Crime CVIII – s.47 of the Offences Against Person Act (1861) V

The actus reus (physical element) that needs to be established to obtain a conviction for a s47 offence is usually assault and battery but assault per se would suffice as long as it was done repeatedly and done with the intention to intimidate the victim see R v Burstow (1997) and R v Ireland (1998).

Battery is a summary offence i.e. an offence that is tried at a magistrate’s courts. It is an offence that in most instances follows an assault. The defendant first verbally abuses or intimidates the victim and soon after carries out his or her threat by using some form of physical violence.

Section 39 of the Criminal Justice Act 1988 gives us an idea of the offence. The section reads as follows: –

“Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both”.

However in order for the defendant to be guilty of battery the act must be unlawful. A defendant has a valid excuse to use force:-

  1. When he or she is trying to defend himself or herself. At common law anyone is allowed to use reasonable force to protect himself or herself.

  2. When the defendant is trying to prevent a crime as per s.3 (1) of the Criminal Law Act 1967. The act reads as follows:-

“A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large”.

What amounts to reasonable force is a question of fact and it is for a court or a jury to decide.

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Crime CVII – s.47 of the Offences Against Person Act (1861) IV

In R v Spratt (1990) the accused fired his air gun from an open window without thinking that there might be others in the vicinity, the thought never occurred to him. Two of the bullets that were fired from the air gun hit a young girl who was playing in the courtyard and the accused was charged with causing actual bodily harm (ABH) as per s47 of the Offences Against Person Act (1861). The question before the court was whether a) the accused intended to cause actual bodily harm or b) whether his conduct was so reckless that intention could be implied. The accused pleaded guilty and was sentenced. The accused appealed the sentence.

On appeal, the prosecution relied on the Caldwell test and sought to obtain a conviction on the grounds that the accused had either not given any thought to the possibility of there being any such risk or had recognized that there was some risk involved but had nonetheless gone on to commit the act. His conviction was quashed, and the judge decided that in order to convict for Caldwell recklessness the accused must have some appreciation of the risk.

It is clear that the Caldwell test is too broad and widens the scope of liability and the judge in R v Spratt (1990) recognizing the dangers of the Caldwell test has tried to limit or restrict its scope by looking at the accused’s state of mind at the time he committed the act.

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Crime CVI – s.47 of the Offences Against Person Act (1861) III

In R v Venna (1975) the defendant and his friends were causing a ruckus, shouting, yelling, and banging trashcan lids together at 3 am in the morning. Their conduct caught the attention of a police officer who ordered them to stop but they refused. The police officer then proceeded to arrest them, but the defendant resisted, and the police officer called for backup. The defendant continued to resist arrest, and it eventually took three police officers to restrain the defendant who was pulling away, lashing out with his hands, and kicking wildly.

While arresting the defendant one of the police officers was injured as a result of the defendant’s actions and a bone in his hand was fractured. The defendant was charged and convicted.

The defendant appealed on the grounds that recklessness in itself was not sufficient for a conviction and the prosecution must establish intention i.e. a deliberate act that was done to injure the police officer citing R v Lamb (1967), where two boys got their hands on a revolver and one boy pointed the revolver at the other not realizing that there was a bullet in the chamber and pulled the trigger. The boy was tried for unlawful act manslaughter and the court held that there was no unlawful act.

The facts of R v Lamb (1967) can be distinguished from the facts in R v Venna (1975). In R v Lamb (1967) both the defendant and the victim were minors and in R v Venna (1975) both the defendant and the victim were adults. Some exceptions may be made for minors.

Secondly the boys were clearly fooling around, and their actions can be construed as frivolous or horseplay, though that in itself is not a defense on a charge of involuntary manslaughter, where the defendant points the gun and pulls the trigger see R v Jones (1874).

However, as a general rule in order to convict for unlawful act manslaughter the act must be above something that is construed as frivolous or horseplay see R v Church (1965).

In R v Venna (1975) it is clear that the defendant was not fooling around, and he did intent to resist arrest and did so by pulling away, lashing out with his hands and kicking and while doing so or while trying to resist arrest he injured a police officer.

The conviction was upheld, and it was decided that the defendant need not intend to harm the victim or cause him or her some form of injury. It sufficed that the injury was a likely and probable consequence of the defendant’s actions.

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Crime CV – s.47 of the Offences Against Person Act (1861) II

The mens rea (mental element) for a s.47 offence is either –

  1. Intention

or

  1. Recklessness

The test to determine whether the defendant intended to cause the victim some harm or was reckless as to whether some harm was caused or not is objective and the defendant need not foresee the consequences of his actions. It suffices that the injuries that resulted were a natural and probable consequence of the defendant’s actions.

In R v Roberts (1971) the defendant and the victim met at a party. Once the party was over the defendant offered to give the victim a lift in his car which the victim accepted and while they were on the road the defendant made sexual advances at the victim which the victim spurned or rejected. When the defendant did not stop the victim jumped out of the moving car and sustained cuts, bruisers, and other minor injuries. The defendant was charged with assault occasioning actual bodily harm and sexual assault. He was convicted for assault occasioning actual bodily harm and found not guilty of sexual assault. The defendant appealed on the grounds that he did not foresee or could not foresee the consequences of his actions or the victim’s reaction.

It was held that foresight of consequences is not a prerequisite to obtaining a conviction for a s.47 offence. It suffices that the victim’s reaction was a natural and probable consequence of the defendant’s actions.

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Crime CIV – s.47 of the Offences Against Person Act (1861) I

s.47 of the Offences Against Persons Act (1861) reads as follows:-

“ Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable  . . . (to imprisonment for a term not exceeding 7 years) . . . ; and whosoever shall be convicted upon an indictment for a common assault shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding (two years).”

Actual bodily harm per se is defined as minor injuries including cuts, bruises, lacerations, or any other harmful act that causes the victim to suffer from some form of injury and it does not only include physical injury but also includes psychiatric injury see R v Burstow (1997) and R v Ireland (1998)

Assault is a prerequisite to obtaining a s47 conviction. Assault  is defined as  the act of intentionally or recklessly causing the victim to apprehend immediate and unlawful violence i.e. it is an offence that can be committed intentionally or an offence that can be committed without giving due thought to the impact that it would have on the victim.

In order to convict for assault the prosecution does not have to proof or establish physical injury and therefore it stands to reason that in order to obtain a conviction under s.47 of the Offences Against the Person Act (1861) the prosecution does not need to proof or establish physical injury either and it gives the prosecution some scope to convict defendants for causing or precipitating psychiatric illnesses.

A conviction under s47 of the Offences Against Person Act (1861) is more serious that a conviction for assault (assault is a summary offence). The maximum sentence for a s.47 conviction is 7 years whereas the maximum sentence for an assault is only 6 months.

However a s.47 offence is considered a less serious offence when compared to a s18 or a s20 offence of the Offences Against Person Act (1861). Whether an act will amount to an assault or otherwise depends on the facts see R v Wilson (1955).

It is also possible to substitute a s.20 conviction of the Offences Against Person Act 1861 with a s.47 conviction see R v Bollom (2004).

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Crime CIII – s.18 and s.20 of the Offences Against Person Act (1861) IX

3. Inflict – the word inflict includes both direct and indirect harm and it could either be intentional or due to the defendant’s recklessness. In R v Martin (1881) the defendant shut the doors at a theater and placed a crossbar across the door. He then switched off the lights on a staircase and yelled “fire”. His actions caused a panic and some of those that were in attendance were injured when they rushed out.

It was held that the defendant, regardless of the fact that he was merely playing a prank, must be deemed to have intended the consequences of his actions and he was found guilty accordingly.

In R v Wilson (1984) the defendant hit a pedestrian (the victim) with his vehicle and a heated argument subsequently ensued during the course of which the defendant punched the victim.

It was held that ‘grievous bodily harm may be inflicted, either where the accused has directly and violently ‘inflicted’ it by assaulting the victim, or where the accused has ‘inflicted’ it by doing something, intentionally, which, though it is not itself a direct application of force to the body of the victim, it does directly result in force being directly applied violently to the body of the victim so that he suffers grievous bodily harm’

With regards or reference to psychiatric illnesses, inflict is construed as causing or precipitating the illness and does not require proof of assault or battery and nor does it require direct or indirect force. The defendant’s persistent and often repeated actions can be construed as inflicting, when the psychiatric illness does occur.

In R v Burstow (1997) the defendant and the victim were in a brief relationship which the victim unexpectedly ended. Unhappy with the victim’s decision, the defendant harassed the victim for several months making repeated phone calls, sending her threatening letters, turning up unexpectedly and speaking to her neighbors. The defendant’s actions caused the victim to succumb to a psychiatric illness (severe depression).

The questions before the courts were as follows: –

  1. Are words alone sufficient to constitute an assault and

  2. Does psychiatric illness (injury) fall within the scope of s. 18, s. 20 and s. 47 of the Offences Against the Person Act 1861 and can it be defined as bodily harm.

It was decided that on: –

  1. Words are sufficient to constitute an assault.

  2. Psychiatric illness (injury) does fall under the scope of bodily harm or can be classified or categorized as bodily harm.

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Crime CII – s.18 and s.20 of the Offences Against Person Act (1861) VIII

Grievous Bodily Harm includes psychiatric illnesses. However an action for causing a psychiatric illness is best brought under s20 of the Offences Against Person Act (1861) because a s18 conviction of the same act requires a break in the continuity of the skin see JJC v Eisenhower (1984)

In R v Ireland and Burstow (1998) the defendant and the victim were in a brief relationship which the victim unexpectedly ended. Unhappy with the victim’s decision, the defendant harassed the victim for several months making repeated phone calls, sending her threatening letters, turning up unexpectedly and speaking to her neighbors. The defendant’s actions caused the victim to succumb to a psychiatric illness (severe depression).

It was decided that: –

  1. Words are sufficient to constitute an assault. In fact, silence alone for example in instances where the caller calls the victim and remains silent can constitute an assault – the proposition … that words cannot suffice is unrealistic and indefensible. With reference to phone calls – that fact that the caller calls and remains silent to cause fear and intimidation is sufficient to constitute an assault – Lord Steyn see R v Ireland (1998)

  2. Psychiatric illness (injury) does fall under the scope of bodily harm or can be classified or categorized as bodily harm (whether it is actual bodily harm or grievous bodily harm most likely depends on the severity of the offence, keeping in mind that it is possible to substitute a s.20 conviction for a s.47 conviction)

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Crime CI – s.18 and s.20 of the Offences Against Person Act (1861) VII

When assessing the nature of the injury (injuries) the jury is to take into account all factors and whether the injury (injuries) amount to GBH or otherwise is to be determined by taking into account ordinary standards of usage and experience and this direction is in line with Section 8 of the Criminal Justice Act (1967).

In R v Brown and Stratton (1997) the defendant and his cousin were embarrassed by the defendant’s father who was undergoing a gender reassignment and turned up at the defendant’s workplace wearing a dress. Both the defendant and his cousin after a drinking bout, went over to the where the defendant’s father was staying, and assaulted her inflicting numerous injuries including a broken nose, a concussion and knocked out several teeth. The defendants pleaded guilty to causing actual bodily harm as per s.47 of the Offences Against Persons Act (1861) and not grievous bodily harm (GBH) s.18 of the Offences Against Person Act (1861).

The trial judge directed the jury to consider the injuries from the perspective of the victim and if the victim would consider the injuries that she’d sustained as serious and the defendants were accordingly convicted for causing grievous bodily harm (GBH) under s18 of the Offences Against Persons Act (1861). The defendants appealed.

It was held that while there was a mis-direction (the direction to the jury), it did not by itself render the conviction unsound.  Taking into account the fact that the defendants were intoxicated at the time the s.18 conviction was substituted for a s.20 conviction of the same act.

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Crime C – s.18 and s.20 of the Offences Against Person Act (1861) VI

When assessing whether the injuries amounted to GBH or otherwise the jury is entitled to take into account the characteristics peculiar to the victim including his or her age. In R v Bollom (2004) the victim inflicted injuries on his partner’s seventeen-month old baby and while the injuries would not have constituted grievous bodily harm (GBH) if inflicted on an adult, the same injuries when inflicted on a child could constitute grievous bodily harm (GBH). The jury took into account of the fact that the victim was a baby and convicted the defendant for causing grievous bodily harm (GBH).

The defendant appealed on the grounds that when deciding whether any injury (injuries) constituted grievous bodily harm (GBH), the jury should not take into account the age and characteristics of the victim.

The court of appeal held that when deciding whether an injury (injuries) amount to grievous bodily harm (GBH) the jury is entitled to take in account the victim’s age, sensitivities, and characteristics. However, because not all the injuries that were sustained by the victim were a result of the defendant’s actions the conviction was substituted for a S.47 conviction or actual bodily harm (ABH). It is possible to substitute a S.20 conviction with a S.47 conviction see R v Savage (1991) and R v Parmenter (1991). The test to determine whether a defendant is guilty of a s.47 offence is objective.

It also worth keeping in mind s.58 (4) of the Childrens Act 2004 – For the purposes of subsection (3) “actual bodily harm” has the same meaning as it has for the purposes of section 47 of the Offences against the Person Act 1861”.

s.58 (3) of the act reads as follows: –

“Battery of a child causing actual bodily harm to the child cannot be justified in any civil proceedings on the ground that it constituted reasonable punishment”.

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Crime XXXXXXXXXIX – s.18 and s.20 of the Offences Against Person Act (1861) V

  1. Grievous Bodily Harm. Grievous bodily harm is defined as serious harm to another person or harm that is above or more serious than actual bodily harm (ABH).

In DPP v Smith (1961) – Smith had stolen some goods and loaded it to the back of his car. A policeman ordered him to stop but he drove off instead and the policeman jumped on to the back of the car in order to stop him. The policeman was subsequently throw off from the back of the vehicle, into the path of other oncoming vehicles and died as a result. The defendant was tried and convicted. The defendant appealed.

The House of Lords unanimously upheld the conviction. In doing what he (Smith) did, he must, as a reasonable man have contemplated that serious harm was likely to occur. Hence, he is guilty of murder.

The test in DPP v Smith (1961) is as follows: – If the jury is satisfied that he (Smith) must as a reasonable man have contemplated that grievous bodily harm (GBH) was likely to have resulted to the policeman from his actions and such harm did in actual fact occur, then the accused is guilty of murder. On the other hand, if the jury is satisfied that he (Smith) could not have contemplated that the policeman would incur grievous bodily harm (GBH) as a result of his actions then the verdict would be guilty of manslaughter.

The test in DPP v Smith (1961) was supplanted by Section 8 of the Criminal Justice Act (1967) – Proof of criminal intent.

A court or jury, in determining whether a person has committed an offence –

(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but

(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

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