Serious Violence & Assault
Offences Against The Person
Summary Only Offences – Magistrates Court Only
Summary only offences
These offences carry a maximum penalty of six months’ imprisonment.
The statutory time limit in section 127 Magistrates’ Court 1980 will apply: proceedings must be commenced within 6 months of the date the offence was committed. Note the exception for domestic abuse battery.
Battery / common assault
Section 39 Criminal Justice Act 1988 (CJA 1988)
Common assault is an act by which a person intentionally or recklessly causes another to suffer or apprehend immediate unlawful violence. Battery is committed by the intentional or reckless application of unlawful force to another person.
Consent is a defence to battery (see Brown, below). Reasonable punishment is a common law defence to battery in England, confined to battery by section 58 Children Act 2004.
Assaulting a constable in the execution of their duty
Assaulting a constable in the execution of their duty (section 89 Police Act 1996) involves a common assault or battery committed against a police officer or person assisting a police officer acting in the execution of their duty.
section 8 Prisons Act 1952 (“every prison officer while acting as such shall have all the powers, authority, protection and privileges of a constable”) this offence applies to prison officers as well.
Similar offences apply to private sector prison officers (section 90 Criminal Justice Act 1991), secure training centre custody officers (section 13 Criminal Justice and Public Order Act 1994) and immigration officers (section 22 UK Borders Act 2007).
Either Way Offences – Magistrates Court or Crown Court
Either way offences
The offences which are triable either in the magistrates’ court or crown court vary in their maximum penalty between 2 years’ imprisonment and 5 years.
Assault with intent to resist arrest
Section 38 OAPA 1861 – maximum 2 years’ imprisonment
This offence (section 38 OAPA 1861) is committed when a person assaults another person with intent to resist arrest or prevent the lawful apprehension/detention of themselves or another for any offence. This may be used for assaults on persons other than police officers, for example store detectives, who may be trying to apprehend or detain a suspect.
Ill-treatment or neglect
Section 127 Mental Health Act 1983, section 44 Mental Capacity Act 2005, sections 20 to 25 Criminal Justice and Courts Act 2015 – maximum 5 years’ imprisonment
These offences address ill-treatment and neglect of victims who are receiving treatment for mental disorders, those who lack mental capacity and those being cared for who have mental capacity respectively.
Assault occasioning actual bodily harm (ABH)
Section 47 OAPA 1861 – maximum 5 years’ imprisonment
This offence (section 47 OAPA 1861) is committed when a person intentionally or recklessly assaults another, thereby causing actual bodily harm (ABH). Harm need not be permanent but must be more than transient and trifling: R v Donovan;[1934] 2 KB 498. This definition was cited with approval in R v Brown [1994] 1 AC 212 which confirmed that consent may be a defence to battery but not to the infliction of any more serious harm (ABH or GBH), absent good reason for a recognised exception. Psychological injury not amounting to a recognisable psychiatric illness does not fall within bodily harm. Psychiatric injury should be supported by medical evidence: R v D [2006] EWCA Crim 1139 and R v Chan-Fook;[1993] EWCA Crim 1.
Strangulation and suffocation
Section 75A Serious Crime Act 2015 – maximum 5 years’ imprisonment
Strangulation (section 75A Serious Crime Act 2015) is the obstruction or compression of blood vessels and/or airways by external pressure to the neck. Suffocation is the depriving of a person of air which affects their normal breathing. This definition is wider than that of strangulation which requires pressure to the neck.
Unlawful wounding/inflicting grievous bodily harm (GBH)
Section 20 OAPA 1861 – maximum 5 years’ imprisonment
GBH means really serious harm. The harm does not have to be either permanent or dangerous: Golding [2014] EWCA Crim 889. Proof of wounding requires a break in the continuity of the skin. The distinction between a section 18 and section 20 GBH is the mens rea of the offence. Were the actions reckless or intentional.
For a section 20 GBH the suspect must intend, or foresee, that the act might cause some harm: R v Savage; DPP v Parmenter [1992] 1 AC 699..
Making a threat to kill
Section 16 OAPA 1861 – maximum ten years’ imprisonment
This offence requires proof that the suspect intended that the victim would fear that the threat to kill would be carried out.
It is important that the suspect intended the person to whom the threat was made (not who it concerned) to fear it would be carried out.
Indictable-Only Offences – Crown Court Only
Indictable-only offences
The following offences triable only in the Crown Court carry a maximum sentence of life imprisonment.
Wounding/causing grievous bodily harm with intent GBH
This offence (section 18 OAPA 1861) can only be committed where GBH (or wounding) is intended. Evidence of intention may come from different sources for example:
- ▸ selection and use of a particular weapon
- ▸ severity or duration of attack
- ▸ making prior threats or planning a serious attack
- ▸ relevant admissions in interview
Attempted murder
While murder can be committed where a victim is killed by a suspect who intends to kill them or cause GBH, attempted murder can only be committed where a suspect intended to kill the victim but the victim did not die (section 1(1) Criminal Attempts Act 1981).
Other offences under the Offences Against the Person Act 1861:
- ▸ spiking, i.e. using a drug with a view to raping someone: section 22 administering any stupefying or overpowering drug with intent to commit an indictable offence (with potential alternative offences under section 23 or 24 depending on the evidence of intention)
- ▸ potting, i.e. throwing faeces or urine at a person: section 24 administering any poison or destructive or noxious thing with intent to injure, aggrieve or annoy a person
- ▸ acid attacks i.e. throwing acid at a person to injure them: section 29 casting or throwing a corrosive fluid or destructive or explosive substance with intent to do grievous bodily harm.
Determining the Level of Injury
Determining the level of injury
Examples where the injury is most likely to amount to common assault or battery include:
- ▸ grazes
- ▸ scratching
- ▸ abrasions
- ▸ minor bruising
- ▸ swelling
- ▸ reddening of the skin
- ▸ superficial cuts
Examples where the injury is most likely to amount to ABH as it is more than transient or trifling include:
- ▸ damaged teeth or bones
- ▸ extensive or severe bruising
- ▸ cuts requiring suturing
- ▸ loss of consciousness
Examples where the injury is most likely to amount to GBH:
- ▸ life changing injuries
- ▸ significant or sustained medical treatment is required (for instance, intensive care or a blood transfusion) even if full or relatively full recovery follows.
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