Offenses against the person

Dr Laura Lammasniemi, Criminal law

VIDEO TRANSCRIPT
This afternoon, we're going to focus on offense against a person. Firstly, we're going to think about
offenses themselves and this session is all about the offense against the person themselves and
then after the break, we're going to have a look at consenting specific and in what circumstances
can consent to be a defense to offense against the person.
I know that this comes a little bit later in the guide and I know that this is not something you
necessarily study yet at this point by November time, but it's actually, this is really important part
of the syllabus and I think going through it together, it makes sense because we do have a good
chunk of it. We're going to go over the offenses together, think about what these offenses actually
really mean and then the second part, we're going to have a bit more critical look at ideas of
consent.

We're going look at what are the key offences against a person and think about harm. How is harm
categorised in criminal law? Then we're going to have a look at how to answer problem questions.
I know I haven't been managing to get through quite all the tasks, but I'm going to make sure that
we're going to go through-- I have a writing task for you which we're going to do together in
relation to this, there's a past exam question as well.
Really, I want to start from here and I want to start thinking about when you think about offenses
against a person, they're quite technical. We have five offenses, they are quite technical offenses
and we really get bogged down with thinking about the technicalities of those offenses. We get
bogged down thinking about what are the key cases? What is the actus rea? What is the mens rea?
How do we categorize them? Actually, I think what is really important is think about what the
essence of these offenses are?
When we are thinking about offense against the person, what is it that we are talking about? How
do we then offend another person in the sense of criminal law? What is it about these offenses that
makes them so serious and makes them different from other types of offenses. When we think
about offense against the person, the way we'll talk about now, is that they do not only focus on
violence. Often when you think about offense against a person, we think about people having a
fight, a broken nose, maybe bruises here and there maybe some scratches, but that's actually not
the core of these offenses.
They're important part of it, but what is much more important is that kind of sense of autonomy
and the sense that everyone has the right not to be violated and that violation doesn't need to be
physical, someone doesn't need to physically come into your space and punch you in the face, it
doesn't need to be that. If any sort of violation of that sort of a person's autonomy, whether it's
physical, whether it's psychological, that is what essentially what offense against a person cover.
You expect the fact that each and every single person has the respect for their body not to be
touched if they don't want to be touched, they have the right not people, not to interfere with
their mind if they don't want their mind to interfered with. Having that its supposed to give a bit of
a shield, I suppose in some ways for people from other people and the things that they can and
cannot do to each other.

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There are five key offenses, then I say, this where the technicalities begin. There are five key
offenses and you do have to know these five offenses. This is something that is an important part
of the syllabus, I can guarantee that this will be part of your exams. Offenses against a person is a
huge part of criminal law and the study of criminal law. Five offenses at the very core, we have at
the very bottom of the list, we have assault and battery.
Assault and Battery are very common, everyday offenses. They do not come technically under
statute, so we don't get a definition of these two offenses in a statute, but what we get under the
Criminal Justice Act 1988, is sentencing. We know that these are summary offenses and section 39
of the Criminal Justice Act 1988, it says that maximum sentence for assault and battery is either six
months imprisonment or £5,000 fine, but they are known as criminal offenses because actually,
what the offenses are, are not defined in the statute. This is the very base, we're going to go over
what these offenses mean in a second.
This is the very base and then at the top of it-- These are the two assault and battery. These are the
lowest ones, they'll be heard in the magistrate courts because they're summary offenses. Then we
have three of the more serious ones and then those three more serious ones, they come under
offenses against the person act 1861. The offense against the person act 1861 is obviously an old
statute, It's a Victorian statute, but the wording of the statute has not changed since 1861. The way
we understand it has changed, the way we understand each of these particular sections, it has
changed, but the statute is exactly still the same as it was in 1861, when Victorian lawmakers
enacted it.
What we have under the offense against the person act and the key difference between those
offenses and then assault and battery is harm. If you think about these ones as assault and battery,
they are purely related to defendant's actions and then when we start to think about the other
offenses, there's a little bit attached to them and that what is attached to them is an element of
some sort of harm to the defendant.
We have assault or battery and occasionally actual bodily harm. We have actual bodily harm and
then a more serious one, we have inflicting grievous bodily harm, which is GBH. Inflicting grievous
bodily harm or grievous bodily harm by wounding and then finally we have causing grievous
bodily harm, or grievous bodily harm by wounding with intent. I know it's a lot, we're going to go
through them now, in a more step by step fashion.
When we think about this pyramid and I like to think about it as a pyramid. I like to think a lot of
things as a pyramid, but this one in particular because assault and battery, are by far the most
common ones and they get less then less more frequent as we go towards the top. When we think
about these two things, it's really important to think about two questions. When you're trying to
think about where on this pyramid do I want to place a defendant? There are two things in your
mind that must always be considered.
Firstly, was there any kind of harm to the victim? If there was no harm to the victim, none
whatsoever, you know you can stay safely within assault and battery. If there was then harm to the
victim, if the victim was somehow injured, then you need to think about what kind of injury did the
victim suffer and then you place it somewhere on the top end of the scale. Was it actual bodily
harm, was it grievous bodily harm, was it wounding, think about what was actually the nature of
the harm that the victim suffered. That's the first consideration. Harm, what kind of harm? How
serious was it?
The second consideration is what was the defendant's mens rea? For all the other ones,
recklessness is fine. Only the one at the very top, section 18 of the offense against the person act,
only for Section 18 we have the word intent. For all the other ones, you can do them either by

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intending to cause some harm or by being reckless, but for section 18, the very, very, very top one,
for that one in you need to show that the defendant caused grievous bodily harm and that they
did that with intent to cause grievous bodily harm. That is the only one with intent as the mens rea
element of it.
We can, but there's no difference now. This is actually is a very good question and the courts have
gone back and forth about, "is there a difference between inflicting and causing?" and so on.
There's a case of Ireland and Burstow, where they finally decided, actually, there's no difference.
We can use the words interchangeably, but the wording of the Act hasn't changed. If you read the
statute in itself, section 18 talks about causing and section 20 talks about inflicting. You just follow
the wording of the statutes, but in they say now for juries, we can use them interchangeably.

Student: What was that case again?

Ireland and Burstow. We'll talk about it now because it's an important for number of reasons. Its
been one of those things where courts are like maybe in one there is a physical element, may in
other it doesn't, but then following Ireland and Burstow, they said, "Actually no, both." It was really
with the same understanding, that they both would be the same as causing basically.
These are the five key offenses and we're going look at them now in a little bit more detail and
then we're going to apply to them in a problem question as well. Two key things always
remember, was there harm to the victim? If you're like, no, there's absolutely no harm victim is not
bruised, the victim is not suffering anything, then we can stick to assault and battery. If the victim
has a bruise, the victim is bleeding, the victim lost a limb, is in a coma or suffer from serious mental
health issues, then you think about the placing the defendant in one of the three upper categories
and then secondly, think about intent. Did they actually intend to cause grievous bodily harm? If
not, you stick it in one of the lower ones.
We're going to start with assault and battery. These are the lower end of the scale. Assault and
battery. This goes against our everyday understanding of these terms. If I say to you that Bob
assaulted Bill, what comes to your mind?

Student: Had to do with use of violence.

Violence. That is actually the opposite of legal understanding. In legal terms, assault does not
require physical contact. Battery is what we actually understand by assault. Battery is when there's
unwanted physical touching, like what we have here with the two gentlemen. It doesn't need to
be violence.
When we talk about unwanted physical contact, just putting your hand on another person if they
don't want the hand to be there that is enough for battery. It's about touching rather than
violence. Sexual assault used to be called indecent touching, and then when they had a review and
the new law of Sexual Offenses Act, it talks about sexual assault. Sexual assault is actually
unwanted touching that is sexual in nature.
Yes. There is lack of consistency between these words. Yes. Right. An assault is then apprehension
of unwanted touching, so not unwanted touching but apprehending it. You see that someone is
just about to slap you or you feel like someone's going to jump on you, it's that moment that you
apprehend that that unwanted touching is coming towards you.
That is assault. There's no need for physical contact, it’s purely that sense of-- You don't even need
to be frightened but normally it will be that sense of fright when you realize that someone is just
about to smack you in the face. You don't need to physically even be, it can be hair, it can be
clothing.

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When you think about, it's actually quite a loose concept of what we understand to be object of
the battery. There are certain social norms that we take into account. If anyone took the public
transport in this morning, you would have had some physical contact.

That physical contact was not consent by all sorts of imagination. Just by virtue of living in a city,
walking down the street, taking the bus, taking gratitude. We will always have some sort of
physicality that is there. This is what they call implied consent. Just by going about our daily lives
that we impliedly consent to having these some kind of physical encounters. That's not battery.
The same like in other social norms, you’re in a park, someone puts their hand on your, I don't
know, shoulder or something like that kind. That's fine because that's the way that people interact,
and those things are obviously not criminalized.
That’s assault and battery, and they are at the very cornerstone of a lot of these other offenses. You
can establish them separately, you can be liable for assault, you can be liable for battery or the
most commonly you'd have them both together.
More often than not, if you see someone about to punch you, you have both of these things
happening together. They’re cornerstones, they are summary offenses. Maximum penalty is six
months imprisonment or £5,000 fine, so they are heard in magistrates. The key thing about assault
and battery in some ways is that that's all that needs to happen. All that needs to happen is the
unwanted touching, that apprehensiveness, but there's no impact on the victim.
You do not need to show that the victim suffered from this. You do not need to show the victim is
injured on this. Purely the contact is enough or that personal contact. Then we move on to the
more serious ones, what we then have is the element of actual bodily harm or grievous bodily
harm. When we have that kind of assault or battery, but then it causes the victim to suffer
somehow.
It causes the victim to have some sort of harm. Then we move on to more serious offenses, so
actual bodily harm, grievous bodily harm, we're going to go through what these terms mean, but
what does the word harm? How do you understand the word, harm? What does the word, harm,
mean to you?

Student: Damage.
Damage?

Student: Damage to your body or when you suffer-

Student: - or reputation, does it-

No. No, that's tort.

Student: Damage to the body that causes pain.

Yes. What if you have a really high threshold for pain? Someone slices your arm open but you don’t
actually feel it because you have abnormally high threshold for pain. That would be wounding it.

Student: Depends on the damage. There’s harm. It could be like a broken bone or broken-- A cut.
Yes, definitely.

Student: What injures you when it’s physical or even mental.

Yes, exactly. It covers both. It covers physical damage of some kind. It covers bruises, it covers
broken bones, it covers wounding, but then it also covers psychological harm. This has gotten, in

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the grand scheme of things, our newest development in criminal law, so the case of Ireland and
Burstow, the case I mentioned that actually said we can use the words causing and inflicting
interchangeably.

This was really the key case where they recognized that actually psychiatric illness is as serious
physical illness. It took until 1998 for the courts to actually realize that when we talk about an
harm, let that be actual bodily harm or grievous bodily harm, psychological harm and
psychological injury is actually as serious as physical one. Now for the purpose, it needs to be
diagnosed, you need medical evidence.
If you can show that the defendant caused the victim to have say, depression, any sort of mental
illness or psychological injury, the defendant can be held liable for those injuries. Bullying would
be considered to be assault. There hasn't been any cases yet. I know there's been few cases in US,
but there hasn't been any cases here yet where they make that link and had any prosecutions of
bullying. I think that will be happening.
I think also not only bullying in school but also cyberbullying, which can be absolutely vicious. I
think those cases will come in the next sort of five odd years. We're not quite there yet. Law tends
to be a bit slow. If you follow the rules of causation, you can have number of people. You don't
need to have one person who caused it.
As long as that person substantially contributed to it, you could have 10 people liable for the same
crime. With cyberbullying, it becomes a problem then of who actually said what. I think there will
be some test case. We don't have those cases now, but I think in sort of five years, in the next five
years you will see series, there’s a series of this case really testing it out like, what does it mean?
Who do we hold liable?

How this case came about, Ireland and Burstow, there were two separate cases originally and they
were both making silent phone calls. Burstow was making phone calls to three different women
and Ireland was having a campaign of harassment against his ex-partner. The women who were
getting these silent phone calls, all of them explained that they were suffering from psychiatric
injury.
They were suffering from depression. Then in the case of the ex-girlfriend, she was suffering a
mental breakdown. He was going to her workplace, he was stalking her on the streets, he was
distributing leaflets, making silent phone calls. Like he's a really, really persistent campaign of
harassment against her, which then led to her having a mental breakdown.
In all of these cases, then the question was they were all suffering symptoms of some kind, but
then was these symptoms enough to constitute actual bodily harm or grievous bodily harm? The
court effectively said, yes. They said that we have moved on.
The statute is from 1861. In 1861 psychiatry was at its infancy and the Victorian lawmakers couldn't
have foreseen where we are today. It would be completely unfair not to recognize the harm that
these victims were suffering just because it didn't fit into the Victorian mindset of what is harm.
More so, they said that we need to then also think about how serious this harm is. They said those
three women who were suffering from depression, their illness amounted to actual bodily harm
because they were still going about their daily lives. They were receiving treatment, but it was
going all right.
Then the person who was harassed by the ex-partner, she had a breakdown and she couldn't leave
the house, and they said her symptoms were so bad that that actually amounts to grievous bodily

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harm. Just as we sort of categorize different types of physical harms, we can also categorize
psychological harm depending on medical evidence.
Now following the case Ireland and Burstow, when we think about what actually constitutes actual
bodily harm, grievous bodily harm, we look at psychiatric illnesses as well as then physical issues.
It needs to be either psychiatric injury or medically recognized illness, it cannot be a lone sort of
fear or panic, sense of discomfort. It cannot just be sort of feeling bad. It needs to be actually
medically diagnosable and diagnosed before it caused actual bodily harm.

You need to think about the long-term effect, so obviously when anyone's held hostage, they're
going to feel frightened and so on, but that sense of fright might disappear at the moment they’re
released from the hostage situation. If that sense of fright then turns into something that can be
diagnosed, if it turns into depression or if it turns into PTSD, then you have harm for the purpose of
the act.
Might very well be that the person who's subject to really long campaign of harassment and
bullying, it might be that they develop a mental illness. It might be that they do not, if they do not,
fine for the defendant, if they do, the defendant should still be liable because this is how the victim
responded. You take your victim in a particular circumstance as they were suffering and you don't
apply this on the threshold. As we are going through this spirit, where they are going through
where people are publicly shamed, and sometimes publicly shamed for things that we don't know,
the things that they have actually done. That is, there is no absolutely zero cases that go anywhere
near that particular points yet. I think that is a hugely important question. When we have these
really targeted campaigns against the person that who may or may not have done something.
They lose their jobs, they lose their contacts, their face is absolutely everywhere. There was a case
of a girl who killed themselves after series of long harassment on Instagram and the parents were
actually trying to see if there are ways to make Instagram liable for it but it didn’t really go
anywhere it did change some policies in some ways but that's it. Yes, so these are really good
questions. These questions are completely open. Like, there hasn't even-- Even when you think
about simple school bullying. Even this case of simple school bullying that leads to harm, even
those cases haven't made it to court yet. We're still quite far from having cyber bullying cases. I
think they will come, and I think it's really important to clarify these issues but that's still
completely up in the air. Work place bullying, yes but if you think about school bullying, and that's
a little bit different, employment legislation works a little bit differently and actually bullying is part
of employment relations. Again for school bullying, that leaves their victims feeling, say suicidal or
suffering from depression this is clearly a criminal issue. So how do we deal with that?

Student: Some of them are underage, right? That means it would be more difficult.
Yes. Underage but also they will be well within the age of criminal liability. Criminal law we always
look for that liability for that one defendant and in those cases they might be suffering harm but
we have no one that we can hold liable for that particular scenario. When it comes to harm, it can
be both physical and psychological, and then, what do these terms mean? Actual bodily harm,
grievous bodily harm. Actual bodily harm, is core of Section 47. That was the second one up, they
have assault and battery at the very bottom of the pyramid, and then we have Section 47 of the
offense against a person act. To find someone liable for Section 47 offense, you need to show that
there was assault or battery first. Then you show that that assault or battery, it occasioned in actual
bodily harm. You have assault and battery and actual bodily harm. Actual bodily harm is
something that is defined as something that is more than trifling. Cuts, bruises, grazing, cutting
hair can be in some very, very serious circumstances can be considered to be actual bodily harm.
It's something that is clearly causing inconvenience to the victim. Something that is causing

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discomfort to the victim but is not very serious. That's actual bodily harm. Grievous bodily harm on
the other hand, is something that is far more serious. It doesn't need to be life threatening, it
doesn't need to be permanent but it needs to be serious. As we get on the case of Smith,
something that is really serious harm, there's a list, CPS has a list of things that they considered to
be grievous bodily harm. It will be, obviously things like, obviously things like serious damaged
organs, loss of limbs, loss of senses, coma. Broken bones can be both, so, if you think about a
broken skull, grievous bodily harm, broken finger, actual bodily harm. Also think about, like, how
serious his broken bone situation is. It can be both. Also then when it comes to sentencing, if the
harm is really serious, like, leading someone into a coma, then that would be reflected in the
sentencing. Now, we know that it can be both physical and psychiatric. Following the case of
Ireland and Burstow. I think, if you have questions about difference between actual bodily harm
and grievous bodily harm. No? No questions? Okay. Then we have wounding. Wounding is a little
bit different. Wounding just means something that breaks all the layers of the skin. Technically, a
paper cut is wounding because it breaks all the layers of the skin but you would not have someone
held on trial for a paper cut. It's just something that breaks all the layers of skin. You do not need to
show bleeding necessarily, but obviously, if you break all the layers of the skin, bleeding normally
happens. In problem questions you might have things like someone was bleeding profusely or
there was blood everywhere, you would know that there has been wounding because you
wouldn't have bleeding if you didn't have wounding. It needs to be all the layers of the skin and
just breaking your cuticle outer skin is not enough. Also, internal blood vessels. If you break
internal blood vessels, it is not wounding. It can be, if it is very serious damaged organs, it would
be GBH, if it's breaking blood vessels in terms of bruising, that's ABH. Wounding means that skin is
broken. Stabbings, shot, and that kind of things. Those are the three forms of harm that we find in
the statute itself. If you think about this, when you think about where do we then place, and we're
going to do this now in the problem question in groups, always think about which offense applies
and think about the primitive-- Was there harm? No? If there was no harm at all, you go for the
assault and battery. If there was harm, was it actual bodily harm, was it grievous bodily harm or
wounding. Let's imagine there's a third pillar there for wounding. Then depending on the mens
rea, you go either to intent to cause grievous bodily harm, which is Section 18, or if there's no
intent, if they're purely reckless about it, then it's Section 20. We're going to apply this now to a
problem question that I had given to you. You're going to write some little bit of answer in groups,
but before that, I wanted to go through how to answer problem questions. How do you normally
answer-- In criminal law, it's all about hypothetical scenarios, it's about problem questions, how
much practice you've done on answering problem questions.
Okay. IRAC is also my preferred method. This is great but there are number of different ways and
there's tons of study books actually on law more broadly. All of them roughly look at the same
things but they have a slightly different approach. If you don't follow IRAC, it's fine. Just find the
method that works for you. I think IRAC is really nice and clear. I think they key difference is about
the way that I think contracts thought in the past and the way criminal law works, is that often, in
contract, you have one big problem versus in criminal law, you have number of little problems and
in problem questions you would never only have one issue, but you have Adam who does this, you
have Clyde who does that, you have Bertha who does this and you would ideally apply IRAC as
many times as many issues you have. You don't apply, IRAC to the whole problem, but you apply it
to the individual little section that you are looking at. Then you do it all over again. What does IRAC
stand for? Those of you had a contract-

Student: Issues, Rules, Application, Conclusion

Issue is always straight forward, identify what the key issue here is. The issue is that-- Who did we
have in the last? Adam, Adam might be liable for causing Bertha bruising, that would be the issue.

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The rule is whatever the rule is and in criminal law, it can be a statute, it can be a common law rule,
it depends on the area. When it comes to us now for example, when we are looking at offense
against a person, it's a statute. Offense against a person statute, so you identify what the key
statute is. If you are looking at homicide for example, homicide doesn't have statute, it's purely
common law so then you state what the common law rule is. It doesn't matter if it's common law
rule or statute, so state whatever the rule is. Then you have application and in criminal law,
different from contract, always-- Application needs to be the longest part, this is where you get
your marks from, this is sort of your-- This is where you'll really show your knowledge and in the
application part, always try to break down application into actus reus and mens rea. Always
consider first, did they have the actus reus elements of the crime? Then consider did they have the
mens rea elements of the crime? Was it by intention or recklessness? Find out what the test is and
then apply the test. Then if relevant, then consider defence as well. Then finally you draw your
conclusion. For criminal, one line is fine. Probably defendant would be liable for Section 18 of the
Offenses Against the Person Act or if the defendant is not likely to be liable for section 20 of the
Offenses Against the Person Act. One line conclusion is fine. If you think about this in a sort of a
scale, your issue it should be very small, your rule should be quite small, your application needs the
bulk of your answer and your conclusion is just one line.

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