The Blip Blop Blog (Team Entity)

Police officers are allowed to make contact with others in the course of their duty and not all physical contact made by a police officer will amount to battery. In Donnelly v Jackman (1970) a police officer tapped the defendant on the shoulder to bring his attention to something and the defendant turned around and assaulted the police officer. The defendant was charged with assaulting a police officer in the course of his duty and the defendant countered by alleging that the police officer’s actions amounted to battery. The court decided that the police officer’s actions did not amount to battery. Some leeway must be given to police officers to enable them to do their job or to carry out their duties effectively. That scope however is quite narrow. 3. Physical force or the application of physical force. In order to be convicted for battery the defendant must have applied some sort of physical force that is unreasonable under the circumstances and does not fall un

Can there be consent to battery? The answer in short is yes. In Collins v Wilcock (1984) a police constable tried to arrest a woman as per s. 1 (3) of the Street Offences Act (1959) which reads as follows: - “A constable may arrest without warrant anyone he finds in a street or public place and suspects, with reasonable cause, to be committing an offence under this section”. The woman tried to walk away, and the police officer tried to stop her by grabbing her hand. The woman struggled to free herself and in doing so scratched the police officer. The woman was charged with assaulting a police officer. It was held that the police officer’s actions amounted to battery. He had no power to arrest the woman and her actions were in self-defense. The court took the opportunity to elaborate on the offence of battery. Battery can be defined as the offence of making physical contact with someone i.e. touching, pulling, elbowing, grabbing etc. without their consent. Howeve

2. The act must be unlawful i.e. the act must be in breach of either common law or statute but if the defendant has reasonable excuse to use force than the act will not be construed as unlawful. A defendant has a valid excuse to use force: - ·       When he or she is trying to defend himself or herself. At common law anyone is allowed to use reasonable force to protect himself or herself. In R v Scarlett (1994) The defendant was a publican who was trying to evict a customer who was drunk. The defendant asked the customer to leave and he refused to do so and the defendant believed that the man was about to strike him so he pinned the man’s arms to his back and forcefully took him outside and left him by the wall of the lobby. The man fell backwards, down a flight of 5 steps, hit his head and died as a result. The defendant was tried and convicted for manslaughter. The defendant appealed. The appeal was allowed and the conviction was quashed. There was no evidence to

In order to convict for battery, the prosecution must establish three elements. They are as follows: - 1.      Force was applied 2.      The force was unlawful 3.      It was physical (psychiatric illnesses are classed as assaults see R v Ireland (1997)) 1. Application of physical force In Fagan v MPC (1969) the defendant was in his car when he was approached by a police officer who told him to move his vehicle. The defendant did so and reversed his car onto the foot of the police officer. The police officer somewhat forcefully told the defendant to move the car off his foot and the defendant swore at the police officer, switched off the engine and refused to do so. The defendant was tried and convicted for assault and appealed the decision. The appeal was dismissed. In this instance, the defendant committed the unlawful act by moving his car on to the police officer’s foot, he applied force by not removing the car when directed to do so by the police officer and

In R v Savage (1991) the defendant threw a glass of beer at her husband’s ex-girlfriend, but the glass slipped from her hand and resulted in serious injury to the victim. The defendant was tried and convicted for maliciously causing grievous bodily harm to another under s.20 of the Offences Against the Person Act (1861). The defendant appealed on the grounds that the word malicious required intent and the defendant had not intended to cause the victim the kind of harm or injury that resulted from her actions. The trial judge had failed to inform the jury that the test to convict under s20. of the Offences Against the Person Act (1861) was subjective and the jury had to establish intent before it could convict under s20. However, given the facts it was possible to convict under s.47 of the Offences Against the Person Act (1861), if the defendant could foresee that some harm would result from her actions albeit not the exact type of harm or injury that resulted. The matter was re

Battery is a summary offence i.e. an offence that is tried at a magistrate’s courts. It is an offence that in most instances follows an assault. The defendant first verbally abuses or intimidates the victim and soon after carries out his or her threat by using some form of physical violence. Section 39 of the Criminal Justice Act 1988 gives us an idea of the offence. The section reads as follows: - “Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both”. The mens rea (mental element) for battery is as follows: - 1.      An intention to apply unlawful physical force or 2.      Reckless as to whether such force is applied or not. In R v Parmenter (1991) the defendant was convicted on four counts of causing grievous bodily harm to his infant son. The types of injuries included bruises, broken bo

4. The victim must apprehend personal violence or violence towards himself or herself i.e. the victim must apprehend fear of immediate violence to his or her person. If the victim does not take fear and is injured or dies because of some other inherent cause or causes, the defendant’s actions may not be construed as an assault. In R v Dawson (1985) the defendant attempted to rob a petrol station armed with a gun and an axe-handle. The defendant pointed the gun at the attendant but did not in any way attempt to use the gun or the axe-handle. The attendant pressed the alarm button and as soon as the alarm rang the defendant ran away. Unknown to the defendant, the attendant suffered from a serious heart condition and once the defendant had fled the attendant had a heart attack and collapsed. He died soon after. The defendant was tried and convicted for constructive manslaughter and the defense appealed. The conviction was quashed. Children more than adults are the most

3.      The act must be unlawful or in order for an act to constitute an assault it (the act) must be unlawful. In R v Larkin (1942) the accused was brandishing a razor intending to frighten his mistress’s lover in the presence of his mistress. His mistress, who was drunk at the time, stumbled while the accused was brandishing the razor and her throat was cut. The woman died as a result. The accused was tried and convicted for constructive manslaughter and the defense appealed. It was held that the fact that there was an assault directed at his mistress’s lover i.e. to put him in fear of his life, was an unlawful act and it was sufficient to establish constructive manslaughter. The act need not be directed at the victim. In R v Arobekieke (1988) the accused was chasing a victim and the latter ran into a train station and got on board a stationary train. The accused peered into the carriage doors in search of the victim and the victim, in fear, jumped out off the train an

2.      The fear must be immediate. The victim must apprehend fear at the time the assault was committed and not a day, a week, a month later or somewhere down the track. In Tuberville v Savage (1669) the defendant placed his hands on the hilt of his sword and said to the victim “if it were not for the fact that it is assize-time (the assize judge was in town) I would not take such language from you”. It was held that the defendant’s acts and actions did not constitute an assault.  In Tuberville v Savage (1669) the defendant had clearly told the victim that no harm would come to him or her as long as the assize judge is in town. In R v Constanza (1997) the defendant for a period of almost two years followed a female ex-colleague from work, sent her over 800 threatening letters and made numerous silent phone calls to her number. The victim was eventually diagnosed by a doctor as suffering from clinical depression and anxiety due to fear caused by the defendant’s actions.

The defendant can commit an assault by merely remaining silent. In R v Ireland (1998) the defendant harassed three separate women over a period of three months by continuously making repeated phone calls to them and remaining silent. He was convicted under s.47 of the Offences Against Persons Act (1861) (OAPA 1861) which reads as follows: - s.47 Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable  . . . [to imprisonment for a term not exceeding 7 years] . . . ; and whosoever shall be convicted upon an indictment for a common assault shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding [two years]. The defendant appealed on the grounds that silence cannot constitute an assault. The appeal was dismissed, and the conviction was upheld. Silence can constitute an assault when it is done to instill fear in the victim or to intimidate the victim. “The proposition that a gesture

The rule that words alone are sufficient to constitute an assault became firmly entrenched in the case of R v Ireland and Burstow (1997) which further broadened the scope of liability for assault that is committed merely with words and continued along the lines of what was said (obiter) in R v Wilson (1955) and the decision in R v Constanza (1997). In R v Ireland and Burstow (1997) the defendant and the victim were in a brief relationship which the victim unexpectedly ended. Unhappy with the victim’s decision, the defendant harassed the victim for several months making repeated phone calls, sending her threatening letters, turning up unexpectedly and speaking to her neighbors. The defendant’s actions caused the victim to succumb to a psychiatric illness (severe depression). The question before the courts were as follows: - 1.      Are words alone sufficient to constitute an assault and 2.      Does psychiatric illness (injury) fall within the scope of s. 18, s. 20 and

In order to convict for assault the prosecution must establish that the assault was directed at the person and not at someone else despite the fact that the victim may apprehend immediate fear. In R v Pembliton, (1874) the defendant was ejected from a pub and became involved in a fight with a group of men in the street. The defendant picked up a large stone and threw it at the men, but the stone missed and crashed through the pub window behind them. The question that arose was whether malicious intention could be transferred, and it was held that malicious intention to strike a person or the intention to cause some form of injury to a person could not be transferred to breaking a shop window. However, the defendant could be found guilty if his actions were reckless. In R v Martin (1881) the defendant shut the doors at a theater and placed a crossbar across the door. He then switched off the lights on a staircase and yelled “fire”. His actions caused a panic and some of t

In R v Meade and Belt (1823) the defendants surrounded the plaintiff’s house singing menacing and threatening songs. It was held that mere singing alone could not constitute an assault. It’s worth comparing the decision in R v Meade and Belt (1823) with the decision in Read v Coker (1853). In Read v Coker (1853) the plaintiff was a paper-stainer who rented a premise from the defendant. The plaintiff fell behind in his rent and the defendant employed a third party to purchase his fixtures (machines, apparatus etc.) and resell them back to the defendant. Subsequently the plaintiff and the defendant came to an arrangement where the plaintiff could continue to use his fixtures in the employment of the defendant. The defendant later became dissatisfied with the plaintiff and ordered him to leave. When the plaintiff (Read) tried to return to the premises the defendant had his men surround him and the men threatened to break his neck. The plaintiff filed for assault and wa

The actus reus (the physical element) for assault can be divided into four components. They are as follows:- 1.      The victim must apprehend violence. 2.      It must be immediate i.e. the victim is of the belief that the defendant is going to act or react violently at the time the words were spoken or the threatening gestures were made and not something that is going to occur a day or a week later or something that is going to happen somewhere down the track see Tuberville v Savage (1669). 3.      It must be unlawful. 4.      The victim must apprehend personal violence or violence towards himself or herself. 1.      The victim must apprehend violence:- In Tuberville v Savage (1669) the defendant placed his hands on the hilt of his sword and said to the victim “if it were not for the fact that it is assize-time (the assize judge was in town) I would not take such language from you”. It was held that the defendant’s acts and actions did not constitute an assault.

In order to successfully convict for assault the prosecution must establish both the mental element (mens rea) and the physical element (actus reus).  The mens rea for assault is the intention to put the victim in fear or cause him or her to apprehend immediate and unlawful violence or recklessly causing the victim to apprehend immediate and unlawful violence. In Fagan v MPC (1969) the defendant was in his car when he was approached by a police officer who told him to move his vehicle. The defendant did so and reversed his car onto the foot of the police officer. The police officer somewhat forcefully told the defendant to move the car off his foot and the defendant swore at the police officer, switched off the engine and refused to do so. The defendant was tried and convicted for assault and appealed the decision. The appeal was dismissed. Assault per se may not be sufficient to amount to a crime and it is a crime that often goes hand in hand with battery. Assault is al

Assault is defined as the act of intentionally or recklessly causing the victim to apprehend immediate and unlawful violence i.e. it is an offence that can be committed intentionally or an offence that can be committed without giving due thought to the impact that it would have on the victim. Assault per se does not involve physical contact i.e. the defendant does not have to a lay a finger on the victim. It suffices that the conduct of the defendant (by words or actions) has put the victim in fear of his or her life. However in order to successfully convict for assault the prosecution also needs to establish that:- 1.      the defendant had sufficient capacity or ability to carry out the threat and 2.      the defendant showed  a willingness to carry out the threat. As per s39 of the Criminal Justice Act 1988 - Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine not exceeding level 5 on the standard scal

The decision in R v DPP ex parte Jones (2000) was followed in  DPP v Rowley (2003) and in addition to the four elements that have been mentioned earlier, in the absence of subjective recklessness there may be a fifth element that needs to be satisfied i.e. the element of badness or criminality. In short the conduct of the defendant or his or her omission must be so bad that it is not sufficient that a mere fine is imposed or the victim is compensated but calls for criminal punishment i.e. it amounts to a crime against the state. If there is no subjective recklessness and the prosecution cannot establish badness or criminality than the chances are that the prosecution will not be able to convict for gross negligence manslaughter. Even if the victim has made a conscious decision to inflict some harm to his or her person, for example when the victim injects himself or herself with a class A drug, the defendant (the person who supplied the drug) can still be convicted of gross n