4.1.2 Assault, Battery and ABH Lecture

1.0 What are non-fatal offences against the person?

Non-fatal offences against the person encompass a range of offences where a person is caused some harm but the harm does not result in death. There is a gradient scale of offences based on the level of harm caused to the victim and the level of intent demonstrated by the defendant. Each of these offences has their own actus reus and mens rea and are accompanied by charging guidelines as to the type of injuries they encompass. All of these elements must be considered when looking at a possible offence.

Examination Point

It sounds obvious but be really careful to read the whole question before you start writing about non-fatal offences against the person. You must make sure the victim is not dead. If you don’t do this, you may provide a fantastic answer on assault only to find that it was actually a homicide question.

2.0 Common Assault

Common Assault is a common law offence and is not set out under any statue but charged under s.39 Criminal Justice Act 1988. In day to day speak it is used to refer to the individual offences of both assault and battery.

In legal terms, crimes will often involve an element of both assault and battery and the two are charged together as a common assault. For the purposes of exams however you will need to understand the constituent elements of and differentiate between both assault and battery.

2.1 Assault

As eluded to above the word assault is used interchangeably to refer to crimes of assault and battery, which are properly known as a common assault. In the present context the word assault refers to what is properly known as a technical assault. These are assaults where no physical occurs.

2.1.2 Actus Reus

The actus reus of assault is causing a person to apprehend the immediate application of unlawful force.

This can be broken down into two key parts:

  • The defendant causes victim to apprehend the use of force against them, and;
  • The victim apprehends that use of force will be immediate

(i) The defendant causes the victim to apprehend force.

The actus reus is established through the causing of the apprehension of force and there does not need to be any application of actual force on the victim.

It does not matter whether the actual application of force was even possible, as long as the apprehension is caused. To illustrate this, consider the following example. The defendant points an unloaded gun at a stranger in a street. There is no way he could shoot them even if that was his intention but the stranger will be unaware of this so will fear the application of force. Now consider that the defendant and his friend are shooting enthusiasts and are in a gun shop looking at unloaded display models. If the defendant picked up a gun and turned and pointed it at his friend and shouted ‘hands up or I’ll shoot’ the defendant’s friend will know that this is an empty threat and will not be caused to apprehend a use of force, thus no assault will occur.

R v Constanza [1997] Crim LR 576 states that words alone can cause the victim to apprehend harm and thus constitute an assault. For example, “I’m going to hit you” does not need to be accompanied by any action for an assault to occur. The ruling in R v Ireland [1997] 3 WLR 534 takes this further and states that silence can amount an assault. In this case the defendant made a series of silent phone calls to his victim causing them to fear immediate force and leading them to suffer severe psychological damage as a result of his on-going calls.

Just as words can cause an assault they can also prevent a potential assault from occurring. This point is demonstrated nicely in the case of Tuberville v Savage [1669] EWHC KB J25.

Case in focus: Tuberville v Savage [1669] EWHC KB J25

Having been infuriated by some comments directed towards him, the defendant placed his hand on his sword as if to draw it. This would plainly cause the victim to fear the immediate application of unlawful force and thus constitute an assault, however the defendant accompanied his action with the words “if it were not assize time I would not take such language.” In modern day context, this meant that as the judges were in town he would not commit an act of violence, thus negating the effect of this threatening action.

Just as words can negate an assault, the context and tone of such words can too negate an assault. In cases where menacing words were clearly intended as a joke and were taken as such there can be no assault. This is illustrated by the recent case of Chambers v DPP [2012] EWHC 2157 where the defendant took to Twitter to threaten to resort to terrorism and ‘blow the airport sky high’ having become frustrated by his delayed flight! It was clear to all that taken in context, despite the menacing nature of the words they were clearly a joke, thus no apprehension of force was caused.

It is important to note the distinction between apprehension and fear. A victim may expect immediate force without being in fear of it; an assault will occur either way. For example, a world heavy weight boxer may be confronted by a particularly angry ex-girlfriend who raises her hand to slap him. He quite rightly at this point expects the immediate application of force, however it would be quite wrong to say that he is in fear of it!

(ii) The victim apprehends that use of force will be immediate

It most cases this is a simple point to establish, a defendant shakes his fist, the victim fears he will be hit in a matter of seconds. However, some cases have been met with contentious rulings in relation to this issue. There is not an exact definition of what ‘immediate’ has come to mean but the following case examples provide some insight.

In Smith v Superintendent of Woking Police [1983] Crim LR 323, the defendant stood up next to the window of a ground floor flat belonging to a woman living alone. She was terrified as he just stood there staring at her through the window.  At trial the defendant argued there was no assault as the force apprehended was not immediate. He was outside and could not get to her without making his way inside. The Court held that despite this, the victim was clearly afraid by the prospect of some immediate violence. It was not thus unnecessary for the prosecution to establish exactly what the victim feared would happen as a general apprehension was sufficient.

Ireland came to a similar ruling whereby silent telephone calls were held to cause apprehension of immediate force as the phone calls had placed the defendant in immediate with the victims and the victims were placed in immediate fear. It was not necessary for there to be any physical proximity.

The point that can seemingly be taken from the presiding case law is that, in cases where the victims have no way of knowing what might happen, immediacy is satisfied. If some other factor came into play, for example a silent phone call was received and the number appeared with an Australian dialling code, this may negate this.

In the same sense that words can negate an assault, they can also negate immediacy. For example, “I’ll get you next week for this” would not be an assault as there is no immediate force threatened.

Examination Point

Make sure you learn the actus reus correctly. If you muddle up the words it drastically changes the offence and you will lose marks! Apprehending the immediate application means that that the victim fears he will be hit straight away. Immediately apprehending the application means that the victim is straight away caused to fear he will be hit later, which is not an assault!

2.1.3 Mens Rea

The mens rea for assault is intending the victim to cause the apprehension of unlawful force or foreseeing that the victim might be caused such apprehension. This involves an element of subjective recklessness as was confirmed in the case of Savage and Parmenter [1992] 1 AC 699, meaning the defendant themselves must have realised the risk of causing an apprehension of violence.

2.1.4 Type of Harm

No harm needs to occur for a technical assault conviction.

2.2 Battery

If an assault is understood to be an apprehension of force, a battery can be explained in simplistic terms as the actual use of unlawful force.

2.2.1 Actus Reus

The actus reus of this offence is the application of unlawful force on another. This application is usually direct, for example, the defendant punches the victim, thus the defendant himself physically applies the force to the victim’s body. However, this does not need to be the case and force can also be applied indirectly.

On a basic level this can involve applying force through another medium. For example, consider the case of Fagan v Metropolitan Police Commissioner [1969] 1 QB 439, where driving a car over a person’s foot was held to be a qualifying application for the purposes of battery. It was not the defendant applying force, he was merely driving the car, but it doing so he caused the application of unlawful force to another.

On a more indirect level, this can also involve application of force to one person which causes the application to another.  Imagine a domino effect. A person, shopping in Tesco, becomes frustrated at the length of the queue so pushes the person in front of him forward, who then falls into the person in front of them and so forth, until all 3 people in the queue have fallen over.  The defendant, despite applying force to only one person in the queue, would be guilty of the battery of all three people as he has indirectly applied force to each of them. This point was demonstrated in Haystead v DPP [2000] 3 All ER 690 where the defendant who punched a woman holding a baby, causing her to drop the baby, was found guilty of the battery to the baby.

The force applied does not have to be direct to the victim’s body and they do not need to feel the force. R v Thomas [1985] Crim LR 677 confirmed that touching their clothes can be sufficient.

A battery can also be committed where the behaviour was intended as affectionate, as was confirmed in R v Braham [2013] EWCA Crim 3. An unwanted kiss for example would suffice and the fact that it was motivated by misdirected affection will not prevent it from satisfying the actus reus of battery..

2.2.2 Mens Rea

The mens rea for battery involves either intention or recklessness as to the application of force. Being reckless as to applying force can be a difficult concept, however as a basic example, consider a person is in an enclosed space and swinging their arms around wildly. They may not intend to apply force but they are being reckless as to whether force will be applied.

2.3 Charging and Sentencing

Assault and battery are summary offences meaning that they will be tried at the magistrates court. s.39 of the Criminal Justice Act 1988 sets out that the maximum sentence is six months imprisonment and/or a fine.

The CPS Charging Guidelines indicate that offences against the person will be charged as a common assault where the injuries caused are not serious.

3.0 Assault Occasioning Actual Bodily Harm

This offence encompasses those assaults where a more serious injury is caused to the victim. Liability for the offence is constructed from liability for the lessor offence of common assault. It is a result crime in that the charge depends wholly on the result induced by the commission of the assault; it must result in actual bodily harm.

3.1 Actus Reus

The actus reus of this offence consists of two parts:

  1. The defendant must commit an assault.
  2. The assault must cause actual bodily harm.

The defendant must commit an assault.

For the purposes of this offence the term assault is properly taken to mean either an assault or a battery. Therefore, the actus reus and mens rea for either of these qualifying offences must be established. No additional mens rea is required.

The assault must cause actual bodily harm.

This refers to causation. Applying the usual principles of causation, it must be established that the defendant’s assault caused the victim to suffer actual bodily harm.

Actual bodily harm is defined in R v Donovan [1934] 2 KB 498 as an injury that is more than transient or trifling. R v Miller [1954] 2 All ER 529 clarified this further stating it to be any hurt or injury calculated to interfere with the health and comfort of the victim. However, R v Chan Fook [1994] 1 WLR 689 qualified this somewhat stating that the inclusion of the word ‘actual’ indicates that the injury whilst not needing to be permanent, cannot be so trivial so as to be wholly insignificant. For example, a concussion will not usually cause permanent damage but it is clearly more than insignificant harm. Conversely a sore arm would be neither permanent or significant.

Ireland established that ABH can encompass psychiatric harm such as depression, anxiety, or nervous shock, however Chan Fook has clarified that this does not go as far as including distressing emotions or any state of mind which does not amount to a recognised clinical condition. It can be seen then that fear or upset would not suffice for the purposes of ABH.

Aside from the established case law, the CPS Charging Guidelines also offer some direction as to what will be classed as ABH. According to these guidelines, the type of harm that will realistically be prosecuted as an ABH are injuries where significant medical intervention has been necessary or has caused lasting effects.

3.2 Mens Rea

No additional mens rea is required for this offence. R v Roberts [1978] Crim LR 44 confirms that the mens rea for the basic offence is sufficient.

3.3 Charging and Sentencing

The offence of assault occasioning actual bodily harm is charged under s47 of the Offences Against the Persons Act 1861, which states:

“Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable to imprisonment of a term not exceeding seven years”.

It is a triable either way offence so can be heard in both magistrates or crown court, defending on the perceived seriousness of the offence and the defendant’s wishes.

4.0 Defences

Consent

Consent may operate as a defence to a charge of assault, battery or the causing of actual bodily harm.

Without the consent defence it would be impossible for anyone to go about their day to day lives without finding themselves in a police station! Consider the London Underground in the height of rush hour. If we did not consent to some level of with our co-citizens then multiple assaults and batteries would occur on the daily commute to work. The woman rushing towards you looking at her phone who only dodges out of your way last minute would be hauled up on an assault charge, and the teenager with his headphones blaring and rushing down the platform who doesn’t dodge you in time and smacks right into you would be convicted of battery. Brushing past someone in the supermarket would be illegal and tapping someone on the shoulder to get their attention could land you in serious trouble! Thanks to Collins v Wilcock [1984] 3 All ER 374 this not the case as it established that all impliedly consent to some level of physical in day to day life. Without this it would be very difficult to have a functioning society.

It is evident from the scenarios above that none of these involve a serious infliction of harm and are limited to situations that would, in absence of consent, realistically be charged as a common assault. Consent becomes a more contentious issue in situations where more serious harm is caused as the law places limits to the level of harm an individual is entitled to consent to.

To gain a better understanding of this the requirements for valid consent must be considered.

Examination Point

Read this section very carefully as this is a favourite topic for examiners to set as an essay question. You may be asked on when and how consent will operate or to produce a critique of the defence.

5.1 Consent can be given expressly or impliedly

Collins v Wilcock establishes that consent is automatically implied where there is jostling in busy places, or in relation to handshakes, back slapping, tapping on the shoulder to attract attention and other day to day activities, provided no more force was used than is reasonably necessary in the circumstances. Consent can be implied in other situations too. For example, by being in a relationship you may impliedly consent through your behaviour to affectionate touching that you would otherwise not consent to from a stranger!

5.2 Genuine Consent?

For consent to be genuine it must be given in the absence of fraud, by a person who is fully able to comprehend the nature of what they are consenting to.

Children are not automatically held to give valid consent in all situations and are subject to further scrutinisation in this regard. For example in relation to medical treatment, the Gillick competence test set out in Gillick v West Norfolk and Wisbeck Area Health Authority [1986] AC 112 would be applied.

Some adults may also lack capacity to give valid consent. Under the Mental Capacity Act 2005 there is a presumption of capacity but a person will be found to lack this if at the material time they are unable to make a decision in relation to the act due to a temporary or permanent impairment or disturbance of mental functioning.

Even where the subject has capacity to consent this consent can be vitiated by fraud as to the (i) identity of the person or (ii) the nature and quality of the act.

(i) fraud as to the identity of the person

R v Elbekkay [1995] Crim LP 163 confirms that fraud as to the identity of the person will vitiate consent, however it must be the identity of the person that is the subject of the fraud, not the identity of their attributes. This was demonstrated in R v Richardson [1998] 2 Cr App 200.

Case in focus: R v Richardson [1998] 2 CR App 200.

Where a person holding themselves as a dentist performed procedures on patients when in fact they had had their dental licence revoked. The patients stated that they would not have consented to the dental work had they known this, however the Court held that the patients had consented to the treatment as there had been no fraud as to the actual identity of the person performing the treatment. They knew exactly who she way. The only fraud was to the defendant’s right to practice dentistry.

(ii) Fraud as to the nature and quality of the act

The seemingly harsh ruling in Richardson will only extend as far as the fraud as to the qualifications has no bearing on the nature and quality of the act carried out. This is where the fraud leads the person to believe that the act is being carried out is one thing when it is in fact something entirely different.

In R v Tabassum [2000] 2 Cr App R 328 a case of similar facts to Richardson in that it involved false medical qualifications, the defendant held himself out to be a doctor conducting medical research in order to gain consent from female patients to perform breast examinations. He was in fact an IT lecturer who held no formal medical qualifications. The Court held that there was no true consent in this instance. The women were consenting to touching purely for medical purposes and therefore although they had consent to the nature of the act, i.e. the breast examination, they were not consenting to the quality of the act as it was not conducted for medical purposes.

The case of R v Flattery (1877) 2 QBD 410 illustrates the concept of fraud as to the nature and quality of the act more clearly. In this case defendant told a woman with learning difficulties that he was performing surgery on her when in fact he was engaging in sexual intercourse with her. Accordingly, the victim did not appreciate the quality of the act she was agreeing to and accordingly the Court held her consent to be invalidated by fraud as to the nature and quality of the act.

Originally the courts were reluctant to find consent was invalidated where there was fraud as to the quality of the act in cases where the victim had consented to the act, but in doing so are subjected to a consequence they were not aware of when providing consent. For example, in the case of R v Clarence(1889) 22 QB 23,the defendant had sexual intercourse with his wife knowing that he was infected with gonorrhoea. He passed on the infection and was charged with assault occasioning ABH. The defendant successfully defended the charge with the Court holding that his wife had consented to sexual intercourse and it was irrelevant that the wife was unaware of the infection when giving her consent. This ruling should be treated with caution however as at the time a wife was automatically deemed to consent to sexual intercourse with the husband by the nature of the relationship, regardless of whether any such consent actually existed. Therefore, had she known about the infection it would have made no difference as to the validity of her consent in this instance as this was held to be automatic.

As time has progressed the law has developed and has provided for a much wider scope of cases where consent will be invalidated due to fraud as to the quality of the act. Fraud will now operate to invalidate consent even in cases where a victim consents to the actual act being carried out, but they do not have all the facts as to the consequences of the act they are consenting to. This is illustrated by an examination of the case of R v Dica [2004] 3 ALL ER 593 which involved an HIV positive defendant who, knowing of his condition, had sexual intercourse with 3 different women and infected them with the disease. As in Clarence, the women consented to the unprotected sex but stated that they would not have done had they been aware of the infection. The defendant tried to argue that consenting to unprotected sexual intercourse involved consenting to all of the associated risks, and indeed, in a time where society is well educated about such risks this is a line of argument that carries some weight. However, the Court held that there is a distinction between taking a risk of the wide ranging, potentially adverse and problematic consequences of sexual intercourse, and giving informed consent to a risk of infection with a serious and fatal disease. The fact that the defendant had concealed his HIV positive status from his victims meant that they were deceived by him. For the victim's consent to be valid it must be an informed consent. This was confirmed in the subsequent ruling of R v Konzani [2005] EWCA Crim 706.

Is the victim legally allowed to consent?

In what appears to be a large restriction on individual autonomy, the very concept that consent is designed to protect, the law will only allow an individual to consent to cases that do not involve an act of violence. This is due to the fact that it is not considered to be in the public interest to allow individuals to hurt each other. Consider the implications allowing individuals to freely do this would have on general public morals, let alone the cost to the NHS in treating any injuries caused! Accordingly, in cases where ABH or more serious harm is intended and or caused Attorney General's Reference No 6 of 1980 [1981] states that a person's consent is irrelevant and cannot prevent criminal liability.

If this were to be a blanket ruling it is evident that a number of activities fundamental to modern day life would be rendered illegal. Accordingly, the Court in Attorney General’s Reference No 6 and R v Brown [1994] 1 AC 212 provide some caveats to this, giving specific categories of scenarios where it is in the public interest to allow individuals to consent to such harm. These are now set out and explained.

  • Reasonable surgical interference

Surgical interference is invasive and will almost always involve an incision thus constituting harm to the body. Regardless, the law permits for a patient to consent to surgery performed by a suitably qualified doctor as there is clear social benefit in such operations.

Examination Point

Does the social benefit described above extend as far as cases of cosmetic surgery? For a potential line of discussion in an essay question, consider some cases of extreme cosmetic surgery, for example horns being implanted into an individual’s head or breast enhancements so large they cause crippling back pain. Can it truly be said that this is in the public interest to allow this?

  • Properly conducted games and sports

Properly conducted games and sports played according to recognised rules with appropriate supervision from a referee or umpire are considered to be in the public interest due to the massively important cultural standing these sports have, alongside the obvious health and fitness benefits that they offer. It is in the interest of society to allow for these to continue and thus to consent to the obvious risk of harm they will often involve. However, that has been extended further to encompass harm caused during off the ball play, that is in relation to harmful behaviour that occurs on the pitch but outside of both play itself and the rules of the game. The case of R v Barnes [2004] EWCA Crim 3246 which involved a reckless and unnecessary, late tackle during a football match, stated that even conduct outside of the rules of the game may not be criminal. The Court held that an instinctive error, reaction or misjudgment in the heat of a game should not be classed as criminal activity.

Examination Point

Boxing is a contentious issue to discuss here as it is clear that this is a sport where ABH is intended and caused and is not merely incidental to the primary aim. For example, in football the aim is to score goals in your opponent’s net and defend your own goal, and in doing that there is necessarily a degree of physical which may result in injury. In boxing however, the ultimate aim of the sport is often to knock your opponent unconscious, which consists of a clear degree of very public violence, the kind of which Attorney Generals Reference No6 of 1980 expressly ruled against when considering fighting in the street. Indeed, the practice of this sport has very serious implications for boxer’s health, both at the time and in later life. Research into Chris Eubank vs Michael Watson and more recently Chris Eubank Jr vs Nick Blackwell for examples of injuries sustained from a fight and also look into the impact on health of boxer’s after retirement, with Mohammad Ali being a notable example. Should the courts do more to protect these people or is this justified as being a core part of public culture worth protecting?

  • Tattooing, piercing and male circumcision

These are seen as in the public interest due to their cultural importance and long standing tradition. This has been interpreted very widely and has included branding with a hot knife following the ruling in R v Wilson (1996) 2 Cr App Rep 241.

  • Horseplay

This includes for examplerough behaviour in jest such as, tripping each other up or tussling between friends, can be consented to. An example of such behaviour can be seen in R v Jones [1987] Crim LR 123 where a schoolboy who was seriously injured after being thrown into the air by his fellow students was deemed to consent to the harm caused.

  • Sexual Relations

In Wilson the Court stated that the State has no business in invading the bedrooms of consenting adults and dictating how they should have sex. However, following the ruling in Brown, a case involving a group of homosexuals engaging in extremely violent and painful acts for the purposes of achieving sexual pleasure, sadomasochistic acts have been held to be against public interest and thus not subject to consent.

It can be properly explained then that only sexual activity that is not inherently violent in nature is can subject to consent. Dica defined these as those cases where ABH is caused but the harm is not intentional, merely caused recklessly through the participation in the sexual activity. An example of one such situation can be illustrated by the case of R v Slingsby [1995] Crim L R 570 where during sexual intercourse the defendant, with the victim’s consent, vigorously inserted his fingers into the victim’s vagina whilst wearing a large signet ring. The ring caused severe internal cuts which became septic and ultimately proved fatal. The victim’s consent was held to be valid as in carrying out the act there was no evidence that either of them had contemplated actual bodily harm resulting.

Examination Point

This is a really good topic to discuss in a general essay question on consent and may be the subject of an essay question in its own right. Consider the acts allowed by the Court in Wilson which seem to bring the decision in Brown into disrepute somewhat. The act of branding is inherently violent and painful and done with the purpose of causing a scar, so it is difficult to see how this differentiates significantly from Brown. Especially consider the reference to “husband and wife” in the Wilson ruling and the fact that Brown involved a group of homosexuals, as it has been suggested that there may have been some prejudice by the courts in relation to this in considering what was in the public interest. In your opinion can the two rulings be reconciled? Do you feel that the Court in Brown was right to state that S&M is not in the public interest or should this be left to autonomous individuals to consent to as they please?

Hands on Example

The following scenario aims to test your knowledge of this topic and your ability to apply what you have just learned in a real life setting.

Have a look at the following passage and try to pull out the material facts and legal issues. Highlight these as you go through and jot down any key points, ideas, or relevant law that come to mind. If you’re feeling confident then once you have done this you can have a go at producing an answer.

If you’re not ready to go it alone just yet, there’s no need to panic! Answering these questions takes a lot of practice and if this is the first time you have done it then it is going to be tricky. A guideline answer is provided below, outlining the key points you would need to address. Have a look at this and try and use it to help you produce your own answer, or to check the answer you have already produced.

Tim is really passionate about football and he loves everything to do with it. At work Tim and his colleagues have a fantasy football league and this gets very competitive. A lot of the time they will discuss the league together and argue over who has the best fantasy team each week. Tim goes to work on Monday morning furious as his his team has not done very well that week. Jack infuriates Tim by bragging loudly to Josh about how many points his team scored him that week. After sometime Tim turns around and raises his fist at Jack shouting, “if you say one more thing about this I will shut you up myself”.

Jack is afraid by this and says nothing, quietly resuming work. Josh however is annoyed at Tim for threatening his friend. As he is walking past Tim’s chair he pushes the back of the chair hard causing Tim to fall forward and hit his head. Tim is shaken by the shock of the push but luckily is not seriously hurt.

After work, Tim, Jack and Josh have planned to compete in the 5-aside football league they play in. Sophie, a girl that both Tim and Josh like, is going along to watch the game. Still annoyed at Josh for pushing him, Tim is really eager to out-do Josh in front of Sophie as he knows this will upset him. In the last few moments of the game the score is 0-0 and Tim spots an opportunity to win the ball just outside the penalty box of the other team. Fired up and keen to impress, Tim flies in for the tackle but in the heat of the moment horribly mistimes it. His boot crashes into Louis’ shin and sprains Louis’ankle.

Discuss the potential liability Tim and Josh for assault, battery and ABH in relation to the above scenario.

Guideline Answer

There are three issues at hand here:

(i) Tim’s threat to Jack

(ii) Josh pushing Tim

(iii) Tim tackling Louis

Once you have identified all three you need to break your answer down into subheadings and discuss each issue individually.

(i) Tim’s threat to Jack

  • Consider first a possible offence of assault.
  • Actus reus: Does Tim cause Jack to apprehend the application of force? Raising his fist would cause a person to apprehend an immediate application of force
  • Is this apprehension of immediate force? No, similarly to Tuberville v Savage [1669] EWHC KB J25, the accompanying words “if you say one more thing” negate the assault as there is no immediacy. He will only be harmed in circumstances where he continues to speak and not right away.
  • There is no application of force as Tim does not carry out his threat so there is no battery.

(ii) Josh pushing Tim

  • First consider the possibility of an assault occurring. Does Josh cause Tim to apprehend the application of immediate unlawful force? A careful study of the facts shows us that he didn’t. Josh went up behind and there was no prior threat issued so Tim was not aware that the force was about to be applied. Accordingly, he was unable to apprehend the application of force so there can be no assault.
  • Having established assess whether on the facts there can be a battery?
  • Actus reus: Does Josh apply unlawful force to Tim?
  • Applying Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 and Haystead v DPP [2000] 3 All ER 690 it can be seen that the application of force can be indirect, therefore the push on the chair would suffice for the purposes of battery. The battery occurs when the chair causes Tim to fall forward and hit his head.
  • Mens rea: Intention to apply force or recklessness as to whether force will be applied. It can be seen on the facts that Josh likely intended to apply the force to Tim when pushing the chair but in any case he was reckless as to whether pushing the chair would cause the application of force to Tim.
  • Therefore, both elements of the offence are established and Josh will be liable for the battery on Tim.
  • Possible s47 ABH liability? Actual bodily harm means an injury that is more than transient or trifling (R v Donovan [1934] 2 KB 498). R v Miller [1954] 2 All ER 529 clarified this further stating it to be any hurt or injury calculated to interfere with the health and comfort of the victim. However, R v Chan Fook [1994] 1 WLR 689 it was clarified that thiscannot be so trivial so as to be wholly insignificant. It is unlikely that to the head that causes no further damage would fulfil these definitions so no charge of ABH would be available in relation to Josh’s push.

(iii) Tim tackling Louis

  • Assault:
  • Actus reus: Did Tim cause Louis to apprehend the immediate application of force? This is likely where Louis saw Tim approaching him late and off the ball, however this is open to an interpretation of the facts and you should come to your own conclusion here.
  • Mens rea: Tim was subjectively reckless as to causing the apprehension when mistiming his tackle.
  • Battery:
  • Actus reus: The unlawful application of force. This is satisfied as Tim’s tackle is late and off the ball and therefore outside the rules of the game.
  • Mens rea: Tim is reckless as to whether force will be applied when going in for the late challenge.
  • ABH:
  • The battery causes Louis to break his leg which is harm of a nature that is clearly encompassed by both the Miller and Chan Fook definitions and also the CPS charging guidelines.
  • There is no additional mens rea requirement for the ABH so having satisfied the actus reus and mens rea for battery and the actus reus for ABH it is likely that Tim would be liable for the ABH of Louis.
  • However, if it can be found Louis consented to the harm this will negate the offence. Applying Attorney General’s Reference No 6 of 1980 [1981] where ABH or more serious harm is intended and or caused a person's consent is irrelevant. As ABH was caused here then any consent by Louis would be prima facie invalid. However,Attorney General’s Reference No 6 of 1980 and R v Brown [1994] 1 AC 212 provide exceptions to this where it may be in the public interest to allow consent. The appropriate exception here is for the provision of properly conducted sports.
  • What is properly conducted? This refers to a sport played according to recognised rules. As Tim’s tackle was late and off the ball it cannot be said to be within the rules of the game. However, R v Barnes [2004] EWCA Crim 3246states that an instinctive error, reaction or misjudgment in the heat of a game should not be classed as criminal activity. Applying this to the present facts it would appear that Tim’s conduct falls with this definition as it was a misjudged error in the heat of the game, therefore Louis’ would be held to consent to the harm and Tim will have no liability for the incident.

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