Non-fatal offences and defences

A collection of offences that result in people being hurt to varying degrees but where they do not die.

• To punish defendants
• To send out a deterrent message
• To protect victims and wider society against relatively common offences

• Summary offence with a maximum penalty of six months'
• Defined at common law
• Charged under s39 CJA 1988

• An act cannot be committed by omission
• Can extend to silence shown in Ireland 1997 when V suffered silent phone calls from D.
• Also can extent to words shown in Light 1857 - D raised sword over wife's head and threatened her - This was assault as wife feared force and words did not negate her.

• Victim must apprehend that immediate force is going to be used against them
• No offence if the defendant cannot actually use force
• Fear is sufficient if 'imminent' -  Smith v CC of Woking 1983 - D looked through woman's bedroom window late at night. She was scared thinking D would break in - Assault even though D outside as woman believed what D would do was likely to be violent
• Words can prevent what would otherwise be an assault - Tuberville v Savage 1669 - D put hand on sword saying  if judges were not in town he would act differently - The words nullified assault of having hand on sword

Force used must be unlawful to give rise to an assault - Constanza 1997 - D wrote 800 letters to victim and made phone calls. Last two letters seen as threats by victim - Assault occurred due to fear of violence.

• Intention to cause another to apprehend immediate unlawful personal violence personal violence; or
• Recklessness as to whether such apprehension is caused - the defendant must realise that the acts/words could cause another to apprehend unlawful personal violence. - Lamb 1967 - D killed friend with revolver containing two bullets but both believed fun would not fire - No assault as friend did not fear violence and D believed no bullet would be fired.

• Summary offences with a maximum penalty of six months' imprisonment or a fine of £5000 or both
• Defined at common law but charged under s39 CJA 1988

• The slightest touch is enough
• The touching of clothes is sufficient - Thomas 1985 - D rubbed hem of woman skirt - Conviction upheld as touching clothes same as touching person.
• The act may be continuing
• The act may be indirect - Martin 1881 - D placed bar across theatre doorway, turned off lights and shouted 'fire'. Several people injured - D convicted even though he did not directly touch anyone
• In duty situations liability can occur by omission
• The force must be unlawful
• There is no need for an assault

• Intention to apply unlawful force to another, or
• Recklessness as to whether unlawful force is applied - the defendant must realise there is a risk that his act or omission could cause unlawful force to be applied to another - Haystead v CC of Derbyshire 2000 - D punched woman who let go of child she was holding and child injured by fall - D liable as held reckless whether act would injure child

• Triable either way offence with a maximum penalty of five years
• Miller 1954 - 'any hurt or injury calculated to interfere with the health or comfort of the victim'.
• A short lack of consciousness is sufficient - T v DPP 2003
• Includes injuries such as bruises, scratches and grazes - Roberts 1972 - D tried to remove coat of female hitchhiker in car. She jumped out at 30 mph and suffered cuts and bruises - Covicted as intended to apply unlawful force and no mens rea needed for resulting ABH
• Hair cut can be substantial - DPP v Smith - D cut off girlfriend's ponytail during argument
• Psychiatric harm must give rise to a recognised medical condition and be more than 'mere emotions' - Chan Fook 1997

• Intention or subjective recklessness as to whether the victim fears or is subjected to unlawful force
• No need to prove any mens rea for the ABH - Savage 1991 - D threw beer over woman in pub but glass slipped and cut woman's hand - D convicted as no mens rea for harm but intended to apply unlawful harm

• Triable either way offence with a maximum penalty of five years
• Definition: 'whosoever shall unlawfully and maliciously wound or inflict any GBH upon another person, either with or without a weapon or instrument'
• Either wound or GBH is sufficient
• GBH: DPP V Smith 1961 - really serious harm, but serious harm since Saunders 1985

• Seriousness is assessed in light of the victims age and health - Bollom 2004 - D convicted when 17 month old child suffered bruises to abdomen, arms and legs - convicted for more serious offence based on the age of victim.
• Wound - a cut or break in the continuity of the whole skin - JCC v Eisenhower 1983 - Victim shot in eye with shotgun pellet causing severe bleeding under skin - no wound as all layer of skin not broken.
• Wood 2008 - W broke victim's collarbone - no break in skin and so no wound.
• Harm can be psychiatric - Burstow 1997 - D carried out campaign of harrassment against ex-girlfriend using abusive and silent phone calls, hate mail and stalking. Woman suffered severe depression - Conviction based on level of psychiatric harm
• Harm can be a disease - Dica 2004 - D infected 2 women with HIV after unprotected sex. D did not say he was HIV positive - convicted because offence could occur by transmission of disease.

• No need for a technical assault or battery
• No practical difference between 'inflict' in s20 and 'cause' in s18

• Maliciously - intention to do the kind of harm that was done or foresight of the kind of harm that might be done and a decision to take that risk assessed subjectively using the Cunningham test
• Need to foresee harm but not necessarily the serious harm that results

• Indictable offence with a maximum sentence of life
• Definition: c

• A wound
• Grievous bodily harm
• D's act must be substantial cause of the wound or GBH

• Intention to do some GBH or an intention to resist or prevent the lawful apprehension or detention of any person - Morrison 1989 - Police officer grabbed D to arrest him but D leapt through window, dragging officer, who was badly cut by glass - Convicted as either intended injury or realised risk of it occuring and took risk.
• No need to specifically prove malice
• Must be specific intent to resist or prevent arrest but recklessness as to the wound or injury caused is sufficient.

• Act is over 150 years old and language has changed
• 'Malicious' now has a different meaning
• Use of 'inflict' and 'cause' is unnecessarily confusing
• Hierarchical structure makes little sense
• Offences are not sequential
• Assault and battery are outside the Act
• Acceptable injuries have evolved especially with regard to disease and psychiatric harm
• MR for s47 is the same as for a assault and battery despite s47 leading to a higher maximum sentence
• Small change in level of harm can have larger effect on offence charged
• Sentence is the same for s47 and s20 although both the AR and MR are more serious for s20
• Difficulty of defining would and GBH is unsatifactory
• Possible to be convicted for s18 even if only minor injury foreseen as long as arrest is resisted.

• 1998 Home Office Consultation Document, Violence: Reforming the Offences Against the Person Act 1861 - Clause 1 of the draft Bill:
• Intentionally causing serious injury
• Recklessly causing serious injury
• Both intentionally and recklessly causing serious injury
• Assault - intentionally or recklessly applying force or causing an impact to another or causing a person to believe any such force or impact is imminent.
• Reform proposals have not been enacted and reckless causing serious injury by transmission of disease would not be an offence