Potential criminal liability of David: Assault, assault occasioning actual bodily harm
under s47 of the OAPA 1861 and malicious wounding under s20 of the Offences
Against Person Act 1861
In relation to the criminal liability of David to assault: section 39 of the Criminal
Justice Act 1988 provides for the offence of assault. The offence is defined in the case
of Venna which states that a person is guilty of assault if he intentionally or recklessly
leads someone to apprehend the application of his body of immediate unlawful force.
It is required to distinguish between assault and battery as they both are two separate
offences. Glanville Williams distinguishes the two by referring to battery as ‘physical
assault’ and assault as ‘psychic’ assault. Therefore it is clear that what distinguishes the
two is that assault requires no physical contact while battery requires the use of force.
AR element of assault: Causing the victim to apprehend application of immediate
unlawful force.
Apprehension of force: it is required to prove that the act of the defendant is capable of
causing the victim to realize that unlawful force will be applied on the victim. There does
not need to be any application of actual force on the victim. It can be done either
verbally or by words, as provided in R v Constanza words can cause the victim to
apprehend unlawful force. in addition Ireland provides that silent phone calls can also
amount to an assault, however this is dependent on the effect of the silent phone call to
the victim. In relation to conditional intent, Tuberville v Savage provides that
conditional intent cannot be a basis of an assault if it contains words that negate the
threat. And lastly as provided in Logdon, a victim may expect immediate force without
being in fear of it; an assault will occur either way.
On the facts, the act of David following Maisy around, writing her emails and letters and
hanging outside her apartment at night at a place where she can see him is sufficient to
cause Maisy to apprehend the application of force by David. As it is clear that Maisy
believe that David is going to do something physical in nature to her.
Immediacy: as provided in Smith v Chief Constable of Working Police Station, the
question to be asked is whether the defendant intends to cause the victim to believe
that he can and will carry out the threat immediately. The unlawful force must be
imminent.
On the facts, by David following Maisy around, writing her emails and letters and
hanging outside her apartment at night at a place where she can see him. It was clear
that David intended to cause Maisy to believe that he can and will carry out the threat
immediately. In addition, the fact that David knows where Maisy lives due to his act as
, mentioned above, it would clear that Maisy believes that he can and will carry out the
threat immediately. Therefore the element of immediacy is established.
MR element of assault: intention or subjective recklessness that an apprehension of
imminent or unlawful force would be created.
it is required to prove that the defendant intended to cause the victim to apprehend
imminent unlawful force or foresees that the victim would apprehend imminent unlawful
force. this involves the element of subjective recklessness as confirmed in Savage and
Parmenter, this would mean that the defendant must have realized the risk of causing
an apprehension of violence.
On the facts, by David doing what was stated above, it could be inferred that he
intended to cause Maisy to apprehend imminent unlawful force.
Therefore David now holds the offence of assault. however his offence of assault had
result in Maisy suffering from depression and anxiety. Therefore a better charge would
be assault occasioning actual bodily harm under section 47 of OAPA 1861.
In relation to David’s potential criminal liability to assault occasioning actual bodily harm:
section 47 of OAPA 1861 provides for the offence. The offence is established by
proving that the defendant intentionally or recklessly assaulted the victim, occasioning
actual bodily harm.
AR element of assault occasioning actual bodily harm as provided under section 47 of
OAPA 1861: assault or battery committed by the defendant which resulted in actual
bodily harm of the victim.
Assault or battery as the base crime: as established above.
Victim suffered actual bodily harm (ABH): As provided in Donovan, actual bodily harm
is defined as something more than merely transient and trifling. As per Miller, it can
cover a harm which interferes with health and comfort levels. Psychiatric injury as
provided in Ireland and Burstow, can amount to actual bodily harm if it is a medically
recognized condition and must be more than fear or panic or distress.
On the facts, Maisy had suffered from depression and anxiety, following the principles in
Ireland and Burstow, the two requirements are satisfied as (1) depression and anxiety
are both medically recognized condition, (2) depression and anxiety are both more than
fear or panic or distress. Therefore the victim of this case, Maisy has suffered actual
bodily harm.
The assault done by the defendant is the cause of the ABH: in establishing this element,
both factual and legal causation must be proven. Legal causation is proven using the
under s47 of the OAPA 1861 and malicious wounding under s20 of the Offences
Against Person Act 1861
In relation to the criminal liability of David to assault: section 39 of the Criminal
Justice Act 1988 provides for the offence of assault. The offence is defined in the case
of Venna which states that a person is guilty of assault if he intentionally or recklessly
leads someone to apprehend the application of his body of immediate unlawful force.
It is required to distinguish between assault and battery as they both are two separate
offences. Glanville Williams distinguishes the two by referring to battery as ‘physical
assault’ and assault as ‘psychic’ assault. Therefore it is clear that what distinguishes the
two is that assault requires no physical contact while battery requires the use of force.
AR element of assault: Causing the victim to apprehend application of immediate
unlawful force.
Apprehension of force: it is required to prove that the act of the defendant is capable of
causing the victim to realize that unlawful force will be applied on the victim. There does
not need to be any application of actual force on the victim. It can be done either
verbally or by words, as provided in R v Constanza words can cause the victim to
apprehend unlawful force. in addition Ireland provides that silent phone calls can also
amount to an assault, however this is dependent on the effect of the silent phone call to
the victim. In relation to conditional intent, Tuberville v Savage provides that
conditional intent cannot be a basis of an assault if it contains words that negate the
threat. And lastly as provided in Logdon, a victim may expect immediate force without
being in fear of it; an assault will occur either way.
On the facts, the act of David following Maisy around, writing her emails and letters and
hanging outside her apartment at night at a place where she can see him is sufficient to
cause Maisy to apprehend the application of force by David. As it is clear that Maisy
believe that David is going to do something physical in nature to her.
Immediacy: as provided in Smith v Chief Constable of Working Police Station, the
question to be asked is whether the defendant intends to cause the victim to believe
that he can and will carry out the threat immediately. The unlawful force must be
imminent.
On the facts, by David following Maisy around, writing her emails and letters and
hanging outside her apartment at night at a place where she can see him. It was clear
that David intended to cause Maisy to believe that he can and will carry out the threat
immediately. In addition, the fact that David knows where Maisy lives due to his act as
, mentioned above, it would clear that Maisy believes that he can and will carry out the
threat immediately. Therefore the element of immediacy is established.
MR element of assault: intention or subjective recklessness that an apprehension of
imminent or unlawful force would be created.
it is required to prove that the defendant intended to cause the victim to apprehend
imminent unlawful force or foresees that the victim would apprehend imminent unlawful
force. this involves the element of subjective recklessness as confirmed in Savage and
Parmenter, this would mean that the defendant must have realized the risk of causing
an apprehension of violence.
On the facts, by David doing what was stated above, it could be inferred that he
intended to cause Maisy to apprehend imminent unlawful force.
Therefore David now holds the offence of assault. however his offence of assault had
result in Maisy suffering from depression and anxiety. Therefore a better charge would
be assault occasioning actual bodily harm under section 47 of OAPA 1861.
In relation to David’s potential criminal liability to assault occasioning actual bodily harm:
section 47 of OAPA 1861 provides for the offence. The offence is established by
proving that the defendant intentionally or recklessly assaulted the victim, occasioning
actual bodily harm.
AR element of assault occasioning actual bodily harm as provided under section 47 of
OAPA 1861: assault or battery committed by the defendant which resulted in actual
bodily harm of the victim.
Assault or battery as the base crime: as established above.
Victim suffered actual bodily harm (ABH): As provided in Donovan, actual bodily harm
is defined as something more than merely transient and trifling. As per Miller, it can
cover a harm which interferes with health and comfort levels. Psychiatric injury as
provided in Ireland and Burstow, can amount to actual bodily harm if it is a medically
recognized condition and must be more than fear or panic or distress.
On the facts, Maisy had suffered from depression and anxiety, following the principles in
Ireland and Burstow, the two requirements are satisfied as (1) depression and anxiety
are both medically recognized condition, (2) depression and anxiety are both more than
fear or panic or distress. Therefore the victim of this case, Maisy has suffered actual
bodily harm.
The assault done by the defendant is the cause of the ABH: in establishing this element,
both factual and legal causation must be proven. Legal causation is proven using the
