Non-fatal Assault Battery Aggravated Malicious Causing

Offences (referred to as Assaults: Wounding Grievous

against the ‘Common’ Actual Bodily and GBH, s20 Bodily Harm
Person/ Assault) Harm, s47 OAPA 1861 with Intent,
The OAPA 1861 s18 OAPA
1861
Definition Any act by Any act by which the Section 47 Section 20: Section 18:
which the defendant OAPA 1861: Whosoever Whosoever
defendant intentionally or ‘Whosoever shall shall
intentionally recklessly inflicts or shall be unlawfully unlawfully
or recklessly applies unlawful convicted on and and
causes the personal violence or indictment of maliciously maliciously
victim to force upon the victim. any assault wound or infl by any means
apprehend occasioning ict any whatsoever
unlawful actual bodily grievous wound or
immediate harm shall be bodily harm cause any
personal liable to upon any grievous
violence. imprisonment other person, bodily harm
for not more either with or to any person
than fi ve without any with intent to
years.’ The weapon or do some
offence is instrument grievous
triable either shall be guilty bodily harm
way (in either of [an offence to any person
the magistrates’ triable either or with intent
or Crown way] and to resist or
Court). being prevent the
convicted lawful
thereof shall apprehension
be liable to or detainer of
imprisonment any person
for fi ve shall be guilty
years. of an offence
and liable to
imprisonment
for life.
Actus Reus • Causing the •Application/Infliction • Assault or • Wounding; • malicious
apprehension of battery or wounding
of • Unlawful and • Either must • Infliction of • malicious
• Immediate personal violence. cause actual GBH. causing of
• Unlawful bodily harm. GBH.
personal
violence.
Mens Rea • Intention or • Intention or • MR of • Maliciously • Maliciously
• Subjective • Subjective assault/battery. (intention or (intention or
Cunningham Cunningham Cunningham Cunningham
recklessness recklessness. recklessness). recklessness).

1. Assault
*Actus reus
- Apprehension:
Technically, no physical harm at all is required for an assault. Typically, D will do something to cause the
victim to anticipate or apprehend an immediate battery—that he is going to be struck. This will occur
where, for example, D raises a fi st, aims a gun, points a knife or some other weapon or gestures in a
threatening way against the victim (V). The assault consists of causing V to apprehend immediate
violence. If V does not apprehend immediate violence, because, for example, he thinks D is only joking,
there is no assault. V’s perceptions are important here.
- Immediate:
This requirement is viewed flexibly so that immediate need only mean imminent: the harm need only be
apprehended in the immediate future not the next minute. For example, an assault was committed in the
following cases:
• [1976] Crim LR 121 where the defendant showed the victim, a tax inspector, Logdon v DPP a gun in a
drawer. The victim feared imminent harm and the defendant intended to cause such fear but he could not
have infl icted it because it was an imitation firearm
- Unlawful personal violence:
This requirement is common to both assault and battery. It need not mean violence as we commonly
understand it. Therefore, the slightest degree of unwanted interference will constitute a battery and
causing another to apprehend it will be an assault. Violence will be committed as much by unwanted
touching as by a punch on the nose. It need not be hostile in the colloquial sense or aggressive.
- You can assault by omission:
Fagan v MPC [1969] 1 QB 439 (‘Coincidence of AR and MR in time and the continuing act exception’,
p47) D accidentally parked his car on a police officer’s foot and delayed moving off after becoming
aware of his actions. It was held that he had committed an assault and battery through a series of events or
a continuing act, though some doubt was expressed as to whether his failure or omission to remove the
car would be capable of constituting the assault.

*Mens rea
This will be dealt with as part of battery below since assault and battery share a common MR

- Definition of assault:
• AR: causing another to apprehend unlawful, personal violence
• MR: either intentionally or by subjective recklessness.
• It can be committed by:
• words or silence ( Ireland/Burstow); or
• omission (Santana-Bermudez)

2. Battery
*Actus reus
- Application/Infliction:
There is no need for the victim to apprehend violence. A battery occurs when physical force is infl icted
upon the victim. As with assault, it need be neither aggressive nor hostile and need only consist of
unwanted physical contact not harm. We implicitly consent to reasonable force in social situations such as
jostling on the underground or high street, for example, and this is not an offence of battery.
- Battery by omission: Infliction will typically be a positive act but Santana-Bermudez [2003] confirms
that violence may also be inflicted by omission.
- Violence need not be directly inflicted: Unlawful personal violence or force need not be directly
inflicted upon the victim. An intermediate medium for the application, such as a weapon, will suffice
- Violence/force: There must be some force applied to the body of the victim

*Mens rea
- The following case confirms the MR for these offences as intention or recklessness:

● R v Venna [1975] 3 ALL ER 788 COURT OF APPEAL A policeoffi cer was struck on the hand by D’s foot
during an attempted arrest in a street disturbance. A bone was fractured. D was convicted of assault
occasioning ABH and appealed. The Court of Appeal held: ‘We see no reason in logic or in law why a
person who recklessly applies physical force to the person of another should be outside the criminal law
of assault. In many cases the dividing line between intention and recklessness is barely distinguishable.
This is such a case. In our judgment the direction was right in law; this ground of appeal fails. . . .’ Appeal
dismissed

- It is now clear that the type of recklessness required is Cunningham recklessness.It took the courts
some time to establish that assault/battery required subjective as opposed to objective Caldwell
recklessness

- Definition of battery:
• AR: the infliction of unlawful, personal violence
• MR: which must be intentionally or (subjective) recklessly inflicted.
• It can be committed by:
• omission; or
• the indirect use of force (Haystead, Martin, DPP v K)

3. Aggravated assaults: Actual bodily harm

- An assault may attract higher penalties because it is aggravated by reason of any of the following:

 Ulterior intention: eg Assault with intent to resist or prevent lawful arrest (s38 OAPA 1861).
 Circumstances: Assault on a constable in the execution of duty (s51 Police Act 1964).
Sexual assault (s3 Sexual Offences Act 2003).
Racial or religious hostility (s28 Crime and Disorder Act 1998).
  Consequences: Causing Actual Bodily Harm (s47 OAPA 1861).

*Actus reus
- Assault/Battery:
There must be proof of a technical assault or battery (ie the AR/MR of either must be proved) which in
turn occasions or causes ABH.
- Occasioning/Causation:
There must be an unbroken causal connection between the assault/battery and harm. Recall that an
unforeseen intervention, a novus actus interveniens, will break the chain of causation.

- The meaning of ABH: ABH was defined in Miller [1954] 2 QB 282 (Miller was a case of rape within
marriage where the husband was convicted of ABH) to mean any hurt or injury calculated to interfere
with the health or comfort of the victim. It need not be serious or permanent but must be more than
trifling or transient.

*Mens rea
- Cunningham recklessness or intention in relation to an assault is all that is required. Recklessness
would mean that D needs to foresee that he might cause an assault or battery and then goes on to
unreasonably take that risk. No foresight of ABH is required in either case.
- ABH under s47 is defined as:
• assault occasioning actual bodily harm;
• the assault must occasion or cause ABH;
• ABH consists of interference with health and comfort. It can also include psychological harm;
and
• there is no need for MR in respect of the ABH but there must be MR (intention or
recklessness)for the assault

4. Malicious wounding and Grievous bodily harm

(GBH)
*Actus reus
- Wounding:
Case law has established the following technical rules:
• A scratch which does not break the inner skin is not a wound: R v McLoughlin (1838) 8 C&P 635.
• Neither is an internal rupture of a blood vessel such as in the eye: C (a minor) v Eisenhower [1984] QB
331.
- Therefore, although a wound must be more than a superficial scratch, it need not amount to GBH.
- Grievous bodily harm:

 GBH was defined as ‘really serious harm’ in DPP v Smith [1961] AC 290: (Chapter 6, ‘Homicide
1: Murder’, p 286). It is an imprecise description which has not really been clarified by any later
cases. The injury does not need to be permanent or life-threatening and clearly what might be
serious to one person, for instance a child or a person with a particular disability, need not be to
another. It would be charged where there is permanent disability or disfi gurement, broken or
displaced bones, a fractured skull and injuries causing substantial loss of blood or lengthy
incapacity as well as serious psychiatric injury.
 Burstow and Ireland provide that serious psychological injury, even if caused by telephone calls,
may constitute GBH. It could be diffi cult to prove mens rea (recklessness or intention in respect
of some harm) in this case though for there would need to be proof of foresight of psychological
harm.
 Serious disease infection such as HIV is also included: R v Dica [2004] EWCA Crim 1103 (see
‘Defences to Assault: Consent’, p 557).
- Infliction:
‘Infliction’ does not require either an assault or the direct application of force It was once thought that infl
iction of a wound or GBH was a technical term requiring proof of a prior assault:
● R v Clarence (1888) 22 QBD 23 COURT OF CROWN CASES RESERVED A husband transmitted
a serious sexual disease (gonorrhoea) to his wife through consensual sexual intercourse, concealing from
her his true state of health. He successfully appealed against convictions of GBH under s20 and ABH
under s47. One of the reasons for overturning his conviction was that the majority of the nine judges
considered it essential to identify a prior assault for both offences. They acquitted him by holding that
consensual sexual intercourse was not an unlawful act of violence and was thus no assault.
- It follows that GBH need not be ‘aimed at’ V. So where D perches precariously on a balcony railing
and topples backwards, falling on top of a woman below and injures her, rendering her paraplegic, D will
have infl icted GBH. The act need not amount to an assault, nor need the force be directly infl icted on
any particular victim

*Mens rea
- ‘Malicious’ means ‘foresight’ The two s20 offences of wounding or GBH must be inflicted maliciously.
This means ‘with foresight’ and implies either intention or subjective recklessness. Recklessness in this
context means that D foresaw that he might cause some harm, not necessarily GBH, and that he
unreasonably took that risk. This was confirmed by the House of Lords in the conjoined appeals of
Savage and Parmenter.

- Section 20 consists of two offences: malicious wounding or malicious infliction of GBH.

 AR: Wounding need not amount to serious harm but must penetrate all layers of the skin.
 GBH is really serious harm.
 Infliction means no more than ‘cause’.
  MR: GBH must be recklessly or intentionally infl icted but there need only be foresight of some
harm

5. Causing Grevious bodily harm with intent

- This is the more serious offence of GBH and is a crime of specific/ulterior intent (which means that it
includes an intention to cause a result going beyond the AR of the Crime). CPS Charging Standards
indicate that the gravity of the injuries does not determine whether D should be charged with s20 or s18.
More crucial is evidence of intent. Therefore, a serious injury may be charged as s20 if there is only
evidence of recklessness and s18 where there is evidence of intent.

*Actus reus
- Wounding or causing GBH. Wounding bears the same meaning as for s20 and need not amount to
GBH. GBH again means the same as for s20. After Burstow, there is no practical difference between s20
infl icting and s18 causing
* Mens rea
- The difference between s18 and s20 is that s18 wounding or GBH requires proof of an ulterior intention
to commit GBH or resist/prevent the lawful arrest of any person. An intent to merely wound is insuffi
cient. There must be an intent to cause really serious bodily injury: Taylor [2009] EWCA Crim 544.
Given that the defi nition also requires the offences to be committed maliciously we need to ask what
relevance that can have. Recall that ‘maliciously’ means with foresight
- A conviction of GBH where GBH has actually been caused, based on an intention to do it, is logical
and sound. In such a case, the word maliciously really has no independent signifi-cance. Either one has
the intention or not.
- However, a conviction of GBH on the basis of an intention to resist lawful arrest is neither logical nor
sound. It might imply that one could be convicted for simply causing GBH in the course of arrest without
MR. This would be unsatisfactory and it is here that there would need to be proof of ‘maliciously’ causing
GBH, ie at least foresight of GBH
- Section 18 consists of two offences: malicious wounding and malicious GBH.
• Both must be accompanied by intention to cause GBH or resist arrest;
• The wounding need not be serious but there must be proof of the requisite intention;
• Intention means either direct or oblique intent.