800 letters to V, repeatedly drove past her home and wrote offensive words on her front door – sufficient that when V opened the letters she feared that D might harm her at some time not excluding the immediate future

   4. D does not have to intend to carry out the threat

      1. Logdon – D showed V a gun and announced he would keep V hostage – D argued he did not intend to carry out his threat, and knew the gun was fake. However, this was no defence

   5. Controversy – conditional threats

      1. D says “unless you do X I will punch you” – Courts have not provided clear guidance (Herring)

      2. On one hand, argued to not be assault since V has it in his or her power to avoid violence by acting as requested and so cannot apprehend imminent force

         1. Blake – where D pointed a pistol at V’s head and said “shut up or I will blow your brains out”, there was no assault – possible mistake as to interpretation of Tuberville

      3. However, V still placed at risk of violence because by acting in a lawful way she will still be liable to violence

         1. In principle, such threats should normally constitute assaults (S&S)

      4. Conditional threats must be distinguished from cases where words negate a threat. In Tuberville – D while holding a sword said “if not for assize time, I would not take such language” – making it clear that he was not going to attack V, no fear of imminent violence

   6. Omission may cause assault if unlawful

      1. Smith – if a trespasser is suddenly aware that his presence in V’s garden is startling V, he may be committing assault by remaining there

      2. Similarly, if D, believing himself to be alone, puts on a horror mask to amuse himself, and in fact V is also in the carriage, and was caused to fear imminent attack from D, AR has occurred, and continues while D does not remove the mask. Hence, it is possible for D to commit the offence later, when he becomes aware of V’s presence (S&S)

LOGDON V DPP [1976] CRIM LR 121

1. Legal significance

   1. An assault had been committed at the point where V had apprehended immediate unlawful personal violence and D was reckless as to whether she would apprehend such violence – that D did not intend to carry out the threat is immaterial

2. What happened

   1. D showed V a gun and announced he would keep V hostage – D argued he did not intend to carry out his threat, and knew the gun was fake

   2. Held – conviction upheld

**Venna [1976] QB 421, [1975] Crim. L.R. 701

3. Legal significance

   1. Recklessness in use of force would suffice to satisfy MR for criminal assault

4. What happened

   1. D resisted arrest, fighting violently, & in so doing fractured the hand of an officer

   2. D charged with s.47

[Battery]

1. Basic definition

   1. No statutory definition given, only mentioned in s.39 of CJA 1988

   2. AR –

      1. Unlawful touching of V, however slight (Collins)

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