Crime XXXXXXXXX – Battery II

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: –

  1. 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.
  2. 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).
  3. In order to convict under.20 the defendant must foresee the consequences of his or her actions regardless of the severity of the harm or injury that resulted.

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Crime XXXXXXXIX – Battery I

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.

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Crime XXXXXXXVIII – Assault X

4. 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 make 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”.

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Crime XXXXXXXVII – Assault IX

3. The act must be unlawful or in order for an act to constitute an assault it (the act) must be unlawful.

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.

In R v Arobekieke (1988) the accused was chasing a 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 of 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.

It was further held that 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.

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Crime XXXXXXXVI – Assault VIII

  1. The fear must be immediate. The victim must apprehend fear at the time the assault was committed and not a day, a week, a month later or somewhere down the track.

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 Tuberville v Savage (1669) the defendant had clearly told the victim that no harm would come to him or her as long as the assize judge is in town.

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.

In R v Constanza (1997) the defendant was put in a situation where she had to live in constant fear of the defendant carrying out his threats and there was no respite. The threats were ongoing and to some extent it is possible to say that the threats and the defendant’s actions were designed and carried out to the cause the victim some sort of a breakdown.

In Smith v Superintendent of Woking Police Station (1983) the defendant terrified 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.

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Crime XXXXXXXV – Assault VII

The defendant can commit an assault by merely remaining silent. In R v Ireland (1998) 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) which reads as follows: –

s.47 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].

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 illness.” – Lord Steyn

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Crime XXXXXXXIV – Assault VI

The rule that words alone are sufficient to constitute an assault became firmly entrenched in the case of R v Ireland and Burstow (1997) which further broaden 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 Ireland and 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 question 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.

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

s.18 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 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 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 (1998)
  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 XXXXXXXIII – Assault V

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.

The decision 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.

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Crime XXXXXXXII – Assault IV

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 constituents 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.

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Crime XXXXXXXI – Assault III

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 terrified 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.

Copyright © 2018 by Dyarne Ward