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Non-Fatal Offences Against the Person

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Non-Fatal Offences Against the Person 4 Non-fatal offences against the person 4.1 Objectives By the end of this chapter you should be able to: 1 Defi ne and analyse assault and battery 2 Explain the concept of ‘unlawful’ force and how it affects the offence of battery 3 Defi ne and analyse the offences created by ss. 18, 20 and 47 of the OAPA 1861 4 Identify the problems surrounding the mens rea of s. 47 5 Explain the differences between ss. 18 and 20 in terms of (a) mens rea and (b) actus reus EXAMPLEEXAMPLE Barry andand DaviDavidd are stustudentsdents at a school.school. TTheyhey inindulgedulge in a ‘‘game’game’ wwherebyhereby ototherher bboysoys are grabbed and, despite their protests and attempts to get awaaway,y, thrown ‘some nine or ten ffeet’eet’ into tthehe air. TThehe victims receive serious injury on llanding,anding, bbutut Barry anandd DaviDavidd claim that theythey have no intention of causing their victims ananyy serious harm, though thetheyy anticipate tthathat tthehe victims mightmight susufferffer ddiscomfort,iscomfort, bbumpsumps anandd bbruises,ruises, ‘‘asas bboysoys ddoo in plaplaygroundyground roughness’. Can criminal punishment of BarryBarry and David be justifi ed, and, iiff so, how?how? We will return to this exampleexample throughoutthroughout this chapter.chapter. ByBy the end of the chapterchapter youyou sshouldhould bbee aableble to ddecide:ecide: witwithhttp://www.pbookshop.comh wwhichhich ooffences,ffences, iiff any, migmightht tthehe bboysoys bbee ccharged?harged? 4.2 Introduction Th is chapter is concerned with non-sexual off ences of violence falling short of killing people. Like so much of the criminal law, it is an area where logic and consistency are in short supply and there is a serious need for reform. Th e necessity for modernisation is underscored by the fact that the principal statute defi ning these off ences is the Off ences Against the Person Act 1861 (hereaft er the OAPA 1861). A number of proposals for change have been made by law reform agencies, culminating in a suggested Criminal Law Bill proposed by the Law Commission (Law Com. No. 218). 004_Heaton_Chap04.indd4_Heaton_Chap04.indd 8899 110/11/20100/11/2010 110:59:390:59:39 PPMM Non-fatal offences against the person In 1998 the Government indicated its intention to introduce a comprehensive reform to rationalise but not ‘to alter fundamentally the scope or operation of the law’ by putting out a draft Off ences Against the Person Bill for public consultation. Th e Home Offi ce has since mid-1998 been evaluating the responses to the Bill which was based largely on the policies and principles adopted by the Law Commission, although it was structured rather diff erently from the Commission’s own draft Criminal Law Bill. Th ere is currently no sign of any Bill being brought to Parliament, which has given priority to the reform of sexual off ences and various other aspects of the criminal law. Th e OAPA 1861 contains a whole range of off ences, some of which look very odd to modern eyes and are more or less obsolete. If you have access to a statute book, you would fi nd it interesting and amusing to scan through them. We can select only the most common of these off ences which, in ascending order of seriousness, are assault, battery, assault occasioning actual bodily harm, maliciously wounding/infl icting griev- ous bodily harm under s. 20 and wounding/causing grievous bodily harm with intent under s. 18. 4.3 The less serious offences 4.3.1 Common assault Th e terms ‘common assault’, ‘assault’ and ‘battery’ are oft en used interchangeably by lay- men and even lawyers and criminal law statutes. However, at common law there were two quite distinct off ences of assault and battery. Professor Glanville Williams has suggested a new terminology which neatly expresses the diff erence between these two off ences. He calls ‘assault’ ‘psychic assault’ and ‘battery’ ‘physical assault’. Many writers refer to assault proper as ‘technical’ assault. Th ese off ences are not defi ned in any statutes and their ingredients must be gleaned from case law. However, the penalties are now pre- scribed by s. 39 of the Criminal Justice Act 1988. Th e Divisionalhttp://www.pbookshop.com Court in the combined appeal of DPP v Taylor and DPP v Little [1992] 1 All ER 299 confi rmed that there are two distinct off ences and, more controversially, that these have been statutory off ences since the enactment of s. 47 of the OAPA in 1861. Despite this, the better view (endorsed by the Divisional Court in Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890) is that the off ences are common law off ences, the statute merely prescribing the penalty for their commission. Th e signifi - cance of the foregoing points relates to procedural matters which are outside the scope of this work. Th e term ‘common assault’ is most oft en used to embrace both psychic assault and battery (physical assault). One exception is s. 39 of the Criminal Justice Act 1988 which expressly refers to ‘common assault and battery’. Section 40 refers only to ‘common assault’. Th e Court of Appeal in Lynsey [1995] 3 All ER 654 had to hold that ‘common assault’ means ‘technical assault’ only in s. 39, but technical assault or battery in s. 40! Th e latter usage also occurs in s. 47 of the OAPA 1861 (assault occasioning actual bodily harm). 004_Heaton_Chap04.indd4_Heaton_Chap04.indd 9900 110/11/20100/11/2010 110:59:390:59:39 PPMM Non-fatal offences against the person 4.3.2 ‘Technical’ or ‘psychic’ assault Th is off ence is committed where D intentionally or subjectively recklessly causes the vic- tim to apprehend immediate force to his person. 4.3.2.1 Actus reus D’s conduct must cause the victim to think that force is about to be applied there and then to his person. In most cases P will be frightened by this threat, but fear is not essential. It is unnecessary to prove any physical contact between the defendant and the victim, contact being the hallmark of battery (physical assault). QUESTION 4.1 List three ways in which you could commit a psychic assault on someone you dislike! Th ere are numerous possibilities including pointing a gun at V, waving your fi st under V’s nose, riding your bicycle at V, throwing a stone at V, making as if to set your pet puma on V! Of course, if in any of these cases you actually touch V, you could be committing bat- tery as well as assault. In our Example, Barry and David’s victims protest and attempt to get away, which would indicate that they think that force is about to be applied to them. It is essential that V actually apprehends violence to himself so that if the threatening actions are unseen by V and done without his knowledge or if, say, V knows that the gun pointing at him is unloaded or an imitation, no psychic assault is committed. QUESTION 4.2 In Lamb [1967] 2 QB 981, D pointed a loaded gun at his friend V who thought it was a joke and that the gun would not fi re. Do you think this was an assault? Give your reasons. If V is in fear of immediate violence, it is irrelevant that, unknown to him, there is in fact no danger of the threat being carried out, e.g., where D points an unloaded or imitation gun at V (Logdon v DPP [1976]http://www.pbookshop.com Crim LR 121, DC). Immediate violence Th e defi nition requires there to be an apprehension of immediate violence and this was confi rmed by the House of Lords in Ireland [1997] 3 WLR 534). Th us a threat of future (non-immediate) force (‘I will get you one dark night’) does not constitute assault. Notice that it is the violence threatened which has to be immediate not the fear or apprehen- sion of it. Th e Court of Appeal in Ireland fell into this trap for the unwary. Th us, if Julius Caesar had taken seriously the warning, ‘Beware the Ides of March’, he might have imme- diately apprehended the risk of violence to himself, but his fear would not have been of immediate violence but only of future violence—on 15 March. But the crucial question is how immediate is immediate? Th e original concept was extremely narrow and confi ned to cases where V thought D was both on the point of applying force to him and in a position immediately to do so. By gradually expanding the concept of ‘immediacy’, the courts have in practice considerably widened the scope of the 004_Heaton_Chap04.indd4_Heaton_Chap04.indd 9911 110/11/20100/11/2010 110:59:390:59:39 PPMM Non-fatal offences against the person off ence, taking it well beyond ordinary notions of assault. We can perhaps accept Smith v Chief Superintendent, Woking Police Station (1983) 76 Cr App R 234 where the Divisional Court held that the magistrates who tried the case were entitled to infer that V had appre- hended the immediate application of force upon being frightened (as D intended she should be) by D’s peering at her through her house window at 11.00 p.m. But the House of Lords went further in Ireland in holding that it was possible, ‘as a matter of law’, for someone to be guilty of assault by making persistent silent telephone calls to another. ‘Whether he is or not will depend on the circumstance and in particular on the impact of the caller’s potentially menacing call or calls on the victim’ (per Lord Steyn).
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