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Generally, non-fatal offences against the person fall into two broad
categories, assault (from common assault to aggravated assault) and
offences of a sexual nature. These offences are either offences at
common law or were created by statute, notably the Offences against
the Person Act (OAPA) and the Sexual Offences Act.
This is the least serious of assault offences, the essence of which is
that the victim fears the direct application of force against him. There
has been much debate as to whether the offence, like battery, is an
offence at common law. Both were developed via common law. The
definition of both is determined by common law, however the statute
relating to them, the Criminal Justice Act 1998, section 39, prescribes
the penalty. By virtue of Section 39 of the Criminal Justice Act,
common assault like battery, is punishable with the maximum penalty
of six (6) months and/or a fine of 5,000.00
In Fagan v Metropolitan Police Commissioner it was noted that an
assault is any act which intentionally or possibly recklessly- causes
another person to apprehend immediate and unlawful personal
violence. See also Venna (1976).
The Actus Reus of the Offence
The actus reus involves the creation of an expectation of immediate
unlawful violence in the mind of the victim.


1. The Conduct of the Defendant

It is the conduct of the defendant which should create the
apprehension of violence in the victim.

a) Non Verbal Threat

It was once thought that a person could not be assaulted by words
alone. The ruling in Ireland ,Burstow however shows that even a
non verbal threat can constitute an assault.
Ireland (1998)
The defendant made repeated silent phone calls at night to three
women who suffered psychiatric harm as a result. The House of
Lords upheld the Defendants convictions for assault.
Burstow (1998)
The defendant conducted an eight month campaign of harassment
against a woman which included silent and abusive phone calls and
sending her a menacing note. As in Ireland (the two cases were
dealt with together by the Court) the House of Lords upheld the
defendants conviction.
Since the ruling in these two cases, it is clear that words or even
silence can be constituted as an assault once the victim apprehends
immediate personal violence.
On the other hand words spoken can undermine the seriousness of
the threat.
Tubeville v Savage (1669)
In a quarrel with S, T the defendant placed his hand on his sword and
said If it were not assizes time, I would not take such language from
you. The spoken words were in direct contradiction to the placing of
the hand on the sword, since they indicated that the threat would not
be carried out. The victim therefore could not claim to have any
apprehension of violence.
Omission to Act
Mere omission is not enough to satisfy an offence of assault being
committed. In Fagan vs. Metropolitan Police, it was held that the
action of the defendant in not removing his vehicle from the foot of

the policeman constituted an offence on the basis of the continuing

act principle (coincidence of actus reus and mens rea).

Apprehension of Violence

If the victim does not apprehend immediate violence there is no

Thomas v National Union of Mine Workers (Num) (South Wales
Area) (1986)
Striking workers picketing outside the gate of their place of work
made violent threats and gestures to fellow employees who were not
on strike and who sought to enter the compound for work by bus.
The striking workers were however held back by a police cordon.
The court ruled that no assault was committed as given the
circumstances there could be no apprehension of immediate harm.
However once the victim apprehends immediate violence the offence
is committed even if the defendant had neither the intention nor the
means of carrying out the threat. The question is not whether the
victim is immediately put in fear but whether the defendants conduct
caused the victim to apprehend immediate unlawful force.
Logdon (1976)
The defendant threatened the victim with an imitation firearm. The
victim was unaware that this weapon was not real and therefore could
do no harm. The court ruled that this was irrelevant. Assault is not
about a person being on the point of carrying out an attack, it is about
creating the apprehension of immediate violence.

The threat must be of immediate violence or unlawful touching. The
Courts have however taken a liberal approach to the meaning of the
word immediate.

Smith v. Chief Superintendent Working Police Station (1983)

The Defendant intended to and did frighten the victim by looking at
her through her bedroom at 11:00 p.m. There was no evidence that
he intended or was even trying to enter her room. The court ruled
that the victim had apprehended the immediate application of force
and the defendant was therefore guilty of assault.
In Ireland, Burstow the defendants were no where close to the
victims in terms of proximity, so that the victims could not even see
the defendants at the material time. The courts however held that an
assault had been committed in each case. In Ireland it was held that
the silent telephone calls could give rise to an apprehension of
immediate harm because the victims did not know what the
defendant was doing and that he could be on his way to her house.
Constanza (1997)
The defendant sent over 800 letters to the victim and generally
harassed her. Two letters were particularly threatening and she
suffered stress as a result. The court found that the defendant did
commit an assault. The immediacy requirement was satisfied
because after receiving the letters the victim was afraid that she
might be attacked at any time including the near future. The Court of
Appeal stressed that what was paramount was what was operating
on the victims mind at the time of the incident and not necessarily
how it was conveyed:
How it got there, whether by seeing an action or hearing a
threat and whether that threat was conveyed verbally
through words spoken either directly in the presence of
the [victim] or over the telephone or whether that fear was
aroused through something written, whether it be a letter
or fax, seems to us wholly irrelevant.

Apprehension That There May be Harm

Lord Steyn noted in Ireland that the offence of assault is committed

once the victim is put in fear that the defendant may use violence. It
therefore need not be proved by the prosecution that the victim fears

that the defendant will definitely use violence. Thus in Constanza,

the court ruled it was enough that the victim believed that the
defendant might attack her in the future.


Intention or recklessness as to the creation of an apprehension of
unlawful force is the mens rea for assault. Regarding recklessness, it
must be proved that the defendant foresaw the risk of his action
causing apprehension of unlawful violence in the victim.

The offence of battery involves:

The unlawful use of force on another person.

Intention or recklessness that force will be used against

In Fagan v. Metropolitan Police Commissioner it was noted :

A person is guilty of battery if he intentionally or recklessly
applies unlawful force to the body of another person.


A threat or use of force cannot constitute a battery (or assault) if
the threat or force is not unlawful as in instances where:

The victim validly consents. (a victim can only consent to

assault or battery but to no greater harm).
The defendant threatens or use reasonable force in public
or private defence i.e. self defence, defence of another or



property, the prevention of crime or the furtherance of

lawful arrest.
The defendants conduct is justified on the principle of
The defendant is acting under a statutory authority to
enter or use force.
The defendant is acting in the exercise of the power to
use force to discipline a child (although the extent of this
is curtailed by the Childrens Act).

There Does not Need to be Any Injury

Merely touching a person may amount to a battery as no injury
need be proved. The touching however must not be everyday
touching Bumping into someone on a crowded bus or tapping
someone on the shoulder to get their attention does not
constitute battery.


The Use of Force May be Direct or Indirect

Direct application requires the defendant to have direct physical
contact with the victim.
Indirect application occurs where the defendant creates an
obstruction or places an object or does anything which results
in force being applied to the victim when the victim does an Act.

DPP v K (1990) (This case has since been overruled but not on the
point in issue)
D, a school boy had been carrying out an experiment using sulphuric
acid in a chemistry class. He had some acid on his hands and went
to the toilet, wrongly taking a test tube of the acid with him. He
intended to test its reaction on toilet paper but heard someone
coming and placed it in the hot air drier intending to return to retrieve
it. Before he could however, another boy used this equipment and
was permanently scarred. The court held that the defendant was
guilty of assault occasioning actual bodily harm.

See also Haystead v. Chief Constable of Derbyshire (2000) (Notes

on Causation - man pushed woman, she dropped baby).
See as well Scott v Shepard (below)


The Element of Hostility

There is some debate as to whether proof of hostility must be shown

to establish a case for battery. An embrace by a rejected love or an
unwanted kiss can amount to battery.
In the civil case of Wilson and Pringle (1986), the Court of Appeal
held that the touching must be proved to be hostile.
Collins and Wilcock (1984) A police officer saw two women who
they thought were soliciting for the purpose of prostitution. The police
officers called out to them to get into a police car as they intended to
question them. One refused and walked off. A police officer took
hold of her arm to detain her and she scratched the officer with her
nails and was convicted. The issue in the Court of Appeal
surrounded whether the officer had in fact committed a battery. The
court held that the appellant had not given her consent to be held and
further that the police was not exercising any power of arrest or acting
under any other statutory power. As a consequence she had
committed a battery.
Faulkner v Talbot (1981)
A woman took a boy to her bed and touched him in an indecent
The court ruled that this was a battery even though the
touching was not hostile but rather affectionate
In Brown (1994) obiter, the House of Lords held there was a need to
show that the battery was hostile, but only in the sense that it was not
consented to. The end result therefore is that the act must be
hostile in the sense of no consent, but not hostile in the sense of
being aggressive.


The court in Fagan ruled that a battery could not be committed by an
omission. Instead the defendants act was seen as a continuous one
rather that an omission.
In DPP v. Santana Bermudez however, the court ruled that the
defendants liability may be based on an omission (with the
appropriate mens rea) to take such steps as lie within his power to
counteract a dangerous situation created (even inadvertently) by the
defendant himself.
This is a direct application in the principle of Miller. Indeed in DPP v.
K the court recognized that if the defendant had lacked the
appropriate mens rea but realized the risk before the victim was hit
and did nothing about the dangerous situation he created, liability for
his battery could be based on an omission (with mens rea) to rectify
the situation.
The law as it stands seem to be that a mere omission will not suffice
for a battery except in circumstances such as that in Miller i.e. where
the defendant creates a dangerous situation and does nothing about
the foreseeable risk of harm to others.
The mens rea for battery is an intention to apply unlawful force or
recklessness as to whether such force will be applied.
Venna (1976)
D was involved in a fight in the street and kicked V, a police officer
who suffered a fractured arm as a consequence. He was convicted
of assault occasioning actual bodily harm and threatening behaviour.
His subsequent appeal was dismissed. The C/A ruled that the
element of mens rea in battery is satisfied by proof that D either
intentionally or recklessly applied force to the person of another.
Scott and Shepherd (1773)
Shepherd threw a lighted squib into a market house. It landed on the
stall of a ginger bread seller. To prevent damage to the stall, the

seller picked it up and threw it across the market. It landed on another

stall. This seller picked it up and threw it again. This time it struck the
claimant in the face and exploded, blinding him in one eye. The court
ruled that the defendant intended to scare someone though he did
not intend to harm the claimant. He was therefore liable.

Common Assault
In many instances rather than charging assault or battery the
prosecution will charge the offence of common assault. Common
assault comprises both assault and battery and is viewed as an
offence against s39. Where force has been applied, the actus reus
and mens rea will be that of battery. If no force is applied but there is
the apprehension of harm the actus reus and mens rea is that of
Unlike other, more serious nonfatal offences, assault and battery are
not tried on indictment, unless the defendant has also been charged
with other serious crimes. If the charges relate solely to assault or
battery the accused will be tried by judge alone, without a jury.


A number of offences against the person are considered aggravated.
For such an offence to be proved it must be shown that some kind of
harm had befallen the victim at the hand of the defendant. This
makes the offence more serious than common assault where V
simply apprehends the infliction of violence to his person.
Aggravated offences under the Offences Against the Person Act
(OAPA) 1861 include:
1. Assault occasioning actual bodily harm
2. Malicious wounding or inflicting grievous bodily harm.
3. Wounding or causing grievous bodily harm with intent and

4. The administration of poison or other destructive or noxious



This is an offence contrary to section 47 of the OAPA with the
maximum penalty being 5 years imprisonment if convicted on
To prove its case the prosecution is duty bound to prove each
element of the offence as follows:
The actus reus of the offence
The actus reus of the offence requires proof that an assault or battery
had been committed by the defendant. Both the actus reus and the
mens rea of assault and/or battery must be established.
In this instance the occasioning means the same as causing. It is
not enough to show that the defendant assaulted the victim and the
victim suffered bodily harm. What must be proven is that the assault
caused the actual bodily harm.
Roberts (1971)
The appellant was convicted of an assault occasioning actual bodily
harm, contrary to section 47 of OAPA. He had given a lift in his car to
a female and as a result of his advances ( he attempted to remove
her coat) she jumped from the vehicle while it was moving, and was
injured. The C/A dismissed his appeal, holding that it was not a
requirement under section 47 for the accused to have foreseen the
actions of the victim that resulted in the actual bodily harm. The test
was whether is could reasonably have been foreseen as a natural
consequence of what the defendant said and did.


Actual Bodily Harm

In Donovan (1934) The Court of Appeal noted:
Bodily harm has its ordinary meaning and includes any hurt or
injury calculated to interfere with the health or comfort of the
victim. Such hurt or injury need not be permanent but must no
doubt be more than merely transient and trifling.
See also Miller (1954)
The meaning of actual bodily harm was further expanded and
explained in the court of appeal decision of Chan Fook. It was held
that harm meant injury and that actual indicates that the injury
should not be so trivial that it is insignificant although it need not be
permanent. The court held further that bodily harm is not limited to
harm of the skin, flesh and bones (such as bruises, grazes and
tenderness) but includes the entire body including organs, the
nervous system and the brain. That being the case actual bodily harm
includes any identifiable psychiatric injury brought about by
psychological factors but does not include panic, hysterics or any
nervous condition.
Chan-Fook (1994)
The appellant was convicted of a section 47 offence after assaulting
the victim whom he suspected of stealing his fiances engagement
ring. After aggressively questioning the victim, D dragged him to a
second floor room and locked him in. V, fearing Ds return, escaped
through a window and was injured. The basis of the charge was not
simply the assault but the psychological harm that V had suffered.
The phrase actual bodily harm the Court of Appeal held, while it
may include psychiatric injury suffered, mere emotions such as fear,
distress or panic is excluded. As there was no evidence to support
the allegations of psychiatric injury, the conviction could not stand.
The decision in Chan-Fook was held to be correct by the House of
Lords in the later cases (decided together) of Ireland; Burtsow.


Since Chan-Fook further clarifications on actual bodily harm has

been provided by the courts:
T v DPP (2003)
The court held that loss of consciousness falls within the meaning of
harm as it involves impairment to the victims sensory functions.
DPP v Smith (Michael)( 2006)
The court held that harm is not limited to injury but extends to hurt or
damage. That being so the court concluded that physical pain is not a
requirement. Thus the cutting of a persons hair which is an attribute
and a part of the human body could constitute an offence under
section 47. The court however noted that a substantial amount would
have to be cut for there to be substantial (rather than trivial or
insignificant) bodily harm.

It must be noted that although scratches, grazes or minor bruises

etc., can be considered to be assault occasioning actual bodily harm,
as a result of prosecuting policy such offences will be prosecuted
under section 39 Criminal Justice Act .
The Code for The Crown Prosecutors, 1994 provides guidance in this
respect. It notes that although an injury can be classified as actual
bodily harm, in instances where the injury is minor the appropriate
charge would be contrary to s. 39 Criminal Justice Act. Injuries
prosecuted under this section will include broken teeth, broken nose,
minor fractures, extensive bruising, psychiatric injury, etc.

Mens Rea of Assault Occasioning Bodily Harm

The mens rea for section 47 is the mens rea of assault and battery.
The prosecution is therefore not duty bound to show that the accused
foresaw that actual bodily harm would be caused to the victim as a
result of his assault. The only requirement is that it must be proven
that the bodily harm was caused by the assault. In Roberts (1971)

the Court of Appeal rejected the view that one of the considerations
should have been whether the defendant foresaw the victim suffering
injury as a result of his actions. The court ruled that the only issue
was one of causation. This decision was confirmed by the House of
Lords in Savage; DPP v Parmenter (1992)

D committed a battery on V, a former girlfriend of Ds husband, when
she threw a pint of beer over her. V was soaked but she was also cut
by a piece of flying glass, because D had let go off the glass and it
shattered as it fell to the floor. It is not clear whether D deliberately
threw the glass or whether it accidentally slipped from her grasp. D
was charged with unlawfully and maliciously wounding V contrary to
sction 20 OAPA. She was convicted. The C/A overturned the
conviction and substituted a verdict for assault O.B. harm contrary to
section 47. The issue taken to the House of Lords was whether such
an offence would only have been established if foresight as to the risk
of bodily harm resulting from the battery had been proved. The House
of Lords approving Roberts, ruled that the prosecution did not have
to prove that the defendant, charged with a s. 47 offence, intended to
cause some actual bodily harm or was reckless as to whether such
harm could be caused.
D shook his child so violently, he was seriously injured. The court
ruled that there was no requirement for the prosecution to establish
foresight of harm.



Section 20 of the OAPA notes:

Whoever shall unlawfully and maliciously wound or inflict any
grievous bodily harm upon any other person, either with or
without any weapon or instrument shall be guilty of an offence.
Like that of assault O.B. harm, this offence is punishable with five
years imprisonment although it is generally considered more serious.
In proving its case there are a number of elements the prosecution
must establish
1. The act was unlawful (unlawfully)
2. The act was malicious (maliciously)
3. The act caused a wound or
4. The act inflicted grievous bodily harm

The Actus Reus

Section 20 actually creates two separate offences. The actus reus of
wounding is an act resulting in the unlawful and malicious wounding
of another. The actus reus of inflicting grievous bodily harm is an act
causing the unlawful infliction of G.B.H. on the victim.
It must be proven that the defendant acted unlawfully. If therefore his
action is legally justified i.e. acting in lawful self defence, the charge
will not stand.

To constitute a wound the inner and outer skin must be broken (a
break in the continuity of the skin). A bruise or broken bone is not
sufficient. There is however no need for the act to be serious.


For a number of years the courts view on this term was restricted to
mean that the grievous bodily harm was suffered as a result of an
Clarence (1888)
D, knowing he had a venereal disease, had sexual intercourse with
his wife and infected her. He was convicted of offences under both s.
20 and s.47 of the OAPA 1861. On appeal the convictions were
squashed. The court held that where there was no assault there
could be no infliction of harm.
In 1998 the House of Lords in Wilson declined to view this matter in
so restricted a manner. It held that there could be an infliction within
the ambit of section 20 without an assault. The court noted that the
prosecution can establish infliction in one of two ways:
a) A direct application of force on the victim
b) By intentionally committing an act which, although not directly
applying force, results in force being applied to the victim who
suffers gbh. For example D who knows that V is blind digs a
deep trench in front of VS front door as a joke. V falls in and
breaks his leg. Although the application of force is not direct, D
may be convicted for inflicting GBH
After Wilson the House of Lords in Ireland; Burtsow again
categorically stated that the application of force is not required for
As a result of these decision any act which causes G.B.H. constitutes
inflicting such harm. Thus causing someone to suffer G.B.H. by
infecting him with a disease is now an offence contrary to s. 20 of the
Dica 2004
The appellant was convicted of inflicting G.B.H. on two women with
whom he had sexual relations. He was HIV positive and had infected
them with the virus. The C/A ruled that if the victims were aware of
the appellants status and had consented to the risk of acquiring the

virus then their consent provided a defence to the s. 20 charge.

However if the victims were not aware of his status and had not
consented to run the risk, the defendant could be convicted if he was
aware that by his actions (sexual intercourse) he was exposing them
to the risk of infection.
This being the case, Clarence must now be regarded as bad law
although is has not been expressly overruled.
The decision in Wilson also made it clear that that inflicting cannot be
committed by omission as a positive act is necessary as part of the
actus reus.
The House of Lords in Smith noted that the term G.B.H. meant
really serious bodily harm. The Court of Appeal in Janjua and
Choudhury held that omitting the word really and using instead the
phrase serious injury was not a misdirection by the trial judge.
In deciding whether an injury should be deemed serious, the actual
injuries suffered as well as the impact it had on the victim must be
taken into account. However it is always a question of fact for the jury
to decide whether the injury suffered is a serious one thus warranting
a conviction under the section, all things being equal. Thus what may
be considered serious injury to a 2 day old baby or a weak frail 77
years old woman may not be to a young athletic 64 male.
As a result of the ruling in Ireland; Burstow psychological injuries
can constitute G.B.H if they are really serious medically recognized
conditions. The same is true if the unlawful act renders the victim
unconscious. T v DPP (2003).
The harm done need not be life threatening or permanent. However
the charging standard (2005) for inflicting G.B.H. refers to injuries
resulting in permanent disability or permanent loss of sensory
function, non minor permanent visible disfigurement, broken or


displaced limbs or bones and injuries resulting in lengthy treatment or

The Mens Rea
The term maliciously in the wording of the statute stipulates the
mens rea required. Malicious in this sense does not mean ill will or
spite. Instead it means that D must have intended or was reckless as
to the risk of harm.
In Parmenter the House of Lords decided that maliciously in this
section meant that the accused must have foreseen that some harm
may occur, that is recklessness as to the risk of harm. Lord Ackner
It is enough that he should have foreseen that some
physical harm to some person, albeit of a minor character,
might result.
It should be emphasized that the accused does not need to have
foreseen that grievous bodily harm may result. Further, it is not
enough to prove that the defendant ought to have foreseen the risk of
bodily harm to another; he must be proved actually to have foreseen
the risk of such harm.
Since the defendant must be aware that his action might cause some
unlawful bodily harm, a defendant who is not aware of this cannot be
convicted. If D for example is under a mistaken belief that he is acting
in lawful self defence and injuries another, he could not be convicted
of same.
Aiken (1992)
Officers in the RAF were playing drunken games and set one another
alight while wearing their fireproof outfits. The victim was seized by
one of the appellants and set alight. He suffered serious burns. Their
conviction under s. 20 OAPA was overturned on the basis that the
officers belief in the victims consent could be a defence as this was
conduct that fell within the rough horseplay exception.