Assault – Psychic Assault – charged under s 39 of Criminal Justice Act 1988

AR – Causing apprehension of immediate and unlawful violence – Nonconsensual – no proof of harm

needed

MR – Intention or subjective recklessness thereto

Battery – Physical Assault – charged under s 39 of CJA 1988

AR – Infliction of force or violence (the merest touching or physical contact) – Nonconsensual – no proof
of harm needed – direct or indirect

MR – Intention or subjective recklessness thereto

Assault occasioning ABH – s. 47

AR – Common assault resulting in ABH

MR – Intention or subjective recklessness as to the Common Assault

Wounding/inflicting GBH – s.20

AR – wounding or inflicting GBH

MR – Intention or recklessness as to some harm

GBH with intent – s.18

AR – wounding or causing GBH

MR – intention of GBH or ulterior intent to avoid arrest

Kracher – failure to charge the right offence will result in case being thrown out

Assault
A person is guilty of assault if he intentionally or recklessly leads someone to apprehend or expect the
(non consensual) application to his body of immediate unlawful force – Venna; Collins v Wilcock
An Act which threatens use of force
Require an Act, cannot be committed by omission: Fagan v MPC

Santana-Bermudez – inducing the search was an act

Constanza – act may be committed by words – D sent letters – led to clinical depression

Tuberville v Savage; Light – words indicating no violence may prevent assault

in Tuberville – sword – but words were that I won’t hurt due to shortage of time
in Light – words had no effect when sword raised to attack

St George – pointing a gun

Stephens v Myers – Rolling up sleeves

Tuberville – Putting hand on sword

Roberts – Threatening to kiss

Smith v Woking – Staring through a window

Ireland – Making threatening calls; words are enough; even silence

Apprehend immediate physical contact

Apprehend means expect not fear

A person who is asleep could not apprehend violence

A masochist could apprehend but wouldn’t fear it; still expects it so apprehends it

Lamb – no assault because no apprehension of violence – playing around

Immediacy
Halliday – no assault to threaten with future harm – must be able to put threat into execution

Thomas v NUM – no assault because no immediate prospect that picketers would attack due to police
escort

Smith v Woking – immediate means imminent – KERR J – person standing outside window and staring
Ireland – expectation of immediate violence (or immediate physical contact) did not need face to face
confrontation

Constanza – letter caused apprehension of violence at some time not excluding the immediate future

Do you understand why Adam was not guilty of assault occasioning actual bodily harm? The answer is that
Adam did not provoke a fear of violence in Eve and so did not commit (psychic) assault. Clearly there was no
battery either.

Threat of force must be Unlawful

Cousins – threat to kill was lawful self defence if it was to discourage a threatened attack

Mens Rea
Crime of basic intent

Spratt – air pistol through window – no intention; no recklessness because he didn’t know girl was there
Savage – intention or recklessness

Battery
Any act by which D, intentionally or recklessly, inflicts (non-consensual) unlawful force upon V – Collins
v Wilcock; Venna

No need to prove harm

Wilson v Pringle – even the slightest touch; no requirement that it be hostile

Venna – intention or recklessness as to the contact is Mens Rea

Requires an Act; no omissions – Dunn

Fagan v MPC – continuing act doctrine

Infliction: direct or indirect

Touching of clothing included – Thomas

Innes v Wylie – blocking path is not enough – here, policeman blocked path of person

DPP v K – no requirement for infliction to be direct – acid in hand drier

Haystead – D hit woman – woman dropped baby – batter on baby by D

Booby traps can count as battery – Martin

Scott v Shepherd – D lit firework – passed hands – hit someone – battery by D

Mitchell – D assaulted V by pushing T who fell on V

Santana Bermudez – inducing the search

R v Ireland – psychological harm can be battery

Battery vs. ABH: low level of injury e.g.

 Scratches, grazes, minor bruising, superficial cuts, black eyes, swelling

Callis v Gunn – wrongly taking fingerprints

Pursell v Horn – Throwing water at someone

Collins v Wilcock – Restraining a person

Commonwealth v Cohen – Spitting

DPP v Smith – Cutting someone’s hair

Day – cutting someone’s clothes

Wilson v Pringle – prank that gets out of hand; over-friendly slap on back; treatment by surgeon
mistaken about consent

No need for pain but needs force – so no battery to drug someone – this is s. 23 OAPA – Walkden

Questionable if digging pit is Battery, because not direct force applied

Leung Chun Wai Sunny – loud noise – sound waves impact on ear drum – this is battery

Unlawful physical force

No self defence or consent

R v Williams – acting in mistaken belief of need for self defence, or prevention of crime – no battery

HKSAR v Lau Shing Chung – acting in mistaken belief that V consented – not a battery – exorcism case

Slingsby – consent was there – signet ring

Kenlin v Gardiner – boys were not arrested so policemen couldn’t take hold of them – boys had used
reasonable force in self defence when punched the officers to flee

Donnelly v Jackman – officer tapped on shoulder to get attention – this wasn’t battery; not every
unconsented contact is battery – when person punched back – that person was liable – no self defence

Collins v Wilcock – contacts issuing from rough and tumble of everyday life – not batteries – as long as
force not excessive

Parent reasonably chastising – not battery

Collins v Wilcox – jostling on underground; amicable back-slapping; implied consent

Mens Rea
IT IS NOT INTENTION OR RECKLESSNESS AS TO ANY RESULTING HARM but IT IS INTENTION OR
RECKLESSNESS AS TO THE UNLAWFUL CONTACT

Slingsby – consent – so contact wasn’t unlawful

Venna – recklessness is subjective test

See friend – hug her from back – turns out not your friend – no battery – no Mens Rea

ABH
s. 47 OAPA makes it an offence to commit an assault occasioning actual bodily harm

Three elements:

1. Common assault
2. Actual bodily harm
3. Causal connection between assault and harm

What makes it different and more serious than a battery? it is an unlawful act to make physical contact
another person with such a degree of violence that infliction of bodily harm is a probable consequence

Courtie – if no assault or battery then no s.47 offence

Illustrations:

Punch and break nose

Throw glass and cause cuts – Savage

Trying to touch someone, who jumps out and breaks leg – Roberts

Actual Bodily Harm

Donovan – SWIFT J – any hurt or injury which interferes with the health and comfort of the victim

Chan Fook – caused the victim pain – injuring their health – cause to lose consciousness

Miller – nervous shock is ABH

Chan Fook – psychiatric harm is ABH – but emotions, fear, panic, distress, etc. are not – must be
identifiable clinical condition

Ireland – HOUSE OF LORDS – confirmed Chan Fook on psych. harm – telephone call can be assault – if
psych. harm results, then ABH

Morris – for psych injury – need evidence by psychiatrist not general practitioner

DPP v Smith – SIR IGOR JUDGE – cutting hair is ABH – even though hair is technically ‘dead tissue’

R v D – used Chan Fook – psychiatric injury is ABH

Epidermis – bruising – minor cuts – minor fractures – broken nose – broken teeth

Momentary unconsciousness – T v DPP

Occasioning (Causing)
Chain of causation

Roberts – reaction not daft – chain not broken – fear of sexual attack leading to injury

Savage – glass cut – actual foresight of harm is not necessary – just need proof of assault and proof of
harm caused

Lewis – victim locked herself in room – husband pounding door – fear – jumped out of window –
husband’s common assault held to be the cause of injuries

Doesn’t need to be Nonconsensual here

Donovan – hitting prostitute with garden cane – despite her consent, this was ABH – this is a crime of
violence – causing someone physical harm is inherently unlawful and consent cannot make it lawful

Mens Rea
s. 47 is a crime of Half Mens Rea – two parts of actus reus: assault + ABH – Mens rea only for assault
needed

Savage – No requirement that victim intends or foresees ABH – this is justified because moral threshold
has been crossed – so, must be liable for consequences of actions – also, it is difficult to control the level
of harm inflicted – if a person intends only battery, then cannot escape liability if inadvertently causes
more serious harm
Issues of whether consent was given or not is a matter for the jury

S.20
Where D unlawfully and maliciously wounds or inflicts any GBH, upon any other person, with or without
any weapon or instrument

Illustrations

Wound not GBH – Stab – leg – screwdriver – puncture – severe bleeding

GBH not wound – hit head with baseball bat – fracture to skull

4 ways

Intentional wounding; intentional GBH infliction

Reckless wounding; reckless GBH infliction

Martin – attack may be direct or indirect

JJC v Eisenhower – cutting of dermis and epidermis

Burstow – serious psychiatric harm

Savage – intention or recklessness to cause SOME injury is enough

Mandair – judge is entitled to leave to a jury a conviction under s.20 as an alternative to s.18 because
the term ‘causing’ is wide enough to include ‘inflicting’

Unlawful
Prevent crime

Self defence
Infliction
Not by omission – this is the one distinction between inflict and cause – however, there is no authority
for this proposition, so it should be treated with caution

Clarence – old case – husband had not inflicted GBH by giving wife gonorrhea; it was consensual, so no
assault – this case held that there should be some form of direct contact

Wilson – this case disapproved Clarence principle – the requirement of assault to establish infliction was
dispensed with – no need for direct contact – held in Wilson that infliction could be by either of two
ways:

1. By way of an assault (some form of direct attack)

2. Indirect application of force

Illustration: according to Wilson, GBH after digging a pit comes under infliction and thus, s.20

Burstow – disapproved Clarence – inflict means cause in relation to psych. injury – infliction can be
indirect – serious psych. injury is GBH

Dica – infliction of GBH if transfer HIV – thus, infliction means cause

Clarence – if the case was decided today – then conviction under s.20

Martin – shouting fire in packed theatre – GBH inflicted

Halliday – someone escaping when D is banging door – seriously injured – this is GBH

Wound vs. GBH

DPP v Smith – GBH means really serious harm

C v Eisenhower – ROBERT GOFF LJ – wound is a break in the continuity of both layers of the skin

Wound – cuts; puncture of skin

Wound + GBH – repeated cuts; broken bones piercing skin

GBH only – broken bones not puncturing skin; serious psych. injury; break arm or leg; long
unconsciousness; permanent disfigurement; long term treatment required; significant blood loss;

Wound probably requires an act

Mcloughlin – scratch, burn or graze is not a wound

Waltham – cut inside of mouth or urethra is a wound

Wood – internal rupture of blood vessels, bruising, is not wound unless bone punctures skin
Bollom – GBH is defined as ‘really serious injury’ – prosecution does not have to prove that the harm
was life threatening, dangerous or permanent – when assessing severity of injuries, considerations such
as age, health and personal characteristics of the victim should be included

So, injuring hands of a pianist is serious; not those of an office worker

Smith – ‘really serious’ is GBH

Janjua – ‘Serious harm’ is enough for GBH

Saunders – ‘really’ adds nothing – so, it is ‘serious bodily harm’

Whether harm is serious enough is matter for jury

Burstow – serious psych. injury is GBH – expert medical evidence needed

Dica – transmission of STDs is GBH

But it will be rare for prosecution to be able to prove the intent necessary in cases like Burstow and Dica

Mens Rea
Maliciously means: with Intention or subjective recklessness as to wound or GBH – Mowatt gloss,
foresight of some harm will suffice – this is easier to prove than pure form of Cunningham recklessness

Mowatt – foresight of some harm will suffice

DPP v Parmenter – rough handling of child – foresight of some harm will suffice – confirmed the Mowatt
gloss

Savage and Parmenter – LORD ACKNER – it is enough that he should have foreseen that some physical
harm to some person, albeit of a minor character, might result.

Morrison – maliciously bears the subjective meaning of recklessness – foresight of some harm is
necessary
S.18
Unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any
person, with intent to do some GBH to any person, or with intent to resist or prevent (arrest)

4 different manifestations:

Wounding with intent of GBH ; wounding with intent to resist arrest

Causing GBH with intent of GBH ; causing GBH with intent to resist arrest

Here, cause can include omission

Burstow and Dica – cause and inflict have same meaning

Mens Rea
Specific intention of causing serious injury or ulterior intention of resisting arrest, or preventing arrest of
a third party

Taylor – intent to wound is not sufficient for s.18 – there must be intent to cause GBH

Arrest must be lawful

R v Belfon – D attacked a girl and passer-by – if specific or ulterior intent cannot be established then s.20
is the appropriate offence – prosecution must prove

a) It was defendant’s purpose to cause GBH

b) If not his purpose, then he knew GBH was virtually certain – this is of evidentiary value for
jury to decide

Morrison – when the charge is related to prevention of arrest, the word maliciously is important –
specific intention to GBH or wound is not needed – recklessness is sufficient

If wound or GBH – prosecution must also prove intention of GBH – or prove prevention of arrest

If minor wound – prosecution will fail unless it can prove that GBH was intended

Mandair – a jury which is not convinced that D had the necessary intention of GBH can bring in the
alternative verdict under s.20 (malicious infliction of GBH)

Banton – trial judge refused to allow the jury this option in Mandair (above) on a charge of s.18 – D had
smashed a bottle in V’s face
Defence of consent
Slingsby – D was charged with manslaughter – signet ring – septicemia – activity was consensual – no
battery – no liability for unlawful act manslaughter – here, harm was not caused deliberately – harm was
not the purpose of the activity – harm was incidental

Donovan – here, harm was deliberate; the purpose of the activity – beating a prostitute with a cane –
inherently unlawful – victim’s consent cannot make it lawful – COURT OF APPEAL – SWIFT J – ‘no person
can license another to commit a crime; it is an unlawful act to beat another person with such a degree of
violence that infliction of bodily harm is a probable consequence’

Kirk – whether consent is present is not a question of fact for the jury, on the basis of its own common
sense and experience of life – conviction for rape of a destitute and hungry girl upheld – this was a case
of submission (no real choice)

Olugboja – another rape case – DUNN J – COURT OF APPEAL – there is a difference between consenting
to physical contact, albeit reluctantly, and simply submitting to it – consent invalidated in the latter case

Collins v Wilcock – implied consent in crowded places, social situations – here, there was no consent for
grabbing of the arm as it was unlawful arrest

Brown – HOUSE OF LORDS – tattooing, piercing – may be consented to, if reasonable

Wilson – not unlawful for a man to brand his partner on the buttocks with a hot knife – purpose was not
to hurt, it was of adornment – consent present – so, not unlawful – COURT OF APPEAL – criminal law
should be slow to interfere with what people do in private

Brown and Emmett – harm was the purpose

R v BM – COURT OF APPEAL – consent would not render lawful the removal by a tattoo artist of a
customer’s ear or nipple or cutting of tongue in two parts like a snake – no possible public benefit to this
– simply, mutilation

Barnes – COURT OF APPEAL – resort to courts in cases of sporting injury should be exceptional – LORD
WOOLF CJ – type of sport, level at which it is played, nature of act, degree of force, extent of risk of
injury, state of mind of D – are all relevant factors - deliberate infliction of harm not for purpose of the
sport contest will not be able to argue defence of consent

AG’ s Reference No 6 of 1980 – street fighting is not in the public interest – LORD LANE CJ – “not in
public interest that people should try to cause, or should cause, each other actual bodily harm for no
good reason – where injury is inflicted deliberately, it cannot be consented to
Brown – sado-masochism is not in the public interest – LORD TEMPLEMAN for the HOUSE OF LORDS –
consent of the victim is no answer to anyone charged with s.47 or s.20 unless the circumstances fall
within one of the well-known exceptions such as

i) organized sporting contests and games,

ii) parental chastisement or
iii) reasonable surgery

Consent defence not available for crimes of violence, available for crimes against autonomy

Emmett – consent not available for consensual sado-masochistic activities – here harm is the purpose, it
is not merely incidental

Biting and scratching – low level of sado-masochism – it can be argued that it would be contrary to
public interest to proscribe them – on grounds of privacy and principle of minimal criminalization –
victim’s consent does make vigorous sex lawful, if purpose isn’t harm – Slingsby

Re J (circumcision) – consent of both parents is necessary for non-clinically necessary procedures

Wilson v Pringle – implied consent to low level social situation contacts

Jones – birthday bumps – ruptured spleen – implied consent to bumps – consent would nullify actus
reus, making it lawful

Aitken – horseplay – prank on a colleague may be permitted a defence of consent – but shouldn’t go out
of hand

Boxing – special privilege – but debate for conclusion is present here – boxing: enjoyment of spectators
– sado-masochism: enjoyment of participants – why is the latter wrong and not the former?

Tabassum – COURT OF APPEAL – deception present – breast examinations – nature and quality of act
changed – no defence of consent available

Richardson – deception present – revoked dentistry license – but nature and quality of act unchanged –
defence of consent available – if D was never a dentist to begin with – this would have vitiated consent

Dica and Konzani – D’s had STDs – did not inform victims of STDs – no defence of consent available

Bolduc v Bird – medical examination in presence of friend who was pretending to be a medical student –
deception present – but nature and quality of act, same – defence of consent available

Consent ineffective in following cases:

1. Lack of mental capacity

2. Uninformed consent
3. Consent by fraud as to nature and quality of act
4. Act’s purpose was infliction of harm
Consent and Capacity
Gillick v West Norfolk – consent will not be vitiated always by the defendant’s age – provided victim
understands the nature of the act

Burrell v Harmer – victim must understand what he/she is consenting to – young or mental capacity – in
this case, a tattooist was guilty of common assault for tattooing kids despite consent

Sexual Offences Act 2003 and Tattooing of Minors Act 1969 – there are some situations where child’s
apparent consent will never be valid – statutory reasons

T v T – it is possible for a person of full age that he or she may lack capacity to consent

Disease Transmission
Konzani – COURT OF APPEAL – informed consent can effectively prevent liability under s.47 or s.20 in
cases of STD transmission – so long as trasmittee knew of the disease – he/she consented both to the
intercourse and to the risk of disease transmission

Clarence – old case of 1888 – consent was available when gonorrhea transmitted – question mark over
true consent – wife did consent to sex – but not to the STD – had she known of the STD she wouldn’t
have had sex

Dica – women would not have had sex, had they known of the STD – so no defence of consent available

Dica and Konzani – COURT OF APPEAL – consent vitiated if V doesn’t know of STD – here, consent is
vitiated for s.47 or s.20 offence but consent wrt rape is not vitiated

Reform
Act is archaic

Law Commission is undertaking reform process – recommends repeal of OAPA 1861 – report in 1998 –
draft bill:

1. Section 2(1): person is guilty of an offence if he intentionally causes serious injury to

another. Max life imprisonment.
2. Section 3(1): person is guilty of an offence if he recklessly causes serious injury to another.
Max five years.
3. Section 4: person is guilty of an offence if he intentionally or recklessly causes injury to
another. Max 2 years.