Answer to Question 1 Often, individuals confuse assault and battery. Some take assault to mean battery while others and vice versa. According to criminal law, both assault and battery are two different offences. The former refers to any form of reasonable threat that party gives to the other; while the latter refers to the actual use of force by one party against the other with the intention of causing physical harm without the consent of the other party. The current law on assault and battery as well as highlighting the confusion that exists and ways to avoid it will further be discussed. Both assault and battery are criminal offences and are tried as felony or misdemeanor based on the seriousness of damage caused.
It is worth noting that assault alone is quite difficult to prove and thus it barely stands alone in a court of law. After all, proving threats can be quite tricky. Battery, on the other hand, can be easily proven since it involves physical injuries. As such battery will involve assault, but assault does not always involve battery. In other words, assault is a catalyst to battery. The penalties for such crimes may vary depending on the severity of the injury, and circumstances. According to the Criminal Act 1988, both assault and battery shall be treated as summary offences. Anyone found guilty is liable to a jail term not exceeding six months, an unlimited fine, or both.
We Will Write a Custom Essay Specifically
For You For Only $13.90/page!
The confusion between battery and assault exists, and only those with a good grasp of law can clearly state the difference. “Assault can be broken down into two parts and defined as, Actus reus: the defendant caused the victim to apprehend imminent unlawful force and the Mens rea: the defendant intended or was reckless that the victim would apprehend imminent unlawful force. Battery can be divided into two parts and defined as Actus reus: the defendant touched or applied force to the victim and the Mens rea: the defendant intended or was reckless as to touching or applying force to the victim.
” More specifically, assault requires a threat with no contact while in battery contact is a necessity. Despite the fact that no contact is required for assault, both intent and act are required. The act, in this case, doesn’t require to be one of contact. Rather, one that would put a reasonable man’s life in danger.
In a court of law, spoken words may not be enough evidence unless it is supported by actions that put them in imminent fear of their safety. The intent requirement justifies merely that assault cannot be accidental whatsoever. A simple intent to scare another person is enough to constitute assault charges.
For example in the case of R v Ireland, Ireland made several calls to a number of women, on answering he remained silent, hence causing psychological damage to the women. In that case silent telephone calls were held to be assaults. It is clear from Lord Steyn’s judgment that what matters is that the defendant has caused the victim to apprehend imminent harm. Exactly how that fear was created is immaterial (be it by acts, silence, writing, or words). When it comes to battery, there has to be intentional touching that causes injury to the other party without their consent.
Several requirements are required to establish battery charges. There is the intent and act requirement. The intent requirement here is different from that in an assault in that the intention to cause harm is barely needed. The required intent is that of causing contact. Consequently, an accidental contact with someone that causes them harm may not be regarded as battery. The act requirement is quite significant in battery cases. It doesn’t even need to cause harm; as long as offensive contact is made it amounts to battery.
For instance, spitting saliva on a person may not injure them physically, but it amounts to battery. Several defenses are available for both assault and battery. The most common one is self-defense.
However, for the defendant to prove self-defense they ought to prove beyond reasonable doubt several things – that there was a real threat against them, the threat caused fear to them, there was scarcely a chance to escape the situation, and that no harm was done to them. The other defense is that of defense to others. This one is quite similar to self-defense only that the defendant must prove legitimate fear of harm to the other person. The third defense is that of property. One can claim that they used force in defense of the damage or theft of their own property. Depending on the jurisdiction, consent may be available as a defense.
In this case, if the victim has consented voluntarily to a specific act then that cannot amount to battery or assault.The case of R V Burstow relates quite perfectly to assault and battery. In this case, the defendant had a short spell of romantic relationship in which ended. The defendant was quite unhappy with the turn of events and began harassing the victim for several months. He sent offensive mails, made irritating and repeated phone calls, harassed the victim’s neighbors, and appeared at the residence of the victim unexpectedly among other acts. In the end, the victim suffered psychiatric injury. The main issue in the case was whether depression could be classified as a bodily harm as per the existing laws during that time.
It was held by the House of Lords that indeed psychiatric injury amounts to bodily harm. This decision was also reaffirmed in the case R v Chain Fook. It was considered a good thing that the law provides recourse to individuals suffering malicious harassment from their former lovers. The court further clarified that the word inflict does not only mean an action that causes physical harm but simply actions that causes injury. Consequently, the defendant was charged with assault. That case clearly illustrates the difference between assault and battery. In an attempt to eliminate the confusion between assault and battery, placing both on a statutory footing is an option. This action will require that a proposed bill be debated following the stages involved the lawmaking according to the English legal system, enacting only after receiving royal assent.
The proponents of such a move may argue that it will be readily accessed by the public and consequently be misused and misunderstood. They may also argue that it is perfect due to the long scrutiny process it undergoes in the legislature. Nevertheless, such law may not be effective. Principally, the legislature is dominated by politicians who are not judges and are likely to drive a political agenda. Secondly, statute law is quite rigid. That’s a massive setback considering the pliable nature of assault and battery cases.
When changes are required, it may take quite a long time to effect. In conclusion, the cases of assault and battery are on the rise. The use of social media has a major factor. Offensive messages that one may send to another party can amount to assault as seen in the case of R V Burstow. It is up to the judges to become flexible when deciding such cases. The confusion between the two is not a problem if the judicial system is effective. It is up to the public to learn and understand the difference.
A statutory footing is not the solution. Case law is quite dynamic and offers precedent for future cases.Word Count:1242Answer to Question 2 According to the scenario, Tom is identified as the defendant.
There are several issues, Tom shouts at Jerry and throws a bottle in his direction, later that day, Tom goes to Jerry’s shop and holds the gun straight to window which causes Jerry to fall and hit his head sustaining a bruise. Another issue is Tom throws a bottle which hits Donald, who sustained a deep cut and had to be taken to the hospital for stitches. The last issue is Tom rugby tackles Hanif who then suffered a broken ankle. The offence being s47/s20/s18 Offence Against the Person Act 1861 (OAPA) and s39 Criminal Justice Act 1988 (CJA). Assault formerly known as common assault now falls under section 39 of the Criminal Justice Act 1988, refers to any action that amounts to an attempt to injure or harm someone else. In most cases, it is usually a threat. In an assault, contact is not necessary. Assault Occasioning Actual Bodily Harm is found in Section 47 of the OAPA and refers to committing an assault or battery which causes the victim to suffer actual bodily harm.
Grievous Bodily Harm and Wounding are non-fatal offences under Malicious Wounding and are contained in the OAPA Section 20 and Section 18. It refers to the breaking of the entire outer or the inner skin (within the lip or mouth) of an individual. GBH or wounding does not at all involve the tearing of the internal blood vessels. On the other hand, GBH and wounding involves more serious harm and may involve the rupturing of internal vessels of individuals.
Assault s39 CJA, Tom shouts at Jerry and throws a bottle in his direction. Actus reus: the defendant caused the victim to apprehend imminent unlawful force. By Tom shouting and throwing the bottle, Jerry apprehended immediate unlawful personal violence. Mens rea: the defendant intended that the victim would apprehend imminent unlawful force. As illustrated in Fagan v Metropolitan Police Commissioner it was suggested by the Divisional Court that an assault requires proof of a positive act. The act of throwing the bottle shows that Tom intended for Jerry to become fearful, If not for Jerry ducking he would have sustained serious harm and the offence could have been elevated to Assault Occasioning Actual Bodily Harm. Assault Occasioning Actual Bodily Harm s47 OAPA, Actus reus: the defendant must commit an assault which causes the victim to suffer Actual Bodily Harm (ABH).
In this case Tom pointing the gun at Jerry through the window can constitute assault because on seeing the gun, Jerry attempted to run. This action of running on Jerry’s part indicated that he apprehended immediate unlawful personal violence, as in Logdon v DPP. Mens rea: the defendant must intend or be reckless as to the assault. The causation being assault which caused the victim to suffer ABH. But for Tom holding a gun to Jerry’s window Jerry would not have run and fallen and sustained a bruise to his head? R v White. Using R v Roberts, Novus Actus Intervenienes, Act of Victim, implies that Tom’s action was the cause of the injury. Actual bodily harm has been defined as ‘any hurt or injury calculated to interfere with the health or comfort’ of the victim. The harm need not be permanent, but it should ‘not be so trivial as to be wholly insignificant’.
The act and intention requirements are visible in this case. Maliciously Wounding or causing Grievous Bodily Harm with intent s18 OAPA, Tom shouted at Jerry and threw a bottle intending to hit Jerry but instead hit Donald causing a deep wound to his head in which he had to be taken to the hospital. A wound as defined in C v Eisenhower to mean a break in the continuity of the whole of the skin. The doctrine of transferred malice states that the defendant cannot escape liability by merely showing that the intended harm was directed against a different person than the actual victim as evidenced in R v Latimer. In which case Tom has to accept liability for inflicting harm to Donald even though he intended to harm Jerry.
Actus reus: the defendant unlawfully wounded or caused grievous bodily harm to any person. The act is simply throwing the bottle forcefully in Jerry’s direction to cause injury. That act caused injury on Donald’s head. Mens rea: the defendant intended to cause grievous bodily harm. Using the but for test, but for Tom throwing a bottle Donald would not have sustained a wound? R v White. The Legal causation is because Tom’s culpable act caused the injury as illustrated in R v Dalloway.
Intent meaning purpose or aim. When it comes to intent requirements, going into Jerry’s store, shouting the words “I have heard enough of you stealing my customers!” and throwing a glass bottle, which when broken can inflict serious injury, clearly shows that Tom is angry with Jerry enough to cause harm. It was obvious that he intended or could foresee that some harm will result. This offence is only triable after indictment.
Grievous Bodily Harm s20 OAPA, Tom rugby tackles his friend, Hanif who sustained a broken ankle. It was unknown to Tom that Hanif suffered from a disease that caused brittle bones. Actus reus: the defendant unlawfully inflicted grievous bodily harm to the victim.
Tom rugby tackled Hanif during which he sustained a broken ankle. Mens rea: the defendant foresaw that the victim might suffer some harm. Using the factual causation but for test, But for Tom rugby tackling Hanif, Hanif would not have broken his ankle. Legal causation is that the Tom’s tackle is the operating and substantial cause as illustrated in R v Pagett. and he cannot rely o Hanif’s underlying medical condition. In performing the act Tom anticipated that Hanif would sustain some harm, no matter how minor. It is not necessary to show that the defendant intended or foresaw that the victim would suffer grievous bodily harm.
In conclusion, it is worth realizing that all offences presented carry sentencing of six months to life imprisonment if found guilty. Tom’s best defenses include self-defence, where the accused has carried out the offence to protect himself. His conduct must be “necessary” to defend himself and protect his property/business as in the cases involving Jerry. Also he can indicate where the victim consented in the case involving Hanif in addition to Hanif’s bone condition was unknown to him and there was no way of knowing if he would have broken is ankle anyway. As a last resort he can plead insanity. In addition to these defences, Tom’s defence may be able to raise issues in the prosecutions case including intent, evidence, immediacy, proximity, recklessness, negligence and conduct.Word Count:1126