Tuberville v Savage [1669] EWHC KB J25

Whether a threatening declaration of future harm constituted

an unlawful assault.

Facts

A man placed his hand on his sword and told another, “If it
were not assize-time, I would not take such language.” The
justices of assize were in town.

Issue

The question was as to whether laying a hand on a sword and

stating “If it were not assize-time, I would not take such
language,” constituted an unlawful assault by placing another
in apprehension of immediate violence.

Held

The Court held that an assault requires both (1) the intention
and (2) the act of assault. Even an act of, for example, striking a
man, without an intention to assault, does not constitute an
assault. Accordingly, the Court held that the facts did not give
rise as the man merely stipulated that he would have the
intention to assault if it were not assize-time. It was, indeed,
assize-time and the man’s declaration expressly stipulated that
he would not and did not intend to commit an assault. Thus,
there could have been no assault as there were no intention
nor act of assault, nor imminent threat thereof.
R v Halliday (1889) 61 LT 701, CCR H threatened his wife W
with violence and frightened her to such an extent that she
jumped from a bedroom window to escape his threats and
injured herself quite seriously: the Court for Crown Cases
Reserved upheld H’s conviction for maliciously inflicting
grievous bodily harm. W’s action was a foreseeable result of H’s
unlawful act, and he could therefore be regarded as having
caused her injuries. There was no suggestion that as W’s
husband H had any right to use violence against her
TRESPASS TO THE PERSON LECTURE

ASSAULT

An assault is an act which intentionally causes another person

to apprehend the infliction of immediate, unlawful, force on his
person.

It was said in R v Meade and Belt (1823) 1 Lew CC 184, that ‘no
words or singing are equivalent to an assault’. However, the
House of Lords have more recently stated that an assault can
be committed by the Court of Appeal in R v Constanza [1997]
Crim LR 576.

It is much more authoritative that words will not constitute an

assault if they are phrased in such a way that negatives any
threat that the defendant is making. See:

Tuberville v Savage (1669) 86 ER 684

Stephens v Myers (1830) 172 ER 735

The claimant must have reasonably expected an immediate

battery. Thus in Stephens v Myers (1830) 172 ER 735, the
defendant made a violent gesture at the plaintiff by waiving a
clenched fist, but was prevented from reaching him by the
intervention of third parties. The defendant was liable for
assault.

BATTERY

A battery is the actual intentional infliction of unlawful force on

another person. It was stated in Cole v Turner (1704): ‘The least
touching of another in anger is a battery’. However, such a
widely drawn principle must inevitably be subject to
exceptions:

Collins v Wilcock [1984] 1 WLR 1172

Controversially, the Court of Appeal said that there must be a

‘hostile touching’:

Is ‘hostility’ a necessary element of battery? In Re F [1990] 2 AC

1 (at p 73), Lord Goff said that he doubted whether it is correct
to say that the touching must be hostile, and further: ‘the
suggested qualification is difficult to reconcile with the principle
that any touching of another’s body is, in the absence of lawful
excuse, capable of amounting to a battery and a trespass.’

If a person intentionally applies force directly to another, the

claimant has a cause of action in trespass. However, if a person
does not inflict injury intentionally, but only unintentionally, the
claimant only has a claim in negligence.

The defendant’s act must cause direct damage, but see:

Scott v Shepherd (1773) 2 B1 R892

FALSE IMPRISONMENT

False imprisonment is the unlawful imposition of constraint

upon another’s freedom of movement from a particular place.

This tort protects a person from restraint and does not give a
person absolute freedom of movement. Thus, if there is a
reasonable escape route there will be no false imprisonment.
See:

Bird v Jones (1845) 7 QB 742

Robinson v Balmain New Ferry [1910] AC 295

Can a person be falsely imprisoned without his knowledge? Yes,

according to the Court of Appeal and the House of Lords in,
respectively:

Meering v Graham-White Aviation Co Ltd (1920) 122 LT 44

However, Lord Griffiths did state in the latter case: ‘If a person
is unaware that he has been falsely imprisoned and has
suffered no harm, he can normally expect to recover no more
than nominal damages …’.
Can an omission to release a person constitute false
imprisonment? Not according to the House of Lords, at least
where a person has consented to some degree of constraint on
their movement. See:

Heard v Weardale Steel, Coal & Coke Co [1915] AC 67

THE RULE IN WILKINSON v DOWNTON

The rule in Wilkinson v Downton relates to the intentional

infliction of harm. This is not actually a trespass to the person
but a separate analogous tort. See:

Wilkinson v Downton [1897] 2 QB 57

The Court of Appeal upheld this rule in Janvier v Sweeney

[1919] 2 KB 316.

DEFENCES

CONSENT

Consent may be given expressly by words or be implied from

conduct.

A person is deemed to consent to a reasonable degree of

physical contact as a result of social interaction (see Collins v
Wilcock, above).

Those who take part in sports also consent to a reasonable

degree of physical contact during the course of play, ie within
the rules, even to the risk of being unintentionally injured.
However, there can be no consent to deliberate acts of violence
(R v Billinghurst [1978] Crim LR 553).

What is meant by ‘informed consent’ and does English law

recognize such a doctrine? Informed consent is the notion that
consent is not valid unless all the risks of a surgical procedure
have been explained. A person may not bring an action, in
trespass or negligence, on the ground that they had not been
informed of the potential consequences.

The issue in trespass is whether the patient consented to what

was being done, and the issue in negligence is whether the
patient should have been informed of the risks.

Every adult has the right to refuse medical treatment even if it

will result in permanent injury or even death. However, a
person may be deprived of his capacity to decide either by long
term mental incapacity or temporary factors such as
unconsciousness or confusion or the effects of fatigue, shock,
pain or drugs. In such a case, it is the duty of the doctors to
treat him in whatever way they consider, in the exercise of
their clinical judgment, to be in his best interests.

LAWFUL ARREST

The powers of arrest, exercisable by a constable or a private

citizen, are contained in the Police and Criminal Evidence Act
1984. An arrested person must be told, as soon as is
practicable, that he is under arrest; and the grounds for the
arrest (s28). Private citizens making an arrest must, as soon as
is reasonable, hand the arrested person over to the police. Only
reasonable force may be used to effect an arrest.

The police must not act unlawfully. See:

Collins v Wilcock [1984] 1 WLR 1172

SELF DEFENCE

It has long been an established rule of the common law that a

person may use reasonable force to defend himself, another
person, or his property from attack. What is reasonable force is
a question of fact in each case.

A person may make a mistake as to their right to self defence.

In such a situation, the criminal law allows a defendant to be
judged on the facts as he honestly believed them to be: R v
Williams (Gladstone) (1984) Cr App R 276 and Beckford v R
[1988] AC 130.

NECESSITY

In Re F (above), a case concerning when medical treatment can

be justified when given without consent, Lord Goff having
explained public necessity and private necessity stated:

“There is, however, a third group of cases, which is also

properly described as founded upon the principle of necessity
and which is more pertinent to the resolution of the problem in
the present case. These cases are concerned with action taken
as a matter of necessity to assist another person without his
consent. To give a simple example, a man who seizes another
and forcibly drags him from the path of an oncoming vehicle,
thereby saving him from injury or even death, commits no
wrong. But there are many emanations of this principle, to be
found scattered through the books”.

Lord Goff went on to say that the present case was concerned
with action taken to preserve the life, health or well-being of
another who is unable to consent to it. The basic
requirements, applicable in these cases of necessity, were
“not only (1) must there be a necessity to act when it is not
practicable to communicate with the assisted person, but also
(2) the action taken must be such as a reasonable person
would in all circCASES ON NON-FATAL OFFENCES

1. COMMON LAW ASSAULT AND BATTERY

Logdon v DPP [1976] Crim LR 121.

The defendant, as a joke, pointed a gun at the victim who was

terrified until

she was told that it was in fact a replica. The court held that the
victim had

apprehended immediate physical violence, and the defendant

had been at least

reckless as to whether this would occur.

Smith v Superintendent of Woking Police Station [1983] Crim

LR 323.
The defendant had terrified a woman occupying a ground floor
flat by staring

in through the windows at her. The Divisional Court was

satisfied that even

though the defendant was outside the building there was

evidence to suggest that

the victim was terrified by the prospect of some immediate

violence. It was not

necessary for the prosecution to establish precisely what the

victim feared

would happen; a general apprehension of violence was

sufficient.

Tuberville v Savage (1669) 2 Keb 545.

The defendant placed his hand on his sword hilt and told the
victim, “If

it were not assize-time, I would not take such language from

you.” This was

held not to be an assault. The words accompanying the action

(of placing the

hand on the sword) clearly demonstrated that because the

assize judge was in
town, the defendant was not going to use his sword. There
could thus be no

apprehension of immediate force.

2. ASSAULT OCCASIONING ACTUAL BODILY HARM

R v Roberts (1971) 56 Cr App R 95.

The defendant gave a lift in his car, late at night to a girl. He

made

unwanted advances of a sexual nature to her which alarmed

her. She feared he

intended to rape her and as the car was moving, she opened
the door and jumped

out suffering grazing and concussion. The defendant was

convicted under s47 and

Stephenson LJ stated that the test for causation in law was to

ask whether the

result was the reasonably foreseeable consequence of what the

defendant was

saying or doing.

R v Constanza [1997] Crim LR 576

The defendant was convicted of occasioning actual bodily

harm. The victim was
a female ex-colleague. Between October 1993 and June 1995
he followed her home

from work, made numerous silent telephone calls, sent over

800 letters,

repeatedly drove past her home, visited her against her

expressed wishes, and on

three occasions wrote offensive words on her front door. In

June 1995 the victim

received two further letters which she interpreted as clear

threats. She

believed that he had “flipped” and that he might do something

to her

at any time. In July she was diagnosed as suffering from clinical

depression and

anxiety. It was the doctor’s view that the defendant’s actions

had caused this

harm.

The Court of Appeal held that the issue before the Court was
whether it was

enough if the Crown have proved a fear of violence at some

time not excluding
the immediate future. In the Court’s view it was. It was an
important factor

that the defendant lived near the victim and she thought that
something could

happen at any time. The judge was entitled to leave to the jury
the question

whether or not she had a fear of immediate violence, and the

jury were entitled

to find that she did. The Court rejected the defence submission
that a person

cannot have a fear of immediate violence unless they can see

the potential

perpetrator. It rejected a further submission that an assault

could not be

committed by words alone without a physical action. The

indictment made it clear

that the assault relied on was that constituted by the last letter.

3. MALICIOUSLY WOUNDING OR MALICIOUSLY INFLICTING

GRIEVOUS BODILY HARM

R v Martin (1881) 8 QBD 54.

The defendant blocked the exit doors of a theatre, put out the
lights in a
passageway, and shouted ‘Fire!’ as the theatre-goers were
leaving the

performance. In the ensuing panic, many were severely injured

by being crushed

against the locked doors. The defendant was convicted under

s20 and appealed.

His conviction was confirmed and it is implicit in the decision

that the

indirect nature of the way in which the defendant’s acts had

caused the harm

presented no bar to liability.

R v Wilson [1984] AC 242.

The defendant motorist had been involved in an argument with

a pedestrian,

which culminated in the defendant punching the pedestrian in

the face. Lord

Roskill stated:

“In our opinion, grievous bodily harm may be inflicted… either

where

the accused has directly and violently “inflicted” it by assaulting

the victim, or where the accused has “inflicted” it by doing

something, intentionally, which, although it is not itself a direct
application

of force to the body of the victim, does directly result in force

being applied

violently to the body of the victim, so that he suffers grievous

bodily

harm.”

R v Mowatt [1968] 1 QB 421.

The defendant was convicted under s20 following an attack he

had carried out

on a police officer, during which he had rained blows on the

officer’s face and

pushed him roughly to the ground. Regarding the term

‘maliciously’ Lord Diplock

stated:

“In the offence under section 20… the word “maliciously”

does import upon the part of the person who unlawfully inflicts
the wound or

other grievous bodily harm an awareness that his act may have
the consequence of
causing some physical harm to some other person… It is quite
unnecessary that

the accused should have foreseen that his unlawful act might
cause physical harm

of the gravity described in the section, ie a wound or serious

physical injury.

It is enough that he should have foreseen that some physical

harm to some

person, albeit of a minor character, might result.”

DPP v Parmenter [1991].

The defendant had caused injury to his young baby by tossing

him about in a

way which would have been acceptable with an older child, but
not with one so

young. He did not realise that he might cause harm by this

action. The House of

Lords held that he could not be liable under s20 as he had not
foreseen the risk

of any harm. It was not necessary under s20 that he foresee the
grievous bodily

harm which must be caused, but the defendant must foresee

that he might cause
some harm. An alternative verdict under s47 was substituted.

R v Sullivan [1981] Crim LR 46.

The defendant, who had swerved his car towards a group of

pedestrians

intending to scare them was acquitted of a charge under s20,

when he lost

control of the vehicle and subsequently collided with the

pedestrians causing

injury. As he had only foreseen the risk of ‘psychic harm’ his

liability was

reduced to s47.

R v Belfon [1976] 1 WLR 741.

The defendant had slashed the victim with a razor causing

severe wounds to

his face and chest. The Court of Appeal held that in order to
establish the

offence under s18 it was essential to prove the specific intent.

References to

the defendant foreseeing that such harm was likely to result or

that he had been
reckless as to whether such harm would result, would be
insufficient.

umstances take, acting in the best interests of the assisted

person”.

R v Meade and Belt (1823) 1 Lew. C.C. 184

The defendants surrounded the victim's house singing

threatening and menacing songs.

Held:

No assault was committed.

Holroyd J "no words or singing are equivalent to an assault"

Read v Coker
Court of Common Pleas
Citations: (1853) 13 Common Bench Reports 850; 138 ER 1437.
Facts
The claimant came to the defendant’s workshop to discuss a
business dispute involving some of the goods in the workshop.
He refused to leave when asked. The defendant and his
employees surrounded the claimant and threatened to break
his neck if he did not leave. Fearing violence, the claimant left.
The claimant later returned to seize goods from the
defendant’s workshop. The defendant called the police, who
arrested the claimant.
 The claimant later sued the defendant for assault and false
imprisonment. The defendant argued that he had authority for
his acts, relying on certain statutes which existed at the time.
However, at the time he acted he was not aware that those
statutes existed. The defendant also argued that his words
were not an assault, since the wording was conditional: the
claimant could avoid the threat by doing as the defendant
demanded and leaving.
Issue(s)
1. Was the defendant’s threat to break the claimant’s neck
an assault?
2. Could the defendant rely on defences contained in a
statute he was unaware of?
Decision
The Court of Common Pleas held in favour of the claimant. The
threat was an assault. The defendant was entitled to rely on the
statutes notwithstanding he did not knew of them.

This Case is Authority For…

A threat of violence is an assault even if the defendant is not
actually about to strike or using a weapon. It does not matter
that the threat is conditional on the claimant refusing to
immediately acquiesce to the defendant’s demands.

If a person believes they are acting in pursuit of a legal right, it

does not matter that he is not aware of the exact law or statute
which justifies his actions.
Fagan v Commissioner of Police for the Metropolis [1969] 1 Q.B.
439

Actus reus – assault of policeman – car driven on to

policeman’s foot

Facts

Fagan was sat in his car when he was approached by a police

officer who told him to move the vehicle. Fagan did so,
reversed his car and rolled it on to the foot of the police officer.
The officer forcefully told him to move the car off his foot at
which point Fagan swore at him and refused to move vehicle
and turned the engine off. Fagan was convicted of assaulting a
police officer in the execution of his duty. Fagan subsequently
appealed the decision.

Issues

Fagan appealed on the basis that there cannot be an offence in

assault in omitting to act and that driving on to the officer’s
foot was accidental, meaning that he was lacking mens rea
when the act causing damage had occurred. The legal issue
here was whether the prosecution had proven facts which had
amounted to an assault. For an assault to be committed both
actus reus and mens rea must be established at the same time.

Held

It was agreed that an omission cannot establish an assault. The

court held that:
‘Although assault is an independent crime and is to be treated
as such, for practical purposes today, assault is generally
synonymous with battery.’ (at page 433)

On this basis, it was held that Fagan’s crime was not the refusal
to move the car but that having driven on to the foot of the
officer and decided not to cease the act, he had established a
continual act of battery. This meant that actus reus and mens
rea were present and as such, an assault was committed.
Fagan’s conviction was upheld.

R v Constanza [1997] Crim LR 576

Whether words alone could constitute an assault and the

temporal element of fear of immediate violence.

Facts

A man was convicted of assault occasioning actual bodily harm

of a female ex-colleague. For a period of almost two years, the
man followed the women home from work, made numerous
silent phone calls, wrote her over 800 letters, drove past her
house, visited her house without consent, and wrote offensive
words on her house’s door three times. Following these
actions, she received two additional letters with threatening
language. She was soon diagnosed by a doctor as suffering from
clinical depression and anxiety due to apprehended fear caused
by the man’s actions and letters.

Issue
(1) Whether the man’s words alone, without any physical
action against the victim, could constitute an assault and (2)
whether there was an apprehended fear of immediate and
unlawful violence in order to constitute an assault
under Offences Against a Person Act 1861 s. 47.

Held

The Court stipulated that words alone can constitute an assault,

without the presence of physical action, if they cause the victim
to apprehend a fear of immediate violence. Concerning the
temporal aspect of the fear of violence, the Court held that, for
the purposes of proving an assault, it is sufficient to
demonstrate that the victim feared violence “at some time not
excluding the immediate future.” The Court held that this
element was fulfilled, placing emphasis upon the close
proximity of the man’s house to the victim’s and his delivery of
the most recent letters to her house. Accordingly, the Court
dismissed the appeal and upheld the conviction for assault
occasioning bodily harm caused solely by words

R v Ireland [1997] 3 WLR 534 House of Lords

The defendant made a series of silent telephone calls over

three months to three different women. He was convicted
under s.47 Offences Against the Person Act 1861. He appealed
contending that silence cannot amount to an assault and that
psychiatric injury is not bodily harm.

Held:
His conviction was upheld. Silence can amount to an assault
and psychiatric injury can amount to bodily harm.

Lord Steyn
"It is to assault in the form of an act causing the victim to
fear an immediate application of force to her that I must
turn. Counsel argued that as a matter of law an assault can
never be committed by words alone and therefore it
cannot be committed by silence. The premise depends on
the slenderest authority, namely, an observation by
Holroyd J. to a jury that "no words or singing are
equivalent to an assault": Meade's and Belt's case 1 (1823)
1 Lew. C.C. 184. The proposition that a gesture may
amount to an assault, but that words can never suffice, is
unrealistic and indefensible. A thing said is also a thing
done. There is no reason why something said should be
incapable of causing an apprehension of immediate
personal violence, e.g. a man accosting a woman in a dark
alley saying "come with me or I will stab you." I would,
therefore, reject the proposition that an assault can never
be committed by words."
 
"The proposition that the Victorian legislator when enacting
sections 18, 20 and 47 of the Act 1861, would not have had in
mind psychiatric illness is no doubt correct. Psychiatry was in its
infancy in 1861. But the subjective intention of the draftsman is
immaterial. The only relevant enquiry is as to the sense of the
words in the context in which they are used. Moreover the Act
of 1861 is a statute of the "always speaking" type: the statute
must be interpreted in the light of the best current scientific
appreciation of the link between the body and psychiatric
injury. For these reasons I would, therefore, reject the
challenge to the correctness of Chan-Fook [1994] 1 W.L.R. 689.
In my view the ruling in that case was based on principled and
cogent reasoning and it marked a sound and essential
clarification of the law. I would hold that "bodily harm" in
sections 18, 20 and 47 must be interpreted so as to include
recognizable psychiatric illness

DPP v Smith [1961] AC 290

Whether mens rea  for murder is subjective or objective

Facts

Jim Smith (S) was ordered by a police constable to stop his car
which contained stolen goods, however S accelerated instead.
The police constable jumped onto the car, but fell off and was
killed by another oncoming car after S violently swerved the
car. S was convicted of murder and appealed to the Court of
Criminal Appeal.

Issue

The issue in question was whether the mens rea of intent for

murder is a subjective or an objective test. S claimed that he
could not be convicted of murder because he did not have the
requisite mens rea  of intention to kill or to cause grievous
bodily harm. He claimed that the mens rea for murder is
subjective, and the trial judge had misdirected the jury in
stating that the mens rea test for murder was whether a
reasonable man would have contemplated that grievous bodily
harm was a likely result from J’s actions.

Held

The Court of Criminal Appeal, finding the test to be subjective

and the trial judge to have misdirected the jury, allowed the
appeal and substituted a verdict of manslaughter. The case was
then appealed by the prosecution to the House of Lords. The
House of Lords held that an objective test was applicable to
the mens rea  of intent for murder, therefore there was no
misdirection and the murder conviction was to be reinstated.
Where the accused is capable of forming an intent in that he is
not insane nor suffering from diminished responsibility, any
actual intention is immaterial, and the mens rea  test for a
conviction of murder is what in all the circumstances the
ordinary reasonable man would have contemplated to be the
natural and probable result of the grievous bodily harm done.

R v Miller [1954] 2 Q.B. 282

MARITAL RAPE – CONSENT – ASSAULT OCCASIONING ACTUAL

BODILY HARM –S.47 OFFENCES AGAINST THE PERSON ACT
1861 (OAPA)

Facts
The defendant, Mr Miller, had been the husband of the victim
who, at the time of the alleged offence, had left the respondent
and filed a petition for divorce on grounds of adultery. During
this period, the defendant met with the victim and had
intercourse with her against her will. This caused the victim to
suffer significant mental distress. The defendant was charged
with both rape and, in the alternative, assault occasioning
actual bodily harm under section 47 OAPA. An appeal was
brought on the basis that the defendant had no case to answer;
a husband could not rape his wife, as a wife impliedly
consented to intercourse for the duration of the marriage.

Issues

Whether the common law rule as to the implied consent of a

wife remained good law and, if so, whether there were
circumstances, such as the use of force or violence, in which
this consent could be revoked. This case also raised the
question of whether psychological damage, expressed in the
dated language of nervous hysteria, was capable of constituting
actual bodily harm.

Held

That the appellant could not be guilty of rape, as the implied

consent of a wife to have intercourse with her husband could
only be revoked by court order or a binding separation
agreement. In the circumstances, this consent had not been
revoked. Nevertheless, a husband was not entitled to use force
or violence for the purposes of exercising his right to
intercourse; to do so would amount to an assault. Moreover, as
a ‘hysterical and nervous condition’ ([1954] 2 Q.B. 282, 292 per
Lynskey J) is a recognised form of bodily harm, such an assault
would constitute an offence under s.47 OAPA.