Non-fatal

KENEIL HENRY
Offences against
the Person
 By the end of this topic, you should be able to:

1. Identify and explain the AR & MR for the various

offences against a person.
Learning 2. Identify and differentiate between the various types
of assaults and wounding.
objectives 3. To gravity and degree of harm required to prove the
specific harm.
4. Understand and explain the concept of consent as a
defence and when the State determines it is not
valid
Introduction

The law always seek to protect a person’s autonomy from infringement by another person. We
should be free from unlawful interference from others and this has been the case since the
Victorian time with the Offences Against the Person Act (OAPA) 1861 which is still used in
Jamaica. The courts have interpreted the law and stretched it as far as to include sexual disease
infection and psychiatric assault as injuries.

The study of this topic will cover the common law offences of assault & battery as well as
sections 18, 20 & 47. We will cover the topics in similar order which is the reverse in the subject
guide.
 Assault (common assault)

A person is guilty of assault if he intentionally or recklessly leads someone to apprehend the application to his
body of immediate unlawful force. R v Venna 1975 approving Fagan v MPC.

Actus reus
Causing the V to apprehend fear,
Immediacy and
Unlawful personal violence/force

Mens rea
Intention/recklessness
 AR of Assault

Causing apprehension

All that is required is that the acts or words of the D caused the V to apprehend fear of being harmed. This has to do
with what the V thinks at the time of the act/words. There is no requirement that the V is physically harmed. So,
where a person points a gun or knife at you and you believe you will be hurt, then this aspect of the AR is satisfied.
Recall from the facts of R v Lamb (game of Russian roulette) where the court held in essence that assault was not
made out as the V did not apprehend fear. Apprehension does not mean fear for the purpose of this assault. As long
as the V expect some violence

If the D lacks the capacity to carry out the threat, then there is no assault. See Thomas v National Union of
Mineworkers.
 AR of Assault

Immediacy

This requirement is flexible and immediate means imminent. Harm apprehended in the immediate future suffices
and need not be instantaneous. It all depends on the circumstances of the case.

Logdon v DPP 1976: the D showed the V a tax inspector a gun in a drawer and pointed it at her in jest. He later told
her it was an imitation firearm however, the V feared imminent harm and the D intended to cause fear. Regardless of
what the D intended, The offence was made out once the V apprehended fear of personal violence.
AR of Assault

Immediacy

Smith v Chief Superintendent of Woking Police Station (1983): the D standing in an enclosed garden of a
block of flats looked through a bed-sitting room window in her nigh clothes intending to cause her fear. She
screamed and called the police whilst the D remained peering at her.

Please read your study guide (page 98) for an excerpt from Kerr LJ judgement.
Constanza 1997 Crim LR 576

This was a stalking case where the D engaged in activities to cause Ms Wilson the V to fear personal
violence. The D followed her home, made silent and spoken phone calls to her at work and home,
sending and delivering over 800 letters to her home over a four months period among other things.
The V suffered clinical depression and anxiety. As it relates to the issue of immediacy, the COA held
that fear of harm at some time not excluding the immediate future was sufficient. It was not
necessary for the V to see the D nor was it impossible for an assault to be communicated by words
alone unaccompanied by gestures.

Please note that this is a S 47 offence however the point discussed above applies.
Question for discussion

Can silent phone calls suffice for assault?

R v Ireland, R v Burstow

The Ds embarked upon acts of making silent and abusive phones calls to
their Vs. The Vs became fearful and later suffered from depression resulting
in S47 & S20 offences. They were convicted and their convictions were
appealed to the COA where they were dismissed. They appealed to the HOL
where it was unsuccessful.
R v Burstow: Lord Steyn

It is to assault in the form of an act causing the victim to fear an immediate application of
force to her that I must turn. Counsel argued that as a matter of law an assault can never be
committed by words alone and therefore it cannot be committed by silence. The premise
depends on the slenderest authority, namely, an observation by Holroyd J. to a jury that "no
words or singing are equivalent to an assault": Meade's and Belt's case 1 (1823) 1 Lew. C.C.
184. The proposition that a gesture may amount to an assault, but that words can never
suffice, is unrealistic and indefensible. A thing said is also a thing done. There is no reason
why something said should be incapable of causing an apprehension of immediate personal
violence, e.g. a man accosting a woman in a dark alley saying "come with me or I will stab
you." I would, therefore, reject the proposition that an assault can never be committed by
words.
 R v Burstow: Lord Steyn

 That brings me to the critical question whether a silent caller may be guilty of an assault. The
answer to this question seems to me to be "yes, depending on the facts." It involves questions
of fact within the province of the jury. After all, there is no reason why a telephone caller who
says to a woman in a menacing way "I will be at your door in a minute or two" may not be
guilty of an assault if he causes his victim to apprehend immediate personal violence. Take
now the case of the silent caller. He intends by his silence to cause fear and he is so
understood. The victim is assailed by uncertainty about his intentions. Fear may dominate her
emotions, and it may be the fear that the caller's arrival at her door may be imminent. She may
fear the possibility of immediate personal violence. As a matter of law the caller may be guilty
of an assault: whether he is or not will depend on the circumstance and in particular on the
impact of the caller's potentially menacing call or calls on the victim.
R v Burstow: Lord Steyn

Such a prosecution case under section 47 may be fit to leave to the jury. And a trial judge
may, depending on the circumstances, put a common-sense consideration before jury,
namely what, if not the possibility of imminent personal violence, was the victim terrified
about? I conclude that an assault may be committed in the particular factual circumstances
which I have envisaged. For this reason I reject the submission that as a matter of law a
silent telephone caller cannot ever be guilty of an offence under section 47. In these
circumstances no useful purpose would be served by answering the vague certified
question in Ireland.
The cases decided that

 An assault can be committed by words alone: a thing said is also a thing

done.
 Silent telephone calls may, depending on the facts constitute assault as they
can be menacing.
 Psychiatric harm is insufficient for battery but can constitute for sections
47 and 20.
 Immediacy; an assault cannot consist of immediate fear alone. The fear
must be fear of immediate physical violence.
Words can negate assault

In Tuberville v Savage 1669 the V and D were having an argument. The D placed his hand on his sword
and said: “if it were not assize time, I would not take such language from you”. It was held that the words
negated what would have otherwise been an assault.

It was once held that words alone could not constitute an assault; R v Meade 1823. The words get out the
knife was could amount to an assault; R v Wilson 1955.

Note from the previous slide the effect of the HOL decision in R v Ireland and Burstow.
 Omission & Assault

 Refer to lecture notes 4 on “Creation of a dangerous situation and duty bound to avert such
danger” where the case of DPP v Santa-Burmudez was discussed and to some extent omission
and assault.

 In the case of Fagan v MPC, the HC held that a mere omission to act cannot amount to an
assault. This is known to you already from lecture notes 4.

 Note however in DPP v Santa-Bermudez the HC held that an act or word or a combination of
both can amount to an assault once there is a danger created by the D and he thereby exposes
another to that foreseeable risk of harm.
Omission & Assault

A great deal of undesirable complexity has bedevilled our criminal law as a

result of quasi theological distinctions between acts and omissions. Some of the
illogicality is identified in Smith and Hogan, Criminal Law, 10th Edition, pages
46 to 52. In my judgment, and without the need to express oneself in the
language of universal principle, the authorities of Roberts, K and Miller support
the following proposition: where someone (by act or word or a combination of
the two) creates a danger and thereby exposes another to a reasonably
foreseeable risk of injury which materialises, there is an evidential basis for
the actus reus of an assault occasioning actual bodily harm. It remains necessary
for the prosecution to prove an intention to assault or appropriate recklessness.
Omission & Assault

In the present case, if (as the court implicitly found) the respondent, by giving
PC Hill a dishonest assurance about the contents of his pockets, thereby
exposed her to a reasonably foreseeable risk of an injury which materialised, it
was erroneous of the court to conclude that there was no evidential basis for
the actus reus of assault occasioning actual bodily harm. For my part I would
answer the question posed in the negative - the court was not correct to accede
to the submission of no case to answer. I would therefore allow the appeal but
without further order.
 AR of Assault cont’d

Unlawful force

There is no need for violence here. The slightest degree of unwanted interference causing the V to
apprehend fear will be an assault. By engaging in everyday activities, you implicitly consent to a
reasonable degree of physical contact such, taking the taxi or bus, going to a party, walking in busy
streets.

Some interference will be lawful when consent is given, lawful arrest or by self-defence. Jostling a
person on a bus is unlawful when it is intentional.
Unlawful Force

Collins v Wilcock 1984 Collins was convicted of assaulting a police officer in the
lawful execution of her duty. The V grabbed hold of D’s arm in order to detain her
for questioning in relation to a suspected offence of soliciting as a common
prostitute. The D scratched the V who arrested her for assault.

It was held that a distinction can be drawn touching another to get their attention
which is generally lawful and restraining someone which is not. The conviction of
the D was quashed as the V had used excess force which the D is entitled to resist as
an action of self-defence.
 Mens Rea for Assault

The MR for Assault is intention or recklessness.

R v Venna 1975; a police officer was struck on the hand by D’s foot during an attempted arrest in a street
disturbance. A bone was fractured and D was convicted for ABH and appealed. Dismissing his appeal, the
COA held that a person who recklessly applies physical force to the person of another should be outside
the criminal law of assault.

The type of recklessness that is required here is Cunningham recklessness (subjective). See R v Spratt
1990
Battery

Is any act by which the D intentionally or recklessly inflicts or applies unlawful

personal violence or force upon the V. R v Rolfe [1936] Cr App R 4 & Collins
v Wilcock [1984] 3 All ER 374.

AR: application or infliction of unlawful and personal violence.

MR: intention or recklessness (subjective)

Battery (AR)

AR: application or infliction of unlawful and personal violence.

Omission: just as with assault, battery can be committed by omission in certain

circumstances.

There is no need for the V to apprehend fear of violence. All that is required is some
physical force inflicted upon the V which neither needs to be aggressive nor hostile
and can only consist of unwanted physical contact. The force must however be
unlawful.
Wilson v Pringle

In our view, the authorities lead one to the conclusion that in a battery there must be an
intentional touching or contact in one form or another of the plaintiff by the defendant. That
touching must be proved to be a hostile touching. That still leaves unanswered the question
"when is a touching to be called hostile?" Hostility cannot be equated with ill-will or
malevolence. It cannot be governed by the obvious intention shown in acts like punching,
stabbing or shooting. It cannot be solely governed by an expressed intention, although that
may be strong evidence. But the element of hostility, in the sense in which it is now to be
considered, must be a question of fact for the tribunal of fact. It may be imported from the
circumstances. Take the example of the police officer in Collins v Wilcock. She touched the
woman deliberately, but without an intention to do more than restrain her temporarily.
Wilson v Pringle

Nevertheless, she was acting unlawfully and in that way was acting with hostility. She was
acting contrary to the woman's legal right not to be physically restrained. We see no more
difficulty in establishing what she intended by means of question and answer, or by
inference from the surrounding circumstances, than there is in establishing whether an
apparently playful blow was struck in anger…

Although we are all entitled to protection from physical molestation, we live in a crowded
world in which people must be considered as taking on themselves some risk of injury
(where it occurs) from the acts of others which are not in themselves unlawful.
 Battery (AR)

Restraining a person amounted to batter: Collins v Wilcock

Spitting on someone: Commonwealth v Cohen

Cutting someone’s hair: DPP v Smith.

Wrongly taking a person’s fingerprint could be battery: Callis v Gunn

In determining whether the force is unlawful, you must look at the circumstances of the case in full and any available
defence. The court held the in Collins v Wilcock, the PC force was excessive and therefore unlawful because of the
restraint
Battery (AR)

The violence need not be directly inflicted upon the V. So, in Haystead v Chief Constable of
Derbyshire, the D punched a woman twice whilst she was holding her baby causing the baby to fall
and sustain injuries. D was convicted and the court held that there is no difference in logic or good
sense between the facts of this case and one where the D used a weapon.

The intermediate medium in Fagan was a motor car. Other forms of weapons applies.
 Direct force need not be against the V

R v Martin: the D put out the gas lights on a stairway of a crowded theatre shortly before the end of the
play and then placed an iron bar across the doorway of the exit. When the audience panicked, the tried to
exit through the doorway which forced them against each other severely injured them. The D was
convicted of a section 20 OAPA on the basis of battery.

DPP v K (a minor): the D took hydrochloric acid from the school lab into a cloakroom. He panicked on
hearing someone approaching and poured the acid into a drying machine and left the room. The V was
injured when the acid blew in his face when he used the machine. Note that the case has been overruled
on the point of recklessness however the point on topic is still law.
Mens Rea & Important points

The mens rea for battery is the same for Assault.

When we start to look at the more serious offences, you must the know the legal
principles governing assault and battery to establish those offences. This is on the
basis that the prosecution has to prove the elements before moving on to the more
serious issues.
 Scenarios for discussion: Assault or battery?

1. John crept up behind Suzie and kissed the back of her head.
2. Suzie knew her friend Cissie was a nervous & timid girl. As a joke, she telephoned Cissie and said: “I am coming to get
you”.
3. Suzie pointed an unloaded shotgun at Fred.
4. John tripped over a loose paving stone in the street and fell against Sandra. The impact of this pushed Sandra over.
5. John threw a stone at Cecil, intending to hit him but it missed.
6. Donald hit Sarah but it did not hurt her.
7. Angelina pointed a firearm at Tony her abusive husband when his back was turned.
8. Tom (loader man) cat called Jessica and held on to her hand to put her in a taxi
9. Tom a sexual psychopath rubbed his pants front on the bottom of Jane whilst on a fully packed bus. His condition is
unknown to Jane.
 Assault: Actual Bodily Harm (ABH)

 Section 47 OAPA 1861: whosoever shall be convicted on indictment of any assault occasioning
actual bodily harm shall be liable to imprisonment for not more than 5 years.

 AR: Assault or Battery

Either must cause actual bodily harm

 MR: intention or recklessness (same for assault & battery)

 Assault: Actual Bodily Harm (abh) S47

 Actus reus for assault or battery must first be established (predicate) which caused or occasioned the
bodily harm. Refer to the slides above before moving on to the second part of the actus reus.

 Occasioning simply means causing bodily injury or harm. The principles surrounding causation apply
here. Therefore, the assault or the battery must be an unbroken causal connection to the harm. Any
break in the chain of causation will result in an acquittal. Recall the case of R v Roberts (1971) where
the V jumped from a moving car and suffered a broken ankle after the D made sexual advances
towards her. The COA upheld his conviction that it was a natural and reasonable act by the V and that
the harm suffered was as a consequence of the D’s assault on the V.
 Assault: Actual Bodily Harm (abh) S47

In R v Savage [1991] 4 ALL ER 698, the D assaulted the V who was involved with her husband by throwing
a glass of beer at her and somehow, whether intentionally or accidentally, it broke and cut the wrist of the V.
The D was charged and convicted for section 20 offence. She appealed and the COA substituted the convicted
to S47. She further appealed to the HOL on the basis of R v Spratt that she neither intended or foresaw ABH.

The HOL upheld the COA decision. Overruling Spratt that Cunningham recklessness (subjective) is not
required for ABH and confirming Roberts. It held that for ABH, no MR is required as to the harm and,
causing the harm must be decided by reference to what the reasonable man would expect as a natural
consequence. Note: the MR for Assault & battery must be proved but there is no requirement to prove MR for
the injury on what a reasonable man would expect.
 Assault: Actual Bodily Harm (abh) S47

What is actual bodily harm?

This has been defined as any hurt or injury calculated to interfere with the health or comfort of the V. It need not be
serious or permanent but must be more than trifling or transient; R v Donovan [1934] approved by R v Miller [1954] 2
QB 282 where a husband was not guilty of raping his wife but guilty of S47 because he used force.

Bodily harm generally covers harms that are more serious than scratches and bruises and does not require injury to
living tissue. Note however, that in Jamaica, these types of injuries falls with ABH. So, in R v Chan-Fook [1994] 1
WLR 689, the D assaulted the V whom he suspected of stealing his fiancé’s ring and locked him in a room. He tried to
escape and suffered bodily injuries. The P’s indictment showed that he suffered psychological harm. Hobhouse LJ
stated:
 R v Chan-Fook, Hobhouse LJ

“The body of the V include all parts of his body including his organs, his nervous system and his brain. Bodily injury
therefore may include injury to any of those parts of his body responsible for his mental and other faculties… it does not
include mere emotions such as fear or distress nor panic nor does it include, as such, states of mind that are not
themselves evidence of some identifiable clinical condition. So, the appeal was allowed on the basis of the P’s failure to
call expert evidence but this judgement paved the way for R v Ireland and Burstow”.

A momentary loss of consciousness can amount to ABH where the D kicked the V whilst he was on the ground causing
momentary loss of consciousness; R (on the application of T) v DPP.
 DPP v Smith [2006] EWHC 94 (Admin)

The D cut the V’s hair without causing any other injury. The TJ upheld a no case submission on the basis that cutting the
hair does not amount to ABH. The P appealed and the HC allowed the appeal. Ordinarily, this will amount to battery
however, in this case it was a substantial amount of hair to amount to ABH. Judge LJ said:

“In my judgement, whether it is alive beneath the surface of the skin or dead tissue above the surface of the skin, the hair
is an attribute and part of the body. It is intrinsic to each individual and to the identity of each individual… while it is so
attached, in my judgment it falls within the meaning of bodily in the phrase actual bodily harm.
… the respondent’s action in cutting off a substantial part of the V’s hair in the course of an assault on her like putting
paint on it or some unpleasant substance which marked or damaged it without causing injury elsewhere is capable of
amounting to ABH”.
Question

Do you believe that ABH can be committed by an omission?

 Section 20 Malicious wounding & GBH

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 a misdemeanor.

This section creates two offences:

1. Malicious wounding which need not be really serious harm; or
2. Malicious infliction of GBH

AR: Wounding or inflicting of GBH

MR: Maliciously (intention or Cunningham recklessness)
 AR: Wounding, what is it in law?

1. The case laws have established that there must be a break in the continuity of the whole skin. This
usually result in both the epidermis and dermis being broken; Moriarty v Brookes (1834) 6 C&P 684.
2. A scratch or graze is not a break in the continuity of the skin neither is a scratch that breaks the outer
skin but does not break the inner; R v McLoughlin (1838) 8 C&P 635.
3. An internal rupture of a blood vessel such as in the eye is not a wound; C (a minor) v Eisenhower
[1984] QB 331.
4. Where the bone is broken and there is no break in the continuity of the skin, it is not a wound; R v
Wood (1830) 1 Mood CC 278.
5. A rupture of the inner skin of the cheek or urethra resulting in bleeding is a wound; R v Waltham
(1849) 3 Cox CC 442.
 AR: GBH, what is it in law?

Do you recall from the lecture on Homicide and how the courts define GBH? Refer back to you notes
however, as a reminder in DPP v Smith [1961], it was stated the GBH is really serious harm.

The injury does not need to be life threatening or permanent and the circumstances of the case must be taken
into consideration by the jury. These circumstances may include a child or a disability of the V. Usually
cases concern where there is some permanence in the injury such as disability or disfiguration, broken or
displaced bones, fractured skull, loss of substantial blood, lengthy incapacity and serious psychiatric harm.

Please note that GBH can result without wounding such as a broken bone.
 What in law is infliction?

This does not require that there be an assault or battery. It once had the narrow meaning that there need to be force
applied. No need for the application of force and need not be with a weapon as the definition statutes. In R v Clarence
(1888) 22 QBD 23, a husband gave his wife gonorrhea through consensual sexual intercourse but concealing from her his
status. He was convicted for Sections 20 & 47 offences and successfully appealed. It was at that time that the P had to
prove the prior assault for both offences. Consensual sexual intercourse was not an unlawful act of violence.

This decision was overruled in R v Wilson [1984] AC 242, the D assaulted the V during a fit of road rage. The D was
arrested and charged with S20 offence. The HOL held for this offence to suffice, there may be a direct assault or an
indirect assault on the V. “grievous bodily harm may be inflicted, contrary to [section 20], either where the accused has
directly and violently ‘inflicted’ it by assaulting the victim, or where the accused has ‘inflicted’ it by doing something,
intentionally, which, though it is not itself a direct application of force to the body of the victim, it does directly result in
force being directly applied violently to the body of the victim so that he suffers grievous bodily harm”
 What in law is infliction?

Recall from the facts of R v Ireland & Burstow where silent phone calls were held to amount to assault. Please read the
judgment in full as this judgement has 2 cases that were considered by the HOL.

Specific to this issue are the facts of Burstow and the judgment of Lord Hope of Craighead “The question is whether there
is any difference in meaning, in this context, between the word "cause" and the word "inflict". The fact that the word
"caused" is used in section 18, whereas the word used in section 20 is "inflict," might be taken at first sight to indicate
that there is a difference. But for all practical purposes there is, in my opinion, no difference between these two words.
In Reg. v. Mandair [1995] 1 A.C. 208, 215B Lord Mackay of Clashfern L.C., said that the word "cause" is wider or at
least not narrower than the word "inflict." I respectfully agree with that observation. But I would add that there is this
difference, that the word "inflict" implies that the consequence of the act is something which the victim is likely to find
unpleasant or harmful”.
 What in law is infliction?

“In the context of a criminal act therefore the words "cause" and "inflict" may be taken to be interchangeable. As the
Supreme Court of Victoria held in Salisbury [1976] V.R. 452, it is not a necessary ingredient of the word "inflict"
that whatever causes the harm must be applied directly to the victim. It may be applied indirectly, so long as the
result is that the harm is caused by what has been done. In my opinion it is entirely consistent with the ordinary use
of the word "inflict" in the English language to say that the appellant's actions "inflicted" the psychiatric harm from
which the victim has admittedly suffered in this case. The issues which remain are issues of fact and, as the appellant
pled guilty to the offence, I would dismiss his appeal”.
The HOL set out a wider meaning to the word “inflict” which can either be direct application
(assault/battery) or indirect (doing something to cause injury; Burstow). This changed the law
established in Clarence and was overruled in R v Dica EWCA Crim 1103 where the D knowingly had
unprotected sex with two women and was HIV positive.
 R v Dica, Lord Justice Judge

The effect of this judgment in relation to s.20 is to remove some of the outdated restrictions against the successful
prosecution of those who, knowing that they are suffering HIV or some other serious sexual disease, recklessly
transmit it through consensual sexual intercourse, and inflict grievous bodily harm on a person from whom the risk is
concealed and who is not consenting to it. In this context, Clarence has no continuing relevance. Moreover, to the
extent that Clarence suggested that consensual sexual intercourse of itself was to be regarded as consent to the risk of
consequent disease, again, it is no longer authoritative. If however, the victim consents to the risk, this continues to
provide a defence under s.20. Although the two are inevitably linked, the ultimate question is not knowledge, but
consent. We shall confine ourselves to reflecting that unless you are prepared to take whatever risk of sexually
transmitted infection there may be, it is unlikely that you would consent to a risk of major consequent illness if you
were ignorant of it. That said, in every case where these issues arise, the question whether the defendant was or was
not reckless, and whether the victim did or did not consent to the risk of a sexually transmitted disease is one of fact,
and case specific.
 Important

As was indicated earlier, the wider interpretation of the various sections of the OAPA has now covered
psychiatric injury and sexual transmitted disease. It is not limited to these categories and there may well
be other categories that will be covered.

The effect of Dica and Burstow is to widen the meaning of inflict and to capture the various avenues
by which a person may inflict harm upon another without physically touching them. There is no need
for the P to prove assault or battery for section 20 offence.
 Mens Rea for Section 20

Intention or recklessness (subjective) is required for the mens rea. Intention is usually the same for assault and battery.
R v Mowatt [1968] 1 QB 421.

Please read the Judgment of R v Savage, Paramenter and Spratt to have a full understanding of how the judges
explain the issue of mens rea. In Paramenter he caused injuries to his son. The court conclude by Lord Ackner:
“My Lords, I am satisfied that the decision in Mowatt was correct and that it is quite unnecessary that the accused
should either have intended or have foreseen that his unlawful act might cause physical harm of the gravity described
in section 20, i.e. a wound or serious physical injury. It is enough that he should have foreseen that some physical
harm to some person, albeit of a minor character, might result”.
 Mens Rea for Section 20

All that is required for MR is that the D intended to cause some harm or foresee that some harm may
occur. The P need not prove that the D intended or foresee the kind or harm that occurred, the degree or
gravity of it.

What about negligence? There is a correlation between the two however, negligence does not form the MR
for S20 offence. In R v Brady [2007] EWCA Crim 2413 the D drunkenly perched on a night club
balcony and lost his balance falling on the dance floor and severely injuring the V. He would be guilty if
he realized that some harm would follow from his action and he unreasonably took that risk. Accidents can
be reckless where one knowlingly took a risk when he foresees some harm. It is my opinion that this still
amounts to recklessness and has no correlation.
 Wounding & causing GBH with Intent

Section 18: 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…

AR: maliciously and unlawful wounding

maliciously and unlawful causing of GBH

MR: intention to cause GBH/resist arrest.

This is the more serious of the three offences which is a specific /ulterior intent crime which the D intends to cause
harm beyond the AR of the crime.
 Wounding & causing GBH with Intent

AR: this is the same for section 20 and all applies. To note, the wording of this section states that the GBH can be “caused”
by the D. there is no difference with the requirement of inflicting and causing. The rules of causation applies.

MR: the P must prove that the D intent was cause really serious bodily injury. Any intent to simply cause a wound is
insufficient; R v Taylor [2009] EWCA Crim 544. albeit the word malicious is present in the definition of the offence, it
does not carry the recklessness requirement for MR. Based on the fact this offence is a specific/ulterior intent crime,
recklessness will not suffice. Note that in the course of an arrest, where the D wounds or cause GBH in preventing or
resisting arrest the MR is intention. The general application of intention applies here. That is; direct and indirect intention.

Depending on the nature of the injury, the P can indict the D for this offence and in the alternative S20 if they fail to prove
the requisite intention.
 Consent as a defence to an assault

Consent is a justificatory defence and synonymous to assault as with sexual offences. Some of the
principles surrounding consent that we have gone through when we looked at the Sexual Offences Act
particularly sections 74, 75 & 76 applies here. Once there is a valid consent, this may negative any
criminal liability specifically the AR element. The court have interceded in some cases where consent
has been given to rule that it is invalid. This is a question of fact for the jury and it may be expressed or
implied.

The courts as general rule governs consent in two categories:

1. Incapacity or fraud
2. Public interest.
 Consent: capacity

It is trite law that one must have the capacity to consent for it to be valid. This in general is a question of competence,
intelligence & understanding. Simply put, the V may lack the capacity based on age, mental or physical disability.

Age: there is no age specificity prohibiting one from consenting when it comes to assault. The HOL in Gillick v Wisbech
& West Norfolk AHA [1986] AC 112 held that a combination of maturity, understanding and intelligence was more
important than age. This was case where the mother of a girl U16 sought a declaration that it was unlawful for GPs to give
confidential advice to teenagers U16 regarding contraception as girls of that age lacked the capacity to consent.

In Burrell v Harmer [1967] held that two boys aged 12 &13 were unable to consent to tattooing as they had no
understanding of the nature of the act and could not consent.
 Consent: Fraud

Recall S76 of the Sexual offences Act. The irrefutable presumption that a deception as to the identity and as
to the nature and purpose of the act vitiates consent. The same rule applies with assault.

In Bolduc v Bird [1967] a Canadian case, a MD with consent of the V performed an intimate examination on
her in the presence of a friend whom he said was medical student when this was not so. His conviction for
indecent assault was overturned as there was no deception as to the nature nor the identity of the doctor.

In R v Richardson [1998] 3 WLR 1292, the D a dentist had been suspended from practice and continued
practicing whilst drunk on 6 patients and convicted of ABH. She was acquitted as there is no deception as to
her identity. Her status does not change her identity.
 Consent: Quality

You will refer to the subject guide and your lecture notes on consent for the Sexual Offences Act
and read over that aspect. The same principles applies here.

However, as a general reminder, see the case of R v Tabassum who was convicted for indecent
assault as the women consented to the nature of the act and not its quality when he examined their
breast falsely stating that he was preparing a medical dossier.

This case paved the way for the decision in R v Dica and STDs. One who intentionally or
recklessly infects another with STD can no be culpable. The courts have said that there must be
disclosure, meaning, the consent must be informed as to the status.
 Consent: fraudulently induced consent

In R v Konzani [2005] EWCA Crim 706, the D was informed that he was HIV positive and transmitted the disease to 3
partners through consensual intercourse concealing his status from them. He was convicted for inflicting GBH S20. He
argued that by the Vs consenting to unprotected sexual intercourse, each had implicitly consented to all the risks
associated with it. Judge LJ said:

“There is a critical distinction between taking a risk of the various, potentially adverse and possibly problematic
consequences of sexual intercourse, and giving an informed consent to the risk of infection with a fatal disease. For the
complainant's consent to the risks of contracting the HIV virus to provide a defence, it is at least implicit from the
reasoning in R v Dica, and the observations of Lord Woolf CJ in R v Barnes confirm, that her consent must be an
informed consent. If that proposition is in doubt, we take this opportunity to emphasise it. We must therefore examine its
implications for this appeal”.
 R v Konzani: Judge LJ

“The recognition in R v Dica of informed consent as a defence was based on but limited by potentially conflicting
public policy considerations. In the public interest, so far as possible, the spread of catastrophic illness must be
avoided or prevented. On the other hand, the public interest also requires that the principle of personal autonomy in
the context of adult non-violent sexual relationships should be maintained. If an individual who knows that he is
suffering from the HIV virus conceals this stark fact from his sexual partner, the principle of her personal autonomy is
not enhanced if he is exculpated when he recklessly transmits the HIV virus to her through consensual sexual
intercourse. On any view, the concealment of this fact from her almost inevitably means that she is deceived. Her
consent is not properly informed, and she cannot give an informed consent to something of which she is ignorant.
Equally, her personal autonomy is not normally protected by allowing a defendant who knows that he is suffering
from the HIV virus which he deliberately conceals, to assert an honest belief in his partner's informed consent to the
risk of the transmission of the HIV virus. Silence in these circumstances is incongruous with honesty, or with a
genuine belief that there is an informed consent. Accordingly, in such circumstances the issue either of informed
consent, or honest belief in it will only rarely arise: in reality, in most cases, the contention would be wholly artificial.
 Consent: Violence

Consent is generally a defence to assault and battery but it is not when it comes to the use of violence. As a
consequence, Section 18, 20 & 47 has been regulated by the courts under the doctrine of public interest,
that consent should not vitiate the actus reus for these offences depending on the circumstances. So, in a
private boxing match between Tom and Joe Grind to settle their differences, this will not absolve them of
the crime albeit consensual as opposed to Manny Pacquiao v Floyd Mayweather which is a properly
conducted sports.

The public interest allows for male (not female) circumcision, tattooing, body piercing, cosmetic surgery
and other medical surgeries. Any other forms of assault that includes violence that is not governed by the
public interest will fall to be criminal.
 AG’s Ref No.6 of 1980 [1981] 2 ALL ER 1057

Two men decided to settle an argument by fighting and one sustained a bleeding nose and bruises. The other
man (D) was convicted of ABH. The COA held that his consent to the fight and injuries were not in the public’s
interest for people to cause ABH without good reason whether the act is in public or private. Lord Lane stated:

“Nothing which we have said is intended to case doubt on the accepted legality of properly conducted games
and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions etc.”

All the precursor to this slide is evident in this judgement.

 Consent: Violence

One of the cases before AG’s Ref that dealt with the issue of public interest policy is Rex v Dononvan [1934] 2 KB 498. The
D had invited the V a 17 years old female to his garage with a full understanding and consenting to being beaten with a cane
for his sexual gratification. The D was convicted for indecent assault & assault. He appeal which was dismissed was on the
ground of insufficient direction however, the court held that consent to infliction of bodily harm (an unlawful act) does not
make it lawful.

In R v Boyea (1992) Crim LR 574, the D inserted his fist into the V’s vagina and twisted it causing internal and external
injuries. Albeit consent was not an issue, the court (ratio decidendi) held that consent even if given would be irrelevant because
the injuries were more than transient.

In the next case, the HOL by simple majority had to decide on homosexual sado-masochistic encounters which result in
injuries between consenting males in private without coercion and whether or not this breach the Ds right to privacy et al
pursuant to their ECHR rights.
 Consent: Violence

R v Brown [1993] 2 ALL ER 75; the Ds were engaged in homosexual sado-masochistic activities and were charged for
inflicting torture and violence to the Vs (minors) buttocks, anus, penis, testicles and nipples. The were branded, wounded
with instruments and humiliated and degraded with excrements and urines. The sight of blood produced excitements for
the Ds who were also Vs. Some of them were infected with HIV & AIDs albeit not from these encounters claimed the
instruments used were sanitized. In the end, the police whilst conducting a search found video recordings of the encounters
and they were charged and convicted. The COA certified the following question to the HOL:

"Where A wounds or assaults B occasioning him actual bodily harm in the course of a sado-masochistic encounter, does
the prosecution have to prove lack of consent on the part of B before they can establish A's guilt under section 20 and
section 47 of the 1861, Offences Against the Person Act?"
 Consent: Violence

Lord Templeman: Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the
infliction of pain is an evil thing. Cruelty is uncivilised. I would answer the certified question in the negative and dismiss the
appeals of the appellants against conviction.

Lord Jauncy of Tullichettle: The activities of the appellants thus went far beyond the sort of conduct contemplated by the
legislature in the foregoing statutory provisions and I consider that they were unlawful even when carried out in private. In
these circumstances there exists no reason why the appellants should not have been charged under the Act of 1861.

You should read this judgement especially that of Lord Mustill who gave the leading dissenting judgment.
 R v Brown and its important points

The majority conclude that public policy grounds forbids these acts and make them criminal. Consent and individual
rights were secondary to public policy. These acts could not fall within the protection of public policy and are unlawful.
ABH, wounding or GBH in lawful activity can be consented to however, it cannot be consented to in sado-masochistic
encounters where violence is used which is more than transient.
Consent is not an element of assault and the P does not need to prove lack of consent. Consent is a defence to assault,
battery and indecent assault.
The Ds right pursuant to article 7 & 8 which is retroactive trial and punishment and right to privacy, his home and
correspondence respectively were not violated.
The dissenters allowed the appeals that the Ds were entitled to free and full consent, right to individual autonomy and the
OAPA was an unwarranted interference with private consensual sexual activity which was not the intention of legislation
prohibiting therefore, the acts were lawful.
 What in law amounts to ABH or greater?

In R v Wilson [1996] 3 WLR 125, the D branded his wife on her buttocks of his initials with a hot knife with her
consent. The skin became infected and he was charged. The COA allowed his appeal on the grounds that the V
onsented, this was a personal adornment and is not different from a tattoo, there was no aggressive intent and was
within the allowable public interest activity between a husband and a wife. The court perhaps adapted Lord Mustill’s
judgment in coming to its decision.

In R v Emmett (1999) Unreported, The Independent 19 July, the V as part of a heterosexual activity consented to
the D, to have a plastic bag over her head causing her to become unconscious and on another occasion, lighter fuel
were poured over her breasts and set alight which caused burns and became infected. The COA held on his appeal that
consent was no defence to masochistic activity which is prima facie unlawful and contrary to public interest. Wilson
applied.
 Public Interest exceptions

Surgery, tattooing, bod alteration; there must be informed consent (in writing after full and complete explanation and
disclosure). Consent will be given by parents/guardian for minors and persons who lack capacity to consent. Incision of
the cheeks as a practice in foreign cultures are prohibited in the UK. Adesanya (1974) The times, 16 July

Boxing, wrestling, martial arts and other sports of the kind; these are called legitimate/organized sports that are
govern by rules and regulations. The point can be made that these activities will result in far more injuries than in
Brown because the injuries were not serious.

Football/soccer, Rugby and other sports of the kind; these are similar to those above however, on a less likely event
of causing ABH. In R v Barnes [2005] 1 WLR 910, the D was charged with S20 GBH for a crushing tackle which was
late, unnecessary, reckless and high tackle on an opponent.
 R v Barnes

The issue which this appeal raises, is an important one. It goes to the heart of the question of when it is appropriate for criminal
proceedings to be instituted after an injury is caused to one player by another player in the course of a sporting event, such as a
football match. It is surprising that there is so little authoritative guidance from appellate courts as to the legal position in this
situation. The explanation for this may be the fact that, until recently, prosecutions in these circumstances were very rare. However,
there is now a steady but, fortunately, still modest flow of cases of this type coming before the courts, and thus the need for guidance.

In determining what the approach of the courts should be, the starting point is the fact that most organised sports have their own
disciplinary procedures for enforcing their particular rules and standards of conduct. As a result, in the majority of situations there is
not only no need for criminal proceedings, it is undesirable that there should be any criminal proceedings. Further, in addition to a
criminal prosecution, there is the possibility of an injured player obtaining damages in a civil action from another player, if that other
player caused him injuries through negligence or an assault. The circumstances in which criminal and civil remedies are available
can and do overlap. However, a criminal prosecution should be reserved for those situations where the conduct is sufficiently grave
to be properly categorised as criminal.
 R v Barnes

When criminal proceedings are justified, then, depending upon their gravity, the prosecution can be for: assault; assault occasioning
actual bodily harm contrary to Section 47 of the 1861 Act; unlawfully wounding or inflicting grievous bodily harm contrary to Section
20 of the 1861 Act; or wounding or causing grievous bodily harm with intent contrary to Section 18 of the 1861 Act. If, unfortunately,
death results from the assault, the charge could be one of manslaughter or even murder depending upon the defendant's intent.

When no bodily harm is caused, the consent of the victim to what happened is always a defence to a charge. Where at least bodily harm
is caused, consent is generally irrelevant because it has been long established by our courts that, exceptional situations apart, as a matter
of law a person cannot consent to having bodily harm inflicted upon him.

To this general rule, there are obvious exceptions. A patient can lawfully consent to having an operation performed upon him by a
surgeon, even though he will inevitably suffer bodily harm while the operation is being performed. Another exception is physical injury
in the course of contact sports such as football or boxing. Boxing is different from football in that it is inherent in boxing that the
combatants intend to injure each other. This should not be the position in football, albeit that taking part in a football match does give
rise to a risk of injury and even grievous injury.
 R v Barnes

We appreciate the difficulty that the judge had summing up this case because of the state of the authorities. The concept
of "legitimate sport" in itself is not unhelpful. However, it required an explanation of how the jury should identify what is
and what is not "legitimate" in the context of the relevant sport. The case called out for the jury to be given help as to the
approach they should adopt in determining what is or is not "legitimate sport". The judge should have given the jury a
direction to determine for themselves what actually happened at the critical time when the injury was inflicted. Broadly
speaking, were they satisfied that the case for the prosecution was correct? They should have been told that if they were
not, and they thought that the appellant's description of what occurred might be correct, then that was in all probability
the end of the case. It should have been pointed out to the jury that even if the offending contact was a foul, it was still
necessary for them to determine whether it could be anticipated in a normal game of football or was it something quite
outside what could be expected to occur in the course of a football game. The summing-up should also have made it clear
that even if a tackle results in a player being sent off, it may still not reach the necessary threshold to constitute criminal
conduct.
 R v Barnes

The jury were not given any examples of conduct which could be regarded as "legitimate sport" and those which were
not "legitimate sport" for the purposes of determining whether they were criminal. The jury did not need copies of the
rules, but they did need to be told why it was important to determine where the ball was at the time the tackle took place.
They should have been told the importance of the distinction between the appellant going for the ball, albeit late, and his
"going for" the victim.

When answering an examination question, you must look at the facts carefully and take into consideration the entire
facts of the question. Although legitimate sports are public policy exceptions, it doesn’t create a blanket immunity to one
who engage in intentional and deliberate infliction of injury to another. It is also necessary to explain the starting point
that there will be expectations of some injury in contact sport and the injury can be more than transient however it does
not necessary amount to a criminal conduct.
 Public Interest exceptions cont’d

Horseplay; the law allows for consent whether expressed or implied during horseplay. This is so especially between
children. Rough horseplay are deemed likely to cause injury, but they do fall within the exception. See R v Jones
(1986) 83 Cr App R 375.

Sexual relations & encounters; for the cases of Slingsby, Brown, Wilson and Emmett, shows that there is autonomy
for people to engage in private sexual encounters that cause pains. This falls within the public policy and is protected.
The moment the infliction of pains and injury amount to ABH or greater, public policy intervenes, and it now becomes
criminal.
Pop quiz

1. If a jeweler pierces another adult’s tongue, nipple, navel or genitals at their request and
with their consent, is he acting unlawful if:
 He derived a secret sexual pleasure from his work?
 He pierced his wife’s clitoris for sexual pleasure?
 He pierced his male partner’s genital for sexual gratification?
 He branded his male partner’s penis and buttocks for sexual pleasures

1. Sandy 12 playfully put her leg out during horseplay and trip John who fell and broke his
hand, is she liable?
2. Sam saw Ban walking down some stairs and saw that ice was on it. He said nothing to
Ban who slipped and fell. Is Sam liable?
 Sample exam question for discussion

John was walking home having just beaten Roger in a fight. They had fought because Roger was angry at John having
carved the letter J onto Amy’s arm who was Roger’s wife and begged John to do so as she was in love with him. The
wound was neither big nor deep although it required one stitch. Both men decided to settle this by fighting during which
John knocked Roger unconscious causing a fractured skull. John ran away.

John whilst walking home was approached by Carla a beggar who had her baby in her hands. This incensed John who
hated beggars and pushed her causing her to fall and drop the baby causing a swollen harm to the baby.

The police caught up with John and PC Mills tried to arrest him, but John pushed him out the way in an attempt to
escape causing PC Mills to stagger and in trying to avoid falling, held on to a window louvre which broke and severed
his little finger.
Discuss John’s criminal liability