Examination Point: whether the victim is dead?  homicide? Assault?

Assault and Battery Lecture OUTLINE

Assault and Battery Cases | Digestible Notes 复习链接！！！！！

Collins v Wilcock [1984] 1 WLR 1172

Key point: Definition of assault and battery, unlawful touching when beyond scope of police
authority

Facts

 2 police officers suspected D was soliciting for prostitution

 D walked away and the officer grabbed her arm (Under the Street Offences Act 1959
c.57, the police officer had no power to detain the woman)
 D swore and scratched the officer’s arm
 D was convicted of assault on the officer

Issues: whether the conviction for assaulting a police officer was lawful given the lack of
legal authority on the part of the police officer to restrain the woman.

Decision/Outcome:

 The police officer was acting outside the scope of his power to arrest the woman. The
officer had committed battery and thus unlawfully detained. The police went beyond
the generally acceptable conduct of touching a person to engage his or her attention and
thus constituted a battery.
 The woman had been entitled to resist as an action of self-defense. Her conviction was
therefore quashed.
 The court stated that the AR of battery: the touching of another without consent, such
consent may be implied where necessitated by daily life. People are taken to implicitly
consent to contact which is a reasonable, generally accepted and expected part of normal
life. Goff LJ gave the examples of jostling through a crowd or touching a person to get
their attention. Restraint is not normally acceptable, however, and will constitute battery.
 A police officer is not entitled to detain or restrain a person unless they are using one of
their common law or statutory powers of arrest (or stop and search).
 Goff LJ set out the general definition for assault and battery: ‘An assault is an act which
causes another person to apprehend the infliction of immediate, unlawful, force on his
person; a battery is the actual infliction of unlawful force on another person.’

R v Ireland [1998] AC 147

Key point: silence causing psychiatric injury could constitute assault occasioning ABH
Facts: The Defendant in this case consistently called three separate women over the course of
three months. During each call he did not speak, but instead breathed heavily on the line. He
was prosecuted and convicted for assault occasioning actual bodily harm contrary to s.47 of
the Offences Against the Person Act 1861 c.100, on the grounds of the psychiatric injury
suffered by the victims. The Defendant appealed his conviction and argued that silence cannot
amount to assault and further that psychiatric harm was not actual bodily harm.

Issue:

 whether silence could amount to assault occasioning actual bodily harm for the purposes
of s.47 OAPA 1861.
 whether psychiatric injury can amount to ABH under the same provision.

Decision/Outcome

 The court held in the affirmative that silence causing psychiatric injury could constitute
assault occasioning ABH under s.47 OAPA 1861. Silence could act as a threat where it
was done in a way which could induce fear in the victim, and cause a victim to
apprehend immediate and unlawful violence.
 “the proposition… that words cannot suffice is unrealistic and indefensible.. (the phone
caller) intends his silence to cause fear and intimidation.” (Lord Steyn)
R v Constanza [1997] Crim LR 576

Facts: The man followed the woman home from work, made numerous silent phone calls,
wrote her over 800 letters, drove past her house, visited her house without consent, and wrote
offensive words on her house’s door three times. Following these actions, she received two
additional letters with threatening language. She was soon diagnosed by a doctor as suffering
from clinical depression and anxiety due to apprehended fear caused by the man’s actions and
letters.

Issues：

 Whether the man’s words alone, without any physical action against the victim, could
constitute an assault
 Whether there was an apprehended fear of immediate and unlawful violence in order to
constitute an assault under Offences Against a Person Act 1861 s. 47

Decision / Outcome：The Court stipulated that words alone can constitute an assault, without
the presence of physical action, if they cause the victim to apprehend a fear of immediate
violence.

R v. Venna [1976] Q.B. 421

Savage and Parmenter [1992] 1 AC 699
Key point: It is common ground that the mental element of assault is an intention to cause the
victim to apprehend immediate and unlawful violence or recklessness(foresee the harm but
unreasonably take the risk) whether such apprehension be caused

DPP v K (A Minor) [1990] 1 WLR 1067

Facts: The defendant was a 15-year-old boy who left his chemistry class with a tube of acid
to go to the bathroom. While he was in the bathroom, he heard someone approaching and
panicked, pouring the acid into a hand-dryer. He then left the bathroom and did not tell
anyone what he had done. The defendant later claimed that he intended to go back and clean
the acid up at a later time. However, before he could do this, another person used the hand-
dryer and was sprayed with acid.

Held: When this case was decided, recklessness was an objective standard: if a reasonable
person would have foreseen that someone might be hit by the acid, then the defendant was
reckless, which suffices as the mens rea for assault occasioning actual bodily harm.

DPP v SMITH [2006] EWHC 94

The cutting of hair amounted to actual bodily harm. The victim sustained no bruises,
scratches or cuts. Whilst she was emotionally upset and distressed by the experience there
was no evidence or suggestion of psychiatric injury.

Fagan v MPC [1969] 1 QB 439

Facts: A policeman was directing the defendant to park his car. The defendant accidentally
drove onto the policeman's foot. The policeman shouted at him to get off. The defendant
refused to move.

Held: Fagan committed an assault. Although there was no intent in parking on the foot of the
officer, the omission to move was an intentional, therefore the omission was classed as an act.

R v Konzani [2005] EWCA Crim 706

Facts: Konzani was convicted of inflicting grievous bodily harm on three different women,
contrry to section 20 of the Offences Against the Person Act. He had been warned that the was
HIV positive and was aware of the risk that by having unprotected sexual intercourse he could
infect his partners. Nevertheless he had sexual relations with three women without informing
them of his HIV status.

Reasoning: The case of R v Dica [2004] EWCA Crim 1103 was referred to and applied to
some degree, as the principle of personal autonomy to ensure that the individual takes
necessary precautions to mitigate their risks of infection was acknowledged. However, it was
distinguished on the basis that where Konzani had knowingly concealed the fact that he had
HIV from his sexual partners, his sexual partner’s personal autonomy could not reasonably be
expected to extend to anticipate his deception. Therefore, his concealment of his condition
consequently led to the transmission of HIV to the complainants. The complainants could not
have given proper consent as they were not honestly informed. The conviction stayed.

R v Martin (1881) 8 QBD 54

Key point: Indirect application of force on the victim may as well constitute battery.

Facts: The defendant decided to play a practice joke on theatregoers by barring the exits to a
playhouse, cutting the lights on the exits, and proclaiming that there was a fire to the
audience, so as to cause panic. Resultantly, the audience rushed to exit the playhouse, during
which several audience members sustained severe injuries from trampling, inter alia.

Outcome: Appeal dismissed; D was rightly convicted of inflicting grievous bodily harm

Reasoning:

 ‘The prisoner must be taken to have intended the natural consequences of that which he
did. He acted ‘unlawfully and maliciously’, not that he had any personal malice against
the particular individuals injured, but in the sense of doing an unlawful act calculated to
injure’
 Moreover, a charge of ABH does not necessarily require that the accused has personally
committed an assault; rather it suffices that they committed an illegal act and it be
reasonably foreseeable that this act may cause harm. In interpreting the word ‘inflict’, it
should not be considered necessary that the defendant had directly or indirectly applied
physical force per se in causing the harm, merely that their actions were the identifiable
cause of the injuries suffered by the victims.
Haystead v DPP [2000] 3 All ER 690

Key point: Application of force to one person which causes the application to another may
cause guilt of assault and battery.

Facts: the defendant who punched a woman holding a baby, causing her to drop the baby, was
found guilty of the battery to the baby.

. R v Thomas [1985] Crim LR 677

The force applied does not have to be direct to the victim’s body and they do not need to feel
the force. Touching their clothes can be sufficient.
AOABH is a separate charge in legal contexts, often considered a more serious offense than
common assault. Based on committing an assault, the assault must cause actual bodily harm.

Difference: Battery generally refers to the actual infliction of unlawful force on another
person. Any touching of another person, however slight, may amount to a battery, but may not
result in actual bodily harm. AOABH, on the other hand, involves actual or threatened bodily
harm, encompassing physical contact or behavior that induces fear of harm, without
necessarily requiring overt intentional actions.

Actual bodily harm is defined in R v Donovan [1934] 2 KB 498 as an injury that is more than
transient or trifling. R v Miller [1954] 2 All ER 529 clarified this further stating it to be any
hurt or injury calculated to interfere with the health and comfort of the victim. However, R v
Chan Fook [1994] 1 WLR 689 qualified this somewhat stating that the inclusion of the word
‘actual’ indicates that the injury whilst not needing to be permanent, cannot be so trivial so as
to be wholly insignificant. For example, a concussion will not usually cause permanent
damage but it is clearly more than insignificant harm. Conversely a sore arm would be neither
permanent or significant.

Ireland established that ABH can encompass psychiatric harm such as depression, anxiety, or
nervous shock, however Chan Fook has clarified that this does not go as far as including
distressing emotions or any state of mind which does not amount to a recognised clinical
condition. It can be seen then that fear or upset would not suffice for the purposes of ABH.

Aside from the established case law, the CPS Charging Guidelines also offer some direction
as to what will be classed as ABH. According to these guidelines, the type of harm that will
realistically be prosecuted as an ABH are injuries where significant medical intervention has
been necessary or has caused lasting effects.

3.2 Mens Rea

No additional mens rea is required for this offence. R v Roberts [1978] Crim LR 44 confirms
that the mens rea for the basic offence is sufficient.
4.0 Defences: Consent

4.1 Consent can be given expressly or impliedly

Collins v Wilcock establishes that consent is automatically implied where there is jostling in
busy places, or in relation to handshakes, back slapping, tapping on the shoulder to attract
attention and other day to day activities, provided no more force was used than is reasonably
necessary in the circumstances. Consent can be implied in other situations too. For example,
by being in a relationship you may impliedly consent through your behaviour to affectionate
touching that you would otherwise not consent to from a stranger!

4.2 Genuine Consent?

For consent to be genuine it must be given in the absence of fraud, by a person who is fully
able to comprehend the nature of what they are consenting to.

Children and some adults are not automatically held to give valid consent in all situations and
are subject to further scrutinization.

Even where the subject has capacity to consent this consent can be vitiated by fraud as to the
(i) identity of the person or (ii) the nature and quality of the act.

(i) fraud as to the identity of the person

R v Elbekkay [1995] Crim LP 163 confirms that fraud as to the identity of the person will
vitiate consent, however it must be the identity of the person that is the subject of the fraud,
not the identity of their attributes.

R v Richardson [1998] 2 CR App 200

Facts: Where a person holding themselves as a dentist performed procedures on patients

when in fact they had had their dental licence revoked.

Reasoning: The Court of Appeal confirmed, allowing the appeal, that fraud only negatived
consent in circumstances where the victim was deceived as to either the nature of the act
performed or the identity of those performing it. It was noted that lesser forms of deception
might suffice for a claim to damages in tort, however. Importantly, the Court held that the
phrase ‘identity of the person’ did not extend to that person’s qualifications or
attributes. There had been no fraud as to the actual identity of the person performing the
treatment.

(ii) Fraud as to the nature and quality of the act

R v Tabassum [2000] 2 Cr App R 328

Facts: An IT lecturer who held no formal medical qualifications pretended to conduct
medical research in order to gain consent from female patients to perform breast
examinations.

Held: The Court held that there was no true consent in this instance. The women were
consenting to touching purely for medical purposes and therefore although they had consent
to the nature of the act, i.e. the breast examination, they were not consenting to the quality of
the act as it was not conducted for medical purposes.

R v Flattery (1877) 2 QBD 410

Facts: The defendant told a woman with learning difficulties that he was performing surgery
on her when in fact he was engaging in sexual intercourse with her.

Held: The victim did not appreciate the quality of the act she was agreeing to and accordingly
the Court held her consent to be invalidated by fraud as to the nature and quality of the act.

R v Clarence (1889) 22 QB 23

Facts: the defendant had sexual intercourse with his wife knowing that he was infected with
gonorrhoea. He passed on the infection and was charged with assault occasioning ABH.

Held: The defendant successfully defended the charge with the Court holding that his wife
had consented to sexual intercourse and it was irrelevant that the wife was unaware of the
infection when giving her consent. This ruling should be treated with caution however as at
the time a wife was automatically deemed to consent to sexual intercourse with the husband
by the nature of the relationship, regardless of whether any such consent actually existed.
Therefore, had she known about the infection it would have made no difference as to the
validity of her consent in this instance as this was held to be automatic.

R v Dica [2004] 3 ALL ER 593

Facts: An HIV-positive defendant who, knowing of his condition, had sexual intercourse with
3 different women and infected them with the disease. The defendant tried to argue that
consenting to unprotected sexual intercourse involved consenting to all of the associated risks.

Precedence: As in Clarence, the women consented to the unprotected sex but stated that they
would not have done had they been aware of the infection.

Held: There is a distinction between taking a risk of the wide ranging, potentially adverse and
problematic consequences of sexual intercourse, and giving informed consent to a risk of
infection with a serious and fatal disease. The fact that the defendant had concealed his HIV
positive status from his victims meant that they were deceived by him. For the victim's
consent to be valid it must be an informed consent. This was confirmed in the subsequent
ruling of R v Konzani [2005] EWCA Crim 706.

Is the victim legally allowed to consent?

The law will only allow an individual to consent to cases that do not involve an act of
violence. This is due to the fact that it is not considered to be in the public interest to allow
individuals to hurt each other. In cases where ABH or more serious harm is intended and or
caused Attorney General's Reference No 6 of 1980 [1981] states that a person's consent is
irrelevant and cannot prevent criminal liability.

These are specific categories of scenarios where it is in the public interest to allow individuals
to consent to such harm.

 Reasonable surgical interference

Surgical interference is invasive and will almost always involve an incision thus constituting
harm to the body. Regardless, the law permits for a patient to consent to surgery performed by
a suitably qualified doctor as there is clear social benefit in such operations.

Examination Point

Does the social benefit described above extend as far as cases of cosmetic surgery? For a
potential line of discussion in an essay question, consider some cases of extreme cosmetic
surgery, for example horns being implanted into an individual’s head or breast enhancements
so large they cause crippling back pain. Can it truly be said that this is in the public interest to
allow this?

 Properly conducted games and sports

Properly conducted games and sports played according to recognised rules with appropriate
supervision from a referee or umpire are considered to be in the public interest due to the
massively important cultural standing these sports have, alongside the obvious health and
fitness benefits that they offer. It is in the interest of society to allow for these to continue and
thus to consent to the obvious risk of harm they will often involve. However, that has been
extended further to encompass harm caused during off the ball play, that is in relation to
harmful behaviour that occurs on the pitch but outside of both play itself and the rules of the
game. The case of R v Barnes [2004] EWCA Crim 3246 which involved a reckless and
unnecessary, late tackle during a football match, stated that even conduct outside of the rules
of the game may not be criminal. The Court held that an instinctive error, reaction or
misjudgment in the heat of a game should not be classed as criminal activity.

Examination Point

Boxing is a contentious issue to discuss here as it is clear that this is a sport where ABH is
intended and caused and is not merely incidental to the primary aim. For example, in football
the aim is to score goals in your opponent’s net and defend your own goal, and in doing that
there is necessarily a degree of physicad l contact which may result in injury. In boxing
however, the ultimate aim of the sport is often to knock your opponent unconscious, which
consists of a clear degree of very public violence, the kind of which Attorney Generals
Reference No6 of 1980 expressly ruled against when considering fighting in the street.
Indeed, the practice of this sport has very serious implications for boxer’s health, both at the
time and in later life. Research into Chris Eubank vs Michael Watson and more recently Chris
Eubank Jr vs Nick Blackwell for examples of injuries sustained from a fight and also look
into the impact on health of boxer’s after retirement, with Mohammad Ali being a notable
example. Should the courts do more to protect these people or is this justified as being a core
part of public culture worth protecting?

 Tattooing, piercing and male circumcision

These are seen as in the public interest due to their cultural importance and long standing
tradition. This has been interpreted very widely and has included branding with a hot knife
following the ruling in R v Wilson (1996) 2 Cr App Rep 241.

 Horseplay

This includes for example rough behaviour in jest such as, tripping each other up or tussling
between friends, can be consented to. An example of such behaviour can be seen in R v
Jones [1987] Crim LR 123 where a schoolboy who was seriously injured after being thrown
into the air by his fellow students was deemed to consent to the harm caused.

 Sexual Relations

In Wilson the Court stated that the State has no business in invading the bedrooms of
consenting adults and dictating how they should have sex. However, following the ruling
in Brown, a case involving a group of homosexuals engaging in extremely violent and painful
acts for the purposes of achieving sexual pleasure, sadomasochistic acts have been held to be
against public interest and thus not subject to consent.

It can be properly explained then that only sexual activity that is not inherently violent in
nature is can subject to consent. Dica defined these as those cases where ABH is caused but
the harm is not intentional, merely caused recklessly through the participation in the sexual
activity. An example of one such situation can be illustrated by the case of R v
Slingsby [1995] Crim L R 570 where during sexual intercourse the defendant, with the
victim’s consent, vigorously inserted his fingers into the victim’s vagina whilst wearing a
large signet ring. The ring caused severe internal cuts which became septic and ultimately
proved fatal. The victim’s consent was held to be valid as in carrying out the act there was no
evidence that either of them had contemplated actual bodily harm resulting.

Hands on Example

Tim is really passionate about football and he loves everything to do with it. At work Tim and
his colleagues have a fantasy football league and this gets very competitive. A lot of the time
they will discuss the league together and argue over who has the best fantasy team each
week. Tim goes to work on Monday morning furious as his his team has not done very well
that week. Jack infuriates Tim by bragging loudly to Josh about how many points his team
scored him that week. After sometime Tim turns around and raises his fist at Jack shouting,
“if you say one more thing about this I will shut you up myself”.

Jack is afraid by this and says nothing, quietly resuming work. Josh however is annoyed at
Tim for threatening his friend. As he is walking past Tim’s chair he pushes the back of the
chair hard causing Tim to fall forward and hit his head. Tim is shaken by the shock of the
push but luckily is not seriously hurt.

After work, Tim, Jack and Josh have planned to compete in the 5-aside football league they
play in. Sophie, a girl that both Tim and Josh like, is going along to watch the game. Still
annoyed at Josh for pushing him, Tim is really eager to out-do Josh in front of Sophie as he
knows this will upset him. In the last few moments of the game the score is 0-0 and Tim spots
an opportunity to win the ball just outside the penalty box of the other team. Fired up and
keen to impress, Tim flies in for the tackle but in the heat of the moment horribly mistimes it.
His boot crashes into Louis’ shin and sprains Louis’ankle.

Discuss the potential liability Tim and Josh for assault, battery and ABH in relation to
the above scenario.

Guideline Answer

There are three issues at hand here:

(i) Tim’s threat to Jack

(ii) Josh pushing Tim

(iii) Tim tackling Louis

Once you have identified all three you need to break your answer down into subheadings and
discuss each issue individually.

(i) Tim’s threat to Jack

 Consider first a possible offence of assault.

  Actus reus: Does Tim cause Jack to apprehend the application of force? Raising his
fist would cause a person to apprehend an immediate application of force

 Is this apprehension of immediate force? No, similarly to Tuberville v Savage [1669]

EWHC KB J25, the accompanying words “if you say one more thing” negate the
assault as there is no immediacy. He will only be harmed in circumstances where he
continues to speak and not right away.

 There is no application of force as Tim does not carry out his threat so there is no
assault.

(ii) Josh pushing Tim

 First consider the possibility of an assault occurring. Does Josh cause Tim to
apprehend the application of immediate unlawful force? A careful study of the facts
shows us that he didn’t. Josh went up behind and there was no prior threat issued so
Tim was not aware that the force was about to be applied. Accordingly, he was unable
to apprehend the application of force so there can be no assault.

 Having established assess whether on the facts there can be a battery?

 Actus reus: Does Josh apply unlawful force to Tim?

 Applying Fagan v Metropolitan Police Commissioner [1969] 1 QB

439 and Haystead v DPP [2000] 3 All ER 690 it can be seen that the application of
force can be indirect, therefore the push on the chair would suffice for the purposes of
battery. The battery occurs when the chair causes Tim to fall forward and hit his head.

 Mens rea: Intention to apply force or recklessness as to whether force will be applied.
It can be seen on the facts that Josh likely intended to apply the force to Tim when
pushing the chair but in any case he was reckless as to whether pushing the chair
would cause the application of force to Tim.

 Therefore, both elements of the offence are established and Josh will be liable for the
battery on Tim.

 Possible s47 ABH liability? Actual bodily harm means an injury that is more than
transient or trifling (R v Donovan [1934] 2 KB 498). R v Miller [1954] 2 All ER
529 clarified this further stating it to be any hurt or injury calculated to interfere with
the health and comfort of the victim. However, R v Chan Fook [1994] 1 WLR 689 it
was clarified that this cannot be so trivial so as to be wholly insignificant. It is
unlikely that contact to the head that causes no further damage would fulfil these
definitions so no charge of ABH would be available in relation to Josh’s push.
(iii) Tim tackling Louis

 Assault:

o Actus reus: Did Tim cause Louis to apprehend the immediate application of
force? This is likely where Louis saw Tim approaching him late and off the
ball, however this is open to an interpretation of the facts and you should
come to your own conclusion here.

o Mens rea: Tim was subjectively reckless as to causing the apprehension when
mistiming his tackle.

 Battery:

o Actus reus: The unlawful application of force is satisfied as Tim’s tackle is

late and off the ball and therefore outside the rules of the game.

o Mens rea: Tim is reckless as to whether force will be applied when going in
for the late challenge.

 ABH:

o The battery causes Louis to break his leg which is harm of a nature that is
clearly encompassed by both the Miller and Chan Fook definitions and also
the CPS charging guidelines.

o There is no additional mens rea requirement for the ABH so having satisfied
the actus reus and mens rea for battery and the actus reus for ABH it is likely
that Tim would be liable for the ABH of Louis.

o However, if it can be found Louis consented to the harm this will negate the
offence. Applying Attorney General’s Reference No 6 of 1980
[1981] where ABH or more serious harm is intended and or caused a person's
consent is irrelevant. As ABH was caused here then any consent by Louis
would be prima facie invalid. However, Attorney General’s Reference No 6
of 1980 and R v Brown [1994] 1 AC 212 provide exceptions to this where it
may be in the public interest to allow consent. The appropriate exception here
is for the provision of properly conducted sports.

o What is properly conducted? This refers to a sport played according to

recognised rules. As Tim’s tackle was late and off the ball it cannot be said to
be within the rules of the game. However, R v Barnes [2004] EWCA Crim
3246states that an instinctive error, reaction or misjudgment in the heat of a
game should not be classed as criminal activity. Applying this to the present
 facts it would appear that Tim’s conduct falls with this definition as it was a
misjudged error in the heat of the game, therefore Louis would be held to
consent to the harm and Tim will have no liability for the incident.

Wounding and GBH Lecture

Grievous Bodily Harm – ‘really serious’ bodily harm : Smith [1961] AC 290, 334-335.

 Does not require the harm to be life-threatening or permanent: R v Bollom [2003]

EWCA Crim 2846：whether harm can be classed as grievous is dependent on the
characteristics of the victim and therefore the law cannot reasonably provide a one size
fits all list of injuries that this will encompass.
 Could include psychiatric injury: Ireland [1998] AC 147 ◦
 Transmission of a serious sexual disease could amount to GBH: Dica [2004] QB 1257

some guidance as to the type of injuries that may amount to GBH：

 A substantial loss of blood, usually requiring a transfusion

 Those which require lengthy medical treatment or result in a period of incapacity

 A permanent disability or loss of sensory functions

 A permanent visible disfigurement

 Broken bones, cheek bone, jaw or ribs

 Dislocated joints, displaced limbs and fracturing to the skull

JJC v Eisenhower [1984] QB 331 defines wounding as the breaking of both layers of the
external skin: the dermis and the epidermis. In this case a gunshot wound that caused internal
bleeding in the form of a ruptured blood vessel did not constitute a wound as the external skin

was still intact.

Examination Point

Wounds are a separate concept to GBH and do not need to be ‘really serious’ so don’t confuse
the two.

 Inflict – could mean ‘cause’ in the context of the OAPO: Ireland [1998] AC 147, 160D.

Actus Reus

The actus reus for the offence can be broken down as follows:

 Unlawfully
  (i) wound or (ii) cause any GBH

 On another person

mens rea of ‘maliciously’ is in other words, a foresight by the defendant of

a risk of some harm occurring.

Intention to resist or prevent the lawful apprehension or detainer of any person

The first point is that the apprehension being prevented must be lawful. If the GBH or wound
is caused when the defendant is intending to resist an unlawful arrest, then this will be
insufficient to satisfy the mens rea. (self-defence)