Non Fatal Offences (NFO)

Non Fatal Offences (NFO)

Common injuries to look out for in a problem question

Note: Remember if there is no contact between D and V and no ‘bodily harm’ it can only be an assault.

Common Assault:
Battery / S47 Assault occasioning actual Bodily Harm / Section 18 and S20 GBH or wounding
Grazes or scratches / Loss or breaking of a tooth / Injury causing permanent disability or disfigurement.
Abrasions / Temporary loss of consciousness / Broken bones
Minor bruise / Extensive or multiple bruising,
E.g. if fall’s down or downstairs as a
Result of a D’s touch or V’s apprehension of violence. / Dislocated joints
Swelling / Displaced broken nose / Injuries causing substantial loss of blood
Reddening of the skin / Minor fractures / Injuries resulting in lengthy treatment
Superficial cuts / Minor cuts requiring stitches / Large cuts
A black eye / Psychiatric injury – more than fear, distress and panic / Severe psychiatric injury – more than fear, distress or panic, and requiring specialist treatment.

Assault and Battery – Common assault

Assault and battery were traditionally common law offences and all the principles still derive entirely from decided cases in accordance with common law principles. The offences are, however, recognised by statute law and s39 of the Criminal Justice Act 1988 (CJA 1988) provides that they be tried summarily with a maximum sentence of six months’ imprisonment or a fine. Little (1992) ruled that the offences should be considered statutory offences despite the fact that s39 does not provide any definitions but only fixes the penalty and tariff.

Assault

In Ireland; Burstow (1997) the House of Lords confirmed that an assault is committed when the accused intentionally or recklessly causes the victim to apprehend immediate and unlawful violence.

The definition of assault is:

1.AR: An actcausing the victim to apprehend immediate and unlawful violence.

2.MR: Direct Intention or subjective recklessness in D causing the AR

An act

An act or words from the defendant must cause the victim’s apprehension.

R v Constanza (1997) Facts:The defendant mounted a campaign of hate against an ex-work colleague over a period of 20 months. He sent over 800 threatening letters, would follow her home, wrote offensive word on her front door, drove past her house, stole items from her washing line.
Ratio: The defendant’s letters by themselves can be considered to an act causing an apprehension of as long as the V believed they were threatening when read.
R v Burstow (1997) Facts: V ended a brief relationship but B could not accept this. He spent 8 months harassing her including silent phone calls.
Ratio: Silence can amount to an act in the form of silent telephone calls made by the accused to the victim.

Withdrawal of an assault

Words of the D can stop the act from forming an assault though this depends on the circumstances.

Tuberville v Savage (1669): Facts: The D put his hand on his sword and said if the courts weren’t sitting today he would assault the V.
Ratio: Where the words indicate there will be no violence then the act cannot form an assault.
Light (1857) Facts: D held a sword above his wife’s head and threatened to hit her with it except for the fact there was a police officer outside the house.
Ratio: Where the act of the D clearly can be seen as a threat then words cannot withdraw the assault.

Apprehend

V must foresee that violence will take place.

Lamb (1967), Facts: two young boys were playing Russian roulette with a parent’s revolver but did not understand the barrel mechanism. Both boys believed if they couldn’t see a bullet when staring down the barrel it wouldn’t fire. However, the trigger revolved the barrel to a chamber with a bullet which then discharged and killed the V.
Ratio: Where the V does not foresee a threat of violence there can be no apprehension of an assault.
Logdon v DPP (1976) Facts:The defendant pointed an imitation gun at a woman as a joke. She was terrified.
Ratio: Where the evidence clearly shows the V foresaw a threat of violence it is an apprehension of an assault regardless of the D’s intentions.

Immediate

Does not adopt its literal meaning in order to protect people from bullying and harassment.

R v Burstow (1997) Ratio: Immediacy is proved if the conduct of the D caused the victim to apprehend the ‘possibility’ of an immediate attack, as long as the V’s belief is genuine, even though it may not be rational.
R v Constanza (1997) Ratio: Immediacy can be proved even where the act is a threatening letter due to the possibility of an imminent attack.
Smith v Chief Superintendent of Woking Police Station (1983) Facts: D peered through the window of a young woman's home late at night. The woman saw him and screamed but he did not move but kept staring so she phoned the police
Ratio: Immediate was held not to not mean the same as ‘instantaneous’. As long as the V believes violence is likely to happen in the near future this is sufficient for an assault.

Mens rea of Assault

The mens rea of assault is a direct intention or subjective recklessness as to causing the victim to apprehend immediate and unlawful violence (R v Venna).

R v Mohan: Ratio: D’s main aim/purpose or desire is to cause V the AR of an assault.

Rv Cunningham: Ratio: D foresees an unjustified risk of causing V the AR of an assault but goes on to take this risk anyway.
Battery

Is defined as:

1. AR: D inflicts unlawful personal force on the V
2. MR: D directly intends or subjectively reckless as to the AR of battery.

Actus reus

Force

Collins v Willcock (1984) Facts: A police woman took hold of a woman's arm to stop her walking off when she was questioning her. The woman scratched the police woman and was charged with assaulting a police officer in the course of her duty.
Ratio: ‘Any touching of another person, however slight, may amount to force.
R v Thomas (1985) Facts: D, a school caretaker assaulted a 12-year-old after taking hold of the hem of her skirt.
Ratio: A slap, a kiss, throwing a drink over someone and even touching the victim’s clothes are sufficient force to be force.

Unlawful personal force

The fact that the victim has not consented to the battery will usually make the act unlawful through the slightest touch,

Cole v Turner (1704) Ratio: Force can be regarded as unlawful where it is unreasonable to touch the V in the circumstances or V has not given consent. However, Force will not be unlawful if it is reasonable in the circumstances or V has given consent, e.g. shaking hands, bumping into someone in a busy street.

Indirect batteries – this is an AR issue

Haystead v Chief Constable of Derbyshire (2000) facts: The D punched a woman, causing her to drop her baby.
Ratio: Where the D inflicts force on the V through some object or other person this is an indirect battery, just as if he had touched the V himself.

Omissions

Unlike assault, a battery can be committed by an omission but only where there is a duty to act. This limits the scenarios where omission might be relevant but there is one interesting reported case where the defendant had created a dangerous situation and then failed to act.

Santana-Bermudez (2004) Facts: The D was asked, but failed, to inform a police officer searching him that he had a hypodermic needle in his pocket. The officer was injured when she put her hand in his pocket.
Ratio: Where the D has a duty to take reasonable steps to avoid a dangerous situation and the D fails to do this then this conduct would be enough to prove a battery.

Mens rea of battery

The mens rea of battery was confirmed in Venna (1976) as the direct intention or subjective recklessness to apply force to another.

R v Mohan: Ratio D’s main aim/purpose or desire was to inflict unlawful personal force on V

R v Cunningham: Ratio: D foresees an unjustified risk of causing the V the AR of batter but goes on to take this risk anyway.

Assault Occasioning Actual bodily Harm (ABH)

Section 47 Offences Against the Person Act 1861

ABH is defined as:

1. AR: D causes an assault or battery on V which occasions actual bodily harm
2. MR: Direct intention or subjective recklessness as to the AR of assault or battery.

Actus reus

Assault

The term ‘assault’ under s47 means either an assault or a battery according to the cases and principles set out for common assault above.

Occasioning

Roberts (1971) Facts: The V, a woman, accepted a lift from the D at a party to take her to another party. She had not met the man before and it was 3.00 am. The D drove in a different direction to where he told her he was taking her and then stopped in a remote place and started making sexual advances towards her. She refused his advances and he drove off at speed. He then started making further advances whilst driving and she jumped out of the moving car to escape him. She suffered from concussion and cuts and bruises.
Ratio: The assault or battery must cause the extra harm. If the V’s actions could ‘reasonably have been foreseen as the consequence of what he was saying or doing’ then this caused the ABH. If the V does something ‘daft‘ or unexpected that no reasonable man could be expected to foresee then the assault or battery does not cause the ABH.

Actual bodily harm

The word ‘actual’ refers to the fact that, unlike common assault, there must be some form of physical or psychological injury caused to the victim.

R v Miller (1954) facts: D was in the middle of a divorce and had thrown her to the ground on three occasions. She was in a hysterical and nervous condition as a result of his actions.
Ratio: ABH means ‘any hurt or injury calculated to interfere with the health or comfort of the victim ‘provided it is more than ‘transient and trifling‘.
DPP v Smith (2006) Facts: The defendant's ex-girlfriend went round to his house whilst he was asleep in bed. She went up to his bedroom and woke him up. He pushed her down on to the bed, sat on top of her and cut off her hair which was in a ponytail.
Ratio: As hair was attached to the body it is bodily harm as it is without her consent is a ‘serious matter amounting to actual (not trivial or insignificant) bodily harm’
T v DPP (2003) Facts: D chased the V who fell to the ground covering his head. D kicked V in the head who lost consciousness for a moment.
Ratio: A loss of consciousness, even momentarily can be ABH.
Chan Fook (1994). Facts: The D interrogated the V about a missing watch during which he struck him several times. He then locked him in an upstairs room and threatened him with further violence if the ring was not returned. The student attempted to escape by roping the curtains and sheets together and tying them around the curtain pole. The curtain pole broke and the student fell to the ground and suffered a fractured wrist and a dislocated hip.
Ratio: The term ABH can cover psychiatric harm but only if medical experts could prove that the state of mind caused in the victim was evidence of an identifiable clinical condition and ‘mere emotions such as fear, panic and distress‘ when unrelated to such a condition would not be considered actual bodily harm.

Mens rea of ABH

R v Savage (1992) Facts: D got into argument with the V in a pub and threw beer over him. The glass slipped cutting the V’s wrist.
Ratio: P only had to prove an intention or recklessness as to throwing the beer over the V (The MR of battery), there is no need to prove the MR for the ABH.
R v Mohan: Facts: D was driving his car and responded to a police officer's signal to stop. D slowed down but then accelerated towards the PC. The PC moved out of the way, D drove off. D was charged with attempt to cause bodily harm by wanton driving at a police constable.
Ratio: D’s main aim/purpose or desire is that of the AR of assault or Battery

R v Cunningham: Ratio: D foresees an unjustified risk of an assault or battery but goes on to take this risk anyway.

Malicious Wounding (S20)

Section 20 Offences Against the Person Act 1861

S20 is defined as:

1. AR: D inflicts a wound or GBH on the V
2. MR: Direct intention or subjective recklessness as to inflicting some harm.

Actus reus

Wounding

JCC v Eisenhower (1994) Facts D shot V with an air gun. The pellet hit V near the eye, resulting in a bruise below the eyebrow and fluid filling the front of his eye.:
Ratio: A wound is a break in the two layers of the outer skin so does not include internal bleeding.

Grievous bodily harm

DPP v Smith (1961) Facts: A policeman tried to stop the defendant from driving off with stolen goods by jumping on to the bonnet of the car. The defendant drove off at speed and zigzagged, causing the V to fall off and suffer serious injury.
Ratio: GBH means ‘really serious’ harm including long hospitalisation and broken bone.
R v Bollom (2004): Facts: D inflicted injuries on his partner's 17 month old daughter, consisting of various bruises and abrasions.
Ratio: GBH should take into account the victim being elderly, frail or a child when considering the seriousness of injuries on the V.
R v Brown and Stratton (1998) Facts: The D’s attacked the V who sustained a broken nose, loss of three teeth, swelling to her face, lacerations to her eye and concussion.
Ratio: Where there are multiple injuries in one attack they can be treated as one injury which may mean the lesser injuries can be classed as really serious harm.
R v Burstow (1997) Ratio: Psychiatric harm can be grievous bodily harm provided that it is sufficiently serious
R v Dica (2004) Facts: the defendant was knowingly suffering from HIV and infected two women through consensual sex
Ratio: GBH can include ‘biological’ grievous bodily harm when the V does not know about the disease.

Inflict

.

R v Ireland (1997) Facts: The defendant made a series of silent telephone calls over three months to three different women, one of whom suffered severe depression.
Ratio: For practical purposes ‘the words ‘cause’ and ‘inflict’ may be taken to be interchangeable

Indirect GBH/wound

R v Martin (1881) Facts: The D placed an iron bar across the exit of a theatre and then shouted fire. Several people were severely injured.
Ratio: A wound or GBH can be inflicted indirectly on a V.

Mens rea

R v Mowatt (1976) Facts: The D felt threatened by the V and knocked him to the floor. D was found sitting astride the complainant and punching him violently on the face.
Ratio: The prosecution does not have to prove that the defendant intended or foresaw the wound or the grievous bodily harm. ‘It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result.’

R v Mohan: D’s main aim, purpose or desire is to inflict some harm on V

R v Cunningham: D foresees an unjustified risk of inflicting some harm but goes on to take this risk anyway.

Grievous Bodily Harm with intent (S18)

Section 18 Offences Against the Person Act 1861

This is a much more serious offence than s20, despite the similarities in language.

Actus reus

The meanings of the words ‘wound’ and ‘grievous bodily harm’ are exactly the same as for s20 and the defendant needs only to ‘cause’ these injuries with the normal rules of causation applying.

Mens rea

R v Mohan: D’s main aim, purpose or desire is to cause a wound or GBH

R v Woollin (1998) FactsThe D threw his 3 month old baby son on to a hard surface. The baby suffered a fractured skull and died.
Ratio:
1.P must prove that GBH or a wound was a virtually certain outcome of the D’s actions AND
2.P must prove that D appreciated that his actions would cause GBH or a wound as a virtual certainty.

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