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Assaults - actus reus and mens rea
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Assault and battery

Two separate and distinct offences

Common Assault
Sec 39 Criminal Justice Act 1988

  • An assault is any act by which someone, intentionally or recklessly, causes another person to apprehend immediate and personal violence.

Fagan v MPC


Sec 39 Criminal Justice Act 1988

  • Any intentional or reckless touching of another person without the consent of that person and without lawful excuse.

R v Brown (1993) HL


The force may be the merest touch.

Usual for both to occur at the same time. No assault if ‘victim’ is unaware before battery takes place. E.g. threat behind a person's back.

Lawful excuse can include:

Parental authority,


Assault Occasioning Actual Bodily Harm (AOABH)  Offences Against the Person Act 1861

Section 47 Offences Against the Person Act 1861

  • Provides that it is an offence to commit '... any assault occasioning actual bodily harm...’

CPS guidelines = Less than GBH and any degree of bodily harm is enough.


Can be racially aggravated.

The Crime and Disorder Act 1998, s. 29, creates a racially aggravated form of this offence which carries a higher maximum penalty.


Must involve an assault or battery, must be foreseeable

[Actus Reus]
Assault or battery must occasion (i.e. caused) the victim actual bodily harm.


Such injury cannot ordinarily be consented to.

As long as there was a direct assault or battery, it does not matter if the bodily harm was suffered indirectly. In Roberts (1971) D assaulted a young woman in his car, and frightened her to the extent that she leaped from it to escape whilst it was still in motion; she suffered injuries as a result.

Guilty and Stephenson LJ said

"The test is: was [her injury] the natural result of what [D] said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing."

H v Director of Public Prosecutions [2007] DC

D, with others, attacked V. D caused an injury when he forced the victim to the ground, it was inconceivable that the victim striking his head on the kerb had not caused any injury. V suffered other injuries.


Held: When determining whether the defendant was guilty of assault occasioning actual bodily harm, it was not necessary for justices to identify the particular injury that had been caused provided that they were satisfied that some injury had been caused by striking the victim.



Any injury calculated to interfere with health and comfort

[Actus Reus]
Actual Bodily Harm means any injury which is 'calculated to interfere with the health or comfort of the [victim]' (R v Donovan per Swift J).

"For this purpose we think that "bodily harm" has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling."

Crown Prosecuting Charging Standards

[Actus Reus]
ABH includes minor cuts and bruises, although the Charging Standards agreed between the police and the CPS do not endorse the bringing of s. 47 charges in the absence of more serious injuries, such as broken teeth, extensive bruising or cuts etc., which require medical treatment.


Includes Psychiatric injury

[Actus Reus]
Psychiatric injury that is more than mere fear or anxiety is included (Chan-Fook [1994] and Ireland [1998]).


Psychiatric injury is normally caused by assault, rather than by any battery.


Injury must be proved by expert psychiatric evidence (Chan-Fook) and proof that D's assault caused the injury.


Includes biological injury

In R v Dica [2003] the infecting of two women with AIDS was held to amount to Grievous Bodily Harm. This renders the case of R v Clarence (1888) to be bad law.


Mens rea same as for assault or battery

[Mens rea]
The causing of actual bodily harm requires no additional mens rea.


Savage, R v [1992] HL

If injury is caused, it need not even be proved that the injury was foreseeable, because this element of the offence is one of strict liability.

[Assault ABH - no need to show injury is foreseeable - strict liability - different in Sec 20]
D aimed to throw the contents of a beer glass over V, but inadvertently allowed the glass to slip from her hand injuring V.


Held: A conviction for malicious wounding could not be sustained in the absence of proof that D had at least foreseen the possibility of injury to V.

Throwing beer over V was an intentional assault - in fact deed a battery - and that same assault had resulted in V's injury.


Guilty of ABH but not Sec 29 wounding


Ireland, R v [1998] HL

[Assault ABH - no need to show injury is foreseeable - strict liability - different in Sec 20]
Threats were made by letter or by telephone.  D need not intend or foresee - nor have any reason to foresee - that V will suffer psychiatric injury.

But the mens rea for ABH is established if D intends or foresees that V may be frightened into apprehending immediate violence - just the assault (or battery).


Wounding/GBH without intent (section 20)

Section 20

Unlawful and malicious wounding or inflicting any grievous bodily harm upon any person, either with or without any weapon or instrument. No intent required.

Two offences

  • Serious bodily harm or

  • breaking the skin (a wound).

A bruise, burn or scratch is not a wound nor the breaking of a bone if the skin not broken.


Bleeding from the wound is necessary.


Actus reus requires a wound or infliction of GBH

[Actus reus]
Wounding requires the breaking of the continuity of the whole of the skin (dermis and epidermis) or the breaking of the inner skin within the cheek, lip or urethra (Smith (1837) and Waltham (1849).


It does not include the rupturing of internal blood vessels (JJC (A Minor) v Eisenhower [1983]).


CPS Charging Standards

[Actus reus]
Even a pin prick may qualify, but the Charging Standards will not allow for minor wounds.


Grievous bodily harm is not defined

[Actus reus]
GBH has been interpreted as meaning no more and no less than really serious harm (DPP v Smith [1961]; Cunningham [1981]; cf. Saunders [1985]).

The Charging Standards lists examples.

Psychiatric injury or illness may involve really serious harm (R v Ireland [1998] HL) but its cause and effect will need to be proved as above for ABH.


'Inflict' means much the same as 'cause'. 

There is no need for an 'assault' in Sec 20

[Actus reus]
In Ireland [1998] HL Lord Steyn, held that harm could be inflicted without an assault.


'Cause' and 'inflict' mean much the same.


'Causing' and 'Inflicting' GBH

[Actus reus]
GBH can be inflicted by means of menacing telephone calls which gave rise to serious psychiatric injury, whether or not the injury was caused by fear of imminent physical attack. (Ireland)

Lord Hope said there was no real practical difference between the two words


Lord Steyn and Lord Hope both appear to have stopped just short of overruling the authority of Clarence (1888), where grievous bodily harm was caused, but not inflicted.  (D without warning his wife infected her with a venereal disease) but


Clarence can no longer safely be relied upon (see now, Dica (2003).


Sec 20 requires 'maliciously'.

[Mens rea]
Maliciously means intentionally or recklessly. To do some kind of bodily harm.  Recklessness is subjective in the Cunningham sense.


The harm intended or foreseen

[Mens rea]
D need not intend or foresee the causing or inflicting of a wound or grievous bodily harm


To foresee that minor injury "might" occur will suffice (Mowatt [1968] and Sullivan [1981] & DPP v A (2000)).


If D was unaware that his conduct might cause any injury at all (Savage [1992]) there is no mens rea. unless voluntary intoxicated because it is a crime of basic intent.


Wounding/GBH with intent (section 18)

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, shall be guilty of [an offence], and being convicted thereof shall be liable to [imprisonment] for life.


Four different forms

  1. wounding with intent to do grievous bodily harm;

  2. causing grievous bodily harm with intent to do so;

  3. maliciously wounding with intent to resist or prevent the lawful apprehension etc. of any person; or

  4. maliciously causing grievous bodily harm with intent to resist or prevent lawful apprehension etc. of any person.

'Wound' and 'grievous bodily harm'

[Actus reus same as section 20]
Discussed above in the context of the decision in Ireland [1998]  There is no significant difference between 'causing' injury in cases under s.18 and 'inflicting' injury in cases under s.20.


This means that the actus reus elements of the two offences are for most purposes the same.


The difference lies in the specific intent required under s.18.

[Mens rea]
If D acted with intent to do grievous bodily harm, the concept of maliciousness is rendered otiose (Mowatt [1968]).


Where 'maliciously' is relevant.

[Mens rea]
Where D merely intended to resist arrest etc., 'maliciousness' (intention - recklessness - foresight) needs to be proved.


So if D pulls free from a PC who is arresting him and does not foresee that the PC would be injured, he has not acted maliciously and could not be convicted under s.18.


If he intended or foresaw that he would cause some minor injury, he would have acted maliciously.

The arrest or detention must be lawful (Howarth (1828)).


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