Assault: Legal Context & Hierarchy

Assaults Overview

• Chapter covers relevant core legal principles and rules related to assaults, applicable at the level of a competent newly qualified solicitor in practice.
• Statutory assaults referenced using the Offences Against the Person Act 1861 (OAPA 1861).
• Assault occasioning actual bodily harm is referred to as a section 47 assault.
• Wounding or inflicting grievous bodily harm is referred to as a section 20 assault.
• Wounding or causing grievous bodily harm with intent is referred to as a section 18 assault.
• Learning outcomes include explaining common law and statutory assault definitions, applying them to factual scenarios, and understanding the defense of consent.

Introduction to Assaults

• Assault, a long-established crime, can occur in various situations like nightclubs, sports matches, gang conflicts, and domestic violence.
• Government stats indicate that just under 2% of the adult population experiences assault annually.
• Dealing with assault behavior is vital from a social policy perspective.
• Assault is a generic term covering related offenses, ranging from serious injuries to causing mental harm.

Hierarchy of Assaults

• Criminal law differentiates between severity levels of attacks.
• There is a sliding scale of offences based on harm to the victim and the perpetrator's mens rea.
• Offences in order of severity include Assault, Battery, Assault occasioning actual bodily harm, Maliciously wounding or inflicting grievous bodily harm, and Wounding or causing grievous bodily harm with intent.
• "Summary only" offences are dealt with in the magistrates' court
• "Either way" offences can be tried in either the magistrates' or Crown Court.
• "Indictable only" offences, the most serious, must be heard in the Crown Court.

Common Law Assaults

• Two common law assaults exist: simple assault (technical assault) and battery (physical assault).
• Common assault means the accused need not make physical contact with the victim.
• Section 39 of the Criminal Justice Act (CJA) 1988 confirms these are summary only offences.

Simple Assault

• Simple assault is when the assailant intentionally or recklessly causes the victim to apprehend immediate and unlawful personal force.
• Actual touching of the victim is not required; if it occurs, it becomes a separate offense of battery.
• Actus reus requires causing the victim to apprehend immediate and unlawful personal force.
• Mens rea requires intention or recklessness in causing apprehension of immediate and unlawful personal force.

Actus Reus of Simple Assault

• The offense must be broken down into its constituent parts to determine actus reus satisfaction.
• Not all assaults are unlawful; police officers may use reasonable force for arrests, and individuals can use reasonable force for self-defense.
• The actus reus requires the victim to apprehend unlawful force or violence, which can occur in various ways.
• Apprehension of unlawful force is what is important, not actual violence or touching.
• No actual injury or harm is required for simple assault.
• The victim is only required to apprehend the force and be aware of it.

Assault by Words or Silence

• Words alone can amount to an assault as 'a thing said is also a thing done'.
• A silent telephone call may be an assault depending upon the facts of the case.
• Justification for the decision relies on impact of repeated calls on the victims.
• A pattern of contact is likely required.

Immediacy and Conditional Threats

• The actus reus is satisfied in simple assault where the defendant causes the victim to apprehend immediate and unlawful personal violence.
• Realizing future force is insufficient, immediate fear of force is enough, especially with modern technology.
• Conditional threats can still be assault if they satisfy the 'immediacy' requirement.

Mens Rea of Assault

• Prosecution must establish the defendant intended to cause, or was reckless as to causing, the victim to apprehend immediate and unlawful personal force.
• The test for recklessness is subjective, requiring the defendant to personally foresee the risk and take it.

Summary of Assault

• For simple assault the defendant must cause some harm (actual bodily harm) but, crucially, it is not necessary to intend or be reckless as to the specific injury suffered. The defendant need only intend or be reckless as do the assault or battery

Battery

• Physical assault is the actual infliction of unlawful force, referred to as 'physical assault' as any unlawful touching may suffice.
• Actus reus is the infliction of unlawful personal force.
• Mens rea is intention or recklessness in inflicting unlawful force.

Actus Reus of Battery

• The actus reus is the infliction of unlawful personal force by the accused upon the victim.
• Force can be applied in many ways including direct bodily contact, throwing an object, spitting at a victim, or setting a dog on the victim.
• The degree of force required is very slight, and even the least touching will satisfy the actus reus.
• Prosecution doesn't need to establish any harm suffered by the victim.

Mens Rea of Battery

• Mens rea of battery is intention or recklessness in relation to the infliction of unlawful force on another person.
• The subjective standard of recklessness applies.
• The defendant must have intended or foreseen the actual infliction of force, not the victim's apprehension.
• No need to show intent or recklessness as to causing any injury.

Practical Application of Assault and Battery

• Usually, assault and battery will go together.
• There can be a physical assault alone, for example, where the defendant approaches the victim from behind, unheard, and then hits them over the head.
• Whether one or both of common law assaults have been committed will depend upon the particular facts.

Statutory Assaults

• The statutory offences of assault will be explored, found in the OAPA 1861.
• The word 'assault' is used to mean either of the common law offences of simple assault or battery unless clearly stated to the contrary.

Assault Occasioning Actual Bodily Harm (OAPA 1861, s 47)

• Section 47 of the OAPA 1861 creates the offence of assault occasioning actual bodily harm.
• It is an either way offence triable in magistrates' or Crown Court.
• Section 47 states "Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable...to be imprisoned for any term not exceeding five years."

Actus Reus and Occasioning of s 47 Assault

• The actus reus is that the defendant commits a simple assault or battery that causes (occasions) actual bodily harm.
• A s 47 assault is an aggravated form of common assault, with the added 'extra' of injury.
• The second element of the actus reus is that the assault or battery causes the harm
• Usual factual and legal causation rules apply.

Actual Bodily Harm

• Actual bodily harm means any hurt or injury calculated to interfere with the health or comfort of the victim.
• Injury need not be serious or permanent but must be more than transient or trifling.
• Each case is decided on its facts, and even a bruise or swelling may suffice.

Mental Harm

• Question of whether harm could include psychiatric injury was considered in combined appeals of Ireland and Burstow.
• Judges confirmed it could, with severity of psychological harm determining statutory assault for which the defendant is liable.
• Medical evidence, almost certainly from a psychiatrist, will be required.
• For the actus reus of a s 47 assault, the psychiatric condition must be a recognizable clinical condition.

Mens Rea of s 47 Assault

• The mens rea is that defendant must intend or be reckless as to a simple assault or battery only.
• There is no need to show that the defendant intended additionally to cause actual bodily harm.
• In R v Savage; R v Parmenter, the defendant was convicted as intended to throw a pint of beer over the victim causing a cut from a broken glass, despite lacking the desire to cause harm.

Summary of s 47 Assault

• To be criminally liable for a 47 assault, the defendant must cause some harm (actual bodily harm) but, crucially, it is not necessary to intend or be reckless as to the specific injury suffered, or indeed any at all.
• The defendant need only intend or be reckless as to the assault or battery.

Wounding or Inflicting Grievous Bodily Harm (OAPA 1861, s 20)

• Section 20 of the OAPA 1861 is the next most serious assault.
• It creates offences of inflicting grievous bodily harm or wounding.
• It states "Whoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person shall be liable to imprisonment for a term not exceeding five years."
• The offence has the same maximum penalty of five years imprisonment.

Actus Reus of s 20 Assault

• The actus reus is that the defendant unlawfully wounds or unlawfully inflicts grievous bodily harm on the victim.
• Grievous bodily harm is defined in DPP v Smith [1961] as 'really serious harm', with its ordinary and natural meaning left to the jury based the particular injury.
• The statute 'inflicted' rather than 'caused', but courts confirm these may be taken as having the same meaning.
• In R v Dica [2004] the HIV positive defendant was found guilty of a s 20 assault for having unprotected sex with two women without telling them.
• He was found to inflicted grievous bodily harm.

Wounding for s 20 Assault

• Wounding is the breaking of both layers of the skin resulting in bleeding.
• There is no reference to the wound being serious, and minor cuts are sufficient.
• Differentiating between different injury types is important in establishing appropriate charge and is somewhat problematic.

Mens Rea of a s 20 assault

• The mens rea required for the s 20 offence is to 'maliciously' wound or inflict grievous bodily harm on the victim.
• 'Maliciously' is now taken to 'intention or recklessness'.
• Prosecution need only prove that the defendant intended or was reckless as to causing some bodily harm but need not prove intent or foresight of really serious harm (grievous bodily harm) or the exact nature of the harm that in fact occurred.

Summary of s 20 Assault

• The offence appears inconsistent in that the smallest cut (breaking both layers of skin resulting in bleeding) will satisfy the actus reus but, the level of harm anticipated by the accused is lower than the minimum to convict.
• In other words, the defendant need only intend some harm to suffer grievous bodily harm liability.

Wounding or Causing Grievous Bodily Harm with Intent (OAPA 1861, s 18)

• Section 18 of the OAPA 1861 contains the most serious assaults and can be met with life imprisonment.
• Section 18 states "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 arrest 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."
• Understanding the non-fatal offences is not easy and there are four variations in total.

Actus Reus and Mens Rea of the s 18 Assault

• The actus reus of this offence includes unlawfully wounding or causing grievous bodily harm.
• This is almost identical to the definition of s 20 with with 'cause' and 'inflict' being interchangeable.
• Mens rea may be satisfied in two distinct ways
• with intent to cause grievous bodily harm, or with intent to resist or prevent the lawful apprehension or detention of any person, coupled with the intention or recklessness as to causing some bodily harm.
• The defendant will be charged by intending to cause GBH, in most prosecutions.
• To note an intention to cause lesser harm or a wound will not suffice, and nor will recklessness.

The Four ways of Committing a s 18 Assault

• 1. AR - wound and MR - intention to cause GBH for "ordinary victim"
• 2. AR - grievous bodily harm and MR - intention to cause GBH for "ordinary victim"
• 3. AR - wound and MR - intention to resist/prevent arrest and intention/recklessness as to causing ABH for "police officer victim"
• 4. AR - grievous bodily harm and MR - intention to resist/prevent arrest and intention/recklessness as to causing ABH for "police officer victim"

Summary of s 18 Assaults

• Unlawfully wounding or as causing grievous bodily harm with intent is statutory offence under s 18 of the OAPA 1861.
• The only difference from s 20 lies is in the mens rea, as both require grievous bodily harm for the actus reus.
• Mens rea is intention to cause GBH- unless the circumstances mean accused is resisting or preventing arrest, where the defendant can intend or be reckless as to causing some bodily harm.

Overview of the Non-Fatal Offences Against the Person

• Simple assault - Acts or words that cause the victim to apprehend immediate and unlawful personal force, intending or recklessly bringing about contact.
• Battery (physical assault) - Infliction of unlawful personal force upon the victim, intending or recklessly inflicting unlawful personal force.
• s 47 OAPA 1861 - Simple or physical assault causing actual bodily harm (which can include psychiatric harm), intending or recklessly as to the simple or physical assault (no need to foresee the ABH).
• s 20 OAPA 1861 - To wound or inflict grievous bodily harm (can include really serious psychiatric harm), maliciously intend or reckless as to actual bodily harm.
• s 18 OAPA 1861 - Wound or cause grievous bodily harm (as for ss), intending to cause grievous bodily harm or is malicious or recklessness with the intention or recklessness to resist/prevent arrest.

Consent as a Defence

• Consent (or its absence) is a crucial aspect of prosecuting an offence, an issue usually raised by defence to persuade the court they should not be guilty.
• Consent can amount to a defence to simple assault or battery which is implied to people where people interact with each other.
• A long-established law sees most people implying consent to inevitable physical contact that's part off everyday life
• The same legal principle of consent does not apply to more serious offences, where it is not available as a defence to harm.

Exceptions to Consent as a Defence

• Surgery.
• Dangerous exhibitions such as circus acts.
• Sport conducted according to rules, and not overly competitive.
• Ear-piercing and tattooing but note modern society sees bullying as not ok and public interest draws the line somewhere.

Consent is not a defence for:

• Sado-masochism.
• Body modifications such as nipple removal and the division of a victim's tongue.
• The law provides no guidance on consent if a victim is tricked, very young, or suffers from a mental disability.
• Consent is only valid if it is freely given by a fully informed and competent adult.
• Consent is not valid if it is obtained by fraud as to the identity of the defendant or fraud to the nature and quality of the act.

Summary of Consent

• Consent must be valid.
• Consent is implied to simple or physical assault provided no harm is intended or caused.
• Consent is not a defence to an assault under ss 47, 20 or 18 of the OAPA 1861 unless the behaviour comes within one of the exceptions.

Explore the definition, classification, and context of assault offenses within criminal law. Understand the key factors that determine the severity of assault and the role of social policy in addressing non-fatal assault. Learn about the victim apprehension.