Non-Fatal Offences Against the Person

Matthew Burton
@mattburton_law
 Prevalence of NFOAP in E + W

 Relevant offences: doctrine and boundaries

 Recent reform proposals: Law Commission

 Next week: sexual offences

 Violence against the person year
ending June 2017:
◦ with injury: 480,748 (-5% since 06-
07)
◦ without injury: 504,051 (+102%
since 06-07)
 31% of all recorded crime is
‘violence against the person’
 NB: highest under-recording
rate across police forces in E +
W (33%)
Police recorded offences
 Violence against the person year
ending June 2017
◦ with injury: 571,000 (-49% since 06-
07)
◦ without injury: 671,000 (-32% since
06-07)
 1.7% of respondents were victims
‘once or more’
 Domestic violence accounts for
approximately 32% of violent
incidents
 85% DV cases the victim is a
woman
CSEW
See: Crime in England and Wales: year ending
June 2016
Year ending Dec 1981 to year ending Jun
2017: ONS
1. Common assault (s 39 Criminal Justice Act 1988)

2. Assault occasioning actual bodily harm (s 47 Offences Against

the Person Act 1861)

3. Inflicting bodily injury, with or without weapon (s 20 OAPA

1861)

4. Wounding with intent to do grievous bodily harm (s 18 OAPA

1861)

refer to the relevant statutes in order to fill in your NFOAP grid (BB)
 ‘Common assault’ = assault OR battery

 s 39 Criminal Justice Act 1988 (E + W)

 Assault at common law:

◦ Where D intentionally or recklessly causes V to apprehend immediate and

unlawful force

 Distinguish from battery

◦ The infliction of unlawful force

 Procedurally: Cannot charge both in same count - Little [1992] 1 All ER

299; Nelson [2013] EWCA Crim 30
◦ Aggravated forms of assault (and battery) - eg:

 Assault on PC in execution of duty (s 89(1) Police Act 1996): Collins v Wilcock

[1984] 3 All ER 374 see also Macmillan v CPS [2008] EWHC 1457 (Admin)]

 See also – s 29 Crime and Disorder Act 1998 - ‘racially and religiously
aggravated’
 Rogers [2007] UKHL 8 para 18: are ‘bloody foreigners’ a racial group within s 28(4) of
Crime and Disorder Act 1998?
 Harm? Or Autonomy?

 Lord Steyn in Ireland [1998] 147, at 162: “an act causing the
victim to apprehend an imminent application of force upon
her.”

 Imminent?
◦ Threats from another room in a house: Lewis [1970] Crim LR 647
◦ Showing V a pistol in a drawer: Logdan v DPP [1976] Crim LR 121
 Threats?

◦ Tuberville v Savage (1669) 2 Keb 545 - ‘If it were not assize-time, I

would not take such language’

◦ What about conditional threats?

 Kracher [2013] EWHC 4627 (Admin): “If you come round the back I’ll beat
you up” = assault

 Does not matter that threat is in fact empty: Logdon [1976]

Crim LR 121 – Focus on V’s perception
 Apprehension of force can be caused by gestures, but what
about words or silence?

◦ Meade and Belt (1823) 1 Lew CC 184: “no words or singing are
equivalent to an assault”.
 However: compare Wilson [1955] 1 All ER 744: ‘Get out knives’

◦ Constanza [1997] Crim LR 576 (CA): Threatening letters

◦
◦ Ireland [1997] 4 All ER 225: phone calls, some silent - Vs developed
anxiety and depressive disorders

 Is this an assault?
 Does Ireland overstretch limits of assault?

 Imminence?

 ‘Psychological damage’/physical damage?

 Overlap with other law?

◦ public nuisance at common law: Johnson [1997] 1 WLR 367: obscene phone calls
 However: Goldstein [2005] UKHL 63 – Much of public nuisance superseded by statutory offences

◦ s127 Communications Act 2003

◦ s1 Malicious Communications Act 1988

◦ ss1 and 4 Protection from Harassment Act 1997: R v DPP [2001] EWCA Admin 17

◦ See also s 76 Serious Crime Act 2015: ‘Controlling or coercive behaviour in an intimate or family
relationship’
 Objective test - would reasonable person be put into fear?
OR
 Subjective test - did D intend or foresee that victim would be put
into fear?

 Remember: R v G and R [2003] UKHL 50: D must be shown to have

foreseen risks and yet still carried it out.

 Mens rea for assault is intentionally or recklessly causing victim to

apprehend force – Venna [1976] Q.B. 421
◦ Upheld by House of Lords in Savage and Parmenter [1991] 4 All ER 698
◦ consider Logdon (Fake gun, D claimed no intent to carry out threat)
 Battery - physical contact – ‘slightest touching’

◦ Does not require injury: Collins v Wilcock [1984] 1 WLR 1172

◦ No need to touch V’s body: Thomas (1985) 81 Cr App R 331 (bottom of skirt)

◦ Must be proved to be non-consensual (not necessarily hostile) touching

 Consent is defence to assault (haunted house?) or battery (rugby tackle) but

remember limits of consent – Brown [1994] 1 A.C. 212 (Wednesday’s lecture)

 Consent can be implied

 Collins v Wilcock per Goff LJ: there is “a general exception embracing all physical
contact which is generally acceptable in the ordinary conduct of daily life.”
 Can be carried out by instrument – Fagan v Metropolitan Police
Commissioner [1969] 1 QB 439 (Car on foot)
 Can be carried out by omission: Santana-Bermudez [2004] Crim LR 471
(application of Miller [1983] AC 161 – actus reus material)

 BUT psychological damage NOT battery – Ireland [1997] 4 All ER 225

◦ Lord Hope: ‘no physical contact, no battery’

 Indirect actions causing harm?

◦ Use of weapon: DPP v K [1990] 1 All ER 331 (Acid in hand-drier)

◦ Domino effect: Haystead [2000] 3 All ER 890 (D struck mother, who dropped
baby)
 Can be indirect, but what are the limits?

 Simple causation of harm enough for s. 20 and 18 offences:

Martin [1881] 8 QBD 54 (blocked exits to a theatre) –
would/should this be battery if no serious injury?
 Mirrors assault

 Intentionally or recklessly inflicting ‘force’ on the

victim

 Recklessness is subjective : Cunningham [1957] 2 All

ER 419; R v G [2003] 4 All ER 765
 s.47 OAPA – assault occasioning ABH (No such crime of “ABH”)

 Must be a common assault (assault or battery)

 “Occasioning”? Roberts (1971) 56 Cr App R 95 (V jumps from

car, is D liable? Yes)
 Must cause ‘actual bodily harm’ – more than touching

◦ DPP v Smith [1961] AC 290: “Needs no explanation” i.e. left to the jury
◦ Miller [1954] 2 QB 282: “any hurt or injury calculated to interfere with the
health or comfort of the victim”.
◦ Smith [2006] EWHC 94 (Admin): Cutting off V’s ponytail constituted actual
bodily harm.

 See charging standards for examples: Crown Prosecution Service

charging standards
◦ significant medical intervention and/or permanent effects:
 cases where there is the need for a number of stitches (but not the superficial
application of steri-strips)
 hospital procedure under anaesthetic
 “Bodily”?

◦ Momentary loss of consciousness: T v DPP [2003] EWHC 266 (Admin)

◦ Must be a recognized psychiatric condition: D [2006] EWCA Crim 1139

◦ Must be supported by expert testimony - Chan Fook [1994] 2 All ER

552

◦ CPS: “Psychological harm that involves more than mere emotions such
as fear, distress or panic can amount to ABH”
 Mens rea for assault – intention or recklessness

 But what about the mens rea as to the consequences (i.e. ABH)?

 Objective versus subjective approaches:

◦ Objective approach: DPP v K [1990] 1 All ER 331– Caldwell [1981] 1 All ER 961
recklessness applied

◦ Subjective approach: Spratt [1991] 2 All ER 210 - had not given thought to
the possibility of a risk - Cunningham [1957] 2 All ER 419 test applied
 Leading case is Savage and Parmenter [1991] 4 All ER 698

 House of Lords = subjective approach

 But does D have to intend or foresee actual harm? No - House of

Lords holds that sufficient for the Crown to show that:

◦ D committed assault – including mens rea for assault/battery

◦ actual bodily harm was occasioned (ie caused) by assault

◦ Crown is not obliged to prove that D intended or was reckless whether ABH
would be caused

 Is it morally defensible to punish D without foresight of ABH?

 s.20 Offences Against the Person Act 1861:

◦ Whosoever 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 and liable, on conviction on
indictment, to imprisonment for a term … [refer to the statutes to fill in your
grid]

 s.18 Offences Against the Person Act 1861:

◦ 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
felony, and being convicted thereof shall be liable…
 Sections require the same actus reus

 Wounding (breaking continuity of the skin) Eisenhower [1984] QB 331 (DC)

OR
 Causing or inflicting grievous bodily harm

 Question of fact for jury - “Bodily harm” needs no explanation and “grievous” means no more
and no less than “really serious” DPP v Smith [1960] 3 All ER 161

◦ can include transmission of disease - Dica [2004] EWCA Crim 1103 – knowingly having sex when HIV positive –
convicted under s.20 OAPA

◦ can be ‘recognisable’ psychiatric illness – Ireland [1997] 4 All ER 225– but cf Dhaliwal [2006] EWCA Crim 1139

◦ Again see CPS charging standards: injury resulting in permanent disability, loss of sensory function or visible
disfigurement; broken or displaced limbs or bones, including fractured skull, compound fractures, broken cheek
bone, jaw, ribs, etc; injuries which cause substantial loss of blood, usually necessitating a transfusion or result in
lengthy treatment or incapacity; serious psychiatric injury.

 No need for prosecution to prove technical assault or battery - inflict or cause can be indirect
(Ireland)
 Section 20 ‘maliciously wound or inflict any grievous bodily harm’

◦ ‘maliciously’ always interpreted as ‘intentionally or recklessly’ and ‘recklessly’ interpreted as subjective recklessness
- Cunningham [1957] 2 All ER 419; R v G [2003] 4 All ER 765.

◦ BUT does D have to foresee GBH? Or does D merely have to foresee some harm - albeit not serious harm

 Savage and Parmenter [1991] 4 All ER 698 - Crown must prove that:

◦ D either intended or actually foresaw that act would cause harm AND not sufficient that he ought to have foreseen
harm

◦ physical harm intended or foresaw need only be of a minor character and unnecessary to show that intended or
foresaw wounding or GBH

 Konzani [2005] EWCA Crim 706 – sex while HIV positive

◦ if he knew or foresaw that complainant might suffer bodily harm and chose to take the risk that she would,
recklessness sufficient for the purposes
 s 18 requires ‘maliciously’ AND intent: maliciously is interpreted to mean
‘intentionally or recklessly’ but s 18 has 2 separate offences

1. maliciously wound with intent to do GBH

2. maliciously wound with intent to resist ….lawful apprehension ….of any
person

 recklessness only important with 2.

 1. requires intent to cause GBH and recklessness is not enough:

◦ Belfon (1976) 3 All E.R. 46: D - D intends consequences, ‘… first when he desires those
consequences and secondly when he foresees that they are likely to follow from his act
but he commits the act recklessly irrespective of appreciating that those results will
follow.’

◦ Court of Appeal quashed conviction – intent and not foresight is mens rea for s.18 -
remember: intent must be read in terms of Woollin (1998) 4 All E.R. 103
 s 18 only really going to be used where there is evidence of
intent on the part of the accused to commit a GBH

 OR –

 The wounding or GBH was committed in the course of

resisting lawful apprehension (or assisting someone else to
resist).
 General defences:
◦ Self defence
◦ Insanity
◦ Duress

 Defence of consent – general rule: consent is not a defence

to serious harm or killing.

 BUT it may be a defence to a harm in some situations.

 With few exceptions, consent will be no defence to a charge
under ss 47, 20 & 18.
◦ Boxing and contact sports
◦ Surgery and body alteration (tattooing or piercing)
◦ ‘horseplay’
◦ Sexually transmitted diseases.

‘…bodily harm can be consented to, outside of the established

exceptions, where the activity concerned is of ‘social benefit’
and conducive to the “public interest”’.
AG’s Ref (No.6) [1981] Q.B. 715
 Barnes [2004] EWCA Crim 3246

◦ Criminal prosecution only appropriate where “the conduct is

sufficiently grave to be properly categorised as criminal.” [para 5]

◦ Objective threshold.

◦ “The type of the sport, the level at which it is played, the nature of the
act, the degree of force used, the extent of the risk of injury, the state
of mind of the defendant are all likely to be relevant in determining
whether the defendant's actions go beyond the threshold.” [para 15]
 Brown [1994] 1 AC 212

◦ Is consent a defence to a charge under ss 20 & 47 of the OAPA

resulting from sado-masochistic sexual activity?

◦ 3:2 split in the House of Lords – held:

◦ Although the P has to prove absence of consent for common assault,

with ABH or GBH it is not in the public interest where the harm is
caused for no good reason (satisfying s/m desires is not a good
reason) for consent to be a defence.
 Templeman:
◦ The OAPA of no assistance and no case law on point. Only relevant source of law: public
policy and ‘public interest’
◦ This case is about violence (p 235). ‘I am not prepared to invent a defence of consent for
s/m encounters which breed and glorify cruelty and result in offences…’ (236)
◦ ‘Society is entitled to protect itself against a cult of violence… pleasure derived from…
pain is… evil…’ (237)
 Jauncey:
◦ Relies on case law: AG’s ref (1980) [1981] QB 715, Donovan [1934] 2 KB 498
◦ ‘slippery slope’ – public interest not only with actual but also potential harms (245). ‘the
possibility of proselytization and corruption of young men is a real danger…’ (246).
◦ Worried about spread of HIV (246)
 Lowry:
◦ Relies on case law
◦ ‘Sadomasochistic homosexual activity cannot be regarded as conducive to the
enhancement or enjoyment of family life or conducive to the welfare of society. …can
scarcely be regarded as a ‘manly diversion’.(255)
 Mustill:
◦ this case is about sex (256)
◦ Charges are so ‘inapposite’ that the statute or common law must be very clear in
order to ground a conviction. It is not.
◦ The law here is making a value judgment (265): these are questions private
morality and they are standards which are not for the criminal law (52).
◦ Any such curbing of the rights of the individual is for Parliament and not for the
Court (274).
 Slynn:
◦ Case law not relevant or binding, must be decided on principle and existing law.
◦ Offences are on a scale and harm is on a scale. Consent, as a matter of law,
should be available to offences charged up to the level of GBH (280).
◦ In the alternative: the criminalisation is an invasion of privacy.
◦ Not for the court to invent new crimes – Parliament should amend relevant
statutes (282).
 Russell LJ distinguishes Brown
◦ the facts of Brown were ‘truly extreme’ (p 50)
◦ Mrs. W not only consented, but ‘she instigated it’
◦ ‘…the appellant’s desire was to assist her in what she regarded as the acquisition
of a desirable piece of personal adornment…’

 Held:
◦ Within the tattooing exception
◦ Dicta: ‘…not in the public interest that activities such as the appellant’s… should
amount to criminal behaviour. Consensual activity between husband and wife, in
the privacy of the matrimonial home, is not, in our judgment, normally a proper
matter for criminal investigation, let alone prosecution.’ (50)

 See Emmett – the Times – 15 October 1999: considering GBH in the course of a
consensual heterosexual encounter
 ‘….the line at which the issue of consent would become immaterial
would be where there was a realistic risk of harm beyond a merely
transient or trivial injury’ Emmett (1999) 18 June 1999 (CA)

 Compare rugby or boxing injuries with those suffered in Brown and

Emmett

 Why is pain in boxing ‘socially useful’ ‘a manly diversion’ and S/M

not?

 Distinguishing between boxing and S/M is a moral judgment?

 Clarence (1888) 22 QBD 23
◦ In which C, during the course of consensual sexual activity, infected his wife
with gonorrhoea. Charged with s 20.
◦ Authority for proposition that s 20 could only be committed where there was
a battery. Because the sex was consensual, there was no assault, and hence
no offence.
◦ Never expressly overruled, until Dica.

 Dica [2004] 3 All ER 593

 Held
◦ overturning Clarence, that in the case of infectious diseases it was not
necessarily to establish an assault to ground a conviction under s 20.
◦ And while the victim could not consent to the infliction of the disease, they
could consent to the risk of contraction. However, consent to sexual
intercourse itself is not also consent to a risk of disease.
 Konzani [2005] EWCA Crim 706
◦ Issue:
 whether the trial judge had misdirected the jury as to the meaning of
consent, and its availability as a defence, where the D had been convicted
under s 20 of the OAPA for reckless transmission of HIV to three sexual
partners.
◦ Held:
 There was no misdirection.
 Consent to the risk of infection must be ‘willing’ or ‘conscious’ and this is
not possible if the infecting partner has failed to disclose HIV positive status
as the relevant time.
 R v Golding [2014] EWCA Crim 889
◦ Issue (for our purposes): was it was right to classify infection with
genital herpes as “grievous bodily harm”.

◦ Held: The court held that ‘the assessment of harm done in an

individual case in a contested trial will be a matter for the jury,
applying contemporary social standards’. No requirement that the
victim should require treatment or that the harm should have lasting
consequences. The test was ‘the effect of the disease or injury on the
particular victim, not the general characterisation of the disease’.
 Distinction in this reasoning between knowledge and consent.
 Responsibility for risk solely on the infecting party.
 Implies a particular conception of autonomy.
 If HIV is conceived first and foremost as a public health issue
this means that everyone is responsible for minimising its
spread. (see Weait: (2005) Crim. L.R. 766)
 Potentially adverse public health consequences may follow:
will the use of condoms preclude conviction? Discourage
people from seeking diagnosis and treatment?
 See: CPS charging guidelines
 Reported to the government 3 November 2015.
 The main injury offences should follow the “correspondence principle”, in
which the harm required to be intended or foreseen matches the harm
done. For example, for an offence of “recklessly causing serious injury”,
it should be a requirement that the defendant foresaw a risk of serious
injury.
 As concerns disease, the 1998 draft Bill should be modified to follow the
scheme of the existing law, in which there are no specialised offences of
transmitting disease but reckless transmission can fall within general
offences of causing injury (not limited to ‘serious injury’).
 There should be an offence of “aggravated assault”, meaning any assault
which in fact causes an injury: this new offence would sit between the
offence of intentionally or recklessly causing harm and the assault
offences. The maximum sentence for this summary only offence should
be 12 months.
 Ref: pp 22-23 in summary report for main changes proposed.
 Next week we will commence lectures on sexual offences.

 Assigned reading, lecture content and discussion may contain

triggering material.