Criminal: Assault and Battery

The victim of an offence must be a person, not a corporation. The Draft Criminal Code (DCC) says: “a person who has been born and has an existence independent of his mother.”

Assault and Battery - Consolidated in s.39 Criminal Justice Act 1988; replaces the complex provisions in OAPA 1861.

Assault           “D intentionally or recklessly causes V to apprehend immediate and unlawful personal violence.” R v Ireland

                        Assault has been regarded as an attempted battery.

                               

                        Actus Reus

Immediacy: Ireland (silent phone calls), Constanza (stalked; court said she apprehended violence “at some time not excluding the immediate future”) and Smith (looking through V’s window to scare her while she’s in her night clothes; there can be no assault if V realises that D cannot carry out a battery e.g. other side of the glass).

Assault by words: Savage (words can negate actions – holding a sword but using language which makes clear that he won’t use it) and Constanza (words include writing, fax, email, tweet or text).

Mens Rea – intention or recklessness (Cunningham)

Battery          “D intentionally or recklessly inflicts unlawful personal violence upon V” Rolfe

                        Violence includes unlawful touching – Thomas (touching a person’s clothes whilst he is wearing them is equivalent to touching him). Supported by Art 8 ECHR Private life.

                        Lord Lane in Faulkner v Talbot – “...it need not be hostile or rude or aggressive” Result: HOSTILITY IS NOT AN INGREDIENT OF BATTERY.

                        Actus Reus

                        The victim does not need to be aware of the unlawful touching (e.g. asleep) and there does not need to have been an assault/fear of violence (e.g. hit from behind).

                       Omission: Santana-Bermudez (omitted to tell police officer about the syringe in his pocket before a search, the officer was stabbed by it; guilty).

                        Use of an instrument: Haystead (D punched woman who dropped baby), Murgatroyd (D set dog on V), Scott v Shephard (threw firework in a crowd which was then flung by a third party in an attempt to get it away from himself, no break in chain of causation).

                        Mens Rea – intention or recklessness (Cunningham)

The word ‘assault’ often refers to both an assault and a battery because there is no verb for battery; both come under the verb to be ‘assaulted’. Even the CRIMINAL JUSTICE ACT refers to them both as common assaults. DPP v Little blurred the distinction further.

Defence of consent - can an assault or battery be consented to?

Pringle confirmed Collins v Willcock that day to day touching can be consented to by implication.

A-G’s ref No.6 of 1980 said can’t consent to street fighting because it was against public policy.

Brown confirmed A-G’s ref; sadomasochistic acts amounting to a battery were against public policy.

TEST FOR CONSENT: 1) was there consent? 2) was the act one that could be consented to?

Effective consent - Capacity: Mental Capacity Act 2005

Informed consent: Konzani had unprotected sex, knowing he was carrying HIV. Court said “she cannot give an informed consent to something of which she is ignorant”. But Dica established that true consent can be given to a risk of infection which is known about.