Key offences: assaults and offences against the person

Common Assault – s.39 Criminal Justice Act 1988

An assault is any act (and not mere omission to act) by which a person intentionally or recklessly causes another to suffer or apprehend immediate unlawful violence.

Common assault is a summary only offence, meaning it can only be tried in the Magistrates’ Court.

The term assault is often used to include a battery, which is committed by the intentional or reckless application of unlawful force to another person. Where there is a battery, the defendant should be charged with ‘assault by beating’: DPP v Little [1992] QB 645. Provided there has been an intentional or reckless application of unlawful force the offence will have been committed, however slight the force.

Assault, as distinct from battery, can be committed by an act indicating an intention to use unlawful violence against the person of another – for example, an aimed punch that fails to connect. In Misalati [2017] EWCA 2226 the appellant spat towards the complainant. The appeal court confirmed that although there was no actual violence, spitting is an assault whether it makes contact with the victim or causes fear of immediate unlawful physical contact.

An element of the offence of common assault is lack of consent so that the prosecution may (where it is a live issue) have to establish that the offence was committed without consent. However, a lack of consent can be inferred from evidence other than the direct evidence of the victim – CPS v Shabbir  [2009] EWHC 2754 (Admin). Most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact: Collins v Wilcock [1984] 1 WLR 1172.

Assault occasioning Actual Bodily Harm (ABH)

The offence is committed when a person intentionally or recklessly assaults another, thereby causing Actual Bodily Harm. It must be proved that the assault (which includes “battery”) “occasioned” or caused the bodily harm. Bodily harm has its ordinary meaning and includes any hurt calculated to interfere with the health or comfort of the victim: such hurt need not be permanent, but must be more than transient and trifling: (R v Donovan [1934] 2 KB 498).

The House of Lords in DPP v Parmenter [1992] 1 AC 699 held that the mens rea of this offence is the same as that for battery; all that need be proved further is that actual bodily harm in fact followed.

There is some ambiguity as to the ambit of this offence. In DPP v Smith [2006] EWHC 94 (Admin) the court determined that the offence of ABH had been committed but acknowledged that common assault could have been prosecuted. The appellant used kitchen scissors to cut off the complainant’s ponytail and some hair off the top of her head without her consent. Harm may therefore include the substantial cutting of a person’s hair. The court stated that in ordinary language, “harm” is not limited to “injury” but extended to hurt or damage, and that “bodily”, whether used as an adjective or an adverb, is “concerned with the body” and not limited to skin, flesh and bones. “Actual”, as defined in the authorities, means that the bodily harm should not be as trivial or trifling as to be effectively without significance. Evidence of external bodily injury, or a bruise or break to the skin, is not a necessary ingredient, and neither is physical pain consequent upon the assault.

Psychological harm that involves more than mere emotions such as fear, distress or panic can amount to ABH. However psychological injury not amounting to recognizable psychiatric illness does not fall within the ambit of bodily harm for the purposes of the 1861 Act: R v D [2006] EWCA Crim 1139. In R v Chan-Fook [1993] EWCA Crim 1 the court held that the phrase “actual bodily harm” can include psychiatric injury where this is proved by medical evidence but it did not include emotions, such as fear or panic, nor states of mind that were not themselves evidence of some identifiable clinical condition. Any allegation of actual bodily harm based on psychiatric injury, which was not admitted by the defence, should be supported by appropriate expert evidence. In the absence of such evidence, the question of whether an assault had occasioned psychiatric injury should not be left to the jury and there should be no reference to the victim’s mental state following the assault unless it was relevant to some other aspect of the case.

Unlawful wounding/inflicting GBH – s.20 and wounding/causing GBH with intent – s.18

The words “grievous bodily harm” bear their ordinary meaning of “really serious” harm: DPP v Smith [1960] 3 W.L.R. 546. Golding [2014] EWCA Crim 889 indicates that harm does not have to be either permanent or dangerous and that ultimately, the assessment of harm done is a matter for the jury, applying contemporary social standards. Further, there is no necessity for an assault to have been committed before there could be an infliction of GBH: Golding.

Bollom [2003] EWCA Crim 2846 clarifies that injuries should be assessed with reference to the particular complainant. That person’s age, health or any other particular factors all fall for consideration. The court said, “To use this case as an example, these injuries on a 6 foot adult in the fullness of health would be less serious than on, for instance, an elderly or unwell person, on someone who was physically or psychiatrically vulnerable or, as here, on a very young child. In deciding whether injuries are grievous, an assessment has to be made of, amongst other things, the effect of the harm on the particular individual. We have no doubt that in determining the gravity of these injuries, it was necessary to consider them in their real context.”

The guidance in cases such as Golding and Bollom should be applied when determining whether the injury amounts to ABH or GBH. Once again, the level of injury should usually indicate the appropriate level of charge but there may be some truly borderline cases where the factors above (outlined in relation to battery and ABH) are also relevant. Life-changing injuries should be charged as GBH. Just as the need for medical treatment may indicate ABH injuries, significant or sustained medical treatment (for instance, intensive care or a blood transfusion) may indicate GBH injuries, even if a full or relatively full recovery follows.

A “wound” means a break in the continuity of the whole skin – JJC (A Minor) v Eisenhower [1983] 3 WLR 537. The definition of wounding may encompass injuries that are relatively minor in nature, for example a small cut or laceration.

The “wounding” form of these offences should be reserved for those wounds considered to be really serious. However, it is appropriate to charge these offences when a wound is caused by a knife or other weapon, to reflect the seriousness.

The distinction between s18 and s20 the two offences is one of mens rea:

  • The prosecution must prove under section 20 that either the defendant intended, or actually foresaw, that the act might cause some harm. It is not necessary to prove that the defendant either intended or foresaw that the unlawful act might cause physical harm of the gravity described in section 20. It is enough that the defendant foresaw some physical harm to some person, albeit of a minor character might result: R v Savage; DPP v Parmenter [1992] 1 AC 699.
  • The prosecution must prove under section 18 that the defendant intended to wound and/or cause grievous bodily harm, and nothing less than an intention to produce that result, which in fact materialised, will suffice. A person ‘intends’ to cause a result if he/she consciously acts in order to bring it about. Factors that may indicate specific intent include a repeated or planned attack, deliberate selection of a weapon or adaptation of an article to cause injury, such as breaking a glass before an attack, making prior threats or using an offensive weapon against, or kicking, the victim’s head. The gravity of the injury may be the same for section 20 or 18 although the gravity may indicate the intention of the defendant.

The maximum sentence for section 20 is five years’ imprisonment. For section 18 it is life imprisonment. Intent may often be a trial issue where section 18 is charged, and will often rely on inference, but proof by inference is proof nonetheless, and where there is sufficient evidence for a jury to be sure of this intention this should be left to a jury.

Sentencing for sections 18, 20 and 47 will result in different likely sentences and so pleas to lesser offences should not be accepted unless there has been a change in circumstances.