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Non-fatal Offences against the Person

This page considers five offences: common assault, common law battery, s47 assault occasioning ABH, s20 malicioulsy wounding or inflicting GBH, and s18 maliciously wounding or causing GBH with intent.

 

COMMON ASSAULT

Section 39 of the Criminal Justice Act 1988 makes this a summary offence.

Actus Reus

The actus reus of assault was traditionally regarded as any act which caused the victim to apprehend the immediate infliction of violence.  For example, in Logdon – 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.

However, there was no assault in Lamb (and therefore no liability for unlawful act manslaughter).

The act must cause a belief that there will be immediate harm but this has been interpreted liberally.  See:

An assault can now be committed by words.  This was made clear in Ireland.

However, actions can be cancelled by words: Tuberville v Savage.

Mens Rea

The mens rea is fulfilled if the defendant intentionally or recklessly caused the victim to apprehend the immediate infliction of harm.  This was stated in Venna.

 

COMMON LAW BATTERY

Section 39 of the Criminal Justice Act 1988 makes this a summary offence.

Actus Reus

The actus reus of battery is unlawfully applying physical force to another person.  For example: Collins v Wilcock, where a policewoman grabbed a prostitute’s arm in order to stop her walking away, but without having arrested her.

Battery can be committed directly or indirectly as in: Haystead, where the defendant punched a woman who dropped her child.

Some forms of physical contact are not actionable, for example, touching someone to get their attention, jostling in a busy shop and back-slapping provided it is reasonable.  There are also the defences of making a lawful arrest and acting in self-defence.

Mens Rea

The mens rea is fulfilled if the defendant intentionally or recklessly applied force to the victim.  This was stated in Venna.

 

ASSAULT OCCASIONING ACTUAL BODILY HARM

The offence of assault occasioning actual bodily harm is contained in s47 of the Offences Against the Person Act 1861, under which a defendant can be imprisoned for up to five years.

Actus Reus

Assault means a common law assault or a common law battery.

Occasioning means causing.  Harm can be caused directly or indirectly.  For example:

  • Roberts – The escape case where the defendant caused the victim to jump out of the car.
  • Constanza – Where the defendant stalked the victim.
  • Ireland – By silent phone calls.
  • DPP v K – Placing sulphuric acid in a hot air drier in school toilets.

Harm can also be caused by omission, as in DPP v Santa-Bermudez, where a policewoman searched the defendant after having told him to empty his pockets and having asked if he had any needles or sharps.  The defendant said no but the policewoman pricked her finger on a hypodermic needle.

Actual bodily harm means not only physical harm to the skin, flesh and bones but also psychiatric injury supported by expert evidence.  This was stated in Chan-Fook.

The meaning of ABH was further extended in:

  • T v DPP – where the defendant kicked the victim and caused a momentary loss of consciousness; and
  • DPP v Smith – The defendant assaulted his former partner and cut off her pony-tail with a pair of scissors.  It was also stated, obiter, that if paint or some other unpleasant substance were put on the hair, that would also be capable of amounting to ABH.

Mens Rea

The mens rea of the s47 offence is the mens rea of common assault only (ie, intention or recklessness).  No mens rea is required for actual bodily harm, simply a causal link between the assault and the harm suffered.  This was decided by the House of Lords in R v Savage; Parmenter (see below, under the s20 offence).

 

MALICIOUSLY WOUNDING OR INFLICTING GBH

These two offences are contained in s20 of the Offences Against the Person Act 1861, which states:

“Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any person, either with or without any weapon or instrument, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for five years.”

Actus Reus

Wounding means breaking the top two layers of the skin: Eisenhower, where the defendant shot the victim in the eye with an air rifle.  The court held that the internal rupture of blood vessels in the victim’s eyes did not amount to wounding within s20.

Inflicting means causing, either directly or indirectly.  For example:

  • Martin – The defendant blocked the exit doors of a theatre, put out the lights in a passageway, and shouted ‘Fire!’ as the theatre-goers were leaving the performance.  In the ensuing panic, many were severely injured by being crushed against the locked doors.  The defendant was convicted under s20 and appealed.  His conviction was confirmed and it is implicit in the decision that the indirect nature of the way in which the defendant’s acts had caused the harm presented no bar to liability.
  • Burstow – The defendant stalked the victim.

Grievous bodily harm means really serious bodily harm according to the House of Lords in Smith (a murder case).  It can also be:

  • Psychiatric injury of a serious nature supported by expert evidence, as stated in Burstow; and
  • Biological injury as stated in Dica, where the defendant had become infected with AIDS but continued sexual relationships with women.

Mens Rea

“Maliciously” means the defendant intended to cause some harm, even if minor, or was reckless as to causing some harm.  This was stated in Mowatt.  Lord Diplock stated: “It is quite unnecessary that the accused should have foreseen that his unlawful act might cause physical harm of the gravity described in the section, ie a wound or serious physical injury.  It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result.”

The defendant must foresee the possibility of some physical harm or will not be liable as in R v Savage; Parmenter:

  • R v Savage – 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 because of the trial judge’s misdirection as to the mental element for that offence, but the court substituted a conviction for s47, 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.
  • DPP v Parmenter – 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.  An alternative verdict under s47 was substituted.

 

MALICIOUSLY WOUNDING OR CAUSING GBH WITH INTENT

These offences are contained in s18 of the Offences Against the Person Act 1861:

“Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, with intent to do some grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for life.”

Actus Reus

The actus reus of these offences is the same as for s20 (above).

Mens Rea

There are two elements to the mens rea.  First, the defendant must ‘maliciously’ wound or cause grievous bodily harm.  Secondly, the defendant must have a specific intent to either do some grievous bodily harm to the victim or to resist or prevent the lawful apprehension or detainer of any person.  This was made clear by the Court of Appeal in cases such as:

  • Belfon – The defendant had slashed the victim with a razor causing severe wounds to his face and chest.  The Court of Appeal held that in order to establish the offence under s18 it was essential to prove the specific intent.  References to the defendant foreseeing that such harm was likely to result or that he had been reckless as to whether such harm would result, would be insufficient.
  • Morrison – The defendant was seized by a police officer who stated that she was arresting him.  He jumped through a window which resulted in the police officer’s face being wounded.  The trial judge directed the jury that if he intended to resist arrest and was objectively reckless (in the now over-ruled Caldwell sense) as to causing the officer harm, he was guilty of the s18 offence.  The Court of Appeal quashed the conviction and held that recklessness in the Cunningham (subjective) sense was required.  Note that this means that the prosecution must prove the defendant intended to cause a wound or grievous bodily, or realised that it could be caused.

According to the CPS Charging Standards (see below), factors which may indicate a specific intent to do GBH for s18 include:

  • A repeated or planned attack;
  • Deliberate selection of a weapon or adaptation of an article to cause injury, such as breaking a glass before an attack;
  • Making prior threats; and
  • Using an offensive weapon against, or kicking, the victim’s head.

The charge of causing GBH with intent to resist or prevent the lawful apprehension or detainer of any person is of assistance in more serious assaults upon police officers, where the evidence of an intention to prevent arrest is clear, but the evidence of an intent to cause grievous bodily harm is in doubt.

 

THE CPS CHARGING STANDARDS

The Police and the CPS have co-operated in the development of charging standards on non-fatal offences against the person to ensure greater consistency.  Click this link to view the charging standards.  Consider what injuries or circumstances are required for common assault, s47, s20 and s18.