ASSAULT
AND
BATTERY
MODULE 3 CRIMINAL LAW
WHAT IS AN ASSUALT?
In Fagan v MPC [1969] 1 QB 439, the court said that
an assault is any act which is the intentional or
reckless application of unlawful force to the body of
another person.
WHAT IS AN ASSUALT?
Fagan v MPC:
'Although "assault" is an independent crime and is to
be treated as such, for practical purposes today
"assault" is generally synonymous with the term
"battery", and is a term used to mean the actual
intended use of unlawful force to another person
without his consent.'
ASSAULT AT STATUTE
Sections 34- 43 of the Offences Against the Person Act
(OAPA) provide some of the categories of assaults
which exist in our jurisdiction. They range from assault
of a clergyman in the performance of his duty (S. 34),
assault of a magistrate (S.35), assault in the
commission of a felony or on a constable (S.36) to
aggravated assaults on women and children (s.40).
ASSAULT AT STATUTE
Section 39 of the OAPA provides that where any person shall
unlawfully assault or beat any other person, two Justices, upon
complaint by or on behalf of the party aggrieved, may hear and
determine such offence, and the offender shall, upon summary
conviction, be liable to imprisonment with or without hard
labour, for a term not exceeding two months, or else shall
forfeit and pay such fine not exceeding, together with costs (if
ordered) the sum of one thousand dollars; and if such fine as shall
be so awarded, together with the costs, if ordered, shall not be
paid either immediately after conviction, or within such period as
shall at the time of the conviction be appointed, the offender may
be committed to imprisonment with or without hard labour, for a
term not exceeding two months unless such fine and costs be
sooner paid.
ACTUS REUS OF ASSAULT
The actus reus of assault is any act which causes the
victim to apprehend an immediate infliction of violence,
e.g. raising a fist or pointing a gun.
APPREHENSION OF VIOLENCE
There is no need for any physical contact between
the defendant and the victim. The emphasis is on
what the victim thought was about to happen. So
even if the defendant meant his threat as a joke, an
assault is nevertheless committed if the victim is
sufficiently frightened.
APPREHENSION OF VIOLENCE
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. His action constituted an
assault.
IMMEDIACY
The requirement of immediacy in the crime of
assault is generally understood to mean that the
victim must perceive the threat as one which can
be carried out "there and then" by the defendant.
The courts have on occasion however, given a
somewhat liberal interpretation to the concept of
immediacy in assault.
IMMEDIACY
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.
CAN MERE WORDS CONSTITUTE AN ASSAULT?
The case of R v Meade and Belt (1823) 1 Lew CC 184,
where The defendants surrounded the victim's house
singing threatening and menacing songs.
Held:
No assault was committed.
Holyroyd J stated that "no words or singing are
equivalent to an assault", is often cited as authority
for the proposition that words alone, unaccompanied
by physical gestures, cannot amount to an assault.
CAN MERE WORDS CONSTITUTE AN ASSAULT?
It is clear 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) 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.
CAN MERE WORDS CONSTITUTE AN ASSAULT?
Compare Tuberville with R v Light 1857
There D was held to be guilty of an assault for raising
a sword over his wifes head and saying, were it not
for the bloody policeman outside, I would split your
head open.
MENS REA OF ASSUALT
The defendant must intentionally or recklessly
cause his victim to apprehend the infliction of
immediate force.
RECAP CUNNINGHAM
The Court laid down two (2) essential elements to determine
recklessness; relying on an earlier principle of the law:
1. The accused must have demonstrated an actual
intention to do the particular kind of harm that in fact was
done.
2. The accused demonstrated recklessness as whether
such harm should occur or not (that is, the accused has
foreseen that the particular kind of harm might be done
and yet has gone on to take the risk of it).
MENS REA OF ASSUALT
The subjective Cunningham test of recklessness
applies here, in that the defendant had to be aware
of the risk of causing another person to apprehend
harm.
See case of R v Venna
ACTUS REUS OF BATTERY
A battery is the infliction of unlawful force by one
person upon another. The least touching of another will
suffice: Cole v Turner (1705) 6 Mod 149
HOSTILITY
In Wilson v Pringle [1986] 2 All ER 440, the Court of
Appeal (Civil Division) held that for a battery the
"touching must be proved to be a hostile touching".
ACTUS REUS OF BATTERY
It is therefore Battery where D, hearing A approach,
lets fly a trap door causing A to fall into a Dungeon, but
it is not battery where D stands in a narrow path
blocking As movement and, in diverting, A falls and
breaks her wrist.
In the second example it is clear that D is acting
unlawfully, but there is no violence per se. Smith and
Hogan (Criminal Law, 10th ed. p.415).
ACTUS REUS OF BATTERY
Smith and Hogan (Criminal Law, 10th ed. P. 415) points
out that It used to be said that every battery involves
an assault; but this is plainly not so, for in battery there
need be no apprehension of the impending violence.
ACTUS REUS OF BATTERY
The act of violence itself is the essence of
this offence.
MENS REA OF BATTERY
In R v Venna [1976] QB 421, James J stated "the
element of mens rea in the offence of battery is
satisfied by proof that the defendant intentionally
or recklessly applied force to the person of
another".
Recklessness here bears its subjective
Cunningham meaning.
MENS REA OF BATTERY
The accused is not guilty of the offence if he does
not foresee that he might occasion actual bodily
harm. See R v Spratt
MENS REA OF BATTERY
R v Spratt
The appellant fired an air pistol from his flat, hitting a young
girl who was playing in the square below. He claimed to have
been aiming at a rubbish chute and that he did not know
anyone was there. His appeal against a conviction for assault
occasioning actual bodily harm was successful, the Court
holding that he would be guilty only if he foresaw the result,
which occurred.
ASSAULT OCCASIONING
ACTUAL BODILY HARM
ACTUS REUS
For the actus reus of this offence to be complete there
must be:
(a) an assault, i.e. any act which causes the victim to
apprehend an immediate infliction of violence or the
actual infliction of violence (BATTERY)
(b) occasioning
(c) bodily harm.
OCCASIONING
The word 'occasioning' can be taken to mean the
same as 'causing', in that it must be shown that
the defendant's actions have caused the bodily
harm. The test that should be applied to determine
whether the defendant was the cause, in law, of the
victim's injury
OCCASIONING
This was explained in
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 of the U.K. OAPA 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.
ACTUAL BODILY HARM
The meaning of 'actual bodily harm' was explained by
the Court of Appeal in:
R v Chan-Fook [1994] 2 All ER 552
ACTUAL BODILY HARM
R v Chan-Fook [1994] 2 All ER 552
The Court of Appeal held that 'harm' is a synonym
for 'injury' (so that it would not be enough that the
victim's health or comfort had been interfered with,
if no injury had been caused), and that 'actual'
indicates that the injury should not be so trivial as
to be wholly insignificant.
ACTUAL BODILY HARM
R v Chan-Fook [1994] 2 All ER 552
The Court also held that 'bodily harm' is not limited to
harm to the skin, flesh and bones of the victim. It
includes the organs, nervous system and brain.
Accordingly, it can include psychiatric injury but it does
not include mere emotions or states of mind which are
not themselves evidence of an identifiable clinical
condition.
TELEPHONE CALLS
FOLLOWED BY SILENCE
The House of Lords has upheld the decision of the
Court of Appeal that a telephone call or a series of
telephone calls, followed by silence, could
constitute an assault causing actual bodily harm
TELEPHONE CALLS
FOLLOWED BY SILENCE
R v Ireland [1997] 4 All ER 225.
The defendant made repeated silent telephone calls,
mostly at night, to three women, as a result of which
they suffered psychiatric illness. He was charged with
three counts of assault occasioning actual bodily harm
under s47 of the 1861 Act.
STALKING
Stalking may also amount to an assault occasioning
actual bodily harm, where it causes a clinical illness
(as opposed to simple anxiety and stress).
STALKING
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.
MENS REA
Liability is established if the defendant has the mens
rea of common assault (intention or recklessness). No
mens rea at all is required as to causing actual bodily
harm. All that need be proved is the causal link
between the assault and the harm.
MENS REA
R v Savage [1991] 4 All ER 698.
The defendant was charged with unlawful wounding under s20,
the prosecution having alleged that she had approached the
victim and thrown the contents of a glass of beer at her, and that
she had let go of the glass which broke, with the result that the
victim suffered cuts. She admitted that it had been her intention to
throw the beer over the victim but denied any intention to cut her
with the glass. The defendant appealed successfully against her
conviction under s20 of the U.K OAPA because of the trial judge's
misdirection as to the mental element for that offence, but the
court substituted a conviction for s47 of the U.K. OAPA, on the
basis that the offence did not require proof of recklessness or
'maliciousness' in relation to the 'occasioning' of the actual bodily
harm. The defendant had deliberately thrown beer over the victim,
an act which was obviously an assault, and that 'assault' had
undoubtedly occasioned the actual bodily harm which occurred.
MENS REA
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.
PENALTY
Pursuant to Section 43 of the OAPA whosoever
shall be convicted upon an indictment of any assault
occasioning actual bodily harm shall be liable to be
imprisoned for a term not exceeding three years,
with or without hard labor; and whosoever shall be
convicted upon an indictment for a common assault
shall be liable, to be imprisoned for a term not
exceeding one year, with or without hard labour.
ACTIVITY
Pg 206
Question 5
Final End Test
ACTIVITY
Bill and Archer are playing dominoes at Bills house and are
arguing about politics and race. They differ greatly and the
conversation soon becomes quite heated. Bill decides to quit
the discussion but Archer persists. Annoyed that Archer will
not quit, Bill goes upstairs and takes up his sons toy gun. He
comes back downstairs , brandishes the toy gun at Archer
and says Now this will keep you quiet. Archer is very upset
at Bill for frightening me like that, even after he discovers
that it was a toy gun. Bill apologises and agrees to pay all
Archies medical expenses, but Archer insists on taking legal
action.
In no more than 250 words, give Archer your opinion on Bills
criminal liability, if any.
