Non-Fatal Offences

1. Non-Fatal Offences

2. Lesson Objectives Learners will be able to: • List and define the major non-fatal offences. • Apply these offences to a range of scenarios. • Assess the effectiveness of these offences and how the CPS tries to distinguish these offences practically.

3. The Hierarchy of Offences S.18- Wounding/GBH with Intent S.20- Wounding/ inflicting GBH S. 47 Assault Occasioning ABH S.39- Battery S.39- Common Assault

4. Common Assault- Criminal Justice Act 1988-s.39 Actus Reus- Causing V to apprehend the immediate application of unlawful physical force. (NOTE there doesn’t need to be physical contact) Mens Rea- Intention or subjective recklessness as to causing V to apprehend the immediate application of unlawful physical force.

5. Cases on Common Assault R v Ireland [1998]- Held by HOL that making silent phone calls can constitute an assault. The immediacy element is satisfied by D making the phone calls and V suffering the immediate fear. DPP v Santana-Bermudez [2003]- D was being searched for drugs and was asked by the police officer if he had any weapons on him, to which D said no. During the search the police officer was pricked on a hypodermic needle in one of D’s pockets. The court held that D could be liable for the Actus Reus of assault due to his creating of a dangerous situation . R v Wilson [1955]- D was caught poaching by V and shouted ‘Get out the knives’ it was held that this could constitute an assault. Lord Goddard held that these words could constitute an assault without an accompanying act.

6. More Assault Cases (Can Be Used For Battery As Well) R v Lamb [1967]- D and V where playing with a revolver on what they believed was an empty chamber and D pulled the trigger, upon which the chamber rotated and V was killed. Held by COA that whilst V shared in the joke there was no assault as there was no fear. Smith v Chief Superintendent Woking Police [1983]- D was looking into V’s bedroom window from the street and was charged with trespassing with an unlawful purpose (here being assault). Whilst there was no immediate physical threat, the fact that D lived nearby and that V feared physical attacks in the immediate future was enough.

7. Battery- Criminal Justice Act 1988- s.39 Actus Reus- The application of unlawful force. Mens Rea- Intentionally or subjective recklessness as to applying unlawful force.

8. Cases on Battery R v Thomas (1985)- D grabbed a 12 year old girl by her skirt and was charged with indecent assault (now sexual touching). His appeal was allowed as the act was not inherently decent however in Orbiter Ackner LJ held that touching someone’s clothes was the same as touching the person. Haystead v DPP [2000]- D punched a woman in the face and she dropped the child she was holding. He was charged with a battery on the child. Laws LJ agreed with Smith and Hogan that battery can be indirect. Collins v Wilcock [1984]- P (a police officer) stopped and grabbed the arm of a woman she believed to be a prostitute. D resisted and was charged with assaulting a constable. Goff LJ held that whilst in law any unlawful touching could amount to a battery, everyday allowances for the ‘exigencies of everyday life’ had to be made.

9. Assault Occasioning Actual Bodily Harm- Offences Against the Person Act 1861- s.47 Actus Reus- Causing the victim to fear the immediate application of unlawful physical force or the application of unlawful force. Mens Rea-Intention or subjective recklessness as to causing the victim to apprehend the application of unlawful physical force or the application of unlawful physical force.

10. Cases on Assault Occasioning Actual Bodily Harm R v Miller [1954]- D was charged with assault occasioning ABH on his wife. Lynskey J approved the words of academic Archbold in saying that Actual Bodily harm: “includes any hurt or injury calculated to interfere with the health or comfort of the victim” R v Roberts [1971]- D demanded V take off her clothes whilst she was in car with him, and she jumped out to avoid assault. D’s conviction of ABH was upheld. R v Chan-Fook [1994]- D punched a man he suspected of theft from his shop and locked him in a spare room, where V became hysterical. At trial he was convicted under s.47, but on appeal the COA overturned it. Whilst they agreed that psychiatric harm could constitute ABH, mere emotions such as fear or panic didn’t.

11. More ABH Cases R v Spratt [1991]- D was firing an air pistol from his flat window at a target downstairs, when he hit a 7 year old girl he had not seen. The Court held that the test for recklessness in Assault Occasioning Actual Bodily Harm was subjective (the facts as D saw them) and this was later approved in R v Savage and R v Parmenter. DPP v Smith [2006]-D assaulted his former partner and cut off her ponytail. At the magistrates it was held he had no case to answer, however on appeal by way of case stated the High Court held that the cutting of a ponytail could amount to ABH as it was more than ‘trivial’.

12. CPS Charging Standards. The Crown Prosecution set out boundaries as to what injuries would be considered under each offence in 1994. Whilst it is not strictly law it does have considerable bearing on how D will be charged. The main points are: • Minor injuries such as a black eye, reddening of the skin, minor cuts, grazes, minor swellings or abrasions are to be charged as Assault or Battery. • Whereas more serious harm such as broken teeth, loss of consciousness, temporary loss of functions, psychiatric injury, cuts short of requiring surgery and minor fractures will be charged as ABH. • Most other injuries above these thresholds will be charged as GBH.

13. Malicious Wounding or Grievous Bodily Harm- Offences Against the Person Act 1861- s.20 Actus Reus- To Unlawfully wound or inflict any Grievous Bodily Harm upon any other person. Mens Rea- To Maliciously (with intention or by subjective recklessness) wound or inflict Grievous Bodily Harm upon any other person.

14. Cases on s.20 Wounding and GBH The HOL defined GBH as “really serious injury” in DPP v Smith [1960] R v Burstow [1997]- D began to harass and write menacing letters to V after she broke off their relationship. She suffered severe clinical depression as a result. Lord Steyn held that GBH can be inflicted in the form of psychiatric damage and no physical harm need occur. R v Halliday (1889)- D frightened his wife V to such an extent that she jumped out of a window to flee him. His conviction was upheld. Her reaction was foreseeable in the circumstances. Moriarty v Brooks (1834)- To satisfy a charge of wounding, it must be proven that the injury broke the dermis and epidermis of the skin. Therefore both layers of skin.

15. Malicious Wounding or Grievous Bodily Harm With Intent- Offences Against the Person Act 1861- s.18 This is a more serious offence then s.18 and carries a maximum life sentence. Actus Reus- To unlawfully wound or cause Grievous Bodily Harm or prevent the lawful apprehension or detainer of any person. Mens Rea-To maliciously wound or cause Grievous Bodily Harm with intent or. *(In s.18 according to academics the meaning of maliciously should only really apply to intent, however the courts have refused to clear this issue up and it can only be suggested it means intent)

16. Cases on s.18 Wounding and GBH. R v Dica [2004]- D knowing he was HIV positive got two women V1 and V2 to have consensual unprotected sexual intercourse with him, without telling them of his condition. They were subsequently diagnosed as HIV positive. His original conviction was quashed due to an inadequate direction by the judge, however it was held that the transmission of HIV can be held as GBH. R v Belfon [1976]-D pushed a girl to the ground, and he and an accomplice attacked those who came to help her. D slashed one man with a razor, causing severe wounds to his head and chest, and was charged with wounding with intent. The Court of Appeal quashed his conviction under s.18 and substituted s.20 wounding; he had certainly foreseen the risk of such consequences, but it had not been proved that he had the specific intent required for the more serious offence.

17. Summary Assault s.39-Fear of immediate force (intentional or reckless) Battery s.39- Application of unlawful force (intentional or reckless) ABH s.47- Either assault or battery (intentional or reckless) GBH and Wounding s.20- Malicious really serious harm (intentional or reckless) GBH and Wounding s.18- Malicious really serious harm (Intentional only)