Non fatal offences against the person
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Non-fatal offences against the person. Sections 47, 20 and 18 of the Offences Against the Person Act 1861. Common assault deals with the least serious cases of harm and more serious injuries will be charged under ss47, 20 or 18 of the Offences Against the Person Act 1861 (OAPA 1861).

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Non-fatal offences against the person

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Non fatal offences against the person

Non-fatal offencesagainst the person

Sections 47, 20 and 18 of the

Offences Against the Person Act 1861


Non fatal offences against the person

Common assault deals with the least serious cases of harm and more serious injuries will be charged under ss47, 20 or 18 of the Offences Against the Person Act 1861 (OAPA 1861).

These are statutory offences but the sections only provide the basic definitions of each offence and case law is heavily relied upon to explain the meaning of the terms used in setting out the offences.


S 47 offences against the persons act 1861 actual bodily harm abh

S 47 Offences against the Persons Act 1861

Actual bodily harm (ABH)


S47 definition

S47 definition

  • S 47 provides that a person convicted of ‘any assault occasioning actual bodily harm shall be liable to imprisonment for not more than five years’

  • So for s 47 you need an assault plus actual bodily harm

  • These terms have been further defined in case law so it is important to know the cases


Non fatal offences against the person

ACTUS REUS

  • Assault

  • Occasioning

  • Actual Bodily Harm


Assault

Assault

The term ‘assault’ under section 47 means either an assault or a battery according to the cases and principles set out for common assault.

Explain…


Occasioning

Occasioning

An assault or battery will only be charged under section 47 if it occasions actual bodily harm. If there is no such harm then it will be s39 CJA 1988.

Occasion seems to mean the same as ‘cause’ – same rules of causation as in Roberts (1971)


Actual bodily harm

Actual Bodily Harm

Actual – means that there must be a form of physical or psychological injury.

It can be very minor harm – Miller (1954) – ‘any hurt or injury calculated to interfere with the health or comfort of the victim’ – provided it is more than transient and trifling.

Definition was extended to hair being cut – DPP v Smith (2006)

Injuries also included under s.47 include: loss/broken tooth, loss of consciousness, minor cuts require medical treatment (stitches), minor fractures and extensive bruising

Chan Fook (1994) – Psychiatric harm can amount to ABH – interrogated aggressively as a suspect for stealing a ring – Medical experts need to prove that the state of mind caused in the victim was evidence of an identifiable clinical condition and ‘mere emotions such as fear, panic and distress’ when unrelated to such a condition would not be considered.

Miller – not applied to psychiatric harm


Psychiatric injury

Psychiatric injury

  • In Chan Fookit was confirmed that actual bodily harm could include psychiatric harm

  • The same case made clear it did not include

    ‘mere emotions such as fear, distress or panic’

  • Remember that causing fear will still be an assault, but can’t amount to ABH


Non fatal offences against the person

MENS REA

  • Mensreais intention or subjective recklessness

  • Importantly, it is only mensreafor the assault or battery that is needed

  • D need not intend, or be reckless as to, any harm


Non fatal offences against the person

  • R v Savage (1992)

  • R v Roberts (1971)

  • DPP v Parmenter (1992)

    What happened in these cases?


Roberts applied

Roberts applied

  • In Robertshe committed the actus reus of battery when he touched her coat. This is unlawful force as shown in Thomas

  • He intended to grab her coat so had the mens rea for the battery. It was not necessary to prove he intended or was reckless that any harm occurred

  • The final part of the actus reus was that she suffered actual bodily harm. This was ‘occasioned’ by her reaction to his battery


Savage applied

Savage applied

  • The throwing of the beer was a battery

  • She had sufficient mens rea as she intended to throw the beer. This was enough

  • She had the actus reus and mens rea of battery plus some harm had been caused so the actus reus and mens rea for ABH was satisfied

  • Note the rules on causation may need to be applied. The assault or battery need to ‘occasion’ the harm as in Roberts and Savage

  • In Roberts she did not break the chain of causation as her actions were foreseeable


Problems

Problems

  • Do you think it fair that a person can be convicted of ABH when only having mens rea for an assault or battery?

  • Use Roberts and/or Savageto support any criticism


Other problems

Other problems

  • The language is obscure

  • Assault means both assault and battery which is confusing

  • Neither assault nor battery are defined in any statute

  • Actual bodily harm is not fully defined

  • However, on the plus side, the courts have extended it to include mental harm (Chan Fook)


Main points

Main points


Summary of abh

Summary of ABH


Non fatal offences against the person1

Non-fatal offences against the person

S 20 and s 18 Offences against the Persons Act 1861

Malicious wounding / wounding with intent


S 20 the definition

S 20: The definition

  • Commonly called malicious wounding, s 20 actually covers both wounding and grievous bodily harm

  • Under s 20 it is an offence to:

  • ‘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 an offence and shall be liable…to imprisonment for not more than 5 years’

  • Section 20 is a more grave offence than 27, despite the fact that the maximum sentence for both is 5 years.


Non fatal offences against the person

ACTUS REUS

  • So there are two parts to the offence:

    • Wounding OR

    • Grievous bodily harm

      Or, is the key word. If the wound has also inflicted gbh, then the prosecution must choose from the two offences.


Wounding

Wounding

  • Both layers of the skin are broken and usually blood loss – JCC v Eisenhower – air pellet in eye leading to internal bleeding was not GBH

  • There must be a break in the continuity of the skin

  • What else is not included and what is included?


Grievous bodily harm

Grievous Bodily Harm

  • A minor wound might be charged as a s20 offence, but any other offence under s20 must be ‘grievous’

  • DPP v Smith (1961) – this means no more and no less than really serious

  • Saunders (1985) – serious harm, ‘really’ is not necessary

  • R v Burstow (1997) – GBH can be psychiatric harm as long as it is sufficiently serious

    The charging standard list – broken bones, injuries requiring lengthy medical treatment, substantial loss of blood, permanent disability or disfigurement


Non fatal offences against the person

  • R v Bollom (2004) – elderly and children, the harm will be more serious

  • Several minor injuries can amount to a s.20 offence if taken as a whole – Brown and Stratton (1998)

  • The grievous harm must be inflicted upon the victim – Clarence (1888) – inflict was understood to have needed assault or battery requiring direct force

  • Wilson (1996) – s.20 offence can be committed without need for assault or battery

  • Confirmed in R v Ireland (1997) – no necessity to apply direct or indirect force – only need to prove that defendant caused the victim to suffer GBH – cause and inflict can be interchangeable


Non fatal offences against the person

  • Removing the requirement for assault and battery under s.20 leads to ‘biological’ GBH – R v Dica – HIV transmitted through consensual sex – stated that Clarence (1888) should have no further relevance


Other cases

Other cases


Unlawfulness

Unlawfulness

  • Wounding or GBH needs to be unlawful in order to be an offence and in most cases a simple lack of consent by the victim will render the act unlawful.

  • However, consent does not always mean the defendant is not liable


Mens rea

Mens rea

  • The word ‘maliciously’ in s 20 has been interpreted as meaning intent or subjective recklessness – Cunningham subjective test

  • There is no need for D to have mens rea for serious harm – R v Mowatt (1976)

  • D need only intend or see the risk of some harm


Problems with s 20

Problems with s 20

  • As with s 47 the language is obscure

  • ‘maliciously’ and ‘grievous’ may have meant something different nearly 150 years ago

  • Breaking of the skin could be a small cut but will be a wound and come under s 20 (or 18)

  • The actus reus is for serious harm

  • The mens rea is for some harm

  • Do you think the AR and MR should match?


Sentencing problem

Sentencing problem

  • The maximum sentence for s 20 is five years

  • This is the same as for s 47 which is a lesser offence

  • Do you think this is right?


Non fatal offences against the person

S 18

Wounding with intent


S 18 the definition

S 18: The definition

  • Commonly called wounding with intent

  • Under s 18 it is an offence to:

  • ‘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’

  • This is much more serious than s.20


Actus reus and mens rea

Actus reus and mens rea

  • The actus reus is the same as for s 20

  • D’s act must wound or cause serious harm

  • The mens rea is different

  • S 20 says ‘with intent to do some grievous bodily harm’

  • Maliciously is interpreted to mean that the defendant must intend serious harm

  • Intention is needed, recklessness is not enough

  • D must intend ‘to do some grievous bodily harm’ , i.e. D must intend serious harm

  • Intent applies as for murder (Nedrick/Woollin)


Non fatal offences against the person

  • Oblique intention as well as direct intention applied to s.18 – was GBH virtually certain as a result of actions


Resisting or preventing arrest

Resisting or preventing arrest

  • The final part of s 18 is ‘or with intent to resist or prevent the lawful apprehension …of any person’

  • Thus if D wounds or causes serious harm with intent to resist or prevent arrest, liability will be under s 18

  • There is no need to prove intent to cause serious harm

  • Morrison decided that recklessness is enough


Problems1

Problems

  • The difference between s 20 and s 18 is in the mens rea only but the maximum sentence changes from five years to life

  • Intent to seriously injure is also the mens rea for murder so this is perhaps justified

  • Morrisonallows for a conviction under s 18 even if there was no intent to cause serious harm where D intends to resist or prevent arrest and sees the risk of injury


Summary of s 20 and s 18

Summary of s 20 and s 18


Extras

Extras


Non fatal offences against the person

Non-fatal offences: actual bodily harm

Definition

Section 47 of the Offences Against the Person Act 1861 states that it is an offence to commit ‘any assault occasioning actual bodily harm’. The offence is triable either way and carries a maximum sentence of 5 years’ imprisonment.


Non fatal offences against the person

Non-fatal offences: actual bodily harm

Actus reus

The actus reus of ABH has been interpreted as assault or battery that causes ‘actual bodily harm’. This has been given the wide definition of ‘any hurt or injury calculated to interfere with the health or comfort of the victim’ (R v Miller, 1954). Thus, ABH can occur where discomfort to the person is caused.

However, in R v Chan-Fook (1994), Lord Justice Hobhouse said in the Court of Appeal that ‘the word “actual” indicates that the injury (although there is no need for it to be permanent) should not be so trivial as to be wholly insignificant’.


Non fatal offences against the person

Non-fatal offences: actual bodily harm

Mens rea

The mens rea for ABH is the same as for assault and battery. No additional mens rea is required (R v Roberts, 1978, and R v Savage, 1991).


Non fatal offences against the person

Non-fatal offences: actual bodily harm

Joint Charging Standards

  • The police and Crown Prosecution Service have agreed the Joint Charging Standards, which set out the types of injury that will be regarded as ABH. Such injuries include:

  • minor fractures

  • severe bruising and small cuts that require stitches

  • loss of consciousness

  • psychiatric injury


Non fatal offences against the person

Non-fatal offences: grievous bodily harm (s.20)

Grievous bodily harm (s.20)


Non fatal offences against the person

Non-fatal offences: grievous bodily harm (s.20)

Definition

According to s.20 of the Offences Against the Person Act 1861:

‘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 an offence triable either way and being convicted thereof shall be liable to imprisonment for 5 years.’


Non fatal offences against the person

Non-fatal offences: grievous bodily harm (s.20)

Actus reus

The actus reus of the s.20 offence is unlawfully and maliciously wounding or inflicting grievous bodily harm.

The word ‘inflict’ has been interpreted to mean that the grievous bodily harm must be caused by the direct application of force, e.g. hitting, kicking or stabbing, but not digging a hole for the victim to fall into. However, in practice the courts have given a fairly wide interpretation as to when force is direct.


Non fatal offences against the person

Non-fatal offences: grievous bodily harm (s.20)

Mens rea

The mens rea of s.20 GBH is described by the word ‘maliciously’. In R v Cunningham (1957), it was stated that for the purposes of the 1861 Act, ‘maliciously’ meant ‘intentionally or recklessly’.

There is no need to intend GBH or wounding, or to be reckless as to whether GBH or wounding might be caused. The defendant needs only to intend or be reckless that his or her actions could cause some physical damage.


Non fatal offences against the person

Non-fatal offences: grievous bodily harm (s.18)

Grievous bodily harm (s.18)


Non fatal offences against the person

Non-fatal offences: grievous bodily harm (s.18)

Definition

Section 18 of the Offences Against the Person Act 1861 states that:

‘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 triable only on indictment, and being convicted thereof shall be liable to imprisonment for life.’


Non fatal offences against the person

Non-fatal offences: grievous bodily harm (s.18)

Actus reus

The actus reus for s.18 is similar to that for s.20 and requires proof of either GBH or wounding. The actus reus of wounding and the actus reus of GBH have the same meaning as under s.20.


Non fatal offences against the person

Non-fatal offences: grievous bodily harm (s.18)

Mens rea

To satisfy the mens rea, the prosecution must prove intention to cause GBH or intention to avoid arrest. The crucial difference between s.20 and s.18 GBH is in the mens rea; while recklessness can be sufficient for s.20, intention is always required for s.18.


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