G153 Criminal Law

NON FATAL OFFENCES AGAINST THE PERSON.

AO1 KNOWLEDGE
For this topic you need to be able to explain the following terms,
with cases, and explain the scope of each offence: Common assault Common Battery Assault occasioning actual bodily harm Malicious wounding and inflicting grievous bodily harm Wounding or causing grievous bodily harm with intent.

This means you need to know the actus reus and the mens rea requirements for each, their maximum sentences and the sort of harm that they cover.

AO2 KNOWLEDGE

You will also need to be able to: evaluate the reform proposals for this area of law, criticise the state of the current law.

HOMEWORK:

Law has no coursework, and as such, the homework is an important assessment tool to evaluate your work in the subject. You are reminded that if a homework is not handed in on time, you will have 24 hours to get it to your teacher; otherwise you will receive a U for your work, which may result in your withdrawal from the examination: Looking at the notion that recklessly transmitting a disease may constitute s.20 GBH, read the following article(s) and complete the short paragraphs on p. 19: http://news.bbc.co.uk/1/hi/health/5282806.stm & http://www.timesonline.co.uk/tol/life_and_style/health/features/article1101221.ece

END OF UNIT ASSESSMENT:

Once we have also looked at the defences of consent and self-defence, you will have one week to revise for a 60 mark DRAG test on the topic. You will also be set the following past question, which will be planned in class and written up for homework.
Sinita and Mina share a flat. One night Sinita finds Mina kissing Sinitas boyfriend, Alberto. She picks up a glass of water, raises it in the air and shouts at Mina, You hussy, Ill kill you! She tries to throw the water at Mina but the glass slips from her hand and strikes Mina in the face cutting her forehead. Alberto is so angry that he pushes Sinita and she falls backwards over a stool onto the floor and is knocked unconscious for a few seconds. When Sinita recovers consciousness she is still dizzy and stumbles towards Mina knocking her onto the floor. Mina suffers a fractured arm. Later that evening, when Sinita is sleeping, Mina gets a pair of scissors and cuts off Sinitas ponytail in an act of revenge. Discuss the potential criminal liability of Sinita, Alberto and Mina for the above incidents. [50]

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ASSAULT AND BATTERY

Well, firstly, these are two separate offences. They are offences, which means that their definitions come from the courts, but they are charged under s.39 Criminal Justice Act 1998. This states that on conviction, D may be sentenced to up to 6 months in custody or a fine of 5000. These offences will be heard in the court. Please note: It is perfectly possible for D to be charged with both, or just one offence. Read the three situations below, and use them to work out what the difference between the two offences is. ASSAULT OR BATTERY? 1. Bob runs up to Viv and screams, Im going to hit you! Unfortunately, before he can hit her, he trips up. 2. Bob runs up to Viv and screams, Im going to hit you! and cuts her hair 3. Bob sneaks up on Vaviv from behind and hits her over the head.

ASSAULT.
This is also known as technical or psychic assault. Why? Well, you dont have to actually touch the victim. What is important here is that the victim thought that they would be assaulted (or apprehended)

Definition:
an act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful violence. R v Venna

So, what does this mean?

Apprehend?
This does not mean fear. Why not? . What it means is that V should be aware (or believe) that something violent may happen. The threat of violence is enough and it does not have to be carried out, or in fat be able to be carried out. What matters is the perception of V. 2

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Immediate?
For this, we need to look at two different cases. The word immediate has been given quite a wide interpretation by the courts, and is now taken to really mean . This means that the violence doesnt have to take place then and there, but may take place at some time in the near future. The threat must also be of violence.

Smith v Chief Superintendent of Woking Police Station (1983) Facts: Ratio: Immediate means , and not necessarily instantaneous. It is enough that there is an apprehension of what D might do next Kerr LJ.

R v Constanza 1997 CA Facts:

Ratio: The assault arises from the fact that V does not know what is coming next. How apprehension arose in V is unimportant. The only important thing is that V apprehended the violence occurring at some time not excluding the immediate future. Schiemann LJ

Would the court have handed down the same result if D had not lived near to V? Why/why not?

Unlawful?
Do I really need to explain this? If the action is lawful, there is no assault. E.g. a stop and search.

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Are mere words enough?

Well, the short answer is yes! In fact, a gesture is sufficient Just think, if someone raises a bat to you, you will feel threatened even though they might not have said anything. This however has not always been the case. [Meade and Belt 1823] Originally it was thought that only if there was some kind of physical threat as well, would D be convicted. You should also remember that D can negate the assault through the words that he says. Generally speaking, if the words show that no violence will be taking place, or it is impossible, then there can be no offence of assault. It is the circumstances of the threat which are all important.

The classic example is the idiot who yells out of a moving train, Im gonna beat you up!
Why is there no assault in this situation?

TASK: Compare the facts in the following two cases. Why was the decision in Light so different to the earlier?

Tuberville v Savage 1669

Facts: D was arguing with V, put his hand on his sword and said, If it were no assize time, I would not take such language from you.

R v Light 1857
Facts: D held the sword above his wifes head and said, Were it not for the bloody policeman outside, I would split your head open.

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R v Ireland 1997 *Absolute KEY CASE*

this is a key case, and was the subject of a joint appeal with Burstow, which we will come back to later. You know the drill... read the law report at the back, and answer the following questions. 1. What had Ireland done? 2. What offence had he been charged with? 3. Why does Steyn argue that words (or gestures) are sufficient for assault?

4. How were the facts of Ireland not covered by the idea that words may be enough for assault?

5. What is the key ingredient in assessing whether Irelands actions had constituted an assault?

6. What is the test that will be put before the jury?

7. How does Lord Hope justify upholding the conviction?

8. Do you agree?

Consolidation
Complete the following table for the AR and MR of assault. Give an example for each. Actus Reus Mens Rea

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BATTERY
Battery differs from assault in that it requires an application of unlawful force to another person. This often charged with assault, and is also a summary offence attracting the same sentence [ ]. However, it is perfectly possible to convict D only of battery. If V is asleep or D creeps up on V unheard and then hits them, this is battery! Why?

Please also bear in mind that many situations where you might think that there was battery e.g. an overcrowded bus, are also said to be situations where there is implied consent. More about this later but what do you think it means?

So, what do we mean by unlawful force?

Collins v Willock 1984 Facts: V was a police officer who tried to stop D leaving, as she thought she was a prostitute. D refused and walked off. V then took arm and D fought back , scratching the arm and being abusive. Ratio:

IT HAS LONG BEEN ESTABLISHED THAT ANY TOUCHING OF ANOTHER PERSON, HOWEVER SLIGHT, MAY AMOUNT TO BATTERY GOFF LJ
Do you agree with this statement? What limitations do you think should be put on this offence?

Listen to the facts of R v Thomas (1985). Is this a realistic interpretation of the law? Why do you think that the judges allowed this?

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Does the touching have to be hostile?

We would assume so, really, and the current approach of the law seems to be yes, it should be hostile.

Why? Well, keep a list of all the people you come into contact with in one day how many of those
situations could be described as battery? The current idea is that hostility is not enough on its own, but is very useful to the courts in deciding whether new situations could be hostile situations [Lord Mustill in R v Brown 1993, approving Wilson v Pringle which is actually a civil case. ]

Can it be done indirectly? This means:

Ooh, I like these easy questions! YES!!! V doesnt have to have seen it coming. R v Martin 1881 Facts: Ratio:

DPP v Khan (1990) otherwise known as the look, I told you the school toilets were dangerous! case. Facts Ratio:

Listen to the facts of the following case. Which doctrine (rule) which we have come across earlier in the course is being illustrated here? Haystead v CC of Derbyshire 2000 Facts:

Ratio:

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There is one last case that I should mention here as well Fagan v Metropolitan Police Commissioner 1983. What does this illustrate about battery and the application of force?

Hmmm... what were the facts of that case again?

What about omissions?

Usual rule: This means that D would only be liable if....

Revision:
Duty situations?

Consolidation for battery Actus Reus Mens Rea

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ASSAULT OCCASIONING ACTUAL BODILY HARM

Definition
This is covered by s.47 Offences Against the Person Act 1861. THE OFFENCE IS COMMITTED WHEN A PERSON ASSAULTS ANOTHER, THEREBY CAUSING ACTUAL BODILY HARM, WHICH IS AN EITHER WAY OFFENCE AND CARRIES A MAXIMUM PENALTY ON INDICTMENT OF FIVE YEARS' IMPRISONMENT AND/OR AN UNLIMITED FINE NOT EXCEEDING THE STATUTORY MAXIMUM. TASKS: 1. Highlight the key words in the definition. 2. What do you think they mean? Annotate your highlighting!

So, what is the difference between this and common assault and battery? Well, really it is the level of harm done to V. See the guidelines on charging for the CPS at the back of the handout.

What does actual bodily mean?

This is given its ordinary meaning [Miller 1954] and includes any hurt calculated to interfere with the health or comfort of the victim. It needs to be more than merely transient or trifling. (this will be important for consent) In fact, according to Hobhouse LJ in R v Chan Fook 1994 as long as it not so trivial as to be insignificant that is sufficient. QUESTION: What if V just loses consciousness? How long is enough? R(T) v DPP 2003 Facts:

Ratio:

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It even included hair! DPP v Smith 2006 It is concerned with the victim. Occasioning means nothing more than causing.

Mens rea?
There is actually no reference in the section to MR. But the key element of the offence is , and therefore the mens rea is that of . Mens Rea: ; or Now, remember that there is no need for D to intend or be reckless as to whether the level of harm (ABH) actually results. This means that they might not even see the level of harm coming and still be liable for the consequences! What do I mean by this? Well.... or

R v Roberts 1971 Facts:

Ratio: The unlawful force used in trying to remove the coat was enough. Vs injuries were the natural consequence of Ds actions i.e. they could be reasonably foreseen. It was irrelevant that D neither intended the injury nor realised that there was a risk of injury.

This was confirmed in R v Savage, Parmenter 1991 *key case* Facts: Ratio:

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Psychiatric Harm this means:

Ok. So physical harm is clear youve been battered, grazed, bruised... but what about if you cause psychiatric harm to V? In other words there may be no physical damage, but it may affect your brain, or your emotions. Should D be responsible for this? R v Chan-Fook 1994 approved of in R v Burstow 1997 must know! Facts: Read the extract and answer the following questions: 1. What does the body include?

2. What is excluded from psychiatric harm?

3. What evidence should the prosecution advance?

4. Do they think there will be a lot of cases?

5. What is the outcome of the appeal? Do you agree? Why/why not?

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MALICIOUS WOUNDING OR INFLICTING GBH

Definition & sentences WHOSOEVER SHALL UNLAWFULLY AND MALICIOUSLY
WOUND OR INFLICT ANY GRIEVOUS BODILY HARM UPON ANY OTHER PERSON, EITHER WITH OR WITHOUT A WEAPON OR INSTRUMENTS SHALL BE GUILTY OF AN OFFENCE AND SHALL BE LIABLE TO IMPRISONMENT FOR NOT MORE THAN FIVE YEARS.

s.20 Offences Against The Person Act 1861

1. What is the mens rea? 2. What are the two types of actus reus which may be enough for the offence?

3. What is the sentence and how does this compare to a s.47 offence?

Wound?
Remember: this means a cut or break in the continuity of the skin. The cut has to go through all the layers of the skin. Now, if the assault causes a cut on the internal skin e.g. cheek, then that is sufficient. However, if the assault only causes internal bleeding, then that is not enough for wounding. What if V suffers a broken bone. Is that sufficient for wounding? Wood 1830

JCC v Eisenhower 1983 Facts:

Ratio:

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Meaning of GBH
Remember, that the meaning of this is the same here, as for both s.18 and does it mean? . What, though,

DPP v Smith 1961 says that GBH means no more and no less than really serious harm although that may not be life threatening. (helpful huh?).

The CA modified this in R v Saunders 1985 saying that instructing the jury to consider whether the injuries were serious was sufficient. So, what if V is particularly young or unhealthy? Can the jury bear that in mind in assessing the harm?

R v Bollom 2004 Facts:

Ratio:

What do we mean by the word inflict especially when s.18 uses cause...
This is very widely interpreted! Well, this was another thing that used to drive the courts mad. One of the main differences between s.20 and s.18 is the verb usage! Section 18 uses cause and section 20 inflicts. Whats the difference? Well, before 1997 the idea was that cause was wider as confirmed by the House of Lords as late as 1995. However, in that old case of Ireland & Burstow HL finally decided that the words may be interchangeable(ish).

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Standard approach: R v Lewis 1974 Facts: Ratio:

Reg. v. Wilson (Clarence) 1984

New Approach: R v Ireland, Burstow

I am not saying that the words cause and inflict are exactly synonymous. They are not. What I am saying is that in the context of the Act of 1861 one can nowadays quite naturally speak of inflicting psychiatric injury. Moreover, there is internal contextual support in the statute for this view. It would be absurd to differentiate between sections 18 and 20 in the way argued on behalf of Burstow.

Why was this debate so important in the law?

Psychiatric Injury

Biological GBH

Back to... R v Burstow 1997 Facts: 1. Is an assault necessary for a conviction under s.20?

What does this mean?

2. Can you inflict a psychiatric injury?

How can you inflict it recklessly?

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So: all that needs to be shown is that Ds actions led to the consequence of some GBH being suffered, and no technical assault needs to be suffered.
What does this mean?

Realistically all of this means that there is little difference between s.18 and s.20. Why might that be a problem?

Maliciously (MR)
The courts have said that maliciously actually means.... !

The test followed is the subjective test laid out by R v Cunningham 1987, as confirmed in R v G&R:

So therefore, the mens rea for the section is either intention or subjective recklessness. It is enough that D foresaw some harm to some person, albeit of a minor character. R v Parmenter 1991 HL Facts:

Ratio:

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WOUNDING OR CAUSING GBH WITH INTENT.

The definition & four crimes. WHOSOEVER SHALL UNLAWFULLY AND MALICIOUSLY BY ANY MEANS WHATSOEVER WOUND OR CAUSE ANY GBH TO ANY PERSON, OR WITH INTENT
TO RESIST OR PREVENT THE LAWFUL APPREHENSION OR DETAINER OF ANY PERSON SHALL BE GUILTY OF AN OFFENCE AND BE LIABLE ON INDICTMENT FOR A SENTENCE OF UP TO AND INCLUDING LIFE.

s.18 Offences Against the Person Act 1861

Thus, there are four offences within the section: 1. 2. 3. 4.

Mens Rea
This is a crime of mostly specific intent, which means it can be done directly or obliquely. It requires an intention to either: 1. Do some GBH; or 2. (Resist or prevent the lawful apprehension or detainer of any person)

Intent for GBH

Well firstly, be careful: the courts have said that the word maliciously adds nothing to the definition ( R v Mowatt 1968)!!! Recklessness is not enough.

The test for oblique intention is the same as the test for oblique intent for murder. This means we need to look at some very familiar cases (remember all that stuff about foresight of consequences?)! Complete the following table with facts and tests: 16

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CASE
R v Moloney R v Nedrick R v Woolin

FACTS

TEST

What about Preventing Arrest?

The level of intention is lower here. Yes, there must be an intent to resist arrest, but the prosecution must also prove that D was reckless as to whether their actions would cause any wound or injury. R v Morrison 1989 Facts: Ratio:

Alternative convictions and the charging standards

The jury may convict D of a lesser offence if all the elements (particularly the MR) are not proven beyond reasonable doubt. e.g. s.47 in a s.20 offence (R v Savage 1992) s.20 in a s.18 offence (R v Mondair 1995)

Take care: a s.47 can not be replaced with a common assault or battery Why?

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Types of Injuries and the Charging Standards.

Because of all the problems in figuring out what to charge, the CPS has issued guidance on what should be charged when. A shortened version is included in the back of your handout.... do you agree? The full directions are on the blog should you wish to see them!

Charge Common assault & battery

Examples of harm

Aggravating factors

s.47 Assault occasioning ABH

s.20 Causing GBH or Wounding

s.18 Inflicting GBH or Wounding

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BIOLOGICAL GBH
Can you inflict GBH biologically? Well, for years the courts said no. The problem is the meaning of the verb inflict. Oh yes, an English lesson!!!

What can it mean?

Meaning of inflict

The traditional approach from the courts is that of Clarence 1888. This is the case of the husband who had gonorrhoea, slept with his wife (with her consent!) without telling her he was carrying the disease, and passed it on to her. He was convicted of GBH and assault occasioning ABH. However, his appeal was allowed. The reason was the narrower meaning of inflict. The court said that it meant causing an assault to take place. Can you cause a STD?

How might you criticize this approach?

In the meantime, Canada got fed up with this approach....

Cuerrier 1998 Facts: Ratio:

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Now, following the cases of Burstow & Ireland, inflict simply means to cause. How does this change the impact of the of biological GBH?

R v Dica 2004 CA *KEY CASE* Facts:

Ratio: Judge LJ remove some outdated restriction 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 GBH on a person from whom threat is concealed. Ds conviction was overturned due to misdirection, and a retrial ordered. He was convicted and sentenced to 4 years.

This was upheld in the later case of R v Konzami 2005

HOMEWORK
What problems might this incur? Having read the article[s]: http://news.bbc.co.uk/1/hi/health/5282806.stm http://www.timesonline.co.uk/tol/life_and_style/health/features/article1101221.ece On whether transmission of a disease should be an offence, complete two paragraphs below. The first, outlining the arguments that it should not be an offence, and the second outlining why it should be an offence. Should not

Should

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R v IRELAND; R v BURStOW [1997] 4 AER 225 Edited text [from elawstudent.com] SUMMARY Two appeals from conviction were considered together. The first appeal was by Burstow, a naval petty officer against dismissal of his appeal against conviction for inflicting grievous bodily harm contrary to s.20 Offences against the Person Act 1861 by stalking his victim. Burstow had stalked his victim and contended that the absence of direct or indirect physical violence could not amount to grievous bodily harm. The second appeal was by Ireland who appealed against dismissal of his appeal against conviction and sentence of three months imprisonment on three counts of assault occasioning actual bodily harm contrary to s.47 Offences against the Person Act 1861 by repeatedly making silent telephone calls accompanied by heavy breathing, to three women. Edited text IRELAND & ASSAULT

LORD STEYN: My Lords, it is easy to understand the terrifying effect of a campaign of telephone calls at night by a silent caller to a woman living on her own. It would be natural for the victim to regard the calls as menacing. What may heighten her fear is that she will not know what the caller may do next. The spectre of the caller arriving at her doorstep bent on inflicting personal violence on her may come to dominate her thinking That the criminal law should be able to deal with this problem, and so far as is practicable, afford effective protection to victims is self evident. Was there an assault? It is now necessary to consider whether the making of silent telephone calls causing psychiatric injury is capable of constituting an assault [which] is an act causing the victim to apprehend an imminent application of force upon her 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: Meades and Belts 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. 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 callers arrival at her door may be imminent. She may fear the possibility of immediate personal 21

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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 callers potentially menacing call or calls on the victim. [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 [assault] I would therefore dismiss the appeal of Ireland. LORD HOPE OF CRAIGHEAD: [I]t is not true to say that mere words or gestures can never constitute an assault. It all depends on the circumstances. If the words or gestures are accompanied in their turn by gestures or by words which threaten immediate and unlawful violence, that will be sufficient for an assault. The words or gestures must be seen in their whole context. In this case the means which the appellant used to communicate with his victims was the telephone. While he remained silent, there can be no doubt that he was intentionally communicating with them as directly as if he was present with them in the same room. But whereas for him merely to remain silent with them in the same room, where they could see him and assess his demeanour, would have been unlikely to give rise to any feelings of apprehension on their part, his silence when using the telephone in calls made to them repeatedly was an act of an entirely different character. He was using his silence as a means of conveying a message to his victims. This was that he knew who and where they were, and that his purpose in making contact with them was as malicious as it was deliberate. In my opinion silent telephone calls of this nature are just as capable as words or gestures, said or made in the presence of the victim, of causing an apprehension of immediate and unlawful violence. BURSTOW & WHETHER AN ASSAULT IS REQUIRED UNDER section 20 Counsel for Burstow then advanced a sustained argument that an assault is an ingredient of an offence under section 20. He referred your Lordships to cases which in my judgment simply do not yield what he sought to extract from them. In any event, the tour of the cases revealed conflicting dicta, no authority binding on the House of Lords, and no settled practice holding expressly that assault was an ingredient of section 20. And, needless to say, none of the cases focused on the infliction of psychiatric injury. In these circumstances I do not propose to embark on a general review of the cases cited Instead I turn to the words of the section. Counsels argument can only prevail if one may supplement the section by reading it as providing inflict by assault any grievous bodily harm. Such an implication is, however, not necessary. On the contrary, section 20, like section 18, works perfectly satisfactorily without such an implication. I would reject this part of counsels argument. BURSTOW & The meaning of inflict in section 20 The appeal of Burstow lies in respect of his conviction under section 20. Counsel laid stress on the difference between causing grievous bodily harm in section 18 and inflicting grievous bodily harm in section 20. Counsel argued that the difference in wording reveals a difference in legislative intent: inflict is a narrower concept than cause. This argument loses sight of the genesis of sections 18 and 20. In his commentary on the Act of 1861 Greaves, the draftsman, explained the position: The Criminal Law Consolidation and Amendment Acts, 2nd ed. (1862). He said (at pp. 3-4): If any question should arise in which any comparison may be instituted between different sections of any one or several of these Acts, it must be carefully borne in mind in what manner these Acts were framed. None of them was re-written; on the contrary, each contains enactments 22

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taken from different Acts passed at different times and with different views, and frequently varying from each other in phraseology, and...these enactments, for the most part, stand in these Acts with little or no variation in their phraseology, and, consequently, their differences in that respect will be found generally to remain in these Acts. It follows, therefore, from hence, that any argument as to a difference in the intention of the legislature, which may be drawn from a difference in the terms of one clause from those in another, will be entitled to no weight in the construction of such clauses; for that argument can only apply with force where an Act is framed from beginning to end with one and the same view, and with the intention of making it thoroughly consistent throughout. The difference in language is therefore not a significant factor ... But counsel submitted that it is inherent in the word inflict that there must be a direct application of force to the body [and there is] the troublesome authority of the decision Court for Crown Cases Reserved in Reg. v. Clarence (1888) 22 Q.B.D. 23 [in the Library]. At a time when the defendant knew that he was suffering from a venereal disease, and his wife was ignorant of his condition, he had sexual intercourse with her. He communicated the disease to her. The defendant was charged and convicted of inflicting grievous bodily harm under section 20. There was an appeal. By a majority of nine to four the court quashed the conviction. The case was complicated by an issue of consent. But it must be accepted that in a case where there was direct physical contact the majority ruled that the requirement of infliction was not satisfied. This decision has never been overruled. It assists counsels argument. But it seems to me that what detracts from the weight to be given to the dicta in Clarence is that none of the judges in that case had before them the possibility of the inflicting, or causing, of psychiatric injury. The criminal law has moved on in the light of a developing understanding of the link between the body and psychiatric injury. In my judgment Clarence no longer assists. The problem is one of construction. The question is whether as a matter of current usage the contextual interpretation of inflict can embrace the idea of one person inflicting psychiatric injury on another. One can without straining the language in any way answer that question in the affirmative. I am not saying that the words cause and inflict are exactly synonymous. They are not. What I am saying is that in the context of the Act of 1861 one can nowadays quite naturally speak of inflicting psychiatric injury.

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R v CHAN-FOOK [1994] 2 All ER 552 * from elawstudent.com HOBHOUSE LJ: Actual bodily harm are three words of the English language which require no elaboration and in the ordinary course should not receive any. The word harm is a synonym for injury. The word actual indicates that the injury (although there is no need for it to be permanent) should not be so trivial as to be wholly insignificant. The purpose of the definition in s.47 is to define an element of aggravation in the assault. It must be an assault which besides being an assault (or assault and battery) causes to the victim some injury. No doubt what is intended by those who have used these words in the past is to indicate that some injury which otherwise might be regarded as wholly trivial is not to be so regarded because it has caused the victim pain. Similarly an injury can be caused to someone by injuring their health; an assault may have the consequence of infecting the victim with a disease or causing the victim to become ill. The injury may be internal and may not be accompanied by any external injury. A blow may leave no external mark but may cause the victim to lose consciousness .... The first question on the present appeal is whether the inclusion of the word bodily in the phrase actual bodily harm limits harm to harm to the skin, flesh and bones of the victim. Lynskey J rejected this submission. In our judgment he was right to do so. The body of the victim includes 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 .... Accordingly the phrase actual bodily harm is capable of including psychiatric injury. But it does not include mere emotions such as fear or distress or panic nor does it include, as such, states of mind that are not themselves evidence of some identifiable clinical condition. The phrase state of mind is not a scientific one and should be avoided in considering whether or not a psychiatric injury has been caused; its use is likely to create in the minds of the jury the impression that something which is no more than a strong emotion, such as extreme fear or panic, can amount to actual bodily harm. It cannot. Similarly juries should not be directed that an assault which causes a hysterical and nervous condition is an assault occasioning actual bodily harm. Where there is evidence that the assault has caused some psychiatric injury, the jury should be directed that that injury is capable of amounting to actual bodily harm; otherwise there should be no reference to the mental state of the victim following the assault unless it be relevant to some other aspect of the case It is also relevant to have in mind the relationship between the offence of aggravated assault comprised in s.47 and simple assault. The latter can include conduct which causes the victim to apprehend immediate and unlawful violence To treat the victims fear of such unlawful violence, without more, as amounting to actual bodily harm would be to risk rendering the definition of the aggravated offence academic in many cases. In any case where psychiatric injury is relied upon as the basis for an allegation of bodily harm, and the matter has not been admitted by the defence, expert evidence should be called by the prosecution. It should not be left to be inferred by the jury from the general facts of the case. In the absence of appropriate expert evidence a question whether or not the assault occasioned psychiatric injury should not be left to the jury. Cases where it is necessary to allege that psychiatric injury has been caused by an assault will be very few and far between. Appeal allowed. Conviction quashed.

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Times Online October 15, 2003

Justice for HIV man who sentenced lovers to death

By Frances Gibb and Michael Horsnell
PEOPLE who knowingly make others ill could be liable to criminal prosecution after the conviction yesterday of a man who deliberately infected two women with HIV.

Mohammed Dica was the first person to be found guilty of the crime of inflicting biological grievous bodily harm by insisting on unprotected sexual intercourse with the women. Doctors say that his victims could die within ten years. Dica, who was told yesterday to expect a lengthy jail sentence, is also thought not to have long to live. The case at Inner London Crown Court was the first in an English court for 137 years involving a crime of sexua1lly transmitting a disease and it set a precedent that paves the way for other legal actions over illness inflicted by one person on another. Charles Foster, a barrister specialising in medical and professional negligence, said: It could lead to actions against employees who deliberately infect others, whether through sexually transmitted disease or even other kinds of disease passed in the workplace. It is it theoretically possible, for instance, for someone with flu to be criminally liable to people he may infect. Proof might be difficult, he agreed, with an illness that is so widespread. But if, for instance, someone knew he had tuberculosis, and came in coughing and spluttering over the person at the next desk, then he could be prosecuted. Until now, the law had been based on a 19th-century ruling in which the courts said that even though a woman had been infected with a sexually transmitted disease by her husband, she had consented to intercourse and therefore in effect had consented to what came with it. The women in yesterdays case had both consented to intercourse with Dica, but had asked him to wear a condom. He had refused, claiming that he had had a vasectomy, that he did not like them and that he had problems with them. His first victim, a 36-year-old woman, said that he had been caring and said all the right words, but after every lovemaking session, he would cry: Im so sorry. Please forgive me. God forgive me. Six months into their relationship, she discovered that she was HIV positive. His second victim was a mother of two in her thirties who thought she had found the man of her dreams in Dica. Yesterday she was in court to see him convicted and afterwards she welcomed the verdict, saying: I was in the wrong place at the wrong time. He destroyed my life. My sentence has just begun. The case was the first in England and Wales in modern times, but a man was convicted in Scotland two years ago of recklessly passing on HIV. His lover made history when she was awarded 22,000 by the Criminal Injuries Compensation Board.

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October 21, 2003

The question to ask a husband (or wife) before sex

A man who knowingly infected his partners could change the legal landscape
by Charles Foster
MOHAMMED DICA has been convicted of causing grievous bodily harm to two women he infected with HIV. He knew he was HIV-positive and he knew the risk of unprotected sex. The women consented to sexual intercourse but said that had they known of his infection they would not have done so.

His conviction sounds morally right. It also sounds, to anyone brought up in the English law, legally odd. One of the first cases that law students meet is the colourful story of R v Clarence (1888). Clarence had gonorrhoea, and knew it. He had consensual intercourse with his unknowing wife. She contracted the disease, and Clarence was prosecuted under Sections 20 and 47 of the Offences against the Person Act 1861. He was convicted, evidently because the jury concluded that his wife, not being in possession of all the relevant facts, had not truly consented. His conviction was quashed. The Court of Appeal said that there is no consent if there is a mistake as to the nature and quality of the act, but that here there was no such mistake: the act was simply sexual intercourse, and the wife knew perfectly well that it was intercourse she was agreeing to. This decision has had commentators screaming ever since. The gist of the scream has always been the same: sexual intercourse with a man infected with a serious disease is different in nature and quality from that with an uninfected man. More recently, since it has been established that an assault is not a prerequisite for a conviction under Sections 47 or 20, it has been said that the issue of consent is a red herring. But the courts remained unmoved. Clarence, rooted as it is in a Victorian morality, has ruled this arcane but important corner of the law ever since. Until, that is, the jury at the Inner London Crown Court said that Dica was guilty. The jury seems to have shrugged off the difficulties that many thought would be fatal to such prosecutions: notably Clarence, but also causation. In 1993 the Law Commission recommended the creation of a specific offence of transmitting HIV recklessly. The Government disagreed. It proposed an offence of intentional transmission, but then let this go too, saying that the 1861 Act would be adequate. It did not seem to be. The Law Commissions examination had been prompted by Roy Cornes, an HIV-positive haemophiliac who was accused of recklessly infecting four women. Cornes died before his case could reach court, but it seemed to most lawyers that similar prosecutions would be unlikely to succeed. If R v Dica survives the Court of Appeal, the legal landscape will have materially changed. In effect a doctrine of informed consent will have been imported into the English criminal law. This will principally be important for the law regulating sexual behaviour and medical and dental treatment, but it may be possible to wield the 1861 Act to govern the behaviour of diseased people well beyond the bedroom. The essential elements of a biological offence under Section 47 or Section 20 of the Act would be that a person who knew that he was infected with a transmissible disease (or possibly was reckless about whether he was infected that opens up a writhing can of worms in the sexual context) knowingly or recklessly caused another the actual or grievous bodily harm of that disease. This could theoretically ground the prosecution of a flu sufferer who splutters over a colleague. His recklessness would be in not staying at home in bed when he clearly posed a risk of infection. There would be obvious causation problems, since the victim may have picked up the virus on the train, but there are plenty of other cases where those problems may not be insuperable. The only certainties about this area of the law are that it will be socially significant and fascinating to watch. The author is a barrister at 6 Pump Court,

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Joint Charging Standards (CPS)

These can be found on http://www.cps.gov.uk/legal/l_to_o/offences_against_the_person/ and were updated in October 2009. The purpose of them is to illustrate the levels of harm and differentiating factors between the different non-fatal offences. In part they ameliorate the problems of the current definitions, but they also aim to provide consistency. OFFENCE
Common Assault and Battery No more than: Graze Scratch Abrasion Minor bruising Black eye Swelling Reddening of skin Superficial cuts Undisplaced broken nose

INJURIES

AGGRAVATION
Weapon Biting Gouging Kicking V whilst on the ground Strangulation (iif it more than fleeting, or causes V to apprehend a real fear of immediate violence)

Charged under s.39 Criminal Justice Act 1988

Assault occasioning Actual Bodily Harm

s.47 Offences Against the Person Act 1861

Loss/ broken tooth Temporary loss of sensory function Extensive/multiple bruising Displaced/ broken nose Minor fractures Cuts requiring stitched Psychiatric injury beyond fear/panic, supported by medical evidence.

Malicious wounding or Inflicting Grievous Bodily Harm

s.20 Offences Against the Person Act 1861

Permanent disability Loss of sensory function More than minor permanent visible disfigurement Broken or displaced limbs or bones Fractured skull Injuries requiring substantial loss of blood Injury resulting in lengthy treatment or incapacitation.

Causing Grievous Bodily Harm with Intent.

s. 18 Offences Against the Person Act 1861

Repeated or planned attack Deliberate selection of an article for attack Adaption of an article for attack Prior threats Using a weapon on, or kicking, Vs head

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REFORM OF THE LAW ON NON-FATAL OFFENCES.

GOVERNMENT REACTION?
1993 LAW COMMISSION PROBLEMS General problems? MEANING OF WORDS Battery Grievous Fear and apprehend Resist arrest Cause and inflict Assault

THE PROPOSED CHANGES: LANGUAGE

Injury Assault Serious Recklessness Cause

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