Topic 5. Non-fatal offences. Non-fatal offences: assault. Assault. Non-fatal offences: assault. Definition. Assault is not defined in an Act of Parliament, as it is a common-law offence.
Assault is not defined in an Act of Parliament, as it is a common-law offence.
Section 39 of the Criminal Justice Act 1988 provides that assault is a summary offence with a maximum sentence on conviction of 6 months’ imprisonment or a fine.
R v Venna (1976) provided the accepted definition of assault as ‘the intentional or reckless causing of an apprehension of immediate unlawful personal violence’.
Section 39 of the Criminal Justice Act 1988 provides that battery is a summary offence, punishable by up to 6 months’ imprisonment or a fine. Like assault, it is a common-law offence.
Actus reus (1)
The actus reus of battery consists of the application of unlawful force on another. Any unlawful physical contact can amount to a battery. There is no need to prove harm or pain – a mere touch can be sufficient.
Battery can be direct or indirect. Direct battery is force applied directly by one person to another, e.g. a slap. Indirect battery can be applied using an implement or vehicle.
Actus reus (2)
The victim need not be aware that he or she is about to be struck. Therefore, if someone is struck from behind this will still constitute battery, and he or she need not have seen it coming.
There can be a battery when there is no direct contact with the victim’s body – touching his or her clothing may be enough to constitute this offence (R v Thomas, 1985).
An omission can amount to the actus reus of battery (R v Santana-Bermudez, 2003).
The mens rea of battery is intention or Cunningham recklessness, i.e. intention or recklessness as to the application of unlawful force.
Joint Charging Standards
Actual bodily harm
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.
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’.
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).
Joint Charging Standards
Grievous bodily harm (s.20)
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.’
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.
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.
Grievous bodily harm (s.18)
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.’
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.
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.
Assault and battery are summary offences, punishable by 6 months’ imprisonment. Such trials can be dealt with at the Magistrates’ Court, and the expense of a Crown Court trial is avoided.
Both ABH and s.20 GBH carry the same sentencing guideline of 5 years’ imprisonment. It seems unnecessary to have two offences that have the same penalty, even though GBH is supposed to be much more serious than ABH.
Section 20 GBH gets 5 years’ imprisonment, whereas s.18 GBH affords anything up to life imprisonment. The reason why the sentences are so different is due to the defendant’s mens rea. There is no recognition of the fact that the victim could be just as seriously hurt in both instances.
It is quite common for a person to be charged with a lesser offence than the one that he or she has actually committed. For example, a person who has committed GBH may be charged with ABH that can be tried at the Magistrates’ Court. This will save the court time and money, as a charge of GBH would require an expensive Crown Court trial. It also makes no difference whether a person is charged with s.20 GBH or s.47 ABH, as both offences are punishable by a sentence of up to 5 years’ imprisonment.
The prosecution may charge the defendant with a lesser offence if he or she agrees to a guilty plea. This is known as plea bargaining and saves the court time and money, as it is not necessary to hold a trial and the defendant will be given a more lenient sentence for an early guilty plea.
The basis for liability
Mens rea problems
Actus reus problems
The requirement for V to fear an immediate battery leaves a gap in the law – a threat to kill V next week is not an assault.
Law Commission Report 1993
Home Office Report 1998 (1)
The Labour government produced the Draft Offences Against the Person Bill 1998, following the home office report ‘Violence: Reforming the Offences against the Person Act 1861’.
The new offences
Clause 1: intentional serious injury (replaces s.18)
Clause 2: reckless serious injury (replaces s.20)
Clause 3: intentional or reckless injury (replaces s.47)
Clause 4: assault
Home Office Report 1998 (2)
The new sentences
The proposed sentences are the same, with the exception of clause 2. This would replace s.20 GBH, which carries a punishment of 5 years’ imprisonment. The new clause 2 would increase this to 7 years’ imprisonment.
Home Office Report 1998 (3)
Home Office Report 1998 (4)
Pause for thought