Battery (Summary)

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”.

The mens rea (mental element) for battery is as follows: –

  1. An intention to apply unlawful physical force or
  2. Reckless as to whether such force is applied or not.

In R v Parmenter (1991) the defendant was convicted on four counts of causing grievous bodily harm to his infant son. The types of injuries included bruises, broken bones and aberrations. The judge directed the jury to convict under s.20 of the Offences Against Person Act (1861) if they believed that the defendant ought to be aware (objective) or should be aware that his actions would cause his infant son some form of injury. The jury convicted, and the defendant appealed on the grounds that in order to convict under s.20 the defendant must have foresight of the consequences (subjective) or must be aware that his actions would harm his son (subjective).

The defendant’s argument was that he did not know that the manner in which he handled his son would cause him physical injury or was unable to appreciate that his manner of handling his son would cause him physical injury.

The court held that the test to convict under s. 20 of the Offences Against the Person Act (1861) was subjective i.e. the defendant must be able to foresee the consequences of his actions and substituted the conviction for a conviction under s. 47 of the Offences Against Person Act 1861 (a lesser offence) where it sufficed that the defendant foresaw or could anticipate some form of harm.

In R v Savage (1991) the defendant threw a glass of beer at her husband’s ex-girlfriend, but the glass slipped from her hand and resulted in serious injury to the victim. The defendant was tried and convicted for maliciously causing grievous bodily harm to another under s.20 of the Offences Against the Person Act (1861). The victim appealed on the grounds that the word malicious required intent and the defendant had not intended to cause the victim the kind of harm or injury that resulted from her actions.

The trial judge had failed to inform the jury that the test to convict under s20. of the Offences Against the Person Act (1861) was subjective and the jury had to establish intent before it could convict under s20. However, given the facts it was possible to convict under s.47 of the Offences Against the Person Act (1861), if the defendant could foresee that some harm would result from her actions albeit not the exact type of harm or injury that resulted. The matter was referred to the House of Lords.

The matter before the House of Lords was whether: –

It was possible to substitute a s.20 conviction for a s.47 conviction when there was no intent, or the subjective test was not satisfied? The answer is yes, and it is possible to substitute a s.20 conviction with a s.47 conviction on a count of causing grievous bodily harm (GBH) when the element of intent cannot be satisfied.

A conviction under s.47 simply required Actual Bodily Harm (ABH) i.e. minor injuries, bruises, cuts and wounds and proof of an assault. Silence can constitute an assault see R v Ireland (1997) and recognized psychiatric illnesses are also classed or categorized as physical injury see R v Ireland and Burstow (1997).

In order to convict under s.20 the defendant must foresee the consequences of his or her actions regardless of the severity of the harm or injury that resulted.

Before a court can convict for battery it has to establish three elements. They are as follows: –

  1. Force was applied
  2. The force was unlawful
  3. It was physical (psychiatric illnesses are classed as assaults see R v Ireland (1997))

Application of physical force

In Fagan v MPC (1969) the defendant was in his car when he was approached by a police officer who told him to move his vehicle. The defendant did so and reversed his car onto the foot of the police officer. The police officer somewhat forcefully told the defendant to move the car off his foot and the defendant swore at the police officer, switched off the engine and refused to do so. The defendant was tried and convicted for assault and appealed the decision. The appeal was dismissed.

In this instance, the defendant committed the unlawful act by moving his car on to the police officer’s foot, he applied force by not removing the car when directed to do so by the police officer and the type of force that was used was physical.

The force that is used however need not be directly applied. In DPP v K (a minor) (1990) a schoolboy stole some hydrochloric acid from the science room and placed it in the hand dryer in the boys’ toilet. The nozzle was pointing upwards and when the next boy came to use the hand dryer the acid squirted on to his face and caused permanent scaring.

The boy was found guilty and it was held that the force that was used need not be directly applied.

The force must be unlawful

The act must be unlawful i.e. the act must be in breach of either common law or statute but if the defendant has reasonable excuse to use force than the act will not be construed as unlawful. A defendant has a valid excuse to use force: –

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.

In R v Scarlett (1994) the defendant was a publican who was trying to evict a customer who was drunk. The defendant asked the customer to leave and he refused to do so and the defendant believed that the man was about to strike him so he pinned the man’s arms to his back and forcefully took him outside and left him by the wall of the lobby. The man fell backwards, down a flight of 5 steps, hit his head and died as a result. The defendant was tried and convicted for manslaughter. The defendant appealed.

The appeal was allowed and the conviction was quashed. There was no evidence to indicate that the defendant had used excessive force.

“They ought not to convict him unless they are satisfied that the degree of force used was plainly more than was called for by the circumstances as he believed them to be and, provided he believed the circumstances called for the degree of force used, he was not to be convicted even if his belief was unreasonable.”

and

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”.

Can there be consent to battery? The answer in short is yes. In Collins v Wilcock (1984) a police constable tried to arrest a woman as per s. 1 (3) of the Street Offences Act (1959) which reads as follows: –

“A constable may arrest without warrant anyone he finds in a street or public place and suspects, with reasonable cause, to be committing an offence under this section”.

The woman tried to walk away, and the police officer tried to stop her by grabbing her hand. The woman struggled to free herself and in doing so scratched the police officer. The woman was charged with assaulting a police officer.

It was held that the police officer’s actions amounted to battery. He had no power to arrest the woman and her actions were in self-defense.

The court took the opportunity to elaborate on the offence of battery. Battery can be defined as the offence of making physical contact with someone i.e. touching, pulling, elbowing, grabbing etc. without their consent.

However, the courts accept that in the course of everyday life, it is inevitable that people will make some sort of contact with each other for example when they are walking around in a crowd and under such circumstances or in those situations it is deemed that there is implied consent and such physical contact is not actionable. In other words, in these instances there is consent to battery.

The offence of battery per se is the offence of making some sort of physical contact that is not reasonable or does not fall within the scope of generally accepted codes of conduct. What is acceptable or otherwise depends on the facts of each case.

Police officers are allowed to make contact with others in the course of their duty and not all physical contact made by a police officer will amount to battery. In Donnelly v Jackman (1970) a police officer tapped the defendant on the shoulder to bring his attention to something and the defendant turned around and assaulted the police officer.

The defendant was charged with assaulting a police officer in the course of his duty and the defendant countered by alleging that the police officer’s actions amounted to battery. The court decided that the police officer’s actions did not amount to battery.

Some leeway must be given to police officers to enable them to do their job or to carry out their duties effectively. That scope however is quite narrow.

Physical force or the application of physical force.

In order to be convicted for battery the defendant must have applied some sort of physical force that is unreasonable under the circumstances and does not fall under the scope of acceptable codes of conduct. That physical force however need not be severe and mere touching could amount to battery.

In Faulkner v Talbot (1981) it was held that battery includes the intentional or reckless touching of someone without the consent of that person or without lawful excuse and the act need not be hostile.

The decision in Faulkner v Talbot (1981) however must be compared with the decision in Wilson v Pringle (1986) when one schoolboy sued another for injuries sustained while fooling around in the school corridor. It was decided that in order for the actions of the defendant to amount to battery the act must be hostile.

In short it would be safe to say, as per Collins v Wilcock (1984), that what amounts to battery or otherwise depends on the facts of each case.

Copyright © 2019 by Dyarne Jessica Ward

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Land Law VII – Fixtures and Chattels

In Horwich v Symond (1915) it was established that before a chattel can become a fixture there must be some degree of permanency and that degree of permanency is sometimes measured by the passage of time.

The tenant at a chemist’s shop brought in a display unit, counter, show case and a bottle rack and had them affixed to the floor of the shop with plastic nails. The question arose whether the articles were to be regarded as chattels or as fixtures and the trial judge decided that the items were not fixtures.

On appeal, the court of appeal upheld the decision of the trial judge and added that whether an article or an item is regarded as a chattel or a fixture is a question of fact i.e we have to look at the facts of each case as opposed to just the law or in other words we have to look into the substance rather than just the form.

It could also be a question of fact and law or of both substance and form but we can’t get away from what was said in Holland v Hodgson (1872) in that, the courts have to look into the facts of each case before they can decide if an article or an item is a chattel or a fixture.

Copyright © 2019 by Dyarne Jessica Ward

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Land Law VI – Fixtures and Chattels

In Crossley Brothers Limited v Lee (1908) it was held that the relationship between a tenant and a landlord is similar to the relationship between a mortgagor and a mortgagee.

The tenant purchased an engine which was affixed to the floor with bolts and then defaulted on the rent. The landlord took his property back and the question that arose was whether the engine was a fixture or a chattel. If the engine had become a fixture it was a permanent feature of the property and the landlord was entitled to it.

The Divisional Court held that the engine had become a fixture and could not be removed from the property and added that the tenant-landlord relationship is similar to the mortgagor-mortgagee relationship.

The decision may have been made in light of the fact that there may have been an arrears and to allow the landlord to recover some of his losses.

Copyright © 2019 by Dyarne Jessica Ward

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Land Law V – Fixtures and Chattels

In Reynolds v Ashby and Son Limited (1903) the lessee of a property (a 99 year lease or a leasehold property, there are usually two types of properties, freehold and leasehold (properties than are leased for 99 years, normally from the time of construction) erected a factory on the property and purchased some machines under a hire purchase agreement. He had the machines affixed to the floor of the factory with bolts.

There was evidence to suggest that the machines would have worked even if they were not affixed to the floor but it was better to have the machines bolted to prevent movement caused by vibration.

The lessee then mortgaged the property and defaulted on the mortgage. The question before the courts was whether the machines were fixtures, in which case the mortgagee was entitled to them or if they remained as chattels as per the hire purchase agreement, in which case the owner could take them back.

It was held that the machines had become fixtures. Lord Lindley – “The purpose for which the machines were obtained and fixed seems to me unmistakable; it was to complete and use the building as a factory. It is true that the machines could be removed if necessary, but the concrete beds and bolts prepared for them negative any idea of treating the machines when fixed as movable chattels.”

Copyright © 2019 by Dyarne Jessica Ward

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Land Law IV – Fixtures and Chattels

In Monti v Barnes (1901) we look into whether fixtures, when they are taken out and replaced, by something that is different but serves the same purpose, remain as fixtures or if they are to be regarded as chattels.

According to the facts of the case the mortgagor removed from the house a number of ordinary fixed grates and replaced them with dog grates which were considerably lighter which were not in any way affixed to the freehold and the question before the court was whether the new dog grates were to be regarded as fixtures or as chattels.

In coming to a decision, the court decided that it needed to look into the intention of the mortgagor at the time he replaced the grates or substituted the grates and it was obvious that “he could not have intended for the house to be without grates”.

The question that had to be asked was, having regard to the character of the articles (grates) and the circumstances of the case, whether the articles were intended to be annexed to the freehold or if they were intended to continue as chattels and the court decided that it was the former i.e. that the articles had become a permanent feature of the freehold and were to be regarded as fixtures.

Copyright © 2019 by Dyarne Jessica Ward

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Rule of Law

The rule of law is a doctrine propounded by its exponents that aims to subject all three branches of the government to the prevailing law. The rule of law has to be read in light of the doctrine of parliamentary supremacy or parliamentary sovereignty and while parliament as a collective body is the sole law-maker in the land, with the exception of common law or judge-made law, its members are still subject to the law.

The rule of law requires that all men be governed by acceptable rules rather than arbitrary decisions made by those in positions of authority. It places the law above all else, including lawmakers, and as per the doctrine only then will “men enjoy all the blessings that are showered on the state” – Aristotle.

Its objective is to curb abuses of power. “Power corrupts and absolute power corrupts absolutely” – Lord Acton. The doctrine has three limbs. They are as follows:-

1. Supremacy of the law
2. Equality of the law, and
3. The predominance of the legal spirit

1. Supremacy of the law – “Wherever there is discretion, there is room for arbitrariness and that in a republic no less than under a monarchy discretionary authority on the part of the government must mean insecurity for legal freedom on the part of its subjects.” – A.V. Dicey.

No man should be punished or should be made to suffer except for a breach of the law. A person can only be fined either in the form or monies or in terms of goods and can only be deprived of his liberty or his right to live as a free man for a breach of the law and nothing else. Everyone has a right to liberty and security of person and no man shall be deprived of his liberty save for the breach of the law – Article 5 European Convention of Human Rights.

2. Equality of the law – “Equality before the law and equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts” – A. V. Dicey.

No man is above the law and all men are equal in the eyes of the law. Regardless of one’s status in life or the office that one holds, as far as the rule of law is concerned, all men are equal. Any power that is exercised, discretionary or otherwise, must be power that is granted by the law.

3. Predominance of the legal spirit – Common law or judge-made law is the best instrument or mechanism to protect the rights of individuals. The rule of law is better served when a matter is brought before the courts and decided on its facts as opposed to say for example a bill of rights.

The law itself has to change with time in order to better serve the people and emphasizing on a set of rules or an enshrined bill of rights, that may become outdated with the passage of time, will make the law overly rigid and deprive it of much needed flexibility, without which, neither the state nor the people would be able to progress.

Copyright © 2019 by Dyarne Jessica Ward

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Land Law III – Fixtures and Chattels

Hobson v Gorringe (1897) gives us a practical example of how a chattel can become a fixture. The freeholder of a sawmill or an owner in fee simple (a fee simple means absolute ownership of land or a landowner whose interests in the land cannot be disputed) went on to purchase a gas engine under a hire purchase agreement and as per the agreement the gas engine was to remain a chattel until the final instalment was paid, and affixed the gas engine to the land with bolts.

The hirer then mortgaged the land to a third party and defaulted on the hire purchase agreement. A dispute arose between the owner (a person who has sold goods under a hire purchase agreement and the mortgagee).

If the gas engine was a still a chattel, as per the hire purchase agreement, then the owner was entitled to take it back. However, if the gas engine had become a fixture, then it had become a part of the land and the owner cannot take it back without the consent of the mortgagee.

The court of appeal, taking into account the decision in Holland v Hodgson (1872), decided that there had been sufficient annexation to make the gas engine a permanent feature of the land and hence the gas engine had ceased to remain a chattel and had become a fixture.

Copyright © 2019 by Dyarne Jessica Ward

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Assault (Summary)

Assault (a non-fatal offence) 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 (recklessly).

Assault per se does not involve physical contact i.e. the defendant does not have to a lay a finger on the victim. It suffices that the conduct of the defendant (by words or actions) has put the victim in fear of his or her life.

However, in order to successfully convict for assault the prosecution also needs to establish that: –

  1. the defendant had sufficient capacity or ability to carry out the threat and
  2. the defendant showed a willingness to carry out the threat.

As per s39 of the Criminal Justice Act 1988 – 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.

Summary offences are offences that are dealt with by the magistrates’ court and are governed by Part 37, Criminal Procedure Rules 2010 and do not require trial by jury i.e. a magistrate can determine what constitutes an assault and what doesn’t.

Is verbal abuse sufficient to constitute an assault? – Verbal abuse is defined as inappropriate and improper use of language to undermine someone’s dignity and language that causes another person to suffer from or to succumb to profound and serious psychological injury.

Under normal circumstances in order to convict for assault the defendant needs to display a willingness to carry out the threat, without which the victim would not be successful but the law is changing and humiliating a person with the intention of making him or her feel inferior especially in public may constitute an assault especially if there is medical evidence that suggests that the victim was emotionally scarred because of being repeatedly subjected to verbal abuse.

In order to successfully convict for assault the prosecution must establish both the mental element (mens rea) and the physical element (actus reus).  The mens rea for assault is the intention to put the victim in fear or cause him or her to apprehend immediate and unlawful violence or recklessly causing the victim to apprehend immediate and unlawful violence.

In Fagan v MPC (1969) the defendant was in his car when he was approached by a police officer who told him to move his vehicle. The defendant did so and reversed his car onto the foot of the police officer. The police officer somewhat forcefully told the defendant to move the car off his foot and the defendant swore at the police officer, switched off the engine and refused to do so. The defendant was tried and convicted for assault and appealed the decision. The appeal was dismissed.

Assault per se may not be sufficient to amount to a crime and it is a crime that often goes hand in hand with battery. Assault is also a crime that cannot be committed by omission and in this instance the court decided that the crime was not the fact that the defendant refused to move his car (omission) but the fact that he reversed his car onto the police officer’s foot and if we look at it from that perspective we can establish both the mens rea (the intention to cause the victim to apprehend immediate and unlawful violence) and the actus rues (the act of driving the car onto the police officer’s foot).

As per R v Savage (1991) and R v Parmenter (1991) the type of recklessness that applies to non-fatal offences (s.47 OAPA 1861) is subjective recklessness.

The actus reus (the physical element) for assault can be divided into four components. They are as follows: –

  1. The victim must apprehend violence.
  2. It must be immediate i.e. the victim is of the belief that the defendant is going to act or react violently at the time the words were spoken or the threatening gestures were made and not something that is going to occur a day or a week later or something that is going to happen somewhere down the track see Tuberville v Savage (1669).
  3. It must be unlawful
  4. The victim must apprehend personal violence or violence towards himself or herself.
  1. The victim must apprehend violence: –

In Tuberville v Savage (1669) the defendant placed his hands on the hilt of his sword and said to the victim “if it were not for the fact that it is assize-time (the assize judge was in town) I would not take such language from you”. It was held that the defendant’s acts and actions did not constitute an assault.

In R v Lamb (1967) two boys got their hands on a revolver. The boys believed that the chamber was empty and started fiddling around with it when in fact there were two bullets in the chamber.

One boy pointed the gun at the other and it went off killing the other boy.

It was held that no assault had taken place. Pointing a gun at someone could constitute an assault i.e. a threat that puts someone in fear of imminent harm but in the given situation neither of the boys were even remotely afraid and the victim did not apprehend fear and therefore there could be no assault.

It is worth comparing the decision in R v Lamb (1967) with the decision in Logdon v DPP (1976).

In Logdon v DPP (1976) the defendant pointed a fake gun at the victim (a replica) who was instantly terrified and would not calm down until she was told that the gun was a fake. It was held that the actions of the defendant constituted an assault because it caused the victim to immediately apprehend violence.

In Smith v Superintendent of Woking Police Station (1983) the defendant frightened the victim by staring through the window of her ground floor flat. It was decided that despite the fact that the defendant was outside the building there was enough evidence to suggest that the victim was terrified and perceived immediate violence. The nature and the type of violence need not be specified and it sufficed that the victim feared immediate violence.

In R v Meade and Belt (1823) the defendants surrounded the plaintiff’s house singing menacing and threatening songs. It was held that mere singing alone could not constitute an assault.

It’s worth comparing the decision in R v Meade and Belt (1823) with the decision in Read v Coker (1853).

In Read v Coker (1853) the plaintiff was a paper-stainer who rented a premise from the defendant. The plaintiff fell behind in his rent and the defendant employed a third party to purchase his fixtures (machines, apparatus etc.) and resell them back to the defendant.

Subsequently the plaintiff and the defendant came to an arrangement where the plaintiff could continue to use his fixtures in the employment of the defendant.

The defendant later became dissatisfied with the plaintiff and ordered him to leave. When the plaintiff (Read) tried to return to the premises the defendant had his men surround him and the men threatened to break his neck. The plaintiff filed for assault and was successful.

Whether an act constitutes an assault or otherwise depends on the facts.

Words alone are sufficient to constitute an assault. In R v Wilson (1955) the plaintiff was a gamekeeper and he caught the defendant poaching. The defendant punched and kicked the plaintiff when he tried to arrest him and yelled “get out the knives”.

The defendant was found guilty of common assault and as per Goddard CJ (obiter) words alone are sufficient to constitute an assault i.e. the words need not be accompanied or followed by threatening gestures.

In order to convict for assault the prosecution must establish that the assault was directed at the person and not at someone else despite the fact that the victim may apprehend immediate fear.

In R v Pembliton, (1874) the defendant was ejected from a pub and became involved in a fight with a group of men in the street. The defendant picked up a large stone and threw it at the men, but the stone missed and crashed through the pub window behind them.

The question that arose was whether malicious intention could be transferred, and it was held that malicious intention to strike a person or the intention to cause some form of injury to a person could not be transferred to breaking a shop window. However, the defendant could be found guilty if his actions were reckless.

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.

What was said obiter in R v Wilson (1955) was followed in R v Constanza (1997). In R v Constanza (1997) the defendant for a period of almost two years followed a female ex-colleague from work, sent her over 800 threatening letters and made numerous silent phone calls to her number.

The victim was eventually diagnosed by a doctor as suffering from clinical depression and anxiety due to fear caused by the defendant’s actions. The defendant was found guilty and the courts reaffirmed that words alone were sufficient to constitute an assault if it caused the victim to apprehend immediate fear.

The rule that words alone are sufficient to constitute an assault became firmly entrenched in R v Ireland and Burstow (1997) which further broadened the scope of liability for assault that is committed merely with words and continued along the lines of what was said (obiter) in R v Wilson (1955) and the decision in R v Constanza (1997).

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. Do psychiatric illnesses (injuries) fall within the scope of s. 18, s. 20 and s. 47 of the Offences Against the Person Act 1861 and can they be defined as bodily harm.

s.18, s.20 and s.47 of the Offences Against the Person Act 1861 (OAPA 1861) read as follows: –

s.18 Shooting or attempting to shoot, or wounding with intent to cause grievous bodily harm – 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 felony, and being convicted thereof shall be liable . . .  to be kept in penal servitude for life . . .

s.20 Inflicting injury with or without a weapon – Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanor, and being convicted thereof shall be liable . . .  to be kept in penal servitude . . .

s.47. Assault occasioning actual bodily harm – 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] –

It was decided that on: –

  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 (1997)
  2. Psychiatric illnesses (injuries) do fall under the scope of bodily harm or can be classified or categorized as bodily harm.

The defendant can commit an assault by merely remaining silent. In R v Ireland (1997) the defendant harassed three separate women over a period of three months by continuously making repeated phone calls to them and remaining silent. He was convicted under s.47 of the Offences Against Persons Act (1861) (OAPA 1861). The defendant appealed on the grounds that silence cannot constitute an assault.

The appeal was dismissed, and the conviction was upheld. Silence can constitute an assault when it is done to instill fear in the victim or to intimidate the victim.

“The proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible. A thing said is also a thing done. There is no reason why something said should be incapable of causing an apprehension of immediate personal violence, e.g. a man accosting a woman in a dark alley saying, “come with me or I will stab you.” I would, therefore, reject the proposition that an assault can never be committed by words.” – Lord Steyn

On whether psychiatric illnesses fall under the scope of bodily harm –

“In my view the ruling in that case was based on principled and cogent reasoning and it marked a sound and essential clarification of the law. I would hold that “bodily harm” in sections 18, 20 and 47 must be interpreted so as to include recognizable psychiatric illnesses.” – Lord Steyn

   2. The fear must be immediate: –

In R v Larkin (1942) the accused was brandishing a razor intending to frighten his mistress’s lover in the presence of his mistress. His mistress, who was drunk at the time, stumbled while the accused was brandishing the razor and her throat was cut. The woman died as a result. The accused was tried and convicted for constructive manslaughter and the defense appealed.

It was held that the fact that there was an assault directed at his mistress’s lover i.e. to put him in fear of his life, was an unlawful act and it was sufficient to establish constructive manslaughter. The act need not be directed at the victim.

  1. The act must me unlawful: –

In R v Arobekieke (1988) the accused was chasing the victim and the latter ran into a train station and got on board a stationary train. The accused peered into the carriage doors in search of the victim and the victim, in fear, jumped out off the train and onto to the railway tracks and was subsequently electrocuted. The accused was arrested, charged and convicted for constructive manslaughter or unlawful act manslaughter. The accused appealed.

The appeal was allowed and the conviction was quashed. While the victim was in fear; the actions of the accused were not unlawful. Peering into the open doors of a stationary train may instill fear in the passengers but the act in itself is not unlawful –  while the victim did apprehend an imminent danger or was in fear for his safety, the actions of the accused was not sufficient to constitute an assault.

  • It is also not an assault if the victim is acting in self-defense for example when a would-be victim is abusive towards his or her attacker to prevent some harm from coming to him or her and
  • When one party is abusive towards another to prevent a crime.
  1. The victim must apprehend personal violence or violence towards himself or herself i.e. the victim must apprehend fear of immediate violence to his or her person: –

If the victim does not take fear and is injured or dies because of some other inherent cause or causes, the defendant’s actions may not be construed as an assault.

In R v Dawson (1985) the defendant attempted to rob a petrol station armed with a gun and an axe-handle. The defendant pointed the gun at the attendant but did not in any way attempt to use the gun or the axe-handle. The attendant pressed the alarm button and as soon as the alarm rang the defendant ran away.

Unknown to the defendant, the attendant suffered from a serious heart condition and once the defendant had fled the attendant had a heart attack and collapsed. He died soon after. The defendant was tried and convicted for constructive manslaughter and the defense appealed. The conviction was quashed.

Children more than adults are the most likely victims of an assault and the law recognizes this fact and makes it an offence to willfully assault a child.

S.1 of the Prevention of Cruelty to Children Act, 1894-

“If any person over the age of sixteen years, who has the custody, charge or care, of any child under the age of sixteen years, willfully assaults, illtreats, neglects, abandons, or exposes, such child, or causes or procures such child to be assaulted, illtreated, neglected, abandoned, or exposed, in a manner likely to cause such child unnecessary suffering, or injury to its health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement), that person shall be guilty of a misdemeanor”.

Copyright © 2019 by Dyarne Jessica Ward

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Land Law II – Fixtures and Chattels

In Holland v Hodgson (1872) the owner of a mill purchased some looms to be used in his mill and the looms were affixed to the floor with nails, giving them some degree of permanency. The owner then mortgaged the land and defaulted on the repayments. The mortgagee (the lender in a mortgage) sought to repossess the land and sought to take control of not only the mill, but also of the looms. The mortgagee could do so if the looms were a fixture and the question before the court was whether the looms were a fixture or a chattel.

The general rule is that what is annexed (affixed) to the land becomes part of the land and because the looms were attached to the land, they had become part of the land and were regarded as fixtures. Therefore, the mortgagee was entitled to them.

Any item that is affixed to the land is to be regarded as a permanent feature of the land unless it has been regarded all along as a chattel and was never intended to become a permanent feature of the land.

Whether an item is to be regarded as a fixture or a chattel depends on the facts of each case, and in deciding whether an item is a fixture or a chattel, we have to take into account two factors: –

1) The degree of annexation

2) The object of annexation

An item that is attached to the land by no more than its own weight is normally regarded as a chattel say for example a block of stone that has just been left in the backyard as opposed to an item that is affixed to the land by some devise or mechanism, i.e. if the same block of stone was cemented to the land in the backyard than it would become a fixture but even then it is difficult to say with any degree of certainty without looking into the facts of the case if an item is a fixture or a chattel and we also have to take into account the intentions of the mortgagor when the item was first brought on to the land.

If the mortgagor intended the item to be a chattel it is best that he maintains that intention from the start and conveys that intention to the mortgagee.

Copyright © 2019 by Dyarne Jessica Ward

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Parliamentary Supremacy

As per the doctrine of separation of powers the government is divided into three branches, the legislative, the executive and the judiciary. The legislative body comprises of the two houses of Parliament (the upper house and the lower house, in the UK it is the House of Lords and the House of Commons), the executive which includes the Prime Minister, the cabinet ministers, the civil service, the armed forces and all law enforcement agencies and the judiciary which comprises of judges and those who are tasked with interpreting the law.

It is the function of Parliament to legislate i.e. to make laws, it is the role of the executive to enforce the laws and it is the role of the judiciary to interpret laws or the will of Parliament and to decide if laws have been broken and to penalize those who have broken the law in accordance with the severity of the crime or the offense that is committed. It is an offense per se to go against the will of Parliament.

Among the three tiers of government, Parliament occupies the highest tier, or is the highest body in a democracy or in any nation with a government by the people, of the people for the people (a principle that forms the basis of any democratic government) followed by the executive and below the executive is the judiciary who play no part in the legislative process (but they do make laws when they create judicial precedent but those laws are subservient to acts of Parliament and in case of conflict between the two i.e. judge-made law and enactments, enactments will prevail) and only come into the picture when the law needs to be clarified, Parliament or draftsmen can sometimes be ambiguous or when the law has been broken and a dispute arises, and a decision has to be made.

From the above it is fairly obvious that Parliament is the highest body in the land, and the simple reason is because Parliament in the safeguard of the nation and when Parliament falters, the nation will also falter.

The doctrine of supremacy of Parliament simply states that Parliament is highest body in the land and no power domestic or foreign can challenge the will of Parliament or can go against the intentions of Parliament.

Parliament can legislate on any matter and pass bills that not only apply in the present or the future but it can also legislate to cover acts done in the past i.e. legislate retrospectively or retrospective legislation see the War Damages Act 1965.

The doctrine of Parliamentary supremacy has to be viewed in light of the the doctrine of Parliamentary sovereignty, the two are often interchangeable, and as per the doctrine, no one  can the challenge the authority of Parliament.

Parliament in short can legislate on any matter anywhere and the other two branches of government, the executive and the judiciary, are bound by it. While Parliament rarely legislates on matters outside its territory it can theoretically do so, see the Southern Rhodesia Act 1965 which was passed after Rhodesia’s Unilateral Declaration of Independence.

Copyright © 2019 by Dyarne Jessica Ward

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