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.
False Imprisonment
False imprisonment is an offence at common law.
Offences
The unlawful and total restraint of the personal liberty of another, whether by constraining them or compelling them to go to a particular place or by confining them in a prison or police station or private place or by detaining them against their will in a public place.
Points to Prove
- ✓ imprisoned, detained, or arrested
- ✓ another person
- ✓ against their will
- ✓ unlawfully
Defences
That the taking or detaining was in the course of a lawful arrest or detention under PACE or acting under another statutory or common law power.
There are occasions whereby there is a lawful defence to allow the deprivation of liberty:
- ▸ Lawful Arrest or Detention authorised by statute or warrant.
- ▸ Consent if the individual voluntarily agreed to the confinement.
- ▸ Citizen’s Arrest permissible in circumstances under the Criminal Law Act 1967.
- ▸ Necessity to prevent harm, including in medical emergencies and detention sanctioned under the Mental Health Act 1983 or safeguarding regulations.
- ▸ A parent detaining a child for purposes of reasonable parental discipline.
Meanings
Imprisoned, detained or arrested
The claimant must be completely restrained; obstruction or inconvenience is insufficient to prove the offence of false imprisonment.
Unlawful
The detention must be unlawful, if there is a statutory power of arrest then false imprisonment is not made out. The point to prove is if there was a lawful justification at the time of the restraint.
Intention or Recklessness
Malicious intent is not a necessary point to prove for the commission of the offence, however, the act must be intentional or committed with reckless disregard. Proof is not required to establish if the defendant knew the imprisonment was unlawful.
Awareness of Detention
The complainant does not need to have been consciously aware of the infringement, underpinning the principle that an individuals’ liberty is protected.
Allocation and Punishment
False Imprisonment
Crown Court only
Maximum – Life imprisonment and/or fine
Kidnap
Is a common law offence.
Offences
The taking or carrying away of one person by another, by force or fraud, without the consent of the person so taken or carried away, and without lawful excuse.
Common law
Points to Prove
- ✓ without lawful excuse
- ✓ by force/fraud
- ✓ took/carried away
- ✓ another person
- ✓ without their consent
Meanings
Fraud
Means deceit, guile, or trick.
Defences
Consent or lawful excuse.
Allocation and Punishment
Kidnap
Crown Court only
Maximum – Life imprisonment and/or fine
Child Abduction
The Child Abduction Act 1984 covers two offences of child abduction the first regards a person connected to the child (parent/guardian) whilst Section 2 of the Act is committed by any other persons.
Offences
Subject to subsections (5) and (8) below, a person connected with a child under the age of 16 commits an offence if he takes or sends the child out of the United Kingdom without the appropriate consent.
Child Abduction Act 1984, s 1(1)
Points to Prove
- ✓ being a parent/person connected with
- ✓ a child under 16 years of age
- ✓ took/sent that child
- ✓ out of the United Kingdom
- ✓ without the appropriate consent
Meanings
Person connected (s 1(2))
A person connected with a child for the purposes of this section is:
- ▸ (a) a parent of the child; or
- ▸ (b) in the case of a child whose parents were not married to each other at the time of birth, there are reasonable grounds for believing that he is the father of the child; or
- ▸ (c) the guardian of the child; or
- ▸ (ca) a special guardian of the child; or
- ▸ (d) a person named in a child arrangements order as a person with whom the child is to live; or
- ▸ (e) has custody of the child.
Takes
A person is regarded as taking a child if they cause or induce the child to accompany them, or any other person, or causes the child to be taken.
Sends
A person is regarded as sending a child if they cause the child to be sent.
Appropriate consent (s 1(3))
(a) This means the consent of each of the following:
- ▸ (i) the child’s mother;
- ▸ (ii) the child’s father, if he has parental responsibility for him;
- ▸ (iii) any guardian of the child;
- ▸ (iiia) any special guardian of the child;
- ▸ (iv) any person named in a child arrangements order as a person with whom the child is to live;
- ▸ (v) any person who has custody of the child; or
- ▸ (b) the leave of the court granted under or by virtue of any provision of Part 2 of the Children Act 1989; or
- ▸ (c) if any person has custody of the child, the leave of the court which awarded custody to him.
Defences
(4) A person does not commit an offence under this section by taking or sending a child out of the United Kingdom without obtaining the appropriate consent if—
(a) he is a person named in a child arrangements order as a person with whom the child is to live, and he takes or sends the child out of the United Kingdom for a period of less than one month; or
(b) he is a special guardian of the child and he takes or sends the child out of the United Kingdom for a period of less than three months.
(4a) Subsection (4) above does not apply if the person taking or sending the child out of the United Kingdom does so in breach of an order under Part 2 of the Children Act 1989.
(5) A person does not commit an offence under this section by doing anything without the consent of another person whose consent is required under the forgoing provisions if—
(a) he does it in the belief that the other person— (i) has consented; or (ii) would consent if he was aware of all the relevant circumstances; or
(b) he has taken all reasonable steps to communicate with the other person but has been unable to communicate with him; or
(c) the other person has unreasonably refused to consent.
(5A) Subsection (5)(c) above does not apply if—
(a) the person who refused to consent is a person— (i) named in a child arrangements order as a person with whom the child is to live; or (ia) who is a special guardian of the child; or (iii) who has custody of the child; or
(b) the person taking or sending the child out of the United Kingdom is, by so acting, in breach of an order made by a court in the United Kingdom.
(8) This section shall have effect subject to the provisions of the Schedule to this Act in relation to a child who is in the care of a local authority detained in a place of safety, remanded otherwise than on bail or the subject of proceedings or an order relating to adoption.
Child Abduction Act 1984, s 1
Allocation and Punishment
Child Abduction (s1)
Magistrates Court: 6/12 months imprisonment and/or fine
Crown Court: 7 years imprisonment
Abduction of Child by Another Person
This is an offence in relation to the taking or detaining of a child where the offender is not connected with that child.
Offences
Subject to subsection (3) below, a person, other than one mentioned in subsection (2) below, commits an offence if, without lawful authority or reasonable excuse, he takes or detains a child under the age of 16—
(a) so as to remove him from the lawful control of any person having lawful control of the child; or
(b) so as to keep him out of the lawful control of any person entitled to lawful control of the child.
Child Abduction Act 1984, s 2(1)
Points to Prove
- ✓ without lawful authority/reasonable excuse
- ✓ detained or took
- ✓ a child under 16 years of age
- ✓ so as to remove/keep them
- ✓ from/out of the lawful control
- ✓ of a person having/entitled to lawful control
- ✓ of that child
Meanings
Detains
A person is regarded as detaining a child if they cause the child to be detained or induce the child to remain with them or any other person.
Remove from lawful control
This can be satisfied if the child is induced to take some action that they would not normally have done (R v Leather [1993] 1 WLUK 699).
Explanatory notes
• The offence is subject to a statutory defence of consent (s 2(3)—below).
• This offence does not apply to persons listed in s 2(2) namely: the child’s father and mother—being married to each other, or civil partners, at the time of the birth; the child’s mother—where the father was not married to, or civil partners with, her at the time of the birth; any other person mentioned in s 1(2)(c) to (e) above.
Defences
It shall be a defence for that person to prove—
(a) where the father and mother of the child in question were not married to, or civil partners of, each other at the time of his birth— (i) that he is the child’s father (ii) that, at the time of the alleged offence, he believed, on reasonable grounds, that he was the child’s father, or
(b) that, at the time of the alleged offence, he believed that the child had attained the age of 16 years.
Child Abduction Act 1984, s 2(3)
Allocation and Punishment
Abduction of Child by Another Person (s2)
Magistrates Court: 6/12 months’ imprisonment and/or a fine
Crown Court: 7 years’ imprisonment
Murder
Offence
Where a person of sound mind and discretion unlawfully kills any reasonable creature in being and under the King’s peace, with intent to kill or cause grievous bodily harm.
Common Law
Points to Prove
- ✓ Unlawfully killed a human being
- ✓ with the intent to kill or cause grievous bodily harm
Meanings
Sound mind and discretion
Every person of the age of discretion is presumed to be sane and accountable for their actions unless proved otherwise. This means anyone who is not insane or anyone over 10 years old.
Unlawfully
Without lawful authority, legal justification, or excuse.
Kills
This is the act which is the substantial cause of death.
Reasonable creature in being
Any human being, including a baby born alive having an independent existence from its mother.
Under the King’s peace
This excludes killings committed in the course of war.
Intent
An intention to kill or to cause grievous bodily harm.
Cause/Causation
If there is an intervening factor between the defendant’s actions and the death of the victim, the jury will have to consider whether the defendant’s act contributed significantly to the death.
Grievous bodily harm
Serious or really serious harm.
Defences to Murder
Insanity
See the meaning of ‘sound mind and discretion’ above.
Lawful killing
Means with lawful authority; legal justification or excuse, including self-defence.
At war
This is self-explanatory, not being under the ‘King’s peace’.
Specific Defences
Loss of control
Where a person (‘D’) kills or is a party to the killing of another (‘V’), D is not to be convicted of murder if—
(a) D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control,
(b) the loss of self-control had a qualifying trigger, and
(c) a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.
Coroners and Justice Act 2009, s 54(1)
Diminished responsibility
(1) A person (‘D’) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which—
(a) arose from a recognised medical condition,
(b) substantially impaired D’s ability to do one or more of the things mentioned in subsection (1A), and
(c) provides an explanation for D’s acts and omissions in doing or being a party to the killing.
(1A) Those things are— (a) to understand the nature of D’s conduct; (b) to form a rational judgment; (c) to exercise self-control.
Homicide Act 1957, s 2
Suicide pact
Means a common agreement between two or more persons having for its object the death of all of them, whether or not each is to take his own life, but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact.
Homicide Act 1957, s 4(3)
Allocation and Punishment
Murder
Crown Court only
Maximum – Life imprisonment
Manslaughter
Offence
Manslaughter is the unlawful killing of another human being which can either be a voluntary or involuntary manslaughter offence.
Common Law
Points to Prove
- ✓ Unlawful act or gross negligence
- ✓ Killed a human being
Meanings
Unlawful killing
Without lawful authority, legal justification, or excuse is the substantial cause of death.
Voluntary manslaughter
When a murder charge is reduced to voluntary manslaughter by reason of one of the specific defences to murder (see above).
Involuntary manslaughter
An unlawful killing without an intention to kill or cause grievous bodily harm. Apart from the required intent, the elements of the offence are the same as for murder.
Manslaughter can be caused by:
- ▸ Unlawful act (not omission): the unlawful act must be unlawful in itself (another criminal offence such as assault or threaten to kill) and must involve a risk that someone would be harmed by it;
- ▸ Gross negligence (involving breach of duty): gross negligence manslaughter requires a breach of a duty of care owed by the defendant to the victim under circumstances where the defendants conduct was serious enough to amount to a crime.
Allocation and Punishment
Manslaughter
Crown Court only
Maximum – Life imprisonment
Death or Serious Physical Harm to a Child or Vulnerable Adult
Section 5 of the Domestic Violence, Crime and Victims Act 2004 creates the offence by means of an unlawful act.
Offences
A person (‘D’) is guilty of an offence if—
(a) a child or vulnerable adult (‘V’) dies or suffers serious physical harm as a result of the unlawful act of a person who— (i) was a member of the same household as V, and (ii) had frequent contact with him,
(b) D was such a person at the time of that act,
(c) at that time there was a significant risk of serious physical harm being caused to V by the unlawful act of such a person, and
(d) either D was the person whose act caused the death or serious physical harm or— (i) D was, or ought to have been, aware of the risk mentioned in paragraph (c), (ii) D failed to take such steps as he could reasonably have been expected to take to protect V from the risk, and (iii) the act occurred in circumstances of the kind that D foresaw or ought to have foreseen.
Domestic Violence, Crime and Victims Act 2004, s 5(1)
Points to Prove
- ✓ being a member of the same household and having had frequent contact with a person who was at that time a child/vulnerable adult
- ✓ caused that person’s death OR
- ✓ caused that person to suffer serious physical harm OR
- ✓ was, or ought to have been, aware that there was a significant risk of serious physical harm being caused to that person
- ✓ by the unlawful act of a member of their household
- ✓ which occurred in circumstances of the kind that the defendant foresaw or ought to have foreseen and
- ✓ the defendant failed to take such steps as they could reasonably have been expected to take to protect them from that risk
Meanings
Child
Means a person under the age of 16 years.
Vulnerable adult
Means a person aged 16 or over whose ability to protect themselves from violence, abuse, or neglect is significantly impaired through physical or mental disability or illness, through old age, or otherwise. This includes a temporary vulnerability as well as one which is permanent.
Act
This includes a course of conduct and includes omission.
Member of the same household
This includes people who do not live in that household, providing they visit often and for such periods of time that they are regarded as a member of it.
Serious physical harm
Means grievous bodily harm for the purposes of the Offences Against the Persons Act 1861.
Allocation and Punishment
Death or Serious Physical Harm to a Child or Vulnerable Adult
Crown Court only
Causing/allowing death: Life imprisonment and/or fine
Causing/allowing serious physical harm: 14 years imprisonment and/or fine
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