#19108 - 2 Assault - Criminal Law

2 Assault

*ASSAULT OCCASIONING ABH = S 47; INFLICTING GBH = S 20; CAUSING GBH WITH INTENT = S 18*

*MALICIOUS = INTENTION OR RECKLESSNESS

• Common Law Assaults (summary only; max 6 months imprisonment)

*defendant usually liable for both (unless they hit them from behind = only liable for battery)*

• Simple assault: an act which intentionally or recklessly causes another person to apprehend immediate and unlawful personal force

• AR: causing the victim to apprehend immediate and unlawful personal force (i.e. victim believes they are under threat of being immediately unlawfully touched)

• threat must be apprehended - if attacker snuck up on you so you didn’t believe you were under threat of being touched = there is no AR

• victim does not need to fear the threat; just to be aware of it (apprehend it)

• threat must be of immediate force - threat to beat you up next week = no AR

• immediate is widely construed – (R v Burstow): victim was stalked for years; AR was established because they feared that force could occur immediately at any time

• worlds alone can amount to simple assault (without physical gesture) (R v Ireland)

• silence can amount to assault if it causes apprehension of immediate unlawful force (R v Ireland – series of silent calls)

• one silent call probably won’t cause apprehension of immediate unlawful force, so unlikely to satisfy AR

• conditional threats may satisfy AR if they meet all the requirements (Read v Coker) e.g. ‘I will hit you, if you continue to speak’ > the apprehension must still be of immediate unlawful personal force, so ‘I will hit you if you continue to date my daughter’ wouldn’t satisfy

• an OMISSION CANNOT CONSTITUTE an assault

• MR: intention or recklessness as to causing the apprehension of immediate unlawful personal force (R v Venna)

• Physical assault (Battery): inflicting unlawful personal force on another

• AR: infliction of unlawful personal force on another person

• Doesn’t have to be direct physical contact with victim; force can be using a weapon or through a medium e.g. through clothes, or riding over foot with bike, placing obstacle for them to fall, pushing someone else to fall into the person

• spitting is included

• no injury required

• victim doesn’t need to apprehend the threat of force before being hit

• AN OMISSION CANNOT CONSTITUTE AN ASSAULT

• MR: intention or recklessness as to inflicting such force **[on a human being]**

**applies if intoxicated. i.e. if so intoxicated that they believe the person is a monster, they will lack intent to inflict force on human being = No MR**

• physical contact of everyday life isn’t battery (Collins v Wilcock - e.g. jostling in crowded area, handshake, tap for attention, back slap - because implied consent)

• Statutory assaults: Offences Against the Person Act (OAPA) 1861

• s 47: assault occasioning actual bodily harm (either way; max 5 yrs.)

• AR: an assault (simple or physical assault) causing ABH

• Actual bodily harm (some harm): any hurt or injury calculated to interfere with the health or comfort of victim (doesn’t have to be serious e.g. could be bruise, swelling, scratch etc, pulling clump of hair off head; but it has to be more than transient or trifling e.g. can’t have just caused temporary redness of skin, minor scratch, or a very small bruise)

• Includes psychiatric injuries (recognised medical conditions only i.e. not fear, distress, panic attack)

• Includes loss of consciousness

• MR: intention or recklessness as to the assault (simple or physical - i.e. as to application of unlawful force or as to causing the apprehension of immediate unlawful force)

• not necessary to prove intent or recklessness to cause harm

• s 20 (Inflicting GBH): Maliciously wounding or inflicting GBH (either way; max 5 yrs.)

• AR: unlawfully wound or inflict GBH to a person

• Wound: breaking both layers of skin causing blood (includes minor/small cuts/scratches if draw blood) (Moriarty v Brookes)

• internal bleeding doesn’t count because skin isn’t broken (JJC v Eisenhower) (but severe internal bleeding could be GBH)

• GBH (Grievous bodily harm): really serious harm (DPP v Smith) e.g. broken bone, fracture, severe internal injury

• knocking someone unconscious may be GBH (not always)

• Includes severe psychiatric harm (clinically recognised)

• includes serious STD’s

• Jury consider effects of injuries on particular victim e.g. age, health

• MR: intend or reckless as to causing ABH (some harm) (Savage; Parmenter)

• s 18 (Causing GBH with intent): wounding or causing grievous bodily harm with intent (indictable-only; max life)

• AR: unlawfully wound or cause GBH to a person (same as s 20)

• MR: either:

1. Intent to cause GBH (recklessness not enough), or

• e.g. repeated blows, use of weapons, blows to head, neck, chest might indicate

2. Intent to resist or prevent the lawful apprehension or detainment of a person (ulterior intent); and intention or recklessness (foresaw) as to victim suffering ABH (some harm)

Defences to assault

CONSENT: valid consent may provide a defence

• consent is only valid if the victim knew the identity of the defendant and nature and quality of the act they are consenting to (Dica; Konzani)

• issue for jury to decide

• whether a child can consent depends on if the child is sufficiently intelligent and understanding to give consent

• consent under duress unlikely to be valid consent

Generally, CONSENT CAN BE USED AS DEFENCE TO COMMON LAW ASSAULTS WHERE NO HARM WAS CAUSED OR INTENDED, but not where some harm was caused or intended (statutory offences):

RECOGNISED EXCEPTIONS (because activities in public interest): consent is a defence where harm was caused

1. Surgical operations

2. Dangerous exhibitions e.g. circus acts

3. Properly conducted sports

• Even if outside rules of the sport, consent would only be barred if conduct was sufficiently grave to be criminal (R v Barnes) i.e. well beyond the rules of the sport

4. Rough horseplay (rough and ill-disciplined behaviour)

5. Other lawful activities e.g. haircut, tattooing, ritual circumcision, piercings, religious modifications (R v Brown)

• For certain body modifications, consent is not a defence e.g. partial ear removal, tongue splitting (R v BM)

• (R v Wilson) allowed branding with consent because akin to tattooing

SELF-DEFENCE / DEFENCE OF ANOTHER:

• general defence (apply to any offence)

• complete defence

• burden of proof: evidential burden on the defence to raise enough evidence to raise the issue and then on the prosecution to disprove beyond reasonable doubt

• self-defence CAN’T BE USED IF ACTING OUT OF REVENGE

• Self-defence: Defendant need’s to show jury they used: [OBJECTIVELY] REASONABLE FORCE IN THEIR CIRCUMSTANCES AS THEY HONESTLYBELIEVED THEM TO BE [SUBJECTIVELY]

• Must only use reasonable force which jury will determine, taking into account e.g.:

1. Degree of force compared to seriousness of the offence they were trying to prevent

2. Whether they made the first move or were attacked first

3. Could they have done something else instead e.g. retreated, called police

• However they don’t have to retreat first or wait for person to hit them to use the defence, jury will just take into account

4. Were they mistaken about what they thought the other party was going to do

5. Was the threat imminent or in the future

6. The physical threat of the assailant versus the person claiming self-defence (e.g. if they are larger stronger person) can be admissible (R v Martin)

7. Take into account that you may act instinctively in defence and so may not have time to weigh up options (Palmer v R)

• other rules

• DOESN’T MATTER IF YOUR MISTAKEN BELIEF WAS UNREASONABLE (so long as it was your genuine belief)

• (unless so unreasonableness that it might convince the jury that it isn’t what the defendant genuinely thought at the time)

• Self-defence NOT APPLICABLE WHERE YOUR MISTAKEN BELIEF WAS BECAUSE OF VOLUNTARY INTOXICATION (O’Grady; Hatton; s 76(5) Criminal Justice & immigration Act)

• Psychiatric traits that lead to greater fear of threat aren’t admissible concerning whether the force was reasonable (R v Martin)

• Defendant cannot rely on facts which they were unaware of when they acted concerning whether the force was reasonable (R v Dadson)

• s 76 Criminal Justice and Immigration Act 2008

• HOUSEHOLDER CASES: where someone uses force on someone IN A DWELLING (building, vehicle, vessel), the degree of force...