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Non-Fatal Offences Against the Person 

Non-Fatal Offences Against the Person
Chapter:
Non-Fatal Offences Against the Person
Author(s):

Paul Connor

DOI:
10.1093/law/9780198806387.003.0011
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Subscriber: null; date: 15 August 2018

11.1 Introduction

Offences covered in this chapter are regularly tested in the NIE. Therefore, it is necessary that you are familiar with the law surrounding these offences. Concentrating on and understanding the basic terminology of the offence of assault will achieve this. As you will discover, the language you feel familiar and secure with is not all it appears to be.

11.2 Aim

The aim of this section is to amplify your current knowledge surrounding offences of assault.

11.3 Objectives

At the end of this section you should be able to:

  1. 1. Define the term ‘assault’.

  2. 2. Explain the terms within the definition of assault.

  3. 3. Identify when the defences of ‘consent’ and ‘lawful chastisement’ may be used.

  4. 4. Define the offences under ss. 47, 20 and 18 of the Offences Against the Person Act 1861.

  5. 5. Give examples of the injuries that will amount to ‘actual bodily harm’ and ‘grievous bodily harm’.

  6. 6. Interpret the terminology of the Offences Against the Person Act 1861.

  7. 7. Apply your knowledge to multiple-choice questions.

11.4 Assault

The term ‘assault’ is not defined in statute but in common law. Nevertheless, you will probably have a good idea of what the term means.

11.4.1 Exercise—Elements of Assault

Write down the essential elements of an ‘assault’ (you have been provided with pointers to assist you).

11.4.2 Exercise—States of Mind

The mens rea for the offence of assault is intention or recklessness. Answer the following questions with regard to these terms.

  1. 1. What do you think ‘intention’ means?

    ____________________________________________________________________________________

  2. 2. Recklessness in assaults must be ‘subjective’. In your own words, explain what subjective recklessness means to you.

    ____________________________________________________________________________________

11.4.3 Exercise—Cause to Apprehend

Look at the following scenario and answer the associated questions.

  1. 1. EARL and ASH used to be business partners but fell out when the company they had formed went into liquidation and closed. EARL blames ASH for the situation and wants to make ASH pay for the trouble he has caused. EARL buys an imitation revolver and waits outside ASH’s house. ASH leaves his house and EARL approaches him. He points the imitation revolver at ASH and says, ‘It’s all your fault and now you’re gonna pay for it by getting kneecapped!’ It is EARL’s intention to make ASH believe that he is going to be assaulted.

    • Based on these circumstances alone, do you have enough information to decide whether there has been an assault?

    • Yes / No

    • Why / Why not?

    • ____________________________________________________________________________________

  2. 2. ASH looks at the imitation revolver, immediately realises that it is a fake and, believing that he is in no danger whatsoever, says to EARL, ‘You always were a dick weren’t you? I know that’s not real so piss off and leave me alone!’ and walks away.

    • How, if at all, will this affect the situation?

    • ____________________________________________________________________________________

  3. 3. Let’s change the circumstances slightly. When ASH sees the imitation revolver he believes that it is real and thinks that he is going to be kneecapped by EARL there and then.

    • Does this change the situation?

    • Yes / No

    • Why / Why not?

    • ____________________________________________________________________________________

    • Does the fact that the revolver is an imitation and can never actually harm ASH make any difference?

    • Yes / No

    • ____________________________________________________________________________________

11.4.4 Exercise—Immediate

This word always causes doubt in the minds of those examining the law surrounding assaults. What does ‘immediate’ actually mean?

Answer the following questions relating to the concept of ‘immediacy’. You can presume that in all the scenarios the required state of mind for offender and victim is present.

  1. 1. CARP is sitting in her house watching the television when she sees GARNET looking at her through her lounge window.

    • This would satisfy the requirements of the term ‘immediacy’.

    • True / False

  2. 2. AMBROSE is working in his back garden, which backs on to a railway line. A train passes en route to a station two miles away from AMBROSE’s house and JELPH (a passenger on the train) leans out of a window and shouts to AMBROSE, ‘I’m coming for you!’

    • This would satisfy the requirements for ‘immediacy’.

    • True / False

  3. 3. FOULTON and MERTON are on separate sides of a deep and raging river. There is no way to cross the river. FOULTON shouts to MERTON, ‘I’m going to kick your head in!’

    • This would not satisfy the requirements of the term ‘immediacy’.

    • True / False

  4. 4. CREW is standing outside HODSON’s house. CREW phones HODSON using his mobile phone. When CREW answers the phone, HODSON says, ‘I’ll be round to your house in a minute or two to kick your head in!’ CREW believes the threat.

    • This would not satisfy the requirements for ‘immediacy’.

    • True / False

11.4.5 Exercise—Words, Gestures and Conditional Threats

Consider the use of words when completing the following exercises.

  1. 1. Write down an example of the use of words alone to commit an assault.

    ____________________________________________________________________________________

  2. 2. Provide an example of the use of a gesture alone to commit an assault.

    ____________________________________________________________________________________

  3. 3. An assault cannot be committed by the use of silence.

    True / False

  4. 4. You cannot commit an assault by sending someone a letter containing a threat of immediate unlawful violence.

    True / False

  5. 5. Explain what a ‘conditional threat’ is.

    ____________________________________________________________________________________

  6. 6. PARK is leaving his house for a weekend business trip. As he kisses his wife he says, ‘If I hear one word about you sleeping around while I’m away, I’ll beat you black and blue.’

    PARK does not commit an assault, as this is a conditional threat.

    True / False

  7. 7. BRISTOW is having an argument with his wife. BRISTOW puts a knife to his wife’s throat and says, ‘Shut it or I’ll cut your throat!’

    BRISTOW does not commit an assault, as this is a conditional threat.

    True / False

11.5 Battery

Like the offence of assault, ‘battery’ is an offence under common law. It is often associated with the offence of assault because where there is a battery there will often be an assault, although this is not an automatic result in all cases.

11.5.1 Exercise—Elements of Battery

Answer the following questions with regard to the offence of ‘battery’.

  1. 1. What is a battery?

    ____________________________________________________________________________________

  2. 2. What degree of violence will constitute a battery?

    ____________________________________________________________________________________

  3. 3. Force can be applied directly but can it be applied indirectly?

    Yes / No

  4. 4. If you replied ‘Yes’ then give an example of the indirect application of force constituting a battery. If you replied ‘No’ then justify your answer.

    ____________________________________________________________________________________

11.6 Unlawful

In certain circumstances, an assault/battery will not be committed because the action will be lawful. Your Manual concentrates on two significant defences to these offences: consent and lawful chastisement.

11.6.1 Exercise—Consent?

Answer the following questions in relation to the defence of consent.

  1. 1. The courts are prepared to accept consent to injury as a defence in certain circumstances. Provide three examples.

    1. i. ________________________________________________________________________________

    2. ii. ________________________________________________________________________________

    3. iii. ________________________________________________________________________________

  2. 2. In what circumstances might the courts limit the defence of consent? (Think about the degree of harm.)

    ____________________________________________________________________________________

  3. 3. Based on your answers and your knowledge of the subject, state whether consent would provide a potential defence in the following circumstances:

    1. i. KHAN injures LOWE during a properly conducted wrestling match.

      Defence / No defence

    2. ii. GABLE scores a goal in a football match. Three minutes later, DABNER jumps on and breaks GABLE’s leg as revenge for scoring the goal. Neither of the men were near the ball when this occurred.

      Defence / No defence

    3. iii. Rather than having her husband’s initials tattooed on her buttocks, FARR’s wife asks her husband to brand his initials on her buttocks with a hot knife.

      Defence / No defence

    4. iv. CEDER and BLASE are members of a sado-masochistic group who injure each other (at each other’s request) for their own gratification.

      Defence / No defence

  4. 4. HOLROYD (a male doctor) has served his local community as a GP for a number of years. BAKEWELL (a female patient) has just been examined by HOLROYD after discovering a lump in her breast. HOLROYD was suspended two weeks ago by the General Medical Council for neglect of a patient and has not informed anyone.

    Has an offence been committed against BAKEWELL?

    Yes / No

    Why / Why not?

    ____________________________________________________________________________________

  5. 5. CARD falsifies a set of formal dental qualifications and obtains a job as a dentist. He carries out a dental operation on PHILLIPS before his deception is discovered. Has an offence been committed against PHILLIPS?

    Yes / No

    Why / Why not?

    ____________________________________________________________________________________

11.6.2 Exercise—Lawful Chastisement?

Examine the following scenario and consider the defence of lawful chastisement when answering the questions.

WILLIAMSON is in favour of physical discipline as part of his Christian beliefs. He sends his son, ADAM, to a local secondary school and tells the headmaster that he can impose corporal punishment on his son should he merit it.

  1. 1. The European Convention on Human Rights requires a State to have regard to the religious and philosophical convictions of parents. As a result, the headmaster could use corporal punishment on ADAM.

    True / False

  2. 2. Corporal punishment has been outlawed in all British schools by the School Standards and Framework Act 1998.

    True / False

  3. 3. The headmaster of the school would be acting in loco parentis of ADAM and may use corporal punishment if necessary.

    True / False

  4. 4. There are no circumstances where a teacher can use reasonable force to control the behaviour of a child.

    True / False

11.7 Section 47 Assault

You have examined ‘assault’ and ‘battery’ and these activities may well constitute an offence contrary to s. 39 of the Criminal Justice Act 1988. However, the nature of the injury received by the victim may make the offence committed by the defendant a more serious one. A s. 47 assault is an assault causing actual bodily harm. While the section does not provide a definition as such, ‘bodily harm’ has been held to be any hurt or injury calculated to interfere with the health and comfort of the victim (R v Donovan [1934] 2 KB 498). As the mens rea for this offence is exactly the same as for the offence of assault, the central issue is to decide whether the injury qualifies as ABH. CPS charging standards state that ABH should generally be charged where the injuries and overall circumstances indicate that the offence:

  • merits clearly more than six months’ imprisonment; and

  • where the prosecution intend to represent that the case is not suitable for summary trial.

Examples may include cases where there is a need for a number of stitches (but not superficial application of steri-strips) or a hospital procedure under anaesthetic.

Injuries that have been classed as ABH include:

  • a kick leading to a momentary loss of consciousness;

  • cutting a person’s hair against their will.

See Investigators’ Manual, para. 2.7.11

11.8 Section 20 Wounding

The next level of assault is catered for under s. 20 of the Offences Against the Person Act 1861. This legislation is probably the oldest you will come across in your study. The actual age of the legislation is not a problem on its own; the true problem lies in interpreting legislation that is over 150 years old.

11.8.1 Exercise—Updating the Definition

The definition of this offence has been supplied for you. Your task is to substitute the words and phrases with their accepted legal meaning. If you cannot do this then substitute the words or phrases with a modern equivalent.

Whosoever shall

s. 20 OAPA 1861 =

Unlawfully and maliciously

Your translation =

s. 20 OAPA 1861 =

wound

Your translation =

s. 20 OAPA 1861 =

or inflict

Your translation =

s. 20 OAPA 1861 =

any grievous bodily harm upon any person

Your translation =

s. 20 OAPA 1861 =

either with or without any weapon or instrument

Your translation =

shall be guilty of an offence

11.9 Section 18 Wounding

What would you say if you were told that the word ‘recklessly’ forms part of the definition of the offence under s. 18?

Most people think of this offence as one where serious injury (as per the GBH in s. 20) is caused to the victim, but the significant difference is that the defendant intended to cause that injury. There is nothing wrong with this approach and it is a simple but effective way of understanding part of the offence.

The offence is committed as follows:

Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person with intent to do some grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of a felony.

There are two offences here.

The first offence is committed when the offender wounds or causes GBH intending to do so—note that the intention is to cause GBH to ANY person with the result that GBH is caused to ANY person. This is the s. 18 offence you will be familiar with.

Now think about the translation of the s. 20 offence and apply those principles to the other side of the offence.

The intention here is to resist arrest or prevent arrest, NOT to wound or cause GBH. For example, a police officer is chasing a suspect who picks up a wooden box and throws it at the officer intending to stop the officer from arresting him. The offender realises that if the box strikes the officer it will hurt him, but he throws it anyway. The box hits the officer and breaks her arm. The s. 18 offence is committed.

See Investigators’ Manual, para. 2.7.13

11.10 Conclusion

Now that you have finished this section of the Workbook your viewpoint in relation to assault related offences should have changed. You will realise that the basic offence forms the foundation for any understanding of the more serious offences associated with it. These offences require deciphering from their Victorian origins into the language of the twenty-first century.

11.11 Recall Questions

Try and answer the following questions.

  • What is the definition of an assault according to R v Fagan?

  • What is a battery?

  • What does the term ‘immediate’ mean?

  • Explain what is meant by a ‘conditional threat’?

  • When would consent be a valid defence to a charge of assault?

  • Provide some examples of injuries that would constitute a s. 47 assault?

  • What are the two points that will assist the CPS to decide whether an offence should be dealt with as a s. 47 assault?

  • Provide a modern definition of the offence of s. 20 wounding.

  • Give four examples of injuries (according to CPS Charging Standards) that would constitute a s. 18 offence.

11.12 Multiple-Choice Questions

Answers to these questions can be found in the ‘Answers Section’ at the end of the book. All explanations also include a reference back to the Investigators’ Manual 2018.

1. ABBOTT and KENNA are next-door neighbours, but do not get on as they share a driveway and are always in dispute about car parking. One afternoon ABBOTT parks his car, leaving a small part of it on KENNA’s side of the driveway. KENNA comes out of his house and begins a heated argument with ABBOTT about his parking. Another neighbour calls the police and PC RAYSON arrives to sort the incident out. While the officer is dealing with the two men they calm down. The neighbour who called the police attracts the attention of PC RAYSON and while the officer speaks to the neighbour, ABBOTT whispers in KENNA’s ear, ‘I’ve had enough of you, you tosser. You’re lucky this copper’s here because if he wasn’t I’d chin you.

Does ABBOTT commit an assault in these circumstances?

  1. A No, an assault has not been committed because the words used by ABBOTT make this a hypothetical threat.

  2. B Yes, this would be an assault as the words used imply that as soon as PC RAYSON has left the scene, KENNA will be assaulted.

  3. C No, an assault has not been committed, as you cannot assault someone by the use of words alone.

  4. D Yes, ABBOTT has committed an assault as he has intentionally caused KENNA to apprehend unlawful violence.

Answer _____________________________

2. MATONI is walking along the street holding her three-month-old child in her arms when she is approached by THEAKSTON who was, up until two weeks ago, living with MATONI. An argument develops between the two resulting in MATONI walking away from and past THEAKSTON. As MATONI passes THEAKSTON and has her back to him, THEAKSTON punches MATONI in the back of her head causing minor bruising and some swelling to MATONI’s head. The force of the blow causes MATONI to drop her three-month-old child. The child falls to the pavement and receives a ‘black eye’ as a direct consequence of the fall.

What is THEAKSTON’s liability in this matter?

  1. A THEAKSTON is liable for a common battery (contrary to s. 39 of the Criminal Justice Act 1988) against MATONI but there is no liability for the injury caused to the child.

  2. B THEAKSTON is liable for a common battery against MATONI and a common battery against the child (both contrary to s. 39 of the Criminal Justice Act 1988).

  3. C THEAKSTON is liable for a common assault against MATONI (contrary to s. 39 of the Criminal Justice Act 1988) and a s. 47 assault (contrary to the Offences Against the Person Act 1861) against the child.

  4. D THEAKSTON is liable for a s. 47 assault (contrary to the Offences Against the Person Act 1861) against MATONI and the child.

Answer _____________________________

3. TI HOVE is dealing with a public order incident where several people were arrested for affray. DUBLIN, one of the people arrested for affray, assaulted the police officer who arrested him in an effort to resist the arrest. RUNCORN, a member of the public, saw what was happening and attempted to assist the police officer who was restraining DUBLIN. As RUNCORN tried to help the officer, DUBLIN assaulted him as well.

Considering the offence of assault with intent to resist arrest (contrary to s. 38 of the Offences Against the Person Act 1861), which of the following statements is correct?

  1. A DUBLIN has committed the offence but only in respect of the police officer who arrested him for affray.

  2. B DUBLIN has committed the offence in respect of both the police officer and also RUNCORN.

  3. C DUBLIN would have a defence to the offence if he could show that he was innocent of the offence of affray.

  4. D The offence has not been committed as DUBLIN was trying to resist his arrest and not trying to prevent the arrest of some other person.

Answer _____________________________

4. WEST has an argument with SARTIN and CRAIG. During the argument SARTIN and CRAIG provoke WEST about the fact that he lost an arm in a car crash. WEST becomes very angry and shouts, ‘You pair are the biggest idiots I’ve ever met and you don’t deserve to live. In fact I’ll sort that problem out. I’ve got a shotgun and I’ll visit you both tomorrow and kill you, one arm or not!’ WEST does not intend either SARTIN or CRAIG to believe the threat, he just wants to shut them up. SARTIN laughs at WEST as he does not believe the threat but CRAIG runs away as he does believe that WEST will kill him the following morning.

Considering the offence of threats to kill (contrary to s. 16 of the Offences Against the Person Act 1861), which of the following statements is correct?

  1. A WEST has not committed the offence in this situation.

  2. B WEST has committed the offence but only in respect of CRAIG.

  3. C WEST has committed the offence in respect of both SARTIN and CRAIG.

  4. D WEST has committed the offence but would be able to use the defence of loss of control.

Answer _____________________________